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.
The Issue Whether Respondent's teacher's certificate should be revoked or otherwise disciplined.
Findings Of Fact Respondent held Florida Educator's Certificate No. 609670, covering the areas of Physical Education, General Science, and Education Leadership. The certificate expired on June 30, 2000. However, Respondent has the option to ministerially renew his certificate. In 1989, Respondent was a teacher at Pensacola High School. During the summer of 1989, Dona Snyder, then 18 years old, was a student at Pensacola High School. Respondent would often speak with Dona at school and telephone her at home to ask her to go out with him. She turned him down. However, the day before summer school ended Dona and Respondent engaged in romantic hugging and kissing. The last day of school they went to eat at a local restaurant. Later in the year, after Ms. Snyder had graduated, Dona and Respondent engaged in sexual intercourse, which resulted in the birth of a child. From 1994-1998, Respondent was employed as a Physical Education teacher at Pine Forest High School, in Escambia County. In 1994, M.M., aged 14, was a ninth-grade student at Pine Forest High School. She met Respondent during that year. When M.M. was in the tenth grade, Respondent chaperoned M.M's. ROTC class to Seattle, Washington. M.M. and Respondent became more familiar with each other during the trip. They became very comfortable with each other and Respondent began making comments of a sexual nature about M.M's. appearance. M.M. developed a crush on Respondent. When Respondent and M.M. returned from the Seattle trip, they visited each other at various locations at Pine Forest High School. In April 1996, towards the end of M.M.'s tenth grade year, Respondent told M.M. that he would like to see her away from school. Respondent made it clear that he was interested in a sexual relationship with M.M. M.M. was around 16 years old at the time. Respondent encouraged M.M. to either lie to her mother or sneak out of her home at night in order to meet him. At first, M.M. refused Respondent's suggestions. She did not think sneaking out was right. Later in 1996, Respondent and M.M. saw each other at a football jamboree. Respondent gave M.M. his telephone number. M.M. later telephoned Respondent and they decided to meet at the University Mall. It was agreed that M.M. would concoct a pretextual reason to go to the mall which she would tell her mother. After they met at the mall, Respondent took M.M. to his home. They went to his bedroom and had sex. After this first sexual encounter, Respondent and M.M. started meeting each other and having sex almost every weekend for more than a year. M.M., with Respondent's encouragement and complicity, would sneak out of her mother's home from her bedroom window at approximately 2:00 a.m. Respondent would pick her up several blocks away from her house. They would go to Respondent's house and have sex. Afterwards, Respondent would take M.M. back to the place where he picked her up. M.M. would then walk back to her house and enter through her bedroom window. Clearly, Respondent placed M.M. in a dangerous situation by encouraging and facilitating these late-night excursions. Respondent and M.M. had sex in various places, such as Respondent's home, Respondent's car, Belleview ball park, the school baseball field, and the baseball locker room. On one occasion, Respondent took M.M. and another female high school student to a local hotel for group sex. Respondent provided alcohol to the girls. He directed the girls to have sex with each other. While the girls had sex with each other, Respondent watched. Respondent had sex with the other student and then had sex with M.M. During their relationship, Respondent told M.M. not to tell anyone about their affair because he could lose his job and go to prison. Respondent also talked M.M. into foregoing her desire to pursue college and ROTC. Through this relationship, he directly contributed to M.M.'s grades deteriorating and a loss of self-esteem. The good relationship she had with her mother deteriorated. M.M. was known as Coach Bragg's girlfriend. He encouraged her to lie to her mother. None of these behaviors should be encouraged or promoted by a teacher. The relationship between Respondent and M.M. came to light when M.M's. mother woke one night and discovered her daughter missing. She confronted M.M. when M.M. was attempting to get back into her bedroom through the window. M.M's. mother telephoned the police. Later, Respondent lost his effectiveness as a teacher when he was removed from his teaching position. Respondent was arrested and charged with unlawful sexual activity with a minor. On or about July 7, 1998, the case against Respondent was nolle prosequi by the court because Respondent had instructed M.M. to lie about their relationship. During the time of the prosecution, Respondent also caused M.M. to ignore her subpoena to testify at Respondent's trial and go into hiding until the prosecution was dismissed. However, a bench warrant was issued for M.M. Once it became clear that the prosecution would be pursued, M.M. returned to Escambia County and was arrested and jailed on a bench warrant which had been issued for her failure to appear at trial. Respondent concocted a story for M.M. to tell to the prosecution. He talked her into marrying a best friend of Respondent's so that she could say she was seeing this friend instead of seeing Respondent. Respondent's lack of moral character is apparent. As a teacher, Respondent held a position of trust towards M.M. and Dona Snyder. Clearly by engaging in a sexual relationship with them he breached that trust and violated both the Florida Statutes and Florida Administrative Code. Respondent has repeated this predatory behavior over the course of his teaching career and cannot be trusted to protect female students from his amorous intentions. Clearly, Respondent does not have the moral character to be a teacher and should not be permitted to hold or renew his teaching certificate.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Education Practices Commission permanently revoking Respondent's Florida Educator's Certificate No. 609670. DONE AND ENTERED this 15th day of February, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 15th day of February, 2001. COPIES FURNISHED: Ron Weaver, Esquire 528 East Park Avenue Tallahassee, Florida 32301 Michael D. Tidwell, Esquire 811 North Spring Street Pensacola, Florida 32501 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Education Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact Respondent Will H. McRaney has been employed by petitioner Bay County School Board at Rutherford High School since 1965. In the past, he has worked as a coach and as a classroom teacher at Rutherford. During the current school year, respondent was job entry coordinator; in this capacity, he had responsibilities in connection with the vocational counseling of Rutherford seniors. Darlene Ann Peeples is an eighteen year old senior at Rutherford High School. In her junior year, she had been a student in a class respondent taught. On January 17, 1977, when she arrived at her fourth period class, friends told her that respondent had come by looking for her and for another student, and wanted to see them in his office. Her friends also told her that the other student summoned by respondent had gone to lunch, so Ms. Peeples went to respondent's office by herself. When she arrived, respondent was seated behind a desk in his office, facing sideways. He invited her in, asked her to close the door behind her, and told her to take the empty seat beside him. Respondent's office at Rutherford High School was small and windowless, except for a window in the door which was covered over from the inside. There were only two chairs in the office on January 17, 1977. The chair to which respondent directed Ms. Peeples was very near his; when she sat down one of her knees touched respondent. She asked why she had been sent for, and respondent mentioned some job possibilities. Conversation turned to the school's Christmas ball, at which Ms. Peeples had been chosen Christmas ball queen. Respondent allowed as how her selection did not surprise him, because she had a nice personality and a nice body. In the course of discussing Ms. Peeples' plans for the future, respondent learned that her family was slated to move to England and offered to let Ms. Peeples live with him in his home, when her family left. Respondent took one of Ms. Peeples' hands in his, and remarked on its warmth. Then he cupped one hand round the back of her head, and drew her head down to the vicinity of her knees, doubling her over. When she succeeded in sitting up straight again, respondent kissed her full on the mouth. Immediately afterwards, he said he was sorry, and he repeated the apology when the interview concluded. Within a half hour of their occurrence, Ms. Peeples gave tearful accounts of these events to her boy friend, and to her fifth period teacher, Mrs. Gail Fischer. In 1975, respondent worked in petitioner's summer recreation program as a swimming instructor at the swimming pool at Mosley High School. Among the children he taught was Macy Ellis, who was born on October 7, 1965. There were from 10 to 25 children in Macy's swimming group. Some 40 other children in other groups and at least two other adults used the swimming pool at the same time respondent taught Macy's group. On July 2, 1975, respondent was supervising an underwater swimming drill. Macy and the other children in her group stood in the water along the edge of the swimming pool; they took turns doing "fish dives" and swimming through respondent's spread legs, while he stood in the middle of the pool in about five feet of water. When Macy went underwater, she noticed that respondent's swimming trunks, although fastened at the waist, were unzipped, and she saw respondent's penis. As she swam face down between respondent's legs, respondent placed his hands on her back to steady her. Otherwise, there was no physical contact between them. Respondent did not intend that any of the children see his genitalia, and it was only by accident that they happened to be visible to Macy Ellis. Statement Required By Stuckey's of Eastman, Georgia v Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976) The first paragraph of petitioner's proposed fact findings has been adopted, in substance. The second paragraph of petitioner's proposed fact findings has been rejected because the only witness whose testimony tended to establish the occurrence, Debbie Holt, was not worthy of belief, in the hearing officer's opinion. She was adamant about such details as the color of respondent's bathing suit, even though her testimony contradicted that of the other witnesses. She and Macy Ellis were playmates who confided in one another and, according to Macy Ellis, it was when Debbie learned what Macy had seen that Debbie made her accusations against respondent. Finally, testimony was adduced to the effect that Debbie Holt's reputation for truth and veracity is not good. The substance of the third paragraph of petitioner's proposed fact findings has been largely adopted, except that the proof failed to establish any intent on respondent's part, and except for the date, which is immaterial. The number of people in the pool area, the size of the pool, the fact that other children were lined up waiting their turns, the fact that Macy told her father that she saw respondent tuck his penis back in his swimming trunks, all persuaded the hearing officer that the incident was accidental.
Findings Of Fact Prior to May 18, 1977, the Respondent was employed by the School Board as a driver education teacher and head football coach at Miami South Ridge High School. At approximately 3:00 A.M. on May 15, 1977, the Respondent left his home in Miami, Florida, and drove to the back of a business located at 7211 S. W. 40th Street in Miami, Florida. John F. Allen operates a boat, motor, and trailer sales, service, and repair business at that location. In the back of the building there is a work area that is surrounded by a chain link fence. Customers' boats and motors are stored in this area while work is done on them in the shop. The Respondent walked down an alleyway along the fenced area, and climbed over the fence. He removed an outboard motor from a boat, and pulled it away from the boat toward the fence. The Respondent did not work in the boat yard, and he was not authorized to be there after regular business hours. There was no direct evidence as to the Respondent's intentions. The circumstance of his being in the fenced in portion of the boat yard at between 3:00 A.M. and 4:00 A.M. and the circumstance of his removing an outboard motor from a boat, and carrying it toward the fence, lead inescapably to the conclusion that the Respondent was seeking to steal the engine. The Respondent did not remove the engine from the boat yard. For unknown reasons, he abandoned his effort to steal the engine and left the boat yard. The Respondent was not armed with any weapon, and no other person was in the boat yard while he was there. The outboard engine which the Respondent was attempting to steal was a 40 horsepower Johnson outboard engine. The weight of the engine is approximately 140 pounds. The engine has a wholesale value of approximately $250. Even if the engine were in the worst possible operating condition, it would still be worth approximately $150. While the Respondent was in the boat yard, two police officers employed by the Dade County Public Safety Department were undertaking a routine patrol of the area in an unmarked car. They observed the Respondent's automobile parked adjacent to the boat yard. One of the officers walked along the chain link fence in back of the boat yard and observed the Respondent inside the yard holding an engine. There was heavy vegetation along the fence, but the police officer was able to see through it at one point. The officer went back to his car, and told his partner what he had witnessed. Shortly thereafter the Respondent came out of the alley, got into his car, and drove away. The police officers turned on a flashing light in their car, pulled up behind the Respondent's car, and stopped him. The Respondent was placed under arrest. The police officer read the Respondent his rights from a "Miranda card". During interrogation after the arrest the Respondent pointed out the motor that he had removed from the boat, and told the officers were he had gotten it. The Respondent was then taken to a police station where he was fingerprinted, and later released on bail. A criminal action is now pending against the Respondent in the courts in Dade County. Tools of a sort which could have been used in perpetration of a burglary were found in the Respondent's pockets and on the floor of the Respondent's automobile by the police after they stopped him. There was no evidence presented that these tools were used by the Respondent in breaking into the boat yard or in removing the outboard engine from the boat. There was no evidence that the Respondent intended to use the tools for these purposes. There was evidence presented that the tools were put in the automobile by a friend of the Respondent's wife. There is insufficient evidence from which it could be concluded that the Respondent intended to use the tools to commit any trespass or burglary. The School Board acted promptly to suspend the Respondent from his position at South Ridge High School. The instant proceeding ensued.
The Issue The issue in this case is whether Petitioner, Polk County School Board ("School Board"), had just cause to terminate Respondent, Blanca R. Ortiz' ("Respondent"), employment as a teacher.
Findings Of Fact At all times relevant to this proceeding, Respondent was employed by the School Board as a teacher at Lakeland High School, where she taught spanish. Respondent currently holds a professional services contract pursuant to Section 1012.33, Florida Statutes (2007).1 On February 6, 2008, Chelsey Etgen, a Lakeland High School student in Respondent's fourth-period class, left her packback in Respondent's classroom during the lunch period. The backpack contained Ms. Etgen's iPod Touch ("iPod"). When Ms. Etgen returned to the classroom from lunch, an unidentified male student, who was sitting near her, handed her (Etgen) a graph and a calculator and asked if those were her items. Ms. Etgen recognized both the graph and calculator as items that belonged to her and that had been in the same "pocket" of her backpack as her iPod. Ms. Etgen immediately checked her backpack and, upon doing so, discovered that her iPod was missing. Immediately after Ms. Etgen discovered that her iPod was missing, she notified Respondent. Respondent had the students in the class empty their pockets, but the iPod was not found. Respondent then instructed Ms. Etgen to notify appropriate school officials that the iPod had been taken from her backpack. On February 7, 2008, Ms. Etgen reported to the school resource officer ("resource officer" or "officer") that the iPod was missing from her backpack. Ms. Etgen's iPod was black with a silver face/screen. About a week after Ms. Etgen reported that her iPod was stolen, Respondent asked Ben Brown and another student in Respondent's third-period Spanish I class if they could unlock her iPod. Respondent told Mr. Brown and the other student that her daughter had taken the iPod to school and tried the password so many times that it (the iPod) had "locked up." Mr. Brown and several other students attempted to "unlock" the computer, but were unsuccessful in doing so. Almost two weeks after Ms. Etgen's iPod was reported as missing, Ms. Etgen told Mr. Brown that she thought Respondent had her (Etgen's) iPod. The two students then arranged for Mr. Brown to check the serial number on the iPod that Respondent stated was hers with the serial number of Ms. Etgen's stolen iPod. Mr. Brown agreed to get the serial number off the iPod. As a security measure, Mr. Brown told Ms. Etgen that after he obtained the serial number from the iPod, he would e-mail half of the serial number to her and indicated that she should provide the other half of the serial number to him. On or about February 20, 2008, and after the conversation described in paragraph 8, Mr. Brown went to Respondent's third-period class. The iPod, which Mr. Brown had been trying to "unlock" for Respondent, was still in Respondent's classroom. That day, Mr. Brown was able to hold and look at the iPod and to obtain the serial number of the iPod. Ms. Etgen obtained the serial number of her stolen iPod from the box in which the iPod had come. On February 20, 2008, Mr. Brown and Ms. Etgen exchanged a series of text messages in which each of them provided parts of the serial number of the iPod that was in Respondent's classroom. After doing so, Mr. Brown and Ms. Etgen confirmed that the serial number of the iPod that Respondent had said was hers matched the serial number of Ms. Etgen's stolen iPod. The iPod from which Mr. Brown obtained the serial number discussed above, looked identical to the one that he had been trying to "unlock" for Respondent. After confirming that the iPod in Respondent's classroom matched her iPod serial number, Ms. Etgen told school officials that she believed Respondent had her (Etgen's) iPod. Ms. Etgen also delivered to resource officers, Stacy Pough and Steve Sherman, the box for her iPod that had the serial number which Ms. Etgen believed matched the iPod in the possession of Respondent. On February 20, 2008, soon after receiving information from Ms. Etgen about the matching iPod serial numbers, Officers Pough and Sherman went to Respondent's classroom to ask her about the missing/stolen iPod. Upon entering the classroom, the officers approached Respondent and Officer Sherman asked Respondent about Ms. Etgen's missing iPod and asked if she had the iPod. In response, Respondent told the officers that she did not have the iPod. The resource officers then left the classroom and went into the hall and reported what they had been told to Lakeland High School administrators, Mr. Thomas, then principal, and Tracie Collins, then assistant principal of curriculum. When the resource officers made the initial contact with Respondent, Lakeland High School students, Tyler Qualls and Barbara Duckstein, were among the students in Respondent's classroom. Both Mr. Qualls and Ms. Duckstein overheard the conversation between the resource officers and Respondent described in paragraph 14. Although Respondent told the officers that her iPod was at home, both Mr. Qualls and Ms. Duckstein had seen Respondent with an iPod earlier that day. In fact, that same day and before the officers came to Respondent's classroom, Respondent had asked Ms. Duckstein to see if she could unlock Respondent's iPod. Ms. Duckstein then attempted to "unlock" what she believed to be Respondent's iPod,2 but was unsuccessful in doing so. Soon after the resource officers left Respondent's classroom, Ms. Duckstein left the classroom and told the officers that Respondent had an iPod in the classroom. After Officers Pough and Stewart completed their initial interview with Respondent and left her classroom, Mr. Quall observed Respondent remove the iPod from her desk drawer and put it in her black tote bag. After the resource officers' initial interview with Respondent, the students in Respondent's classroom were released early for lunch. Ms. Collins told Respondent that a student had "something" missing and asked her if the officers could come in and look around the classroom. Respondent agreed to allow the officers to search the classroom. Ms. Collins then authorized the resource officers to search Respondent's classroom. During the search, Ms. Collins observed Respondent move a stack of papers and folders from her desk into a bag. The manner in which Respondent moved the items made Ms. Collins suspicious, so she asked Officer Pough if he had looked in the bag. Officer Pough told Ms. Collins that he thought he had, but would look again. While looking through the bag, Officer Pough found the iPod that belonged to Ms. Etgen. At the hearing, Respondent testified that she did not take Ms. Etgen's iPod and that she did not know how the iPod got in her tote bag. Respondent also testified that she had received an iPod for Christmas and that she had asked the students to "unlock" the iPod that she believed was hers. Respondent's testimony implied that her iPod was identical to Ms. Etgen's iPod and that this may have been a source of confusion as to which iPod she had asked the students to "unlock." However, Respondent provided no evidence to support her claim that she had an iPod.3 In attempting to explain how Ms. Etgen's iPod came into her possession, Respondent then testified that on February 20, 2008, she confiscated several electronic devices, including an iPod, from students who were using them in class and placed the items on her desk. Respondent testified that at the end of the class, the students were allowed to come and retrieve the items, but apparently one unidentified student did not retrieve the iPod, but left it on Respondent's desk. Respondent suggested that perhaps it was that unidentified student who brought Ms. Etgen's iPod into Respondent's classroom on August 20, 2008.4 Respondent's testimony was confusing, vague, and unpersuasive. Ms. Collins, now principal of Lakeland High School, testified that the success of a teacher is tied to his or her credibility (character and integrity) with the students. The evidence supports the allegation that Respondent stole a student's iPod. Moreover, the evidence established that the incident occurred at school and that students at the school, as well as administrators, knew about the incident. Given the foregoing, Respondent is no longer an effective teacher. As a result of the subject incident on or about November 5, 2008, Respondent was convicted of petit theft in a criminal proceeding in Polk County, Florida.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order dismissing Respondent, Blanca Ortiz, from her position as a teacher. DONE AND ENTERED this 31st day of December, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 31st day of December, 2008.
The Issue Whether Respondent is guilty of immorality and unprofessional conduct as is more specifically alleged in the Administrative Complaint dated February 25, 1991.
Recommendation Accordingly, it is RECOMMENDED that a final order be entered permanently revoking the Florida teaching certificate of Robert M. Dodd, Jr. DONE and ENTERED this 14th day of October, 1991, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1991. Copies furnished: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Robert M. Dodd 38124 Townview Avenue #106 Zephyrhills, Florida 33540 Jerry Moore, Administrator Professional Practices Services 325 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400
The Issue Whether Respondent, Franklin Lewis, inappropriately touched a student, and, if so, whether this misconduct violates Section 1012.33, Florida Statutes (2004),1/ and Florida Administrative Code Rules 6B-1.001 and 6B-4.009 and constitutes "just cause" for Respondent's dismissal.
Findings Of Fact Respondent has been employed by Petitioner as an instructional employee since August 20, 1996. At the time of his suspension, he taught reading and was the wrestling coach at Dunbar High School (Dunbar) in Fort Myers. Respondent is a member of the collective bargaining unit for instructional personnel. His employment is subject to the terms and conditions of the written agreement between Petitioner and the Teachers Association of Lee County. Prior to the February 7, 2005, incident2/ that is the subject of this case, Respondent was a well-liked and respected person that many students looked up to and turned to for help and support. Respondent is 43 years old. He is divorced and the father of four children. S.W. is 18 years old. He was a student at Dunbar and graduated in 2005. He was a member of the wrestling team during his sophomore, junior, and senior years at Dunbar. Prior to joining the wrestling team, S.W. was in a combined geography/history class taught by Respondent. Respondent encouraged S.W. to join the wrestling team because other students "called him a woman and stuff like that." Respondent believed that if S.W. joined the wrestling team, he would gain the respect of other students because they would know S.W. could defend himself. Mr. Dukes also encouraged S.W. to join the wrestling team. During the wrestling season, October through February, the team practiced every day after school until 5:15 p.m. or 5:30 p.m. Respondent and Mr. Dukes often gave students a ride home after wrestling practices. During the 2004-2005 school year, Respondent usually drove S.W. home after wrestling practices. Early in 2005, S.W. told Respondent that he was interested in becoming a massage therapist, but he did not want other students to know. Respondent agreed not to tell anyone. According to Respondent, he has chronic neck pain from an old injury and wanted to give S.W. an opportunity to practice massage. Respondent suggested that S.W. give Respondent massages, and Respondent would pay S.W. $20 for each massage. S.W. gave Respondent two or three massages before February 7, 2005, and Respondent paid S.W. for them. All the massages took place at Respondent's house. The record does not indicate in what room the earlier massages took place, but a reasonable inference from the record evidence is that the massages always took place in Respondent's bedroom. Respondent stated that during the massages, the door to the room was usually closed. S.W. owed money to Respondent. Although the size of the debt was disputed, S.W. was indebted to Respondent for money Respondent spent on food and drinks for S.W. At S.W.'s request, Respondent occasionally purchased food and drinks for S.W. at convenience stores when Respondent was driving S.W. home from wrestling practices. Sometimes Respondent gave money to S.W. to buy food and drinks on his own. Respondent gave or loaned money to other students. Mr. Dukes also gave small amounts of money to students from time to time, but he never asked to be paid back. Monday, February 7, 2005 On February 7, 2005, following wrestling practice, Respondent drove S.W. and two other members of the team, J.M. and P.L., to an apartment complex where Mr. Dukes lived. They went there to use the complex's sauna for the purpose of "sweating off" weight. Wrestlers compete in weight classifications, and it is important to a wrestler to keep his weight within the classification that is considered optimum for him. Following their use of the sauna, the three students got back in Respondent's car to be taken home. Respondent first dropped off P.L. at P.L.'s house and then dropped off J.M. at J.M.'s church. At S.W.'s urging, Respondent drove back to Dunbar so S.W. could use the scale at the school to check his weight. After S.W. checked his weight, Respondent and S.W. drove to Respondent's house. According to Respondent, they went to his house because S.W. wanted to give him a massage to "pay off" S.W.'s debt to Respondent. S.W. says Respondent suggested the massage. When Respondent and S.W. arrived at Respondent's house, Respondent's 10-year-old daughter and adult sister were in the house. Respondent and S.W. went into Respondent's bedroom. At first, the door to the bedroom remained open. They watched a video of Respondent competing in a wrestling match when he was in high school. When the video ended, Respondent closed the bedroom door. Respondent took off his shirt and lay on the bed to get a massage from S.W. According to Respondent, he was lying on his stomach with his head on a pillow at the bottom of the bed. S.W. was sitting on the bed, at Respondent's right side, with his feet on the floor. S.W. began to massage Respondent's shoulders. According to Respondent, his head was on the pillow at the beginning of the massage; but in order to see what S.W. was referring to on the video that was playing on the television located to Respondent's front and right, Respondent raised his head and held it in his right hand, propped up by his right elbow. Respondent said his body was also twisted to the right. It was from this position that Respondent claims his head accidentally slipped from his hand and landed in S.W.'s lap or on S.W.'s leg. Petitioner claims that, if Respondent's description of the relative positions of Respondent and S.W. on the bed were true, it would have been physically impossible for Respondent's head to have slipped from his hand and fallen against S.W.'s leg. The evidence is not sufficient to support a finding that it would have been impossible. The improbability of such an occurrence, however, is a factor that contributes to the overall finding that Respondent's account of the incident lacks credibility. According to Respondent, when his head slipped and fell against S.W.'s leg or lap, no part of his hands ever touched S.W. in "his private area." S.W.'s account of the incident in the bedroom is much different. He testified that during the massage, they were not watching a video. Respondent had his head in S.W.'s lap. As S.W. was massaging Respondent's shoulders, Respondent pulled S.W.'s pants outward. S.W. said that he "felt lips on [his] stomach." Then, he felt Respondent's hand go into his pants and touch the "top of [his] penis" and pubic hair. S.W. explained that he was referring to the base of his penis, where it attaches to his abdomen. Respondent and S.W. agree that S.W. pushed Respondent away, and S.W. asked Respondent to take him home. According to Respondent, he told S.W. it was an accident and that he was sorry. S.W. said he walked out of the bedroom and looked back to see Respondent with "his head down shaking it like when, you know, you can't believe you did something." While he was waiting for Respondent to put his shirt back on and take him home, S.W. stood for a few minutes near a pool table where Respondent's sister and daughter were playing pool. Respondent's sister, Marjorie Lewis, M.D., testified that S.W. looked "very calm." According to S.W., during the short drive to his house, Respondent "told me he was sorry, that this never happened before, and he didn't know what got into him." Tuesday, February 8, 2005 The next morning, S.W. got a ride to school from his friend and fellow Dunbar student, M.G. S.W. told M.G. that he was quitting the wrestling team, and M.G. pressed S.W. for the reason. According to M.G., S.W. told him that he was giving Respondent a massage when Respondent placed his head in S.W.'s lap and then put his hand in S.W.'s "pubic area." S.W. told M.G. he shoved Respondent away, and Respondent sat on the bed with his head in his hands, as if "he was ashamed of himself." S.W. did not tell M.G. that Respondent kissed his stomach. At the hearing, S.W. said he told M.G. that Respondent "started to pull his [S.W.'s] pants down," reached into his pubic area, and "tried" to grab his penis. In explaining why he told M.G. that Respondent "tried" to touch his penis, S.W. said he meant that Respondent only touched the top of his penis, but did not grab all of it. Other statements made by S.W. that Respondent "grabbed my penis," are not inconsistencies that show S.W. lacks credibility. In this case, the inconsistencies simply reflect the imprecision that is common when the circumstances of an event are repeated several times to both friends and strangers. S.W. was a credible witness, and he showed no doubt that Respondent touched his penis. When S.W. and M.G. got to Dunbar, M.G. accompanied S.W., at S.W.'s request, to Respondent's classroom to get some things belonging to S.W. Respondent was in the classroom, and M.G. approached and talked to him. M.G. and Respondent knew each other because M.G. had been on the wrestling team. During their conversation, Respondent never made eye contact with M.G., but kept his eyes on his computer screen. According to M.G., that was unusual behavior for Respondent. Later that same day, M.G. repeated what S.W. told him to S.W.'s friend and wrestling teammate, J.M. J.M. testified that M.G. told him that Respondent made S.W. give him a massage and Respondent "tried to touch his penis." J.M. talked to S.W. in the school cafeteria a short time later. S.W. said he quit the wrestling team because of what happened the day before at Respondent's house and that S.W. felt "degraded" and "like a four-year-old." J.M. testified that S.W. told him Respondent locked the bedroom door, "tried to reach into [S.W.'s] pants, like touching his pubic area." S.W. did not tell J.M. that Respondent kissed his stomach. Sometime during the school day, Respondent saw S.W. and urged him not to quit the wrestling team. According to Respondent, S.W. told Respondent he was not quitting the team because of the incident at Respondent's house, but because of other "personal reasons." Later that day, Respondent telephoned S.W. According to Respondent, he called to tell S.W. that S.W. was mistaken about Respondent's head hitting S.W.'s lap, that his head only hit S.W.'s leg. According to S.W., Respondent asked S.W. to keep the incident a secret and "he'd do anything." Respondent admits that he told S.W. during this telephone conversation not to report the incident, but did so "because I thought it was silly." Wednesday, February 9, 2005 The next evening, S.W. called Laurie Beaudry, his Big Sister from the Big Brother/Big Sister Program and told her he was quitting the wrestling team. According to Ms. Beaudry, S.W. told her of an "inappropriate touching" incident. Because he was upset, Ms. Beaudry offered to pick him up so they could talk. She picked S.W. up and returned to her house. On the way to pick up S.W., Ms. Beaudry called Respondent on her cellular telephone and asked Respondent whether he knew why S.W. was upset and wanted to quit the wrestling team. Respondent told her he did not know. After S.W. and Ms. Beaudry arrived at her house, S.W. told her that on Monday he was giving Respondent a massage, "then Mr. Lewis was kissing on his stomach, and then he pulled his pants and grabbed his thing." Later that evening, Respondent telephoned J.M. Respondent and J.M. had a close relationship, and J.M. said he thought of Respondent as a big brother. Respondent asked J.M. what S.W. was telling people about the incident. J.M. asked Respondent to tell his side of the story first. Respondent admitted at the hearing that what he then told J.M. was a lie. He told J.M. that he and S.W. had been practicing a wrestling move, and S.W. got upset when his pants came down. Respondent claims that what he described to J.M. actually happened at Dunbar, a week earlier. According to Respondent, J.M. told him S.W.'s account of the incident was that Respondent made S.W. give him a massage, and Respondent's head fell in S.W.'s lap. According to J.M., he told Respondent that S.W. accused Respondent of trying to touch S.W. in his pubic area. Respondent denies that J.M. said anything about S.W.'s accusing Respondent of touching S.W.'s "private area." According to J.M., he told Respondent he did not believe Respondent's account of the incident. Respondent began to cry during their telephone conversation and said, "this can't get out" and "this could ruin my life." Respondent asked J.M. to tell S.W. that Respondent would "do anything," such as leave Dunbar or the wrestling team, if S.W. did not report the incident. Respondent denies that he cried or made these statements to J.M. Immediately following his telephone conversation with Respondent, J.M. called Mr. Dukes to discuss the incident. Based on what J.M. told him, Mr. Dukes understood S.W.'s story to be that Respondent fondled S.W. J.M told Mr. Dukes he was also going to quit the wrestling team because of the incident. Shortly after the conversation between Mr. Dukes and J.M., Respondent and Mr. Dukes talked by telephone. Respondent denied J.M.'s account of the incident. Respondent admitted at the hearing that he told Mr. Dukes the same lie he told J.M., that he and S.W. had been practicing a wrestling move and S.W. got upset when his pants "came down" and Respondent's head "went towards his crotch." Respondent asked Mr. Dukes to accompany Respondent to Ms. Beaudry's house to see S.W. and "get to the bottom of what was going on." Respondent knew S.W. was at Ms. Beaudry's house because he had called for S.W. at S.W.'s house and had spoken to S.W.'s foster mother. During the drive to Ms. Beaudry's house, Respondent and Mr. Dukes discussed the allegations made by S.W. According to Mr. Dukes, Respondent said, "S.W.'s story is true." Mr. Dukes became upset and Respondent said "he didn't blame [Mr. Dukes] for being mad at him." Respondent denies that he told Mr. Dukes that S.W.'s account of the incident was true. When Respondent and Mr. Dukes arrived at Ms. Beaudry's house, Mr. Dukes suggested that Respondent remain in the car. Inside the house, Mr. Dukes talked with S.W. who was upset and did not want to see Respondent. According to Mr. Dukes, S.W. told him Respondent touched "his private area." At some point, Ms. Beaudry said she wanted to speak to Respondent, and Respondent was asked to come into the house. S.W. went into a bedroom, and S.W. and Respondent did not see or speak to each other. During the discussion between Respondent and Ms. Beaudry, Respondent began crying. Respondent says he was crying because he was thinking about how his children would be harassed when the matter got into the newspaper. According to Mr. Dukes, when Ms. Beaudry confronted Respondent with S.W.'s accusation that Respondent "grabbed his penis," Respondent's reaction was "mournful." Respondent "said he was sorry, you know, and he don't know why it happened and this has never happened before and things like that." According to Ms. Beaudry, Respondent sat in a chair, held his head in his hands, and rocked back and forth crying and saying, "I'm sorry. I'm sorry. Is [S.W.] OK? Is [S.W.] OK?" Respondent did not deny S.W.'s account of the incident or offer Ms. Beaudry a different account of the incident. Respondent asked Ms. Beaudry and Mr. Dukes not to report the incident and said, "I'll do anything. I'll move. I'll leave the school or whatever." About 11:30 that evening, after Respondent returned home, he told his sister, Dr. Lewis, that there had been a "misunderstanding" with S.W. According to Dr. Lewis, Respondent told her "he may have inadvertently touched [S.W.] near his private area." Dr. Lewis noted that Respondent showed signs of depression in the days that followed. Thursday, February 10, 2005 The next day, February 10, 2005, Mr. Dukes reported the incident to an employee in Dunbar's Office of Student Services. From that first contact, a series of contacts were made with Dunbar officials leading to a formal investigation and Petitioner's initiation of these termination proceedings against Respondent. Sometime that same day, Dr. Lewis called Ms. Beaudry to ask how S.W. was doing and to offer counseling to S.W. Ms. Beaudry declined the offer. A reasonable inference can be drawn from Dr. Lewis' offer of counseling for S.W. that she believed his emotional upset was genuine and not contrived. Credibility This is not just a case of S.W.'s word against Respondent's. Respondent's account of the events is also contradicted by J.M. (regarding what J.M. told Respondent about the incident, whether Respondent cried, and whether Respondent asked J.M. to keep the incident a secret) and Mr. Dukes (whether Respondent admitted that S.W. was telling the truth). Furthermore, Respondent admitted that his first explanation of the incident to J.M. and Mr. Dukes was a lie. The record evidence does not explain why S.W. would have become so upset if the only thing that happened was what Respondent claims -- an accidental, brief contact between Respondent's head and S.W.'s leg or lap. S.W. testified that he loved and respected Respondent like a brother or father. Respondent did not deny their close relationship. The record contains no credible evidence to establish a motive for S.W. to destroy his relationship with Respondent and jeopardize Respondent's career as a teacher by falsely accusing him. Respondent removed S.W. as one of the captains of the wrestling team sometime during the 2004-2005 wrestling season for using excessive profanity, but Respondent himself never said he believed this "demotion" was the reason for S.W.'s accusation against him. S.W.'s demotion from captain is not sufficient, standing alone, to support an inference that it caused S.W. to become so angry with Respondent that he fabricated the incident that occurred on February 7, 2005. Moreover, it would not account for the contradictions between Respondent's account of his conversations with J.M. and Mr. Dukes and their account of the same conversations. Respondent had an obvious motive to lie in order to avoid the adverse professional and financial consequences of S.W.'s accusation against him. The more persuasive and credible evidence supports a finding that Respondent's account of the incident is untrue. The truthfulness of S.W.'s account of the incident is corroborated by Respondent's behavior in the days that followed. Respondent exhibited remorse, fear, and shame. This behavior, while not always reliable as proof of guilt, was more consistent with S.W.'s account of the incident than with Respondent's account. Petitioner has met its burden to prove by a preponderance of the evidence its factual allegation that on February 7, 2005, while Respondent was receiving a massage from S.W. in the bedroom of Respondent's home, Respondent reached his hand into S.W.'s pants and touched S.W.'s penis. Ms. Beaudry and Mr. Dukes stated that the incident caused S.W. to become more introverted. Mr. Dukes said S.W. and J.M. performed poorly as wrestlers after the incident. The wrestlers, in general, and S.W., in particular, were teased and picked on by other students when the incident was reported in the news and became public knowledge. Respondent's misconduct undermines the foundation of the relationship between a teacher and his students, and thereby impairs his effectiveness in the Lee County school system. Respondent's dishonesty, which includes some of his testimony under oath in these proceedings, also impairs his effectiveness in the Lee County school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding Respondent, Franklin Lewis', misconduct constitutes "just cause" under Section 1012.33, Florida Statutes (2004), and Florida Administrative Code Rule 6B-4.009 to dismiss him from his employment as a teacher with Petitioner, the Lee County School Board. DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 October, 2005.
The Issue Whether the Petitioner, a teacher under contract with the School Board of Seminole County, should be terminated from his employment based on misconduct in office, gross insubordination, and immorality, based on conduct during the course of the school year 1989-90 and an incident occurring on April 11, 1990.
Findings Of Fact Petitioner has been employed by the School Board of Seminole County since 1983 as a classroom teacher. Petitioner is employed pursuant to a Professional Services Contract. Petitioner was assigned to Lake Brantley High School during the 1988-89 and 1989-90 school year. During the 1989-90 school year, Petitioner taught two classes of honors world history and three classes of humanities. By letter dated August 17, 1989, which was hand delivered to Petitioner and a copy was placed in his personnel file, Petitioner was cautioned by Darvin Boothe, Principal of Lake Brantley High School, that: Any recurrence of behavior of this nature will result in the most serious of consequences. You are strongly advised to take appropriate measures to resolve the confusion, which, by your account, caused you to behave in a way which was unprofessional and unsound. In the letter, it was alleged that in late Fall of 1988 Petitioner placed a personal ad in the Orlando Sentinel which said: "Male seeks male for friendship." A fifteen year old male answered the ad in writing, and Petitioner replied in writing. A telephone conversation then occurred, and this ended the transaction. There was concern expressed by Principal Boothe that the purpose of the correspondence was an attempt by Respondent to initiate a homosexual liaison. Petitioner did not respond in writing to this letter. The Petitioner was a close acquaintance of the Ahuvia family, Citizens of the State of Israel and living in Seminole County. The oldest son, Saar, had been a friend of the Petitioner's son who was killed in an accident while an exchange student in Spain in September 1989. Mrs. Rachel Ahuvia invited the Petitioner to her home on frequent occasions after the death of Petitioner's son and attempted to involve the Petitioner in activities with her children because of Petitioner's apparent emotional reaction to the loss of his son. Ahuvia invited Petitioner to her home for Hanukkah in 1989 and to Passover supper in April 1990. During Petitioner's visit at Passover, Ahuvia asked Petitioner if he would take three of her children, Saar, Ram and Mor on an outing during the Spring Break. Petitioner agreed. It was arranged that Petitioner would take the three children to Rock Springs Park on April 11, 1990. Petitioner suggested that Saar being a 10th grade teenager and the other two being 11 and 9, could invite a friend as company in the outing. One or more friends his age were contacted before Gil Montag (who was 15 at the time and a school mate of Saar's) was contacted and agreed to go on the outing. Petitioner arrived at the Ahuvia home between 12:30 to 1:00 p.m., on April 11, 1990. Saar, a musician, was sleeping after having been up late taping a musical arrangement; rather than wake him, Mrs. Ahuvia suggested that the Petitioner and the other children go without Saar. Petitioner drove to the home of Gil Montag. Montag's parents were away, however, Gil had a friend with him, Danny Terrill. Gil Montag was told that Saar was unable to come. Gil decided to come anyway, and it was agreed that he would also bring his friend, Danny Terrill. The Petitioner and the four children drove to Rock Springs in Petitioner's car. When they arrived, they found it was closed and proceeded to Wekiva Springs. The trip took approximately 20 minutes, and the group arrived at Wekiva Springs at approximately 2:00 p.m. Enroute the children discussed several subjects, including Gil Montag's new earring. Danny Terrill also used one or more Hebrew words he had been taught by Gil Montag, one of which was "zain omed", a Hebrew word meaning "penile erection". The Petitioner requested that this word not be used in the presence of the young children. When the party arrived at Wekiva Springs, they passed through a gate tended by a park ranger. Several hundred people attended the park for day use that day. During the time Petitioner and his party were in the swimming area, there were at least 50 people present at any one time. During the time that Petitioner and his party were at the park, they were in the swimming area or on the grounds immediately surrounding the swimming area. Virtually all of the area where Petitioner and his party were located was within plain view of other patrons of the park swimming or sunning on the immediately surrounding grounds. During the time Petitioner was in the park, he played with the two younger children in the water and engaged in horseplay with the two older boys, Gil Montag and Danny Terrill, both in the water and in the surrounding grounds. A student known to the Petitioner, Toni-Ann Mariani and her visiting cousin, Loretta Mariani, arrived in the park by canoe and saw Petitioner and his party in the swimming area when they arrived. They also saw the two younger children and two older boys, who were introduced by Petitioner, in the swimming area. During the entire period of time Toni-Ann was there, the Petitioner as well as the younger children and two older boys appeared to be engaging in activities typical for the occasion, and it did not appear that anyone in the party was upset, angry or frightened. During one episode of horseplay, Danny Terrill pulled the string out of Gil Montag's bathing suit, which annoyed Gil Montag. In addition, Petitioner and the two older boys wrestled. Petitioner had wrestled in college and was involved with the high school wrestling program. Gil Montag had wrestled for a time in high school, and Danny Terrill had earned several belts in karate. During the wrestling, Petitioner put Gil Montag briefly in a scissors hold around his waist, a legitimate maneuver in olympic style wrestling. During that time, Danny Terrill was a short distance away and did not see any evidence that Petitioner was sexually aroused, nor did Gil Montag make any utterance at the time that made it appear that he was in distress or otherwise upset by the horseplay. During another episode of horseplay, Petitioner, Gil Montag and Danny Terrill, chased each other in the grounds surrounding the swimming area. This activity was not hostile or engaged in by Petitioner for some improper purpose and lasted for a short period of time, approximately 2 to 5 minutes. At about 4:00 p.m., Petitioner and his party decided to leave the park and return home. All of the children were dropped off at their homes without incident. That evening, while Gil Montag's parents were still away, Gil Montag and Danny Terrill invited some friends over and had a party. Although under the legal drinking age, beer was served and consumed, Gil stating that he drank about 12 beers. Danny Terrill testified that 24 beers were shared among 8 boys and that each boy had 2 or 3. Upon returning home from the outing and during the party, no mention was made by Gil Montag to Danny Terrill or to anyone that he had been assaulted in any fashion by Petitioner. A comment was made by Danny Terrill to the effect that he thought Petitioner was a "faggot" because of his mannerisms, not because of any conduct by Petitioner toward Danny. Gil Montag did not, in response to that statement, indicate that he had experienced any overture or conduct by the Petitioner that would substantiate Danny Terrill's slur. The alleged victim, Gil Montag, testified that during the horseplay in the swimming area, that Petitioner pulled the string out of his bathing suit, and that during this episode, while Danny Terrill was in the area, Petitioner was sexually aroused. Montag further testified that during the period Petitioner and the two older boys were "playing chase" on the grounds, that this episode was done in a hostile manner and that, in fact, he had fallen down 10 to 30 concrete steps, and as a result was cut and bleeding in many places on his body. Gil Montag further asserts that during the visit to the park, he was led against his will by the hand to the water after the above-described chasing and then taken against his will by Petitioner to a secluded area of the swimming area where Petitioner wrapped his legs around Gil Montag's waist and moved around in an indecent fashion for the presumed purpose of sexual gratification. Montag asserts that this went on for 10 minutes and that he was unable to escape from the grasp of Petitioner during that time. On or about May 16, 1990, Petitioner notified Gil Montag and his parents that Gil was earning a failing grade in Petitioner's class. During a discussion with Gil's father, Mr. Montag requested that his son's grade be changed and that he be transferred to a different teacher for the last nine weeks of the school year. Petitioner declined and offered the opinion that Gil's mind was not on his work and that he was preoccupied with girls and having a good time. That same evening, Gil Montag told his parents that he was upset because of Petitioner's alleged conduct at Wekiva Springs on April 11. Prior to this occasion, Gil Montag had not made this accusation, but states that he did not do so because of fear. During the school year 1989-90, Petitioner would regularly touch or pat students, including Ryan Anderson, Hisham Aboulhoson and Gil Montag, on their back, butt or knee as a sign of positive reinforcement or approval of work completed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board enter a Final Order finding, as follows: The Petition for Dismissal, filed by the Superintendent of Schools for the Seminole County School District, be DENIED. The Petitioner be reinstated to his position of employment under his professional services contract, and that he receive full back pay and benefits withheld from the date of suspension. DONE AND ENTERED this 27th day of March, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs A.1,2,3;B.1,2,3,4,5,6,7,8,9 (in part), 10,11,13,14 (in part), 15 (in part), 16 (in part), 18, 19 (in part), 20,21,22,23,24 (in part) Rejected as argument: paragraphs B.9 (in part), 12,14 (in part),15 (in part), 16 (in part), 17,19 (in part), 24 (in part),28 Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1,2,3,4,8,9,10 (in part),17,18 Rejected as irrelevant, excluded evidence of a previously resolved collateral matter: paragraphs 5,6,7 Rejected as against the greater weight of evidence: paragraphs 11,12,12 (#2),13,14,15,16,17 Copies furnished: John Chamblee, Esquire Chamblee, Miles & Grizzard 202 Cardy Street Tampa, FL 33606 Ned N. Julian, Jr., Esquire Stenstrom, McIntosh, Julian Colbert, Whigham & Simmons 200 West First Street Sanford, FL 32772 Robert W. Hughes Superintendent Seminole County School Board 1211 Mellonville Avenue Sanford, FL 32771 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
Findings Of Fact At all times material to this case, Respondent Carl B. Dietz (Dietz) was employed as a member of the instructional staff of Trafalgar Middle School, Lee County School District (District) pursuant to a professional service contract. Throughout Dietz's employment with the District, his annual evaluations indicate that the quality of his work was deemed an "effective level of performance". Dietz was initially employed by the District as a regular teacher on August 15, 1985. Dietz holds Florida Teaching Certificate #543771 issued by the Florida Department of Education. He is certified to teach secondary-level history and junior high school mathematics. For six years prior to the 1991-92 school year, Dietz taught advanced level American history and math at Cypress Lakes High School. Most of Dietz's students at Cypress Lakes were approximately 16-18 years old. A decrease in enrollment at Cypress Lakes resulted in a reduction of teaching staff at Cypress Lakes. Because no other high school instructional positions were open, Dietz was offered and accepted a position at Trafalgar Middle School. During the 1991-92 school year, Dietz taught history to Trafalgar eighth graders. During the school year 1992-93, Dietz was assigned teaching responsibilities for the Trafalgar Middle School sixth grade PASS program math and social studies classes. The PASS (Pupils Achieving School Success) program is a state funded project developed to focus specific attention on students identified as at risk of withdrawal from school prior to high school graduation. Dietz had no previous experience as an instructor in a PASS program. Dietz received no special training for the PASS program. The sixth grade students in the PASS program were approximately 11-12 years old. The nature of the PASS program may result in students who are less disciplined and more disruptive than the students Dietz had previously taught. Dietz taught two PASS classes, a morning group and an afternoon group. Students from both classes testified during the hearing. Conflicts in testimony have been resolved as indicated in the following Findings of Fact. It is alleged that on one day in October, 1992, Dietz, yanked a chair from under a student, resulting in the student's head striking the desk as he fell to the floor. The evidence establishes that the student was sitting sideways in the chair and was rocking back on the rear legs of the chair. Dietz grabbed the seatback and the chair slid from under the student who fell to the floor. The greater weight of the evidence is insufficient to establish that the student struck his head during the fall. In any event, the student was not physically injured in the incident. Dietz asserted that the student had been previously warned about sitting improperly, and that he grabbed the seatback to startle the child and "make the point" that he should sit properly. There is no evidence that the action of Dietz was an appropriate manner in which to discipline the child for sitting incorrectly in the chair. It is alleged that in October, 1992, Dietz addressed a child (whose pronunciation of his first name was poor) by a mispronunciation of the child's name as a means of encouraging the child to pronounce the name correctly. Upon requesting Dietz to correctly pronounce the name, Dietz discontinued his practice. The evidence fails to establish that the child was harmed by the mispronunciation of his name. In October, 1992, Dietz removed a non-functioning clock from the classroom wall and threw it down. The battery came out of the clock and struck a female student's leg, but no injury resulted. The allegation that Dietz's removal of the clock was accompanied by a remark that the "piece of shit" clock was not working is not supported by the greater weight of credible evidence. It is alleged that Dietz threw a pencil and book at one student who came to class without materials. The greater weight of the evidence establishes that Dietz slammed a book down on the table in front of the student, who was being seated away from class as a disciplinary measure. The evidence also establishes that Dietz tossed a pencil to the child. The evidence fails to indicate that tossing a pencil to a sixth grade child is an appropriate method of distributing school supplies. The pencil would have hit the child had he not moved from the path of the projectile, however the evidence does not establish any intent to injure the child by Dietz. In October, 1992, four female students from Dietz's afternoon class locked themselves in a bathroom stall during a rest room break and remained there when the break ended. Standing in the school hallway, Dietz reached into the bathroom, knocked on the stall door and directed the female students to return to class. It is alleged that upon exiting the bathroom, Dietz addressed the students as "lesbians," "perverts" and "gaywads." The greater weight of the evidence fails to establish that Dietz used such language in the presence of the female students or that his action in directing the students to return to class was inappropriate. It is alleged that at various times in the classroom during the 1992- 93 school year, Dietz uttered the following words and phrases: "nigger," "nigger shit," and "nigger talk," and instructed one student to "take your black ass back to Africa." The greater weight of the evidence fails to establish that Dietz used such language in the classroom. It is alleged that at various times in the classroom during the 1992- 93 school year, Dietz uttered the following words: "ass," "assholes," "shit," "hell," "fucking assholes," and "fucking jerks." The greater weight of the evidence fails to establish that Dietz used such language in the classroom. It is alleged that on one occasion at the end of the class session during the 1992-93 school year, Dietz instructed a student in the completed class to get his "fat ass" out of the classroom. There was testimony that Dietz directed the student to get his "fat carcass" out of the classroom. While the greater weight of the credible and persuasive evidence establishes that Dietz indeed addressed the child as "fat", it is insufficient to establish that Dietz used the word "ass" in the presence of the child. The evidence fails to establish that use of the descriptive word "fat" resulted in injury to the child. It is alleged that in October, 1992, Dietz threw a plastic cup at a student. The evidence fails to support the allegation. It is alleged that in October, 1992, Dietz threatened to tell the mother of a student that the child was "a big fat lump of nothing." The evidence fails to support the allegation. In October, 1992, a student inquired of Dietz as to whether he believed the students in the class were "brats." Dietz replied in the affirmative. The student then asked if Dietz thought the inquiring student was a "brat." Dietz again replied in the affirmative. It is alleged that Dietz drove onto the school grounds with a loaded and cased handgun locked in the glove box of his car. It is alleged that on the day questioned about the gun, Dietz admitted having the gun in the car. The evidence fails to establish that, on the day questioned, Dietz (who owned several vehicles) had the gun in the glove box of the car driven. However, the evidence establishes that, on at least one occasion, Dietz drove onto the school grounds with a loaded and cased handgun locked in the glove box of his vehicle. The all times material to this case, there was no written School Board policy prohibiting a loaded and cased weapon from being on the school grounds locked in a vehicle glove box. There were no oral directives to faculty that a loaded and cased weapon, locked in a vehicle glove box, was prohibited from school grounds. At one time in the Spring of 1992, the school principal brought a firearm onto school grounds, the thereafter loaded and fired the weapon as part of a demonstration. The District's assertion that the related alleged violation of federal law is sufficient to support termination is rejected. On October 28, 1992, a number of Dietz's students went to the office of a school guidance counselor and voiced a number of complaints about alleged conduct. The counselor noted the complaints and reported the matter to the assistant principal of the school. On October 29, 1992, the assistant principal met with Dietz to discuss the allegations. According to the assistant principal, Dietz admitted to the alleged behaviors, except for one specific accusation regarding addressing a specific student as a "fucking ass." According to Dietz, he did not admit that such behaviors occurred and instead asserts that he attempted to explain some of the reasons for the allegations, including the grades assigned to some of the complaining students. The conflict in recollections is reconciled in favor of Dietz. On October 30, 1992, Dietz met with the principal of the school, during which time Dietz admitted that he had previously stored a loaded and cased handgun in the glove box of one of the vehicles he drove onto school grounds. On October 30, 1992, Dietz was suspended with pay based on the allegations of improper conduct. In November, 1992, an employee of the superintendent of the Lee County school district undertook an investigation of the allegations regarding Dietz. On November 10, 1992, a predetermination conference was held. On November 13, 1992, Dietz was advised that on November 17, 1992, the district superintendant would recommend to the school board that Dietz be suspended without pay and benefits pending termination of employment. Effective November 17, 1992, the board elected to suspend Dietz without pay and benefits. Dietz was notified of the board action by letter dated November 25, 1993. The letter provided that Dietz could request a formal administrative hearing on the matter. By letter dated November 19, 1992, Dietz requested formal hearing of the board's November 17 action.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School District of Lee County enter a Final Order reinstating the employment of Carl B. Dietz and providing for back pay and benefits retroactive to November 17, 1992. DONE and RECOMMENDED this 27th day of July, 1993 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7075 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6-8. Rejected, immaterial. Rejected, not supported by greater weight of credible and persuasive evidence. Rejected. The rest room discussion is irrelevant. The greater weight of credible and persuasive evidence fails to establish that the chair was "yanked" from under the student or that the student struck his head. The alleged lack of an apology is irrelevant. Rejected as to Dietz interaction with Mr. Nolan, irrelevant. Rejected, as to the discussion of poster touching, irrelevant. Rejected, as to the alleged "black talk" remark, not supported by the greater weight of credible and persuasive evidence. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected as to alleged remark that the class "sucks", not supported by the greater weight of credible and persuasive evidence. 20-21. Rejected, not supported by the greater weight of credible and persuasive evidence. 23-25. Rejected, not supported by the greater weight of credible and persuasive evidence. 26. Rejected, subordinate. 28-29. Rejected, not supported by the greater weight of the evidence. 30, 32. Rejected, subordinate. Recitation of testimony not appropriate finding of fact. 33. Rejected, unnecessary. 34-40. Rejected, subordinate, unnecessary. Rejected, irrelevant. Rejected, unnecessary. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 11. Rejected as to allegation of child striking head in fall, not supported by greater weight of credible and persuasive evidence. 13, 15. Rejected, subordinate. 16. Rejected as to force of toss or intent to strike child, irrelevant, no evidence that such action is appropriate regardless of intent. 17-20, 22. Rejected, subordinate. Rejected, subordinate. Rejected, unnecessary 25-30. Rejected, subordinate. 31-38. Rejected, goes to credibility of witnesses which has been determined as reflected in the Findings of Fact set forth herein. 42, 44. Rejected, unnecessary. COPIES FURNISHED: Dr. James A. Adams Superintendent Lee County School District 2055 Central Avenue Fort Myers, Florida 33901-3988 John J. Hament, Esquire 1800 Second Street, Suite 785 Sarasota, Florida 34236 Robert J. Coleman, Esquire 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902
