Findings Of Fact In the 1984-1985 regular school year. Eduardo Hernandez was in the 7th grade at Nautilus Junior High School. On December 4, 1984 Eduardo disrupted science teacher Ralph William Schmidt's science class by speaking loudly in Spanish and called the teacher a pejorative name in Spanish before the entire class. He was assigned classroom detention by Mr. Schmidt which he did not serve. On December 6, 1985 Mr. Schmidt tried to send him to the principal, Mr. Walker, with a note of detention but Eduardo ran out of the room. On that date, Eduardo wrote some obscene notes to Mr. Walker containing curse words in Spanish and passed the notes in class. On February 6, 1985 Eduardo wrote with blue magic marker on a science lab table. Thereafter, the same markings (fancy signature marks and cartoons) were discovered in bathroom stalls, on desks, and other parts of the school and Eduardo and another boy were discovered in the vicinity with blue magic markers in their possession. Dr. Paul Smith, assistant principal of Nautilus Jr. High School confirmed that Eduardo was referred for discipline as a result of this incident. In this year, Eduardo's science grades were mostly failures with many absences. He frequently disrupted the concentration of other students in the class. Some days he was cooperative and other days he was not. In most cases he was disruptive and discourteous to the teacher and students. In response to many referrals by Mr. Schmidt, Dr. Paul Smith, spoke to Eduardo on a number of occasions. Very frequently Dr. Smith was required to speak with him about tardiness and cutting classes. In the first nine weeks grading period alone Eduardo was absent without proper excuse two times from one class, two times from another class and three times from another. On December 11, 1984 Dr. Smith counselled with Eduardo due to a disruptive behavior referral from another teacher, Mr. Lawless. On January 18, 1985, Dr. Smith personally received Eduardo when he was brought to school by the police as a truant. On another occasion, Dr. Smith caught Eduardo "skipping" or truant after lunch period. On March 19, 1985 Dr. Smith counselled with Eduardo on a referral for disruptive behavior in the classroom of another teacher, Mr. Burger. On April 1, 1985, Eduardo was brought to the office for refusing to work in class and he thereafter left the office without permission from Dr. Smith. Throughout the 1984-1985 school year, Eduardo's unexcused absences increased and his grades decreased. Eventually he was absent 20 days out of 45 in a grading period. His highest grade was a "D" and the others were failing or - unsatisfactory, designated as "F3F." In Dr. Smith's opinion, Eduardo cannot successfully complete a regular school program and although the Opportunity School may not be the only acceptable program, it was selected as the best solution under present circumstances. Jorge A. Hernandez opposed the alternative school assignment on the basis of danger from other students behavior to his son. He did not challenge the existence of his son's prior disruptive behavior but submitted that a telecommunication program would be a better alternative if Eduardo cannot be returned to a regular school program. He offered that Eduardo's behavior will change since Eduardo is now living with his father and certain family stresses contributing to his disruptive behavior have been resolved.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order continuing the alternative placement of Eduardo Harnandez at Jan Mann Opportunity School-North until such time as an annual or other evaluation indicates other appropriate assignment. DONE and ORDERED this 27th day of September, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools, Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building Suite 100, 2780 Galloway Road Miami, Florida 33165 Mr. Jorge Hernandez 461 Southwest 10th Street, Apt 2 Miami Beach, Florida 33130 Mrs. Maeva Hipps School-Board Clerk 1450 Northeast 2nd Avenue, Room 401 Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Mrs. Maeva Hipps School Board Clerk 1450 Northeast 2nd Avenue, Room 401 Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether the allegations in the Amended Administrative Complaint have been proven by clear and convincing evidence and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Health, Board of Physical Therapy Practice, (Petitioner or Board) is the state agency that licenses and has regulatory jurisdiction of physical therapists. At the time of the hearing, Respondent Raymond Cralle (Cralle) had practiced physical therapy for three decades and was known to colleagues as a competent and innovative professional. He holds licenses in Florida, Virginia, Iowa, and other states by reciprocity, and also holds a specialized certification in physical therapy for persons suffering from injuries to the brain and spinal cord. Cralle received his academic training from the University of Iowa’s School of Allied Health. Upon graduation, he began a hospital based practice at Good Samaritan Hospital in West Palm Beach, Florida, and thereafter built a large and successful private practice in the Greater West Palm Beach area. Over the years, Cralle was also active in professional activities. In addition to speaking, writing and consulting, Cralle was heavily involved in legislative advocacy work on behalf of his profession. Throughout his career, his clinics have usually had some type of formal or informal relationship with schools of physical therapy, offering opportunities for students to intern or to perform other types of work. By 1992, Cralle was operating 13 clinics. That year, he sold some of his practice to HealthSouth and the rest to Novacare, two publicly traded companies. Not ready to retire, Cralle opened another private practice in Delray Beach, Florida. At the time of the events giving rise to the charges against Cralle, his clinic had space to treat eight patients at a time. In addition to Cralle, three physical therapists, one occupational therapist, and one physical therapy intern were working regularly on the premises. In addition, aides were employed to perform non- professional chores such as setting up equipment, assisting patients in making their way to treatment rooms, draping patients, and the like. For approximately three months in the year 2000, the precise dates of which are not reflected in the record, physical therapy student Helen Mesa (Mesa) was employed as an aide in Cralle’s clinic. When treating patients, Cralle was frequently accompanied by a colleague, either an aide or a more highly trained staffer, who would be asked to enter notes on the patient’s chart. The notes were dictated by Cralle. Cralle used staff this way to avoid having to interrupt treatment in order to document treatment. When accompanied by student interns or aides such as Mesa, the dictation served a teaching function as well. Mesa's brief tenure at Cralle’s clinic is consistent with her pattern of unstable employment. Since she left Cralle’s employ, she has worked in at least three jobs, including one in a supermarket and two involving physical therapy, and each of these jobs lasted roughly three months. Mesa’s instability is further evidenced by the fact that initially she resigned from Cralle’s clinic, saying she could not handle the stress of the job and single motherhood. Cralle hired a replacement while Mesa worked out her notice. Then, Mesa changed her mind and asked to stay. Cralle, having promised her job to another, said no. The circumstances surrounding her departure may or may not be the cause of Mesa’s hostility toward Cralle, but the hostility was unmistakable during her testimony in this case. Her demeanor under oath was prosecutorial. She would volunteer information and argue with defense counsel about what questions he should be asking her. As a student, Mesa was taught a method of documenting patient progress known as SOAP notes. The acronym stands for Subjective-Objective-Assessment-Plan. Under the SOAP methodology, the “S(ubjective)” portion includes everything that the patient says about how he feels. The “O(bjective)” portion states what was done with the patient. The “A(ssessment)” portion states what progress the patient is making toward short or long-term goals. The “P(lan)” portion reflects what is expected by or at the next treatment. Cralle does not like the SOAP form of note-taking and generally does not use it in his practice. No law or rule requires the use of the SOAP format in documenting, or “charting” patient progress. However, when assisted by Mesa, Cralle often used the SOAP format when dictating notes, because it was familiar to Mesa from her studies. Mesa is the only complaining witness. At hearing her claims about Cralle’s charting practices went well outside the boundaries of the amended administrative complaint. She claimed that she worked on patients with no supervision and that some of “her” patients did not have an evaluation sheet in their chart, although such sheets are the most basic tool of physical therapy practice. Mesa also provided the only testimony in support of the Board's primary charge, which is that she wrote entire SOAP notes on charts without any input, let alone dictation, from Cralle or other qualified personnel. In addition, Mesa claimed that none of the patient files in which she wrote notes had been signed by Cralle the next time she worked with that patient. Yet, it is undisputed that of the 103 partial patient charts reviewed by the parties during discovery, all but about 15 percent of the patient entries in Mesa's handwriting had been signed off on by Cralle. Of 17 unsigned notes placed in evidence, at least some reflect a degree of technical knowledge and vocabulary that Mesa did not have. Her claim to have written each of them, entirely on her own, is not credited. There was no evidence as to whether, or under what circumstances, a physical therapist is required to initial patient notes, and none of the allegations of the Amended Administrative Complaint allege errors or omissions with respect to Cralle's signature, initials, of lack thereof. There was no evidence that any or all of the alleged charting deficiencies compromised patient care or safety in any way. Rather, as Petitioner’s attorney stated during the questioning of its only other witness, physical therapy expert Linda Nash (Nash), “As you know, this case is about what duties a physical therapist can delegate to unlicensed personnel . . . what are [a] physical therapist’s responsibilities as far as the record keeping itself?” Nash’s answer was instructive. She replied: Well, we have a responsibility to document everything and, and document it in a form be it SOAP or narrative or any way that demonstrates that that patient, where they were the moment that they came in and how they were continuing to progress. For several reasons. Number one, for your own benefit because if you have to defend yourself in a case you have, you know, notes that are documented as to what went on and what you did for insurance purposes. Insurance companies don’t like to pay if they’re, if the patient is not making progress. And you need to be able to document those kinds of things in the notes. After revealing that her primary interest in good documentation is as a means of covering herself in malpractice litigation or to obtain insurance reimbursement, a theme which would recur again on her cross-examination (in her words, “so that I covered my tail”), Nash eventually turned her attention to issues pertinent to the state’s interest in protecting the public’s health and safety, but provided no testimony indicating that any or all of Cralle's charts constituted a danger to any patient. Nash acknowledged that in her years of experience, she has never seen a "perfect chart." Nash, as well as the experts who testified on behalf of Cralle, agreed that it would be improper to delegate to an unlicensed aide the task of assessing the patient and determining the content of a plan of care. The most that could properly be delegated is the documentation of tasks and activities performed by patients in the presence of the unlicensed person. It was also undisputed among the experts that there is nothing improper about dictating notes to an unlicensed aide. The uncorroborated testimony of Mesa that she was delegated tasks which may be lawfully performed only by a physical therapist is not worthy of belief when evaluated in the context of Cralle’s 30 years as a successful and well-regarded physical therapist. Cralle had a number of associates and employees of long standing whose qualifications were entirely appropriate for all aspects of patient care and record keeping. It is illogical to assume that Cralle would delegate vital functions to a brand new employee with no experience, and there is no credible evidence that he did. Petitioner's expert Nash realized that because the state’s entire case rested upon Mesa’s credibility, it would be important ”. . . to insure that no misrepresentations [were] provided, the office manager as well as the current PT techs and PTs are interviewed for accuracy.” Petitioner did not follow-up on that recommendation. Had those individuals been interviewed, and additional office records been examined, the true circumstances surrounding Cralle's record keeping practices could have been ascertained. In the absence of such evidence and witnesses, there is no clear and convincing evidence of the Rule violations alleged. Mesa claimed that two physical therapists working in Cralle’s clinic instructed Mesa not to write in the charts of their patients, and, further, that these therapists complained to Cralle about his practice of permitting Mesa to write in his charts. Petitioner offered no corroboration for these claims, even though one of the physical therapists to whom Mesa's testimony on this matter referred was present and testifying on behalf of Cralle. A number of notes in Mesa's handwriting included frequent use of phrases such as “patient tolerated treatment well due to no complaints” and “continue with plan of care.” These are not models of informative note writing, but neither are they clear and convincing evidence of improper delegation when viewed in light of the entire record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Physical Therapy Practice enter a final order dismissing the Amended Administrative Complaint against Raymond Cralle. DONE AND ENTERED this 27th day of November, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 27th day of November, 2001. COPIES FURNISHED: Mary Denise O'Brien, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building Three Tallahassee, Florida 32308 Richard Willits, Esquire 2290 10th Avenue North, Suite 404 Lake Worth, Florida 33461 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C05 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Should Petitioner, Pinellas County School Board (School Board or Board), terminate the employment of Respondent, Rose M. Dacanay, for the reasons that follow: Violation of Board Policy 4140A(9), incompetence? Violation of Board Policy 4140A(9)(a), failure to perform the duties of the position? Violation of Board Policy 4140A(19), failure to correct performance deficiencies? Violation of Board Policy 4140A(20), insubordination? Violation of Board Policy 4140A(24), failure to comply with Board policy, state law, or contractual agreement?
Findings Of Fact The Pinellas County School District has employed Ms. Dacanay since August 2005. She has worked as a teacher assistant and as an exceptional student education (ESE) associate. At the beginning of the 2011-2012 school year, Ms. Dacanay worked as an ESE associate assigned to the Paul B. Stephens Exceptional Student Education Center (Paul B. Stephens). The Center serves vulnerable students with significant developmental disabilities and medical needs. ESE associates work under a classroom teacher's direct supervision. They must assist the teacher in all aspects of both the care and the education of the students. During the first semester of the 2011-2012 school year, Ms. Dacanay worked in the classroom of Paulette Pickering. Because Ms. Dacanay's performance in Ms. Pickering's class was not satisfactory, the principal, Gail Cox, reassigned her to the classroom of Linda Vest for the second semester, which started January 2012. Ms. Cox selected Ms. Vest's classroom because it did not have as many students as Ms. Pickering's, and the class was not as demanding. The reassignment was to give Ms. Dacanay an opportunity to improve her skills and continue working at the school. Also during 2011, Ms. Cox, along with other administrators and a teacher's union representative, met in October and November with Ms. Dacanay four times to review multiple deficiencies in her performance and offer improvement plans. In the meeting held November 10, 2011, Ms. Cox encouraged Ms. Dacanay to apply for other positions in the school system that would not be so demanding and would be a better fit for her. In January of 2012, Ms. Cox spoke to Ms. Dacanay and told her very directly, "This is not working, Rose. You need to find a different job. Even though everyone is nice and polite, you're still not doing your job, and you need to find another one that better fits your skills." Ms. Dacanay did not take this advice. She worked the remainder of the 2011-2012 school year at Paul B. Stephens. After summer break, she returned to employment in the 2012-2013 school year. She was assigned to assist Kim Gilbert. The students of Paul B. Stephens have emotional, mental, and physical disabilities. Many have severe and multiple disabilities. They are dependent upon the services of their teachers and teacher assistants. One of the students in Ms. Gilbert's class required the use of Dynamic Ankle Foot Orthotics (DAFOS). These are hard plastic inserts positioned around a child's foot before putting on the child's shoe. They must be positioned and wedged on carefully to avoid hurting the student. After correct placement, they are strapped on. The DAFOS are individually made for each wearer's feet. Ms. Dacanay had been instructed and trained on how to put DAFOS on. DAFOS position a child's foot to cure or resist deformity. They are uncomfortable even when properly applied. When DAFOS are put on the wrong foot, they are painful and can cause blisters and sores. They also do not properly perform their rehabilitative function. On October 23, 2012, Ms. Dacanay put a student's DAFOS on backwards. This would cause the student pain and eliminate the benefits of the DAFOS. Fortunately, Ms. Gilbert spotted the mistake and corrected it. The same student also needed and wore an arm splint. Ms. Dacanay had been instructed and trained on how to fasten the arm splints. On October 24, 2012, Ms. Dacanay was improperly fastening the arm splint. Ms. Gilbert noticed and corrected her. In 2012, Ms. Dacanay's duties included placing wheelchair-bound students in the bus and securing their wheelchairs. This service is critical to the students' safety and the safety of the other students. It requires properly fastening the students in their chairs with chest and foot straps to prevent them from falling from the chair or injuring their feet during transportation. Ms. Dacanay was trained in securing the students and their wheelchairs for transport. On October 29, 2012, Ms. Dacanay did not fasten the chest straps on one student's wheelchair. On October 30, 2012, Ms. Dacanay did not properly secure a student's feet for transport on the bus. Fortunately each time, other employees noticed the errors and corrected them. On another occasion, Ms. Dacanay did not properly fasten the chest strap of a student in a wheelchair on the bus. Another ESE associate checked the student's straps and tightened them properly. The students' wheelchairs were also strapped tightly in the bus to prevent movement or falling. Ms. Dacanay was properly trained on how to secure the bus hook-up straps. From October forward, Ms. Dacanay routinely failed to properly secure students for the bus. A fellow ESE associate regularly observed this and began routinely checking and tightening the straps for the students. Specifically, Ms. Dacanay did not properly fasten the wheelchair hook-ups on November 14 and December 4, 2012. Despite the fact that properly securing the wheelchairs was one of her duties, on December 4, 2012, Ms. Dacanay asked a student why he had not hooked up the side straps on his wheelchair. Ms. Dacanay's neglect of the task of securing students in their wheelchairs was so common that the other ESE associates who worked in Ms. Gilbert's class were concerned for the children's safety. Consequently, they regularly checked the wheelchairs of students for whom Ms. Dacanay was responsible to ensure that the students were properly secured and safe. They often found the straps loose and secured them. Swimming was part of the curriculum and services for some students. On November 5, 2012, while bringing students back from the pool, Ms. Dacanay used only one hand to push a student in a tall, cumbersome therapy chair. The chair was tall, unstable, and very difficult to maneuver along the sidewalk. With her other hand, Ms. Dacanay was escorting another student. Two other ESE associates yelled at her to stop. Ms. Dacanay did not, and the chair "wobbled" and went off the sidewalk. Ms. Dacanay was taking prescription medicine. She did not properly secure it, and a pill fell to the bathroom floor. Ms. Gilbert found the pill and gave it to the school nurse, Tomeka Miller. Ms. Dacanay went to Ms. Miller and asked her to return the pill. She also asked if anyone else knew about the pill. Ms. Miller advised Ms. Dacanay that Ms. Gilbert knew. The ready availability of the pill to the students with disabilities represented a potential risk to the students. One of the students for whom Ms. Dacanay was responsible was blind and had other issues. In the words of his teacher, Ms. Gilbert: That was my student who was blind. In addition to having a lot of other issues, he's a student who is transported in a wheelchair and he kind of cruises around furniture, but it's not a walker. He's very, very difficult, very strong, very stubborn. He has a lot of sensory issues, so you can't hurry him to do anything. It just makes the problem worse. Ms. Dacanay was aware of the student's issues and needs. On November 8, 2012, Ms. Dacanay was hurrying the student back into the classroom. She was urging him on and saying "come on, let's go." He became agitated. Ms. Gilbert instructed Ms. Dacanay to let the student calm down. Ms. Dacanay did not. This detrimentally affected the rest of the morning routine, including the student's therapy schedule. Ms. Dacanay denied each of the events described above. Her denials are not credible judged in light of the conflicting testimony, consistency of testimony among several witnesses, and consistent reports in contemporaneously created documents. In addition, Ms. Dacanay regularly displayed an inability to perform her work or learn her duties. Despite repeated instructions, she failed to correctly perform routine functions. When she worked with her students and the physical education teacher, Darlene Tickner, Ms. Tickner had to repeat instructions and requests multiple times to get her to work. Ms. Dacanay's inability to understand her duties caused Ms. Tickner to develop a "Teacher Associate Class Expectations" worksheet to help remind Ms. Dacanay and the other associates of their fundamental duties. Although the worksheet was given to all associates, Ms. Dacanay's repeated inability to perform the duties of her position was the reason Ms. Tickner prepared the worksheet. Although Ms. Dacanay was only responsible for seven students, she could not even remember their names. Ms. Dacanay also demonstrated a pattern of not paying attention to the students, preferring instead to perform chores. For instance on September 19, 2012, when Ms. Dacanay should have been assisting with a student activity, she left the classroom area for about ten minutes and spent her time folding and storing student bathing suits. This was after she had read and signed the "Class Expectations" worksheet that listed "Focus on the students and the activity, not chores" first. On another occasion, Ms. Dacanay neglected to bring a blind student who also needed a wheelchair, because of cerebral palsy, to the physical education class. Ms. Tickner asked Ms. Dacanay where the student was. Ms. Dacanay said "she didn't know." Ms. Tickner sent Ms. Dacanay back to the classroom to get the student. Ms. Dacanay returned without the student and said "she couldn't get him into his chair." Ms. Tickner had to go get the student and bring him to the class. As the "Class Expectation" worksheet notes and Ms. Tickner had emphasized, class participation was important for the students and participation with the students was an important part of the associate's job. Once when Ms. Tickner specifically instructed Ms. Dacanay to work with the other associates getting the students in and out of the pool, Ms. Dacanay disobeyed. Instead, she followed a mobile student who did not need assistance around. On another occasion, Ms. Dacanay was supposed to prepare the students for swimming. She removed the diaper from a child who was not going swimming. Similar issues and concerns about Ms. Dacanay's focus and attention to her duties caused the physical education teacher the year before, Mark Manley, to conclude that he could not leave the room if Ms. Dacanay was working with the students. She repeatedly demonstrated problems "focusing on tasks, staying on task . . . inability to stay with a program all the time." The problems Ms. Dacanay had during the 2012-2013 school year were similar to earlier performance failures during her time at Paul B. Stephens when she was working with Ms. Pickering. Ms. Cox met with Ms. Dacanay on October 18, 2012. The letter of reprimand following that meeting summarized the failings identified above and others. The letter advised Ms. Dacanay: [Y]ou appear to avoid work, especially toileting/changing student. Your ability to learn your job or perform your work responsibilities has been questioned and requires your teacher to constantly monitor you to ensure student safety. For example you appear not to remember which student uses which chair nor how to secure students in their chairs. This has happened several times. After 3-4 weeks in school you still needed direction to assist students with table activities before morning group. You have been off-task during PE and you were not able to monitor students assigned to you when they were in the pool. You also fell asleep during music class. In addition to classroom issues the assistants on the bus with you have stated that you pretend to forget how to hook up wheelchairs and harnesses, and do not do your share on the bus. You also fall asleep regularly on the way home in the afternoon which also puts more work on the other assistants. Before working at Paul B. Stephens, Ms. Dacanay received less than satisfactory ratings on her evaluations beginning on February 20, 2007, at Largo High School, where her evaluation noted that she needed to improve punctuality and that she left her assigned area without notifying the teacher. In all, between February 20, 2007, and February 10, 2011, Ms. Dacanay's evaluations reflect 16 instances of being evaluated as unsatisfactory or in need of improvement in areas that include punctuality, judgment, job knowledge, quality of work, quantity of work, initiative and attendance. The weight of the persuasive, credible evidence established that Ms. Dacanay was not competent to perform her duties, did not perform her duties, and did not improve her performance despite being given repeated opportunities to improve.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County School Board enter a final order finding that there is just cause to terminate Ms. Dacanay's employment and terminating her professional service contract for just cause pursuant to section 1012.33, Florida Statutes. DONE AND ENTERED this 27th day of November, 2013, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 27th day of November, 2013.
Findings Of Fact At all times material hereto, Respondent is the holder of a teacher's certificate duly issued by the Department of Education for the State of Florida. Such certificate bears number 282363 and is a Rank 2 certificate, expiring on June 30, 1986. On or about August 11, 1970, Respondent caused to be filed with the Department of Education for the State of Florida his application for issuance of a teaching certificate. Respondent, under oath, stated within that application that he had never been arrested or involved in a criminal offense other than a minor traffic violation. Respondent had been arrested by the Fort Lauderdale Police Department on or about July 1, 1965, for the offense of petit larceny (shoplifting). As a result of that arrest, Respondent was adjudicated and fined $125, and his sentence of 15 days of incarceration was suspended. On or about September 2, 1969, Respondent was again arrested by the Fort Lauderdale Police Department for the offense of contributing to the delinquency of a minor and violation of the curfew laws. Respondent pled nolo contendere to the first charge, and adjudication was withheld. The second charge was nolle prossed. As a result of filing that application with the Department of Education, Respondent was issued a teaching certificate for the academic school year 1970-1971. On or about May 1, 1973, Respondent caused to be filed with the Department of Education for the State of Florida his application for the issuance of a full-time teaching certificate under the Department of Education Number 282363 with a preference in physical education. Respondent, under oath, stated within that application that he had never been arrested or involved in a criminal offense other than a minor traffic violation. Accordingly, Respondent did not reveal the prior two arrests by the Fort Lauderdale Police Department set forth above. As a result of filing that application, Respondent was issued a teaching certificate as a full-time instructor under Department of Education Number 282363, certificate type 04. In September 1976, Respondent caused to be filed with the Department of Education for the State of Florida his application for the issuance of a teaching certificate under Department of Education Number 282363. Respondent, under oath, stated within that application that he had never been arrested or involved in a criminal offense other than a minor traffic violation. Accordingly, Respondent did not reveal the prior two arrests by the Fort Lauderdale Police Department set forth above. On or about October 3, 1973, Respondent was arrested in Duval County, Florida. Subsequent thereto, an Amended Information was filed against Respondent charging him with breaking and entering the dwelling house of another with the intent to commit a misdemeanor therein, to wit: assault and battery, and also charging him with committing assault and battery on Evelyn Rebecca May. On December 10, 1973, Respondent entered a plea of guilty to the offense of trespassing with malice. Adjudication was withheld, and Respondent was placed on probation for one year. As a result of filing that application, Respondent was issued a teaching certificate under Department of Education Number 282363, Rank 2, Type 2. On or about May 30, 1979, Respondent caused to be filed with the Department of Education for the State of Florida his application for the issuance of a duplicate teaching certificate. Respondent, under oath, stated in that application that he had never been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation and that there were no criminal charges pending against him other than minor traffic violations. Accordingly, Respondent did not reveal the prior two arrests by the Fort Lauderdale Police Department set forth above. Respondent also thereby failed to disclose his arrest in Duval County, his plea of guilty to the offense of trespassing with malice, and the withholding of adjudication and placing him on probation as a result of that arrest and guilty plea. Respondent, while attending a high school basketball championship play-off in Lakeland, Florida, was arrested on or about March 10, 1979, for the offense of "scalping." As a result of that arrest, Respondent was formally charged with violation of Section 817.36, Florida Statutes, in the County Court of Polk County, State of Florida, case number MO79-000450-LD. Subsequent to the filing of those formal charges, Respondent tendered a plea of nolo contendere and had court costs assessed against him in the amount of $112. As a result of filing the application for the issuance of a duplicate certificate, Respondent having previously stated that he had lost his original certificate, the Department of Education issued a duplicate certificate under Department of Education Number 282363, Rank 2, Type 2. On or about May 27, 1970, Respondent filed an application for employment with the Duval County School Board. That application failed to disclose his arrests by the Fort Lauderdale Police Department. Rather, Respondent specifically denied that he had been arrested for any offense other than minor traffic violations. Between September 1971 and September 1973, Respondent was employed by the Duval County School Board at Sandalwood Junior-Senior High School. On or about September 4, 1973, Respondent filed an application for employment with the Nassau County School Board. That application failed to disclose his arrests by the Fort Lauderdale Police Department. Rather, Respondent specifically denied that he had been arrested for any offense other than minor traffic violations. During the academic year of 1973-1974, Respondent was employed by the Nassau County School Board at West Nassau Senior High School. During the 1973-1974 school year, Marilyn B. Grimmage was a student at West Nassau High School where Respondent was then a physical education teacher. Grimmage was 15 years of age. She and Respondent began to date. After a period of two to three months, they engaged in several acts of sexual intercourse. While there were no acts of sexual intercourse committed on the school grounds, there were times when Grimmage and the Respondent would sneak off to private areas of the school and kiss. Grimmage and Respondent engaged in sexual intercourse on three occasions: two of the occasions occurred at the residence belonging to a friend of the Respondent, and one occasion occurred in a wooded area. Grimmage knew that Respondent was married at the time and believed that their relationship was common knowledge at the school. While Respondent was employed at the West Nassau Senior High School, he made contact with Belinda Yvette Morris, who was 15 years of age and attending a junior high school within the Nassau County public school system. Contrary to the allegations of paragraph 33 of Count VII, Morris was not then attending West Nassau High School, but rather went there daily in order to practice for cheerleading. Respondent engaged in sexual intercourse with Morris. He was married at the time. Respondent made a second attempt to engage in sexual intercourse with Morris following a basketball game when Morris was on her way home with other students. At Respondent's request, she entered his automobile and drove with him to an isolated area. He gave her a necklace and then made physical advances toward her in attempt to consummate sexual intercourse. His advances were rebuffed, and Respondent drove her to a location near her home and let her out of the automobile. On or about June 23, 1975, Respondent filed an application for employment with the Dade County School Board. That application failed to disclose his arrests by the Fort Lauderdale Police Department and also failed to disclose his arrest in Duval County, his plea of guilty to the offense of trespassing with malice, and the withholding of adjudication and placing him on probation as a result of that arrest and guilty plea. Rather, Respondent specifically denied that he had been arrested for any offense other than minor traffic violations. On that application for employment with the Dade County School Board, Respondent also failed to note that he had been previously employed with the Duval County School Board and with the Nassau County School Board. Rather, Respondent stated that he had been a professional basketball player for a period of years which would roughly correspond to the period of time he was employed with the Duval County School Board, and he further stated that he had been employed during that time period by a non-public school employer, the Jacksonville Marine Institute. On that application, Respondent also denied that he had ever been a member of the Florida Retirement System. As a result of filing that application, Respondent was employed by the Dade County School Board between September 1978 and October 1981 at American Senior High School. Sharon Colbert met Respondent when she was 15 years of age and a student at American Senior High School in Dade County, Florida, where Respondent was employed as a physical education teacher. Respondent was also the head coach for the varsity basketball team, and he approached Colbert and asked her to be on the "stat team," which consisted of students who would work with him and assist in keeping statistics for the basketball team. Colbert replied she could not afford to purchase the uniforms, and Respondent purchased her uniforms for her. One evening during the 1980-1981 school year, while Colbert was a member of the stat team, she accompanied Respondent and some of his basketball players to scout a game that was being conducted at Miami-Dade Community College. After the game, Respondent dropped off the other students and invited Colbert to the home of a friend of his for something to eat before he took her home. When Colbert and Respondent arrived at his friend's home, Respondent and his friend began "snorting coke." After his friend left, Respondent forcibly took Colbert into a bedroom, where he performed sexual intercourse. As a result of that sexual intercourse, Colbert contracted the "crabs." When she confronted Respondent about her predicament, he said he would assist her by taking her to the doctor. However, he instead took her to another residence and forcibly engaged in sexual intercourse with her. He then took her to a convenience store, where he obtained some pills and ointment for her to use to eradicate her crabs. In September 1981, while Respondent was teaching at American Senior High School, he approached Paulette Brown, who was then 15 years of age and a student at that school. Respondent asked Brown to remain after school to discuss her interest in becoming a member of the "stat team." After receiving permission from her father to remain after school, Brown went to the coach's office and waited while Respondent completed some last-minute errands. After Respondent returned to the coach's office, he asked Brown about her boyfriends and then told her he wanted to show her "his layout." Respondent took Brown through the boys' locker room to an equipment room. When they were inside the equipment room, Respondent closed the door and persuaded Brown to remove her clothing. He then engaged in sexual intercourse with Brown. Frederick Bertani and Desmond Patrick Gray, Jr., offered expert opinion that Respondent's effectiveness as an employee of a school board has been not only diminished but severely impaired, not only within Dade County but within the entire profession itself.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered in Case No. 82-1604 finding Respondent Otis Fells guilty of the allegations contained within the Administrative Complaint and permanently revoking his teaching certificate number 282363; and it is further RECOMMENDED that a Final Order be entered in Case No. 82-2742 finding Respondent Otis J. Fells guilty of the allegations contained within the Amended Notice of Charges and dismissing the Respondent from his employment with the School Board of Dade County and denying any claim he may have for back pay. DONE and RECOMMENDED this 7th day of June, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1983. COPIES FURNISHED: Craig R. Wilson, Esquire 315 Third Street West Palm Beach, Florida 3340l Jose Martinez, Esquire 201 Alhambra Circle, Suite 1200 Coral Gables, Florida 33134 Mr. Otis J. Fells 1216 Walsh Avenue, Apt. 25-A Coral Gables, Florida 33146 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public Schools Lindsey Hopkins Building, Suite 200 1410 NE Second Avenue Miami, Florida 33132 Donald L. Griesheimer, Executive Director Education Practices Commission Department of Education 125 Knott Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (SHCOOL BOARD) ================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA EDUCATION PRACTICES COMMISSION, DEPARTMENT OF EDUCATION, Petitioner, vs. CASE NO. 82-1604 OTIS FELLS, Respondent. / SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 82-2742 OTIS J. FELLS, Respondent. /
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated January 16, 2003, and in the Notice of Specific Charges filed February 27, 2003, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The 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. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002).3 At the times material to this proceeding, Mr. Lefkowitz taught emotionally handicapped and seriously emotionally disturbed students in North Miami Beach High's Bertha Abbess exceptional student education program. He has been employed by the School Board since 1993, and is currently employed under a professional services contract. At the times material to this proceeding, Mr. Lefkowitz and at least one other person were making a music video for a course they were taking at Florida International University. Alvarro Gutierrez was working with Mr. Lefkowitz on the video, and Mr. Gutierrez had chosen the girl who would sing and would choreograph the dances for the video. Mr. Gutierrez did not, however, have any dancers, and Mr. Lefkowitz told Mr. Gutierrez that he knew some girls "from school" who were dancers and that he would ask them if they wanted to dance in the video. J.D. was, at the times material to his proceeding, an 11th-grade student at North Miami Beach High, although she was not a student of Mr. Lefkowitz. Rather, J.D. met Mr. Lefkowitz in a school hallway, while she was selling candy for her French class, and they apparently had several conversations during school hours. In one of these conversations, Mr. Lefkowitz mentioned that he was filming a music video for a college class. J.D. asked if she could be in the video, and Mr. Lefkowitz agreed and asked J.D. if she had any friends who could also dance in the video. J.D. introduced Mr. Lefkowitz to her friend N.F. N.F. was, at the time, an 11th-grade student at North Miami Beach High, but she did not know Mr. Lefkowitz until J.D. introduced them. Mr. Lefkowitz did not know at the time he met her that N.F. was a student at North Miami Beach High. J.D. also introduced Mr. Lefkowitz to Glamour Legros, whom she knew because she and Ms. Legros attended the same church. Prior to introducing Mr. Lefkowitz to Ms. Legros, J.D. had told him on a number of occasions how much Ms. Legros wanted to meet him.4 Ms. Legros and N.F. shared an apartment. Ms. Legros was not a student at the times material to this proceeding, and she was older than N.F. and J.D. J.D., N.F., and Ms. Legros agreed to dance in the music video and went to Mr. Lefkowitz's apartment several times to discuss, rehearse, and shoot the video. Mr. Lefkowitz picked up J.D., N.F., and Ms. Legros and drove them to his apartment on the occasions when they were working on the video. Mr. Lefkowitz also took J.D. and her friends home on these occasions. M.D., J.D.'s brother and a student at North Miami Beach High at the time, went to Mr. Lefkowitz's apartment once, and H.D., another student at North Miami Beach High, was at Mr. Lefkowitz's apartment on at least one occasion, when she danced for the music video. These two students also rode with Mr. Lefkowitz in his car on at least one occasion. In addition to her visits to Mr. Lefkowitz's apartment and her rides in his car, J.D. spoke with Mr. Lefkowitz numerous times on the telephone. When working on the video, J.D. went to Mr. Lefkowitz's apartment with her friends. She was alone with Mr. Lefkowitz once, after her friends left Mr. Lefkowitz's apartment; Mr. Lefkowitz took her home after about an hour. Mr. Gutierrez did not observe Mr. Lefkowitz engage in any improper behavior with J.D. or her friends at Mr. Lefkowitz's apartment during the time they were discussing, rehearsing, and shooting the music video. On April 21, 2003, Ms. Legros called the police and she and N.F. reported that Mr. Lefkowitz had come to their apartment, beat on the door, and threatened them verbally. According to the police incident report, the police were dispatched at 10:09 p.m. and arrived at Ms. Legros's and N.F.'s apartment at 10:12 p.m. Mr. Lefkowitz had outpatient surgery on April 18, 2002. Mr. Lefkowitz's mother was with him at his apartment from April 18 through the morning of April 22, 2002, the day he returned to work. According to Ms. Lefkowitz, Mr. Lefkowitz was in bed, asleep, on the night of April 21, 2002. On April 22, 2002, Raymond Fontana, the principal of North Miami Beach High, received a telephone call from a woman who identified herself to Mr. Fontana's secretary as J.D.'s aunt and who told Mr. Fontana that an exceptional student education teacher named "Neil" was having a relationship with J.D., a student at North Miami Beach High; the caller also reported that the teacher had been involved in an "incident" that had been reported to the police. Ms. Legros was the person who called Mr. Fontana.5 Mr. Fontana called Allyn Bernstein, an assistant principal at North Miami Beach High, into his office and asked her to look into the allegations made by the caller. Dr. Bernstein called Mr. Lefkowitz into her office and, before she could say anything, Mr. Lefkowitz told her that he knew why she had summoned him, that an ex-girlfriend had threatened to make trouble for him because he wouldn't give her money. When Dr. Bernstein questioned Mr. Lefkowitz about his relationship with the student J.D., Mr. Lefkowitz denied knowing her. Dr. Bernstein also called J.D. into her office. In response to Dr. Bernstein's questions, J.D. denied knowing Mr. Lefkowitz. She stated that she did not have a social relationship with any teacher outside of school and that she had never met any staff member outside school. After Dr. Bernstein reported to Mr. Fontana that she believed that there might be "something there,"6 Mr. Fontana reported the matter to the school district personnel, who referred the matter to the Miami-Dade School Police Department, and an investigation was initiated. Once the investigation was initiated, Mr. Lefkowitz was placed on alternate assignment at his home effective May 3, 2002. The investigator, Detective Victor Hernandez, interviewed N.F., Ms. Legros, J.D., H.D., M.D., and Mr. Lefkowitz. During the course of his investigation, Detective Hernandez was told that Mr. Lefkowitz and N.F. had dated and that they had had sexual intercourse. When Detective Hernandez interviewed Mr. Lefkowitz, Mr. Lefkowitz denied that he knew either J.D. or N.F. In a report dated September 2, 2002, Detective Hernandez described his investigation and set forth the substance of the statements given by the witnesses. Detective Hernandez concluded that the charges that Mr. Lefkowitz had violated Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, and School Board Rules 6Gx13-4.109 and 6Gx13-4A-1.21 were substantiated. A Conference-for-the-Record was held on October 2, 2002, with Paul Greenfield, District Director, presiding. Mr. Lefkowitz attended the Conference-for-the-Record, together with the School Board's Director of Region II and Mr. Fontana. Mr. Lefkowitz requested that his attorney be allowed to attend, but this request was denied.7 Mr. Greenfield reviewed Mr. Lefkowitz's history with the Miami-Dade County public school system and presented the results of the investigation. Mr. Lefkowitz denied having met J.D. and N.F. and denied that they were ever in his apartment. After the Conference-for-the-Record, Mr. Fontana recommended to the Superintendent of Region II that Mr. Lefkowitz's employment be terminated. Mr. Lefkowitz lied to Dr. Bernstein, to Detective Hernandez, and to the participants in the Conference-for-the- Record about his relationships with J.D. and N.F. because he knew it was improper for the students to be in his apartment and for him to associate with students outside of school. Mr. Lefkowitz expressed remorse at his behavior and acknowledged that his conduct was not appropriate. J.D. testified that she and Mr. Lefkowitz never dated or had sexual intercourse. Ms. Legros testified that she did not know whether Mr. Lefkowitz and J.D. had had sexual intercourse. She claimed, however, to have observed Mr. Lefkowitz and J.D. at Mr. Lefkowitz's apartment hugging and kissing and acting like "boyfriend and girlfriend to me."8 Ms. Legros has no personal knowledge that Mr. Lefkowitz had sexual relations with N.F., but testified that N.F. told Ms. Legros that she had had a relationship with Mr. Lefkowitz. An 11th-grade student testified at the hearing that he considered Mr. Lefkowitz to be a good teacher, a role model, and a teacher that he would remember after high school. Mr. Fontana testified that he thought Mr. Lefkowitz's effectiveness as a teacher had been impaired because of the "manner in which he dealt with students, having students come to his apartment, dealing with students that are out of the realm of his teaching responsibilities." Mr. Fontana observed that "once you breach that student/teacher relationship and you lose that professionalism I don't think you can ever go back and have the same degree of effectiveness as a teacher."9 In making his decision to recommend that Mr. Lefkowitz be terminated from his employment as a teacher, Mr. Fontana considered Mr. Lefkowitz's employment history with the Miami- Dade County public school system. Mr. Lefkowitz was twice referred for evaluation as to his medical fitness to perform his duties as a teacher and was twice found fit to perform these duties. Mr. Lefkowitz was the subject of three allegations of battery on a student, one in February 1995, one in February 1999, and one in March 1999; the February 1995 charge was substantiated,10 and Mr. Lefkowitz was given a verbal warning; the remaining two charges were unsubstantiated. Finally, in August 1995, Mr. Lefkowitz had an unacceptable annual evaluation, was given a TADS Category VII prescription in the area of Professional Responsibility, and successfully completed the prescription within the specified time. Summary The greater weight of the credible evidence presented by the School Board is insufficient to establish that Mr. Lefkowitz dated either J.D. or N.F. or that Mr. Lefkowitz had sexual intercourse with N.F. The School Board presented no direct evidence establishing that J.D. and Mr. Lefkowitz had a romantic relationship or that N.F. and Mr. Lefkowitz had a sexual relationship. The School Board relied exclusively on Ms. Legros's testimony to establish that these relationships existed,11 and most of her testimony was based on hearsay, not personal knowledge. Ms. Legros had no personal knowledge that N.F. had sexual relations with Mr. Lefkowitz, and the only behavior that Ms. Legros testified that she personally observed was Mr. Lefkowitz and J.D. in Mr. Lefkowitz's apartment hugging and kissing and, in Ms. Legros's estimation, acting like boyfriend and girlfriend. Ms. Legros is found not to be a particularly credible witness, and her uncorroborated testimony is not sufficiently persuasive to establish that Mr. Lefkowitz and J.D. more likely than not were dating or that the hugging and kissing, if she indeed observed such behavior, was sexual in nature. Both J.D. and Mr. Lefkowitz denied having a romantic relationship, but it is difficult to credit fully their testimony, given that both J.D. and Mr. Lefkowitz lied to School Board personnel about knowing one another and that Mr. Lefkowitz lied to School Board personnel about being acquainted with N.F. However, on reflection and after a careful review of the evidence, the testimony of J.D. and Mr. Lefkowitz is credited over that of Ms. Legros. The greater weight of the credible evidence presented by the School Board is not sufficient to establish that Mr. Lefkowitz telephoned N.F. on April 21, 2002, and threatened her or that he went to the apartment shared by Ms. Legros and N.F. on the night of April 21, 2002, and made threats to harm them. Mr. Lefkowitz's mother testified unequivocally that she was with Mr. Lefkowitz from April 19 through the morning of April 22, 2002, and that he was recovering from surgery and sleeping on the night of April 21, 2002. The School Board presented no evidence that Mr. Lefkowitz telephoned N.F. and threatened her, and Ms. Legros was the only witness to testify that Mr. Lefkowitz came to her apartment and made threats. The testimony of Mrs. Lefkowitz is credited over that of Ms. Legros.12 The evidence presented in this case is sufficient to establish that Mr. Lefkowitz failed to exercise the best professional judgment, failed to maintain the highest ethical standards, and used his position as a teacher to his personal advantage by recruiting young women students to perform as dancers in the music video he was filming as part of a college assignment. Mr. Lefkowitz admitted that he had engaged in inappropriate conduct: He had had a personal relationship outside of school with both J.D. and N.F.; J.D. and N.F. danced in a music video he made for a college project; J.D. and N.F. were in his apartment several times; and he drove J.D. and N.F. in his car to and from his apartment. The contents and tone of the written statement Mr. Lefkowitz adopted as his testimony supports an inference that he was on very familiar terms with both J.D. and N.F., and with Ms. Legros as well.13 Mr. Lefkowitz's poor judgment in developing significant social relationships outside of school with two female students at North Miami Beach High and his inappropriate behavior in having these students as guests in his car and in his apartment reflect poorly on him as a teacher employed by the School Board. Mr. Lefkowitz also failed to exercise the best professional judgment and to maintain the highest ethical standards with respect to his dealings with the School Board during the investigation of his conduct. Mr. Lefkowitz lied to Dr. Bernstein and Detective Hernandez and at the October 2, 2002, Conference-for-the-Record when he said he did not know J.D. or N.F., and he admitted at the final hearing that he lied because he knew that he should never have involved these students in making the music video, should never have given these students rides in his car, and should never have invited the students to his apartment. Mr. Lefkowitz's lack of truthfulness reflects poorly on him as a teacher employed by the School Board. The evidence presented by the School Board is also sufficient to establish that Mr. Lefkowitz engaged in one instance of inappropriate behavior involving students M.D. and H.D. Mr. Lefkowitz admitted that, on one occasion, he picked up these two students in his car and drove them to his apartment, where H.D. danced in the music video and M.D. observed Mr. Lefkowitz and cohorts filming the music video. Mr. Lefkowitz did not have repeated out-of-school contacts with these two students, as he did with J.D. and N.F., but his behavior with M.D. and H.D. reflected poorly on him as a teacher employed by the School Board. The evidence presented by the School Board, which consisted only of Mr. Fontana's conclusory and general statements, is not sufficient to establish that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami- Dade County public school system. The evidence presented by the School Board is, however, sufficient to permit an inference that Mr. Lefkowitz's effectiveness as a teacher was impaired. Mr. Lefkowitz encouraged students to develop personal relationships with him and to spend significant amounts of time with him in his apartment. Even though J.D., the young woman with whom he was primarily involved, was not a student in his class, his willingness to become involved with this student and her friends brings his personal and professional judgment into question and necessarily affects the school administration's assessment of his fitness for supervising high school students. It may also be inferred that Mr. Lefkowitz's effectiveness as an employee of the School Board was also impaired because he lied to the principal and assistant principal of his school and to the regional superintendent of the Miami-Dade County public school system about even knowing J.D. By not being truthful with the school system administrators, Mr. Lefkowitz diminished his credibility as a professional educator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order; Finding that Neil D. Lefkowitz is guilty of having committed misconduct in office and of violating School Board Rules 6Gx13-4-1.09 and 6Gx13-4A-1.21; Suspending Mr. Lefkowitz without pay for a period of 24 months, retroactive to the date on which the School Board suspended him from his employment without pay; and Imposing such conditions on Mr. Lefkowitz upon his return to employment as the School Board deems appropriate. DONE AND ENTERED this 31th day of July, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 31th day of July, 2003.
Findings Of Fact Rasberry holds Florida Teaching Certificate Number 069503 post-graduate rank II, valid through June 30, 1983, covering the areas of physical education, health education and junior college. At all times pertinent hereto, Rasberry was employed in the public schools of Duval County, at Matthew Gilbert Seventh Grade Center as a physical education teacher. During the summer school session of 1978, at Matthew Gilbert, Rasberry was assigned as teacher for the physical education class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 28 physical education students be enrolled and in attendance. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Mr. James E. Thompson was principal of Matthew Gilbert during the summer school session of 1978. The usual procedure established by Mr. Thompson for the summer school physical education was to assign two teachers to the physical education program with only one of the teachers being responsible for attendance and grade records. Such was the case during summer school 1978. Rasberry was one of two teachers assigned to the physical education program. Mr. Rasberry was excluded from the requirement of reporting attendance and grades because of his other extensive duties. This procedure had the "blessing" of principal Thompson. Rasberry never submitted any paper work regarding the physical education course for summer school 1978. All grade reporting forms and attendance records were prepared and submitted by another instructor who in some cases signed Rasberry's name to the form. However, at no time did Rasberry sign his own name to any of these forms. While the evidence demonstrated that a high number of discrepancies exist in these reporting forms, there is no evidence to establish any connection between Rasberry and the inaccurate attendance data or the award of undeserved grades.
Findings Of Fact On November 27, 1985, Respondent Samuel David Sorrells entered the seventh grade at Nautilus Junior High School. On January 10, 1986, Respondent did not have his textbook with him in his math class. He was given permission to get another book to use during that class, and when he did so another student took that book away from him. Respondent started cursing that other student. When a third student told Respondent to control his language, Respondent physically attacked that third student. On February 14, 1986, Respondent's apparent intention to cut school that day was thwarted when he was picked up by the Miami Beach Police Department and escorted by the police to school in time for his second period class. Although Respondent went to the physical education field, he refused to "dress out" for physical education, refused to stand where he was instructed to by the teacher, and then cursed the teacher and threatened her with physical violence. On March 17, 1986, Respondent was caught writing on the walls in the school hallways and in the school bathrooms. A conference among various school personnel and Respondent's mother was held on March 17, 1986, to determine how to best fulfill Respondent's needs. The recommendation by school personnel attending that conference was that Respondent would be better served by the educational alternative program at Jan Mann Opportunity School-North for the reasons that that school offers smaller classes so that more attention can be given to each individual student and there are more trained counselors available to assist the students with their specialized needs. Between November 27, 1985, when Respondent first enrolled at Nautilus Junior High School and April 8, 1986, when Petitioner determined that Respondent should be administratively re-assigned, Respondent was absent from school on 10 days and was suspended from attending classes on 18 additional days. Respondent received F's in all classes at Nautilus Junior High School although he is able to do the work given to him. He simply does not do it.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Samuel David Sorrells to the educational alternative program at Jan Mann Opportunity School-North until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 9th day of September, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1986. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Patricia Sorrells Simpson 1321 Biarritz Drive Miami Beach, Florida 33184
The Issue The issues are whether Respondent is guilty of inappropriate sexual conduct with a female student, so as to constitute gross immorality, in violation of Section 231.2615(1)(c), Florida Statutes; personal conduct that seriously reduces Respondent's effectiveness as an employee of the School Board, in violation of Section 231.2615(1)(f), Florida Statutes; failure to make a reasonable effort to protect a student from conditions harmful to learning or her mental health or physical safety, in violation of Rule 6B-1.006(3)(a), Florida Administrative Code; intentional exposure of a student to unnecessary embarrassment or disparagement, in violation of Rule 6B-1.006(3)(e), Florida Administrative Code; or exploitation of a relationship with a student for personal gain or advantage, in violation of Rule 6B-1.006(3)(h), Florida Administrative Code. If guilty of any of these violations, an additional issue is what penalty that Petitioner should impose.
Findings Of Fact Respondent is a certified teacher, holding certificate number 649196. He was first employed by the Miami-Dade School District in January 1989. After working as a substitute teacher, Respondent was hired in a permanent capacity in 1990 or 1991. At the time of the alleged incidents, Respondent was a teacher at Coral Reef Senior High School, where he was the head basketball coach and assigned to teach English classes in the Center for Student Instruction. In the summers of 1998 and 1999, Respondent taught in the Summer Youth Employment Program that took place at Coral Reef. In this program, high-school students from Coral Reef and elsewhere attended classes to develop job skills and received monetary compensation while so enrolled. B. L. was born on November 3, 1982. She graduated from Coral Reef in 2000. During the summers of 1998 and 1999, B. L. took classes at Coral Reef that were sponsored by the Summer Youth Employment Program. The first summer she took a class in business and finance, and the second summer she took a class in legal and public affairs. Respondent was a coinstructor for both classes. During the summer of 1998, B. L., who was not a discipline problem, engaged in an argument with two other classmates, who were sisters. Respondent and his coinstructor intervened before any blows were exchanged. The coinstructor took the sisters and counseled them, and Respondent took B. L. and counseled her. Respondent removed B. L. from the classroom momentarily to talk to her outside of the hearing of her classmates and advise her that he was disappointed in her because she was one of the top-performing students and she should not "lower her standards" to the level of the sisters with whom she had been arguing. Respondent told B. L. that she was a "bright student, . . . articulate," that she was a "beautiful young lady [with] a lot going for her," that she seemed to have come from a "good family" and "had good standards," and that Respondent did not think that she should conduct herself like that in class. In the context in which it was said, "beautiful" refers to the totality of a person, including intelligence, attitude, and personality," and is not an inappropriate focus upon a person's physical appearance. After a couple of minutes of talking to B. L. outside the classroom, Respondent returned her to the classroom. He then spoke to the coinstructor and reported the incident to the counselor who dealt with classroom discipline. Respondent was unaware of what, if any, further action the counselor took against B. L. or the sisters. Respondent's other contact with B. L. was unremarkable that summer. A couple of times, he and the coinstructor cited B. L. for violations of the dress code. Generally, though, he taught her and treated her as he did the other students in his class. The following summer, B. L. signed up for Respondent's legal and public affairs class. Concerned that B. L. would be duplicating some of the material that they had covered the previous summer, Respondent spoke with the job counselor, who worked in his classroom. She and Respondent then advised B. L. to transfer to another class, but B. L. refused to do so. During this summer, B. L. confided in a classmate that she had a crush on Respondent and that her relationship with her current boyfriend was unsatisfactory. Nothing significant occurred during that summer between B. L. and Respondent, who again treated her as he did his other students. Obviously, B. L. has testified differently. She testified that, during the first summer, when Respondent had her out in the hall, he told her that a blue dress that she had worn the prior day had been driving him "crazy." She testified that Respondent asked her if she felt attracted toward him, and she said that she did not. B. L. testified that Respondent concluded the conversation by saying words to the effect, "if you're 'bout it 'bout it, you know where I am." B. L. testified that this meant that if she was serious about getting intimate with Respondent, such as kissing him, he would be available. B. L. testified that this was the only inappropriate conduct the first summer. B. L. testified that the following summer, she and Respondent happened to see each other outside of school at a shopping mall while B. L. was with her boyfriend. She testified that they exchanged brief greetings. B. L. testified that the following week at school Respondent brought up their chance encounter and asked if she recalled their conversation last year. She testified that she answered that she did, and he added, "if you want to talk about it, we can talk about it in a private conversation." B. L. testified that this was the only inappropriate conduct the second summer. B. L. testified that Respondent's conduct made her feel "weird," but she was not scared. She testified that her boyfriend was jealous of Respondent; she testified that he probably thought that she was tempted to engage in an inappropriate relationship with Respondent. She testified that she told her boyfriend of Respondent's advances, and he threatened to tell B. L.'s parents and a school counselor if she did not complain about Respondent. One time, while talking to her boyfriend about this matter on the phone, B. L. began to cry and her parents overheard enough of the conversation to learn of B. L.'s claims against Respondent. Several problems preclude crediting B. L.'s testimony. First, she acknowledged that Respondent and the job counselor advised her to change classes the second summer, but she declined to do so because it was too much trouble. Second, she denied having a crush on Respondent, but she described any attention from him as though it came from a "movie star." There is no doubt that she had a crush on Respondent based on her description of Respondent at the hearing, the testimony of the friend in whom she confided, and the testimony of the job counselor, who added that B. L. was breathless and "lovesick" and that she told B. L. that Respondent was happily married and to "get over it." It is likely that B. L.'s obvious infatuation with Respondent bothered her boyfriend. It is plausible that stories of resisted advances would gain B. L. credibility with her boyfriend, although B. L.'s motivation in fabricating these claims against Respondent necessarily remains unknown. Additionally, B. L.'s demeanor while testifying did not add to her credibility. Frequently, her tone and expression suggested that she felt uncomfortable testifying, but her discomfort was not due to victimization by Respondent. Unable to describe her emotions at the time of these claimed advances, B. L.'s discomfort was more likely attributable, at best, to a feeling that Respondent's inappropriate behavior was too trivial for this much attention or, at worst, to an admission of guilt over fabricating these stories and causing Respondent so much trouble. After considering the above-discussed factors, the latter explanation of B. L.'s tone and demeanor is more likely than the former. In any event, Petitioner has failed to prove that Respondent behaved inappropriately toward B. L. at any time.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 20th day of December, 2002, 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 20th day of December, 2002. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316-1924 Leslie A. Meek United Teachers of Dade Law Department 2200 Biscayne Boulevard, Fifth Floor Miami, Florida 33137
The Issue The issue is whether Petitioner may terminate Respondent's employment as an educational paraprofessional, based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Based upon the facts stipulated by the parties, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. The School Board is located at 2055 Central Avenue, Fort Myers, Florida 33901. The School Board's Florida Administrative Code identification code is 6GX-36. The School Board has the authority to terminate and/or suspend educational support personnel without pay and benefits pursuant to Subsections 1012.22(1)(f) and 1012.40(2)(c), Florida Statutes (2005).1 Respondent has been employed by the School Board since August 27, 1998, with the exception of a break in service during the period from February 24, 1999, through September 27, 2000. Currently, Respondent is employed as an educational paraprofessional at Alternative Learning Center ("ALC") High School. He was previously employed as a bus attendant. Respondent has always received satisfactory performance assessments and has never before been the subject of discipline by the School Board. Respondent's current home address is 3971 Wheaton Court, Fort Myers, Florida 33905. Respondent is an "educational support employee," as defined by Subsection 1012.40(1)(a), Florida Statutes, and is a member of the support personnel bargaining unit ("SPALC") that is covered by a collective bargaining agreement between SPALC and the School Board. The standard for discipline of support personnel is "just cause" pursuant to Article 7 of the SPALC Agreement. On or about August 12, 2005, David LaRosa, the principal of ALC High School, contacted Gregory Adkins, executive director of Human Resources and Employee Relations, to report two recent conversations regarding Respondent. Both conversations concerned alleged inappropriate interaction by Respondent with two female students. On the basis of the information reported to Mr. LaRosa, an investigation into the matter was conducted. During the course of the investigation, the District became aware that Respondent had fathered a child and that the child's mother was a senior at Cypress Lake High School at the time the child was conceived. The child was born on December 10, 2002. Respondent denied knowing that the mother was a student when they met at a Dr. Martin Luther King celebration in January 2002, or when they met again on February 14, 2002. The mother of the child turned 18 on February 14, 2002. Respondent was 23 years old at the time.2 On September 7, 2005, the School Board determined that probable cause existed to impose disciplinary action against Respondent for engaging in a sexual relationship with a student. Also, on September 7, 2005, a certified letter was sent to Respondent, advising him of the probable cause determination and that a recommendation would be made to the superintendent that Respondent be terminated. The School Board did not, during the time in question, have a policy or regulation specifically prohibiting a sexual relationship between an employee and a student. The School Board provided no notice to employees that a sexual relationship with a student could result in disciplinary action. No evidence was presented that Respondent's alleged misconduct had any adverse impact on the School Board or on Respondent's work performance. Respondent continued to work for the School Board for more than two and a half years after his child's birth without incident and with satisfactory performance evaluations. Respondent's child was born ten months after the mother's eighteenth birthday, meaning there is no evidence that Respondent engaged in sexual relations with the mother when she was a minor. No evidence was presented to contradict Respondent's claim that he was unaware that the woman was a high school student at the time they had sexual relations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lee County School Board, issue a final order dismissing the Petition, reinstating the employment of Respondent, and awarding him back pay and benefits. DONE AND ENTERED this 30th day of May, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of May, 2006.
