The Issue Whether Respondent is guilty of immorality, gross insubordination, or misconduct in office.
Findings Of Fact At all times relevant hereto Walter Phillips, Respondent, was a continuing contract teacher employed by the Pinellas County School Board, Petitioner, to teach woodshop, math, graphics and drafting at Largo High School. In the 1988-89 school year, Brent Roth, a senior at Largo High School, served as teacher's aide to Respondent. Roth was interested in guns and gun magazines and often engaged Respondent in conversation regarding hand guns. On one occasion while looking at a gun magazine at school, Roth showed Respondent an advertisement for a 9 mm Baretta pistol and asked Respondent would he like to own a Baretta. Respondent indicated yes. Several times thereafter Roth told Respondent that he (Roth) knew where he could purchase a gun at a large discount over the retail price, indicating the gun was "hot" or stolen in the robbery of a truckload of weapons. Respondent knew Roth was prone to exaggeration and didn't believe that Roth could obtain such a weapon. Nevertheless, Respondent decided to proceed with these discussions and, if Roth ever procured such a weapon, Respondent would call in the FBI. At no time did Respondent ever give Roth money to purchase a weapon, nor had Roth ever before purchased such a weapon. Respondent is a member of the Coast Guard Reserve and apparently considers himself a federal law enforcement officer, despite the fact that Coast Guard jurisdiction in law enforcement is limited to the navigable waters of the United States and then only to active duty personnel. Nevertheless, Respondent purported to conduct his own investigation. During the time Roth bragged to Respondent about his ability to acquire a Baretta pistol which had been stolen, and therefore, cheap, the Pinellas County Sheriff's Office was conducting an undercover investigation at Largo High School principally to find out if drugs were being dealt at school. They had an agent posing as a student. This agent, detective Wojciechowski, armed with a body recorder, taped several of the conversations in which Respondent, Roth and other students discussed the purchase of a stolen or hi-jacked gun or guns. The taped conversations were not transcribed and, although the undersigned devoted nearly two hours listening to this tape (Exhibit 3), the speakers were not identified and, without devoting an inordinate amount of time to the project, the speakers cannot be identified. Accordingly, from the posture of the evidence presented, Respondent's specific participation in the purported acquisition of a Baretta pistol cannot be determined. When confronted with the undercover deputy sheriff's tape of his conversations relative to the purchase of a stolen gun, Respondent acknowledged that he had engaged in such discussions for the purpose of discovering if the students actually had access to stolen weapons, but not for the purpose of acquiring such a gun. Had the student been able to get possession of a stolen weapon, Respondent would promptly notify the FBI (Exhibit 6). Respondent never notified his principal, Ms. Westfall, or the campus police regarding his "investigation" because he really didn't believe the student could obtain possession of such a weapon and he had insufficient evidence to support such an allegation. In the summary of the conference (Exhibit 6) between Respondent, the school principal, the school personnel officer and the PCTA member, prepared by Steve Crosby, the Director, Personnel Services, and signed by Respondent, the latter is reported to have acknowledged: If the student had been able to get the gun, he [Respondent] would have had him bring it to him at school, rather than taking a chance in meeting him alone. In his testimony at these proceedings, Respondent stated that he never intended for Roth to bring the pistol to school, only to bring some evidence that Roth could obtain such a weapon. If a weapon was to be delivered, Respondent would have arranged for an off-campus place of delivery and then notified authorities. Respondent's testimony is accepted as the factual version of this proposed transfer. It is significant in assessing the seriousness of the allegations that the closest any participant in the "plot" to purchase a gun ever came to a gun was a picture of a gun in a magazine. No money was ever exchanged, no fixed price for a gun was ever established and, in fact, no actor in this play had any real knowledge that the stolen gun or guns was available to be purchased. In his handling of the discussions pertaining to the purchase or acquisition of a presumed to-be-stolen-pistol, Respondent exercised poor judgment in failing to alert local authorities to these discussions. However, since no hard evidence was available that any student had access to such a weapon there was little to investigate; and it is unlikely that the police would have taken action other then ask Respondent to keep them advised of developments. Petitioner's expert witnesses opined that, by failing to report these conversations to school authorities and in planning the delivery of a gun on school premises, Respondent exercised poor judgement. This, in their opinion, created doubt of his ability to make a proper judgment at school and thereby impaired his effectiveness as a teacher. That part of these opinions predicated upon Respondent negotiating with a student for the purchase of a stolen gun to be delivered to the school premises did not have factual support and is disregarded. Respondent has been a certified teacher for fourteen years and, although he doesn't hold a bachelor's degree, he holds a teacher's equivalency. He has been employed by the Pinellas County school system on a continuing contract since 1979. At no time during the Respondent's tenure in the Pinellas County school system has he been subjected to disciplinary action as a result of charges being brought against him for an infraction of statute or rule.
Recommendation It is recommended that the charges of immorality, gross insubordination, and misconduct in office preferred against Walter Phillips be dismissed, his suspension vacated, that he received back pay for the period his pay has been suspended, and that he be restored to his former status as a continuing contract teacher with the Pinellas County School Board. DONE AND ENTERED this 7th day of July, 1989, 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 7th day of July, 1989. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618-4688 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Lawrence D. Black, Esquire 152 Eighth Avenue, SW Largo, Florida 34640 ================================================================= AMENDED RECOMMENDED ORDER =================================================================
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.
The Issue Whether cause exists for the Petitioner's proposed termination of the Respondent's employment as a bus driver for alleged inappropriate conduct with a student.
Findings Of Fact At all times material to this case, Respondent Howard Jessie (Respondent) was employed as a bus driver by the Pinellas County School Board. On an unidentified day during the first semester of the 1993-1994 school year, the Respondent was observed fraternizing on campus with several Pinellas Park High School students. The Respondent was tossing a football with students in an area which was "off-limits" to students. A female student identified herein as T.C. was present. A school resource officer approached the Respondent, and informed him that the area was off-limits to the students and that it was not appropriate for him to socialize with students at that time. The Respondent informed the officer that he was a bus driver and his association with students was not inappropriate. On a later unidentified day during the first semester of the 1993-1994 school year, the school's assistant principal observed the Respondent walking with T.C. in the "mall" area of the high school campus. The assistant principal instructed the Respondent to cease fraternizing with students. On a third day during the first semester of the 1993-1994 school year, the assistant principal observed the Respondent standing near the school bus area and speaking with several students including T.C. The assistant principal contacted a supervisor at the school board's transportation department and informed him of the Respondent's behavior. Upon receiving the phone call from the assistant principal, the supervisor summoned the Respondent to his office and directed the Respondent to cease his association with the students. The Respondent agreed to refrain from having further contact with the students. On or about January 10, 1994, the school resource officer observed the Respondent and T.C. standing on campus next to a parked school bus, and watched as the Respondent kissed T.C. on her cheek. The student did not appear to resist the kiss. The officer reported his observations to the assistant principal who contacted another transportation supervisor and requested that the Respondent be removed from his employment as a bus driver at Pinellas Park High School. The Respondent was called to a meeting with the administrator of the School Board's Office of Professional Standards. During the discussion of the matter, the Respondent admitted that he had hugged and kissed T.C. on campus. During the discussion, the Respondent also admitted that he and the student had engaged in oral sex in January, 1994. By letter of March 3, 1994, the Respondent was notified that he was suspended with pay and that the superintendent would recommend dismissal to the school board at the meeting of March 23, 1994. A number of stories related to this matter have appeared in the local press, including the March 18, 1994 issues of the St. Petersburg Times and the Tampa Tribune. Engaging in sexual activity with a student is conduct serious enough to impair the Respondent's effectiveness in the school district and to bring the service of the School Board of Pinellas County into disrepute.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a Final Order terminating the employment of Howard Jessie. DONE and RECOMMENDED this 21st day of November, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1876 The Respondent did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County P. O. Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board P.O. Box 2942 Largo, Florida 34649 Mr. Howard Jessie 15695 Waverly Street, Apartment 2 Clearwater, Florida 34620
Findings Of Fact Respondent was initially employed by the Pinellas County School Board in August 1973 as a plant operator, and received evaluations on his job performance approximately on an annual basis through December, 1986. In the evaluation dated May 17, 1977 in the category of attitude, Respondent received a comment that he was "slow to cooperate, occasionally disagreed with others, objects to some jobs." Respondent received "Needs Improvement" ratings in attitude, and relations with others on his evaluation dated January 10, 1983. In the evaluation dated December 17, 1984, Respondent received a "Needs to Improve" in the category of relations with others. On October 5, 1979, while a night plant operator at Clearwater High School, Respondent was placed on a 90 day probationary period after using profanity and being insubordinate to his immediate supervisor. On January 11, 1980, the principal of Clearwater High School requested that the Superintendent of the Pinellas County school system initiate the termination of Respondent for failing to cooperate with fellow workers, and reporting that work was done when in fact it had not been done. Prior to any action being taken to terminate Respondent in 1980, Dr. Ronald F. Stone interceded with the Superintendent on Respondent's behalf. It was Dr. Stone's opinion that Respondent's difficulties in cooperating with his fellow workers were due to the larger and more complex nature of the plant operator work at a high school, and Stone arranged to have him transferred to an elementary school where he has been subsequently employed. Respondent's employment was covered by the terms of the collective bargaining agreement between the International Brotherhood of Firemen and Oilers (IBFO) and the Petitioner for the years 1985 through 1988. The IBFO agreement states, in Article 11 that: . . . except as expressly provided in this agreement, the determination and administration of school policy, the operation and management of the schools and the direction of employees are vested exclusively in the Board. The IBFO agreement does not set forth any definition of the grounds for which the Petitioner may discharge IBFO employees, including plant operators. However, the practice of "progressive" discipline is specifically recognized at Article 29, Section G(2). On January 22, 1987, the Office of the State Attorney for the Sixth Judicial Circuit for the State of Florida, in and for Pinellas County Florida, filed an Information in Circuit Criminal Case No. 87-695CFANO, alleging the Respondent had committed the felony of handling and fondling a child under the age of 16 in a lewd manner. The child involved is currently six years old. On May 27, 1987, Respondent entered a plea of guilty to the lesser included charge of simple battery in Case No. 87-695CFANO, the Court accepted said plea, found him guilty of the lesser included charge of simple battery, withheld adjudication of guilt, and placed him on probation for one year. The Superintendent of the Pinellas County School System has recommended that Respondent's employment be terminated based upon his plea to this charge, and the accumulated effect of his poor performance in this job. There are no plant operator jobs in small, noncomplex facilities, within the Pinellas County school system that would not bring the employee into contact with children. Even working on night shifts in an elementary school, Respondent would be coming into contact with children who are students of the Pinellas County school system. It is the opinion of Dr. Ronald Stone, Executive Assistant Superintendent of Human Resources and Ms. Nancy Zambito, Director of Personnel Service, that the employees of the Pinellas County school system must maintain a public image of respect for school age children, and that the commission of, or entry of a plea of guilty to the charge of any battery on a school age child is inconsistent with said public image and is, therefore, detrimental to the Pinellas County school system. According to his brother, Arthur T. Greer, a lieutenant in the Akron Police Department, Respondent has a learning disability which makes it very difficult for him to communicate. He discussed the entry of a plea of guilty to a simple battery with Respondent before it was entered, and he feels that Respondent entered this plea to avoid a very traumatic experience of testifying in court. However, Respondent has consistently denied improperly touching, fondling or committing a battery on the child. Respondent's immediate supervisor, William J. Johnson, who has supervised him for 5 years, testified that he was a very good, loyal and dependable worker. This testimony was supported by Robert Russell, Plant Operations Supervisor. Johnson also confirmed that Respondent has consistently denied the charges involving the child. In accordance with Article 29 of the IBFO agreement, disciplinary action taken more than two years previous to a current charge cannot be considered by an employee's immediate supervisor in assessing disciplinary action on a current charge. This provision, however, does not limit consideration by the Superintendent or School Board of all prior charges and disciplinary actions when imposing discipline on a current charge. Respondent is under contract for the 1987-1988 school year, but is in the status of suspended without pay, pending a final determination in this cause. He has been suspended without pay since January, 1987 when the information against him was filed in Case No. 87-695CFANO.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order approving the Superintendent's recommendation that disciplinary action be taken against Respondent. However, it is recommended that such action be based solely upon the finding that he is guilty of a simple battery against a child under 16 years of age. Accordingly, it is recommended that Respondent be suspended without pay from January, 1987 until the entry of the Final Order herein at which time it is further recommended that Respondent be reinstated to his former position as plant operator. DONE AND ENTERED this 1st day of February, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4131 Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted in Finding of Fact 1. 3-5 Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as not based on competent substantial evidence. Rejected as unnecessary and irrelevant. 10-11 Adopted in Finding of Fact 5. 12 Rejected as unnecessary and cumulative. 13-14 Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. 17-18 Rejected as unnecessary due to Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Rejected as irrelevant and unnecessary. 22-23 Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Rejected as unnecessary and cumulative due to Finding of Fact 9. Rulings on Respondent's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 9. Rejected as simply a statement about evidence which was not presented; and therefore as unnecessary. Adopted in Findings of Fact 2-5, 13 and 14. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618-4688 James R. Stearns, Esquire 1370 Pinehurst Road Dunedin, Florida 34698 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618-4688 =================================================================
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent, Fred J. Miller, currently holds Florida teaching certificate number 150969, covering the areas of elementary education, business education and administration, which is valid through June 30, 1992. At all times material hereto, respondent was employed as a teacher at Miami Park Elementary School in the Dade County School District. In the summer of 1990, S.L., a minor female student, was in respondent's fourth grade class at Miami Park Elementary School. On one occasion during such term, respondent observed that S.L. was not doing her school work and was instead drawing, contrary to instructions he had given earlier in the day. In response, respondent grabbed the paper upon which S.L. was drawing, crumpled it up and directed S.L. to stand in the corner. S.L. then opened the top of her desk to put her books away, and while her head was under the desk top respondent pushed the top down striking the back of S.L.'s head. Such contact apparently hurt S.L., since she then began to cry, but there was no compelling proof offered at hearing from which any reasonable conclusion could be drawn regarding the severity of the blow or any injury sustained. S.B. a minor male student, was also in respondent's fourth grade class at Miami Park Elementary School during the summer of 1990. On two occasions during such term, respondent made physical contact with S.B. The first occasion arose when S.B. and the other students in the class were lined up to go to lunch. During such time, S.B. was apparently talking and whispering to other students and respondent grabbed him by the arm, above the elbow, yanked him out of the line, and made him walk on the side of the line. S.B. averred at hearing that such action hurt and embarrassed him; however, there was no compelling proof regarding the severity of any harm or the degree of any embarrassment beyond what one would reasonably expect from having been disciplined. The second occasion arose when S.B. was apparently not doing his school work and was instead drawing. In response, respondent tore up the drawing, grabbed S.B. by the ear, pulled him up from his seat, and made him stand in the corner. Again, there was no compelling proof regarding the degree of harm, if any, occasioned by such contact, and S.B. offered no testimony that such action on respondent's part caused him to suffer any embarrassment. A.S., a minor male student, was also in respondent's fourth grade class at Miami Park Elementary School during the summer of 1990. At hearing, A.S. offered testimony regarding two occasions on which respondent made physical contact with him. The first occasion arose when A.S. was talking when he should not have been, and respondent pulled him by the ear and made him stand in the corner. There was, however, no proof at hearing that such conduct harmed or embarrassed A.S. The second occasion arose when the respondent "jacked up" A.S.; a phrase used to describe respondent grabbing the front of A.S.'s shirt and pulling him up. No proof was offered regarding the circumstances which surrounded this incident, and no showing of harm or embarrassment to A.S. In addition to the foregoing incidents, S.B. and A.S. also offered testimony regarding other occasions during the summer of 1990 when respondent made physical contact with other students in their fourth grade class. In this regard, S.B. offered testimony that respondent "snatched . . . [E.W.] . . . out of line about two times and yanked his ear too." And, A.S. offered testimony that respondent also "jacked up" other students when they misbehaved in class. There was, however, no proof offered regarding the circumstances surrounding these incidents, and no showing that such students were harmed or embarrassed by respondent's conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered which finds respondent guilty of having violated the provisions of Rule 6B-1.006(3)(a), Florida Administrative Code, and thereby Section 231.28(1)(h), Florida Statutes, with regard to his conduct toward S.L.; which imposes the penalty recommended in paragraph 5 of the foregoing conclusions of law; and, which dismisses all other charges against respondent. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of February 1992. WILLIAM J. KENDRICK 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 27th day of February 1992.
Findings Of Fact Respondent, David L. Smith, is a teaching veteran of twenty years and holds a teacher certificate by Florida. He is employed by Petitioner, the School Board of Pinellas County, as a teacher by means of a continuing contract. During times material, Respondent was assigned as a teacher at Pinellas Park High School. At the beginning of the 1991-92 school year, Respondent's father passed away and Respondent was allowed bereavement leave for a period of approximately eight days. The incidents alleged in Petitioner's charging letter and which is at issue herein occurred over a 5-day period from September 9-13, 1991, after Respondent returned from the burial of his father in the Midwest. During early September 1991, Respondent found a black student, Gregory Mills, sitting in his chair whereupon he replied to the class, "How far to you think I can throw this negro?" The term "negro" is offensive to some black students and Petitioner discourages the use of racial slurs in the school setting. The student to whom the remark was made, Gregory Mills, did not view the remark as offensive and considered that Respondent was making a joke of the incident. Mills view Respondent as a good teacher who gets along well with all students and was particularly concerned about the welfare of minorities, exemplifying such by assisting them in achieving their career objectives. At least one student, Robia Brown, who was in Respondent's class when Respondent made the "negro" remark to Mills thought that Respondent used the term "nigger" instead of "negro." However, the facts failed to support Robia Brown's recollection and it was not borne out by the testimony of Respondent and the student to whom it was directed, Gregory Mills. During times material, Bihn Vo was an oriental student at Pinellas Park and was an office assistant whose duties included taking messages and information from the office to individual classrooms. On one occasion following September 9, 1991, Vo was delivering information to Respondent's classroom. When Vo entered the wrong door, Respondent replied, "What do you want, you oriental son of a bitch?" On a separate occasion during early September 1991, information was delivered to Respondent's classroom for Kelly Slusser, a student. When the file which contained the information was given to Respondent, he threw the open file across the room and remarked, "[I] do not like her anymore." Also, during the same time period, Respondent grabbed Slusser by the neck and pushed her backwards leaving marks on her neck which were later visible by the assistant principal, Pamela Jones. As a result of those incidents, Slusser and another student, Robia Brown, withdrew from Respondent's class. During this period of time in early September 1991, Respondent openly used profanity in the presence of students. On September 9, 1991, Respondent experienced restlessness and an inability to sleep because of the mental state that he was experiencing following his father's burial and the internal strife that was brought upon him by his family members and some chicanery that was ongoing between Respondent and other family members about estate property which his father left. Respondent and his father enjoyed a very close relationship. His father's death was untimely occurring during a period when he (Respondent's father) appeared to have been enjoying good health. Respondent's father would spend most summers with him and they would vacation in and around Central Florida. As a result of the depression that Respondent appeared to suffer following his father's death, he visited his physician, David R. Newsome, M.D., for medication which would allow him to sleep at night. All of the incidents which are at issue occurred over a 5-day period from September 9-13, 1991. Following those incidents, Respondent took an 8-day leave from September 16-27, 1991, and received psychotherapy. On September 27, 1991, Respondent returned to his teaching duties and continued his employment with Petitioner until October 19, 1991, without further incident, at which time he was suspended by Petitioner. It is undisputed that Respondent was a popular teacher who often kidded with students. He appeared sleepy and drowsy during early September 1991 and at least one of Petitioner's supervisory employees questioned him about his well-being and suggested that he request administrative leave, which he did. Respondent's actions during the period September 9-13, 1991, came about as a result of his despondency over his father's death and he received medical treatment which appeared to have alleviated the problem. Respondent enjoys teaching and it does not appear that his effectiveness has been reduced to the point whereby he would be an ineffective teacher if he is afforded an opportunity to return to a classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: 1. Petitioner enter a Final Order (1) reversing its recommendation that Respondent be dismissed from his position of employment with Petitioner as an instructional employee, (2) that Respondent be placed on probation for a period of one (1) year under terms and conditions designed to assure that no further similar acts/occurrences that were displayed by him in September 1991 are manifested, and (3) that Respondent be reinstated with all other rights and benefits of a tenured instructor employed by continuing contract with the Pinellas County School Board. DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: BRUCE P TAYLOR ESQ SCHOOL BOARD ATTORNEY PINELLAS COUNTY SCHOOLS PO BOX 2942 LARGO FL 34649 2942 LAWRENCE D BLACK ESQ 650 SEMINOLE BLVD LARGO FL 34640 3625 J HOWARD HINESLEY SUPERINTENDENT OF SCHOOLS PINELLAS COUNTY SCHOOLS PO BOX 2942 LARGO FL 34649 2942 BETTY CASTOR COMMISSIONER OF EDUCATION THE CAPITOL TALLAHASSEE FL 32399 JAMES E. BRADWELL 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 29th day of May, 1992.
The Issue Whether Respondent violated sections 1012.795(1)(c), (g) and (j), Florida Statutes (2010),1/ and Florida Administrative Code Rule 6B-1.006(3)(a), as alleged in the Administrative Complaint, and, if so, what discipline should be imposed.
Findings Of Fact Mr. Ferrier holds Florida Educator’s Certificate 864022, covering the areas of educational leadership, elementary education, and middle grades integrated curriculum, which is valid through June 30, 2012. At all times pertinent to this case, Mr. Ferrier was employed as a teacher at either Pinellas Park Middle School (Pinellas Park) or Seminole Middle School (Seminole) in the Pinellas County School District (School District). Petitioner, Dr. Eric Smith, at all times pertinent to this case, is acting as the Florida Commissioner of Education, pursuant to his authority in section 1012.796(6). Mr. Ferrier began teaching at Pinellas Park in the 2006- 2007 school year. The record shows by clear and convincing evidence that Mr. Ferrier’s performance during the three school years, 2006-2007, 2007-2008, and 2008-2009, was characterized by a lack of organization, failure to effectively communicate with parents and students, failure to provide students with grades and collect school work, and discord. Ms. Gorman, an assistant principal for Pinellas Park, was Mr. Ferrier’s immediate supervisor. She evaluated Mr. Ferrier’s performance for the three years that he taught at Pinellas Park. Ms. Gorman’s first evaluation of Mr. Ferrier for the 2006-2007 school year shows that he earned a score of "1" which indicates Mr. Ferrier was satisfactory. A rating less than level "1" is deemed unsatisfactory. Further, the 2006-2007 evaluation shows that Ms. Gorman expected Mr. Ferrier to make progress in 11 out of 23 areas she assessed in the evaluation. The evaluation form contained 25 areas for assessment. Mr. Ferrier’s evaluation shows that Ms. Gorman left two assessment areas blank. For the 2007-2008 school year, Ms. Gorman rated Mr. Ferrier at a level "2" with progress expected in 10 of the 25 areas assessed. Mr. Ferrier’s 2007-2008 evaluation showed that he was satisfactory. For the 2008-2009 school year, Ms. Gorman rated Mr. Ferrier as not meeting the minimum expectations for teaching. Out of the 25 measured categories, Ms. Gorman rated Mr. Ferrier as not meeting expectation in 17 categories. Mr. Ferrier failed to meet expectations for subject knowledge; instructional method; respect for students, parents, and colleagues; engaging students; and use of technology in the classroom. Mr. Ferrier’s tenure at Pinellas Park was also characterized by repeated failures to answer calls made by parents, disorganization, poor attendance at meetings, arriving to school and classes late, and not acting as a professional in dealing with colleagues. Ms. Witcher, the Pinellas Park principal, provided credible testimony showing Mr. Ferrier’s disorganization and propensity for arriving late to school. For example, in the 2008-2009 school year, on the first day of school for returning teachers, Mr. Ferrier arrived at noon as opposed to 8:30 a.m. When asked by Ms. Witcher why he was late, Mr. Ferrier explained that he did not know that school began on that date. Mr. Ferrier’s tardiness was indicative of his behavior. Ms. Witcher clearly testified that on a "few occasions during the first and second year . . . he was so tardy, I had to go down and open the classroom door, let the kids in and wait for him." The record clearly also shows that Mr. Ferrier failed to be responsive to parent concerns about their children. Ms. Northcutt, the guidance counselor for Pinellas Park, provided credible testimony showing that Mr. Ferrier failed to return parent phone calls, failed to attend parent-teacher meetings, and, if Mr. Ferrier did attend the meeting, he was disorganized and unprepared. The frequency of parents calling Ms. Northcutt to ask Mr. Ferrier to contact them became so great that she "felt almost like a personal secretary to Mr. Ferrier," asking him to return phone calls. In addition to being unresponsive to phone calls, the record clearly shows, through Ms. Northcutt’s testimony and e-mails admitted into evidence, that Mr. Ferrier either failed to show up for parent-teacher conferences, or was late and unprepared if he did attend the conference. Parents would contact Ms. Northcutt in her capacity as the guidance counselor because the parents had concerns about Mr. Ferrier’s teaching and grading. Mr. Ferrier would routinely fail to timely enter grades of assignments into the computer system so that parents could check their child’s progress. The record clearly shows that Mr. Ferrier lacked insight into his professional shortcomings. The record clearly showed that Mr. Ferrier was offered assistance to help him become an organized and effective teacher, but failed to avail himself of the assistance. Further, Mr. Ferrier objected to Ms. Witcher’s direction that he not coach the volleyball team and concentrate on teaching. In response to this directive, Mr. Ferrier encouraged parents of the volleyball players to contact Ms. Witcher to change her decision. The record also shows that, during Mr. Ferrier’s tenure at Pinellas Park, he did not act as a professional in dealing with colleagues. This finding is based on the events concerning Mr. Ferrier’s placement on administrative leave while the School District investigated him for bullying a co-worker, and his subsequent action after returning from administrative leave. Ms. Northcutt credibly testified that, based on Mr. Ferrier’s repeated failures to either attend parent-teacher conferences or be on time for them, she began to document these actions and inform Ms. Witcher. At one parent-teacher conference, Ms. Northcutt noted that Mr. Ferrier arrived late, although the parents had not yet arrived. Mr. Ferrier told Ms. Northcutt to note that he had arrived on time, which she replied that he was still late. Two other teachers, who were to attend the conference, also arrived late. One of the teachers had permission due to a conflict, and the other teacher arrived after attending another conference. Mr. Ferrier demanded that Ms. Northcutt report the two teachers as late. Ms. Northcutt credibly testified that she felt threatened and intimidated by Mr. Ferrier’s confrontational behavior. She reported the incident to Ms. Witcher, who referred the incident to the School District, and an investigation was begun. The School District placed Mr. Ferrier on administrative leave, and Ms. Witcher informed Mr. Ferrier that he was to leave the campus quietly. As Mr. Ferrier was leaving the campus, he told everyone that he encountered that he was accused of bullying and that he would return. Ms. Witcher felt that Mr. Ferrier’s actions were divisive and sought to undermine her new administration at the school. When Mr. Ferrier returned to the school from the administrative leave, Mr. Lott, the School District’s administrator for the Office of Professional Standards, informed Mr. Ferrier to be very careful in his interactions with Ms. Northcutt. Within two days of his return, Mr. Ferrier sent all of the Pinellas Park personnel an e-mail stating that he had been wrongly accused of bullying and that he had been exonerated. Mr. Lott found this action to be inappropriate and a continuation of Mr. Ferrier’s efforts to bully Ms. Northcutt. Consequently, based on this action, Mr. Ferrier received a written reprimand and was involuntarily transferred from Pinellas Park to Seminole. The purpose of transferring Mr. Ferrier to Seminole was to provide him with a fresh start. Unfortunately, the record clearly shows that Mr. Ferrier’s short tenure at Seminole was again characterized by ineffective teaching, lack of knowledge of materials he was expected to teach, lack of communication with parents, tardiness, and failure to follow directions to become an effective teacher. Mr. Lechner, the principal at Seminole, assigned Mr. Ferrier to teach regular science classes and three advanced honor science classes. The parents at Seminole are actively involved in their children’s education. Thus, many of Mr. Ferrier’s short-comings were quickly brought to the attention of Mr. Lechner. The record shows that Mr. Lechner was pro-active in assessing Mr. Ferrier’s teaching, offering Mr. Ferrier assistance to become an effective teacher, and ultimately removing Mr. Ferrier from the classroom. The record clearly shows that Mr. Ferrier failed to carry out his duties as a teacher. Specifically, the evidence clearly showed the following instances: Mr. Ferrier was disorganized in the classroom. Mr. Ferrier’s disorganization in the classroom was apparent from the very beginning of his tenure at Seminole. During an open house for parents, Mr. Ferrier, in addressing parents of honor students, did not have a syllabus for the class, pointed out text books that he stated the class probably would not use, and discussed at length discipline issues with the parents. The record shows, however, that honor students typically did not cause discipline problems. Mr. Ferrier’s disorganization quickly led students to becoming frustrated in the classroom and parents complaining to Mr. Lechner. Further, this disorganization was reflected in Mr. Ferrier’s losing assignments, failing to properly log grades into the school computer system so that parents could access the grades, and losing test results. Mr. Ferrier’s disorganization in the classroom was further documented by Mr. Lechner, who placed Mr. Ferrier on a Professional Service Contract Probation for 90 days during the school year, beginning on September 28, 2009. Mr. Lechner conducted personal observations of Mr. Ferrier’s instruction and found it disorganized, confusing, and resulting in students becoming frustrated. Mr. Lechner gave Mr. Ferrier specific instructions on how to improve his teaching, but Mr. Ferrier failed to follow the instructions. Mr. Ferrier continued to be tardy to class and miss important faculty meetings. The record shows through Mr. Lechner’s testimony that Mr. Ferrier missed the teachers’ mandatory first professional learning community meeting. Although Mr. Lechner could not remember the reason that Mr. Ferrier gave for missing the meeting, Mr. Lechner testified that Mr. Ferrier "always had an excuse." Based on Mr. Lechner’s answer, it was clear that Mr. Ferrier made excuses for his failures, as opposed to acknowledging his mistakes. The record further showed that Mr. Ferrier’s tardiness often would extend into the day. The testimony showed that Mr. Ferrier would leave campus and return from lunch 15 minutes late, thus, delaying instruction. As a result of Mr. Ferrier’s habitual tardiness, Mr. Lechner required Mr. Ferrier to use a sign-in and sign-out log. Mr. Ferrier used ineffective instructional methods and did not have a grasp of the material that he was to teach. The parents and students, who testified, were unanimous in their consensus that Mr. Ferrier failed to teach anything. Mr. Ferrier’s failure to teach resulted in one student having to "steal" one of the text books that Mr. Ferrier was not using and teach herself physical science. Further, the testimony was clear that, after Mr. Ferrier was relieved of his teaching duties, the students had to "cram" a year’s worth of science into half a school year. In essence, Mr. Ferrier cheated the students out of an education. The conclusion that Mr. Ferrier used ineffective instructional methods and did not have a grasp of the material that he was to teach is supported by the testimony of Ms. Lamy and Mr. Lechner. The record clearly showed that Mr. Ferrier used "bell work" for a significant period of the teaching time. "Bell work" was defined as work given to students for the first few minutes of class to engage them immediately. Ms. Lamy, who was the School District’s supervisor for secondary science, conducted an in-classroom observation of Mr. Ferrier’s teaching at Seminole. Ms. Lamy noted that Mr. Ferrier used "bell work" for almost the entire class time. As a result, Mr. Ferrier did not teach. Further, Ms. Lamy observed that Mr. Ferrier did not have control of his class and did not have an adequate lesson plan. Based on her observations, Ms. Lamy made recommendations for Mr. Ferrier on handling the classroom and preparing lesson plans. Unfortunately, the record shows that Mr. Ferrier did not take full advantage of the help being offered to him. Mr. Lechner’s testimony also provided examples from classroom observations that demonstrated Mr. Ferrier’s poor instructional methods and lack of understanding of the material he was supposed to teach. For example, Mr. Lechner described a laboratory experiment conducted by Mr. Ferrier. Mr. Ferrier attempted to conduct an experiment demonstrating how an object could change physical states by melting a candy bar. During the experiment, Mr. Ferrier did not use safety gloves when attempting to melt the chocolate bar. Because the chocolate bar did not melt quickly, Mr. Ferrier left the experiment and never came back to it or the concept behind the experiment. According to Mr. Lechner, Mr. Ferrier modeled poor safety for the students by not using safety gloves and leaving the flame on the candy bar while he moved to another subject, and Mr. Ferrier did not teach the concept behind the experiment. The record showed that Mr. Ferrier would use ineffective methods to teach, such as relying on videos. In one instance, Mr. Ferrier used videos of Michael Jackson and throwing a wadded-up piece of paper in order to demonstrate motion. Finally, in December 2009, during an observation, Mr. Lechner observed Mr. Ferrier teach the students a wrong formula concerning distance over time, which was not corrected until the error was pointed out by a student. Mr. Ferrier did not manage work assignments and tests and failed to properly record grades. The record shows that students would turn in work, but the work would not be graded or posted into the school’s computer system so that parents and students could access the information. Further, parents and students complained to Mr. Lechner about erroneous grades, missing grades or assignments, or no grades for tests that had been completed, as well as grades which were either excessively high or excessively low. Mr. Ferrier failed to respond to parental inquiries and was unprepared and untimely when attending parent-teacher meetings. One parent testified about attending a parent-teacher conference, with Mr. Lechner, where Mr. Ferrier failed to show up. Mr. Ferrier’s disorganization resulted in him failing to turn students’ answer sheets for mandatory progress monitoring tests into the district office. As Ms. Lamy explained, the state required school districts to turn in students’ answer sheets from the test to the Department by December 15, 2010. When the School District started receiving feedback from the tests, Ms. Lamy learned that Mr. Ferrier had not turned in the answer sheets. Subsequently, Mr. Ferrier turned in the answer sheets on or near January 6, 2011. Based on Mr. Ferrier’s actions, the School District was not in compliance with the state-ordered mandate. On January 19, 2011, after the 90-day probation period, Mr. Lechner evaluated Mr. Ferrier as not meeting the minimum expectations for teaching. Mr. Ferrier did not meet expectations in 23 of 25 categories, including the areas of subject knowledge, instructional methods, respect for students and parents, engaging students, use of technology, classroom discipline, and organization. Further, Mr. Lechner noted, based on his observations, that Mr. Ferrier continued to be disorganized, his directions were not clear, he was causing confusion, and he was returning papers to students without feedback. The record shows that well into the 90-day probation Mr. Ferrier finally sought assistance, at the insistence of Mr. Lechner, from the Professional Development and Improvement Network to help him become a better teacher. Unfortunately, the record shows that Mr. Ferrier’s teaching ability did not improve and that he continued with many of the same problems that he had at Pinellas Park. The record shows that Mr. Ferrier has no prior disciplinary history with the Florida Education Practices Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Ferrier violated sections 1012.795(1)(c), 1012.795(1)(g), and 1012.795(1)(j) and rules 6B-1.006(3)(a) and that Mr. Ferrier’s educator’s certificate be revoked for two years followed by a period of three years’ probation under terms and conditions deemed appropriate. DONE AND ENTERED this 9th day of March, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 9th day of March, 2012.
The Issue Whether Respondent, Ullyses Wynn, violated Pinellas County School Board policies related to unsatisfactory performance, misconduct, and insubordination and, if so, whether the violations constitute cause for his termination as a plant operator.
Findings Of Fact Beginning July 5, 1994, and at all times pertinent to this proceeding, Respondent, Ullyses Wynn (Respondent), was employed by Petitioner, Pinellas County School Board (School Board), as a plant operator at Gibbs High School. As a plant operator, at Gibbs High School, Respondent was responsible for cleaning designated areas of the school, including Buildings One and Four. In addition to cleaning these buildings, Respondent's duties included helping other crew members on his shift to clean the cafeteria. Respondent was also required to participate in “gang cleaning.” Gang cleaning is a term used when one crew member is absent and the crew members on duty join together to complete the duties of the absent crew member. At all times relevant hereto, Mark Sprecher was the Head Plant Operator at Gibbs High School. In that capacity, Mr. Sprecher was responsible for assigning and supervising the work of all plant operators and the night foreman. When the regularly assigned night foreman was not on duty, Mr. Sprecher assigned or designated the plant operator who would perform those tasks in his or her absence. 4. At all times relevant hereto, Freddie Fussell was the night foreman at Gibbs High School and was Respondent’s direct supervisor. At all times relevant hereto, Wayne Nundy was the assistant principal at Gibbs High School. In that capacity, Mr. Nundy’s responsibilities included supervising maintenance of the physical facility as well as the plant operators. In order to evaluate the job performance of plant operators, Mr. Sprecher regularly completed quality control sheets after inspecting areas cleaned by plant operators. The form, issued at the district level, is an evaluative tool designed to record areas of satisfactory as well as unsatisfactory performance. When Respondent initially began working at Gibbs High School, problems related to Respondent’s work surfaced, but were not documented. However, after about six months, it soon became evident to Mr. Sprecher that merely talking to Respondent about the problems related to his job performance was not effective and that formal disciplinary action would need to be taken. On May 25, 1995, Mr. Sprecher issued a reprimand to Respondent for excessive absences. Between January 1995 and May 1995, Respondent missed five and one-half days from work. This absentee rate is considered excessive. To the extent that Respondent is absent from work, his areas must be cleaned by other crew members, thereby reducing the amount of time that they can spend cleaning their designated areas. Due to his excessive absences, Mr. Sprecher met with Respondent for a summary conference and issued the reprimand. On June 1, 1995, a maintenance man replaced some of the ceiling tiles in the Gibbs High School gym. After completing the job, the maintenance man removed the large pieces of old ceiling tile that were on the floor. However, some debris from tile replacement project remained on the gym floor. Later that day, when Mr. Sprecher observed the debris on the gym floor, he directed Respondent to clean up the debris. The next day, while in the gym, Mr. Sprecher noticed that the debris was still on the gym floor, and again directed Respondent to clean it up. Respondent told Mr. Sprecher that he would not clean up the debris because that was not his job, and, in fact, did not clean it up. On January 8, 1996, Respondent left his assigned area during his shift to watch a basketball game in the Gibbs High School gym. When told to return to work by his supervisor, Night Foreman Fussell, Respondent began to argue with Mr. Fussell. The disagreement became so heated that the school resource officer had to intervene. Following this incident, Respondent received a county-level reprimand for poor job performance and insubordination. This letter of reprimand indicated that further problems in these areas may result in further disciplinary action, and that such action "may include suspension or dismissal." On or about March 15, 1996, Mr. Sprecher and Respondent’s direct supervisor, Mr. Fussell, made random inspections of the classrooms to determine if they were cleaned properly. The inspection of classrooms in Respondent’s building revealed that the carpets had not been vacuumed; the pencil sharpeners had not been emptied; and the chalkboards had not been cleaned. These cleaning deficiencies were noted on quality control forms and shared with Respondent during a conference. On or about March 15, 1996, and after the conference, Mr. Sprecher issued a warning letter to Respondent regarding the cleaning deficiencies. During the conference, Respondent did not deny the cited cleaning deficiencies. Rather, Respondent claimed that, because his area was so large, it was impossible for him to clean it during his shift. Thereafter, Mr. Sprecher checked the square footage of Respondent’s area and determined that Respondent’s assigned work area was actually 2800 square feet less than that recommended by the employees' union and the school district. On March 19, 1996, Mr. Nandy, accompanied by Mr. Sprecher, inspected Building One. Mr. Nandy’s observed that Respondent had failed to carry out his assigned cleaning responsibilities. By failing to satisfactorily clean his assigned areas, Respondent had completely disregarded instructions given during the previous conference with Mr. Sprecher and in the warning letter. During the March 19, 1996, inspection of Building One, numerous cleaning deficiencies were found. Specifically, the following cleaning deficiencies were observed in classrooms assigned to Respondent: low dusting not done; pencil sharpeners not emptied; chalkboards not cleaned; chalk trays not cleaned; floor not spot-mopped in room where coffee had spilled; furniture not spot-cleaned; graffiti on walls not removed; and window sills and audio visual screen not dusted. As a result of these cleaning deficiencies and the previous warning issued to Respondent, Mr. Nandy issued a school-level reprimand to Respondent on March 22, 1996, for insubordination and poor job performance. The reprimand stated that should similar problems occur in the future, Respondent might be subjected to further disciplinary action. On September 27, 1996, Mr. Sprecher observed several deficiencies in the second floor boys' bathrooms assigned to Respondent. There were cigarette butts and paper towels on the bathroom floor and urine in the toilets. Although the second floor bathrooms are usually locked and not normally used by students, Respondent was responsible for checking and cleaning his entire assigned work area. Later that day, Mr. Sprecher wrote a note to Respondent pointing out the cleaning deficiencies and indicating that Respondent had not cleaned all of his assigned areas the previous night. October 18, 1996, was designated a “Pro-Ed” day in the Pinellas County School District. On these days, students do not attend school. Because students are not in school, all plant operators work from approximately 9:00 a.m. to 5:30 p.m., and are expected to do more extensive cleaning than can be done on days that students are in school. On the morning of October 18, 1996, Mr. Sprecher accompanied Respondent to Building Four to point out several cleaning deficiencies. As a result of deficiencies observed on that day, Mr. Sprecher directed Respondent to clean the graffiti off the wall and paper towel dispenser in the boys' bathroom; clean the stairs and stair treads; pick up the trash on the floor; and vacuum the carpets. These deficiencies required Respondent’s immediate attention and were all tasks that Respondent should have completed the night before. In response to Mr. Sprecher’s directive, Respondent became argumentative with and enraged at Mr. Sprecher. Respondent yelled at and accused Mr. Sprecher of “picking on" him. On October 18, 1996, after this encounter with Respondent, Mr. Sprecher wrote a Foreman’s Complaint to Mr. Nundy, the assistant principal, regarding cleaning deficiencies in Respondent’s assigned area in Building Four. In the complaint to Assistant Principal Nundy, Mr. Sprecher stated that he found it impossible to talk to, reason with, or give simple directions to Respondent. Mr. Sprecher further stated that he was verbally abused, and given no respect by Respondent. On Monday morning, October 21, 1996, Mr. Sprecher checked the area that had been assigned to Respondent. Upon inspection, Mr. Sprecher found that the cleaning he had directed Respondent to complete on October 18, 1996, had not been done. Also, many of the classrooms in Respondent’s area had not been cleaned. Mr. Sprecher noted these deficiencies on the quality control sheets completed for Respondent’s area. On October 22, 1996, Mr. Sprecher wrote a Foreman’s Complaint to Assistant Principal Nundy stating that the specific items Respondent had been directed to complete on the October 18, 1996, had not been done, Later, on October 22, 1996, Mr. Sprecher and Mr. Fussell met with Respondent and talked with him about his failure to complete the assignments. Respondent offered no reason for his failure to perform his assigned tasks. On November 7, 1996, a Foreman’s Complaint was made to the Gibbs High School principal, Ms. Shorter, indicating that Respondent had been involved in a conflict with one of the plant operators in the cafeteria. This complaint was based on an incident that occurred when the entire twelve-member crew was cleaning the cafeteria. Pursuant to instructions of Foreman Fussell, all crew members were required to simultaneously mop the cafeteria, beginning in the front of the cafeteria and moving to the back. Respondent refused to mop in the same direction as the other plant operators, and insisted on mopping in the opposite direction from the other crew members. When Mr. Sprecher requested that Respondent perform the task as directed by Foreman Fussell, Respondent became upset and threw a cup of water and ice into the air and left the cafeteria. It was Respondent’s responsibility to lock all of the classrooms in Building Four. Nonetheless, on November 7, 1996, a complaint was made by the teacher assigned to Room 406, Building Four, that her classroom, had been left open the night before. Respondent’s failure to secure the room was of particular concern to the teacher because there were several new computers in the classroom. On November 12, 1996, while on duty at Gibbs High School, Respondent became engaged in a heated verbal confrontation with Mr. Willie Jones, another plant operator. The verbal exchange took place in the maintenance shop in the presence of other crew members working the night shift. At one point during the argument, Respondent pulled a box cutter from his pocket and moved toward the table where Mr. Jones was sitting. Upon the advice of another plant operator and in an effort to de-escalate the situation, Mr. Jones left the maintenance shop. As the night foreman, one of Mr. Fussell’s responsibilities was to return golf carts used by the school staff to the maintenance shop and to recharge them for the next day. On the evening of November 19, 1996, while Mr. Fussell was driving one of the golf carts into the maintenance shop, Respondent intentionally stood in the path of the golf cart. After Mr. Fussell asked Respondent to move, Respondent reluctantly moved to the side to let Mr. Fussell pass. However, as Mr. Fussell drove the golf cart past Respondent and into the maintenance shop, Respondent called Mr. Fussell a “mother fucker.” At the time Respondent made this comment to his supervisor, other crew members were in or near the maintenance shop and heard Respondent’s comment. On December 5, 1996, Assistant Principal Nundy received a complaint from a female student that graffiti containing her name had been in the girls' bathroom in Building Four for three weeks. Because Respondent's shift had not begun, Mr. Sprecher enlisted the assistance of a Plant Operator from the day crew to remove the graffiti. The crew member immediately removed the graffiti, using a heavy duty cleaning agent. Later that day, Mr. Nandy had a conference with Respondent regarding the graffiti in the girls' bathroom of Building Four. During the conference, Respondent acknowledged that the graffiti had been on the wall, but said it had been there only two weeks. According to Respondent, he had been unable to remove the graffiti with his cleaning supplies. The cleaning agent used by the day crew member to remove the graffiti from the girls' bathroom was readily available to plant operators who requested it from the night foreman. Respondent never informed Foreman Fussell that there was graffiti in the girls' bathroom in Building Four that Respondent was unable to remove. Also, at no time did Respondent ever request from the foreman a cleaner which might remove the graffiti in the girls' bathroom in Building Four. On the following day, December 6, 1996, Mr. Nundy and Mr. Specher checked the bathrooms in Respondent’s assigned areas and found "gang" graffiti in the other three bathrooms. Mr. Specher cleaned the graffiti from all three bathrooms in about five minutes, using cleaning supplies from Respondent’s custodial closet. On December 17, 1996, at about 6:30 a.m., after opening one of the buildings Respondent was responsible for cleaning, Mr. Sprecher observed obscene graffiti on walls in several different locations. Upon discovering the graffiti, Mr. Sprecher immediately cleaned all the graffiti from the walls. Mr. Sprecher was able to remove all the graffiti from the walls in about fifteen minutes with supplies that he obtained from Respondent’s custodial closet. On December 17, 1996, Mr. Specher wrote a note advising Respondent that earlier that day graffiti was again observed in the area assigned to him; that it was Respondent’s responsibility to remove all graffiti nightly; and that Mr. Sprecher had cleaned graffiti off the wall in fifteen minutes with cleaning supplies from Respondent’s custodial closet. Mr. Sprecher gave the note to Respondent, but Respondent refused to sign the note acknowledging that he received it. On January 7, 1997, Mr. Sprecher and Mr. Fussell had a conference with Respondent regarding his attendance. Respondent had been absent from work twelve days in the preceding months. That number of absences over the time period in question was considered excessive. Respondent was given a written notice regard the excessive absences, but he refused to sign it. On February 13, 1997, Respondent told Mr. Sprecher that he had heard someone walking through his building the night before. Respondent stated that he would not be held responsible for his actions if someone came into his building unannounced. It was later discovered that Mr. Fussell had entered the Respondent’s building to set a timer. Mr. Sprecher was concerned by the statements made by Respondent, and was fearful that Respondent would harm someone who had innocently entered the building for a legitimate reason. Mr. Sprecher wrote a letter to Respondent expressing these concerns. In the letter, Mr. Sprecher also reminded Respondent that he was an adult employee of the Pinellas School Board, and would be held responsible for his actions. The following day Mr. Sprecher and Foreman Fussell met with Respondent, discussed the context of the letter, and gave the letter to Respondent. A day or so after he received the letter discussed in paragraph 32 above, Respondent went to the maintenance shop about 3:15 p.m., and approached Mr. Sprecher. With the letter in hand, Respondent asked Sprecher, “What to you mean by this letter?” Mr. Sprecher told Respondent that he had some place to be at 3:30 p.m. and asked if they could discuss the matter the following day. Respondent never answered the question, but instead yelled at Mr. Sprecher and accused him of lying. While Mr. Sprecher was walking away from Respondent to leave the maintenance shop, Mr. Sprecher told Respondent that he would see him later. Respondent replied, “Damn right, you’ll see me later.” On February 14, 1997, Mr. Sprecher wrote a note to Principal Shorter stating that he could no longer supervise Respondent, and that he believed Respondent was a danger to himself and the crew. On February 27, 1997, Respondent complained to Mr. Sprecher that a co-worker was not fulfilling his responsibilities relative to assisting fellow crew members in cleaning the cafeteria. Mr. Sprecher told Respondent that the co-worker would be observed and cautioned if necessary. Respondent immediately became visibly angry, raised his voice, and accused Mr. Sprecher of not reprimanding the plant operator whom Respondent had accused of not helping to clean the cafeteria. Respondent left the cafeteria and did not return to assist other crew members in completing the cafeteria cleanup. As Respondent left the cafeteria, Respondent yelled to Mr. Sprecher, "Write me up." On March 5, 1997, when a crew member was absent, Mr. Sprecher received a complaint that Respondent was not participating in “gang cleaning.” Night Foreman Fussell confirmed that, in fact, Respondent did not participate in the gang cleaning that night and had not done so on several previous occasions. On May 7, 1997, Mr. Sprecher, Mr. Fussell, and Respondent met to discuss and review the quality control sheets detailing recent deficiencies observed in Building Four. Respondent refused to sign the quality control sheets and left the maintenance shop. After this meeting, Respondent was to assist in cleaning the cafeteria. However, Respondent never reported to the cafeteria that day to assist other crew members in cleaning the cafeteria. On three separate days, during the week of May 19, 1997, Respondent was observed sleeping in the auditorium while a play was being rehearsed. At other times during this week, Respondent was in the auditorium watching the rehearsal. Respondent had no duties in connection with the auditorium, and without exception, these incidents occurred when Respondent was on duty and should have been cleaning his assigned area. During the summer, on the morning of June 11, 1997, Respondent was assigned to thoroughly clean a teacher’s small workroom. Completion of this job should have taken approximately two hours. Two hours after Respondent was left in the workroom to perform this assignment, Mr. Sprecher returned to the workroom to check on Respondent’s progress. Mr. Sprecher found that Respondent not only had failed to complete the cleaning as expected, but had done very little cleaning in the workroom. When questioned on his lack of progress, Respondent became agitated and yelled at Mr. Sprecher and stated that he would not be able to finish cleaning this area in an additional two hours. Mr. Sprecher testified that in his twelve years as a Head Plant Operator, Respondent’s performance was the worst that he has ever observed. The Pinellas County School Policy 6Gx52-5.31, entitled “Disciplinary Guidelines for Employees," states that the school district generally follows a system of progressive discipline with its employees and that the severity of the employee’s conduct will determine if all steps will be followed or a recommendation will be made for dismissal. Employee conduct which may lead to a recommendation for suspension and/or dismissal during the term of appointment includes, but is not limited to the following: (1) failure to correct performance deficiencies, (2) insubordination, and (3) misconduct. On December 5, 1996, Respondent was sent a certified letter by Dr. J. Howard Hinesley, Superintendent of Pinellas County Schools, recommending that he be suspended for five days without pay. The recommendation was based on Respondent’s unsatisfactory performance, after receiving reprimands from supervisors; misconduct; and insubordination. On January 10, 1997, Respondent wrote a letter requesting a hearing in response to the superintendent's recommendation for a five-day suspension. After Respondent requested a hearing, but prior to the hearing being conducted, Respondent engaged in additional acts of misconduct and insubordination, by stating to Mr. Sprecher that Respondent would not be responsible for his actions if anyone came into his area without his knowledge, and refusing to perform job-related tasks directly assigned to him by Mr. Sprecher. As a result of Respondent’s further misconduct and insubordination, on April 1, 1997, Respondent was sent a second letter by Dr. Hinesley recommending the Respondent be suspended for a total of seven days, an increase of two days over the original recommendation. Following the recommendation for a seven-day suspension, Respondent engaged in additional acts of misconduct, including occasions when Respondent was observed to be in the auditorium, off-task, sleeping, and watching rehearsals of a play during work time. Respondent also failed to correct performance deficiencies. As a result of Respondent’s further misconduct, Dr. Hinesley sent a letter to Respondent dated August 7, 1997, advising him that Dr. Hinesley would recommend termination of Respondent’s employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County School Board enter the final order dismissing Respondent, Ullyses Wynn, from his position as a plant operator. RECOMMENDED this 14th day of January, 1998, at Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1998. COPIES FURNISHED: C. Wesley Bridges II, Esquire Pinellas County School Board 301 Fourth Street Southwest Post Office Box 33779-2942 Largo, Florida 34649-2942 Ullyses Wynn 2242 Lakeview Avenue South St. Petersburg, Florida 33712 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 33779-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Alvin H. Dana, held Florida Teaching Certificate 100407 qualifying him in the areas of social studies, guidance, junior college, school psychology, and administration and supervision at the elementary, secondary, and junior college level. During the period pertinent hereto, Respondent was employed as a guidance counselor at TSHS in the Pinellas County School District. He resigned from that position in April, 1987 after having been employed there for the 1986- 1987 school year. During the 1986-1987 school year, Jeffrey Moore, age 16 or 17, was an 11th grade student at TSHS. In early April, 1987, Nancy Zambito, Director of School Operations for Areas 1 and 2 of the Pinellas County Schools, and previously Director of personnel Services for the District, received a phone call from a school board member who related that he had received a call from a minister who had related to him that a student at TSHS, Jeff Moore, had a sexual encounter with the guidance counselor at that school, Alvin Dana. Ms. Zambito met with the student, who now resides in Tennessee and who did not testify at the hearing, and his mother on April 6, 1987. During the conversation, Moore stated he had gone in to talk with the Respondent because his parents were in the process of getting a divorce and because he was having some problems with his own sexual identity, a condition not further explained. During this conversation, Respondent allegedly mentioned a bar in Dunedin which Moore knew to be a gay bar. At this point, Moore had to leave Respondent's office to go back to class, and Respondent allegedly asked him to meet him after school, which Moore did. When they met, according to Moore, Dana took him to his, Dana's, apartment, which Moore described, gave him a drink, and then initiated sexual contact with him by kissing him. Moore relates they went into the bedroom and had a sexual relationship. Afterward he claims, they cleaned up, had dinner at a restaurant, and then went to a bar where they had a beer. At about 8:30 P.M., Respondent returned Moore to his own car to go home. That was the only sexual encounter they had, but Respondent allegedly talked to Moore about going with him to Jacksonville. After meeting with Moore and his mother, that same day Ms. Zambito met with Respondent in the principal's office along with the Area 1 Supervisor, the Principal, and a union representative. During the meeting, which, according to Ms. Zambito, took between 45 minutes and an hour, she asked all the questions and in no way, she claims, attempted to place any influence or pressure on Respondent. She explained the complaint from Moore to Dana without telling him who the student was. It was obvious to her, however, that Respondent knew who the student was and, in fact, named him, but denied any improprieties with Moore who, according to Dana, had accused his own pastor of being gay. Ms. Zambito states that Respondent later admitted to her that he had taken Moore to the bar and to his apartment and had provided alcohol to him, in addition to admitting to a sexual relationship with the student. As to that aspect, she claims, Dana contended Moore was the aggressor. Mr. Coe, the Principal, and Mr. Kreiver, the Area Superintendent, who were both present at the meeting with Dana, tend to support Ms. Zambito's testimony. Both claim Dana admitted to having an "affair" or "sexual relationship" with Moore when she confronted him. As a result of this conversation, Ms. Zambito advised Respondent she would report the information to the Superintendent at which point, Respondent indicated he would resign. In fact, Respondent did resign the next day before Ms. Zambito could contact the superintendent. However, she prepared a memorandum of the conference, and mailed the original to the Respondent at his address of record. Ms. Zambito is not sure he received it, but it was not returned. Respondent denies having received it. On September 11, 1987, Mr. Dana pled nolo contendere in the County Court of Pinellas County to one charge of child abuse by furnishing Moore with alcoholic beverages. He was ordered to pay a fine of $250.00 and, inter alia, directed to not engage in teaching or in any other profession where minors will be without disclosure of the conviction to proper authorities. Respondent was a teacher in Sarasota County for ten years and served as a college registrar for seventeen years before his one year in the Pinellas County schools. In all his twenty-eight years in education, he has never been accused of improprieties with students and denies being either bisexual or homosexual. Dana admits to pleading nolo contendere to providing alcohol to a minor and understands that he was found guilty. However, as to the incident in question, he relates a somewhat different story than that reported by Ms. Zambito. He contends that one school day Moore came to him as guidance counselor and related he was having a sexual identity problem, describing himself as a "flaming faggot." Moore said he was considering running away and told Respondent stories of sexual relations he had had with someone in Port Richey at a MacDonald's restaurant. He also mentioned a place in Dunedin where he would go for sex with men. As a result of his conversation with the boy, Respondent feels he convinced him not to run away. After school that day, however, Moore was waiting for him in the parking lot and stated that he needed to talk with him more. Respondent agreed and they went to a restaurant and to a bar where they had two beers for which Respondent paid. On cross examination, Mr. Dana admitted that he took Moore to two bars, The Pro Shop and The Flamingo, both of which were gay bars, and at both of which he bought Moore a beer. According to Dana, the bars were chosen by Moore and Dana did not know they were gay oriented. While admitting to going to the bars and the restaurant with Moore, he denies going to his apartment or to Moore's house. On rebuttal, Ms. Zambito claims he admitted having been in Moore's house in response to her questions. Mr. Kriever recalls this as well. Respondent asserts there was no more to the relationship than his taking the boy for two drinks and while he admits he made a mistake in going with Moore and admits to paying for his beer, he unequivocally states he refused any attempts at sex initiated by Moore and claims none took place. Dana's story of the meeting with Ms. Zambito is somewhat different than hers. He recalls it as lasting ten minutes at the most as opposed to the forty-five minutes to an hour as she stated. He relates she suggested to him that he resign in lieu of being not reappointed the following year. He admitted to her that he went to the bar with Moore and admitted to a "relationship" with him but denies the relationship was sexual in nature, that he told her it was, or that he, at any time, ever had a sexual relation with any student. Dana admits that going to the bar with Moore was stupid but claims he went there out of curiosity. Moore is a very persuasive young man who claimed he wanted to be a journalist. When Moore called himself a flaming faggot, curiosity prompted Dana to go to the bar with him. This is a weak rationalization which does Respondent's position no good. Dana contends he had one or two previous visits with Moore, one of which involved Moore's mother. He believes Moore exaggerates and fantasizes. He describes Moore as a bright, articulate, convincing and conniving individual, and relates he was taken in by Moore's statement of need. Respondent claims Ms. Zambito never asked him if he had had sexual relations with Moore. She asked if he knew the student or could identify any student who would have made such allegations against him. Her questions were general in nature and he does not believe he would have admitted to any acts of sexual misconduct with Moore since he claims he committed none. According to Mr. Kriever, when confronted with the allegations against him, Respondent initially appeared shocked and denied the relationship. Later, he said it was forced upon him and finally, he admitted to a sexual relationship with Moore. The principal, Mr. Coe, related, however, that Dana did not deny the allegations but admitted to a "relationship" with Moore without Ms. Zambito even identifying him by name. These responses come to easily and are far too indefinite to be controlling. If the allegations against Dana are accurate, he would be ineffective in any position in the school district. Educators hold positions of trust and Respondent's actions, if established, constitute a forfeiture of this trust. In the opinion of the principal, Mr. Coe, as a guidance counselor, Dana holds a position of trust which this misconduct clearly violates. The same would be true regarding Respondent's status as a teacher. The trust that administrators and parents must place in anyone in education has been violated by Respondent's misconduct and Respondent could not serve within the system. All the evidence, except Respondent's testimony is in the form of hearsay testimony. Moore did not testify. Other than Respondent, no one who testified was privy to the conversations and relationships between the two or saw them together away from the school grounds. In the instant case, the only evidence that Respondent engaged in sexual activity with Moore comes from the hearsay comments made to Ms. Zambito by Moore who was not present at the hearing. Ms. Zambito's testimony as to Respondent's alleged admissions to a sexual relationship is, to a great degree, con- firmed by that of Coe and Kriever. On the other hand, Respondent unequivocally denies having had a sexual relationship with Moore. This is direct evidence from a party in interest. Considering the evidence as a whole, therefore, it is found that Respondent did provide alcoholic beverages to Moore, a minor, and he showed extremely poor judgement in engaging in an unchaperoned social relationship with a student outside of the school environment and outside of school hours, but the evidence is insufficient to find that he engaged in homosexual activity with him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's Florida Teaching Certificate be revoked for a period of three years. RECOMMENDED this 10th day of November, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2475 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1- 3. Accepted and incorporated herein. 4. Accepted and incorporated herein. 5. Accepted and incorporated herein except for the allegation that Respondent admitted to having sex with the student, which was not proven. 6. Accepted as a recitation of what the student told Ms. Zambito but not as dispositive of the issue. Further, the meeting took place not on April 27, 1987 but on the same day as Ms. Zambito's meeting with Respondent. 7. Accepted and incorporated herein. 8. Rejected as a recitation of testimony and not a Finding of Fact. 9. & 10. Rejected as it pertains to disregarding Respondent's denials. Balance rejected as a recitation of testimony and not a Finding of Fact. 11. & 12. Rejected 13. Accepted and incorporated herein For the Respondent Respondent claims his recitation of the facts is interwoven with his argument. Since they cannot be identified with specificity, they are not addressed individually. COPIES FURNISHED: J. David Holder, Esquire 325 John Knox Road Building C, Number 135 Tallahassee, Florida 32303 Lawrence D. Black, Esquire 152 8th Avenue Southwest Largo, Florida 34640 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399-0400
