The Issue The issue in this case is whether the Petitioner, the Pinellas County School Board, should suspend the Respondent, Dawn McIntyre, from her employment as a teacher for three days without pay on charges contained in the July 11,1990, letter from the School Superintendent, Scott N. Rose. 1/ The letter charges: (1) that, on one occasion during the 1987-88 school year, the Respondent pushed a teacher aide; (2) that on May 9, 1990, the Respondent struck another teacher aide with a lamp; and (3) that the Respondent also handled two students in a rough, punitive manner during May and June, 1990. The charging letter asserts that the Respondent's alleged conduct constitutes misconduct in office.
Findings Of Fact The Respondent, Dawn McIntyre, has been a teacher at Safety Harbor Elementary School since the 1984-85 school year. Until this year, she taught pre-kindergarten emotionally handicapped children. For the 1990-91 school year, she accepted a smaller class of children with varying exceptionalities. She has an annual professional service contract, not a continuing contract. She is certified to teach early childhood, mental retardation and special learning disabilies. During the 1987-88 school year, the Respondent became involved in a confrontation with an aide at school. The seeds of this confrontation were sown when the aide and the teacher with whom she worked presented flowers to the school principal in appreciation for the efforts of the principal in saving the aide's job, which was in jeopardy of being eliminated for budgetary reasons. Shortly afterwards, in conversation in the teacher's lounge, the Respondent labeled the aide as a "[expletive deleted] brown-nose." This comment was reported to the aide by a participant in the conversation, and the aide was upset by it. She decided to confront the Respondent and explain the circumstances to demonstrate that the label was unfair. When she confronted the Respondent, the Respondent did not give her an opportunity to explain but rather pushed the aide on the shoulder with the palm of her hand and rudely insisted that the label fit. In January, 1990, the Respondent began working with a new aide. Although the new aide was unfamiliar with the work and needed some on-the-job training, the Respondent worked reasonably well with the aide until, in late April or early May, the aide volunteered to help another teacher who did not have an aide and needed assistance. The Respondent objected, taking the position that the Respondent needed all of the aide's available time to help in the Respondent's class. The Respondent told the aide that the aide's volunteering for another teacher would have to be put on her evaluation as an adverse comment. From that point forward, the Respondent began to treat the aide more and more poorly, and the Respondent's working relationship with the aide quickly deteriorated to the point that the aide felt compelled to seek the advice of her union representative on how to handle the situation. While the aide's handling of the situation may have contributed marginally to the deterioration of the working relationship between the two, the breakdown would not have happened without the Respondent's inappropriate behavior. On or about May 9, 1990, the Respondent instructed the aide to take only half of the children's hour rest period for lunch and use the rest to do paperwork in the classroom. After her lunch, the aide began to arrange a place to do the paperwork. The Respondent objected to the way the aide set a desk lamp on the table the aide was going to work at, thinking it threw too much light on where some of the children were sleeping, and she told the aide to move the lamp. When the aide did not move fast enough for the Respondent's liking, the Respondent rushed over to the table in disgust and snatched the lamp off the table before the aide could move it. In the process, she shouldered and elbowed the aide out of the way, knocking her temporarily off balance and accidentally grazing the aide's elbow with the lamp. Greatly upset by the way in which the Respondent handled the situation, together with the cumulative effect of the Respondent's prior inappropriate behavior, the aide immediately left the classroom without saying anything to the Respondent and reported the incident to the administration, in accordance with the advice of her union representative. The aide refused to continue to work with the Respondent and was reassigned. Two of the three other available aides also refused to work with the Respondent. One was the aide whom the Respondent had pushed and called a "[expletive deleted] brown-nose," and she refused to work with the Respondent partly because of the pushing incident. The other had not been involved personally in any unpleasant confrontations with the Respondent but was uncomfortable working with the Respondent in light of the incidents involving others that had been related to her. The third aide was only part-time and was too new to be thrust into the gap, in the opinion of the school principal. The principal had to go to the aides' union to force one of the other aides to work with the Respondent for the rest of the school year. As it turned out, the aide forced to work with the Respondent used sick leave so as to work with the Respondent as little as possible, and aides had to be put in the classroom on a rotating basis. On or about May 10, 1990, while in the process of escorting her class from the lunchroom back to the classroom, the Respondent walked up to one of her more difficult pupils, who had just spent most of the lunch period in "time- out," grasped him around the chin, with her thumb on one cheek and her fingers on the other cheek, applying more pressure than necessary to merely get his attention, and spoke to him sternly. This was done in the presence of the other children in the class and within sight of other children and adults in the lunchroom. On or about June 5, 1990, while again in the lunchroom, the Respondent walked up to another pupil from her class, who was sitting at the "time-out table," and reprimanded him sternly for untruthfully having told her that he had eaten his lunch. As she reprimanded the pupil, she squeezed his ear between her fingers and twisted it as part of the discipline. This, too, was done within sight of the children and adults in the lunchroom. Although perhaps technically corporal punishment in violation of School Board policy, the facts described in Findings 6 and 7, above, can be described as minor, or even marginal, violations. Neither child was injured, and neither complained to any adult that the Respondent had hurt them. (The child involved in the June 5th incident said that his ear hurt a little, but that was only when directly asked by one of the adults who witnessed the incident.) The "punishment" was so minor as to leave question whether it was punishment or just a case of overdoing an effort to get and keep the children's attention. By the time of the final hearing, all of the adult witnesses to these incidents were feuding with the Respondent in some form or fashion, and their testimony describing the incidents could have been slanted by the animosity between them and the Respondent. The Respondent has been and continues to be an effective teacher of pre-kindergarten children with learning disabilities. However, as reflected in the preceding Findings, she unfortunately has been susceptible to improper and unprofessional behavior which has hampered her working relationships with a significant number of her teaching colleagues and has created difficulties for the administration of the school. This has reduced her effectiveness as a teacher. The parties stipulated on the record of the final hearing that, if the charges are proven, a three-day suspension would be the appropriate discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order finding the Respondent guilty of misconduct in office and suspending her for three days without pay. RECOMMENDED this 17th day of December, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 17th day of December, 1990.
The Issue The issue in this proceeding is whether Petitioner should dismiss Respondent as an educational support employee for alleged inappropriate interactions with colleagues, including physical and verbal altercations, failure to correct performance deficiencies, and insubordination.
Findings Of Fact Petitioner employed Respondent as a plant operator from August 17, 1998, until the date of suspension without pay on December 14, 2004. A plant operator is a non-instructional employee responsible for housekeeping and janitorial tasks at the school to which the operator is assigned. From sometime shortly after Respondent began his employment with Petitioner in 1998 through November 2, 2004, Respondent engaged in repeated acts of inappropriate interactions with colleagues, including physical and verbal altercations, failure to correct performance deficiencies, and insubordination. Respondent has a long history of discipline, and efforts to correct his deficiencies have been unsuccessful. Petitioner first assigned Respondent to Forest Lake Elementary School (Forest Lake) and, sometime in November 2004, transferred Respondent to the Palm Harbor University High School (Palm Harbor). The attitude and job performance of Respondent at Forest Lake were inadequate. The principal at Forest Lake issued a letter of reprimand to Respondent in November 2004, and transferred Respondent to Palm Harbor later in the same month. At Palm Harbor, Respondent worked the "evening shift" from 2:30 p.m. until 11:00 p.m. The work performance was satisfactory, and Respondent earned a satisfactory annual appraisal on January 20, 1999, for the 1998-1999 school year. The work performance of Respondent declined through June 1999. Respondent lost productivity, lacked teamwork, complained, and cursed. The night foreman discussed the decline in performance with Respondent and, in an attempt to assist improvement, changed the area of the school for which Respondent was responsible. The night foreman noted in the personnel record that Respondent had lost productivity, lacked teamwork, complained, and cursed. The annual appraisal issued in June 2000, for the 1999-2000 school year indicated a rating of "needs improvement" in quality of work, quantity of work, and attitude. During the 2000-2001 school year, Respondent filed a complaint against the night foreman and unsuccessfully attempted to enlist other plant operators to file similar complaints. Petitioner investigated the complaint, found insufficient evidence to substantiate the complaint, and Respondent did not pursue the complaint. The job performance of Respondent continued to decline. Respondent failed to adequately clean the gym lobby, sometimes left work early, and ignored directions for improvement. The annual appraisal issued in January 2001, for the 2001-2002 school year, rated Respondent as "unsatisfactory" in the quality of work, quantity work, and attitude. The appraisal further indicated that Respondent "needs to improve" in his relations with others, initiative, and judgment. Respondent did not improve his job performance. A teacher complained to the administration about the condition of her classroom, and another plant operator reported that Respondent described the night crew as a "bunch of pussies." Other plant operators requested that they not be assigned to a crew with Respondent. Between February and May 2001, the night foreman counseled Respondent on a number of occasions. Sometime in August 2001, the Head Plant Operator (HPO) reassigned Respondent from Buildings 6 and 8 to Buildings 3 and 11 in an effort to assist Respondent in the improvement of his job performance. Respondent refused alternatives for reassignment to portable classrooms at Palm Harbor or reassignment to a nearby middle school. On September 13, 2001, Respondent smoked on campus during his shift. Respondent also watched television during his shift. Deficiencies in performance continued through September of that year. On October 8, 2001, the principal counseled Respondent about smoking on campus and poor job performance and issued a letter of caution to Respondent. In relevant part, the letter required Respondent to improve his job performance and to refrain from smoking on campus. The annual appraisal issued in January 2002, for the 2002-2003 school year, rated Respondent as "needs to improve" in punctuality. The appraisal rated Respondent as "unsatisfactory" in quality of work, quantity work, relations with others, initiative, judgment, and attitude. The annual appraisal issued in January 2003, for the 2003-2004 school year, rated Respondent as "needs to improve" in quality of work, quantity of work, relations with others, initiative, and judgment. Several areas in job performance showed improvement or were "getting better." The appraisal did not rate Respondent as "unsatisfactory" in any category. In May 2003, Respondent was watching television during work, not staying on task, not adequately cleaning the areas of his responsibility, and not properly stocking restrooms. Respondent exhibited hostility and disdain in response to efforts to assist him in improving his deficiencies. On May 19, 2003, the HPO counseled Respondent and notified Respondent that it was the last verbal warning for Respondent to improve his job performance. On May 27, 2003, the assistant principal at Palm Harbor conducted a meeting with Respondent, the night foreman, and the HPO. The assistant principal created a Success Plan that included guidance for Respondent to improve his job performance. Respondent signed the Success Plan. In July 2003, Respondent was absent from his work on one occasion for several hours. During the month, Respondent cleaned little and took excessive breaks. By July 16, 2003, Respondent had made no progress toward the goals outlined in the Success Plan. The assistant principal again met Respondent and notified Respondent that excessive breaks and absences from his assigned work areas constituted insubordination and misconduct. The assistant principal directed Respondent not to make threatening comments to the night foreman and issued a letter of reprimand that Respondent signed. Respondent continued to work inadequately and to take excessive breaks. On September 4, 2003, Respondent angrily confronted a plant operator who had criticized Respondent for leaving a building door open. Respondent uttered profanities, took several steps toward the co-worker, and made physical contact in a threatening manner. Respondent subsequently returned to his work area. On September 4 and 11, 2003, Respondent failed to empty the trash in a classroom and failed to vacuum the classroom for several days. The condition attracted roaches, and the classroom teacher complained to school administrators. Respondent persisted in failing to add soap to restrooms that Respondent cleaned. In October 2003, Respondent engaged in another angry exchange with a second plant operator. Respondent cursed at his peer and accused the peer of unfair treatment. On October 23, 2003, the assistant principal again met with Respondent, the night foreman, and the HPO to review the progress of Respondent toward the goals in the Success Plan. The assistant principal notified Respondent that the incidents involving profanity, defiance, and insubordination were unacceptable violations of the Success Plan. The assistant principal also discussed other instances of failure to complete tasks on time or not at all. On November 3, 2003, the assistant principal issued a letter of reprimand to Respondent. Respondent refused to sign the letter. On January 7, 2004, the assistant principal again met with Respondent, the night foreman, and the HPO. They focused on three violations of the Success Plan involving Respondent's interactions with others, insubordination, and failure to perform daily tasks. The assistant principal issued another letter of reprimand to Respondent that Respondent signed. On January 8, 2004, Respondent slapped the hand of second plant operator during a confrontation between the two. During the same month, Respondent did not adequately clean and stock restrooms. Respondent also failed to use plastic bags for trash cans in one classroom. The annual appraisal issued in January 2004, for the 2004-2005 school year, rated Respondent as "needs to improve" in areas of job knowledge and punctuality. The appraisal rated Respondent as "unsatisfactory" in the areas of quality of work, quantity of work, relations with others, initiative, judgment, and attitude. Between February 9 and 12, 2004, Respondent failed to clean a men's restroom after repeated instructions to do so by the HPO. Respondent eventually cleaned the restroom, but did so inadequately. In March 2004, Respondent repeatedly failed to lock a classroom he cleaned. In April 2004, Respondent failed to clean tables in another classroom. Respondent continued to clean other areas of responsibility in a deficient manner. In March 2004, Petitioner referred the matter to its Office of Professional Standards (OPS). The OPS administrator offered Respondent a three-day suspension without pay, and Respondent accepted the offer. Respondent served the suspension from April 14 through April 16, 2004. During Respondent's work shift on April 30, 2004, Respondent took breaks early, sat in a plant operations closet, and watched television. During Respondent's work shift on May 4, 2004, Respondent began lunch 35 minutes before the scheduled lunchtime in a dark room and watched television. The night foreman instructed Respondent to work until the normal lunch break. Approximately 20 minutes after the instruction, Respondent was viewing television and not working. Later that evening, Respondent sat in a closet doing nothing. By May 5, 2004, Respondent continued to perform unsatisfactorily. The unsatisfactory job performance continued through May 18, 2004. On May 19, 2004, the assistant principal again met with Respondent, the night foreman, and the HPO. The level of performance by Respondent continued to be unsatisfactory. Respondent refused to vacuum a hallway carpet or to sweep a floor in his area and stated that he had "other work to do." Respondent did not complete assigned tasks. Respondent continued to ignore instructions not to store a vacuum cleaner in a particular room. The assistant principal issued another letter of reprimand to Respondent. On September 8, 2004, Respondent failed to vacuum eight of 17 portable classrooms in a timely manner. Respondent failed to assist another worker in an assigned task. On October 21, 2004, Respondent angrily confronted a third plant operator. On November 2, 2004, Respondent called a fourth plant operator a liar and made physical contact with the worker. It required three attempts by the night foreman before he could separate the two workers. The night foreman reported the incident to the HPO. The HPO directed the foreman to instruct Respondent to go home. Respondent called the foreman a "lying SOB," and Respondent declared that he would "get even." Petitioner placed Respondent on administrative leave with pay during an investigation of the incident. By letter dated November 19, 2004, the Superintendent of the Pinellas County School District (Superintendent) suspended Respondent with pay from November 11 until the next School Board meeting on December 14, 2004. At the meeting, Petitioner adopted the recommendation of dismissal. Petitioner has adopted as a rule "Policy 8:25 Disciplinary Guidelines for Employees" (Policy 8:25) in accordance with Sections 1012.22 and 1012.23, Florida Statutes (2004). The rule provides relevant standards for employee discipline.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the alleged violations and dismissing Respondent from his employment. DONE AND ENTERED this 20th day of July, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2005. COPIES FURNISHED: Michael P. Begeny 62046 Polly Drive Tarpon Springs, Florida 34689 Thomas L. Wittmer, Esquire Pinellas County School Board 301 Fourth Street, Southwest Largo, Florida 33770 Dr. Clayton M. Wilcox, Superintendent Pinellas County School Board Post Office Box 2942 Largo, Florida 33779-2942 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether the Petitioner, the School Board of Pinellas County, should dismiss the Respondent, Mary Stratis, on charges that, while an attendance aide for the Goals Program of Tarpon Springs High School, she withheld information solicited by a School Resource Officer, a uniformed law enforcement officer assigned to the school, in the performance of his duty, or whether it should reinstate her with back pay and pay her attorney fees and costs. 1/
Findings Of Fact On November 21, 1989, Michael Hughes, a Pinellas County Sheriff's Deputy assigned as a School Resource Officer at Tarpon Springs High School, was approached by Barbara Templeton, an officer with the Tarpon Springs Police Department, and was asked to assist her in executing a warrant for the arrest of one of the students at Tarpon Springs High School which the police department had been unable to execute in the community. Deputy Hughes escorted Officer Templeton on the campus and began looking for the student in question. After looking for the student in other places without success, Deputy Hughes partially opened the door to the office of the Respondent, Nary Stratis, an attendance aide for the Goals Program, a dropout prevention program at the school, and poked his head in the partially opened door. As he did, he saw the rear door to the office, which leads to the back door of an adjoining drama classroom, in the process of closing. He asked the Respondent whether she had seen the student for whom he and Officer Templeton were looking. She answered, "No." He then questioned her: "You haven't seen him in the office today?" She again answered, "No." He questioned her a third time: "You haven't seen him at all today?" She repeated the same negative answer. In fact, the student in question had just left the Respondent's office a short time before Deputy Hughes arrived there. He left through the back door and through the drama classroom adjoining the Respondent's office. When he exited the front door of the drama classroom leading to the hallway, he stepped on a metal grate, which made a loud metallic clanging sound. Deputy Hughes heard the sound and peered from the hallway where he and Officer Templeton were standing in front of the Respondent's office door, around the adjacent corner and down the hallway where the metal grate was and saw the student for whom they were looking. The student appeared to be attempting to leave the campus undetected by them. Deputy Hughes called to the student and persuaded him to stop. One or two weeks before, the Respondent had intervened between Deputy Hughes and another student as the two were arguing about a parking ticket Deputy Hughes had written and given to the student. During the conversation between the Respondent and Deputy Hughes that followed that incident, Deputy Hughes warned her not to interfere with his performance of his duties as School Resource Officer. He explained that to do so could expose him, her and others to unnecessary risk of harm and liability. Interference with, or the withholding of pertinent information from, the School Resource Officer in the performance of his duties reflects poor judgment and is potentially dangerous. Under the School Board's disciplinary guidelines, which are published in writing and distributed to all employees, "misconduct" is grounds for discipline, including suspension and dismissal if serious enough, and "misconduct" is defined as conduct "that is serious enough to impair the employee's effectiveness in the school district." As a result of the incident on November 21, 1989, and the poor judgment it reflects, the Respondent's effectiveness as an employee of the School Board has been impaired. Her principal and Deputy Hughes no longer trust her judgment, and the Petitioner's Director of Personnel no longer wishes to expose the Respondent to students in the school system. Contrary to the facts found in this case, the Respondent testified under oath at the hearing that Deputy Hughes' sole question to her when he poked his head in her office door was: "15 [the student he was looking for] in here?" She testified that she answered, "No", but added, "But he was here earlier," but that Deputy Hughes had left before he could hear what she had added to her answer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the School Board of Pinellas County, enter a final order immediately dismissing the Respondent, Mary Stratis, from her employment with the School Board. RECOMMENDED this 8th day of May, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 8th day of May, 1990.
The Issue Whether Petitioner has established "just cause" to terminate Respondent based on the allegation that Respondent had altered a prescription allowing him to obtain refills for Vicodin and that he had submitted the altered prescription to a pharmacy.
Findings Of Fact Mr. Cartwright has been a School District employee since August 4, 2003. Before his suspension in this case, Mr. Cartwright was a fourth grade teacher at G. Weaver Hipps Elementary School. Mr. Cartwright testified that he had a pre-existing back injury, which made him susceptible to injury. Mr. Cartwright explained that he was injured in an automobile accident that occurred in 2000. This back injury apparently left Mr. Cartwright in pain, which was treated with a series of prescriptions. In the Spring of 2009, Mr. Cartwright injured his back while working for the School District. According to Mr. Cartwright, he was helping move equipment out of his classroom and "threw his back out." This injury resulted in him making a workers' compensation claim with the School District and seeking treatment at Lee Convenient Care. Mr. Cartwright also testified about another workers' compensation injury that occurred on January 25, 2010, while he was employed with the School District. It is this January 25, 2010, injury that provides the factual foundation concerning the charges against Mr. Cartwright. Earlier in the school year, on or near January 19, 2010, Mr. Cartwright had exhibited problems with slurred speech and was acting loopy in a classroom. Based on his behavior, Mr. Cartwright was driven home. On January 22, 2010, Mr. Cartwright met with Ranice Monroe (Ms. Monroe) and a representative from the teacher's union about Mr. Cartwright's behavior. Mr. Cartwright explained that his medications had caused his behavior and that it would not happen again. Ms. Monroe informed Mr. Cartwright that the School District was not looking at discipline at that time, but, if anything further occurred, there would be consequences. On January 25, 2010, Mr. Cartwright picked up a box of copy paper from outside his classroom. As he entered the classroom carrying the box, Mr. Cartwright slipped on a liquid, twisted his back, and fell holding the box. Mr. Cartwright testified that he assumed that the liquid on the floor may have been milk or some other liquid that had been spilled during breakfast by one of the students. Mr. Cartwright informed the school that he had been injured, and he went to Lee Convenient Care seeking medical treatment. On January 25, 2010, Karl Friedrich, M.D. (Dr. Friedrich), a physician at Lee Convenient Care wrote, Mr. Cartwright a prescription for Vicodin with the lines on the form for Mr. Cartwright's address, age, and number of refills left blank. After seeing Dr. Friedrich, on January 25, 2010, Mr. Cartwright presented the prescription to a pharmacy technician at the CVS Pharmacy for filling the prescription. At some point, the prescription was altered to authorize two refills. On February 17, 2010, Mr. Cartwright refilled his prescription for the Vicodin at the CVS Pharmacy. On February 18, 2010, Scott LeMaster (Mr. LeMaster), the principal for G. Weaver Hipps Elementary School, asked Mr. Cartwright to meet with him. It was reported to the principal that Mr. Cartwright was having great difficulty in the classroom and with his capability to work with the children. During the meeting, Mr. LeMaster informed Mr. Cartwright that he was worried about Mr. Cartwright and asked if there was something that Mr. Cartwright should tell him. At this point, Mr. Cartwright admitted that he had a problem and that he needed help. Mr. LeMaster contacted Craig Baker (Mr. Baker), from the School District. Mr. Baker is an investigator for the School District and the coordinator for the School District's Department of Professional Standards and Equity. Mr. Baker arrived at the school and observed Mr. Cartwright. Mr. Baker found that Mr. Cartwright exhibited "very jittery, jumpy behavior, rapid speech." Based on these observations and statements made by Mr. Cartwright to Mr. LeMaster, the School District had reasonable suspicion to perform a drug test. Mr. Baker administered the drug test, and, at that point, Mr. Cartwright informed Mr. Baker that the test would be positive for Vicodin. The drug test came back positive for cocaine. Based on Mr. Cartwright's behavior and drug test, he was driven home, placed on suspension with pay, and referred to the School District's Employee Assistance Program pursuant to the School District's Alcohol and Drug Free Workplace policy. Mr. Cartwright successfully completed the Employee Assistance Program on May 11, 2010. On June 4, 2010, Mr. Cartwright received a letter of reprimand for this conduct. On May 11, 2010, the School District's Department of Professional Standards and Equity received allegations from the School District's workers' compensation carrier concerning Mr. Cartwright. Specifically, Paul Kosvich, an investigator for the School District's workers' compensation carrier, voiced suspicions that Mr. Cartwright had falsified his prescription for Vicodin in order to obtain a refill on February 17, 2010. As a result of this allegation, the School District continued Mr. Cartwright's suspension and began an investigation. A copy of the altered prescription showed that, unlike the original prescription entered on January 25, 2010, the altered prescription contained Mr. Cartwright's address, date of birth, and provided for two refills of Vicodin. Based on the determination that Mr. Cartwright had altered the prescription, the School Board determined to seek Mr. Cartwright's termination. Mr. Cartwright testified that, when he was filling the prescription on January 25, 2010, the CVS pharmacy technician informed him that she could not fill the prescription without information concerning his address, date of birth, and refills.1/ According to Mr. Cartwright, the pharmacy technician asked him for his date of birth and address. Mr. Cartwright testified that he saw the pharmacy technician write Mr. Cartwright's address and date of birth on the prescription and that she called Lee Convenient Care about his prescription. Further, Mr. Cartwright testified that he did not see the pharmacy technician write in the number of refills and that he assumed that she had written the number. Finally, Mr. Cartwright denied that he had altered the prescription. Mr. Cartwright's testimony concerning the altercation of the prescription is not credible. Mr. Cartwright's explanation is not credible because the medical records do not support his contention that a CVS pharmacy technician called Lee Convenient Care on January 25, 2010. Although Dr. Friedrich testified that he did not specifically remember Mr. Cartwright, Dr. Friedrich credibly testified that he had not authorized the refill and that it was doubtful that a pharmacy technician had called Lee Convenient Care, as explained by Mr. Cartwright. Dr. Friedrich based his testimony on his review of Mr. Cartwright's medical record at Lee Convenient Care and the typical practice of noting telephone conversations with a pharmacy in the medical records. Specifically, Dr. Friedrich credibly testified that he reviewed Mr. Cartwright's medical records at Lee Convenient Care, and the records showed that he had not authorized a refill for Mr. Cartwright. Further, Dr. Friedrich credibly testified that Mr. Cartwright's medical file did not contain any notation showing that someone had called about the January 25, 2010, prescription. Dr. Friedrich explained that typically if a pharmacy calls Lee Convenient Care about a patient's medication that the call would be documented in the patient's medical record. Mr. Cartwright's explanation also does not make sense, because the pharmacy technician did not have to call Lee Convenient Care to verify Mr. Cartwright's date of birth and address. Those facts are readily attainable from Mr. Cartwright. Further, there would not have been any reason for the pharmacy technician to determine an amount of refills, when the physician had left the refill space blank, and the prescription is being filled for the first time. Based on the foregoing, Mr. Cartwright's explanation that a pharmacy technician had altered the prescription is not credible. The evidence supports the conclusion that Mr. Cartwright altered the prescription. Mr. Cartwright's teacher evaluations showed that, for the 2008-2009 school year, he was a highly-regarded teacher, earning "outstanding" and "high performing" marks. A review of his teacher evaluations from 2003 until 2007 also reflect he was an effective and good teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order finding that Phillip Cartwright committed misconduct in office and that he should be dismissed from his employment as a teacher pursuant to section 1012.33. DONE AND ENTERED this 4th day of April, 2011, 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 4th day of April, 2011.
The Issue Is Respondent school teacher guilty of violating Rule 6B-1.006(3), Florida Administrative Code, by failure to make reasonable effort to protect students from conditions harmful to their physical safety? Is Respondent guilty of violating Section 231.36(1)(a), Florida Statutes, by misconduct in office and/or willful neglect of duty?
Findings Of Fact Respondent, Kelly L. Bradley, Florida Teaching Certificate 768569 (expiration date June 30, 2000), is a certificated teacher in the State of Florida and held a teaching certificate in 1998-1999. She taught at Lola M. Culver Elementary School during the 1998-1999 school year and was an employee of Petitioner Duval County School Board. Respondent had been employed by Petitioner from January 1996 through October 1996, as a substitute teacher at several elementary schools and was employed full time at Lola Culver commencing October 1996, teaching emotionally handicapped students. This was her first full-time job as a teacher. She received satisfactory evaluations with favorable comments for each of her three years at Lola Culver. She has no record of prior discipline. During most of the 1998-1999 school year, Respondent and Kristy L. James, another certificated teacher, were co-sponsors of the School Safety Patrol at Lola Culver. Respondent volunteered to replace another co-sponsor who left in mid-year. This was her first experience as a Safety Patrol co-sponsor. A "reward" trip near the end of each school year was traditional for Lola Culver's Safety Patrol members. Ms. James had been a co-sponsor of the Safety Patrol for the 1996-1997, 1997-1998, and 1998-1999 school years, but neither she nor Respondent had received any significant instruction in the duties and responsibilities of sponsors. Near the end of the 1998-1999 school year, Ms. James and Respondent planned an overnight trip to Orlando for Safety Patrol members for June 4-5, 1999, a Friday and a Saturday. Ms. James exclusively handled the paperwork for approval of the June 4-5, 1999, field trip by Lola Culver's current principal, Carolyn Davis. She also exclusively handled the permission slips and medical authorizations signed by parents and all arrangements for "chaperones." Swimming had been on the agenda sent home by Ms. James and approved by the prior principal in each of the previous school years. Swimming was also on the 1999 agenda, which instructed students to pack a swimsuit. For the 1999 trip, Ms. James also sent another document, outlining the cost of the field trip for students and soliciting chaperones, and permission slips/medical releases to all the children's parents. Only the agenda mentioned swimming. The permission slip did not expressly mention swimming or solicit information about a child's ability to swim. It solicited only health information and authority to treat in an emergency. Eight fifth grade students (boys and girls) went on the trip, including Litoria Gibson, a non-swimmer, who ultimately drowned while on the field trip. Nowhere on the signed permission slip returned to Ms. James did Litoria's parents state that she could not swim or should not swim. Unbeknownst to anyone concerned, Litoria's mother had instructed Litoria "not to get in the water" during the field trip.1 Respondent and Ms. James went on the trip as co- sponsors and as chaperones. Respondent invited a personal friend and substitute teacher, Eric Lee, to go on the trip as a chaperone. Ms. James' husband, Joey, came along in the same capacity, and two parents, Gail Brown and Hazel Morningstar, also went on the trip. Hazel Morningstar testified that she had considered herself present on the trip only to watch her own son and, based on an oral promise to Rita Whorten's parents, to watch Rita Whorten. In a conversation during the planning stages, Ms. James stated that Rita Whorten would be "with" Ms. Morningstar and her son. At no time material did Ms. Morningstar affirmatively notify anyone she would not act as a group chaperone. In fact, she considered herself to be a chaperone. Gail Brown is the mother of Marcus Brown, one of the Safety Patrol students. Ms. Brown testified that she only went on the trip because she does not allow her son to go on trips involving water by himself, even though Marcus knows how to swim. She further testified that she did not feel any chaperoning responsibility toward any child but her own. However, she knew the teachers would assume that she was going to chaperone all the children, and she never affirmatively notified anyone that she would not act as a group chaperone. The group traveled via a school bus, driven by Petitioner's approved bus driver, Patricia Benton. Ms. Benton was paid for driving the bus, but personally paid for her teenage son, whom she brought along on the trip. Ms. James had asked Ms. Benton to drive the bus, and Ms. Benton's son's inclusion in the trip was in the nature of a "perk" for Ms. Benton. Ms. Benton's son was never considered either a responsible adult or a chaperone. Ms. Benton had accompanied Ms. James and the Safety Patrol on a similar field trip at the end of the 1997-1998 school year and had participated in watching over the children at that time. However, herein, Ms. Benton testified that on the 1999 trip she considered herself only along to drive the bus and watch over her own son. Indeed, neither Ms. James nor Respondent counted Ms. Benton as a "chaperone" in calculating the "one chaperone per every ten children" that they understood to be Petitioner's requirement for field trips. Nonetheless, both teachers considered Ms. Benton to be another responsible adult. Ms. Benton admitted that at times on this trip she was prepared, if necessary, to discipline any disrespectful children. Neither teacher inquired of Ms. Benton if she could or would swim. Respondent and Ms. James considered themselves, Joey James, Mr. Lee, Ms. Brown, and Ms. Morningstar to be chaperones. Neither teacher ever inquired of Mr. Lee, Ms. Brown, or Ms. Morningstar whether they could or would swim. This was Respondent's first overnight field trip. As teachers and Safety Patrol co-sponsors, Respondent and Ms. James regarded themselves as jointly responsible and in charge. Everyone else appears to have looked to Ms. James for leadership. The bus departed from Lola Culver Elementary School at 7:00 a.m., Friday, June 4, 1999. After arriving in Orlando, the group spent most of the day at Sea World. While the group was at Sea World, Respondent and Ms. James assigned responsibility for specific children to specific adults, except for the bus driver, Ms. Benton. No adult protested the assignments. At Sea World, Respondent and Eric Lee were responsible for Litoria Gibson and Makia Hicks. These assignments were essentially designed to keep everyone together and to keep the children under supervision in the amusement park, but they were not intended to last beyond the Sea World portion of the trip. However, no reassignment of responsibility for any child occurred after the group departed Sea World. In the late afternoon, the group was bused to Howard Johnson's South International, a motel. After they checked in, the students were allowed to go swimming in the motel pool. Upon arrival at the motel at approximately 5:45 p.m., room keys were distributed, and it was agreed that adults and children would meet by Ms. James' room, which fronted on the pool area. The children were instructed not to go to the pool until the adults were ready. The pool at the motel was a very large one located in an interior courtyard. The water was 3.5 feet deep at the shallow end and 5.5 feet deep at the deep end. No lifeguard was provided. Nonetheless, the pool had been used safely for the 1998 Safety Patrol field trip, and Ms. James and Ms. Benton were familiar with the motel layout and the pool. Ms. James considered herself a good swimmer, having been a swimmer since childhood. She was comfortable around water. Respondent was an experienced swimmer and athlete. She had learned to swim in early childhood, had had formal lessons during high school, and had done a lot of pool training in connection with playing college volleyball. She had continued to swim regularly in her adult life. She was trained in CPR. Some of the adults, including Respondent, and all of the children met as agreed and proceeded to the pool area. Prior to going to the pool, Respondent briefed all the children on not running or wrestling in the pool and pool area. Initially, Ms. James remained in her room to make a telephone report to Lola Culver's principal, Carolyn Davis. Joey James and Ms. Morningstar arrived at the pool dressed to swim. Litoria Gibson went to poolside wearing a red jumpsuit which would not be considered an unusual item for a child to wear to go swimming. The children entered the pool for the first time at approximately 6:00 p.m., under the direct supervision of Joey James and Ms. Morningstar, who got into the pool's shallow end with some of them. Ms. Morningstar asked who could not swim. Litoria Gibson and another girl raised their hands. Litoria said, "I can't swim." She never volunteered that she was not allowed in the water. Ms. Morningstar told the two girls that they should stay in the shallow end of the pool. Litoria Gibson was tall for her age, approximately the same height as Ms. Morningstar. Ms. Morningstar invited Litoria into the pool and spent 15-30 minutes with her in the pool's shallow end. They squatted to get wet and acclimated to the water. Ms. Morningstar showed Litoria how to stand so that the water only reached her chest and how to doggie paddle and told Litoria that if she got in trouble she could lie flat on her back and float. Litoria then felt comfortable in the water and, giggling happily, entered into dunking games with the other children. When Ms. Morningstar left the pool for the sauna, she warned Litoria to stay in the shallow end of the pool, only chest-high in the water, or get out of the pool altogether. Ms. Morningstar assumed that all the parents' respective permission slips would have alerted the teachers as to which children could or could not swim, so she did not tell anyone which students could not swim. At various times before 7:30 p.m., Joey James and Ms. Morningstar disciplined students by taking away water toys and calming rowdy behavior. Eric Lee arrived at the pool dressed to swim and able to swim shortly after the children entered the pool, but he stayed on the sidelines at the deep end and would not enter the pool. Respondent arrived at the pool dressed to swim and swam a little while Ms. Morningstar was in the shallow end and Joey James was in the deep end. Makia Hicks got into the pool with Respondent and said "Can you stand in here with me?" Respondent questioned Makia, and determining that Makia indeed could not swim, Respondent told her, "Well, you can come in here and I'll show you how to kick your feet." Respondent did not overhear the similar conversation between Litoria and Ms. Morningstar. (See Finding of Facts 33- 34). Later, Respondent got out of the pool and took Makia and Jessica Hayes to the hot tub. She made sure Makia got out of the pool at that time. Respondent, Makia, and Jessica then returned to the pool and were playing around. Ms. James, dressed to swim, arrived at the pool about the time Ms. Morningstar first went to the sauna. Mesdames Brown and Benton arrived poolside sometime after everyone else and remained there for most of the time until 7:30 p.m., in adjoining chairs and approximately midway between the deep and shallow ends of the pool. During this period, Ms. Benton made several trips to and from the jacuzzi and Ms. Brown made at least one trip to and from her room. Neither woman was dressed to swim. By their own accounts, both women were adequate but not trained swimmers, and neither of them intended to swim. When Ms. James arrived poolside, Respondent got out of the pool and she and Ms. James chatted in adjoining poolside chairs on the side opposite from Mesdames Brown and Benton. Makia sat on the edge of the pool with her feet in the water. Fifteen to 20 minutes after arriving poolside, Ms. Brown overheard that Litoria and one other child (she was not sure which child) could not swim. When Ms. Brown heard this, Litoria was already "walking the wall" (moving via her hands on the lip of the pool wall) into the deep end of the pool. Ms. Brown asked Litoria if she could swim and when Litoria said she could not swim, Ms. Brown ordered Litoria back to the shallow end of the pool. At least twice more before 7:30 p.m., Ms. Brown ordered Litoria back to the shallow end from the deep end, but Ms. Brown did not alert anyone else that Litoria was venturing into the deep end. She also assumed that Litoria's parents had informed the teachers that Litoria could not swim, so she did not tell anyone that information either. At approximately 6:30 p.m., Ms. Benton overheard or otherwise figured out that Litoria could not swim. She also assumed that Ms. James and Respondent knew Litoria could not swim and therefore, she did not mention it to them. After being poolside for awhile, Ms. James and Respondent went to Ms. James's room to telephone for pizza for everyone's dinner. Where, precisely, each of the other adults were during this brief period of time is in some dispute, and it may be that Ms. James and/or Respondent came and went from Ms. James's room more than once. Ms. James and Respondent did not specifically designate any adult to be in charge at the pool in their absence(s). Nonetheless, by all accounts, Mesdames Brown and Benton were fully dressed in poolside chairs most of this time and Joey James, Mr. Lee, and Ms. Morningstar were in and around the pool most of this period of time. Later, when it was anticipated that the pizza delivery man would be arriving, Ms. James and Respondent again left the poolside together. As they walked past Ms. Brown and Ms. Benton, Ms. James said, "We're going for the pizza." Neither Ms. James nor Respondent gave any specific instructions concerning the students. Ms. Brown and Ms. Benton acknowledged that they had heard Ms. James say that both teachers were leaving the pool area. Ms. James and Respondent left the pool area and entered a motel corridor off a door leading to the pool area. The children and pool area could not be adequately observed and monitored from this motel corridor. Joey James and Mr. Lee arrived in the corridor simultaneously with the two teachers. Ms. James gave the men instructions to go to the bus and retrieve a cooler of soft drinks and take the cooler to the picnic area at the far end of the pool. Ms. Morningstar arrived in the corridor in time to hear the foregoing instructions concerning the cooler. This meant there were now five adults not watching the children. Respondent then gave Ms. Morningstar enough specially-printed T-shirts for all members of the party, told her the T-shirts would be distributed during dinner, and asked her to take the T-shirts to the picnic area and set up for dinner. Respondent also asked Ms. Morningstar to "check on the kids."2 Ms. James and Respondent assumed the foregoing instruction meant that a third adult (Morningstar) would then be joining the two adults (Brown and Benton) already poolside to watch over and protect the eight students. Ms. Morningstar immediately went to the pool area, carrying the T-shirts. Ms. James, who had the money to pay the delivery man, and Respondent immediately went up an interior hallway toward the hotel lobby to await the pizza delivery man. The six pizzas Ms. James had ordered would require two people to carry them all, but additionally, Respondent wanted to talk to Ms. James alone because she had a concern and planned to defer to Ms. James's field trip experience as a long-time Safety Patrol sponsor.3 On her way to the picnic area, Ms. Morningstar found all the children, including Litoria, in the deep end of the pool. Most were playing dunking games. Apparently, Litoria sometimes participated in dunking, but when Ms. Morningstar spotted her, Litoria was holding onto the pool wall. She was blowing bubbles in the water between her outstretched arms and occasionally pushing off a few inches, floating on her face, and then grabbing the wall again. Ms. Morningstar said, "Litoria, are you sure you feel comfortable? Because you don't know how to swim." Litoria replied, "No, ma'am, I feel comfortable. I'm here with everybody and everybody's beside me." Ms. Morningstar did not consider Litoria in danger as close to the wall as she was, with children near her in the pool, and with Ms. Brown, Ms. Benton, and other adult strangers nearby. She proceeded to the picnic area, passing Brown and Benton in their chairs, and telling them she was going to set up for pizza. At about this time, a few minutes before 7:30 p.m., Ms. Brown was approached by a little girl who wanted to get her pool shoes from her room. Ms. Brown told the child to get her key and she would go with her so that the child would not be alone in a motel room. As they rounded a corner of the deep end of the pool, Ms. Brown spotted another little girl clinging to the side and sobbing, "She tried to drown me!" Then there was a clamor from the other children and Ms. Brown noticed that Litoria, in her red outfit, was floating face down, only inches from the edge of the pool. Just then, Ms. Benton approached and also saw Litoria. Both women screamed. Ms. Morningstar and Mr. Lee, who were in the picnic area, heard the screams and ran to the deep end of the pool to help. With the help of two of the boys and Eric Lee, Ms. Brown hauled Litoria out of the pool. The adults peeled away from Litoria's face a plastic mask designed to cover the wearer's eyes and nose, but not the mouth. The face mask's breathing tube had been lost. Blood came profusely from Litoria's mouth.4 The teachers were notified where they were waiting for pizza in the motel lobby. They returned immediately to render aid. A qualified bystander rendered CPR. Medical attention was summoned via "911." Although Litoria's pulse and breath sounds were revived at poolside, she ultimately died of drowning Christine Arab, General Director of Human Resources for the School Board, holds Bachelor's and Master's Degrees in Elementary Education, and is a doctoral student in curriculum and education. She has been a certified elementary and exceptional student education classroom teacher. In her opinion, Respondent did not take reasonable efforts to protect her students in that she failed to determine which children could and could not swim and left the pool area without making sure that at least one of the adults was prepared to be in the pool with the children, was able to rescue the children, and had agreed to accept the responsibility to oversee and rescue the children from the water if necessary. It was the absence of these precautions by Respondent that mattered to Ms. Arab, not the length of time that Respondent was absent from poolside. Ms. Arab stated, concerning the other adults' behavior on the field trip that, "[G]iven what they each understood their role to be or commitment to be - I think there's a lot of blame to go around . . .." She also described various acts and omissions of the other adults as either reasonable or unreasonable. However, I do not assign the weight to her personal opinions on these subjects that I do to her professional opinion as an educator concerning Respondent's duty of supervision and effectiveness as a teacher. There is no School Board policy defining the duties of "chaperones." The School Board did not prove that it had any specific written policy against swimming on field trips. Ms. Arab conceded that if Ms. James's prior principal had approved swimming for the previous year's field trip and the current principal, Ms. Davis, had not disapproved swimming in 1999, there was no way the teachers could have divined there was any "no swimming on field trips" policy. Principal Davis was disciplined by a 21-day suspension without pay for her flawed oversight of the field trip. This is a very severe penalty for an administrator. Ms. Arab had input into the School Board's decision to prosecute this case. In her opinion, the severity of a termination recommendation against Respondent was warranted because Respondent's flawed oversight of the field trip itself was such that the public and the School Board could have no future confidence in Respondent. Ms. Arab felt the only way the School Board could trust Respondent henceforth would be under the closest supervision and that would be ineffective teaching in the School system. However, Ms. Arab also conceded that had Litoria not drowned, Respondent's failures would not have risen to the level of a terminable offense.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of a violation of Rule 6B-1.006(3), Florida Administrative Code, through her failure to make reasonable effort to protect students from conditions harmful to their physical safety, and of a violation of Section 231.36(1)(a), Florida Statutes, by misconduct in office, suspending her without pay for six months, and requiring her to repeat her supervised one year of beginning teacher training upon her return to the classroom. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2000.
The Issue Whether Respondent School Board of Alachua County (School Board) engaged in discriminatory employment practices or retaliated against Petitioner, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Wright, an African-American woman of Jamaican descent, worked as a teacher in the Alachua County School District (School District) for several years, the last two positions being at Glen Springs Elementary School (Glen Springs), from 2016-2018, and Metcalfe Elementary School (Metcalfe), for the 2018-2019 school year. Ms. Wright possesses a bachelor’s of arts in education and a master’s of arts in education, both from the University of Florida. In 2017, she completed an educational leadership program at the University of Florida. Thereafter, in October 2017, she entered the School District’s administrative pool, and she informed Glen Springs Principal Armstrong of her intentions to seek an administrative position within the School District. The School District did not hire or promote Ms. Wright to an administrative position during the 2017-2018 school year. Mr. Purvis, the School District’s Assistant Superintendent for Human Resources, testified that it is normal for a person who enters the administrative pool for consideration for an administration position to wait some time before receiving an appointment to such a position. Mr. Purvis testified that is not common for an administrative pool applicant to be appointed assistant principal or principal within three months of entering the administrative pool. In December 2017, Ms. Wright approached Principal Armstrong and expressed that she was experiencing what she believed was harassment, including an attempted break-in at her apartment, people tracking or following her, someone tampering with her car’s gas tank, someone hacking her cell phone, and an instance in which a fire truck, which she believed may have been operated by another school principal’s husband, allegedly attempted to block her car from driving to a School District leadership meeting. Ms. Wright requested leave to deal with these issues, which Principal Armstrong granted. On February 9, 2018, while Ms. Wright served as the Behavior Resource Teacher at Glen Springs, she was involved in an incident in the cafeteria, where some students were being served breakfast. Ms. Wright testified that she noticed one student was “staggering” and then fell down. Then, she began to feel “sick” and “woozy,” and noticed three other students who “appeared to look dizzy and sick too.” She also made a statement that she observed other teachers who were falling in slow motion. She then ordered a lockdown of the cafeteria, and ordered all students to their classrooms. Ms. Wright then went to the front office, and Principal Armstrong called the school nurse and district office, which sent a school resource officer from a neighboring school, and Ms. Finley (the School Board’s Supervisor of Human Resources), to Glen Springs. Ms. Wright refused services from the school nurse, although she admitted that she did not feel well. When Ms. Finley and the school resource officer arrived, she agreed to be transported by Ms. Finley to the emergency room at North Florida Regional Medical Center (NFRMC). Ms. Finley drove Ms. Wright to NFRMC, and she and the school resource officer, who followed in a separate vehicle, waited until Ms. Wright was admitted to the emergency room. Ms. Finley testified that she and the school resource officer gave Ms. Wright their cell phone numbers, and told her to call when she was released. Ms. Wright stated that NFRMC discharged her, with little treatment, that same day (a Friday). However, over that weekend, she experienced other issues and requested to be returned to NFRMC, and was transported after receiving EMS services. Ms. Wright’s recounting of this second visit to NFRMC offers a harrowing description of a ten-day hospital stay that included an unusual hospital room with a bed on the floor, visits from a judge, and nurses and doctors (one of whom she believed was the parent of a Glen Springs kindergartner) injecting her with substances that caused partial paralysis. After her second discharge from NFRMC, and after receiving clearance from her treating physician, on March 12, 2018, the School District decided to not return Ms. Wright to her previous position at Glen Springs, but rather placed her in a temporary position at the Student Services Department at the Manning Center, analyzing charter school data and serving as a liaison for charter school families, for the remainder of the school year. Ms. Wright received the same salary and benefits as her teaching position at Glen Springs. Ms. Wright requested that Ms. Finley, an African American woman, facilitate her placement in a new teaching position for the next school year. Ms. Finley offered Ms. Wright a position at Lake Forest Elementary School as a Title I Intervention teacher, which she declined. Thereafter, Ms. Finley offered Ms. Wright a position at Metcalfe as a Title I Intervention teacher for the 2018-2019 school year, which she accepted. During her employment at Metcalfe, Principal Jacquette Rolle asked Ms. Wright to utilize a certain curriculum for instruction and perform assessments in order to track student performance, as required under School Board and state guidelines. When Ms. Wright refused to do so, Principal Rolle issued a 24-hour notice for a meeting to be held at Metcalfe with Principal Rolle and other School District officials, on October 5, 2019. Ms. Wright testified that she had another subsequent meeting with Principal Rolle, in which Principal Rolle “yelled in my face, not in a low tone, at a high tone.” On April 9, 2019, while working at Metcalfe, Ms. Wright contacted the FBI to complain that someone had again hacked her cell phone. The FBI referred her to the Gainesville Police Department, which then contacted Metcalfe’s school resource officer, Officer Davis, to respond. Officer Davis testified that, after the Gainesville Police Department dispatch center contacted him, he met with Ms. Wright. Officer Davis testified that she relayed concerns about events that happened at Glen Springs, that different school principals were following her, that people were in her attic, and that her car had been tampered with at a car dealership. He stated that “[s]he was like continually talking. She would talk about one subject and then all of a sudden she would change to another subject that was unrelated to what she was actually talking about at the time.” Officer Davis testified that, as a police officer, he has received training with respect to identifying individuals experiencing mental health crises, and in de-escalating such situations. Although Officer Davis did not believe that Ms. Wright met the criteria for consideration for a Baker Act, he reported that she was experiencing mental health issues that needed to be evaluated. Officer Davis prepared a report, dated April 9, 2019, that he shared with Principal Rolle and that was also provided to the School District. Principal Rolle also provided a letter, dated April 9, 2019, that summarized her concerns with Ms. Wright, to the School District. Mr. Purvis, the School Board’s Assistant Superintendent for Human Resources, received Officer Davis’s report, as well as Principal Rolle’s letter, and decided that Ms. Wright must undergo a “Fitness for Duty” evaluation, pursuant to School District Policy 3161. This policy states: If the Superintendent believes an instructional staff member is unable to perform essential functions of the position to which the staff member is assigned, with or without reasonable accommodations, the staff member will be offered the opportunity for a meeting to discuss these issues. The Superintendent may require an instructional staff member to submit to an appropriate examination by a health care provider designated by the Board to determine whether or not the staff member is able to perform essential functions of the position to which the staff member is assigned, with or without reasonable accommodations. The Board shall pay any uninsured fees for such examinations. The staff member will be required to execute a release that complies with the requirements of the Health Insurance Portability and Accountability Act (HIPAA) in order to allow the report of the medical examination to be released to the Superintendent and to allow the Superintendent or his/her designee to speak to the health care provider who conducted the medical examination to get clarification. Refusal to submit to an appropriate examination or to execute the HIPAA release will be grounds for disciplinary action in accordance with the terms of the applicable collective bargaining agreement. As required by Federal law and regulation and Board Policy 3122.02, Nondiscrimination Based on Genetic Information of the Employee, the Superintendent shall direct the provider that is designated by the Board to conduct the examination, not to provide any genetic information in the report of the medical examination. Pursuant to State law and in accordance with the Americans with Disabilities Act, as amended, the results of any such examination shall be treated as a confidential medical record and will be exempt from release, except as provided by law. As required by Federal law, if the District inadvertently receives genetic information about an individual who is required to submit to an appropriate examination from a medical provider it shall be treated as a confidential medical record. Upon the recommendation of the Superintendent and approval of the Board, an instructional staff member may be placed on a leave of absence related to fitness for duty. Such leave shall be without pay; however, the employee may use accrued leave, if available. Furthermore, the Superintendent may recommend the instructional staff member’s dismissal based upon the results of the medical examination. The instructional staff member is entitled to a hearing as provided for in Florida law or the terms of the applicable collective bargaining agreement. Ms. Wright contended at the final hearing that she never met with the School District Superintendent, who, under this policy, is the individual responsible for requiring a “fitness for duty” evaluation. Mr. Purvis testified that it is the common practice of the School District for the designee of the Superintendent, such as the Assistant Superintendent for Human Resources, to require a “fitness for duty” evaluation. Mr. Purvis, Mr. Brooks (the School District’s Supervisor of Human Resources), and Ms. Wright met and discussed this policy and the “fitness for duty” evaluation. On April 10, 2019, the School District placed Ms. Wright on paid administrative leave pending the outcome of a “fitness for duty” evaluation. Several doctors examined Ms. Wright and these doctors referred her to a licensed psychologist, who conducted an evaluation on May 2, 2019; the psychologist concluded that Ms. Wright was not fit to return to her duties as an elementary school teacher. On June 5, 2019, Mr. Purvis, Mr. Brooks, Ms. Wright, and Carmen Ward (the teacher union’s president), had a meeting in which Mr. Purvis and Mr. Brooks shared the results of the “fitness for duty” evaluation. Mr. Purvis explained to Ms. Wright that, based on the psychologist’s evaluation, she was deemed to be unfit for duty, and would be placed on a leave of absence for the 2019-2020 school year. At a September 17, 2019, meeting, the School Board approved the placement of Ms. Wright on unpaid leave. Mr. Purvis afforded Ms. Wright the opportunity to use her accrued paid leave during this unpaid leave time period, and gave her a deadline of June 27, 2019, to notify the School District’s human resources department of her decision. Ms. Wright did not meet that deadline, but later, on January 6, 2020, requested some paid leave, which Mr. Purvis granted. Ms. Finley and Mr. Purvis credibly testified that the School District would welcome Ms. Wright back to employment with the School District, if she would receive appropriate treatment and clearance from a medical professional that would indicate she met the “fitness for duty” requirement in School District Policy 3161. After more than a year, Ms. Wright has failed to make any attempt to do so. Ms. Wright presented no persuasive evidence that the School Board’s decision concerning, or actions affecting, her, directly or indirectly, were motivated in any way by race or national origin-based discriminatory animus. There is no competent, substantial evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race or national origin discrimination. Ms. Wright presented no persuasive evidence that the School Board retaliated against her for participating in a statutorily-protected activity. There is no competent, substantial evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Marshalee M. Wright’s Petition for Relief. DONE AND ENTERED this 14th day of October, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 14th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Karen Clarke School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 Marshalee M. Wright Post Office Box 141981 Gainesville, Florida 32614 (eServed) Brian T. Moore, Esquire School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-certified teacher authorized to teach mathematics. She holds Florida Educator's Certificate No. 801286, which covers the five-year period ending June 30, 2003. Respondent was a teacher for more than a decade in Michigan before moving to Florida. She began teaching in Florida in or around September of 1998, when she was hired to teach mathematics at Deerfield Beach High School (DBHS). Respondent taught at DBHS only into the early part of the second semester of the 1998-1999 school year, when she was removed from the classroom following her arrest, during the early morning hours on January 17, 2002, for lewd and lascivious conduct. The arrest occurred at Athena's Forum, a club that Respondent and her then fiancée, William Markowitz, had read about in a magazine article about "swing clubs." The article "peaked [their] interest to go in[to one of these clubs] and see what it was all about." Respondent and Mr. Markowitz entered Athena's Forum at approximately 9:30 p.m. on Saturday, January 16, 1999. Neither she nor Mr. Markowitz had been to the club before. They were stopped in the vestibule and asked to fill out and sign a membership application and to pay a membership fee of $75.00, which they did. They were then allowed to go into the interior of the building. There were signs posted in the vestibule and elsewhere in the club cautioning that those who might be offended by "sexual activity or nudity" should not enter the club. Upon entering the interior of the building, Respondent and Mr. Markowitz went to the bar and ordered drinks. They later went to the buffet area where food was being served to get dinner. They brought their dinner to a table "at the stage level," where they sat down and ate. It was "very dark" there. They spent the rest of the evening sitting at their table (next to each other) listening to music and watching "people coming and going throughout the club." On occasion, they got up to dance. There were at least 50 people in the club that evening, some of whom were in various states of undress, being "fondl[ed]" and "touch[ed]" by others. Respondent and Mr. Markowitz, however, both remained clothed throughout their stay at the club. Among the other people in the club that evening was Deputy John Duncan of the Broward County Sheriff's Office (BCSO). Deputy Duncan was there, along with eight to 12 other law enforcement officers, as part of a BCSO undercover operation. Deputy Duncan had been to the club on a prior occasion to conduct "surveillance." He had gone there at the direction of his supervisor, Sergeant Barbara Stewart. Sergeant Stewart had advised Deputy Duncan and the other participants in the undercover operation that a "tip" had been received that "lewd activity was supposedly going on inside the club" and that they "were going in there to look for" such activity and to see if "any narcotics [were] being sold." During that first visit, the club was "dead." The bartender, however, told Deputy Duncan that there were other times, including "certain nights [designated as] couples nights, that things [did] go on" at the club. Among these "things," according to the bartender, was "sexual activity." Deputy Duncan returned to the club at approximately 10:00 p.m. on January 16, 1999. He gained entry to the interior of the building after showing his "membership number" to a woman "at the front desk," giving the woman a "bottle of liquor" he had brought with him, and having his "cover charge" paid (by a fellow undercover officer). Deputy Duncan, along with Sergeant Stewart, who was part of the BCSO undercover operation at the club that evening, proceeded to the "northwest section of the bar," where they sat down. Next to the bar was a "dance floor." There were tables and chairs surrounding the "dance floor." Approximately 30 feet from where he was seated at the bar, in the area of the "dance floor," Deputy Duncan observed a "white female," 3/ standing up, straddling the right leg of a "gentleman" sitting on a chair. The "white female" was wearing a tight-fitting, black spandex dress. Deputy Duncan saw the "gentleman" "lift her dress up" above her vaginal area. It appeared to Deputy Duncan that the "white female" did not "have any underwear on." The "gentleman" then proceeded to fondle the "white female's" vaginal area. This went on for two to five minutes. At no time did the "white female" attempt to pull down her dress or otherwise cover her vaginal area. Neither she, nor the "gentleman," made any effort to hide what they were doing. Although Deputy Duncan considered the "white female's" and the "gentleman's" conduct to be lewd and lascivious, he did not immediately place them under arrest inasmuch as the undercover operation had not concluded. Before the club was "raided" later that evening and arrests were made, Deputy Duncan observed other instances of people in plain view engaging in activities of a sexual nature. He saw, among other things, "women with other women where they were fondling the breast," "women with men doing dirty dancing," and "men and women in corners." In the "back area" of the club, he saw "hot tubs with several naked individuals inside" and rooms where people were "engaging in open intercourse." There were approximately 38 people arrested as a result of the BCSO undercover operation at Athena's Forum that evening. Respondent and Mr. Markowitz were among those arrested. Respondent's and Markowitz's arrests were for lewd and lascivious conduct. The arrests occurred at 1:30 a.m. on January 17, 1999 (after the club had been "raided"). Deputy Duncan was the arresting officer. He believed that Respondent and Mr. Markowitz were the "white female" and "gentleman," respectively (referred to above) whom he had observed earlier that evening in the area of the "dance floor" engaging in conduct that he considered to be lewd and lascivious. Deputy Duncan, however, was mistaken. Respondent was not the "white female" 4/ and Mr. Markowitz was not the "gentleman" 5/ Deputy Duncan had seen. At no time that evening at the club had Mr. Markowitz pulled Respondent's dress up or fondled Respondent's vaginal area. Respondent's and Mr. Markowitz's arrests were two of the "many" arrests Deputy Duncan made at "swing clubs" in the county. Respondent's arrest was reported in the media. It was common knowledge at DBHS that she had been arrested for lewd and lascivious conduct at a "swing club." The Broward County School Board initiated disciplinary proceedings against Respondent. It removed her from the classroom and reassigned her to a "security guard" position pending the outcome of the disciplinary proceedings. Respondent thereafter submitted a letter of resignation, dated January 24, 2000, to the Broward County School Board. In her letter, she stated, among other things, the following: Broward County showed me a warm welcome by taking away my civil rights to privacy and making my entire ordeal a Nationwide joke. No one, except my attorney and my future husband knew of my arrest on January 17, 1999, until the School Board . . . gave information to the local and national media. . . . . The Broward County School Board showed an excellent, motivated and experienced educator that they are more interested in what teachers do after hours than the students' well-being. I was wrongfully arrested on January 17, 1999 in a private club where no children were present. It was not near or on any school grounds and it did not impair my ability to teach. As of this letter, it seems that the criminal charges against me will be dismissed. On February 17, 1999, I was handed a letter that will forever change my life, when I was pulled and submitted to complete ridicule in front of my 4th Period class with only forty minutes to the end of the day. I successfully taught for four weeks and would have continued to successfully teach if the Board had not release[d] my name to the media. After a national debate on the right to privacy my career was destroyed, as well as my life. . . . In August 1999 I was placed on administrative reassignment with pay. I was informed that I would receive a "meaningful" job that would justify my paycheck while we awaited the Administrative Hearing. Once assigned a position, displayed for the world to see, as a security guard for the main School Board Building, I reported my health issues and repeated harassment from the media, school board employees, teachers, and parents. I was informed by Carmen Rodriguez, attorney for the School Board, that the position I was assigned would involve "little or no participation." I asked for a different position but the request was denied. . . . At this point I am unable to return to work due to illness . . . . Therefore, due to the cost to my personal health, lack of financial resources, lack of union support, the fact that I am only an annual contract teacher, being refused a position change, and being denied a Leave of Absence, and the pride to not submit myself to the degrading way you treated my fellow educator, I must with great hesitation resign as an educator in Broward County. I am giving up the battle in the administrative courts to win the war of public opinion. The criminal charges that had been filed against Respondent following her arrest were "dropped by the court" on or about July 18, 2000. Respondent married Mr. Markowitz, but they were later divorced. They still keep in touch with one another, however. Mr. Markowitz tried to help Respondent make the necessary arrangements to attend the final hearing in the instant case, but due to the expense involved and the fact that Respondent had an examination to take, she was unable to be at either of the hearing sites. 6/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the EPC issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 14th day of October, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 14th day of October, 2002.
Findings Of Fact The Respondent, Steven T. George, began teaching in the Bay County school system in the fall of 1977. He was employed as a physical education teacher and as a coach. The Respondent has had an exemplary record as an instructional employee of the Bay County School Board until he encountered personal problems during the 1988-89 school year. During the 1988-89 school year, he was employed as a physical education teacher and assistant football coach at Mosley High School. During that school year, his supervisor, Assistant Principal Sarah Cooper, observed his performance deteriorate unexpectedly and in a way which was out of character from his previous level of performance and demeanor. She found occasions when he was not properly supervising his class and when he had not done lesson plans, as required by the school administration. Ms. Cooper had to assist the Respondent in developing a semester examination, however, he ultimately used an examination given to him by another teacher. Thereafter, he administered the examination but did not complete the grading of it and failed to complete his grade book, which responsibility was ultimately performed by Ms. Cooper. Additionally, during the 1988-89 school year, the Respondent was observed to become increasingly isolated from other members of the faculty. His behavior became characterized by unpredictability, excessive arrogance, argumentativeness, anger and verbal aggression, which was entirely different from the personality traits which he had exhibited and which his co-workers and supervisors had observed since he had been with the school system. Indeed, female teachers in the physical education department were reluctant to be alone in the workroom with him because of the advent of these objectionable personality traits. The Respondent, during this period of time, was undergoing a divorce, or the aftermath of one, which involved a very emotional custody dispute with his former wife concerning custody of their daughter. During the 1988-89 school year, he was observed to repeatedly burden his co-workers and school administrators with the details of his personal problems and to exhibit uncharacteristic and rather severe emotional outbursts of both anger and grief. After being counseled by his supervisors concerning what they believed to be rather bizarre behavior, when measured against his prior performance and demeanor in other school years, the Respondent ultimately voluntarily admitted himself to Charter Woods, a psychiatric treatment and evaluation facility. The Respondent spent approximately 5-1/2 months in that facility, underwent treatment in response to his supervisor's advice to "get some help", and returned to Mosley High School to complete the 1988-89 school year. For the remainder of that school year, the Respondent satisfactorily assumed and carried out all of his responsibilities and performed his work as a teacher in good fashion. His temperament and demeanor had returned to that of the friendly and caring teacher and co-worker which he had formerly been before his personal problems developed. His supervisor, Ms. Cooper, gave him a satisfactory annual evaluation at the conclusion of the 1988-89 school year. The Respondent's emotional difficulties and related performance difficulties as a teacher reappeared in the 1989-90 school year. During the pre-planning phase of his teaching and coaching duties for the 1989-90 school year, in August of 1989, the Respondent was observed to be very disruptive, argumentative, and, indeed, hostile to a visiting speaker at a seminar for instructional personnel. He was observed to repeatedly interrupt the speaker with arrogant, argumentative questions and comments, during the course of which behavior he was observed to be pacing back and forth at the rear of the room where the seminar was conducted while all other attendees at the seminar were seated and listening to the speaker. This arrogant, argumentative behavior was so apparent and so inappropriate for the seminar-type setting in which it occurred that his supervisor felt it necessary to apologize to the speaker at the lunch break on that day. Additionally, during this pre-planning phase of the school year, which is before the children arrive for the school year, the Respondent was observed to have difficulties in his dealings and relationships with other coaches arising out of his increasingly arrogant, argumentative attitude and behavior. Because of this and, inferentially, because his supervisors were aware of his emotional difficulties with which they had had experience the previous school year, the decision was made to relieve him as assistant football coach at Mosley High School. A meeting was held with the Respondent, Mr. Tucker, the Principal, and Mr. Cochran, the head coach, to explain that action to the Respondent and to explain to him that he would still continue as a physical education instructor. In the course of that meeting, the Respondent became very emotional, hostile, and argumentative. He exhibited frequent angry outbursts to the extent that he would not allow Mr. Tucker or Mr. Cochran to adequately explain the basis of the personnel action directed at him. The Respondent ultimately, angrily departed from the meeting before it was completed. On that same day, he left Mosley High School without administrative permission and went to Cherry Street Elementary School on some mission related to his daughter, who was a student at that school. She had been the subject of a bitter custody dispute between the Respondent and his former wife. He is accused of interfering with the operation of Cherry Street Elementary School on that occasion, although the record does not reflect what his conduct was at Cherry Street Elementary School that day. The 1989-90 school year then commenced at Mosley High School with the arrival of the students. The Respondent assumed his regular duties as a physical education instructor. He was observed, early in that school year, on a number of occasions, to fail to control behavior of students in his gym class and to fail to be in his gym class at appropriate times which amounted to inadequate supervision of his students on those occasions. His planning for his classes was observed to become sporadic, with repeated occasions when he failed to have lesson plans prepared. Also, in the fall of the 1989-90 school year, he was observed to forget his keys to the physical education area on a number of occasions. He would, on repeated occasions, forget, from one period in a school day to the next, what he was to teach that following period. He would have to be reminded by his colleagues. He would also forget to call his students in adequate time at the end of the physical education period for them to dress for their next classes. He had to be reminded by his colleagues to do this. He would also repeatedly forget when he had extra duty, such as "door duty" and locker room assignments. His general level of cooperativeness with his colleagues declined markedly. His behavior became harsh and rude to his colleagues and to students. He was observed to be very harsh and rude to a new student coming into his physical education class and spoke loudly, in an abrasive manner to the student in front of the class, embarrassing that student. These problems occurred repetitively and in rapid succession during the first month of the school year in September of 1989. Because of the nature of the problems, the past history of the Respondent's emotional instability whereby he had lost his ability to be a caring, productive, well-performing teacher (which had been his unblemished record of behavior and performance for all the years he taught prior to the 1988-89 school year), Mr. Tucker, the Principal, felt that he had to act quickly to prevent an even worse situation occurring in the 1989-90 school year when he observed that the Respondent's emotional instability of the year before was recurring. Consequently, Mr. Tucker requested that the superintendent, Mr. Simonson, meet with the Respondent in an effort to resolve his difficulties in the matter of his perceived emotional instability and resulting declining performance. Accordingly, a meeting was held with the Respondent, Mr. Simonson, and Mr. Tucker on September 30th. At the meeting, the Respondent was confronted with the fact of his displayed emotional instability and related declining teaching performance, at which point he became very belligerent and hostile. He was, alternatively, on the verge of tears and shouting in anger. Because of the above-stated reasons for the meeting and because of the emotional instability which was so apparently displayed by the Respondent during the meeting, Mr. Simonson gave the Respondent three days of sick leave to allow him to remain at home and get some professional attention to try to regain his emotional stability before returning to the classroom. The Respondent's problems persisted, however. Although the precise date is uncertain, at approximately this time, the Respondent announced that he was going to seek election as Superintendent of the Bay County school system in opposition to Mr. Simonson. The Respondent testified himself that he elected to run for this office while he was still a teacher at Mosley High School in part, at least, to save his job because he believed that the Bay County school administration and particularly, Mr. Simonson, would be reluctant to discharge him while he was a political candidate in opposition to Mr. Simonson because of the bad impression that might make on the electorate. Shortly after he made this announcement, again on an undetermined date in the fall of 1989, the Respondent was involuntarily hospitalized pursuant to the "Baker Act", Section 394.467, Florida Statutes. Apparently, the Respondent's family members had him committed although the precise reasons are not of record. The Respondent expressed the belief at hearing that his family members had him committed because of his announcement to run for Superintendent, although that is not established to be the case. The Respondent, at the time he was committed, believed that he did not suffer from a mental condition justifying his commitment pursuant to the Baker Act. The Respondent has since come to understand that he suffered from a manic-depressive condition, also known as a "bi-polar disorder". As a result of this eventuality, Mr. Simonson determined that the Respondent should not be teaching in the school system during such a period of emotional instability. In order to be fair to the Respondent, he did not want to actually suspend him from his duties. Accordingly, Mr. Simonson elected to place the Respondent in the status known as "overused sick leave", which means that the Respondent, although he had used up all of his annual and sick leave, could still be carried on the personnel records as an employee in terms of retaining his retirement and insurance benefits, although he was not paid for the time he was absent from his duties as a result of this decision and as a result of his emotional condition. Accordingly, the Respondent was, in this fashion, removed from his instructional duties and from his job site in the fall of 1989, after his involuntary commitment, pursuant to the Baker Act. Thereafter, in the fall of 1989, the Respondent obtained treatment at the "Life Management Center" in Bay County under the care of Dr. Nellis. Dr. Nellis diagnosed the Respondent as suffering from manic-depression and prescribed Lithium to treat his manic condition. The Respondent responded well to treatment, such that Dr. Nellis, late in the fall of 1989, opined that he was fit to return to work as a teacher. The Respondent apparently accepted the fact of his illness, continued taking his medication after being released by Dr. Nellis, and was returned to his duties with the Bay County school system at Rosenwald Middle School in late January or early February of 1990. Once again, he returned to his "old self", in terms of his adequate performance as a teacher, his emotional stability, good relationships with colleagues and students, and his prior demeanor as a genuinely caring teacher. His performance for the remainder of 1990 through the end of classes in June was good. He worked for the remainder of that school year as a physical education instructor, which is the field in which he is certified as a teacher. The Respondent had also been seen by Dr. Zumarraga beginning in November of 1989, who also found him to be manic-depressive, and who informed Mr. Simonson, by letter presented to Mr. Simonson by the Respondent, that the Respondent was taking medication for his illness and had exhibited acceptable behavior. As a result of those assurances by the Respondent's psychiatrist, Mr. Simonson had allowed the Respondent to return to work at Rosenwald Middle School in approximately early February of 1990. Apparently, sometime in late spring or early summer of 1990, the Respondent had doubts that he was still suffering from his condition and consulted another physician for an additional opinion. Apparently, he quit taking his medication sometime during the summer of 1990 as a result of that consultation. In late August of 1990, the Respondent returned to Rosenwald Middle School as a physical education instructor. Ms. Love, who had been Assistant Principal at the school, had moved up to the position of Principal. In the spring of 1990, the Respondent had been quiet and cooperative, had gotten along well with colleagues and students, and had performed his duties well, after undergoing treatment and being placed on a program of medication for his manic- depressive disorder. In the fall, however, he was immediately observed by Ms. Love and others of his colleagues and supervisors to have reverted to the arrogant, abrasive and extremely assertive attitudes and behavior, which he had exhibited in the fall of 1989, prior to securing treatment. Before these attitudes and behavior had manifested themselves, however, and immediately upon the start of the 1990-91 school year, given his long and worthwhile experience in the physical education field in the county system, Ms. Love asked the Respondent if he would work on a plan for a "middle school olympics" athletic event. The Respondent agreed to do this and immediately began setting about the formulation of a plan whereby all of the middle schools in the county would participate in the olympics athletic event on a given day at Tommy Oliver Stadium. He arrived at a plan to accomplish this and drafted it in memorandum form. Instead of sharing it with Ms. Love, however, he transmitted it directly to the Superintendent, Mr. Simonson. This was a departure from appropriate procedures for the planning of such events because the Respondent did not transmit his plan to Ms. Love for her initial approval before its being communicated to supervisory personnel at the county district level. The Respondent became somewhat obsessed with the idea of planning and conducting the olympics event, devoting an inordinate amount of time and energy to it. In early September, the Respondent brought a student to the office for disciplinary reasons asserting that he had caught the student stealing or "going through the lockers". Upon questioning of the Respondent by Ms. Love, it was learned that he did not find the child in the locker room or dressing room actually invading lockers, but found him in the locker room area where he was not supposed to be. He accused the child of stealing or attempting to steal when he had not actually observed him do this. The Respondent was criticized in this action for not having actually observed the child stealing and yet accusing him of it and for having brought prior behavior of the child up in his disciplining of the child, which Ms. Love felt to be inappropriate. In fact, the Respondent had some justification for suspecting this particular child of wrongful conduct or illegal activity because of past disciplinary violations committed by the child of a similar nature. At approximately the same period of time, in early September, the Respondent was observed to have grabbed a child by the arm in the act of admonishing the child for some alleged miscreant behavior and stating that "I am going to break your little arm". Ms. Love counseled the Respondent about these two instances and gave him an "improvement notice" on September 7, 1990 concerning them. An improvement notice is a disciplinary memorandum or report to a teacher such as the Respondent by which the Principal admonishes a teacher for inappropriate behavior and directs steps for improvement of the situation which led to that criticized behavior. On September 14, 1990, Ms. Love had another formal conference with the Respondent, since she had seen his arrogant, abrasive, overly-assertive behavior with colleagues and students continuing. She discussed with him his inappropriate behavior towards students and faculty and the matter of the Respondent's disciplinary referral of a student to the guidance counselor. He had referred a student to the guidance counselor for discipline and had been overbearing and abusive to the guidance counselor in his communication with her concerning the disciplinary referral. Ms. Love counseled him about the basic procedures involved in referring students for discipline, which specifically do not involve the guidance counselor. Rather, disciplinary referrals should appropriately go to the administration of the school, as delineated in the teacher's handbook, which the Respondent had previously been provided. Additionally, Ms. Love felt that the Respondent had exhibited a pattern of not turning in required documents in a timely manner; therefore, she gave him an improvement notice for these matters dated September 28, 1990. In fact, however, it was not established by the Petitioner that the Respondent had been untimely in turning in any required documents, reports, and the like, other than one report which had been due on a Friday, when he was absent due to illness and which he promptly turned in on the following Monday. During the fall of 1990, the Respondent was observed to frequently share details of his custody dispute and problems concerning his child and problems with his wife or former wife through notes, letters and conversations with other members of the staff in an inappropriate manner. He appeared to be emotionally preoccupied with these personal problems while on duty. On the third day of school in the fall of 1990, Mr. Simonson located his office temporarily at Rosenwald Middle School. He had done the same thing at other schools in the county that were having disruptions caused by on-going construction during the fall. Rosenwald Middle School at this time was undergoing construction work, including work on its air-conditioning system, such that many of the students and teachers did not have the benefit of air- conditioning. Mr. Simonson, therefore, elected to spend a day or so at Rosenwald Middle School on a sort of "Bob Graham Work Day". Ms. Love announced that fact over the public address system during the morning announcements on that day. The Respondent came to Ms. Love's office a short time later carrying the school's daily bulletin in his hand. He seemed hostile and agitated, leaned over her desk and shook the bulletin in her face, stating to her that he wanted her to sign on the bulletin her name and the statement she had made about the reason the Superintendent was at the school on that day. He further stated to her, in effect, that he was "fixing to be fired" and that he wanted Ms. Love to admit and put in writing on the face of the morning school bulletin the real reason, as he felt it, why the Superintendent was at the school that day. Ms. Love refused to do this and considered this behavior to be bizarre and threatening, given that the Respondent obviously felt that the Superintendent had been on campus that day to "spy on him". During late September of 1990, the school embarked, at the behest of Ms. Love and other administrators and teachers, on a "school spirit week" contest. The contest involved decorating the doors of the classrooms by the students, using as themes for the decorations certain words which denoted various aspects of "school spirit". The doors were to be decorated during "trust class time". "Trust classes" are classes which meet for approximately fifteen minutes or so at the outset of the school day, somewhat analogous to what is commonly known as "homeroom classes". The students were allowed to decorate the doors during their trust class time. Ms. Love accused the Respondent of keeping students overtime in their trust class, which required them to miss part of their next class and be tardy to that class in order to decorate his room door. In fact, she gave him an "improvement notice" in the nature of a reprimand for this on September 28, 1990. It was not proven, however, that the Respondent had actually kept students late at his behest for this purpose. In fact, his testimony is that he required no students to stay in his trust class working on door decorations after the time for the trust class to be over and instructed them to obtain permission from their other teachers should they elect to stay overtime to decorate the doors. The Hearing Officer having weighed the testimony, candor and credibility of the witnesses on this issue, including the ability of the witnesses to have knowledge of the facts concerning the time and methods employed to accomplish the door decoration effort, this violation of school procedures was not proven. The door decoration contest was judged on September 28, 1990 and the Respondent's class did not win. The Respondent became very agitated and angry at this result to the point of requesting and obtaining a meeting with Ms. Love concerning it. His temper and emotions were out of control on this occasion. He behaved in a loud, abrasive, and angry manner, even to the point of alternately crying, shaking, and shouting. He accused Ms. Love of penalizing his children by denigrating their efforts in the door decoration contest in order to hurt him, claiming that her actions really were a personal vendetta against him in the course of which the children were victimized. In the midst of his emotional outburst concerning this matter, he refused to listen to any explanation which Ms. Love attempted to give him but repeatedly interrupted her efforts to explain how the contest was judged and its rules. He even attempted to call a newspaper concerning the incident. He was inordinately obsessed with the conduct of the contest and with the result. As this incident with Ms. Love was progressing, Corporal Lassiter, the school Resource Officer, observed and heard part of it. In his view, having observed the behavior of the Respondent on this occasion and being aware of the Respondent's past history, Mr. Lassiter considered the possibility of initiating an involuntary Baker Act hospitalization at that moment, because of the Respondent's behavior. During the course of this confrontation with Ms. Love, Mr. Lassiter or others persuaded the Respondent to step across the hall to a different office to calm down. After he went into the other office with Mr. Lassiter and another administrator, Mr. Barnes, the Respondent's behavior continued to be somewhat bizarre. His demeanor toward Mr. Lassiter and Mr. Barnes alternated from being very angry and upset with them to calling them, and acting toward them, as though they were good friends. At one point, he told Mr. Lassiter that when he got elected Superintendent, all would hear about this incident in the newspaper and the reasons for it all "would become very clear". He stated then that Mr. Lassiter and Mr. Barnes would have good employment positions with him when he became Superintendent. Alternatively, before making these statements and also after making these statements, he became angry and hostile to both men, saying, in essence, that they were "all against me", becoming accusatory toward them and asserting, in essence, that Mr. Lassiter, Mr. Barnes, Ms. Love, and others in the administration were seeking to do him harm. Partly at the instance of Mr. Lassiter, the Respondent finally calmed down sufficiently to accede to Mr. Lassiter's recommendation that he call a substitute to take over his classes for the remainder of the day. A substitute was called and Mr. Lassiter then escorted the Respondent to his truck in order to see that he was removed safely from the campus without further incident with colleagues or students. As the Respondent was getting into his truck, preparing to leave the campus, he told Mr. Lassiter to "tell Ms. Love that she can kiss my ass". Teachers are required to be at Rosenwald Middle School by 7:30 a.m. The first bell rings at 7:37 a.m., and the "trust class" begins at 7:45 a.m. On approximately six occasions during September of 1990, Ms. Love had to sit in on the Respondent's trust class because he was late arriving at his class. She gave him an improvement notice concerning this deficiency on September 28, 1990. Additionally, on two separate occasions, Mr. Lassiter handled the Respondent's trust classes when he was late. The next school day after the incident concerning the door decoration contest on September 28, 1990 was October 1, 1990, a Monday. The Respondent was approximately 20 minutes late to school that day. Ms. Love, being concerned about the ramifications of the behavior she had witnessed in the Respondent the preceding Friday, met with the Respondent when he arrived at school for purposes of determining his state of mind and to talk to him about his tardiness. She found him still agitated, although not as much as he had been on Friday, the 28th. He continued to accept no responsibility for those actions and for his tardiness. He denied even being late, and as a result, Ms. Love assigned the school Resource Officer, Corporal Lassiter, to accompany the Respondent whenever he had students with him for the remainder of the day. It should be pointed out, however, that on most of the occasions when the Respondent was tardy to his first class during September of 1990, it was because he did not have a key to fit his office and would have to look for another co-worker to let him in. He was given a key at the outset of the school year which did not fit. Consequently, he disposed of it, ordering another key, the provision of which to him was delayed for unknown reasons. Later that same day, the Respondent brought between 20 and 30 students to the office for being tardy to class. The procedure for handling tardies at Rosenwald Middle School is that if a child is tardy, a teacher counsels with the child at first. The parents are contacted, the child is assigned to "team detention", and a student misconduct form is forwarded to the appropriate administrator upon tardies becoming repetitive. It is unusual to bring a student to the Principal's office for tardiness. The Respondent explained when they arrived at the Principal's office that all of the students were late to class and that Ms. Love should do something about it. This was a departure from normal procedures in dealing with tardy students. It should also be pointed out, however, that the school administration had recently issued a memorandum admonishing teachers that they should deal more severely with tardy students. When this entire group of students proved to be tardy on the day in question, the Respondent volunteered, with the agreement of the other physical education teachers/coaches, to escort the students to the Principal's office for disciplinary reasons concerning their tardiness. The other teachers involved agreed. On that same occasion, on October 1, 1990, when the Respondent had the group of students waiting outside the Principal's office, he apparently had some sort of confrontation with a student named Malackai. Apparently, the student was arguing with him and denying being tardy, which was the reason he was brought to the office. The Respondent offered to wrestle the student after school and "tear him limb from limb". This action caused Mr. Lassiter to step between the Respondent and the student and to send the student to Ms. Love's office to prevent any further such confrontation. Although the student was large for his age, these actions by the Respondent intimidated the student. On that same day, the Respondent was giving a lesson in softball on the softball field. He was being observed by Mr. Lassiter at the time at the behest of Ms. Love, who was concerned about his emotional stability. During this lesson, the Respondent, for unknown reasons, began rather randomly talking about accidents, lions, the dangers of eating red meat, and some sort of discussion of suicide. When he observed a student not paying attention to him, he hit the student on the head with a clipboard. He then continued his rambling discussion. A few minutes later, the same child asked when they would be allowed to play softball; and the Respondent hit him with the clipboard again. The student got tears in his eyes and was intimidated by the Respondent's conduct. When Mr. Lassiter observed that the Respondent might be about to commit the same act for a third time, he stepped between the student and the Respondent in order to prevent this from happening again. Physical education teachers are required to supervise students by direct observation in their locker room where they dress out for physical education classes and then dress in their regular clothes again at the end of classes. This is necessary in order to prevent fights and horseplay in the locker room, which can be dangerous. On October 1, 1990, during the Respondent's period to supervise the boys' locker room, he attempted to telephone Mr. Tucker, the Principal at Mosley High School. While he was on the telephone, he left the locker room class unsupervised and was unable to observe and supervise the locker room from the location of the telephone in the coach's office. On October 2, 1990, the Respondent again left his physical education class unsupervised while he was talking on the telephone for some 15-20 minutes. During the month that the Respondent had worked with Mr. Kent in the physical education department, Mr. Kent felt that although the Respondent generally had handled his duties well, he had spent an excessive amount of time on the telephone, rather than being in his assigned area. October 2, 1990 was the Respondent's last day of employment with the Petitioner. He was suspended with pay and shortly thereafter, the School Board met and accepted the Superintendent's recommendation to suspend the Respondent without pay based upon the conduct described in the above Findings of Fact occurring in August and September of 1990. The Board took the positions that this conduct amounted to gross insubordination, willful neglect of duty, and misconduct in office. In the Amended Administrative Complaint, on which this matter proceeded to hearing, which was filed on July 30, 1991, the factual allegations of the Complaint assert that the suspension action was taken based upon "alleged gross insubordination, willful neglect of duty, and misconduct in office"; however, the Amended Complaint actually charges that the factual allegations set forth in the Amended Complaint violate Section 231.36, Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code, concerning misconduct in office allegedly so serious as to impair the Respondent's effectiveness in the school system and charges incapacity (as a subset of incompetency) alleging violations of Rules 6B-1.001, 6B-1.006, and 6B-4.009, Florida Administrative Code. Thereafter, after the suspension occurred, the Respondent was involuntarily hospitalized pursuant to the Baker Act on the day following an apparent arrest for DUI, fleeing or attempting to elude a police officer, and having a concealed firearm. The Respondent was convicted of none of these charges but, rather, pled nolo contendere to a reduced charge of reckless driving and to a misdemeanor weapons charge. Adjudication of guilt was withheld. In fact, the weapon which the Respondent had in his car was believed by him to be legally possessed since it was merely the 22 pistol with which he used blanks for training his bird dogs. The pistol happened to be on the floorboard of his car when he was arrested by the officer. The Respondent spent a short period of time at Bay Medical Center, pursuant to involuntary Baker Act commitment on this occasion. Also, in 1990, at an undetermined time in the fall, he voluntarily admitted himself to the Rivendell Psychiatric Center for approximately 2-1/2 weeks in order to receive additional evaluation because he was unsure whether he was actually manic-depressive or not. Thereafter, while still suspended from his employment, in May of 1991, the Respondent apparently had an argument with his parents at their home in Bonifay and then left their home to return to his own home in the vicinity of Panama City in Bay County, Florida. Rumors apparently were communicated to law enforcement officials to the effect that the Respondent had threatened to kill his parents and had left their home with a high-powered rifle and was journeying to Panama City to his own home. Apparently, as a result of such reports, after the Respondent was at his own home, to his surprise, law enforcement vehicles and numerous law enforcement personnel, especially the Bay County Sheriff Department Swat Team, arrived in his yard, and, by megaphone, demanded his surrender. A television news crew was present at the scene and filmed the incident, which may have received billing as an "armed confrontation" between the swat team and the Respondent. In fact, this is untrue. When the Respondent observed the law enforcement officers arriving on his premises in a number of vehicles, he telephoned his attorney to inform him of the situation and then went to the door in response to the directive that he come outside. When he went to the door to ascertain why the law enforcement officers were at his residence, he was armed with a fork and a hamburger. He was charged with no crime in connection with this incident, although, apparently, he was involuntarily committed under the Baker Act once again for a brief period of time. The incident was disseminated to the public on the electronic media. However, no armed confrontation was proven to have occurred, nor was there any proof that the Respondent ever threatened to kill his parents. Although Mr. Simonson testified that there would be a great public outcry if he reinstated the Respondent because of this incident and the other incidents, there was no showing by the Petitioner that the incidents occurring at Rosenwald Middle School leading to the Respondent's suspension nor the incidents involving the alleged high-speed chase were ever communicated to the public generally or to parents of students of the Bay County school system or the students themselves. It was not shown by the Petitioner that the Superintendent or other officials of the Petitioner received any complaints from parents or members of the general public concerning the Respondent, his behavior, or his teaching performance. The incidents involving the alleged high-speed chase and the swat team confrontation, delineated in the above Findings of Fact, did not occur while the Respondent was on school premises nor while he was engaged in his duties as a teacher or coach. With regard to either incident, he was not shown to have committed any crime or conduct which can constitute misconduct in office. Both incidents occurred in the Respondent's private life, away from his employment and away from the School Board premises. The only conduct shown to have been disseminated in the public media involved the Respondent being taken into custody at his home by the Sheriff's swat team because the television news crew was there filming the incident. He was charged with no crime on that occasion and was shown to have committed no form of reprehensible conduct. He was merely involuntarily committed shortly thereafter, pursuant to the Baker Act. None of that can constitute misconduct in office, much less misconduct in office which in any way abrogates his effectiveness as a teacher in the school system involved. The Respondent has been taking Lithium and Prozac for his manic- depressive condition since 1989. He is presently under the treatment of Dr. David Smith, a licensed psychologist; and Dr. Ben Pimentel, a licensed psychiatrist, at a facility known as the "Life Management Center", as an outpatient. Both of these professionals opined that if the Respondent continues to take his medication, the symptoms of mania and depression will remain in remission, as they are at the present time. Indeed, in the past, since he first began taking medication for his condition in 1989 after being diagnosed as manic-depressive, at those times when the Respondent was taking his medication, his behavior and his teaching performance was up to the good and satisfactory standard which he had consistently exhibited from 1977 through the 1987-88 school year. It is only on those occasions when he has ceased taking his medication, in the apparent belief that his problem was not a chronic one, that he has exhibited the emotional instability, such as that displayed at Rosenwald Middle School in August and September of 1990, which is the subject of this proceeding. Indeed, both Drs. Smith and Pimentel, the only experts testifying in this proceeding, who testified for the Respondent, established that if the Respondent continues to take his medication, his symptoms of mania and depression will remain in remission and he will be competent to teach in terms of both his emotional stability and his ability to perform his duties as a teacher. Although Dr. Smith acknowledged that the rudeness exhibited by the Respondent on the occasions at issue in this case and his behavior involving striking a student and offering to wrestle a student might be behavior unrelated to the bi-polar disorder, the totality of the evidence supports the finding that, in the Respondent's case, given the many years of his teaching experience when he was a calm, caring, competently-performing instructional employee with behavior not characterized by such outbursts and aggressiveness, such conduct is, indeed, directly related to the present, active nature of his disorder on those occasions. On those occasions, he was not taking his medication. Dr. Pimentel believes that the Respondent needs to continue his medication. If he does continue his medication, he will be competent to continue teaching or to once again teach because his symptoms will remain in remission. Dr. Pimentel believes that the Respondent may need the motivation of a court order or employment directive or condition to insure that he continues his medication because if he obtains a medical opinion that he is no longer sick, he may not take the medication and stop the treatment. Additionally, Dr. Pimentel finds that the Respondent will require monthly counselling sessions and monitoring of his medication level to make sure it remains at a therapeutic level. Under those conditions, however, he would be capable of resuming his teaching duties. The Respondent, in his testimony, expressed the wish to obtain another medical opinion to make sure, in his view, that he is still manic- depressive, although he accepts the diagnosis that he is manic-depressive and is willing to continue his medication and to submit to monthly monitoring of his medication and monthly treatment by his presently-treating professionals.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondent, Steven T. George, be suspended for a period of two years, but that the suspension be abated and the Respondent immediately reinstated to his duties as an instructional employee of the Bay County school district, with all of the rights of a tenured teacher, under the following circumstances which should remain in effect for a probationary period of two (2) years: His psychiatrist shall file monthly with the School Board a detailed report of his attendance at counselling sessions and the result of his monthly blood tests to ascertain if his medication remains at therapeutic levels. He is required to maintain the therapeutic levels of Lithium and Prozac or such medication as his physician and psychiatrist deem medically appropriate. If he fails to attend counselling sessions or to maintain therapeutic blood levels of his appropriate medication for any two (2) consecutive months, then this should be determined to be, at law, willful neglect of duty, subjecting him to dismissal as a teacher with the Bay County school district subject to the Respondent's right to contest such an employment action, pursuant to Section 120.57, Florida Statutes, in this forum. There should be no award of back pay in light of the above Findings of Fact and Conclusions of Law. There should be no award of attorney's fees in light of the above Findings of Facts and Conclusions of Law , and the opinion in Werthman v. School Board of Seminole County, Florida, 17 FLWD 1245 (Fla. 5th DCA, opinion filed May 15, 1992; Case Number 91-1831). The cases cited by the Respondent seem to accord the Respondent a hearing opportunity on the issue, with award of fees being discretionary. The Werthman decision appears contra in termination proceedings, however. DONE AND ENTERED this 31st day of May, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1-23. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record evidence. Accepted. Accepted, except that it was not proven that he had "gone through Ms. Love's mailbox". Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 28-29. Accepted. Rejected, as not supported by preponderant, competent evidence. Rejected, as not supported by preponderant, competent evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 33-35. Accepted. 36. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 37-39. Accepted. 40. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 41-47. Accepted. 48. Rejected, as not, in its entirety, being in accordance with the preponderant, competent evidence of record. 49-56. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 57-61. Accepted. 62. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-13. Accepted. 14. Rejected, as not supported by preponderant evidence. 15-22. Accepted. 23. Rejected, as not entirely in accordance with the preponderant evidence. 24-30. Accepted. 31-36. Accepted. 37. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant evidence. 38-41. Accepted. 42-48. Accepted. 49-51. Accepted. 52. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 53-54. Accepted. Rejected, as not in accordance with the evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not in accordance with the preponderant evidence of record. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not being entirely in accordance with the preponderant evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 61-63. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 64-72. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected, as not in accordance with the preponderant evidence of record. (Second No. 74). Accepted. 75-78. Accepted. 79. Rejected in the sense that it was proven by the Petitioner that at the time he was suspended, the Respondent was incompetent to teach due to incapacity related to his emotional instability. 80-85. Accepted. COPIES FURNISHED: Jack W. Simonson, Superintendent P.O. Drawer 820 Panama City, FL 32402 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Franklin R. Harrison, Esq. HARRISON, SALE, ET AL. 304 Magnolia Avenue P.O. Drawer 1579 Panama City, FL 32401 David Brooks Kundin, Esq. DOBSON & KUNDIN, P.A. 210 South Monroe Street P.O. Box 430 Tallahassee, FL 32302
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
