The Issue This case involves the issue of whether the Respondent's teaching certificate should be suspended, revoked, or otherwise disciplined for misconduct with female students as more specifically alleged in the petitions for dismissal and for revocation of Respondent's teaching certificate. Prior to the formal hearing, Case Nos. 83-1147 and 83-2050 were consolidated for all purposes. At the formal hearing, the Petitioners called as witnesses the Respondent, John Hayes, Peter David Cavari, Frank P. Scruggs, Paul Woodall, Tracy C. Wynn, Melissa Nichols, Gina Ryder Gina Ferracano, Angela Jacobs, Lori M. Stamos, Jeffrey A. deCook, Debbie DeFilice, Sue Fortaleza, and Dr. Benjamin F. Stephensen. Petitioners also offered the deposition of Sonya Straubinger, who was unavailable to testify at the formal hearing. That deposition is admitted and was considered as a part of the evidence in these proceedings. Prior to hearing the parties entered into a prehearing stipulation and that stipulation was admitted as joint Exhibit 1. The Petitioners offered and had admitted Exhibits 1-8. Exhibits 9, 10 and 11 were made a part of the record in order to demonstrate the unavailability of Sonya Straubinger. The deposition of of Sonya Straubinger is admitted as Petitioners' Exhibit 12. The Respondent testified on his own behalf and called as witnesses Willie Allen, Marion Ferwerda, James Pullen, Scott A. Hoffman, Robert Lamby, Lexie Wilkes, Kenneth R. Black, Jr., Kevin Ryer, Timothy A. Hassett, Kent Schaeffer, Keith Schaeffer, Paul Kruse, and Charles Law. The Respondent offered and had admitted 10 exhibits. Counsel for each of the Petitioners filed proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions contained in this order, they were rejected as being not supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact The Respondent, John Hayes, is an instructional employee of the School Board of Broward County, Florida, holding a continuing contract of employment as a classroom teacher and is assigned as a teacher at Stranahan High School. He has been been a classroom teacher in industrial arts for fifteen years. Respondent holds teaching Certificate No. 262317, issued by the Department of Education for the State of Florida. This certificate covers the areas of industrial arts and expires June 30, 1984. During the 1982-83 school year, the Respondent was assigned as a teacher of industrial arts at Stranahan High School. Respondent taught woodworking to those students whose last names began with the letters "A" through "G." In each of his woodworking classes, the Respondent had both male and female students. On December 8, 1982, two of Mr. Hayes' female students went to an administrative assistant, Peter Cavari, and asked that they be moved from Mr. Hayes' woodworking class. They stated that "things" were happening in the class but that they would rather not say anything about the specific occurrences. Their request to change was denied. The two girls were Debbie Defilice and Sue Fortaleza. Subsequent to this denial, Debbie Defilice and her mother met with Mr. Frank Scruggs, the administrative assistant in charge of students A through G at Stranahan High School and again requested that Debbie be removed from Mr. Hayes' class. Mr. Paul Woodall, the principal at Stranahan High School, was apprised of these complaints and requests for change and as a result of a preliminary investigation by Mr. Woodall, the matter was turned over to internal security of the School Board of Broward County. Thereafter, the Respondents was suspended from all further teaching duties. During the 1982-83 school year, Tracy Colleen Wynn was a senior at Stranahan Senior High School and was assigned to Respondent's 3rd period Woods I Class. On two different occasions during that school year, the Respondent kissed Ms. Wynn on the cheek out of the presence of other persons. The first incident occurred the day just prior to the Thanksgiving break as Ms. Wynn was preparing to leave Woods Class at the end of 3rd period. As Ms. Nynn was leaving class, the Respondent wished her a good and safe Thanksgiving and then kissed her on the cheek. She had no reaction to the kiss. She had not been kissed on the cheek by any other teachers. The second incident occurred near the end of a woods class when Ms. Wynn was working on a set of bookcases. She could not recall the specific date of this incident. At the end of this particular class period, Ms. Wynn had not finished gluing the shelves of the bookcase she was working on. The Respondent stated that he would glue the shelves for her and kissed her on the cheek. She then left the class. There were no other students present in the classroom when this occurred. On one other occasion during her junior year at Stranahan, Ms. Wynn was kissed on the cheek by the Respondent. On that occasion, Ms. Wynn had fallen in the parking lot and injured her knee and the Respondent helped her into his classroom. At the time she fell, she was on her way to Woods Class. Once inside the classroom, the Respondent, accompanied by Ms. Wynn, went into a small room adjacent to the classroom to call the office and to call Ms. Wynn's mother. Mr. Hayes made the two calls and then kissed Ms. Wynn on the cheek. A short time later Ms. Wynn's mother arrived and took her home. When she fell in the parking lot, Ms. Wynn was very upset and Mr. Hayes had tried to console her and calm her down. During the school year 1982-83, Melissa Nichols, a junior at Stranahan High School, was a student in Mr. Hayes' Woods Class. On one occasion, early in the school year, while Ms. Nichols was working at the lathe, the Respondent came up behind her and put his arms around her to demonstrate use of the lathe. As Ms. Nichols was using the lathe, the Respondent began patting the sides of her rib cage and patted her all the way down to her hips. He then held her hips and said, "I didn't realize what hips you had." Ms. Nichols then moved away. Once during a test, Mr. Hayes walked up behind Ms. Nichols and tickled her upper rib cage. This startled her and caused her to fall off the stool she was seated on. During that same test, Mr. Hayes stood behind Ms. Nichols and leaned forward looking over her shoulder and pressing his groin area against her back. On another occasion, Ms. Nichols had worn a lace blouse to school and the top button would not stay buttoned. She asked Mr. Hayes for a safety pin for her blouse and he stated, "Don't we get a look first." This was said in a joking manner. Another incident occurred during Woods Class on a day when Ms. Nichols was wearing a shop apron. Mr. Hayes grabbed the front of her apron and lifted her off the floor momentarily. Gina Rider was a senior at Stranahan High School during the 1982-83 school year. Ms. Rider was also a student in Mr. Hayes' Woods Class. During one class, Mr. Hayes came up behind Ms. Rider while she was working on the lathe. He put his arms around her and showed her how to do a particular thing on the lathe. She did something on the lathe which Mr. Hayes thought was good and he then kissed her hand. After she finished working on the lathe, Ms. Rider was just standing around and Mr. Hayes walked up behind her, grabbed her around the waist with his hands, and picked her up off the floor. During the 1982-83 school year, Lisa Champion was a student in Mr. Hayes' 6th period Woods Class. Ms. Champion had a habit of sticking out her tongue and once after Mr. Hayes had spoken to her about something, she stuck out her tongue and Mr. Hayes touched her tongue with his tongue. On four or five occasions, the specific dates being unknown, Mr. Hayes stood behind Lisa while she worked on the lathe. Each time he put his arms around her to demonstrate something on the lathe, his arms were around her in such a way that they came in contact with her breasts. Gina Ferracano was a student in Mr. Hayes' 2nd period Woods Class at Stranahan High School during the 1982-83 school year. On several occasions during class, Mr. Hayes patted her rear with the palm of his hand. Mr. Hayes also stood behind Gina and put his arms around her while demonstrating the use of the lathe. His arms did not come in contact with her breasts. On one occasion, Gina was trying to hang a broom up and could not reach high enough to do it. Mr. Hayes walked up behind her and grabbed her on her rib cage just below her breast and lifted her up to put the broom away. From August 1982, to December, 1882, Lori Stamos was a student in Mr. Hayes' 5th period Woods Class. At the time she was a senior at Stranahan High School. On several occasions, Mr. Hayes tickled the upper part of her rib cage. Each time this occurred, she just asked him to stop. Once or twice, Mr. Hayes hit her "butt" with the palm of his hand. On some occasions, Mr. Hayes commented to Lori what a nice figure she had. One particular day, at the end of the first 9 week period, Lori was in the backroom on the west side of the woodworking laboratory grading papers for Mr. Hayes. There were no other students present. Mr. Hayes came into the backroom and told her she was doing a good job and then kissed her on the cheek. Mr. Hayes instructed Lori on the equipment in Woods Class. Be would stand in back of her while instructing her on the lathe and would put his arms around her. His arms did not come into contact with any particular part of her body. Debbie DeFilice was a senior at Stranahan High School during the 1982- 83 school year and was a student in Respondent's 6th period Woods Class. Sue Fortaleza and Lisa Champion were also in this class. Once during class, Mr. Hayes walked up behind Debbie and picked her up. He picked her up by placing his hands on each side of Debbie's rib cage. His hands also came in contact with her breast. On another occasion, the Respondent leaned against her during an exam. In leaning over her and looking over her shoulder, the Respondent's groin area pressed against Debbie's back. Her examination could have been viewed from the side rather than over Debbie's shoulder. During one of the classes, Sue Fortaleza was complaining to Debbie DeFilice that she felt she was fat and needed to lose weight. This conversation was taking place near Mr. Hayes' desk. Mr. Hayes overheard the conversation and told Debbie DeFilice that he preferred Sue's "butt" over hers but that her breasts made up for it. The original conversation had not been directed at Mr. Hayes and the girls made no comment in response to his statement. No other teacher had ever made that type of comment to them. As Debbie and Susan walked away, the Respondent patted Sue on the "butt" with the palms of both hands. Susan Fortaleza was a senior at Stranahan High School during the 1982- 83 school year and was a student in Mr. Hayes' 6th period woodworking class. In December 1982, Susan requested a change from Mr. Hayes' woodworking class. This request was made because of some incidents involving Mr. Hayes. Once while sitting on a stool in class, Mr. Hayes placed the palms of his hands on her buttocks. On another occasion, Susan was seated on Mr. Hayes' stool grading papers. Mr. Hayes grabbed her rib cage just below her breasts and picked her up off of the stool. His hands came into contact with her breasts. During an exam, Susan was seated on a stool at one of the workbenches taking the exam. Mr. Hayes came up behind her and leaned against her with his groin or genital area coming in contact with her back. There was room on either side of her for Mr. Hayes to walk up and look at her exam. During the 1982-83 school term, Sonya Straubinger was a student at Stranahan High School and was enrolled in Mr. Hayes' 5th period Woods Class. On two or three occasions, between August 20, 1982, and December 1982, Sonya was late for Woods Class and when she entered the classroom, Mr. Hayes patted her on the "butt" and commented that she was late. He did this a joking manner. On one occasion, Mr. Hayes, while showing Sonya how to take roll, sat her on his lap. Once, while Sonya was standing in the finishing room, Mr. Hayes picked her up from behind. There was no apparent reason for him to pick her up and when he lifted her his arms came in contact with the lower part of her breasts. Although she did not approve of the physical contact, Sonya considers Mr. Hayes an excellent teacher and a nice man. While teaching students to use the lathe, Mr. Hayes instructed by standing behind or slightly to one side of the student and placed his arms around the student with his hands holding the student's hands as the tool was used. This procedure was used with male and female students. Respondent is considered by his students, peers, and supervisors to be an excellent instructor. He is very safety conscious and designed the present safety features and layout of the woodworking laboratory at Stranahan High School. Improper physical contact with female students by a male teacher impairs the effectiveness of the teacher to instruct those students.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is,
The Issue The issues are whether the proposed change of school attendance boundaries for four middle schools and four high schools (East Side Schools) located in eastern Pasco County (County) is a rule, and, if so, whether the proposed rule is an invalid exercise of delegated legislative authority.
Findings Of Fact The School Board is an educational unit and an agency defined in sections 120.52(1)(a) and (6), Florida Statutes. One of its duties is to assign students to schools after consultation with the Superintendent. See § 1001.41(6), Fla. Stat. The School Board has divided the County into geographic areas for purposes of drawing school attendance boundaries. At issue here is an area that encompasses the East Side Schools, comprised of around 40 designated areas, all east of the Sunshine Parkway or Interstate 75, in which four middle schools and four high schools are located. Petitioners are students or parents who reside in the Country Walk community in area 16. Students in area 16 are currently assigned to Wiregrass Ranch High School (Wiregrass) and Dr. John Long Middle School (John Long). With the exceptions cited below, under the new attendance plan, area 16 students will be reassigned to Thomas E. Weightman Middle School (Weightman) and Wesley Chapel High School (Wesley Chapel) beginning in school year 2017-2018. Only the rezoning for area 16 is being challenged in this case. Sarah Osorio is a student in the fourth grade and is unaffected by the boundary change. Lucas Darby is a student in the first grade and is unaffected by the boundary change. Lyric Hunter is a student in the second grade and is unaffected by the boundary change. Zoe Alyssa Wood is a student in the 11th grade; as a rising senior, she will be allowed to remain in Wiregrass. Katrina Nodine is currently in the fifth grade and is already scheduled to change schools at the end of the school year as a result of her graduation from elementary school. Cameron Darby is currently in the eighth grade and is already scheduled to change schools at the end of the year as a result of his graduation from middle school. The parents of these students are also unaffected by the new plan. The County is experiencing an increase in population caused by "intense" new residential development in the eastern part of the County. As a result, enrollment in most East Side Schools has exceeded capacity. In school year 2016-2017, Wiregrass exceeds capacity by 50.4 percent, while John Long exceeds capacity by 40.6 percent. If no changes are made, the two schools are projected to be operating at approximately 154.2 and 147 percent capacity, respectively, in school year 2017-2018. In contrast, Wesley Chapel and Weightman, while exceeding their permanent capacity, are operating at less capacity than Wiregrass and John Long. The district is expected to open a new combined middle-high school (Cypress Creek) in August 2017, but the student population must still be redistributed to address the capacity issue in Wiregrass and John Long. Because of anticipated growth in the County, and existing disparities in school enrollment, in August 2016, the Superintendent instructed his planning staff to begin the process of developing a plan for amending school attendance boundaries, including the East Side Schools. He further directed that a recommendation be formulated in time for the School Board to approve a new plan before February 1, 2017. This deadline was necessary because by April of each year, the School Board must prepare a proposed budget for the following year; adequate lead time is required to develop a new transportation routing plan; and once new boundary lines are drawn, an open enrollment plan, known as the School Choice program, allows students, between February 1 and March 1 of each year, to apply for enrollment in another school, i.e., in this case their former school. The School Board has adopted a set of Bylaws and Policies, which apply to "Legislative/Policymaking," or rulemaking, and follow the requirements found in chapter 120. See Pet'r Ex. 1. Policy 0131 provides that "the term 'rule' and 'policy' shall have the same definition." Id. at 1. The policy spells out in detail the procedural requirements for adopting policies (rules), which include notice of the proposed policy, a hearing, preparation of a rulemaking record, School Board action, and notices. Id. at 2-3. The policy also describes how a substantially affected person may challenge a proposed policy. Id. at 4. Reference to a "rule" and chapter 120 was made in various announcements, notices, and statements throughout the rezoning process. Even so, the School Board takes the position that its policies and chapter 120 do not govern the redrawing of attendance boundaries. As a consequence, the Superintendent did not review the Bylaws and Policies or chapter 120 before he began the rezoning process. The Superintendent opted to use the same rezoning process used since at least 2005. Under this process, a boundary committee, advisory in nature, is appointed for the purpose of developing multiple boundary maps and then recommending one of them to the Superintendent. The Superintendent does not attend the committee meetings or direct any member to draw a plan in a particular way. He considers, but is not required to accept, the committee recommendation. A parent meeting is also conducted to allow parents to provide input into the process. After the committee and parent meetings are concluded, the committee submits a recommendation to the Superintendent, who then submits a final recommendation to the School Board. By law, two adoption hearings must be conducted by the School Board, which makes the final decision. A boundary committee is comprised of two parents from each affected school, district staff, and principals of affected schools. The committee is intended to represent the interests of students, parents, communities, schools, and the district. The committee for the East Side Schools consisted of 21 members. During the rezoning process, a committee will typically conduct three meetings before making its recommendation. In this case, the Superintendent scheduled a fourth meeting to be held after the parent meeting so that parent input could be considered. In developing new school attendance boundaries, the committee was instructed to follow certain guidelines. Under these guidelines, a new boundary should provide socioeconomic balance, maintain to the extent possible an in-line feeder pattern, provide for future growth and capacity, provide safe and efficient transportation, maintain subdivision integrity, and consider long-term school construction plans. See Pet'r Ex. 11. The committee was also given extensive data including, among other things, existing and projected enrollments for each school for school years 2016-2017 and 2017-2018; five and ten- year projected enrollments for each school; long-term school construction plans; future growth potential in the area; minority, low income, and special education population by area; and total population history for each school. The School Board employs a full-time public information officer who directs and coordinates the dissemination of information to the public. This is accomplished through social media (Twitter, Instagram, and Facebook) and a School Board website accessible by the public. In addition, a special zoning website was established during the rezoning process. The website and social media profiles are identified on the inside front cover of the student planner issued to every student at the beginning of the school year. The district also operates a program known as School Connect, which is capable of sending telephone messages, emails, and text messages to the parents. School Connect was used to make automated telephone calls to the contact telephone number listed on a student's information card informing the parents of the time and date of the parent meeting. See Resp. Ex. 6. All parents with a valid telephone number received a call, although some parents either did not personally answer the call, listen to the recorded message, or remember its substance. School Connect also sent emails and texts to parents, including notification of the plan the Superintendent was going to recommend to the School Board. Signs and notices regarding the rezoning were not posted in the Country Walk neighborhood before any meeting. However, multiple notices were posted on social media and websites, and text messages, emails, and telephone messages were sent to the parents. This constituted substantial compliance with the requirement that notice of rulemaking be "post[ed] in appropriate places so that those particular classes of persons to whom the action is directed may be duly noticed." § 120.81(1)(d)3., Fla. Stat. Besides telephone calls, text messages, emails, and social media, on November 8, 2016, the Superintendent sent a letter to affected parents informing them of the parent meeting on November 29, 2016. See Resp. Ex. 3. The letter noted that attendance boundary lines for East Side Schools would be redrawn to "relieve crowding" at those schools, and it included the new proposed boundary lines being considered, along with reference to a website where more details could be found. Through School Connect, the School Board then sent parents reminder notifications via telephone and email. All Petitioners acknowledged receiving some form of notice of the process during the fall of 2016, and all had actual notice well in advance of the last committee meeting. Some parents attended committee meetings, the parent meeting, or spoke at both School Board meetings. During this same period of time, parents sent emails to the School Board or Superintendent expressing their views on rezoning. On September 6, 2016, the procedures for school rezoning were announced on Facebook and other social media. A press release for various media was issued on September 13, 2016. The press release announced the appointment of the boundary committee and provided the day, time, and location of each committee meeting. The press release was also published on the School Board's Twitter account. On October 3, 2016, an informational video regarding the rezoning process and featuring the Superintendent and district Planning Director was published on the School Board website and Twitter and Facebook accounts. Committee meetings were conducted on September 16, September 29, October 20, and December 2, 2016. These meetings were open to the public, and all were live-streamed on YouTube.com. Except for the last meeting, very few parents attended the meetings. Members of the public who attend the committee meetings are observers only, they do not have input into the meeting process, and they are not allowed to participate in committee discussions. However, there is nothing to prevent an observer from asking a member a question before or after the meeting, or in another setting. Committee members were encouraged to speak to the parents to keep them updated on what was occurring. All documents considered by the committee were posted on the School Board and special zoning websites. Minutes for each meeting, which summarized decisions of the committee and gave notice to parents as to which path the committee was taking, were published before the following meeting. On November 29, 2016, hundreds of parents, including four of the six who testified at hearing, attended a parent meeting. So that parent input would be considered, the Superintendent scheduled a fourth committee meeting on December 2, 2016. Four rezoning plans were considered by the committee, all addressing the overcrowding problem in different ways. On December 2, 2016, by a 16-to-5 vote, the committee recommended approval of Option 20, which did not affect area 16. The plan with the second most votes, Option 13, supported by district staff, reassigned students in area 16 to Wesley Chapel and Weightman. The new schools lie north of Country Walk, but are approximately the same distance from Country Walk as are Wiregrass and John Long, which lie directly south of area 16. The Superintendent chose not to accept the committee's recommended option. Instead, he chose to recommend Option 13 to the School Board for adoption. This decision was reached after consultations with the district Planning Director. The only difference between the two Options is that Option 20 reassigns areas 8, 9, 11, and 12 to Wesley Chapel and Weightman, leaving areas 16, 17, 20, and 21 unchanged, while Option 13 reassigns areas 16, 17, 20, and 21 to the new schools, leaving areas 8, 9, 11, and 12 unchanged. In developing Option 13, the committee and Superintendent followed the guidelines established at the outset of the process. Option 13 takes into account future growth and capacity of the schools. Consideration is also given to providing socioeconomic balance. Subdivision integrity is maintained, in that the entire Country Walk community is assigned to the same schools. During the development of this option, the committee had available the long-term school construction plans of the district. The transportation director was a member of the committee and provided assurance that the new plan provides safe and efficient transportation. Finally, because of overcrowding and anticipated growth in the area, the school feeder pattern structure, which now directs area 16 students to Wiregrass and John Long, was necessarily impacted. On balance, however, the guidelines were observed. Pursuant to other district policies, certain exceptions apply to the new attendance boundary. Students who are rising seniors at Wiregrass are grandfathered and remain at Wiregrass. Students who are approved under the School Choice program to remain in Wiregrass or John Long may do so. To take advantage of this program, a student must give a valid reason, such as hardship, separation of siblings, or participation in certain extracurricular activities. There is, however, no guarantee that a request for School Choice will be approved. Notice of the Superintendent's recommended plan, the School Board agenda, memorandum to the School Board, and map were published on the School Board's website seven days before the first School Board meeting. In addition, the same information was published on the district's Twitter and Facebook accounts, and emails were sent to parents who provided an email address. Finally, the Superintendent published a letter/email on December 12, 2016, explaining his reasons for recommending Option 13. It is fair to say that all parents had actual notice well before the first School Board meeting that area 16 was being reassigned to different schools. On November 20, 2016, a Public Notice (Notice) was published in the Tampa Times advising that a first reading on the new school attendance boundaries would be conducted by the School Board on December 20, 2016, and that final action would be taken at a second meeting on January 17, 2017. See Pet'r Ex. 2. The Notice read in relevant part as follows: PUBLIC NOTICE INTENT TO ADOPT A RULE TO ESTABLISH SCHOOL BOUNDARIES FOR THE 2017-2018 SCHOOL YEAR The District School Board of Pasco County intends to change attendance boundaries for the 2017-2018 school year for the schools listed below: * * * New Middle/High School GGG (Cypress Creek Middle/High), Charles S. Rushe Middle, Dr. John Long Middle, Thomas E. Weightman Middle, Sunlake High, Wesley Chapel High, Wiregrass Ranch High * * * First reading on this matter is scheduled for the regular meeting of the District School Board of Pasco County on December 20, 2016 at 6:00 p.m. in the W. David Mobley Media Center, School Board Room, 7205 Land O' Lakes Blvd., Land O' Lakes, Florida. School Board action on this matter is scheduled for the regular meeting of the District School Board of Pasco County on January 17, 2017 [at the same time and location]. Although all Petitioners stated they did not read the Notice, they nonetheless complain the Notice does not contain a detailed summary of the new boundary lines, a reference to the grant of rulemaking authority, a reference to the statute being implemented, a summary of the estimated regulatory costs, or the other details normally included in agency rulemaking pursuant to section 120.54. There is, however, no evidence that the parents were prejudiced by a lack of more information in the Notice. With the exception of those parents who voluntarily chose not to attend meetings, all other parents who were not working or were not out of town had actual notice and attended the meetings. At both School Board meetings, members of the public were allowed to speak. Normally, one hour of public testimony is permitted for an agenda item, with a three-minute time limitation for each speaker. Because three sets of attendance boundary plans were being considered as a single item, this time was expanded, and each plan was allotted one hour, for a total of three hours. To accommodate the large number of parents wishing to speak (33), only 90 seconds was allotted to each speaker, including those representing groups. Given the time constraints, not every parent was given the opportunity to speak. However, 14 speakers who were not allowed to speak at the first meeting were scheduled to speak first at the second meeting on January 17, 2017. All Petitioners attended at least one of the two School Board meetings. Committee members were not required to attend either School Board meeting to explain Option 13 (or why it was not their first choice) or to answer questions posed by the audience. At this point in the process, the Superintendent, and not the committee, bore the responsibility of making a final recommendation to the School Board and to answer any questions members had. At the close of public comment, the School Board considered and approved Option 13. On January 17, 2017, the day of the second School Board meeting, the Superintendent sent a memorandum to School Board members regarding the rezoning issue. Among other things, he stated that "[t]he establishment of school attendance boundaries is authorized by Section 1001.42, Florida Statutes. In addition, the Administrative Procedures [sic] Act requires that the District publish a Notice of Intent to Adopt a Rule twenty-one days prior to the public hearing. The first reading was held on December 20, 2016." Pet'r Ex. 19. At the beginning of the meeting on January 17, 2017, the Superintendent commented on his recommendation to adopt Option 13. After public comment, by a 4-to-1 vote the School Board adopted Option 13 for the East Side Schools. Unlike typical agency rulemaking, the adopted plan is in the form of a map, rather than a numbered rule. As required by section 120.54(3)(e)6., a copy of the new boundaries was filed with the "office of the agency head" after it was adopted at the second meeting. The cost for parents to transport their children to the new schools is highly speculative, but it should be similar to the current costs, as the new schools are the same distance from Country Walk. There was no evidence to show that the new plan would increase regulatory costs, directly or indirectly, more than $200,000.00 within one year after implementation. See § 120.541(1)(b), Fla. Stat. Therefore, a statement of estimated regulatory costs for implementing the new boundary lines was not prepared by the School Board, and none was requested nor submitted by a third party. The parties agreed that had the students who are named as parties testified at the final hearing, they would have reiterated the allegations set forth in the First Amended Petition. These include allegations that the students will be emotionally affected by the transfer; they will be separated from friends, teachers, counselors, and certain academic and extracurricular programs; and they will be limited in their ability to walk or bike to school. The parents expressed a wide range of concerns with the new attendance boundaries. All wondered why Option 20, which was recommended by the committee, was not accepted by the Superintendent, rather than Option 13. However, in an email dated December 12, 2016, the Superintendent explained that Option 13 provided the least disruption for all students. He pointed out that if Option 20 were adopted, "some students could attend four different schools in their secondary years. They could conceivably start 6th grade at John Long Middle School, move to Weightman Middle School by the 8th grade, start 9th grade at Wesley Chapel High School, and be moved to Cypress Creek High School [a new high school] before graduation." Pet'r Ex. 8. He added that under Option 13, "the projected average daily membership for Wiregrass Ranch High School will decrease after the seniors graduate in 2017. Projected enrollment goes down to 2,124 in 2018 and 1,956 in 2019." Id. The Superintendent further testified that by choosing Option 13, "it kept [him] from having to move portables from Wiregrass Ranch High School to Wesley Chapel High School," and it "accomplished our goal of reducing student enrollment at Wiregrass High School to get us off the 10-period day." Resp. Ex. 28, p. 141. These reasons are sufficient to validate the change in the boundary. Therefore, the undersigned will not engage in an exercise to determine if another Option, or variation thereof, might be better for, or more advantageous to, a particular neighborhood. Although the new schools are the same distance from Country Walk as the current schools, the parents are concerned with traffic conditions on State Road 54 and Meadow Pointe Boulevard, roads they say must be used in order to travel to the new schools. They point out that these roads are far more dangerous than the roads they now use to travel to their current schools, and both roads have had a sharp increase in serious accidents during the last two years. However, the district Transportation Director stated that regardless of the route taken, he had no concerns regarding the district's ability to develop bus routes that result in safe transportation of students to and from their schools. Notably, all major roads in the Country Walk area are currently used by the district for bus transportation and there are no safety concerns regarding their continued use. Several parents expressed a concern that the value of their homes would decline since buyers would not choose to purchase a home in Country Walk if their children were forced to attend Wesley Chapel or Weightman. However, the record gives no indication that any homes have been offered for sale, any homes have been sold at a distressed price, or any homeowners have not been able to sell their homes due to the proposed rezoning. Parents are concerned that the new schools do not have the same clubs, extracurricular activities, or educational opportunities that are found at Wiregrass and John Long. There is no credible evidence that substantially-similar educational opportunities will not be available to students at Wesley Chapel and Weightman. And there is no credible evidence that any student currently involved in a course of study unavailable at the new school will be negatively impacted by curriculum differences.
The Issue Whether Respondent is guilty of gross insubordination, misconduct in office and absent without leave as more fully alleged in letter dated November 7, 1989.
Findings Of Fact At all times relevant hereto Joseph A. Tourney held an Educator's Certificate from the Florida Department of Education (Ex. 1) and has been on continuing contract since 1972 with the Pinellas County School Board (Ex. 2). He has taught in the Florida School System for approximately 20 years with the last 14 years at Pinellas Park High School (PPHS) as a social studies teacher. As early as 1970, while a teacher at Lakewood Senior High School, Respondent's negative attitude toward strict compliance with school policies was noted (Ex. 9). Much of this attitude was exhibited by arriving later than and departing prior to the time designated for teachers to be at the school (Ex. 10). Following a review of Respondent's evaluations and conferences with him regarding his attitude respecting school policies and procedures to which Toumey did not agree, a recommendation was made by the Principal at Lakewood that Toumey be transferred (Ex. 12). Toumey was transferred to Largo High School. No problems were reported regarding Toumey during his tenure at Largo. When Pinellas Park High School opened circa 1976 Toumey was transferred to that school. Hugh Kreiger was principal at Pinellas Park High School. Krieger was a hands-on administrator who closely observed those under his supervision. The first time he observed Toumey depart school early he called him in and assigned Toumey permanent parking lot duty which required Toumey's presence at the parking lot until after the designated departure time. For the next five years no further problem was noted regarding Toumey's punctuality at school. Krieger was replaced by Louis Williams and Toumey's attendance problems resumed. After repeated warnings about leaving school in the afternoon prior to the scheduled departure time for teachers (30 minutes after students are released) and a conference between Williams and Tourney, Williams requested a conference with Tourney and John Mixon, Director of Personnel Services for the school board. This conference was held October 14, 1982 (Ex. 13). During this conference Respondents's early departures from school, his attitude toward school policies to which he disagreed, and his insensitivity to students was discussed and Tourney was advised that improvements in these matters was expected. By memo dated February 28, 1983 (Ex. 15) Williams noted several occasions where Toumey had departed school early and Tourney was charged with one-half day's leave and given a written reprimand. A subsequent documentation of Tourney leaving school early is contained in a memo dated November 7, 1986, from Williams to Tourney (Ex. 16). On September 21, 1987, Nancy Blackwelder, Assistant Principal at PPHS, submitted a memorandum to Tourney memorializing a conference with him in which he was again reminded of his need to improve in classroom atmosphere conducive to learning, judgment, and routine duties; and noting that if he failed to perform routine duties he would receive a written reprimand (Ex. 17). On October 8, 1987, a conference was held between Tourney; Nancy Zambito, who replaced Dr. Mixon as Director of Personnel Services; the principal of PPHS, M. Heminger; and a union representative. The summary of this conference is contained in a memo from Zambito to Tourney dated October 3, 1987, (Ex. 18). In this conference Tourney's inappropriate behavior in class involving his participation in a program adopted by the school, Patriot Educational Partners (PEP), was discussed, Tourney was again reminded of the need to support school board policies and programs in his contact with students, and Tourney agreed to improve. In November 1987 Tourney and the School Board entered into a Stipulation and Agreement (Ex. 19). In this Agreement Tourney acknowledged that he had been given less than satisfactory evaluations for the school years 1970-71, 1982-83, 1983-84, and 1986-87, that he had received numerous counseling sessions to discuss his failure to adhere to established school procedures and his negative comments to students. He also acknowledged that during the 1987-88 school year while assigned as advisor to a group of students with whom he is supposed to meet for five minutes each morning, he has frequently been late; that he referred to this program in the presence of students in negative and profane terms; and on one occasion he threw financial aid papers in the trash can and told students they could get them from there if they wanted them. For these infractions Tourney agreed to a suspension without pay for five days. He also acknowledged that further infractions may lead to a recommendation for his dismissal. In his testimony at this hearing Tourney averred that most of the students who were given financial aid applications threw them on the floor from which they had to be picked up and placed in the trash baskets, and that he was merely shorting the process by throwing these applications in the trash can rather than pass them out to the students who would throw them on the floor. On May 9, 1989, Respondent was issued a letter of reprimand (Ex. 20), by Principal Heminger for inappropriate conduct in his class during a visit to the class by members of the committee conducting a ten-year evaluation of the PPHS for accreditation during the period of April 25-28, 1989. In this reprimand he was also found to have arrived late at the final meeting of the Visiting Committee and to have returned from lunch with the odor of alcohol on his breath. On September 12, 1989, a conference was held between John Reynolds, Assistant Principal at PPHS and Tourney to discuss Tourney's 1988-89 evaluation. This conference is memorialized in memorandum dated September 19, 1989, (Ex. 21). The areas in which improvement is expected in the evaluations are attitude, judgment and routine duties. October 13, 1989, was an in-service day for teachers. This is a normal school day which only teachers attend. It was one of several similar days during the school year that teachers hold meetings, catch up on the grading of papers and perform tasks other than conducting classes for their students. It is a day all teachers are expected to be present at school. At PPHS in-service days have always been more informal than regular school days and in the past teachers have departed early once their tasks were completed. Prior to 1988 there had been no sign-in sheet for teachers at PPHS but such a procedure was instituted and in effect for the in-service day of October 13, 1989. Respondent appeared at school on October 13, 1989, as required but slightly late. Around 9:00 a.m. he received a telephone call from his good friend and fellow teacher in the social studies department, David Smith, who told respondent that he, Smith, had just awakened after not having slept well during the night, and Smith requested Respondent to sign him in and he would arrive shortly. Respondent did so. After making the call, Smith went back to bed and when he again awoke it was afternoon and he realized he was suffering from flu-like symptoms and was too sick to go to school. Several people were aware that Smith did not report to school on October 13, 1989 and reported same to the authorities. When confronted with the accusation both Tourney and Smith denied that Tourney had signed Smith in and that Smith was not at school that day. When he finally acknowledged his absence from school on October 13, 1989, Smith was suspended for three days without pay. The October 13, 1989, incident was the culmination of a long history of Respondent's failure to comply with school policies and directives, to "trash" school programs to which he did not agree, and to be in the forefront of rebellion against such programs and policies which led to the proposed action of the school board to dismiss Respondent from his continuing contract as a teacher in the Pinellas County school system at the expiration of the 1989-90 school year.
Recommendation It is recommended that Joseph Tourney be dismissed from his position as a continuing contract teacher in the Pinellas County School System at the conclusion of the 1989-90 school year. DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida. K. N. AYERS 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 5th day of July, 1990. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Dr. Scott N. Rose, Superintendent Pinellas County School Board Post Office Box 4688 Clearwater, FL 34618-4688 Bruce Taylor, Esquire Post Office Box 4688 Clearwater, FL 34618-4688 Robert F. McKee, Esquire Post Office Box 75638 Tampa, FL 33675-0638
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes (2017),1/ and Florida Administrative Code Rule 6A-10.081(2)(a)1. and 8., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Uncontested Facts by the Parties Respondent holds a valid Florida Educator’s Certificate No. 1046827, covering the area of Biology, which is valid through June 30, 2020. At all times pertinent to this matter, Respondent was employed as a Biology teacher at Miami Palmetto Senior High School (“MPHS”) in the Miami-Dade County School District. Respondent knew A.T. was a student at MPHS during the 2015-2016 school year and had tried out for the school’s lacrosse team in late January 2016. Respondent sent a text message to A.T. on December 19, 2016, stating, “How are you?” Respondent sent and exchanged text messages with A.T. in March 2017. Respondent met and engaged in sexual intercourse with A.T. in late March 2017. Respondent resigned from his employment with Miami-Dade County Schools on May 3, 2017, citing “personal reasons.” Additional Findings of Fact Petitioner, as Commissioner of Education, is responsible for investigating and prosecuting complaints against individuals who hold Florida educator certificates, and are alleged to have violated provisions of section 1012.795. Respondent is a highly effective educator who, over the course of his ten-year career, has earned the respect of his former principal and science department head, as well as parents and students with whom he has come in contact. The allegations of misconduct in this case have not altered the high professional regard in which Respondent is held by Principal Victoria Dobbs; Science Department Head Pamela Shlachtman; parent and lacrosse team booster club president Nicola Rousseau; and former student, lacrosse player, and the daughter of Nicola Rousseau, Samantha Rousseau. Each of these witnesses testified that their knowledge, observations, and experience working with Respondent led them to believe that he never would have had any type of relationship with a woman he believed to be a high school student. Each of these witnesses testified that, to the best of their knowledge, they had never seen or heard reports of any inappropriate conduct between Respondent and a student. Principal Dobbs bragged in a letter about Respondent and the support of his peers in voting him Science Teacher of the Year. She testified that in her 12 years of service at MPHS, the last three of which she was principal, she had no concerns with Respondent regarding inappropriate relationships with students. To the contrary, she recalled him as a very good teacher, who participated in many school activities and field trips. He also served as coach for the girls’ lacrosse team. Principal Dobbs further testified that she was never informed that Respondent had been accused of having an inappropriate relationship with a student at her school. She was only made aware of a request by the school district for Respondent’s computer. She testified that if she had believed Respondent had an intimate relationship with a high school student, she would not have employed him. Ms. Shlachtman has been employed at MPHS since 2001 and has been a teacher since 1984. She affirmed her previously written statement supporting Respondent, and testified she had participated in the hiring and selection of Respondent ten years previously as a marine biology teacher. She stated that he had “the soul of an educator.” As a member of Ms. Shlachtman’s staff, Respondent had chaperoned multiple field trips, including extended travel with students and staff for the Enviro Team, and to state and national competitions in Montana and Toronto, Canada. Having seen Respondent react with both male and female students on seven- and ten-day trips, she never had a concern or received a complaint. She also knew girls on the lacrosse team and had never heard a concern reported from there. She noted that Respondent had the opportunity to be alone with students on multiple occasions, and no concerns or inappropriate behavior was ever reported. She would rehire Respondent on her staff again, if given the opportunity. Ms. Rousseau, the mother of three daughters who trained with Respondent at his CrossFit gym, also served as president of the girls’ lacrosse team booster club. She affirmed her previous letter of support for Respondent and testified about her commitment to Respondent as a trainer for her three daughters at his gym, which she said would continue. Additionally, Samantha Rousseau, Nicola’s daughter, and a full-time student at the University of Florida, confirmed her support for Respondent. While a student at MPHS, she had served as assistant captain of the girls’ lacrosse team during her senior year (2014), while Respondent was the team coach. She had known Respondent since she was a sophomore student in his Television Production class; she had traveled with Respondent to Los Angeles as part of his class; and had ridden numerous times on the team bus with Respondent. She testified that she believed Respondent would not have been involved with A.T. had he known she was a high school student. Respondent first encountered A.T. during MPHS lacrosse tryouts in late January 2016. A.T. was a junior at that time. Respondent had no further contact with A.T. until he sent her a December 12, 2016, text stating, “Hi! How was your weekend? You missed out on Saturday morning [referring to a workout designed for lacrosse players at CrossFit gym].” A.T., still a student at MPHS at the time of this text message, never replied to it. On March 15, 2017, Respondent sent another text message to A.T., stating, “Hey, what’s up? How have you been?” The remaining text messages sent by Respondent to A.T. were undated, but were sent between March 15 and their sexual encounter in late March. The text messages were sexually graphic. The messages sent by Respondent included explicit photographs, and while those sent by A.T. had explicit photographs, they were removed to protect her privacy. A.T. was a student at MPHS through December 2016. On January 12, 2017, the Miami-Dade School District conducted a conference to formulate an Individual Education Plan (IEP) for A.T. She was placed in a hospital/homebound program at that time and graduated from the virtual school in June 2017. She did not attend college during this time. Respondent never denied the one-time sexual encounter he had with A.T. On the day when the encounter took place, March 19, 2017, A.T. texted Respondent and asked if she could see him that night. A.T. was driven by a friend to Briar Bay Park where she met Respondent, who was already there and waiting for her in his car. She had sexual intercourse with him in his car. After their liaison, Respondent drove her home. A.T. and Respondent had no contact after that time. A great deal of testimony was elicited about whether Respondent texted or phoned A.T. and discussed her status as a student in March 2017. At different times during the investigation into the sexual encounter between A.T. and Respondent, he said he texted, instant messaged, or telephoned A.T. about her school. Respondent believed her to be taking courses at Miami Dade College (“MDC”) during the spring semester of 2017. In fact, she was a student at Brucie Ball Education Center (“Brucie Ball”), a virtual school where she took online courses to complete her high school education, graduating in June 2017. Respondent consistently believed, at the time of his interview by Detective Ochoa, during his deposition, and at hearing, that A.T. was in college and testified he was never told she was at Brucie Ball. A.T.’s memory is less clear. She testified she could not recall telling Respondent she was taking college courses, but there is no doubt she was enrolled at Brucie Ball during her final semester of high school and not at MDC. She remembers that she received a social media invite from Respondent to attend his CrossFit boot camp in December 2016. She recalls communicating back and forth via social media after that time, especially when Respondent texted her about missing her at boot camp. She and Respondent testified to multiple additional conversations via social media or texting, but many of those were not produced as evidence. When a three-month gap between their messaging occurred, Respondent testified that A.T. told him she had been backpacking in Africa with friends and, according to what he recalled she told him, she was taking courses at MDC. She did not recall having told him she was taking courses at MDC, but “guessed he knew” she was still a high school student because the previous year she had been a junior at MPHS. “It never came up,” she testified. While she could not recall having told Respondent she had been to Africa and was taking courses at MDC, A.T. testified she recalled many more text messages between Respondent and her that were not printed from her phone and introduced into evidence at hearing. According to A.T., she had not talked to Respondent about her upcoming 18th birthday on March 2, 2017. Yet, she invited him to the celebration at a club called “Do Not Sit on the Couch.” She also shared with him that she and her friends often visited another club called “Little Hoolies,” and invited Respondent to join them. Both of these clubs serve alcohol and are for adults over 21. Respondent did not join them at either club. A.T. did not recall any of these conversations at hearing. A.T. declined to be interviewed by Petitioner’s Professional Practices Services investigator. At hearing, she could not recall a request to be interviewed. Respondent assumed A.T. was older than 18 when they met at the park for sex, since he believed her to be taking classes at MDC; she hung out with her friends at two adult clubs; and she brought alcohol, a vapor pen, and THC oils with her when they met in the park. He did not believe this to be typical high school behavior. Respondent also believed A.T.’s absence from social media for three months before they had their encounter at the park was explained by her telling him she had been backpacking in Africa where he assumed she did not have readily available access to the Internet. He also believes this supported his understanding that A.T. was in college at that point, since three months of backpacking does not usually occur as part of a high school experience. Respondent consistently testified, from his statements to law enforcement to his appearance at hearing, that had he known A.T. was still a high school student, regardless of whether she was at the school where he taught, he would have never had an intimate relationship with her. Moreover, law enforcement never asked Respondent for his phone at the time of the investigation. After he learned A.T. had been a high school student in March 2017, when they had their one-time sexual relationship, on May 3 of that year he resigned his position as a teacher at MPHS for “personal reasons,” based upon advice he received from union representatives and an investigator, and to spare embarrassment to his school, colleagues, and family. At the time A.T. had entered into an IEP with Miami- Dade, her school was listed as South Miami Senior High School, not MPHS. This explains why Respondent never saw her again at MPHS in her final semester. There was no evidence presented that Respondent knew A.T. had not graduated from MPHS or that she had enrolled in either South Miami High School or Brucie Ball when she did not return to MPHS for the spring semester of 2017. Respondent’s assertion that he was unaware of A.T., an 18-year-old, still being in high school at the time of their March 2017 encounter, along with his cooperation with the investigation and admission at all times pertinent to it that he had a sexual relationship with A.T., renders his testimony more credible than A.T.’s concerning what Respondent knew about her status as a student. No evidence was produced that Respondent ever had an improper relationship with A.T. while she was under the age of 18. A.T.’s lack of candor and lack of cooperation with Detective Ochoa, the investigator on the case, as well as her incomplete memory of the various text messages with Respondent bring into question her truth and veracity when testifying against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the charges against Respondent in their entirety. DONE AND ENTERED this 23rd day of May, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 23rd day of May, 2018.
The Issue Whether just cause exists for the proposed disciplinary action against the Respondent.
Findings Of Fact At all times material to this case, Cheryl McDonough (Respondent) was employed by the Pinellas County School Board (Petitioner) under a professional services contract. The Respondent was initially employed as a teacher by the Petitioner in 1987. On December 11, 1989, the Respondent received a written reprimand from the Assistant Principal at Northeast High School for using poor judgement by displaying anger when dealing with inappropriate student behavior. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Northeast High School until budgetary considerations led to her transfer to Osceola High School. On January 13, 1992, the Respondent received a written reprimand for using poor judgement by displaying anger and using vulgar language when dealing with inappropriate student behavior at Osceola High School. The reprimand was issued by the School District Director of Personnel Services. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Osceola High School until her position was eliminated for fiscal reasons. On February 14, 1994, the Respondent received a written conference summary from Joann Andrews, Principal at Azalea Middle School, where she had become employed. The summary notes that alcohol had been detected on the Respondent's breath during school hours. The Respondent denied the allegation. On April 20, 1994, the Respondent received a written school memorandum from the Assistant Principal at Azalea Middle School for smoking in an inappropriate area on school property. In the summer of 1994, the Respondent was transferred to the district service center where she worked until gaining employment at Lakewood High School in the fall of 1994. By letter from the Superintendent of Pinellas County Schools dated July 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be suspended without pay for ten days. The basis for the recommendation were allegations that the Respondent made disparaging remarks to a student and his mother in front of other students, that the Respondent had the odor of alcohol on her breath, and that the Respondent made derogatory remarks about another teacher to other students and had attempted to disrupt the other teacher's class. On September 13, 1994, the School Board issued a Final Order suspending the Respondent without pay for five days based on the allegations set forth in the July 7 letter. The Final Order was issued pursuant to a settlement agreement reached by the parties. During the 1994-1995 school term, the Respondent was employed as a teacher at Lakewood High School. During a Lakewood faculty meeting on August 23, 1994, the smell of alcohol was detected on the Respondent's breath. During a Lakewood "open house" in September, 1994, the smell of alcohol was detected on the Respondent's breath. During the first semester of the 1994-1995 school term, several students smelled the odor of alcohol on the Respondent's breath. During the first semester of the 1994-1995 school term, the Respondent used vulgar language including "damn," "hell," "shit," "bitch," and "fuck" in the classroom and within the hearing range of students. During the first semester of the 1994-1995 school term, the Respondent used demeaning language towards students in her classroom, calling them "brats" and "dumb," and stating "you are the worst class" and "you will never amount to anything." The Respondent told her sixth period class that she would kill them if she thought she could "get away with it." On more than one occasion, the Respondent became frustrated by the class behavior. She would give the class a "work assignment" and would refuse to teach. There is no credible evidence that the "work assignments" were part of any prepared teaching plan or were otherwise utilized as instructional resources. During the first semester of the 1994-1995 school term, the Respondent physically separated her fourth period class into two groups which she identified as "learners" and "non-learners." A row of empty desks was used to divide the students. During this episode, the Respondent refused to teach the group she called "non-learners." After receiving complaints from students about the division, an official at the school visited the Respondent's class and directed her to reunite the class. By letter from the Superintendent of Pinellas County Schools dated November 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be dismissed. The basis for the recommendation were allegations as follows: the Respondent used profanity and demeaning language towards students on numerous occasions; the Respondent had alcohol on her breath while at school on two occasions; the Respondent stated to her sixth period class that she would kill them all if she could get away with it; and that the Respondent separated students into two groups within the classroom setting and taught only half the class. The Respondent requested a formal administrative hearing which is the basis for this Recommended Order. At the hearing, the Petitioner's expert witnesses opined that the allegations, if established to be true, were of sufficient seriousness to impair her effectiveness as a teacher.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Pinellas County School Board enter a Final Order terminating the employment of Cheryl McDonough. DONE and RECOMMENDED this 20th day of June, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6983 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 10. Rejected, correct year is 1994. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected as to use of medication. The greater weight of credible and persuasive evidence fails to establish that the Respondent took the medication at the times when the odor of alcohol was detected on her breath. Immaterial. The evidence fails to establish that the students in the classes taught by the Respondent are responsible for her behavior therein. 6-11. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 14. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 15-16. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. Rejected. The Respondent does not recall making the statement so her explanation of her intent is speculative. As to the cited testimony of Ms. Hanes, it is immaterial because the statement is not "in and of itself" the sole event warranting termination. 19-21. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, immaterial, no related allegation. Rejected, immaterial Rejected, immaterial. Classroom management "techniques" are not the sole cause warranting termination. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County Post Office Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649 Marguerite Robinson, Esquire Kelly & McKee Post Office Box 75638 Tampa, Florida 33675
Findings Of Fact Isaac Galazan was a student at Highland Oaks Junior High School during the 1983-84 and 1984-85 school year until his reassignment to the alternative school. During his attendance at Highland Oaks, Galazan was involved in four instances of misbehavior that involved disciplinary action. On January 25, 1984, Galazan did not serve a detention and was given three days of indoor suspension in the SCSI indoor suspension program. On February 27, 1984, Galazan was disciplined for disruptive behavior for possessing fireworks on the school grounds. He got the fireworks at school and simply had them in his pocket. He did not light, attempt to light, or intend to light them on school grounds. On October 15, 1984, Galazan was charged with starting a fight and received 2 days suspension in SCSI. No additional details were given regarding this incident and Galazan was given a relatively minor discipline. In fact, Galazan does not even remember the incident. Finally, on March 28, 1985, Galazan was suspended from school for ten days for possession of marijuana on the school bus. In fact, no independent evidence was presented regarding Galazan's supposed possession of marijuana. The only evidence was his own statement given to Mr. Fontana after being questioned. By Galazan's own admission, he brought a very small amount of marijuana onto the bus, gave it to another student to roll, lit it, did not smoke it, became frightened and threw it out the bus window. Galazan has had academic problems at Highland Oaks. During 1983-84 school year he failed Civics, Life Science and English, but passed these subjects with D grades during summer school. However, his grades at the end of the 1984-85 school year were somewhat improved.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order returning Isaac Yztak Galazan to the regular school program. DONE and ENTERED this 16th day of September, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1985. COPIES FURNISHED: Frank R. Harder Esquire Twin Oaks Building Suite 100, 2780 Galloway Road Miami, Florida 33137 Tami Galazan, Parent 210-174 Street Apartment 1919 Miami Beach, Florida 33160 Ms. Maeva Hipps School Board Clerk Dade County Public Schools 1450 N. E. 2nd Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact William Burnett Washington's primary residence is 106 Westwind Court, Sanford, Florida. Mr. Washington and his wife, Betty Washington, have jointly owned the house at 106 Westwind Court house for 10 years. On a highly infrequent basis, Mr. Washington spends the night at 2020 Old Lake Mary Road, Sanford, Florida. This is the primary residence of Mr. Washington's brother, who is normally the sole occupant of the house. The Westwind Court house is occupied by Mr. Washington, Mrs. Washington, and their children, Shawn Washington, aged 16 years, and Niki, aged 14 years. Apart from infrequent overnight visits with friends, the Westwind Court home is the exclusive residence of Shawn and Niki. The Westwind Court house is served by the Seminole High School attendance zone. The Old Lake Mary Road house is served by the Lake Mary High School attendance zone. At the beginning of the 1989-90 school year, Shawn and Niki were attending Lake Mary High School. By letter dated September 21, 1989, Respondent informed Petitioner that his children were enrolled in Lake Mary High School on the basis of false information. The letter explained that they were being administratively withdrawn from Lake Mary High School and administratively enrolled at Seminole High School.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Seminole County, Florida enter a Final Order confirming the enrollment of Shawn and Niki Washington in Seminole High School. ENTERED this 22nd day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 22nd day of February. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5651 Treatment Accorded Proposed Findings of Respondent 1: adopted except that Petitioner primarily resides at 106 Westwind Court. Even if he were to reside primarily at 2020 Old Lake Mary Road, however, the result would be the same because the children primarily reside with their mother. 2-3: adopted. 4: rejected as unsupported by the greater weight of the evidence. The children primarily reside with their mother. 5: adopted. 6-9: rejected as subordinate and recitation of evidence. 10: rejected as irrelevant. COPIES FURNISHED: Harry L. Lamb, Jr. Perry & Lamb, P.A. 135 Wall St. Suite 200 Orlando, FL 32801 Ned N. Julian, Jr. Stenstrom, McIntosh, Julian, et al. P.O. Box 1330 Sanford, FL 32772-1330 Robert W. Hughes Superintendent The School Board of Seminole County, Florida 1211 Mellonville Avenue Sanford, FL 32772 Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record complied herein, the following relevant facts are found. By letter dated October 1, 1980, Respondent, David K. Witherspoon, and his parents were advised by the Pinellas County Superintendent of Schools, Gus Sakkis, that he was being suspended from the public schools of Pinellas County for the remainder of the 1980/81 and 1981/82 school years based on an allegation that Respondent committed a battery while on school grounds on September 19, 1980, following a high school football game. (Joint Exhibit 1) Respondent is scheduled to graduate from high school at the end of the 1981/82 school year. Following the expulsion, Respondent has been assigned and is attending an evening alternative education school program sponsored by the Pinellas County School System. According to testimony, that a system provides two hours of instruction each week day evening. Respondent appealed the Superintendent's expulsion and the parties stipulated that the Division of Administrative Hearings has jurisdiction to resolve this controversy. According to the Code of Student Conduct, students are expected to conduct themselves at all times in a manner that "shall [not] infringe on the rights of others. A battery, according to the Code of Student Conduct, is the unlawful, intentional touching . . . or force to another person, done in a rude, insolent and angry manner shall subject a student to disciplinary action which may include suspension or expulsion from school." Paragraph 3(a)2, Code of Student Conduct. The material allegations of this controversy are that following the football game at Gibbs Senior High School (Gibbs) on September 19, 1980, Respondent while in the company of four other black males struck Anthony Scott Taylor, a seventeen year old senior at Gibbs, his mother and his fiancee in the school's parking lot. Anthony Taylor charged that Respondent kicked him across his eye; struck him with his fist, bruising his nose and caused his eye to bleed. Taylor has know Respondent for more than two years and has had no prior run-ins or altercations with Respondent. Taylor alleges that approximately 20 or more black students encircled him during the altercation with Respondent. Taylor, while on his knees in a slouched position when he was allegedly hit an kicked by Respondent, glanced up to identify Respondent. Taylor admitted that he was preoccupied with ensuring that his fiancee and mother could leave the parking area without difficulty. He also commented that blood was streaming from his right eye from the blow he received. Ann Taylor, Anthony Taylor's mother, was also struck by a black male as she was leaving the September 19, 1980, football game at Gibbs. Mrs. Taylor testified that her son was knocked down he (Anthony) told one of the black males "that's my mother you knocked down." Mrs. Taylor testified that she was unable to identify any of the students involved in the altercation and noted that her son was dazed when he left the area where the fight occurred. Lori Bush, Respondent's fiancee, also accompanied the Taylors following the football game. Ms. Bush also could not identify any of the students involved in the altercation with them. Ms. Bush and Anthony Taylor's mother picked him up and carried him to their car. Ms. Bush did not recall having seen Respondent prior to the hearing in this cause. Paula Sitzelberger, a detective with the St. Petersburg Police Department investigated the subject incident which occurred at Gibbs on September 19, 1980. Detective Sitzelberger spoke to Respondent at school on September 23, 1980, and after questioning him, reported that Respondent denied striking Anthony Taylor following the game. Detective Sitzelberger noted that Respondent admitted to having shoved another white male whose identity is unknown in another area of the parking lot after the white male allegedly pulled or struck Respondent. Detective Sitzelberger was unable to locate any independent witnesses to the subject incident. Jerry Young, a witness called on behalf of Respondent, recalled the numerous fights which occurred following the September 19, 1980, football game at Gibbs. Young followed Respondent throughout the school ground area and denied that Respondent had any involvement in the subject incident. He corroborated Respondent's testimony to the effect that Respondent's hand was injured in another incident in another area of the school's parking area after Respondent was first enmeshed in an altercation with another white male. Respondent related the incident following the September 19, 1980, football game at Gibbs. Respondent has been attending evening sessions at Mirror Lake Adult High School since his expulsion from the regular public schools of Pinellas County. According to Respondent, Tony Taylor was struck by a group of other blacks and Respondent denied any involvement on his part in that incident. Respondent surmised that Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor repeatedly shout that he knew him, left the area with companion Young although he got involved in another altercation with another white male which resulted in an injury to his hand. Respondent first became aware of his alleged involvement in the Anthony Taylor incident the following Monday when he was questioned by Dean Jones and Detective Sitzelberger. 2/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent be reinstated in the Pinellas County School System; that the suspension be revoked and that the student be permitted to make up the school work missed as provided in Chapter 4(b)1(h) of the Code of Student Conduct adopted by the Pinellas County School System. RECOMMENDED this 14th day of January, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1981.
