The Issue The issue in the case is whether the Respondent’s employment with the Polk County School Board should be terminated.
Findings Of Fact At all times material to this case, the Petitioner employed the Respondent as a teacher pursuant to a Professional Services Contract. On April 1, 1999, the Respondent, then employed as a teacher at Jenkins Middle School in Haines City, Florida, became involved in an incident between a student and the parent of another student, during which the parent physically assaulted the student. The Respondent’s involvement was deemed to be inappropriate by the school principal. On April 19, 1999, the Respondent received a letter of reprimand for his actions during the incident. Although the Respondent noted that he did not agree with the reprimand, there was no appeal taken. By September of 1999, the Respondent had transferred to Crystal Lake Middle School in Lakeland, Florida, where he taught math. During his first month there, the Respondent told a male student that the student looked and behaved like a girl. The student complained to Eileen Killebrew, the school’s principal, who wrote a letter of reprimand to the Respondent dated September 24, 1999, noting that middle school students are "very emotional and impressionable" and that they look to teachers for "guidance and support." She warned the Respondent that his students "certainly do not expect to be demeaned in any way." She advised the Respondent that "further instances of inappropriate behavior will call for further disciplinary action." The Respondent received a copy of the letter and did not challenge the reprimand. By November of 1999, a number of additional complaints against the Respondent had been received from students or parents. By letter dated November 2, 1999, the principal advised the Respondent of the specific complaints (essentially a pattern of making disparaging or otherwise inappropriate remarks to students, to parents of students and to other teachers) and asked that he submit a written response to the allegations. The Respondent did not submit the requested response, but instead met with the principal to discuss the matter. By letter of reprimand dated November 17, 1999, the principal again advised the Respondent that his behavior was unacceptable and warned that additional instances would result in further disciplinary action. The Respondent received a copy of the letter and no appeal of the reprimand was taken. On February 8, 2000, the Respondent wrote a disciplinary referral for a student. On the referral, the Respondent wrote that he had told the student to "shut his redneck mouth up." Disciplinary referrals are commonly sent to the student’s parents. On February 10, 2000, the principal issued another letter of reprimand to the Respondent, stating that she found it "reprehensible that you would resort to this kind of childish behavior when dealing with students." She further wrote that she had "serious concerns about your teaching effectiveness and indeed about your professional future unless improvements are made." She again warned that further incidents could result in more severe disciplinary action. In August of 2000, the principal received information regarding inappropriate statements made to a parent during a meeting of the parent and her female child with the school’s guidance counselor. The Respondent was not involved in the meeting but apparently walked into the room where the meeting was taking place. In discussing the incident, the principal also learned that the Respondent had previously used the female student to pass his phone number to a college student interning at the school and to whom the Respondent was attracted. By letter dated August 23, 2000, the principal reprimanded the Respondent for his behavior and warned further inappropriate behavior would result in her requesting that he be suspended from teaching. In September of 2000, the Respondent was involved in two separate events. In one incident, the Respondent made inappropriate remarks to a student about the child’s mother. The child told the mother, who came to the school and complained to the principal. In the other incident, a teacher at the school reported an incident where the Respondent pushed or struck a child on the forehead. By letter dated September 22, 2000, the principal advised the Respondent of the complaints and scheduled a conference with him to discuss the situation. She advised that he could bring a representative to the conference. The conference occurred on September 25, 2000. The Respondent attended the meeting and was accompanied by a representative from the Polk County Education Association. During the meeting, the Respondent acknowledged the incidents. By letter to the Polk County School Superintendent dated September 25, 2000, the principal requested that "the next step in progressive discipline be taken" and that the Respondent be suspended without pay for five days from his teaching position. By letter dated September 28, 2000, from the Polk County Superintendent of Schools, the Respondent was advised that he would be suspended without pay for five days beginning October 2, 2000. The suspension occurred as scheduled. On or about May 16, 2001, the Respondent became involved in events with two students in separate classes. In the first incident, students in the Respondent’s classroom were completing a math exercise which required coloring answers on a score sheet. The Respondent noticed that one of the students was incorrectly coloring the sheet and made a disparaging statement to the student about his work, stating that if the instructions had been written in "clown" the student might have understood them. The Respondent and the student eventually engaged in a verbal altercation during which the Respondent used the word "stupid." The student understood the Respondent to say that the student was stupid. The Respondent asserts that he actually said the child was "acting stupid." In any case, the Respondent wrote a disciplinary referral on the student. At the change of classes, the student told a close friend who was coming into the Respondent’s classroom about the disciplinary referral. The friend asked the Respondent about the referral and the Respondent declined to answer the question, instead suggesting that after school, the friend could ask his "boyfriend" about the incident. The friend concluded that the Respondent was suggesting that the children were homosexual. The students complained to the principal about the Respondent’s statements. The principal asked the Respondent to respond to the allegations, which he did by written statement. Although the Respondent’s statement does not address use of the word "stupid" in reference to the first child, the statement acknowledges that he told the second student to get the information by asking his "boyfriend" though he denied he had intended to imply homosexuality in his remark. By letter to the Polk County School Superintendent dated May 18, 2001, the principal requested termination of the Respondent’s employment with the Polk County School System. By letter from the Polk County School Superintendent dated May 21, 2001, the Respondent was notified that the Superintendent would recommend to the School Board that his employment be terminated. In the letter, the grounds for the termination are identified as the Respondent’s "continued unprofessional and inappropriate behavior with students including embarrassing and disparaging remarks." By letter from the Polk County School Superintendent dated June 14, 2001, the Respondent was notified that the School Board had accepted the Superintendent’s recommendation that his employment would be suspended pending an administrative hearing. Based on the continuing pattern of unprofessional behavior towards students, parents and other teachers, the Respondent’s effectiveness as a teacher has been diminished to the extent that the Crystal Lake Middle School principal does not want the Respondent to return as a teacher at her school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Polk County School Board enter a final order terminating the employment of Thomas D. Lindemann as a teacher at Crystal Lake Middle School. DONE AND ENTERED this 26th day of October, 2001, in Tallahassee, Leon County, Florida. _______________________________ WILLIAM F. QUATTLEBAUM 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 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2001. Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Bartow, Florida 33831 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jim Thornhill, Superintendent Polk County School Board 1915 South Floral Avenue Bartow, Florida 33831-0391 Charlie Crist, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Based on the evidence adduced at hearing, the undersigned makes the following findings of fact: Adrian Garcia attended Homestead Senior High School for the 1987-1988 school year and for approximately the first half of the 1988-1989 school year. Throughout his stay at the school he consistently engaged in disruptive conduct which interfered with his learning and the learning of the other students in his classes. His misbehavior was not confined to any one class or directed at any one particular teacher. Many of his teachers formally complained about Garcia by submitting to the administrators at the school written referrals describing Garcia's misdeeds. Garcia's art teacher during the 1987-1988 school year, Susan Maguire, was one of the teachers whose ability to perform her teaching responsibilities suffered as a result of Garcia's antics. Fortunately for Maguire, Garcia skipped a number of her classes. When he did attend, however, he often arrived late without an excuse and created a disturbance that disrupted the lesson. Garcia was loud, used vulgar language and threw things while in class. He rarely did the work he was assigned. On one occasion in March, 1988, Garcia walked out of class without permission while Maguire was teaching and visited a nearby classroom. When Maguire confronted Garcia regarding the incident, Garcia told her that he could go where he pleased. Monte Libert, Garcia's industrial arts teacher during the first half of the 1988-1989 school years, experienced similar problems with Garcia. On more than one occasion, Garcia left the classroom without permission during the middle of a lesson. He yelled and screamed in class and hurled profanities at Libert in front of the other students. On one occasion, he vandalized school property by sawing off a leg on one of the stools in the classroom. Of greatest concern to Libert was Garcia's throwing of objects at other students while they were working on their machines. This posed a very serious safety hazard. Libert gave Garcia failing grades, not only in conduct, but in effort and academic performance as well, inasmuch as he did little or no work on his assigned projects. Paula Knight was Garcia's food service teacher. She too had to devote considerable time and energy to deal with Garcia's inappropriate conduct. While in her class, instead of listening to Knight or doing his assignment, Garcia would often tap his pencil loudly, tip his chair to make noise, make derogatory comments to other students, shout across the room, or engage in other misconduct which would make him the center of attention. The proverbial "straw that broke the camel's back" was an incident that occurred in Knight's classroom on December 12, 1988. At the end of class that day, in front of his classmates, Garcia displayed a hunting knife, with a ten- inch blade, after removing it from its sheath. He had been carrying the knife and sheath in his book bag. Knight, who had witnessed the display, reported the incident by written referral to Gregory Zawyer, the Assistant Principal. Zawyer investigated the matter and confirmed the accuracy of Knight's report after a school security guard retrieved the knife from Garcia. Garcia was no stranger to Zawyer. In his capacity as Assistant Principal, he had received a number of prior referrals alleging misconduct on Garcia's part. Following each prior referral, he had met with Garcia. He had also conversed with his parents. As early as March, 1988, Zawyer had informed them that their son was a candidate for placement in an educational alternative program if his behavior did not improve. Unfortunately, notwithstanding the efforts of Zawyer and others at the school, there had been no discernible improvement in his conduct. In accordance with Petitioner's Code of Student Conduct, if a student is in possession of, or displays, a weapon, such as a hunting knife, on school grounds, the school is required to expel the student. Accordingly, such action was taken against Garcia. On January 3, 1989, the Superintendent of Schools rescinded the expulsion and assigned Garcia to the Opportunity School Program at Douglas MacArthur Senior High School-South.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order approving Adrian Garcia's assignment to the disciplinary program at Douglas MacArthur Senior High School- South. DONE and ENTERED this 18th day of April 1989, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 18th day of April 1989. COPIES FURNISHED: Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Mr. and Mrs. Arturo Garcia 25323 S.W. 127th Place Naranja, Florida 33032 Madelyn P. Schere, Esquire School Board Administration Building 1450 N.E. Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez, Superintendent School Board Administration Building 1450 N.E. Second Avenue Miami, Florida 33132 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact At all times relevant hereto, respondent, James Mickey, Jr., was an occupational placement specialist at Homestead Senior High School (HSHS) in Homestead, Florida. He has taught there since 1979 and has been an employee of petitioner, School Board of Dade County (Board), since 1970. On April 23, 1987, and as set forth in greater detail on June 1, 1987, petitioner issued proposed agency action alleging that Mickey had (a) wrongfully converted $200 in cash to his own use which belonged to another person, (b) accepted a $715 coaching supplement for services that he did not perform, and (c) falsified or failed to keep adequate records for a Work Study Program of which he was in charge. For this, the Board has proposed to suspend Mickey for ten working days, and if he failed to repay $990, to suspend him for an additional twenty working days. The threat of this disciplinary action prompted Mickey to institute this proceeding. Conversion of Funds - This charge stems from an allegation made by a former student at HSHS who claims she was required to give Mickey $200 of her proceeds derived from working in the Work Study Program in the spring of 1985. As might be expected, the validity of this charge turns on the credibility of the testimony of the "victim" and the accused. The former student, who is now twenty-one years old and will be identified by her initials, L. D., worked part-time in school year 1984-85 in a work study program at the HSHS "slush house," so named because slush drinks and other munchies were sold there during lunch hour, and from 2:30 p.m. to 6:30 p.m. each school day. Profits were used for such laudable purposes as purchasing uniforms for the boys and girls school track teams. Sometime in the spring of 1985, Mickey noticed a shortage of funds at the house and suspected foul play, particularly since only he, L. D. and the custodian had keys to the house. Mickey stated he mentioned this to L. D., who denied any impropriety, but who eventually resigned from her job on May 15. Because of the accusations, Mickey contends permanent animosity between him and L. D. was engendered. Whether another student was hired to replace L. D., and if so whom, is not of record. While employed in the program, L. D. kept track of the hours she worked by recording this information on a piece of paper. This was then given to Mickey who placed the information on a time card to calculate her wages. L. D. could not recall what her hourly rate of pay was, or the amount of wages to which she was entitled. Because of paperwork delays, checks for the work study program participants, such as L. D., were not issued and distributed until August, 1985. L. D.'s proceeds totaled in excess of $200 for the semester but she could not recall the specific amount. According to L. D., Mickey brought her check to her house one day and told her to cash it and give him back $200 for payment due another student who had replaced her. He later telephoned her to remind her about the money. After cashing the check on August 28, L. D. went to the school office looking for Mickey. She carried a bank envelope with an undisclosed amount of cash. She first went to the principal's office and related to his secretary that she was going to give Mickey the cash in the envelope because Mickey had told her it was needed to pay another student. Finding this to be somewhat unusual, the secretary took L. D. to the library where they met the assistant principal (Bernstein). The secretary told Bernstein that the "young lady has money" for Mickey. L. D. repeated her story that she had $200 for Mickey that was to be paid to another student. When Mickey could not be found, L. D. departed. Neither the secretary or Bernstein saw any cash change hands, and neither knew whether the envelope actually contained $200. Later on, L. D. found Mickey in his office and gave him the $200. There is no evidence that Mickey then gave the money to another student, or returned it to the program. Word of this alleged transaction reached the principal who asked L. D. to write a statement. She did so that day although she wrote portions of it at two separate times. The statement generally corroborates L. D.'s testimony given at hearing. Respondent does not deny meeting with L. D. in his office on the morning of August 28 but denies receiving any money. However, L. D.'s testimony is deemed to be the most credible and persuasive, is corroborated by other independent testimony, and is hereby accepted. Coaching Supplement - Mickey has been a coach of various athletic teams at HSHS for a number of years. Under school policy, a coach was given a salary supplement as compensation for the additional hours devoted to coaching a team. Prior to school year 1984-85, Mickey had served as head coach of both the men and women track teams and had received two supplements for his services. However, his request to coach both teams in 1984-85 was eventually turned down since school policy did not permit a person to serve as head coach for two teams at the same time. While the record suggests that Mickey may have actually performed head coaching services for the two teams during the first part of school year 1984-85, he was compensated only as head coach of the boys cross- country track team. Its season began in August, 1984, and required his services until around 7:00 p.m. or later each school day. To Mickey's credit, his team won the state championship that year. For these services, Mickey received a salary supplement. After learning that his request to coach the two track teams (and receive two supplements) had been rejected, Mickey met with the HSHS principal, Percy Oliver, in early January, 1985, to see if he could earn the supplement in another manner. He was told of an opening for an assistant coach on the wrestling team that would pay a $715 supplement. Although the wrestling season had already begun in November, and would end in February, Oliver approved Mickey's request to serve as assistant coach for the wrestling team. To earn the supplement, Oliver stated it was necessary for Mickey to "go out and assist the kids' wrestling coach" and attend practices and meets. In an interview prior to hearing, Mickey acknowledged receiving the $715 even though he failed to attend any practices or meets. The only duty he could recall performing was advising the head coach on unspecified "rules and procedures." He also stated he did not deserve the supplement for wrestling duties, but was entitled to the extra compensation for his other school activities. At hearing, Board witness Gray described what he considered to be the normal duties of an assistant wrestling coach in an effort to show that Mickey did not earn his supplemental pay. However, Gray's testimony was drawn from his own coaching experience in the late 1960s, and is deemed to be too remote to be relevant to this proceeding. Even so, it is found Mickey was not entitled to compensation for serving as an assistant wrestling coach in school year 1984-85 since he did not perform the duties expected of an assistant coach. Recordkeeping - During school years 1983-84 and 1984-85, Mickey was in charge of a "work study program" at HSHS. As such, he had the responsibility of keeping records for the program and authorizing payment to students. This program is designed to provide on-the-job training to students enrolled in vocational educational programs who are otherwise qualified. Students were then compensated at the rate of $3.25 per hour for their services which could not exceed twenty hours per week. Mickey acknowledged he was familiar with the recordkeeping requirements of the program, since he had been involved with work study programs for some fifteen years. To be eligible for the program, a student must have been enrolled in a vocational educational program at HSHS, and be a member of a family meeting certain income criteria. In this regard, the program is funded by a federal grant, and income criteria are published annually by the federal government. As a prerequisite to enrollment students are obliged to fill out a form entitled Vocational Work Study Student Income Determination. The form must be signed by the parent or guardian, and reflect the number of members in the family as well as the annualized family income. The form itself does not require additional income verification by the parents but Mickey stated they sometimes attached additional income verification to the form, such as a W-2 form. Although it was Mickey's responsibility to verify the students' eligibility, he indicated that if the information submitted facially complied with the eligibility requirements, he made no further inquiry. Students enrolled in the program were to be paid every two weeks. Before payment could be made, it was necessary for the supervising teacher (Mickey) to submit paperwork to the Board's county-wide coordinator (Joseph Zaher) where the program payroll was processed. Through testimony from another work-study program supervisor, it was established that preparation of paperwork was sometimes "delayed," but never more than for a few weeks. In Mickey's case, the completed paperwork was not submitted until at least June, 1985, or after the regular school year had ended, and checks were not issued until July or August. Therefore, the students were not paid biweekly as they should have been. It is also noted that the actual paperwork was prepared by a former student, D. M., rather than by Mickey himself. Mickey blamed the delay on the "downtown office," saying one set of paperwork sent in March had been lost, and this forced him to send a second set to Zaher in June or July. Even if this is true, Mickey did not timely supply the first set of paperwork, and he was negligent in not following up on the matter to ensure that the students were promptly paid. The notice of charges alleges that certain students were paid for work not performed. The pertinent program "write-in roster" and attendance cards reflect that student K. M. attended an out of town track meet on May 9 and 10, 1985 but was also paid for working in the work study program on the same days. Even though K. M. was assisting Mickey at the track meet, she was not eligible for payment in the program. In the case of student T. M., Mickey relied upon a time sheet approved by another teacher and cannot be held accountable for that teacher's error. The student was also paid for working for the registrar on March 7, 8 and 20, 1985, even though he was absent from school on those days. This was improper. Mickey gave no explanation for this error except to say that he had no "guidelines" for administering the program. As to student L. D., payroll records reflect she worked after May 15, 1985, when, in fact, she quit on that date. No explanation for this variance was given by Mickey except to say he believes she received pay only for actual work performed. The notice also alleges several students were allowed to enroll in the program even though they were ineligible. At hearing, Mickey stated that although he knew he had an obligation to verify eligibility, he accepted without further checking the information given by the parents on the enrollment form. The pertinent records reflect that students T. M., K. M., L. D., M. W. and T. C. did not provide proof that they were either income eligible or enrolled in a vocational program. They also reflect that one person, D. M., was allowed to work in the program from February through April, 1984, even though she had graduated from HSHS in January, 1984. Although there are a number of mistakes, errors and omissions in the work study program records, and they failed to comply with Board recordkeeping requirements, there is no evidence that Mickey intentionally violated any program rule or regulation, or applicable state recordkeeping requirements. Miscellaneous - The Board investigated the charges against Mickey, and the results of its audit were published in a local newspaper. As a result of such notoriety, it was established that Mickey's effectiveness as a teacher had been impaired.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding respondent guilty of those charges set forth in the conclusions of law, and that he be suspended from his position for ten days without pay. Petitioner should also dispose of the $990 in a manner consistent with paragraph 8 of the conclusions of law. DONE AND ORDERED this 9th day of December, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1987.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent committed certain alleged acts of improper conduct in the form of inappropriate statements to female students and whether he committed acts of inappropriate touching of a female student and therefore, whether the Petitioner has just cause to terminate him as a contract teacher (Physical Education teacher and basketball coach).
Findings Of Fact Wilfred Brown is a black male who was employed under an annual contract by the Jackson County School Board. He was employed in the position of a physical education teacher and as the boys' basketball head coach at Sneads High School. Sneads High School actually enrolls both middle and high school students. Wilfred Brown was generally called "Coach Brown" at school. When he assumed the head coach position, he was permitted to select an assistant basketball coach to assist him. James Taylor had previously been an assistant basketball coach, but was not selected to be an assistant basketball coach by Coach Brown. Charlsie Maphis was a white female student at Sneads High School. She was a junior during the 2000-2001 school term. She dated a black male basketball player named Jason Brown. Her father did not approve of inter-racial dating and therefore, she was unable to openly date Jason Brown. Because of this Charlsie Maphis would come to the Sneads High School gym in order to spend time with Jason Brown. On a number of occasions Jason Brown and Charlsie Maphis would demonstrate inappropriate displays of affection, in terms of the Student Conduct Code, while they were in the gym. They would, for instance, sit between each others legs, lay their heads in each others' laps and otherwise engage in close physical contact, none of which was considered appropriate student behavior. When Coach Brown observed this behavior he would make them stop. Charlsie Maphis explained to Coach Brown that due to their racial differences she could not date Jason outside of school and also stated that the gym was the only place that they could spend any time together. Coach Brown did not accept this explanation and did not respond in a sympathetic way. Instead, he continued to enforce the Student Conduct Code. He would thus not allow Charlsie Maphis and Jason Brown to "hang-out" in the gym and demonstrate inappropriate conduct. Charlsie Maphis opined that Coach Brown was a racist and treated her and Jason Brown more harshly or unjustly because of their inter-racial dating. She did not feel that Coach Brown treated other students the same way. The evidence demonstrated, however, that Coach Brown enforced the rules of conduct on other student couples as well. Other students, however, did not exhibit the anger or attitude that Charlsie Maphis exhibited against Coach Brown because he so enforced the rules of conduct. Coach Brown, at some point, told Charlsie Maphis that she was a distraction to Jason Brown and because of that and her conduct, Jason Brown was not giving the basketball program his best effort. Coach Brown eventually removed Jason Brown from the basketball team during his senior year because Jason did not cooperate with the Coach and did not "have his heart in the game." Coach Brown also removed two other black male basketball players from the team. They were Lamar Colston and Lynn Colston. Lamar and Lynn Colston were considered talented basketball players but did not get along with Coach Brown. Their step-father was James Taylor who had once served as assistant basketball coach at Sneads High School before Coach Brown became the head coach. Coach Brown selected another person to replace James Taylor as assistant basketball coach. This appeared to cause ill-feeling between James Taylor and Coach Brown as well as his step-sons, Lamar and Lynn Colston. In this regard, Charlsie Maphis claimed that she did not really know James Taylor. However, James Taylor and his step-sons lived in the same neighborhood as Charlsie Maphis and James Taylor was sometimes the umpire for the softball team on which Charlsie Maphis served as catcher and third baseperson. Charlsie Maphis' friend, Sarranda Hall, testified that she saw Charlsie Maphis talking to James Taylor after a ballgame. Kerri Maphis, the younger sister of Charlsie Maphis, also testified that their mother was a long-time friend of James Taylor. Charlsie Maphis also admitted, on cross-examination, that she gave "shoulder-rubs" to Lamar Colston and the evidence demonstrates that she must have been fairly close friends with Lamar Colston and at least to some extent with his step-father James Taylor. In consideration of the above facts and the fact that James Taylor had been the assistant basketball coach at Sneads High School, Charlsie Maphis' statement that she did not really know James Taylor is not deemed credible. Moreover, her failure to readily admit her knowledge of and acquaintanceship with James Taylor casts doubt upon her testimony concerning her motivation to conceal or testify with a lack of candor. In any event, after Coach Brown removed the Colston brothers from the basketball team, James Taylor started a campaign to get Coach Brown fired. Mr. Taylor met with the principal, administrators, the superintendent and the School Board itself in an unsuccessful attempt to have Coach Brown terminated from his position. Charlsie Maphis's father learned that she was dating Jason Brown and ordered her to stop sometime during the 2000- 2001 school year. Therefore, Charlsie Maphis was supposed to have stopped dating Jason Brown and she testified that when Jason Brown graduated in May 2001, they were no longer dating. Jason Brown, however, testified that they did not end their relationship until much later in the year 2001. When school resumed for the 2001-2002 school year, Charlsie Maphis was no longer in Coach Brown's class. Generally she would only see him in passing on the school campus or when she specifically made a trip to the gym. Nonetheless, according to Charlsie Maphis, even after Jason Brown had graduated, when Coach Brown would see her at school he would still "get in her business" by asking her if she and Jason Brown were still together and how was Jason getting along. It became clear during that 2000-2001 school year and the 2001-2002 school year that Charlsie Maphis did not like Coach Brown, based upon her own testimony and that of other students who were aware that she did not like Coach Brown based upon things they heard her say or the way she acted when she was in his presence. Charlsie Maphis' alleges that around the month of December 2001, she went to the gym and asked Coach Brown to let her use the phone in his office to call her mother. She testified that after she came into his office she "slumped down in a chair" resulting in her abdominal area and waist being exposed to his view because her undershirt slid up when she slumped down in the chair, according to her testimony. She contends that after Coach Brown saw her stomach and waistline he made inappropriate comments about her, such as that she had a "sexy waistline" and purportedly touched her inappropriately around her abdominal area and licked her exposed stomach area and placed his hand on the waistline of her pants. Coach Brown denied each allegation by Charlsie Maphis that he made inappropriate statements to her or engaged in inappropriate physical conduct or touching toward her. In this regard Charlsie Maphis made a written statement, dated February 20, 2002, setting forth her allegations against Coach Brown, testifying in a similar manner at hearing concerning her allegations. In her written statement, Charlsie Maphis states that it was nothing out of the ordinary for her to go to Coach Brown's office. However, under the facts and circumstances of their strained relationship, as revealed by the testimony at hearing, it is apparent that she did not like Coach Brown and was not in his class that year and therefore, it is very unlikely that she would regularly go to his office for any reason. Most of her time in school she avoided being around Coach Brown and tried to avoid even speaking to him, according to her own testimony. When he spoke to her, she, by her own admission, forced herself to be cordial or publicly respectful. It thus appears very unusual for her to go to Coach Brown's office, particularly on a regular basis, as she contends. In essence, Charlsie Maphis claims that the incident in the office occurred after part of her body was exposed when her undershirt slid up because she sat slumped in a chair. However, when Charlsie Maphis first reported her allegations to Ms. Dixon, the assistant principal, she claimed that she sat on a table, not in a chair, in Coach Brown's office on the occasion in question. This is established by Ms. Dixon's testimony, which is credited. Although Coach Brown is alleged to have made inappropriate statements and acted inappropriately after Charlsie sat slumped in the chair, Ms. Maphis' bare abdominal area and waistline were not seen and could not be seen beneath her over-shirt when she demonstrated, during the hearing, dressed in the same clothing, sitting with the same posture and holding her hands in the same position as she allegedly was in on the occasion of the incident. Contrary to her allegations that Coach Brown licked her on the stomach, Ms. Maphis told two of her friends that Coach Brown had licked her ear and offered her money to lick her ear, not her stomach or waistline. These parts of the body are so far apart and different that her statements to two different people to the effect that it was her ear and not her stomach involved in the incident cannot be regarded as an inadvertent mis-statement. Under the circumstances, its probative value reflects negatively on the credibility of Charlsie Maphis. Ms. Maphis claimed to be so surprised by Coach Brown's statements and actions that she was unable to move when he allegedly touched and licked her inappropriately and she claimed that she had to find an excuse to leave the room after she told him to "back-up." Her statements are not credible because, based upon her demeanor, she is obviously an assertive person who was not and is not afraid of Coach Brown. Additionally, it is found, based upon her testimony that Coach Brown talked on the phone several times at his desk while she was allegedly sitting in the chair in his office, that she would have had ample opportunity to move or leave the office without the necessity of searching for an excuse to leave. Moreover, at the time of the alleged incident, Coach Brown had a class waiting for him outside of his office door in the gym, and his students, players and assistants were constantly coming in and out of the office. Having observed the candor and demeanor of Charlsie Maphis in testifying to these incidents and occurrences, and also observing the candor and demeanor and apparent credibility of the witnesses opposed to her testimony, it is found that the incident did not occur as alleged by Charlsie Maphis and her testimony is not credited. Ms. Maphis also alleged that Coach Brown discussed meeting her one weekend to exchange massages at his parents' home were he lived when his parents would be away. This allegation is not credible because the evidence shows that, contrary to Ms. Maphis' claim, Coach Brown's parents had a strict rule that no child of theirs, including Coach Brown, could entertain any female in their home while they were not present. Coach Brown lived in their home. They were not away for any weekend which would have allowed such an occurrence to happen during the time period in question, and it is not established that Coach Brown had any such intention. Ms. Maphis' testimony in this regard is not credited. There may have been a financial motive for the allegations by Ms. Maphis. After the allegations became public she told one of her friends that she was going to get some money out of Coach Brown and admitted consulting an attorney about a civil lawsuit against Coach Brown. In fact, Ms. Maphis told the School Resource Police Officer, Brian Stagner, that "she felt she could get some money out of this." Although Ms. Maphis claims that Coach Brown had engaged in inappropriate conduct with other students or former students, each one of these students or former students denied that any such conduct had ever occurred. In fact, each of them testified that Coach Brown was completely professional in his conduct toward them at all times. Ms. Maphis may also have been motivated out of dislike for Coach Brown. She told Office Brian Stagner, that ". . . she was going to do everything she could to fuck him up." She told Officer Stagner that "if she could not go after him criminally that she would go after him civilly" and that she felt she "could get some money out of this." This conversation took place during a school day at Sneads High School where Officer Stagner was the Police Department's School Resource Officer. In any event, after observing Charlsie Maphis and her testimony at the hearing and listening to the testimony of Officer Stagner, other witnesses, and considering all the other evidence, it is concluded that Charlsie Maphis' testimony may be motivated by some malicious intent toward Coach Brown. Due to her general lack of credibility, I also do not credit her allegations that Coach Brown asked her to meet him one weekend; that he called her into his office and offered her $75.00 to let him "lick her again"; or that he asked her to come to his home one weekend to exchange massages. Holly Roberts claims that around the month of December 2001, she went to Coach Brown's office to use the telephone and when she arrived Coach Brown asked her to input some student absentees into his computer. While she was doing this and while he was having a telephone conversation, she observed a vacation brochure on his desk related to Hawaii. Holly Roberts admits asking Coach Brown if she could go with him to Hawaii. She then alleges that he told her that he would buy her a ticket to go with him to Hawaii. It is apparent from the totality of the testimony and circumstances that she asked him if she could go to Hawaii more or less in jest or in a joking manner. Coach Brown denies that he offered to buy her a ticket to Hawaii. Holly Roberts also maintains that Coach Brown asked her to come to his home while his parents were out of town for the weekend to give him a massage. Coach Brown admits that Holly Roberts asked him if she could go to Hawaii, but denies offering to buy the ticket and moreover testified that he jokingly told Holly Roberts that she could go to Hawaii with him if she would pay $9,000.00 or $10,000.00 for tickets and costs for everybody in his party to go. He denies ever talking to her concerning her coming to his parents' home during their absence or giving him massages or shoulder rubs. The preponderant evidence establishes that Holly Roberts is not a credible witness in this regard. The totality of the evidence and circumstances related to her and to witness Montario Garrett establishes that she was dating, or in a close personal relationship with Montario Garrett. She did not tell the truth about the nature of the letter that she wrote to Montario Garrett. She maintained that she wrote it to help him break up with Lauren Faircloth, a fellow student. Montario Garrett testified contrarily, however, that it was a "love letter" and that they were in a dating relationship. The plain language of the letter clearly supports his version of its nature. It appears likely that she misrepresented the nature of their relationship due to her fear of her parents or her father's disapproval of her inter-racial dating relationship with Montario Garrett since Holly Roberts is white and Montario Garrett is black. She falsely accused Montario Garrett and Michael Reed of telling her that Coach Brown had inquired if she would date "black boys." She also falsely testified that she was afraid of Coach Brown because Montario Garrett had told her that Coach Brown had a history of "messing with other young girls." Montario Garrett categorically denied that he ever told her that story. Moreover, Holly Roberts minimizes her acquaintanship with Charlsie Maphis. However, there were numerous opportunities for Holly Roberts and Charlsie Maphis to be together and to communicate during their tenure at Sneads High School. They were both in the same DCT class for two semesters in the 2001-2002 school year. They were on the softball team together in February of 2002 when these allegations were made public. Holly Roberts rode to school everyday with one of the best friends of Charlsie Maphis' younger sister. Before the allegations against the Respondent became public the younger sister Kerri Maphis, Nicole Rabon and their other friend Samantha Wilkerson, had been discussing rumors about alleged inappropriate conduct by Coach Brown including the rumors of his alleged misconduct towards Charlsie Maphis, Kerri's older sister. During the first and second semester of the 2001-2002 school year, Charlsie Maphis and Holly Roberts were in Mr. Stoutamires' Career Development class. Charlsie Maphis and Holly Roberts testified that Mr. Stoutamire did not require students enrolled in this class to attend class everyday. Instead, students were on their own and could go and come to work or even go home, according to their testimony. Both Charlsie Maphis and Holly Roberts had an unexcused absence from two of their classes on February 20, 2002, and apparently left the campus together. During the first and second semester of the 2001-2002 school year, Charlsie Maphis and Holly Roberts played softball together, beginning in February 2002. Charlsie Maphis was the catcher and James Taylor, who also had a history of enmity towards the Respondent, was an umpire at some of those softball games. Moreover, it is significant that the most serious conduct alleged against Coach Brown is alleged to have occurred months before it was ever reported. The initial reports were not even made by the alleged victims. The manner and timing in which the allegations of Charlsie Maphis and Holly Roberts became public appears to have been planned. Kerri Maphis, Charlsie's younger sister, and Nicole Rabon, who rode to school daily with Holly Roberts and their friend Samantha Wilkerson, went to the office of Ms. Dixon, the assistant principal, together to report to Ms. Dixon the rumors concerning Coach Brown. Within a short time after they spoke with Ms. Dixon, both Charlsie Maphis and Holly Roberts voluntarily reported their allegations to the School Resource Officer, Brian Stagner. Moreover, the unrefuted testimony of Coach April Goodwin reveals that Holly Roberts did not have the best reputation in her school community for truth and veracity. Consequently, Holly Roberts' testimony regarding the facts and the nature of the interaction she had with Coach Brown, concerning which she made her complaints, is not credited. It is apparent that whatever occurred in this interaction with Coach Brown in his office concerning a trip to Hawaii was, at most, simply a joking or jesting reference to their going to Hawaii on a vacation trip. It is determined, based upon the testimony of Coach Brown and of his parents, as well as the numerous witnesses who described Coach Brown as being an instructional employee and coach who never exhibited any unprofessional or inappropriate conduct or behavior, that the incident concerning his purported invitation to Holly Roberts to come to his home on the weekend, when his parents were purportedly to be absent, simply did not occur. Wilfred Brown grew up in Jackson County and attended Jackson County public schools. His parents are respected and respectable citizens who retired from employment with the state. Wilfred Brown and his brothers participated in high school sports, and after graduating from high school, Wilfred Brown attended college. Upon graduating from college he returned home to Jackson County and ultimately was hired as the head coach of the Sneads boys basketball team. Respondent Brown primarily resided with his mother and father at times pertinent hereto. His mother and father do not allow him or his brothers to bring female companions to their home when the parents are not at home and do not allow their sons' female friends to stay overnight in their residence. Coach Brown is a Deacon in his church and a Sunday school teacher. He also works with the youth in his church and community. He provides free basketball camps for youth athletes during the summer. He has an outstanding reputation in his community for truth and veracity. He has a reputation among students at school for requiring them to abide by the rules of good conduct and of being professional and an exhibitor of good conduct himself. There is no evidence that Coach Brown has ever been previously accused or found guilty of any inappropriate, unprofessional statements or behavior towards students or young females at any time or location. Upon observing and considering the demeanor of Wilfred Brown and his testimony, carefully weighing and comparing his testimony to that of the complaining witnesses, and in consideration of the numerous witnesses as to Coach Brown's reputation in his community for truth and veracity as well as, more specifically, the testimony concerning his failure to ever exhibit any inappropriate, unprofessional conduct toward female students or others, it is determined that Coach Brown is credible as a witness. His testimony is credited over that of Holly Roberts and Charlsie Maphis. The testimony of the numerous witnesses as to his competent performance as a teacher and coach and his good personal conduct and character, including towards female students, along with and the lack of any testimony, other than that of the discredited complaining witnesses, concerning any unprofessional, inappropriate behavior on his part has been carefully considered. It is determined that preponderant evidence has been adduced which establishes that Coach Brown has not lost his effectiveness as a teacher and a coach in the Jackson County School community nor in Sneads High School in particular.
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 a final order be entered by the School Board of Jackson County finding that the allegations made against the Respondent Wilfred Brown are not established and that he be re-instated to his position as teacher and basketball coach with back pay and with renewal of his annual contract. DONE AND ENTERED this 1st day of November, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 1st day of November, 2002. COPIES FURNISHED: Marva A. Davis, Esquire 121 South Madison Street Post Office Drawer 551 Quincy, Florida 32353-0551 H. Matthew Fuqua, Esquire Bondurant and Fuqua, P.A. Post Office Box 1508 Marianna, Florida 32447 Daniel Sims, Superintendent Jackson County School Board Post Office Box 5958 Marianna, Florida 32447 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issues for determination are whether Petitioner has just cause to terminate the Professional Services Contract of each of the respondents because each respondent allegedly engaged in immorality and misconduct in office in violation of Subsection 1012.33(6)(a), Florida Statutes (2007),1 and the Rules of Professional Conduct in Florida Administrative Code Rules 6B- 4.009(2) and (3), 6B-1.001, and 6B-1.006(3)(a), (4)(b) and (c), and (5)(a) and (h).
Findings Of Fact Petitioner is the agency responsible for the employment and dismissal of instructional staff (teachers) in Brevard County, Florida (the school district). During the 2007-2008 school year, Petitioner employed each of the respondents as teachers and wrestling coaches. Petitioner employed John M. Hackney as a teacher and the varsity wrestling coach at Astronaut High School (Astronaut). Petitioner employed James Michael Murray as a teacher at Space Coast Junior Senior High School (Space Coast) and as the junior varsity wrestling coach at Astronaut.2 Mr. Hackney and Mr. Murray have extensive experience in competitive wrestling. Mr. Hackney has coached high school wrestling for more than 20 years and has been the head coach of the Astronaut varsity wrestling team for approximately 15 years. For the last 15 years, Mr. Hackney has also coached competitive wrestling in the Amateur Athletic Union (AAU). Mr. Hackney has also served as the head of AAU wrestling in Florida. Mr. Murray began wrestling competitively in 1967 for the wrestling team at Cocoa High School (Cocoa), a high school located within the school district. Mr. Murray wrestled for Cocoa for three years, wrestled for Brevard Community College for two years, and was a member of wrestling team at the University of Florida for one year, although he did not compete in any event for the university. Mr. Murray completed law school and practiced law as a licensed attorney in Florida. While in private practice, Mr. Murray was a wrestling referee for the Florida High School Athletic Association (FHSAA). The FHSAA is the officiating body for all high school athletic programs in the state, including wrestling. Mr. Murray authored some parts of the FHSAA officiating exam. He also taught classes to prepare candidates for the FHSAA exam. In 2000, Mr. Murray left his law practice to become a high school teacher and a wrestling coach. Mr. Murray became the head coach of the Space Coast varsity wrestling team in the 2003-2004 school year. When the principal at Space Coast removed Mr. Murray as head coach, Mr. Murray remained as a teacher at Space Coast, but became a junior varsity wrestling coach at Astronaut. Mr. Murray also has extensive experience as a coach in AAU wrestling. On December 1, 2007, the Astronaut varsity wrestling team competed in a multi-team tournament at Poinciana High School (Poinciana). A regular member of the Astronaut team, identified in the record as W.P., was injured and unavailable to compete in the Poinciana tournament. Mr. Hackney substituted a student, identified in the record as T.G., for W.P. T.G. was a seventh-grade middle school student. He was not enrolled in Astronaut and was not eligible to compete for Astronaut in the Poinciana tournament, because the Poinciana tournament was a high school event sanctioned by the FHSAA. T.G. was at the Poinciana tournament because Mr. Hackney and Mr. Murray coached T.G. in AAU wrestling events. T.G. was a very good wrestler for his age group and very interested in wrestling. Mr. Hackney allowed T.G. to ride on the team bus with the Astronaut varsity team and attend the tournament with the Astronaut team.3 Mr. Murray also attended the Poinciana tournament. The Poinciana tournament was a varsity tournament, and Mr. Murray was a junior varsity coach. Mr. Murray was not present at the varsity tournament in any official capacity. Mr. Murray attended the varsity tournament to help Mr. Hackney. While the Astronaut team members were weighing in prior to the Poinciana tournament, the father of T.G., identified in the record as Mr. G., approached Mr. Hackney and asked Mr. Hackney if Mr. Hackney would substitute T.G. for W.P. and allow T.G. to wrestle a high school student from another school who was at the tournament. The student was ranked number one in the nation in the AAU, and Mr. G. wanted T.G. to get experience wrestling at that level of competition. T.G. welcomed the opportunity to wrestle such a highly-ranked opponent. Mr. Hackney agreed to the request by Mr. G. Mr. Hackney discussed the matter with Space Coast coaches Mr. Toni McCormick and Mr. Richard Jones, and the coaches for Space Coast agreed to T.G. wrestling as W.P.4 Mr. Murray was not present during the discussions between Mr. Hackney, Mr. G., and the Space Coast coaches. When Mr. Hackney informed Mr. Murray of the decision to allow T.G. to compete as W.P., Mr. Murray advised Mr. Hackney not to proceed. T.G. competed as W.P. in three matches at the Poinciana tournament. One of the matches was against the number one ranked AAU wrestler. On December 5, 2007, Mr. Hackney allowed T.G. to compete as W.P. for Astronaut in a dual meet with the Eau Gallie High School (Eau Gallie) wrestling team. Mr. G. approved the entry of his son as W.P. Mr. Murray was not present at the Eau Gallie dual meet. Petitioner knew, or should have known, that Mr. Hackney allowed T.G. to compete as W.P. in the Poinciana tournament and dual meet at Eau Gallie. Mr. Hackney informed the coaches of the opposing teams of his intent to allow T.G. to compete as W.P. Mr. Jones also discussed the situation with Ms. Sharon Travis, the athletic director at Space Coast. Within days of the Eau Gallie match, the area newspaper published a picture of T.G. wrestling with a caption identifying T.G. as W.P. Parents and spectators at both the Poinciana tournament and the Eau Gallie dual meet knew that T.G. was competing as W.P. The principal at Space Coast, Mr. Bob Spinner, knew that T.G. had competed as W.P. in the Poinciana tournament and the Eau Gallie dual meet. In preparation for an arbitration hearing in April of 2008 concerning Mr. Murray’s grievance against the principal for removing Mr. Murray as head wrestling coach at Space Coast, Mr. Spinner learned that Mr. Hackney had allowed T.G. to compete as W.P. in the Poinciana tournament and Eau Gallie dual meet. The principal called a student, identified in the record as W.C., to his office approximately four times to interview the student concerning the involvement of Mr. Hackney, Mr. Murray, and T.G. in the Poinciana tournament and Eau Gallie dual meet. Other employees and agents of Petitioner also knew of the competition of T.G. in the Poinciana tournament and the Eau Gallie dual meet. Prior to the arbitration, Mr. Terry Humphrey, the principal at Astronaut, and Ms. Joy Salamone, the director of Human Resource Services and Labor Relations, learned of the actions of Mr. Hackney and Mr. Murray involving T.G. The actions of the respondents did not impair their service in the community as teachers or their effectiveness as teachers in the classroom. Each of the respondents continued to teach in the classroom and receive favorable evaluations as classroom teachers after the Poinciana tournament and the Eau Gallie dual meet. Mr. Hackney and Mr. Murray received the highest marks available on all of their evaluations, including the evaluations completed after the Poinciana tournament and Eau Gallie dual meet. Petitioner selected Mr. Hackney as the Teacher of the Year for the 2006-2007 school year. After Mr. Murray prevailed in the arbitration proceeding, he was scheduled to be reinstated as head coach for the Space Coast varsity wrestling team. Mr. Jones, a community coach at Space Coast, met with several parents, and they decided to raise the ineligible competition by T.G. as a ground to prevent the reinstatement of Mr. Murray at Space Coast. One of the parents reported the ineligible competition by T.G. to the FHSAA. The FHSAA imposed a fine of $2,500.00 against Astronaut. Sometime in July 2008, the school district superintendent asked Ms. Salamone to conduct an investigation. On or about August 4, 2008, the investigation concluded that Mr. Hackney and Mr. Murray should be removed as wrestling coaches, but retained as classroom teachers. The superintendent convened a meeting to reconsider the recommendation. The recommendation was changed, and the superintendent recommended that Petitioner terminate the respondents as classroom teachers.5 Mr. Hackney and Mr. Murray cooperated fully in the investigation. Neither of the respondents ever attempted to conceal their actions. Mr. Hackney was motivated solely by his desire and the desire of Mr. G. for T.G. to gain experience T.G. would not otherwise enjoy. Neither of the respondents sought personal gain, either direct monetary gain or indirect gain through a winning season. Astronaut would have gained nothing in season standings by winning the Poinciana tournament and Eau Gallie dual meet. There is no evidence that T.G. was successful in the matches with older competitors, and the number one ranked AAU wrestler pinned T.G. in their match. The competition of T.G. in the Poinciana tournament and Eau Gallie dual meet did not expose the school district to increased liability. Mr. G. paid an additional premium for AAU insurance that covered his son in any competition, including the Poinciana tournament and the Eau Gallie dual meet. Mr. Hackney knew that T.G. was insured for both events. The entry of T.G. in the Poinciana tournament and Eau Gallie dual meet did not cause harm to T.G. The FHSAA suspended T.G. from varsity competition for one year, but T.G. was ineligible for varsity competition before the suspension. The competition by T.G. in each event was not a violation of AAU rules and regulations. T.G. did not suffer any physical harm from his competition with older, more experienced wrestlers. There is no evidence that T.G. suffered any academic or personal harm. The testimony of T.G. at the hearing demonstrated his appreciation for the experience he gained in the Poinciana tournament and Eau Gallie dual meet.6 The termination of the respondents from their classroom teaching positions deviates from Petitioner’s progressive discipline policy. Petitioner has never terminated a coach from his or her teaching position for any reason other than an improper relationship with a student. Petitioner has refused to terminate other teachers for conduct more egregious than that of Mr. Hackney and Mr. Murray. For example, a teacher who provided alcohol to a student and allowed her to drink until she became incapacitated was suspended for 30 days from June 12 through July 12, 2008; was reprimanded; and was subjected to a salary freeze for one year. In another incident, three assistant principals conspired over a two-year period to move 52 special education students into different grades so they would not have to take the Florida Comprehensive Assessment Test (FCAT). The goal was to raise the school’s overall performance and receive higher funding from the state. Both administrators and teachers may receive financial benefits from increased FCAT scores. Petitioner did not terminate any of the employees. One assistant principal was demoted to teacher, and another was subjected to a salary freeze for one year. The assistant principal, who knew of the plan and failed to report it, was promoted to the position of elementary school principal. In 2005, two coaches punished two players, who missed practice, by subjecting the two players to tackling by fellow players during practice. The coaches instructed the other players to hurt the two players who missed practice and allowed tackling after blowing the whistle to end the session. The incidents received publicity in the local media after the investigation. Petitioner issued letters of reprimand to each of the coaches.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law in this Recommended Order and reinstating each of the respondents to their positions as classroom teachers with back pay and benefits. DONE AND ENTERED this 17th day of June, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2009.
The Issue Should Petitioner suspend Respondent without pay for three (3) days for inappropriately physically restraining a student in mid-December, 1996, while Respondent was employed at Tate High School?
Findings Of Fact At all times relevant to the inquiry, Respondent was an instructional employee of the Escambia County School Board. In this capacity he served as a physical education teacher. He also coached football and track. Respondent has been in the teaching profession for more than 21 years. The majority of that service has been in the states of Alabama and Georgia. Respondent has been employed in the Escambia County School District for approximately two years. On March 14, 1996, Respondent received a reprimand from Jim May, Principal of Tate High School. Tate High School is in Gonzalez, Florida, and is part of the Escambia County School District. The letter of reprimand stated: I am writing this letter of reprimand in regards to an incident that occurred at Tate High School on March 12, 1996. It is my findings [sic] that you put your hands on a student and physically forced him in a chair by grabbing him by the elbow. You should never put hands on a student unless to prevent bodily harm to himself or to others. These actions were inappropriate and must not reoccur. Any further actions of this sort on your part will result in serious disciplinary action to you, including possible suspension or termination. In the fall term 1996 Mr. May met with coaches, to include Respondent, and reminded the coaches not to put their hands on students for any reason in relation to involvement between the coaches and student athletes. This meeting was occasioned by an incident between another coach and a student. The policy which prohibits a teacher from putting his or her hands on a student except to prevent harm to the teacher or to others, is a policy that has application throughout the Escambia County School District. When Respondent was reprimanded on March 14, 1996, Carolyn Spooner, the present Principal at Tate High School, told the Respondent, that he should have allowed the student whom he forced into a chair to walk out of the classroom, as opposed to forcing the student into the desk chair. It was the student's intention to leave the classroom before Respondent forced the student into the chair. If the student had been allowed to leave, Respondent was advised by Ms. Spooner, that the Respondent could have sent a referral to the Dean or sent for a Dean to offer assistance. The referral practice, as contrasted with physical restraint, is the policy for the Escambia County School District. While the Student Handbook describing rights and responsibilities for students in the School District of Escambia County in the 1996-97 School Year contemplates possible corporal punishment, the school district does not impose corporal punishment for high school students. In any event the imposition of corporal punishment is not conducted ad hoc through the instructional staff. It may only be conducted through means established by guidelines for administering such punishment, which establish the nature of the punishment to be administered, under what conditions, and by whom. Notwithstanding the admonitions to Respondent to refrain from placing his hands on students other than in the limited circumstances described, Respondent violated those instructions and acted contrary to the school district policy. This incident occurred on December 10, 1996, at Tate High School while Respondent was teaching a physical education class. On that date a student was less than cooperative in his participation in the physical education class. Basically, the student was unwilling to participate. There was some question about the student's ability to participate. This circumstance followed a history of the student not participating and having provided written excuses from his mother relieving him of the responsibility to participate in the physical education class. Nonetheless, on this date, Respondent felt that the student should walk, while other students played softball. At some point during this episode the student sat on some bleachers at the athletic field and refused to walk as he had been instructed to do by the Respondent. Respondent took the student by the elbow and "helped" the student down from the bleachers. They then commenced to walk around the practice field with Respondent holding the student by the arm. The student pulled away from the Respondent and stated words to the effect that he was not going to do anything on the field that he did not want to do. Respondent sent the student to the "office" to be punished, but the Respondent did not write a referral as required by school district policy. As a result of the Respondent placing his hands on the student's arm, the student received bruises on the underside of his left arm that left dark spots. That injury was reported by the student's mother. The marks that were left on the underside of the student's arm were still visible the following day. The incident was investigated by Ms. Spooner and Roy Ikner, Assistant Principal at Tate High School. On December 13, 1996 Ms. Spooner, as Principal for Tate High School, gave notice to Respondent that disciplinary action was being considered for "grabbing the student by the arm." Ms. Spooner met with the Respondent on December 16, 1996. In that meeting Respondent did not, and does not now, deny putting his hands on the student. Eventually Jim May, who had been elected superintendent of schools, gave notice to Respondent on January 22, 1997, that the superintendent was recommending the imposition of a three-day suspension without pay for the incident with the student that took place on December 10, 1996. The nature of the alleged misconduct was inappropriate physical restraint of the student. The facts reveal that Respondent inappropriately physically restrained the student on December 10, 1996, in violation of earlier instructions from his supervisor to refrain from that conduct. Other than the letter of reprimand and the incident at issue in this case, no other proof has been offered concerning prior discipline of the Respondent. The Respondent in his defense presented assessment system evaluations for the school years 1995-96 and 1996-97, in which he has been found to be a satisfactory teacher overall and has exceeded expected performance in parts of the performance evaluations.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered which finds Respondent guilty of misconduct by the inappropriate physical contact with a student on December 10, 1996, and suspends Respondent without pay for three days. DONE AND ENTERED this 1st day of July, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1997. COPIES FURNISHED: John L. Hammons, Esquire Hammons and Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 John Benavidez 10141 Vixen Place Pensacola, Florida 32514 Jim May, Superintendent School District of Escambia County 215 West Garden Street Post Office Box 1470 Pensacola, Florida 32597-1470
The Issue Is Respondent's Florida Educator's Certificate No. 476423 subject to discipline by the State of Florida, Education Practices Commission (the Commission) through an amended administrative complaint brought by Frank T. Brogan, as Commissioner of Education, Petitioner's predecessor? In particular is the certificate subject to discipline based upon the material allegations that: 1. On or about October 3, 1997, Respondent made sexually suggestive remarks to a minor female L.S. asking her to fondle him. He then put his hands on her breasts; and 2. During the 1983-1984 school year,1 Respondent had sexual intercourse with a minor female student, J.M., during school hours. Respondent also touched the student inappropriately and engaged in a romantic relationship with her.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 476423, covering the areas of Administration and Supervision in Physical Education, which is valid through June 30, 2000. At all times relevant to the allegations in the amended administrative complaint, Respondent was an employee of the School Board of Duval County, Florida, holding a professional services contract as a Physical Education teacher. J.M. Allegations in reference to J.M. refer to Julie Wallner Morris. Ms. Morris was formerly Julie Ann Wallner, while attending Wolfson High School in Duval County, Florida, in the years 1981-1985. Wolfson High School is a part of the Duval County School District. In the school year 1983-1984, Ms. Wallner was enrolled in a Spanish class at Wolfson High School. Rather than attend that class, Ms. Wallner would frequently abandon that class in favor of spending time in the gymnasium where Respondent was teaching a class in which Ms. Wallner was not enrolled. There Ms. Wallner became acquainted with Respondent. At first, Respondent was among a group of students whom Respondent would talk with. The initial conversations between Respondent and Ms. Wallner, among other students, was casual in its tone. At that point in time, Respondent did not appear to realize that Ms. Wallner was not supposed to be in the gymnasium. At some point in time, Respondent realized that Ms. Wallner was not appropriately in the gymnasium, in that she was not taking a class at that period. Subsequently, while in the gymnasium, in the weight room, Respondent began to converse with Ms. Wallner individually. While in the gymnasium, Respondent and Ms. Wallner had physical contact in the weight room. Respondent was seated on a weight bench. Respondent commented to Ms. Wallner about tightness in Respondent's shoulders and asked Ms. Wallner to massage his shoulders. Ms. Wallner massaged the top of Respondent's back and shoulders, an activity that she did not consider to be sexual in nature. That was Respondent's first physical contact with Ms. Wallner. Ms. Wallner saw Respondent in the weight room five to seven times alone. During those occasions Ms. Wallner and Respondent would converse. Respondent also would kiss and touch Ms. Wallner. When Respondent kissed Ms. Wallner, she returned the embrace. Respondent's touching of Ms. Wallner involved touching her shoulders and breasts over her clothing. Respondent also touched Ms. Wallner's skin. During the time of these encounters Ms. Wallner was sixteen years old. Ms. Wallner felt flattered by the attention she received from Respondent. On the last occasion in which Respondent and Ms. Wallner were in the weight room kissing and touching, Respondent invited Ms. Wallner to come with him to another area within the gymnasium. That area was a loft. Respondent unlocked the loft area and invited Ms. Wallner into the loft. Ms. Wallner willingly complied. Once inside the loft area, Respondent locked the door to the loft. While in the loft, Respondent started kissing Ms. Wallner and touching her and fondling her. Ms. Wallner and Respondent took off their clothes and they engaged in sexual intercourse in which Respondent penetrated Ms. Wallner's vagina with his penis. This encounter took approximately five minutes. Respondent and Ms. Wallner put their clothes back on and left the area. After the incident, Ms. Wallner felt "pretty bad" and felt that she had done something wrong. In parting, Respondent told Ms. Wallner not to tell anyone about the encounter or they would both be in trouble. Respondent told Ms. Wallner that it was a secret. Ms. Wallner did not keep their secret; she told her two closest friends about the relationship between Ms. Wallner and Respondent. Thereafter, rumors began to circulate at Wolfson High School concerning a relationship between Ms. Wallner and Respondent. The rumors were made known to Ms. Wallner in that other students would "crack jokes or say things" in Ms. Wallner's presence about Respondent and Ms. Wallner. Ms. Wallner would deny those rumors. Ms. Wallner understood that one of the friends she had told about the relationship between Respondent and Ms. Wallner had been summoned to the principal's office at the high school. This upset Ms. Wallner. On the same day, when Ms. Wallner's father noticed that she was upset, he asked her what was wrong. Ms. Wallner told her father about the rumors that Ms. Wallner and Respondent were having an affair. On the date that Ms. Wallner told her father about the rumors, her father arranged to have a meeting with the principal at Wolfson High School to discuss the rumors. The meeting was attended by Respondent who acknowledged that Ms. Wallner had been present at the gym classes taught by Respondent but not as a student. Respondent and Ms. Wallner denied having a relationship when confronted with that issue at the meeting held with the principal. During the meeting with the principal, Ms. Wallner denied the relationship because she did not wish to divulge something as personal as the relationship with Respondent and did not wish to be in trouble. She was afraid. Later, Respondent passed a note to Ms. Wallner in the school hall at Wolfson High School. The note was unsigned. The essence of the note was that Respondent "cared" for Ms. Wallner but wanted her to be quiet until it all "blew over." Ms. Wallner hid the note under her bed. Her father found the note and asked Ms. Wallner about the note and whether the note was from Respondent. Ms. Wallner at that time denied that the note came from Respondent. At the time Ms. Wallner had her relationship with Respondent, she did not realize that Respondent was married. When she found out Respondent was married after the relationship had ended, this made Ms. Wallner feel worse than she had felt before. She felt even more ashamed about the relationship because she believed that she had inadvertently dragged someone else into "my mess." This comment was in reference to Respondent's wife. L.S. L.S. refers to Lindsay Schuster who was a student at Wolfson High School in the fall 1997, her senior year. At that time Ms. Schuster was seventeen years old. Ms. Schuster first met Respondent in her ninth grade at Wolfson High School. At that time Respondent was Ms. Schuster's health teacher. While in the ninth grade, Ms. Schuster would speak to Respondent about business that her aunt did with the Respondent outside the school. Ms. Schuster would also speak to Respondent about Ms. Schuster's cousin who was on the school wrestling team. Respondent was coaching that team. In the fall term 1997, Ms. Schuster was taking a gym class with a different gym coach. Although Respondent was not her coach, Ms. Schuster would see Respondent in the gym class. The Respondent and Ms. Schuster would converse during the class. The nature of the relationship became such that Ms. Schuster would confide in Respondent about her personal life. Ms. Schuster had trust in the Respondent in confiding that information. On October 3, 1997, Ms. Schuster was late for school. She had been late numerous times before. When Ms. Schuster arrived at school, Respondent was in front of the hallway where coaches were normally located. Ms. Schuster was concerned that she not be found tardy again to avoid trouble based upon her tardiness. Ms. Schuster made Respondent aware of that problem. Respondent allowed Ms. Schuster to remain with him during the class period that was commencing. Respondent took roll of the members of his gym class. Respondent and Ms. Schuster then went to the football field and Respondent began to fill in holes on the field with sand. During this time, Respondent and Ms. Schuster were having a casual conversation about Ms. Schuster's home-life and Respondent's business outside his school duties. When the period was over, Respondent asked Ms. Schuster if she wanted to come back during her lunch period and help him further prepare facilities for the football game to take place that evening. Ms. Schuster agreed to come back. Ms. Schuster and Respondent met later behind the gymnasium. They then proceeded to the press box at the football field for Wolfson High School. They went inside the press box. Ms. Schuster began looking out of the press box windows. While in the press box, Respondent stated, "You really look good today." Ms. Schuster replied, "Yeah, I know, I always look good." Respondent then approached Ms. Schuster and put his arm around her shoulder and said "touch my cock." This referred to touching Respondent's sexual organ. Ms. Schuster replied, "No. Do you know how old you are?" When Ms. Schuster tried to step away from Respondent, he reached forward and rubbed his hands on Ms. Schuster's breasts. Ms. Schuster then left the press box. While Respondent was standing at the door of the press box, he stated to Ms. Schuster, "Shit. Now I have a hard-on." The results of Respondent's action hurt the feelings of Ms. Schuster. She felt devastated by his conduct given that she had placed her trust in Respondent. After the incident Ms. Schuster left the high school. She tried to return on the following week. Ms. Schuster determined not to permanently return because of her discomfort in realizing that other persons at school knew of the incident and her complaint to school authorities about Respondent's conduct. After Ms. Schuster left Wolfson High School, she obtained her general education diploma.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Education Practices Commission permanently revoking Respondent's Florida Educator's Certificate No. 476423. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 31st day of March, 1999.
Findings Of Fact Respondent holds Florida teaching certificate 310395 covering the areas of biology and science. During the 1985-1986 school year, he taught ecology and science courses at Winter Park High School in the Orange County School District until he was relieved from duty on March 13, 1986, as a result of an investigation into the incidents and behavior described below. During the school day, Respondent repeatedly harassed the female students with sexual remarks, attempts at sexual humor, and requests for sexual favors and intimacies. The sexual harassment so permeated the classroom that Respondent was completely unable to discharge his professional teaching responsibilities. Faye Zentner was a senior at Winter Park High School during the 1985- 1986 school year. Notwithstanding the fact that Respondent knew that she was a student, he repeatedly asked her to go with him on a date, followed by dinner and bed. Unsolicited, he gave her his home telephone number and told her to call him. He frequently remarked on her clothing, advising her that she should not wear such nice clothes. He often communicated by notes that he would show her and then tear up. Ruth Evans was a senior at Winter Park High School during the 1985-1986 school year. She was in Respondent's science class. Respondent repeatedly complimented her on her dress. He would intentionally drop a pencil and watch her while she picked it up. At different times, Respondent told her that he "wanted her body" and thought that she had a "nice ass." He also told her that he wanted to "get between her legs." He asked her to go out with him and then to his place. One afternoon when Ms. Evans asked to leave class 10 minutes early for a school-sponsored softball game, Respondent's response was, "If you're not going to do anything for me, why should I do anything for you?" Kristen Fischer was a senior at Winter Park High school during the 1985-1986 school year. She was in Respondent's ecology class. Looking at her breasts and body while speaking, Respondent would frequently tell Ms. Fischer that he liked what he saw, including her tight jeans. As with the other female students, Respondent asked Ms. Fischer to go out with him and have a drink. The testimony of the remaining female students reiterated the above testimony and established a pattern of sexual harassment on the part of Respondent. Respondent summoned Juliana Gomes from the classroom and, in the hall, commented on her appearance and asked her out on dates. Ms. Gomes finally began reporting to school late in order to avoid her first-period class with Respondent. Respondent told jokes involving female body parts, such as the vagina, to Laurie Kreitner, another student. When she would not listen to these jokes privately at his desk, Respondent would tell them publicly to the entire class. Respondent regularly asked Sheila Buchanan, another of his students, what she was doing on that Friday night and where she would be. At spring break, he found out where she and her girlfriends would be staying at the beach and gave them his hotel room and telephone numbers with an invitation to call him. During the entire term in ecology, Respondent administered only one test and a couple of quizzes. Otherwise, the students and Respondent sat around and talked about movies and matters unrelated to the subject of the class. On more than one occasion, Respondent admitted that his grades were a reflection of whom he liked and whom he did not like. Respondent even allowed Ms. Buchanan to grade half of the finals, and she gave good grades to her friends.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Respondent's teaching certificate be permanently revoked. ENTERED this 3rd day of May, 1989, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Martin Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 J. David Holder, Esquire Rigsby & Holder Suite 200 1408 North Piedmont Way Tallahassee, Florida 32312 Reginald Crooms 617 South Delaney Avenue, No. 19 Orlando, Florida 32801
The Issue Whether the Respondent's employment as a teacher with the Petitioner should be terminated.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; § 1001.32, Fla Stat (2004). At all times material to this proceeding, Mr. Epstein was employed by the School Board as a music teacher at Twin Lakes Elementary, under a continuing contract with the School Board. Mr. Epstein was first employed by the School Board in a part-time position in February 1978. Mr. Epstein took a full- time teaching position at Twin Lakes Elementary in 1980, where he taught continuously until he was given an alternate work assignment in June 2003. Mr. Epstein has not previously been the subject of disciplinary action by the School Board. Mr. Epstein consistently received satisfactory annual evaluations during his employment at Twin Lakes Elementary. Although he did not receive an annual evaluation for the 2002- 2003 school year, he received a satisfactory observation during that year. In addition, Mr. Epstein was named Teacher-of-the- Year at Twin Lakes Elementary during the 1988-1989 school year.3 Mr. Epstein had daily access to a computer that was owned by the Miami-Dade County public school district and placed in his classroom. The classroom computers were to be used to develop instructional programs and to gather lesson materials from the Internet. Mr. Epstein and all of the teachers at Twin Lakes Elementary were required to read and adhere to the school district's Acceptable Use Policy for the Internet. Late in the 2001-2002 school year, Mr. Epstein asked Jesus Vigo, a microsystems technician, to check his computer because Mr. Epstein could not access the Internet. Mr. Vigo checked the Internet history file to find out when Mr. Epstein had last accessed the Internet. In the history file on Mr. Epstein's classroom computer, Mr. Vigo found several addresses for pornography web sites. After he made certain that Mr. Epstein's computer was operating properly, Mr. Vigo reported to Michele Lam, the computer coordinator and media specialist at Twin Lakes Elementary, that he had found "questionable" web sites on Mr. Epstein's computer. Ms. Lam believed that Mr. Epstein had most likely visited these web sites accidentally, and she told Mr. Vigo not to tell anyone that he had found the addresses on Mr. Epstein's computer. Instead, Ms. Lam told Mr. Vigo that he should regularly monitor Mr. Epstein's computer. Mr. Vigo monitored Mr. Epstein's computer once a week, at random, for approximately four months, until he left his job at Twin Lakes Elementary. During this time, Mr. Vigo found no questionable web-site addresses in the Internet history on Mr. Epstein's computer. No one regularly monitored Mr. Epstein's computer after Mr. Vigo left Twin Lakes Elementary. A new microsystems technician, Pedro Valdes, began work at Twin Lakes Elementary in September 2002, and, in January 2003, new computers were installed in all the classrooms. These computers operated through the Miami-Dade County public school district's mainframe computer, and the software loaded onto the computers was approved by and licensed to the school district. The mainframe also had a filter that prohibited access to certain web sites from the school district's computers. In February 2003, Mr. Epstein complained to Ms. Lam that he was having problems with his computer. When Mr. Valdes tried to fix the computer, he found that several software programs had been loaded onto the computer. Mr. Epstein admitted that he had loaded Netscape, an Internet browser, so that he could access music sites that he could not access using the school district's Internet browser. Although he tried, Mr. Valdes was not able to fix Mr. Epstein's computer completely, and he moved on to other work. Finally, in April 2003, Mr. Valdes fixed Mr. Epstein's computer and made certain that all of the school district's software was working properly. In early May 2003, however, Mr. Epstein told Mr. Valdes that he could not get into his computer. Mr. Valdes examined the computer and, when he saw that the computer's recycle bin was full, he decided to empty it. When Mr. Valdes opened the recycle bin, he saw that there were several addresses for pornography web sites, as well as addresses for other types of web sites. When Mr. Valdes discovered these web-site addresses, Mr. Epstein admitted to Mr. Valdes that he had downloaded and viewed pornographic videos on the school district computer, in addition to using the computer's Internet access to locate and download information from music and instructional web sites. Mr. Epstein also admitted to Mr. Valdes that he had deliberately by-passed the school district's Internet filter in order to gain access to the pornographic material. Mr. Valdes told Mr. Epstein that he should not view such web sites on the school district's computer, but he agreed not to tell anyone about his discovery. Nonetheless, after he thought about it, Mr. Valdes felt obligated to report his discovery to Ms. Lam because he considered the matter so serious. Mr. Valdes was visibly upset when he told Ms. Lam about the pornography web site addresses. Ms. Lam and Mr. Valdes went to the office of Maria de Leon, the principal of Twin Lakes Elementary, and told her what Mr. Valdes had discovered on Mr. Epstein's computer. Ms. de Leon called Mr. Epstein to her office and, among other things, told him to cease using his classroom computer for any purpose. Mr. Epstein had been downloading pornography from the Internet and viewing pornographic videos in his classroom on the computer provided by the school district for approximately seven months prior to Mr. Valdes's discovery of the pornography web site addresses. Mr. Epstein knew that access to these pornography web sites was blocked by the filter on the school district's mainframe computer, which is the reason he devised a strategy for circumventing the filter. Mr. Epstein downloaded pornographic videos onto the school district's computer at night, during the workday when students were in his classroom, and during the workday when no students were in the classroom. Mr. Epstein always turned the computer monitor off when he was downloading pornography during class time, so that the students could not glance at his computer and see the material he was downloading. Mr. Epstein also hid the downloaded pornographic videos in folders hidden within other folders, so that it would not be obvious to a substitute teacher who logged onto his classroom computer that pornographic videos were stored in the computer. Mr. Epstein never viewed pornographic videos when students were in his classroom. He did, however, view the videos during the times of the school day when he was expected to plan and prepare lessons, and he also viewed these videos after the students had left school for the day, generally between 3:00 p.m. and 4:30 p.m.4 Mr. Epstein viewed pornographic videos and masturbated in his classroom approximately 15 to 20 times during the spring of 2003, after the students had left school for the day but during the time he was expected to work on lesson plans. When he viewed pornographic videos and masturbated in his classroom, Mr. Epstein was careful to lock the classroom door.5 Mr. Epstein took precautions to conceal his activities because he knew that his activities violated School Board rules, and he also did not want the materials to be discovered by a student, a substitute teacher, or anyone else. Even though Mr. Epstein took care to see that his classroom door was locked when he viewed pornographic videos and masturbated in his classroom, there was a risk that he would be interrupted. The Twin Lakes Elementary custodial and administrative staff, including secretaries, had keys to all of the classrooms. Occasionally, a parent would return to school with a student who had left something in a classroom, and a school employee would escort the parent and student to the classroom and use his or her key to enter the classroom. The pornographic material that Mr. Epstein downloaded and viewed on his classroom computer did not involve children. It was, however, obscene, as defined by the School Board in its Acceptable Use Policy for the Internet.6 Ms. de Leon decided to try to keep information about Mr. Epstein's activities confidential because she was very concerned about the reaction of the parents of the children attending Twin Lakes Elementary and of the community as a whole. Ms. de Leon knew that many of the parents of the children attending Twin Lakes Elementary were conservative Catholics who were very protective of their children.7 Ms. de Leon believed that if news of Mr. Epstein's activities became known in the community, Twin Lakes Elementary "would have been in the first page of the [Miami] Herald for quite a long time."8 On May 6, 2003, the day Mr. Valdes discovered the pornography web-site addresses on Mr. Epstein's computer, Mr. Epstein went to Linda Van Leer, the assistant principal at Twin Lakes Elementary, and asked that she put him on the agenda for the faculty meeting scheduled for that afternoon. Ms. de Leon had, by this time, notified Ms. Van Leer of the situation involving Mr. Epstein and of her decision to limit knowledge of the matter to as few people as possible. Mr. Epstein told Ms. Van Leer that he intended to make a statement to the faculty to assure the faculty members that the pornography he downloaded and viewed did not involve children and that he never viewed pornography when students were in the classroom. Ms. Van Leer was as concerned as Ms. de Leon about the disruption at Twin Lakes Elementary if information about Mr. Epstein's activities became known in the community, and she also believed that Mr. Epstein did not appreciate the ramifications of his announcing his activities to the faculty. Ms. Van Leer denied Mr. Epstein's request to speak to the faculty and told him not to speak of the matter to anyone except Ms. de Leon. Ms. de Leon reported Mr. Epstein's activities to the Miami-Dade County Public Schools police on May 6, 2003, and the investigation was assigned to Bradley Rosh on May 13, 2003. Sergeant Rosh found Mr. Epstein very cooperative during the investigation, and Mr. Epstein prepared a statement in which he described the nature and extent of his activities. Sergeant Rosh submitted his preliminary investigation report on July 16, 2003, in which he concluded that the allegations that Mr. Epstein had violated the School Board's Acceptable Use Policy for the Internet and the responsibilities and duties of School Board employees were substantiated. The investigative report was sent to the Office of Professional Standards for final disposition. Reinaldo Benitez, a district director of the Miami- Dade County Public Schools Office of Professional Standards, convened a Conference-for-the-Record on August 11, 2003, to discuss the investigative report and the charges against Mr. Epstein, to review his record, and to discuss his future employment status with the School Board. Mr. Benitez, Mr. Epstein, Ms. de Leon, and Marie Harrison, Business Director of ACCESS Center 1, participated in the Conference-for-the- Record. As reflected in the Summary of the Conference-for-the- Record dated August 22, 2003, the findings in the investigative report were discussed with Mr. Epstein, who admitted that he was guilty of the charge that he had downloaded pornographic videos into the school district's computer located in his classroom, that he was aware when he did so that he was violating School Board rules, and that he had used very poor judgment. Mr. Epstein apologized for his actions, and he requested that, if he were allowed to resume teaching, he be provided a computer without access to the Internet. According to the Summary of the Conference-for-the- Record, Mr. Epstein was assigned to an alternative work location at his home at the beginning of the 2003-2004 school year.9 As reflected in the Summary of the Conference-for-the- Record, Mr. Epstein was offered the option of submitting his resignation, which he refused. Directives were issued to Mr. Epstein at the Conference-for-the-Record, including a directive that he not visit Twin Lakes Elementary at any time. Mr. Epstein was also advised to "keep the information presented in this conference confidential and not to discuss this with any students or staff. Finally, Mr. Epstein was advised that, following a review by the School Board's attorneys, he would be notified of the recommended disciplinary action, which could include dismissal. On August 13, 2003, Ms. de Leon submitted her recommendation to Margarita Alemany-Moreno, Assistant Superintendent in ACCESS Center 1, that Mr. Epstein be terminated from his employment with the Miami-Dade County Public Schools. Ms. Alemany-Moreno sent this recommendation to Virginia Bradford, Assistant Superintendent in the Office of Professional Standards, with the concurrence of the staff of ACCESS Center 1. Mr. Benitez convened a meeting with Mr. Epstein on September 26, 2003, to address his pending dismissal by the School Board at its meeting on October 22, 2003. Ms. de Leon and Ms. Harrison were also in attendance. Mr. Benitez informed Mr. Epstein that the recommendation for his dismissal was based on charges of immorality, misconduct in office, and incompetency. Mr. Epstein was offered the option of resigning his position or pursuing disability retirement, which he declined. Mr. Epstein submitted a statement dated September 29, 2003, in response to the August 22, 2003, Summary of the Conference-for-the-Record. In this statement, Mr. Epstein did not withdraw his admission that he had downloaded and viewed pornographic videos on the school district's computer located in his classroom. The Superintendent of Schools notified Mr. Epstein in a letter dated October 8, 2003, that he was recommending to the School Board that Mr. Epstein be dismissed from his employment. The School Board suspended Mr. Epstein and initiated dismissal proceedings at its October 22, 2003, meeting. Mr. Epstein believes that he has had a sexual problem since he was a teenager, when he first became attracted to pornography. He began using the computer in his classroom to download and view pornography after his wife discovered pornography on their home computer. She became angry, and he decided to move his activities to his classroom computer in order to avoid further family conflict. Approximately three years ago, Mr. Epstein was diagnosed with a "sexual addiction," and he began sessions with a sexual therapist. Mr. Epstein attended four individual therapy sessions, but was released in December 2002. Mr. Epstein attended small group therapy sessions for approximately 12 weeks during the time he was seeing Mr. Gray, and he also attended weekly sessions of an "accountability recovery group" from March 2001 until December 2003, when he began working at the Sam Ashe music store. On September 15, 2003, Carlos Plasencia, a mental health counselor, examined Mr. Epstein and initially diagnosed Mr. Epstein with "sexual disorder not otherwise specified." Dr. Plasencia's diagnosis has evolved, and he now believes that Mr. Epstein's diagnosis is "impulse control disorder," with a sexual component.10 Mr. Epstein is in therapy with Dr. Plasencia, and, at the time of the final hearing, he had been taking Zoloft, an anti-depressant prescribed by a psychiatrist, for approximately two months.11 In Dr. Plasencia's opinion, Mr. Epstein's addiction to pornography began approximately 27 years ago, developed slowly over the course of 24 years, and progressed faster than usual over the course of the last two to three years." According to Dr. Plasencia, Mr. Epstein feels powerless to overcome the compulsion to view pornography; he has tried to stop this behavior and has been unable to do so, even though it has disrupted his family and, now, poses a threat to his job.12 In Dr. Plasencia's opinion, "[c]hances are very likely Mr. Epstein was preoccupied with the attainment of pornography while he was in school. I agree with that because he was viewing it in school and downloading it in school."13 Although Dr. Plasencia acknowledged that Mr. Epstein's addiction to pornography is a preoccupation that has significantly interfered with his life and the life of his wife and son, Dr. Plasencia does not consider Mr. Epstein emotionally unstable, in the sense that he does not have extremes in mood or behavior. Mr. Epstein has always been open during his therapy with Dr. Plasencia and has demonstrated a genuine desire to fix his problem. He has been motivated and has followed Dr. Plasencia's suggestions. Dr. Plasencia believes that Mr. Epstein's prognosis for recovery is good. Mr. Epstein considers himself a "recovering" sexual addict and explains his behavior at Twin Lakes Elementary in the spring of 2003 as a "relapse."14 Summary The evidence presented by the School Board establishes that Mr. Epstein has committed misconduct in office. Mr. Epstein admitted that he deliberately by-passed the Internet filter in the school district's mainframe computer and accessed pornography web sites on his classroom computer; that he downloaded pornographic videos onto his classroom computer while students were in the classroom, during planning periods when the students were in school but not in his classroom, and after the students were dismissed from school; that he viewed pornographic videos on the classroom computer during planning periods when the students were in school but not in his classroom and after the students were dismissed from school; and that he frequently masturbated in his classroom while he watched pornographic videos. Mr. Epstein admitted that he engaged in the activities described above for approximately seven months prior to May 2003, although the evidence presented by the School Board establishes that addresses for pornography web sites were found in Mr. Epstein's classroom computer as early as June 2002. The evidence establishes that Mr. Epstein took precautions such as turning off the computer monitor when downloading pornographic videos while children were in his classroom, hiding the computer folders containing the pornographic videos in other folders, and locking his classroom door when he viewed pornographic videos and masturbated. It may reasonably be inferred, however, that he took these precautions to keep his activities hidden from students and school personnel and not primarily to protect his students from harm. At the time he was committing these acts, Mr. Epstein knew his behavior violated School Board rules; he knew that he was exercising poor judgment; and he knew that, if he were discovered downloading and viewing pornographic videos and masturbating in his classroom, his job could be in jeopardy. By downloading and viewing pornographic videos on his classroom computer, Mr. Epstein violated the School Board's rule prohibiting the transmission of obscene material, and downloading and viewing pornographic videos on his classroom computer and masturbating in his classroom constitute conduct unacceptable in a School Board employee. Mr. Epstein viewed pornographic videos and masturbated during his workday rather than planning lessons and engaging in other pursuits that would enhance his abilities as a teacher. The School Board, therefore, paid Mr. Epstein for time during which he did not work. Mr. Epstein could not use his home computer to download and view pornography videos because he feared discovery and disruption of his family life, so he used the classroom computer provided by the school district to satisfy his compulsion to view pornographic videos. Downloading and viewing pornographic videos and masturbating may not be considered objectionable when done in the privacy of one's home; these acts are, however, not consistent with the public conscience and good morals when, as here, they are done in the public space of an elementary school classroom. Nonetheless, the evidence presented by the School Board is not sufficient to establish that Mr. Epstein's activities have become public knowledge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding that Daniel J. Epstein committed misconduct in office and that he should be dismissed from his employment as a teacher pursuant to Section 1012.33(4)(c), Florida Statutes. DONE AND ENTERED this 26th day of May, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2004.
