Findings Of Fact Respondent, Moses Green, holds Florida Teaching Certificate No. 232099, Graduate, Rank II. He served as dean of students at Boca Ciega School during the 1976-1977 school year. Thereafter he was reassigned as one of three deans of students at Pinellas Park High School, and he served in this capacity during the 1978-1979 school year. Moses Green has been in the field of education since his graduation from Florida A & M University more than 21 years ago. After teaching several years in South Carolina and Georgia he came to Boca Ciega High School in Pinellas County in 1964 where he started as a teacher. He served as dean of students at Boca Ciega High School from 1974 until 1977 when he was transferred to Pinellas Park High School as a dean of students. In October 1976 enroute from his home to school in a vehicle described both as a van and a motor home, Respondent stopped to give a ride to Jacqueline Blackshear and Stephanie Bellamy, two ninth grade students at Boca Ciega High School. When they entered the van Jackie sat on the housing covering the engine between the two front seats facing the rear of the van and Stephanie sat in the front right-hand passenger's seat. Enroute to school Respondent commented that Jackie was growing up and placed his hand on the inside of Jackie's thigh. At the time, Jackie was enroute to school for cheerleader practice and was wearing shorts. Jackie looked and moved towards Stephanie and Respondent removed his hand. Before arriving at school Respondent again placed his hand on Jackie's thigh and removed it when she moved. Upon arrival at school Respondent told Stephanie to get out as he wanted to talk to Jackie. When Stephanie left the van, Respondent was standing facing Jackie whose back was to the closed door. Respondent grabbed Jackie and attempted to kiss her. She pushed away, opened the door and left the van. When she left the van, Jackie was upset and Stephanie suggested she tell her parent. Near noontime Jackiie went to Gail Weston, a physical education teacher at Boca Ciega High School and told her about the incident in Respondent's van. Stephanie accompanied Jackie on this visit. Ms. Weston described Jackie as nervous and upset. After a few minutes of conversation Ms. Weston realized that it was not something she could handle and she told Jackie and Stephanie that they needed to tell their story at the Dean's office and she took them to Jean Johnson, a dean of students at Boca Ciega High School. There both girls told their story to Ms. Johnson who prepared a statement for them to sign. The story repeated to Ms. Johnson was essentially the same told to Ms. Weston. After typing up their statements, Ms. Johnson told Mr. Demps, the principal. He had the girls brought to him, where the story was again repeated. Demps called Respondent in and confronted him with the story. He also advised his area superintendent and the director of personnel, who investigated the allegations made by these two girls. Demps also arranged for a meeting with Jackie's and Stephanie's parents the following day. Following the investigation, Green, on October 19, 1976 was issued a letter of reprimand (Exhibit 1) for his role in the events that had come to the school's attention regarding the two girls noted above and warned that a recurrence of such conduct would result in dismissal. By letter dated 9 November 1976 Respondent was sent another letter (Exhibit 2) regarding a reported and inappropriate remark made by Green to another female student, which Respondent had denied, and the letter suggested Respondent and the girl take lie detector tests. By letter dated December 29, 1976 (Exhibit 3) the Superintendent of Schools advised Respondent that the results of the polygraph test he had voluntarily taken indicated his answers were deceptive, while the girl's polygraph test indicated her responses were honest. Respondent was placed on probation for the remainder of the 1976-1977 school year and for all of the 1977-1978 school year. Although his principal at Boca Ciega High School, Mr. Demps, considered Respondent's effectiveness at Boca Ciega High School seriously impaired by the notoriety given to the events involving Respondent in 1976, he remained at Boca Ciega High School for the remainder of that school year. For the school year 1977-1978 Respondent was transferred to Pinellas Park High School as dean of students. Upon his transfer to Pinellas Park High School, Demps gave Respondent a good evaluation report. During Respondent's first year at Pinellas Park High School, no incidents were reported to form the basis of any of the charges here considered. This school year 1977-1978 included the probation period set by Exhibit 3. The school year 1978-1979, while Respondent was dean of students at Pinellas Park High School, produced the majority of complaints and testimony at this hearing regarding improper comments made to female students by Respondent, improper contact of a sexual nature with female students by Respondent, and corroboration of this testimony by other witnesses. Ten female students who attended Pinellas Park High School during school year 1978-1979 testified against Respondent regarding incidents between Respondent and these students of a sexual nature. Some of these incidents involved contact or attempted contact such as hugging, kissing or attempting to kiss, touching breasts or attempting to do so, and rubbing the front of his body against students' backsides when passing them when adequate room for passing without contact existed. Several testified to improper comments made to them by Respondent such as "You have a nice set of tits," "I'd like to get in your pants," "You have a nice pair of legs," "Why don't we go to a motel," "You drive an old man crazy," "You have a nice butt and look good in those pants," "One of these days it's going to be you and me," and similar comments regarding female students' anatomy. Much of this testimony was corroborated by other witnesses who overheard the remarks or observed the bodily contact. Additionally, some of the witnesses had complained to their parents or to other faculty members shortly after the incidents. Others first came forward with their complaints when they learned the police were investigating Green's conduct at the school and they became convinced their isolated incidents wouldn't appear unbelievable. Some of these students tolerated and perhaps encouraged the comments to provide them leverage to insure a cover-up for numerous "skips" of classes. Some of these witnesses skipped classes without punishment due to Respondent's position as dean and to whom their infractions were referred. Respondent denied each and every testimonial utterance of misconduct on his part while admitting the situation described by the witnesses, in which the improper actions of Respondent were said to have occurred, were real. During his testimony Respondent referred to school records which would corroborate his testimony, but he made no effort to produce these records or to account for their non-production. Respondent was subjected to three criminal trials on charges stemming from allegations of fact similar to those testified to in these proceedings. He was acquitted on charges alleging battery and false imprisonment and convicted of the offense of attempting to contribute to the delinquency of a minor. Those trials resulted in considerable publicity and the allegations became well-known throughout the Pinellas County School System. Several witnesses testified that Respondent's effectiveness in the Pinellas County School System was totally destroyed by virtue of the notoriety gained by Respondent due to this adverse publicity.
The Issue The issues are whether Respondent had good cause to reject the Escambia County School Superintendent's nomination of Petitioner to be principal of Woodham High School, and, if not, what relief should be granted to Petitioner.
Findings Of Fact Pensacola High School (PHS) is located in Pensacola, Escambia County, Florida. It is an inner city school of approximately 2000 students with a diverse population. Petitioner was appointed principal at PHS for the 1994- 1995 school year by Dr. Bill Malloy, the former Superintendent of Escambia County Schools. Petitioner served in that capacity until Superintendent Malloy transferred him in March of 1996 to the position of Director of Student Transfers. At all times material to this proceeding, Respondent had a policy requiring principals to report incidents of suspected child abuse immediately to the Department of Health and Rehabilitative Services (HRS)(currently the Department of Children and Families.) Another policy required principals to immediately report bomb threats to the district office and to proceed with the evacuation of the school property as instructed. Before school began in the fall of 1995, Petitioner assigned Kevin Sanders to be the teacher in charge of the In School Suspension (ISS) class. Petitioner made this assignment because Mr. Sanders previously had developed and successfully operated a similar class at PHS. The school district approved the plan at PHS for an ISS unit as designed by Mr. Sanders. Mr. Sanders also served as a weight training coach at PHS. He was not the only teacher/coach to run an ISS program for Respondent during the 1995-1996 school year. At least three other schools had coaches running their respective ISS programs in the fall of 1995. There is no persuasive evidence that the assignment of a coach to be in charge of an ISS class was in direct contravention of the Superintendent's instructions. No one ever told Petitioner that the Superintendent did not want a coach-like person in charge of the ISS class. Mr. Sanders wanted to work in the weight room at the stadium during the last period of the school day. Petitioner told Mr. Sanders that he could work in the weight room, provided he found someone to supervise his ISS class during that period. There is no credible evidence that Mr. Sanders had permission from Petitioner to take his ISS students to the stadium and leave them unattended in the bleachers. On October 16, 1995, a fifteen-year-old female student skipped school. The police returned the female student to PHS. As a consequence of her actions, the female student was temporarily assigned to the ISS class taught by Mr. Sanders. Normally, the female student attended a class for special students in the Exceptional Student Education (ESE) program. She functioned academically on a third or fourth grade level. On October 17, 1995, Ms. Sanders took his ISS class to the stadium and told them to sit in the bleachers. He then went to the weight room leaving the class unsupervised. The female student went into one of the restrooms in the stadium. She performed fellatio on a number of male students, primarily football players, in the presence of many other students. In the fall of 1995, PHS had several deans who served the general student population. Richard Sousa was the dean of students for ESE participants. He also served as the crisis teacher for the total student population at PHS. On October 18, 1995, Mr. Sousa saw a group of students outside the dean's office. When he investigated, Mr. Sousa found the female student sitting in a chair with her hands on her head. After Mr. Sousa closed the door to the deans' office, the female student stated that other students were falsely accusing her of performing oral sex with some boys. Mr. Sousa then took the female student to an ESE self-contained classroom so that she would not be harassed. Next, Mr. Sousa called the female student's mother and reported the facts as he understood them. The mother told Mr. Sousa that her daughter was not sexually active. Mr. Sousa asked the mother to pick up her daughter from school because the child was visibly upset. Later that day, Mr. Sousa reported to Petitioner that he had heard a rumor about sexual activity occurring in the stadium, on the fifty-yard line, or on the practice field. Mr. Sousa told Petitioner that other students were teasing the female student who denied being involved in any sexual behavior. After receiving this report, Petitioner directed Assistant Principal Leo Carvalis to contact Coach David Wilson, the head football coach. Petitioner instructed Coach Wilson and Mr. Sousa to investigate the rumor regarding the sexual activity. Coach Wilson talked to the football team that afternoon. The team assured him that they knew nothing of any sexual incident in the stadium, the football field, or the practice field. Coach Wilson and Petitioner discussed the situation again later that day. Petitioner told Coach Wilson to continue to listen to what was going on among the students, to ask questions, and to make his findings known. Petitioner gave other members of his staff and faculty the same instructions. Petitioner wanted to determine whether there was any truth to the rumor about the sexual incident. He wanted to discipline any students involved, including football players. However, Petitioner did not want to accuse any student, including the alleged victim, of inappropriate behavior until he had more facts. At the end of the day on October 18, 1995, Mr. Sousa did not believe that the sexual incident had occurred. He knew that special education students are often harassed, ostracized and picked on. Mr. Sousa thought the teasing would blow over and the female student could be returned to her regular classroom. Mr. Sousa expressed this opinion to Petitioner. For the rest of the week, Mr. Sousa took lunch to the female student in the ESE self-contained classroom because other students teased and pointed fingers at her. Mr. Sousa had to walk to the bus with the female student for the same reason. Nevertheless, Mr. Sousa continued to believe the rumor was false. His disbelief was based in part on the female student's persistent denials. Additionally, it was not uncommon for a rumor such as the one at issue here to prove to be unfounded. The next week, the female student requested that she be permitted to return to her regular ESE classes because she believed the teasing was over. Mr. Sousa granted the female student's request; however, after a couple of class periods, Mr. Sousa returned her to the self-contained classroom because even the special education students were saying things about her. Amanda Williams and Naomi Ferguson were guidance counselors at PHS during the fall of 1995. On October 26, 1995, Ms. Ferguson indicated to PHS Assistant Principal Sarah Armstrong that Petitioner knew about the sexual incident involving some of the football players. According to Ms. Ferguson, Petitioner was trying to cover up the situation because the football team was doing well. Later that day, Petitioner held a meeting in his office with Ms. Ferguson, Ms. Williams, Mr. Sousa, Ms. Armstrong, and Mr. Carvalis. During the meeting, Ms. Armstrong advised Petitioner that Ms. Williams had information from a male student (an informant) confirming the sexual incident but would not reveal her source because of confidentiality concerns. Petitioner asked Ms. Williams to speak with him in private. During their private conversation Ms. Williams revealed that an informant had given her information about a second male student who was involved in the sexual incident at the stadium. Ms. Williams gave Petitioner the names of both students. When he and Ms. Williams returned to the meeting, Petitioner stated, "I believe something must have happened. This is a credible witness." He also stated, "To hell with the football team. If these players can get away with this now, what will they think they can get away with in the future?" For the first time, Petitioner began to suspect that the sexual incident was factual and not an unfounded rumor. Ms. Ferguson revealed additional information about the female student at the meeting on October 26, 1995. Ms. Ferguson stated that the female student's mother intended to send her daughter to live with an uncle in Tampa, Florida. The female student did not want to make this move. The female student told Ms. Ferguson that the uncle had sexually molested her in the past. Ms. Armstrong stated that someone needed to call HRS to report the suspected sexual abuse by a family member. The group decided that HRS should also look into the allegations of sexual activity at the school. Petitioner instructed Ms. Ferguson to call HRS. He asked her to wait just long enough for someone to advise the female student's mother that an investigation was pending. There is no persuasive evidence that Petitioner ever intended to cover up the sexual incident. Likewise, he did not unreasonably delay his staff from reporting their suspicions to HRS. On October 26, 1995, Petitioner mistakenly understood that cases of suspected child abuse had to be reported to HRS within 24 hours instead of immediately. The last instructions he gave in the meeting on October 26, 1995, was to remind Ms. Ferguson to call HRS. She made that call on October 27, 1995. The female student was isolated from the general student population in the self-contained ESE classroom at PHS. Therefore, Mr. Sousa recommended at the meeting on October 26, 1995, that the school conduct an Individual Education Plan (IEP) meeting to review the female student's placement. He believed that the female student should be transferred to another school so that she could attend classes with the general population. After receiving Petitioner's authorization, Mr. Sousa contacted the Exceptional Student Education (ESE) district staff to arrange for an IEP meeting. Mr. Sousa also called the female student's mother on October 27, 1995, to advise her of his recommendation. On October 27, 1995, Petitioner talked to the male student who, according to Ms. Williams' informant, participated in the sexual incident at the stadium. The male student confirmed that the sexual incident occurred in the stadium. However, there is no evidence that the student admitted his personal involvement in the sexual activity to Petitioner at that time. The police investigation later revealed that the male student was one of the students who had participated in the sexual incident. At the IEP meeting on October 31, 1995, the entire IEP team, including ESE teachers from PHS and Woodham High School (WHS), ESE district staff, and the female student and her mother, discussed the reasons for changing the student's placement to WHS. Everyone on the IEP team, except the female student, believed that she should be transferred to a new school environment with peers who did not know her. The female student begged her mother not to permit the transfer. However, the parent agreed that the transfer was in her daughter's best interest and offered to provide transportation. On November 1, 1995 or November 2, 1995, the female student was supposed to enroll at WHS. Instead, she returned to PHS. Mr. Sousa called the mother to pick up her daughter and take her to WHS. On November 3, 1995, Mr. Sousa called the female student's mother. She stated that everything was all right with her daughter at WHS. On Monday, November 6, 1995, the female student's mother called Mr. Sousa because her daughter had run away from home. The mother wanted Mr. Sousa to be on the lookout for her daughter. During the conversation, the mother stated for the first time that the rumors about the sexual incident might be true because, despite her daughter's denials, it had been confirmed by one of her daughter's friends. Mr. Sousa informed Petitioner about the suspicions of the female student's mother. Petitioner then directed Coach Wilson to talk with the football team again. No one on the team would admit their involvement in the sexual incident. Petitioner also told the deans and the assistant principals to see if they could determine what had happened and who was involved. The efforts of the faculty and staff to verify the rumors were unsuccessful. On November 9, 1995, Petitioner received a letter from Ms. Ferguson suggesting that he was responsible for trying to cover up the sexual incident. He also received a call from Special Assistant to the School Superintendent Jerry Watson, stating that he had heard "bad things" were going on at PHS. Petitioner called a meeting with the appropriate PHS staff to discuss information about the alleged sexual incident. They reviewed information furnished by the male students and the female student's mother. During this meeting, Petitioner expressed his concern that someone in the group was acting unprofessionally by leaking confidential information about students to persons outside of PHS. Petitioner advised the group that he would try to transfer anyone who breached the students' confidentially. Petitioner did not make these comments to threaten or intimidate his staff and faculty or to cover up the sexual episode. After the meeting on November 9, 1995, Petitioner took Ms. Ferguson's letter to the district office where he met with Sherman Robinson, Deputy School Superintendent. Petitioner told Mr. Robinson about the facts leading up to the receipt of the letter. Mr. Robinson told Petitioner to contact Joe Hammons, the Superintendent's attorney, for advice as to the appropriate action. Petitioner then made an appointment with Mr. Hammons for Monday, November 13, 1995, because Friday, November 10, 1995, was a holiday. On November 13, 1995, Mr. Hammons met with Petitioner. At this meeting, Petitioner told Mr. Hammons what he knew concerning the sexual incident. Mr. Hammons then scheduled a meeting for November 14, 1995, with Petitioner, Mr. Robinson, and two members from the school district's risk management department. At the meeting on November 14, 1995, the group determined that information available from the male students and the female student's mother, justified contacting the Pensacola Police Department. Upon leaving that meeting, Petitioner contacted Sergeant Potts at the police department. The deans at PHS generally handled all disciplinary problems until they determined that a crime had been or might have been committed. At that point, the staff involved the school resource officer. In this case Petitioner relied on his staff to investigate the rumors of the sexual incident and did not involve the school resource officer. Until November 1995, Petitioner was not aware that, if the rumors of the sexual incident proved true, a crime had been committed. Shortly thereafter, Dusty Cutler of the Pensacola Police Department was assigned to investigate the sexual incident at PHS. On November 15, 1995, Officer Cutler talked to the female student who continued to deny all allegations. The female student did not admit to being involved in the sexual incident for several weeks after Officer Cutler began her investigation. Pursuant to Petitioner's suggestion, Officer Cutler also talked to the male student identified by Ms. Williams' informant as one of the participants in the sexual incident. The female student's mother told Officer Cutler that she did not want a police investigation. The mother became upset with the way Officer Cutler was talking to her. Petitioner complained to Lieutenant Knowles of the Pensacola Police Department about Officer Cutler's "abusive" behavior to the mother of the female student. From that time forward, Officer Cutler never spoke to Petitioner even though she spent six months investigating the sexual incident on a daily basis. There is no persuasive evidence that Petitioner interfered with Officer Cutler's investigation or failed to cooperate with her in any way. Officer Cutler reported the sexual incident to HRS. The agency gave her the same response they had given Ms. Ferguson, i.e., HRS would not investigate or follow the case because the sexual activity was not a rape and a family member was not involved. After Officer Cutler was assigned to the case, Petitioner was instructed by the school district to do nothing further until the police investigation was concluded. The Grand Jury released its Amended Report on Pensacola High School on April 15, 1996. The report indicted several male students involved in the sexual incident. Petitioner did not have an opportunity to discipline the students because he was not working at PHS at that time. In the spring of 1996, a number of middle school and high schools in the Pensacola area received bomb threats over the telephone. PHS received bomb threats on at least three occasions. The school evacuated to the adjoining football stadium on one occasion, to the fairgrounds on another occasion, and to Pensacola Junior College on a third occasion. On March 29, 1996, about 7:00 a.m., a school secretary, received a bomb threat call at PHS. Mr. Sousa received a second bomb threat call at PHS around 7:15 or 7:30. On both occasions the caller's voice was a raspy, young man's voice. The school secretary and Mr. Sousa recognized the voice of the caller as a young man in one of the self-contained classrooms. The student had created problems in the past. Each time he behaved improperly, the student would use his raspy voice. Mr. Sousa reported the first bomb threat to Mr. Carvalis. Mr. Carvalis called Petitioner at his home. Petitioner was not at school because he was not feeling well because he had been at the emergency room much of the night before. Petitioner instructed Mr. Carvalis to initiate a search. The search included a sweep of the stadium in case the school had to evacuate to that area. Petitioner advised Mr. Carvalis that he was on his way to the school. When Petitioner arrived at PHS, Mr. Carvalis informed him of the second threatening call. The staff again assured Petitioner that they knew the caller's identity, and that both calls had been made by the same student. The student was not at school. Therefore, Petitioner directed Mr. Sousa and the resource officer, Max Cramer, to go to the student's home and request the student's parent to bring the student to school. In the meantime, a third call was received from the same caller. Next, Petitioner phoned Deputy Superintendent Sherman Robinson. Petitioner explained to Mr. Robinson about the bomb threat and the school's discovery of the identity of the caller. Jones believed from his discussion with Mr. Robinson that his handling of the situation and his decision not to evacuate the school had the tacit approval, if not the explicit permission, of the district office. Petitioner believed Mr. Robinson concurred in his decision not to evacuate. The student with the raspy voice and his parent subsequently arrived at the school. After questioning the student, Petitioner believed the student was the caller. Petitioner decided to continue the search of the school without evacuating it. Petitioner directed Mr. Carvalis and the maintenance men to divide into teams and sweep the campus using the techniques taught by a handler of a bomb sniffing dog after previous threats. On one occasion a bomb sniffing dog and his handler came to PHS from Eglin Air Force Base in Ft. Walton. The PHS campus was so large that the dog got tired and refused to work about half way through the search. On that occasion, the search continued in the same manner employed by Petitioner on March 29, 1996. During the search on March 29, 1996, seven different groups looked for anything that was out of place. All of the deans had assigned areas where they searched trash bins, open lockers, and open classrooms. Later in the school day, Mr. Carvalis reported that the entire campus, including the portables, had been swept and nothing found. Petitioner does not dispute that he did not follow the Superintendent's policy regarding bomb threats on the day in question. Petitioner believed that he knew the identity of the caller. He also was concerned about the disruption that the bomb threats were causing to the academic programs at PHS. The students in the gifted program were preparing to take their advanced placement tests. The students in the International Baccalaureate program were studying for their exams. Additionally, March 29, 1996 was the last chance for some students to take the high school competency test before graduation. Superintendent Malloy was particularly concerned that Petitioner failed to evacuate the school. The previous day he had reiterated his policy of evacuation to all principals. However, Petitioner did not attend the meeting; one of Petitioner's assistant principals attended that meeting in his absence. On March 30, 1996, Superintendent Malloy placed Petitioner on administrative leave with pay, pending an investigation of his failure to evacuate PHS after a bomb threat. Superintendent Malloy subsequently assigned Petitioner to his current position as Director of Student Transfers. On June 3, 1996, Superintendent Malloy issued a letter reprimanding Petitioner for the following reasons: (1) failing to ensure that the ISS class had appropriate supervision; (2) failing to follow up on information regarding sexual activity in the stadium in a timely manner; and (3) failing to evacuate the school after receiving a bomb threat. In November of 1996, Jim May was elected Escambia County School Superintendent. On or about June 10, 1997, the Commissioner of Education, Frank T. Brogan, filed an Administrative Complaint against Petitioner in Education Practices Commission (EPC) Case Number 956-1609-B. This complaint alleged that Petitioner failed in his responsibilities to ensure that all students under his charge were properly supervised. The complaint also alleged that Petitioner failed to evacuate the school after receiving a bomb threat. On June 24, 1997, Superintendent May nominated Petitioner to be principal of WHS. At the time of the nomination, Superintendent May was aware of the relevant facts concerning the PHS sex incident and bomb threat incident. Additionally, he had been in contact with counsel for the Florida Department of Education regarding EPC Case Number 956-1609-B. Respondent rejected Petitioner's nomination to be principal of WHS. On a 3 to 2 vote, Respondent found good cause to reject the nomination based on the following: Among the reasons articulated by the three Board Members who voted against the nomination were, in addition to the reasons presented by the other speakers, Mr. Jones' unsatisfactory past performance of his duties when he served as Principal of Pensacola High School (which events were the subject of a grand jury report and are the subject of an administrative complaint by the Commissioner of Education now pending before the Education Practice Commission proceeding, . . . his lack of subsequent training to improve his skills in the areas in which his poor performance resulted in his 1996 removal as Principal of Pensacola High School, and his apparent violation of certain of the principles of Professional Conduct for the Education Profession in Florida, in addition to gross insubordination and willful neglect of duty in connection with the Pensacola High School incidents. In sum the three Board Members who voted against the nomination felt that Mr. Jones is presently unqualified to be a Principal. After Respondent rejected his nomination, Petitioner told Superintendent May that it was unfair to the students of WHS to make them wait for a principal. On July 22, 1997, Superintendent May nominated another person to be principal at WHS. On or about November 6, 1997, the Florida Department of Education decided that it would withdraw its probable cause determination against Petitioner and enter into a Deferred Prosecution Agreement with him. The department requested the Education Practices Commission to close EPC Case Number 956-1609-B. On or about March 9, 1998, Superintendent May advised the Florida Department of Education that Petitioner had performed his assigned duties and responsibilities in a professional manner during the period of January 10, 1997 and March 1, 1997. Petitioner had fully complied with all district and state rules and regulations. On or about March 26, 1998, Education Commissioner Brogan determined that there was no probable cause to suspend or revoke Petitioner's teacher's certificate. Petitioner was released from his Deferred Prosecution Agreement with the department. Petitioner holds the proper state certification for a high school principal. Except for the two incidents in question, Petitioner's performance at PHS was exemplary. Under his leadership, the school population was stable and well under control. Petitioner created an atmosphere at PHS where high quality performance on the part of a number of students was recognized, encouraged, and supported by the faculty and staff. Petitioner had an excellent relationship with students, teachers, and the PHS Advisory Council. Petitioner genuinely cared for the health, safety and welfare of the students at PHS. He was concerned more about the feelings and self-esteem of the students than with winning academic and athletic competitions, and he did not make accusatory judgments about his students until he had the necessary facts and proof to support those accusations.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That Respondent enter a Final Order finding that there is no good cause to reject Superintendent May's nomination of Petitioner to be principal at WHS, promoting him to that position, and awarding him any back pay to which he may be entitled. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
The Issue Whether the Petitioner's decision to suspend the Respondent without pay for a period of five working days should be sustained.1
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; Section 230.03, Florida Statutes. Mr. Fox is a teacher of emotionally handicapped students who has been employed by the School Board for approximately 27 years and has taught at Jefferson Davis for the past 23 years. He is employed by the School Board under a continuing contract. On March 28, 2000, Mr. Fox was issued a written reprimand by the Director of the School Board's Department of Employee Relations for making inappropriate comments to students. During the 2000-2001 school year, Mr. Fox taught a sixth grade class composed of six to eight emotionally handicapped students, some of whom had behavioral problems. The students in the class were between 11 and 12 years of age. B.W. was a student in Mr. Fox's class from the first part of November 2000 until he was transferred in the spring to another class for emotionally handicapped students.2 B.W. testified that Mr. Fox cussed in class, using words like "damn" and "asshole," and saying things like "quit your bitching." B.W. testified that he "believed" he overheard Mr. Fox say "fuck" in a conversation with another teacher about restaurants and cars. B.W. agreed when counsel for the School Board asked him if Mr. Fox ever told him, another student in the class, to "shut the hell up."3 B.W. recalled that, when Mr. Fox was talking to a girl in the class who had been fighting, he overheard Mr. Fox tell her, in response to something that she said to him, that he would see her at her funeral.4 B.W. also testified that some of Mr. Fox's actions in the classroom bothered him.5 B.W. told his mother that Mr. Fox was being "real rude,"6 and he complained to her about Mr. Fox almost every day. L.G., B.W.'s mother, testified that B.W. complained to her about Mr. Fox. B.W. told her that, one time, Mr. Fox told him to "shut the hell up."7 B.W. also told her that Mr. Fox used the "f- word" to a teacher, and B.W. told her that Mr. Fox "said the word, damn, one time."8 B.W. also told her that Mr. Fox told him to "sit back down in the damn seat."9 When B.W. told her these things, L.G. testified that she would contact Todd Smith and Anthony Rochon at Jefferson Davis; she spoke with them weekly. L.G. testified that she had written in B.W.'s agenda book that Mr. Fox should correspond with her or call her on the telephone if there were a problem with B.W. According to L.G., Mr. Fox called her at work one day and told her that he had a problem with B.W. L.G. went to the school immediately and went into the classroom to help her son. L.G. testified that Mr. Fox was rude to her on this occasion because he told her in a gruff voice: "'Tell him to do that page there.'"10 L.G. also testified that Mr. Fox telephoned her to talk about B.W. not doing his work and being obnoxious in class. L.G. testified that Mr. Fox was rude and unprofessional during these conversations; he was "very short" with her and once told her that B.W. "wouldn't do his damn work."11 The 2000-2001 school year was Anthony Rochon's first year as the Crisis Intervention Teacher at Jefferson Davis. His job is to assist the special education teachers with students who become overly disruptive in the classroom. The students are removed from the classroom and sent to him for counseling. In many cases, the students are very angry when they come into his office; Mr. Rochon must sometimes send the student home because he or she cannot be calmed down, but, other times, the student stays with Mr. Rochon the entire day or returns to the classroom. At unspecified times during the 2000-2001 school year, Mr. Rochon received complaints regarding Mr. Fox's comments and actions in the classroom. These complaints came primarily from four male students, including B.W. and S.M., although other students in Mr. Fox's class would occasionally complain. Mr. Rochon received more complaints from the students in Mr. Fox's class than he did with respect to the other two classes for the emotionally handicapped at Jefferson Davis. Mr. Rochon could not remember during his testimony specifically what each student said about Mr. Fox, but he thinks that B.W. may have said that Mr. Fox cursed at him "or something like that."12 With respect to the other complaints, Mr. Rochon recalled that "[s]ome [students] would say he cursed at them, used profanity. Some would say he made derogatory remarks about their intelligence. And those were basically their major complaints. Yelled at them."13 Some students complained to Mr. Rochon that Mr. Fox called them stupid or yelled at them, told them that they were not wanted in the class and "should be somewhere else."14 In most cases, Mr. Rochon would talk to the student and discover that the student had been angry and misinterpreted what Mr. Fox said. In a few cases, the student would not tell him what the problem was but would become upset and would refuse to return to the classroom; Mr. Rochon would refer these cases to Todd Smith, the assistant principal for the sixth grade. Mr. Rochon also received complaints from the mothers of three of the four male students, including B.W.'s mother and S.M.'s mother. L.G., B.W.'s mother, complained to Mr. Rochon that her son complained to her about things that Mr. Fox said to him, and L.G. complained that Mr. Fox was rude to her. M.M., S.M.'s mother, complained to Mr. Rochon that Mr. Fox hung up on her and was rude to her "or something" and that she received "excessive phone calls or something from Mr. Fox about things her child was doing in class."15 Mr. Rochon has no records of the complaints he received from students or parents, and he does not know whether the accusations against Mr. Fox were true. Mr. Fox frequently sent both B.W. and S.M. to Mr. Rochon for intervention. B.W. was sent to Mr. Rochon two or three times per week, and S.M was sent more often than B.W. Mr. Fox sent both students to Mr. Rochon for intervention because they were disrupting his classroom and he could not teach. Sometimes Mr. Rochon would go to Mr. Fox's classroom to remove B.W. or S.M. in response to a request from Mr. Fox for intervention. Mr. Fox personally observed B.W. "running around the classroom, maybe talking loudly or having an argument with another student and refusing to stop when Mr. Fox asked him to."16 He personally observed S.M. to be "generally . . . loud, would sometimes use profanity. He would leave the room a lot. Mr. Fox had to call me to go find him a lot. He was more of a volatile student in the sense that when he became very angry, he became very aggressive."17 The 2000-2001 school year was Mr. Smith's first year as the assistant principal for the sixth grade at Jefferson Davis. In the fall of 2000, Mr. Smith began receiving complaints from students about Mr. Fox's behavior in the classroom. Mr. Smith also received complaints from the parents of the four male students who complained to Mr. Rochon, especially from the mothers of B.W. and S.M. The complaints began in November 2000, at about the time B.W. was placed in Mr. Fox's classroom.18 Relevant to the issues herein, L.G., B.W.'s mother, complained to Mr. Smith that B.W. complained to her that Mr. Fox used inappropriate language and some profanity, specifically "bullshit," in the classroom. M.M, S.M.'s mother, made similar allegations against Mr. Fox, and she complained to Mr. Smith that Mr. Fox made some inappropriate comments and used some profanity, but she did not give Mr. Smith any specifics. L.G. and M.M. both complained to Mr. Smith that Mr. Fox was unprofessional in his conversations with them, but they did not give any specific instances of such behavior. At their parents' requests, both B.W. and S.M. were transferred out of Mr. Fox's classroom. B.W. testified that he asked Mr. Smith to "get me out of the class because he [Mr. Fox] was rude, and he would make comments to other children which I thought were inappropriate, and they bothered me."19 At about the same time, Mr. Smith discussed the complaints with Mr. Fox, and there were no further complaints from parents. Only one student complained to Mr. Smith about Mr. Fox after Mr. Smith's conversation with Mr. Fox. Mr. Smith turned over the information regarding the complaints of L.G. and M.M. to the principal of Jefferson Davis, and the principal contacted the Personnel Department and referred the matter for investigation. The investigation of Mr. Fox was assigned to Mr. Johnson on January 17, 2001. Mr. Johnson interviewed S.M., the alleged "student victim," on February 1, 2001; he interviewed B.W. and two other students in Mr. Fox's class on March 13, 2001; and he interviewed a seventh grade student on April 10, 2001, who had been in Mr. Fox's class the previous year. Mr. Johnson also interviewed S.M.'s aunt on March 20, 2001, and S.M.'s mother, M.M., on April 10, 2001.20 Mr. Johnson made notes during these interviews and later compiled the notes into summaries of the interviews that were included in his investigation report. He compiled some other documents in this investigation report, including S.M.'s extensive disciplinary history, the written reprimand issued to Mr. Fox on March 28, 2000, and Mr. Fox's evaluations for the 1998-1999 and 1999-2000 school years.21 Mr. Johnson presented the investigation report to a case management committee, which determined that there was probable cause to discipline Mr. Fox and that the appropriate penalty would be a five-day suspension without pay, which would be progressive discipline because of the written reprimand of March 28, 2000. Summary. The School Board presented no evidence that establishes that Mr. Fox used inappropriate language or made inappropriate comments to students or parents on December 19 or 20, 2000. But even going beyond the limited time frame alleged in the Administrative Complaint, the evidence is simply not qualitatively or quantitatively sufficient to establish clearly and convincingly that Mr. Fox made inappropriate comments and used inappropriate language in the classroom or to parents. And, even had the evidence supported a finding that Mr. Fox had made inappropriate comments or used inappropriate language on December 19 and 20, 2000, or even during the 2000-2001 school year, such behavior does not involve conviction for an act of moral turpitude, the only specific violation with which Mr. Fox is charged. The only direct evidence of Mr. Fox's behavior in the classroom was the testimony of B.W.. The remaining evidence was either hearsay or hearsay within hearsay: It consisted of the testimony of L.G. with respect to B.W.'s complaints to her about Mr. Fox's comments and language in the classroom; the testimony of Mr. Rochon and Mr. Smith with respect to complaints of primarily unspecified comments and language attributed to Mr. Fox conveyed to them by students and parents, who reported only what their children had told them about Mr. Fox's comments and language in the classroom; and the summaries of the interviews Mr. Johnson conducted with a few students and the aunt and mother of one student. Given all the facts and circumstances in this case, including B.W.'s demeanor as a witness and the use of leading questions to develop his testimony, B.W.'s testimony is not sufficiently credible or persuasive of itself to constitute clear and convincing evidence that Mr. Fox made inappropriate comments and used inappropriate language in his classroom. Furthermore, the hearsay evidence regarding the student complaints about Mr. Fox's language and comments in the classroom, which formed the primary body of evidence against Mr. Fox, cannot be used to enhance B.W.'s credibility and is not sufficiently persuasive, when viewed as supplementing or explaining B.W.'s testimony, to establish clearly and convincingly that Mr. Fox made inappropriate comments or used inappropriate language in the classroom.22 The only direct evidence of Mr. Fox's behavior towards parents is the rather vague testimony of L.G. that Mr. Fox was unprofessional and rude and that, one time, Mr. Fox used the word "damn" in a conversation with her; the other evidence consisted of the testimony of Mr. Rochon and Mr. Smith regarding the complaints of two parents and the summaries of interviews with a student's mother and aunt that were included in the investigation report. A description of Mr. Fox's comments as rude and unprofessional is not sufficiently specific to establish that his comments were inappropriate, and L.G.'s testimony that Mr. Fox said "damn" in one conversation with her, even if true, is not sufficient to support a finding that Mr. Fox's use of the word was inappropriate, especially given the absence in the record of any evidence that the School Board considers inappropriate the use of the word "damn" to a parent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order rescinding the five-day suspension of William Fox and ordering that his salary for these five days be paid. DONE AND ENTERED this 20th day of May, 2002, in Tallahassee, Leon County, Florida. 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 20th day of May, 2002.
Findings Of Fact On June 12, 1983, Respondent moved to Miami from Jamaica where he was in the ninth grade. He enrolled in a summer school session at North Miami Beach Senior High School in the summer of 1983, where he attended classes regularly and was successful in that program. In September 1983, Respondent enrolled at John F. Kennedy Junior High School, where he was placed in the ninth grade. Although Respondent speaks English, he was placed in a remedial English class, the lowest level English class, comprised of only approximately 20 students. On September 23, 1983, Respondent was involved in a fight with a female student in the hallway at John F. Kennedy Junior High School. After observers terminated the fight, Jimmy Dukes, an assistant principal at John F. Kennedy Junior High School, interviewed the two students involved in the fight and the witnesses to the fight. Based upon that information, Dukes suspended both students for five days. After the suspension, Dukes conferred with Respondent's father regarding the incident. On October 31, 1983, Respondent skipped his science class and left the school grounds without permission. Dukes later had a conference with Respondent about this behavior and assigned him to a three-day indoor suspension. On November 3, 1983, while Respondent was serving his three-day indoor suspension, he was reported to Dukes as having become disruptive in the suspension hall. On November 5, 1983, Dukes held a conference with Respondent and a conference with Respondent's father about Respondent's behavior at that school. A warning was given to Respondent regarding any continued disruptive behavior. On December 7, 1983, Respondent was again referred to Dukes' attention for disruptive behavior; i.e., for refusing to follow a teacher's instructions and then refusing to report to the principal's office. Respondent was again counseled by Dukes and was warned regarding his behavior. Additionally, Dukes held a conference with Respondent's father that same day. On December 13, 1983, Respondent again skipped class. A conference was held by Dukes with Respondent on December 14, and Dukes telephoned Respondent's father and conferred with him. As a result, Respondent was again assigned to the indoor suspension hall. On January 22, 1984, Respondent was truant. On January 23, 1984, Dukes held another conference with Respondent, at which time Respondent presented Dukes a note, allegedly from Respondent's father, excusing Respondent from school. Due to the spelling errors contained within that note, Dukes telephoned Respondent's father, who verified that he had not written the note. Respondent then left the school grounds and could not be found. He was later assigned again to the indoor suspension hall, and another conference with his father was held. On February 8, 1984, Respondent again skipped school. Dukes had previously advised him that skipping school again would be considered insubordination and would result in an outdoor suspension. Accordingly, Respondent was given an outdoor suspension of ten days. On February 15, 1984, Petitioner notified Respondent's father that Respondent was being reassigned to the Miami Douglas MacArthur Senior High School-North alternative education program effective immediately. On May 10, 1984, the day before the formal hearing in this cause and during a time when Respondent was assigned to the alternative program at MacArthur, Respondent was found trespassing on the school grounds of John F. Kennedy Junior High School. During the time that Respondent was assigned to John F. Kennedy Junior High School, he failed all of his classes. When Respondent first came to the attention of Dukes, Dukes conferred with Respondent's teachers and was advised that Respondent had no learning disability and was capable of performing academically. Dukes had subsequent conferences with Respondent's teachers as Respondent's behavior pattern continued and received the same information. Additionally, throughout the conferences held by Dukes with Respondent's father, Dukes asked if Respondent had any special problems or needs which required attention. Respondent's father answered in the negative. Since Respondent's attendance record and academic record had not improved at MacArthur by the time of the formal hearing in this cause, his attorney had arranged for testing by a school psychologist. However, none of that testing had been done by the time of the formal hearing in this cause.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered approving the assignment of Respondent to the opportunity school program at Miami Douglas MacArthur Senior High School-North. DONE and RECOMMENDED this 22nd day of June, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 9184. COPIES FURNISHED: Mark A. Valentine, Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Daniella Levine, Esquire Legal Services 149 West Plaza, Suite 210 7900 North West 27th Avenue Miami, Florida 33147 Mr. Rexford Foster 1371 North East 157th Street North Miami Beach, Florida 33162 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 North East Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools 1410 North East Second Avenue Miami, Florida 33132
The Issue Respondent's alleged immorality and misconduct in office on March 29, April 5, 6, 8 & 13, 1976, under Section 231.36(6), Florida Statutes, as set forth in letter to Respondent from James E. Maurer, dated June 18, 1976.
Findings Of Fact During the academic year 1975-1976, Respondent was a classroom instructor in science at the Coconut Creek High School, Broward County, Florida. In the fall of 1975, Marcia Vulpis, a 14 year-old student at the school, was assigned to his class. He noticed during the ensuing months that she stared at him frequently which made him somewhat uncomfortable. About December, he spoke to Pamela Quianthy, Attendance Clerk at the school, about Marcia's behavior. Quianthy, who had observed Marcia on several occasions because of her presence in the office as a student aide, agreed that she was a rather strange girl and that she, Quianthy, also felt uncomfortable in her presence. In March, 1976, Marcia came into another class that Respondent was teaching and somewhat hysterically told him that she needed to see him right away. Respondent sensed the urgency in her request and was pleased that she had sought him out since she had seemed somewhat hostile during prior months. They thereafter had a long discussion at his office during which she informed him that a young man who lived next door to her had raped her and that she was bleeding inside. At this time, she also expressed past and present suicidal ideations and thoughts of murdering certain persons. She said that she had not told her mother or the police about the rape and did not wish to do so. He urged her to see a physician about her condition and determined that she was willing to have her 21 year-old aunt take her for such purpose. Respondent asked Quianthy to talk to her concerning the matter and she did so. During this conversation, Marcia told her that she had been raped and had not told anyone about it. Quianthy recommended that she inform her parents and also advised her to see a doctor. The next day the aunt came to the school to take Marcia to a doctor and Respondent sent them to the school dean for necessary permission to leave the grounds. (Testimony of Respondent, Quianthy) During the third week of March, 1976, Marcia, who sat at a desk directly in front of Respondent in his classroom, began writing notes to him during class in which she expressed love for him. On one occasion, after class, she told him that she wanted to go to bed with him. He reprimanded her for her statement. She pursued her request by subsequent notes and he penned some responses thereon advising her to come to his office to talk about it or to call him at home. He was concerned for her welfare and wished to help her. He did not refer her to the school counselor because she refused to talk to anyone else about her problems and he felt capable of providing necessary counseling because of his past experience as a Baptist minister and handling work experience programs in the school system. He made arrangements with Quianthy for her to phone him at his office during Marcia's visits in order that he would have an excuse to leave if necessary because he feared what the student might do on these occasions and wanted some means of leaving gracefully. The meetings in his office were held usually before afternoon classes commenced, and were at the request of Marcia. At one of these meetings, she told him that he was "driving her crazy" and attempted to kiss him. He pushed her away and cautioned her against such demonstrations. On another occasion, she remained after class and kissed him on the cheek, telling him that she loved him. He also admonished her at that time for her conduct. The above-mentioned incidents were the only times when there was physical contact between Respondent and the student. (Testimony of Respondent, Quianthy Petitioner's Exhibits 3-8) Respondent showed Marcia's notes to his wife and they discussed them a number of times. He also showed the notes to Quianthy and Regina Howard, a friend. Mrs. Howard had previously sought out Respohdent to assist her daughter with adolescence problems because she knew of his background as a minister and youth counselor. He discussed Marcia's situation with her and was serious about his concern for the girl. He requested that Howard get in touch with Marcia. She tried to do so several times, but was unable to contact her. (Testimony of Respondent, Ruth Barnett, Howard) During the school Easter vacation in April of 1976, Marcia called Respondent's home and his wife answered the telephone. Marcia asked to speak to "Ronnie" and during a subsequent conversation with Mrs. Barnett, learned that Respondent had shown her notes to his wife. Marcia was quite upset at learning this fact and said, "I'll show him." She also acknowledged to Mrs. Barnett that she had kissed the Respondent in his office and that she would assume the blame for that incident. Respondent attempted to speak with her at this time but she was too upset. The next day her aunt called him and said that Marcia had told her of certain sexual advances that had been made by Respondent. He informed her that this was not true and asked her to have Marcia call him. She did so and they agreed to meet at Fort Lauderdale Beach because she was staying with her father there. They subsequently met at a prearranged place where Respondent picked her up in his car and, after driving around a few minutes looking for a parking space, parked in a vacant motel parking lot. Respondent explained to her that he had retained her notes against her wishes and shown them to others because he did not feel confident to counsel her concerning female problems. There was no physical contact during this meeting. (Testimony of Respondent, Mrs. Barnett) After Easter vacation was concluded, Marcia informed Respondent that her mother had found her diary and that he would have to be careful or she (Marcia) would "put a noose over his head." Her mother, after discovering the "diary" (consisting of several sheets of notebook paper) that contained matters concerning Respondent, took Marcia to their church, Jehovah's Witnesses, where she told the elders of the church about her association with Respondent. Her father, who was divorced from Marcia's mother, was present and heard Marcia relate her alleged experiences with Respondent. He thereafter reported the matter to the authorities at Coconut Creek High School, taking with him one or two pages of Marcia's diary which contained entries for the last week of March. These included references to several of her visits to Respondent's office during which he had purportedly kissed her and fondled her breasts. (Testimony of Respondent, John Vulpis, Petitioner's Exhibit 11) A school investigation ensued during which Marcia initially declined to cooperate, but eventually made a written statement in which she,stated generally that she trusted and respected Respondent, that he was a good man and she did not wish anything to happen to him. Respondent was questioned by school security personnel and he related the two incidents when Marcia had kissed him on one occasion and had attempted to do so on the other. He also told them about the incident at the beach which had not been known to the investigators at the time, and he turned over Marcia's notes to them. Later, Marcia made another written statement in which she said that she and the Respondent had kissed each other three different times in his office and that on at least two occasions, he had put his hands on her breasts inside her blouse and kissed her breasts. Her statement also related that they had kissed one another during the beach incident and that he had kissed her breasts and had put his hands down her pants and that she had touched his "privates." In this statement she also said that he had made certain suggestive statements to her during classes earlier in the school year and that, although she had informed him of a sex experience with a "guy I loved," she had not told him she was raped. (Testimony of Respondent, Stearns, Patterson, Petitioner's Exhibits 9 & 10) Marcia Vulpis testified at the hearing and her version of the relationship with Respondent and their meetings differs in material respects from that of Respondent which is set forth in the foregoing Findings of Fact. She testified that Respondent made several suggestive remarks to her during the school year. She admitted seeking him out to discuss the incident with the boy next door and that he had advised her to see a doctor. She stated that, although she had disliked Respondent at first, she later changed her views and began writing notes to him. She admitted asking him to go to bed with her, but testified that while discussing this request in his office on March 29, 1976, Respondent pulled her in the corner and kissed her. She also testified that during other visits to his office on April 5, 6 & 8, they kissed one another, and Respondent kissed her breasts and touched her on the vagina, and that she touched him on the penis through his trousers. She stated that similar acts occurred during their meeting on the beach in mid-April. After her mother discovered the diary and her father had reported the relationship with Respondent to school authorities, she asked the Respondent what they were going to do and he replied that they were in a lot of trouble. Although conceding that she was upset after discovering that Respondent had showed her notes to his wife and others, she said that she did not tell anyone she would seek revenge for his disclosure. She also conceded that she had taken LSD and "pills" from nine to eleven years of age and had had a few "trips". She testified that she attempted to kill herself when she was ten years old with a needle when she was "freaked out." She further stated that she had thought about suicide a lot of times and that the last time she harbored these thoughts was in early March and that they were prompted by her failure to get along with her mother. Although she had loved Respondent, she decided after the investigation that she loved him no more. (Testimony of Marcia Vulpis) School policy at Coconut Creek High School which is announced to all teachers at the beginning of each school year, is that an upset or disturbed child should be referred by an instructor to the school guidance staff, that included a full-time psychologist. This policy was also contained in a handbook issued to instructional personnel. (Testimony of Weatherred, Roesch, Larson) Respondent is 45 years old and posseses a bachelor of arts degree in theology and linguistics and a masters degree in elementary education. He additionally has completed approximately 90 hours of post-graduate study. He served as a Baptist minister for five years in Lowell, Massachusetts and three years in another pastorate in Newton, New Hampshire. His prior experience includes service as an elementary school principal at Turner Falls, Massachusetts. He entered the teaching profession because of family obligations that required greater remuneration than received in the ministry. He has four children. He entered the Broward County school system in 1970 working with low- achievers at the Pines Middle School in a work experience program for two years. He served one year at Plantation doing the same type of work and in 1974 was transferred to the Coconut Creek High School where he set up a work experience program. He has done extensive work in counseling young people with their problems both as a minister and teacher. Respondent admitted that he had had marital conflicts with his wife in the past and that he had lived alone in Florida for a period of time, but that their marriage relationship was good at the present time. (Testimony of Respondent, Respondent's Exhibits 2, 3) Although denied by Respondent on cross-examination, evidence was received that he had patted two female office employees of the Coconut Creek High School on their posteriors in a "friendly" manner while walking by them in the office, and that he had also ran his finger down the back of their dresses. (Testimony of Ivell, Herter) Respondent was suspended without pay by Petitioner on June 18, 1976 pending final action on the charges involving Marcia Vulpis. (Exhibit l)
Recommendation That the School Board of Broward County, Florida reinstate Ronald R. Barnett as an instructor and restore all back pay and other benefits that have been withheld during the period of his suspension. DONE and ENTERED this 13th day of August, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1976.
Findings Of Fact At all times relevant hereto James E. Wilkins, Jr. was a continuing contract teacher employed by the Pinellas County School Board. He has been employed in the field of education since 1950 and has been employed by the Pinellas County School Board since 1964. During the school year 1983-84 Wilkins was employed as a guidance counselor at Tarpon Springs Middle School. During the school year 1984-85 Wilkins was employed as a biology teacher at Tarpon Springs High School. While serving as counselor at Tarpon Springs Middle School several girls in the sixth grade came to Wilkins for assistance in deterring one of their classmates from pilfering makeup and shoes from their lockers. They had previously gone to another counselor for help in the matter but she had declined to intervene. They were sitting in Wilkins' office with the suspected culprit. After listening to part of the girl's complaints and in order to assure accuracy in recreating the proceedings, if necessary, Wilkins took out his tape recorder, placed it on his desk, asked the girls if they objected to having the conversation taped and after receiving no objection turned on the tape recorder. Wilkins testified that he asked the girls as a group if they objected to their statements being recorded and no one objected. One of the students present confirmed that Wilkins, during the course of their discussion, took his tape recorder out of his desk and asked them if they had any objection to having their comments taped. All said no. Later the suspected culprit went to another counselor and complained that she was afraid she was going to get beat up and that Wilkins had tape recorded the meeting without her permission. During the investigation which followed Wilkins acknowledged that he had in fact tape recorded the session after asking them if anyone objected. He did not poll the students to ask each one individually if she objected to the tape recorder. All were aware the conversation was being taped. Harry Danielson, Supervisor of guidance, Pinellas County School System, also questioned Respondent regarding the taping incident. Danielson's testimony that Respondent admitted to him that he taped the girls without their permission was explained by Respondent as a misunderstanding on his part as he thought Danielson asked if he had obtained written permission to tape the conversation. Danielson testified that the code of ethics of the counseling profession proscribes taping students without their knowledge or permission and that counselors are usually advised to get permission in writing before taping students. Danielson also opined that a counselor should not become involved in investigating a theft. This incident constitutes a part of the letter of reprimand issued by the superintendent on November 20, 1984. While at Tarpon Springs Middle School, Wilkins hung on the wall of his office a Ph.D. diploma from Loyola University of Paris, France. Earlier Wilkins had heard that he could perhaps obtain such a degree and did not see this university listed as a diploma mill and as not accredited. He forwarded to Loyola University transcripts of all courses he had taken including more than sixty hours of courses he had completed subsequent to completing his master's degree. These curricula were "evaluated" by Loyola University and Wilkins was issued a Ph.D. degree. He presented the information to the school board clerk handling post graduate records for Pinellas County teachers and requested the information be sent to the Department of Education in Tallahassee for evaluation. The Department advised that Loyola was not recognized as an accredited school and the degree would not be recognized by the Department. Respondent took no further action but to ask the clerk if the transcripts submitted to Loyola should be removed from his personnel file. She told him that would not he necessary. Subsequently the principal at Tarpon Springs Middle School saw the diploma on Mr. Wilkins' office, checked some information that he had that described Loyola University of Paris as a diploma mill and reported the "spurious" diploma to Nancy Zambito, Director of Personnel Services, Pinellas County School Board. Ms. Zambito questioned Respondent about the degree. He readily acknowledged that he had not taken any courses at Loyola and the degree was issued based on transcripts he had sent to Loyola for evaluation. Ms. Zambito on May 31, 1984, issued Wilkins a letter of reprimand (Exhibit 1) for unethical behavior and poor judgment. This incident also constituted a ground for the reprimand issued to Respondent by the Pinellas County Superintendent of Schools on November 20, 1984 (Exhibit 4), and as one of the charges in the suspension letter dated June 25, 1985. James Gregory, principal at Tarpon Springs Middle School 1983-84, gave Respondent a less than satisfactory evaluation in two areas as a result of the taping of the meeting with the students and for obtaining the diploma from Loyola University. At the close of this school year Gregory recommended that Respondent be removed from a counseling position and returned to the classroom as a teacher. As a result of this recommendation Respondent was transferred to Tarpon Springs High School as a biology teacher for the 1984-85 school year. Gregory opined that investigating theft is not part of the duties of a counselor but belongs solely in the realm of the administrative assistants. (TR. p. 19 Vol. I) During school year 1984-85 Leroy Birch was sitting next to the projector in Respondent's class when slides were being shown. Someone had smeared one of the slides and Birch and others were laughing. Birch was not sitting fully in his seat. Respondent thought Birch had smeared the slides and put his hand on Birch's shoulder to push him back down in his seat. Birch told Respondent to "take his god damn hand off my shoulder." Respondent, when questioned by administrative personnel about this incident, acknowledged that he had placed his hand on Birch's shoulder near a "pressure point" but that he did not squeeze the pressure point. Birch testified to no numbness or pain resulting from a squeezing of the pressure point. Birch further testified that Respondent had disciplined him and that he hated Wilkins when he was disciplined. Birch was one of many who testified Respondent used "damn" and "hell" in class more than other teachers. Ann Marie Levy was a student in Respondent's class in 1984-85 school year. She was copying notes from the overhead as she was supposed to be doing when Respondent slapped her on the shoulder to get her attention when he thought she was writing a note to a classmate. Ann Marie was more surprised than hurt by this incident which was observed by others in the class. Respondent has no recollection of striking Ann Marie but, if he did, it was accidental when he was trying to get her attention and not as a punishment nor intended as a punishment. This incident was the other striking episode referred to in Exhibit Ann Marie also testified that she never liked Respondent and that he expected a lot from his students. Ronald Cohalla was in Respondent's class last year (1984-85) and testified that while he was talking to another student Respondent told him if he didn't be quiet he would "deck him". Ron also testified that Respondent threw an eraser at him twice and that Respondent used curse words more than other teachers. During both of these eraser "throws" Ron was sitting at his desk in the front row some four or five feet from Respondent and talking to another student. On neither throw did the eraser get beyond Respondent's desk. Respondent denies ever telling Cohalla he would deck him if he didn't be quiet. Respondent is 6'1" tall and weighs 350 pounds. He was once a wrestling coach and is obviously well coordinated for a man his size. Had he attempted to throw an eraser at Cohalla, it is quite certain he could have hit Cohalla from a distance of four feet. The same credence, none, is given to Cohalla's testimony that Respondent threatened to deck him as is given to the testimony that Respondent threw an eraser at Cohalla. Several witnesses testified that Respondent had called them stupid. On cross examination these students testified that in response to a question Respondent frequently said "that's a stupid question." Respondent denies ever calling a student stupid. Many of the witnesses called by Petitioner testified that Respondent used "damn" and "hell" more than other teachers in class, that he was short in patience and frequently raised his voice in class. Many considered him a strict and demanding teacher. Respondent acknowledged that he often raised his voice to quiet down an unruly or a noisy class but did not consider this to be different than other teacher's reactions to noisy classes. Amy Levinson, who thinks Respondent is not a good teacher acknowledged that when Respondent raised his voice in class it was because the class was unruly. Use of the words "hell" and "jackass" by Respondent in class was one of the charges in Exhibit 4. No evidence was presented that Respondent used the word "jackass" in class. During the 1984-85 school year while Respondent was teaching biology at Tarpon Springs High School, Kirsten Kissinger testified she was embarrassed by Respondent once when she had stomach cramps. She asked Respondent if she could go to the bathroom then changed her mind and asked if she could go to the clinic. Respondent asked her why and she told him she had cramps. Respondent asked her to repeat her reason which she did. Kristen felt embarrassed by having to repeat her reason and thought other students were laughing at her. Another student in the class with Kristen, Stephanie Salsgiven, has no recollection of the incident in which Kristen states she was embarrassed. Respondent has been teaching middle grade and high school girls in Pinellas County Schools for more than twenty years. His testimony that anytime a girl tells him she has cramps she automatically gets permission to leave the class is more creditable than is testimony that Respondent would intentionally embarrass a female student. During a biology class at Tarpon Springs High School a discussion about mammary glands was held and one girl asked what Respondent had said. Two witnesses testified they overheard Respondent reply to this question "mammary glands -- I hope you develop some soon." The student to whom this comment was allegedly made did not appear as a witness and Respondent denies ever making such a statement to one of his students. One of these accusing witnesses also testified that Respondent had responded to a black male in the class and in a remark to him Respondent referred to the black's flat nose. John Thompson, the person referred to, testified that no such incident occurred. Once during one of Respondent's classes one student, apparently trying to be facetious, asked Respondent what obese meant. Respondent patted his stomach and replied that is what I am as are a few others in the class. Cynthia Shindler testified that Respondent specifically named her and John Thompson as obese people -- much to her embarrassment. John Thompson testified Respondent did not refer to him by name as obese. Respondent denies referring to anyone other than himself as being obese. No evidence was submitted that Respondent ever sent students on errands with unopen notes about other students or that the taping incident involved another teacher as alleged in the dismissal letter. On one occasion while passing down the corridor at Tarpon Springs High School, as Respondent passed an area known as "Greek corner" he heard someone call out in a loud voice "fat ass." Respondent did not stop. When Respondent returned a few minutes later he stopped near Greek corner to talk to a student in one of his classes. He again heard someone call out "fat ass" and, from the tone of the voice suspected Philip Stavrakis who was in the group. When Respondent called Phillip aside to admonish him Philip became very abusive and disrespectful. Respondent took Philip to the office for discipline. When he arrived he was unable to find anyone in the Dean's office to take Philip. Respondent told Philip to sit down while he looked for a dean. Philip sat on a table instead of the chair indicated and continued his harangue with Respondent. Unfortunately Respondent had also become very angry at the disrespect and abuse he was receiving from Philip and also raised his voice trying to get Philip to do as he was told. Dr. Van Fleet heard the commotion outside and emerged from behind the closed door of her office to see Respondent and Philip facing each other near the table and yelling loudly. She moved between them and told Respondent she would take over and Respondent departed. Philip contended he was not the one who had called Respondent "fat ass" and resented being so accused. Philip Stavrakis told Respondent he would get Respondent in trouble.
The Issue The issues in this case are whether Respondent committed the offenses charged in the Amended Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is responsible for investigating and prosecuting complaints against individuals who hold a Florida educator’s certificate and who are alleged to have violated one or more provisions in section 1012.795 and implementing rules. Respondent holds Florida educator’s certificate 777352, covering the area of social science, which is valid through June 30, 2020. Prior to becoming a teacher, Respondent was in the military for 21 years, serving as a soldier and non-commissioned officer in the U.S. Army. Respondent describes himself as a “great leader,” a skill he believes he developed in the Army. Respondent was employed as a teacher for the Lee County School District (School District) beginning in 1998 or 1999.6/ He taught social science classes at Bonita Springs Middle School until 2009. A former student who attended that school between 2002 and 2004 spoke highly of Respondent as her teacher. That student has not been in a classroom with Respondent since 2004. Beginning in early 2005, Respondent’s record as a teacher at Bonita Springs Middle School became spotted with disciplinary measures being regularly taken against him. The matters for which Respondent was disciplined were similar, evidencing a pattern of inappropriate physical contact with students, angry outbursts, conflicts with principals, and inappropriate classroom conduct, including ridiculing, embarrassing, and yelling at students. In February 2005, at the request of the Bonita Springs Middle School principal, Respondent attended an in-service training on Anger Management and De-Escalation Training. Despite that training, between 2005 and 2009, Respondent received six letters of reprimand from three different principals and two different directors of the School District’s Department of Professional Standards and Equity (DPSE). The letters of reprimand were for incidents described as: pushing a student (letter of reprimand, March 2, 2005); inappropriate physical contact--putting his hands in the pants of a female student (letter of reprimand, September 27, 2005); shoving two students out of the classroom (letter of reprimand, March 2, 2006); shouting at students in the hallway in a very harsh and loud tone (letter of reprimand, September 22, 2006); exposing students to unnecessary embarrassment or disparagement (letter of reprimand, August 6, 2009); and kicking three students out of class, and yelling at the remaining students in the classroom, “You all are a bunch of idiots” (letter of reprimand, October 26, 2009). On December 8, 2009, Respondent was involved in another incident with a student, E.C., who was a seventh-grade female. Respondent had sent E.C. to a neighboring classroom, connected to his classroom by a vacant office. When E.C. tried to return to Respondent’s classroom through the vacant office to retrieve her things, Respondent stopped her and told her to return to the other classroom. E.C. was determined to get her things and disobeyed Respondent. When she tried to go around him to go back into his classroom, Respondent put his hand on her shoulder in an attempt to stop her. E.C. told him: “Don’t touch me.” She retrieved her things from Respondent’s classroom and then returned to the other classroom where Respondent had sent her. At that point, Respondent called the office for assistance. The District’s DPSE immediately began an investigation. Respondent was suspended from teaching with pay and benefits as of December 9, 2009, pending completion of the investigation. Following the investigation and a predetermination conference, the School District’s superintendent filed a Petition for Termination, alleging that Respondent was guilty of misconduct and other violations in connection with the incident on December 8, 2009. Respondent, represented by counsel, requested an administrative hearing to contest the proposed termination. Beginning March 9, 2010, the terms of Respondent’s suspension were changed to without pay pending resolution of the administrative proceeding. A DOAH evidentiary hearing was held on July 14, 2010. The resulting Recommended Order found Respondent guilty of misconduct and some of the other charged violations. The recommended penalty was suspension without pay from March 9, 2010, through January 1, 2011. The Recommended Order’s findings of facts, conclusions of law, and recommended penalty were adopted in a Lee County School Board Final Order rendered November 2, 2010. Lee County School Board v. Joseph Cofield, Case No. 10-1654 (Fla. DOAH Sept. 24, 2010; Lee Cnty. Sch. Bd. Nov. 2, 2010) (2010 Suspension Order). Detailed findings of fact were made in the 2010 Suspension Order regarding the history of disciplinary action taken against Respondent from 2005 through 2009, which went uncontested by Respondent through the grievance process available to dispute disciplinary action. See 2010 Suspension Order, RO at 3-7. The findings also describe the repeated warnings given to Respondent in the numerous letters of reprimand, which went unheeded; Respondent continued to engage in the same types of inappropriate behavior, despite the discipline and the warnings. Findings were also made in the 2010 Suspension Order regarding Respondent’s positive contributions as a teacher during the same time span as his patterned inappropriate behavior. These included: being honored in 2005 as Wal-Mart Teacher of the Year; being honored by Florida Gulf Coast University as College Reachout Program Coordinator of the Year; participating in a conference in January 2009 to discuss the Troops to Teachers Program; coordinating a computer give-away program in conjunction with a community organization that presented computers to Bonita Spring Middle School; and achieving success in Cadet and College Reachout Programs. See 2010 Suspension Order, RO at 11-12. The 2010 Suspension Order concluded as follows: The School Board did establish that Mr. Cofield placed his hand on a student’s shoulder without the permission of the student. Mr. Cofield has been warned and disciplined in the past for placing his hands on students without the student’s permission. Mr. Cofield chose not to heed those warnings. Mr. Cofield argues that placing his hand on E.C. was reasonable force needed to control his classroom. This argument is without merit. Mr. Cofield did not need to put his hand on E.C.; he could call the office for assistance. The School Board has established that Mr. Cofield’s conduct constitutes misconduct[.] * * * Mr. Cofield has performed outstanding work with the various programs designed to assist students, such as the computer give-away program, the Cadet program, and the College Reachout Program. This work mitigates against termination. However, placing a hand on a student without justification warrants a serious disciplinary action. 2010 Suspension Order, RO at 14-15. Respondent did not appeal the 2010 Suspension Order. Its findings, officially recognized herein, establish the backdrop of Respondent’s significant track record of discipline, and of the repeated warnings given in connection with disciplinary measures, from 2005 through 2009. No contrary evidence was offered. In October 2010, just before the School Board rendered the 2010 Suspension Order, Petitioner issued an Administrative Complaint against Respondent (2010 Complaint), seeking to take disciplinary action against Respondent’s educator’s certificate. The 2010 Complaint set forth Respondent’s “history of discipline related to conduct with students,” listing in summary fashion much of the same disciplinary history detailed in the 2010 Suspension Order. Respondent’s disciplinary history set forth in the 2010 Complaint was as follows: On or about March 2, 2005, Respondent received a Letter of Reprimand from [the] principal related to pushing [a] student. On or about September 27, 2005, Respondent received a Letter of Reprimand from [the] principal resulting from allegations that Respondent put [his] hand into [a] student’s front pocket. On or about September 25, 2006, Respondent received a Letter of Reprimand from [the] principal for yelling at Cadets in a loud and harsh manner. On or about October 9, 2009, Respondent received a Letter of Reprimand from [the] principal for, among other things, Respondent’s confrontational behavior towards [the] principal. On or about October 28, 2009, Respondent received a Letter of Reprimand from [the] principal relating to conduct with students. On or about December 9, 2009, Respondent received a Letter of Suspension from [the] principal related to allegations of [a] physical assault on a student. 2010 Complaint at 1-2 (Pet. Exh. 1). The 2010 Complaint added allegations of other incidents of inappropriate conduct by Respondent during the 2008-2009 school year, including the following: Respondent called students embarrassing names such as “knucklehead” and “fruitcake.” Respondent looked at female students in a manner that made the students feel uncomfortable and self conscious. Respondent threatened students telling them, “I will cut your fingers off,” or “I’ll smash your head into a wall,” or words to that effect. 2010 Complaint at 2 (Pet. Exh. 1). Respondent, represented by counsel, entered into a settlement agreement to resolve the charges in the 2010 Complaint, rather than contest them in an administrative hearing. Respondent signed the agreement on April 28, 2011. Pertinent terms of the settlement agreement were: Respondent neither admits nor denies, but elects not to contest the allegations set forth in Petitioner’s Administrative Complaint, which are incorporated herein by reference. Respondent agrees to accept a letter of reprimand, a copy of which shall be placed in his certificate file with the Department of Education and a copy of which shall be placed in his personnel file with the employing school district. Respondent agrees that he shall be placed on probation for a period of two (2) employment years. . . . As conditions of probation, Respondent: * * * shall, within the first year of probation, take a 3-credit hour college level course in the area of Classroom Management. . . . shall violate no law and fully comply with all district school board regulations, school rules, and State Board of Education Rule 6B-1.006 [transferred to rule 10A-1.081 in January 2013; see endnote 2]; and shall satisfactorily perform his duties in a competent, professional manner. * * * In the event Respondent fails to comply with each condition set forth herein, he agrees that the Petitioner shall be authorized to file an Administrative Complaint based upon the violation of the terms of this Settlement Agreement. Settlement Agreement at 1-2 (Pet. Exh. 1). By Final Order rendered on August 9, 2011, attaching and incorporating the 2010 Complaint and settlement agreement, the EPC accepted the settlement agreement and ordered Respondent to comply with its terms. Respondent did not appeal. Respondent was on probation, and subject to the specific probation conditions imposed by the EPC Final Order, for the 2011-2012 and 2012-2013 school years. Meanwhile, Respondent completed the term of his suspension from teaching without pay imposed by the School Board’s 2010 Suspension Order on January 1, 2011; he was allowed to return to work on January 3, 2011. Respondent was not asked to return to teach at his former school, Bonita Springs Middle School. Instead, he was offered a teaching position at the Alternative Learning Center (ALC). The ALC principal, Ken Burns, was told to make a spot for Respondent to teach there, and he did. Respondent accepted the teaching position at ALC. He taught eighth grade social studies. ALC is an alternative school. Students are sent to ALC because they are having problems at other schools. Principal Burns describes the ALC students as kids who made bad decisions, but who are not bad kids. These students can present challenges for teachers and administrators. In classrooms, sometimes these students do not act properly. They can be disruptive. The teachers are responsible for managing their classrooms properly, in accordance with standards set by Florida law and regulations, and School District policies. Principal Burns described some of the methods used at ALC to deal with problems in the classroom. One tool in place is called Team Time Out. Specific teachers are scheduled to be in charge of Team Time Out for a period of time. If a student is getting unruly in a classroom, the teacher can send the student to the designated teacher in charge of Team Time Out. The student is allowed to cool down before returning to class. Another tool used is a regular Time-Out Room. If a student is disrupting a class, the teacher might send the student to the Time-Out Room, where the student can work on assignments. Regardless of the student problem being confronted, each teacher is expected to abide by the code of conduct established for the education profession. Rather than violate those conduct standards, if the teacher cannot otherwise handle a student problem, the teacher is expected to call administration or security for assistance. On November 30, 2012, while on his EPC-imposed probation, Respondent received a letter of warning, which is a form of disciplinary action, from the ALC principal. As described in the warning letter, a student reported that Respondent pushed the student out the door during a fire drill, and that the push nearly caused the student to fall. The incident described in the letter of warning is similar to the long list of prior incidents for which Respondent was disciplined and about which Respondent was repeatedly warned, including the incident for which Respondent had recently served a suspension without pay for nearly ten months. The November 30, 2012, letter of warning ended with a yet another reminder “to assist in correcting this conduct,” providing as follows: “From this point forward, please remember at no point should a student be physically touched. If you are having an issue with a student please notify the administration or security for immediate assistance.” Very shortly after that incident, the ALC principal received other complaints about Respondent’s behavior with students and his classroom temperament. The complaints came not just from students, but also from a paraprofessional (teacher’s aide) who was concerned about Respondent’s behavior that she had observed when she was in his classroom. The ALC principal consulted with the School District’s DPSE, collected statements from the paraprofessional and students, and passed on the information to the DPSE. By letter dated January 11, 2013, Respondent was informed that the DPSE was conducting an investigation into allegations of misconduct. Because the allegations involved issues of student safety, the notification letter informed Respondent that he was suspended from teaching with pay during the investigation. Andrew Brown, then-investigator for the DPSE, conducted the investigation of alleged incidents involving Respondent in December 2012 and January 2013, and prepared an investigative report. The complaints that were investigated were summarized in the report as follows: On or about December 20, 2012 (just before Winter Break), Mr. Cofield allegedly slammed a student’s fingers between the student’s desk and a binder the student was holding. In a separate incident [on] December 19, 2012, Mr. Cofield allegedly threatened a student by grabbing and holding a keyboard in a threatening manner. He allegedly slammed a door behind the same student as the student was leaving the room, making contact with the student’s arm. In a third incident [on] 1/8/12 [sic: 2013], Mr. Cofield allegedly embarrassed students by asking each one to sit separately on a stool at the front of the room and answer the question, “Do you have a teacher’s license?” before sending the same students out of the class. The investigative report noted that Respondent was “on probation” with the EPC “for similar allegations and conduct.” A predetermination conference was held on January 30, 2013, to allow Respondent to respond to the investigation findings and add any information he would want considered. Respondent was represented by union counsel at that conference. By letter dated February 5, 2013, Respondent was informed that the School District found probable cause for disciplinary action based on the allegations of misconduct investigated, and would be recommending termination of his employment.7/ As was done in 2009, the terms of Respondent’s suspension were changed to without pay, as of February 6, 2013. Before the School District could proceed with a Petition for Termination, Respondent submitted a letter of resignation on March 12, 2013. Respondent has disputed Petitioner’s contention that the resignation was in lieu of termination. When Respondent was deposed, he testified that he wrote his resignation letter to explain that this was a stressful situation for him. However, the letter makes no mention of a stressful situation. It simply reports that Respondent was taking the time for pursuit of higher education, to complete a master of arts degree and then seek a doctorate degree, and that Respondent had concluded: “I feel that it is time to resign in my career as a classroom teacher. I will peruse other opportunities that will be open to me as a result of obtaining my new graduate education.” Respondent testified that he did not think he had already been suspended from teaching when he resigned, and he thought he was still being paid. Contrary to Respondent’s recollection, he had not been teaching for nearly two months, having been suspended on January 14, 2013. He resigned six weeks after being confronted with the details of the DPSE’s investigation in a predetermination conference, and five weeks after he received a letter informing him that probable cause had been found and the recommendation would be made to terminate his employment. He had not been paid for five weeks when he submitted his letter of resignation. A fair inference from the timing is that he chose to resign when he did to avoid being terminated from employment and/or having to contest the charges in another administrative hearing. Pursuant to section 1012.796(1)(d), Florida Statutes, even though Respondent had resigned, the School District was required to report the alleged misconduct to the Department of Education, which then conducted its own investigation. Petitioner issued an Administrative Complaint against Respondent on March 9, 2015, and an Amended Administrative Complaint on December 3, 2015. The specific incidents alleged in both versions of the complaint, are as follows: On or about December 19, 2012, Respondent grabbed a keyboard from a computer being used by R.T., a fourteen year old, male student. Respondent held the keyboard over the head while glaring at R.T. and in a manner that made the student believe Respondent was about to hit him with the keyboard. On or about December 20, 2012, Respondent became angered when C.G., a thirteen year old, male student, tapped on his binder repeatedly. Respondent slammed C.G.’s binder with force, bringing the binder down on C.G.’s fingers causing pain to C.G. Respondent then threw C.G.’s binder in the trash. On or about January 7, 2013, Respondent called students in his class to the front of the room and individually asked them, in front of the class, if they had a license to teach. Respondent disputed the first allegation of a keyboard incident; Respondent admitted parts of the second allegation of a binder incident, while denying part of the allegation; and Respondent admitted the third allegation. No non-hearsay evidence was presented to prove the allegations regarding a computer keyboard incident on December 19, 2012. The student, R.T., did not testify; no other students or other eyewitnesses testified; and Respondent denied the allegations. R.T. provided a written statement about the incident, which is in evidence, but that statement is hearsay and cannot be used as the sole basis for a finding of fact. Petitioner did not argue that R.T.’s statement would be admissible over objection in a civil action, and the statement does not supplement or explain any non-hearsay evidence. Respondent admitted parts of the allegations regarding a binder incident on December 20, 2012. Respondent acknowledged that a student in his classroom, C.G., was tapping on, flipping, or otherwise playing with a notebook or binder when the class was supposed to be taking a test. Respondent admitted that he took the binder out of the student’s hands, and threw the binder across the room into the garbage can. As he testified: A: If there is a kid sitting in my classroom after I’ve given instructions of what to do and they still banging on a desk, yes, I have the right to go remove this noise away from these students that are trying to get ahead. If there is something wrong with that I don’t need to be in a classroom. Q: And throw this in the trash can? A: Sir, when I took -- as my statement says, I took the binder away from the child and I threw it across the classroom. If it went in the garbage can, sir, it went in the garbage can. I don’t -- I didn’t pay attention to where it went at. I stopped the negative behavior going on in my classroom. Q: So now your testimony is you took it and threw it across the classroom? A: Sir, I took the instrument away from the student and it went in the garbage can. Q: . . . [T]ell us what you told them at your predetermination conference. Didn’t you say you put it in the garbage? A: No, I put the binder in the garbage, that’s what it states. But we clearly know that that’s not . . . [t]here’s nothing false about that. What it means is the binder left the student’s desk and wound up in the garbage can. Q: It didn’t wind up there, you put it there, right? A: Yes sir, I put it there. (Tr. 131-132). In his deposition testimony, Respondent more clearly acknowledged that he intended to throw the student’s binder in the garbage can; he did not equivocate as he did at hearing: Q: Then you didn’t walk over to the trash can and, in a Frisbee-type manner, throw the binder into the trash can? A: Oh, I most definitely put it in the garbage can, sir. Q: You did? A: Yes sir, I did. Q: All right. Why did you do that? A: Because the student was disrupting – or, I mean, was interrupting a test environment. Q: Okay. A: and that – and that instrument was the thing that was causing all of that disturbment [sic]. (Pet. Exh. 11 at 39-40). The facts regarding this binder incident that were admitted by Respondent were supplemented and explained by a number of written witness statements by students who were present, including C.G. These statements confirm that Respondent got angry because of C.G.’s toying with his binder, and that Respondent snatched the binder out of C.G.’s hands, and then either went across the room and then tossed it Frisbee-style into the garbage can or tossed the binder Frisbee-style across the room where it landed in the garbage can. While Respondent may have had good reason to stop C.G. from disrupting the classroom, the manner in which he went about it was inappropriate and contrary to the repeated warnings he had been given over the prior seven years by no less than four different principals (including, most recently, the ALC principal) to avoid any physical contact with students. See 2010 Suspension Order (detailing past disciplinary warnings and identifying principals issuing them). Respondent did not admit to having smashed the binder down on C.G.’s hand before snatching it away from C.G., and there was no independent non-hearsay evidence to prove that aspect of the allegation. Nonetheless, Respondent’s admissions establish that he took C.G.’s binder away while C.G. was tapping on it, flipping the cover, or otherwise playing with it, as the means Respondent chose to stop C.G. from playing with his binder. The only reasonable inference is that Respondent forcibly removed the binder while at least one of C.G.’s hands was on, in, or under the binder--an inappropriate physical contact. Respondent’s explanation that he did this because the binder was the instrument being used to cause disruption is insufficient to justify the inappropriate physical contact that had to occur to remove the binder from C.G. while he was playing with it. Respondent’s additional acts of tossing C.G.’s binder like it was a Frisbee and throwing the binder in the garbage can were inappropriate responses that went well beyond the claimed objective of stopping the disturbance. These actions can only be explained as displays of anger, presumably because C.G. did not listen to Respondent’s instructions to stop playing with the binder. If Respondent were genuinely concerned only with stopping the disruptive behavior, he would not have reacted by causing an even greater disturbance by tossing the binder like a Frisbee into the garbage can. Instead, he would have, and should have, dealt appropriately with C.G. Moreover, it was irresponsible for Respondent to throw the binder in the garbage can, after he had wrested the binder away from C.G. The binder could have contained important schoolwork for Respondent’s class or another class. Despite being on probation for a string of similar incidents, despite having been suspended from teaching for nearly ten months for a similar incident, and despite having just received a letter of warning three weeks earlier, Respondent failed to heed the repeated warnings that if he had an issue with a student, he should contact security or administration for immediate assistance rather than inappropriately attempting to “control” the situation by making contact with the student. The evidence was clear and convincing that in this binder incident, Respondent did not act with the calm, professional demeanor expected of a teacher who is able to deal appropriately with a student disrupting the classroom by playing with a binder. Instead, Respondent acted inappropriately with a temper that made an all-too-regular appearance in the classroom. The ALC principal described Respondent as having a temper that would turn on and off like a switch. His testimony was credible and is credited. Ms. Lewis, the paraprofessional who spent time working in Respondent’s classroom during the 2012-2013 school year, observed the same thing: Respondent had a temper that greatly affected his classroom conduct. Set off by minor incidents of students talking or not listening, Respondent would get angry, yell at the students, use profanity (not the “f” word, but somewhat milder words),8/ and act in volatile ways, such as tossing text books so that they would slide on a table and stop just before they hit students. Respondent’s unpredictable outbursts caused concern for the students’ safety; sometimes when Respondent got angry, he would clench and shake his fists, trembling as if he was about to strike out. Respondent’s classroom temperament was unlike anything the paraprofessional observed from any other teacher in the other ALC classrooms where she also worked. While Respondent’s temper and classroom temperament, as described by the ALC principal and paraprofessional, were not set forth as the subjects of separate charges in the Amended Administrative Complaint, they tend to support the findings above that Respondent’s admitted conduct on December 20, 2012, was inappropriate, just as they undermine Respondent’s claimed justification. Respondent’s temper and lack of control also were on display on several occasions during the course of the hearing, adding even more credence to the findings. He raised his voice and got agitated while giving his sworn statement. He also accused the undersigned of having “belittled” him, without explanation as to why he said that. (Tr. 105). Respondent also admitted the third allegation describing his classroom conduct on January 7, 2013: Q: Did you do that on January -- on or about January 7, 2013, did you bring students up to the front of the class and ask them, “Do you have a license to teach?” A: I most – yes I did, sir. Q: All right. Good. So that, you admit? A: I clearly admit that, yes. Q: All right, good. A: And I –- and I will challenge anybody that -- that's in my classroom that’s trying to disrupt the class that don’t have a teaching license. (Pet. Exh. 11, p. 46). Respondent acknowledged to having engaged in that conduct on other occasions--indeed, as a matter of course: “I can guarantee you that I have asked all of my students over many periods of time do they have a license, because I’m the only person in that classroom with a teacher’s license.” (Pet. Exh. 11, p. 45). The paraprofessional working in Respondent’s classroom was an eyewitness to this conduct, which she described as very demeaning and embarrassing for the students. Respondent’s admissions and the paraprofessional’s eyewitness observations are corroborated by numerous written statements by students subjected to this conduct. Respondent sought to justify his conduct as legitimate teaching strategy. As he tried to explain it: It’s effective classroom management. If you have a bunch of students that do not have the ability to stop stopping their behavior, you have to ask them before you take them away from the classroom do they know what they’re doing. If the answer is yes, I know what I’m doing, then you need to send them out. If the person says no, I have no idea what I’m doing you need to work with that student until that student understands what is wrong with that behavior that you want to correct. (Tr. 129-130). Respondent’s explanation for his conduct does not square with his actual conduct. He is not being accused of asking unruly students whether they know what they are doing and then working with those students to correct their misbehavior. Instead, he is accused of demeaning these young teenaged students by isolating them one at a time at the front of the room, and requiring them to face their peers and announce that they are not licensed to teach, so that Respondent can remind them that he is superior. This has nothing to do with addressing unruly or disruptive behavior, questioning that behavior, or attempting to correct that behavior. Instead, Respondent dealt with disruptive students by belittling them, embarrassing them, and reminding them that he is better than them. As the ALC principal confirmed, there is no reasonable explanation for Respondent’s conduct as any form of legitimate teaching strategy. Instead, this is inappropriate conduct for a teacher. Respondent offered little by way of specific evidence in his defense. Instead, at times he claimed to not recall anything about his disciplinary track record, or about the incidents alleged in the Amended Administrative Complaint.9/ He repeatedly challenged Petitioner to produce video evidence of the incidents, but never proved that any video evidence existed. If there had been video evidence, it would have been in the possession of the School District, but no video is identified in the investigative report as would be expected if it existed. Respondent could have taken steps to compel the production of any such evidence by the School District, but he did not. Respondent’s other defense was to attempt to challenge the credibility of Petitioner’s witnesses. These efforts were ineffective. Respondent made general sweeping statements that he was “shocked” by the testimony of Petitioner’s witnesses, which he repeatedly characterized as filled with lies, without proof of that characterization. Other than those broad generalizations, no specifics came to light as to why the testimony of Petitioner’s witnesses should not be believed. Respondent argued in his opening statement that the ALC principal “has seemed to have an axe to grind and has been on the greatest witch hunt to railroad a great educator.” (Tr. 17). That charge was wholly unsubstantiated. Instead, the ALC principal recognized the same pattern of behavior evident since 2005 when Respondent was first required to take anger management training by a former Bonita Springs Middle School principal. Respondent proclaimed himself a great leader while offering his view that with one exception, none of the principals he worked for in Lee County were good leaders. It is worth noting that according to the 2010 Suspension Order, the “one great principal” Respondent identified (Tr. 113) was the principal who had Respondent undergo anger management training in early 2005, and who issued Respondent’s first letter of reprimand for pushing a student. To the extent Respondent attempted to blame his disciplinary history and the allegations he is now facing on his principals, rather than excusing or explaining the conduct for which he was disciplined and for which he is subject to discipline in this proceeding, the impression given is that Respondent has had difficulty accepting the subordinate role of teacher vis-à-vis principal. Indeed, Respondent admitted that he “did tell the principal the one that write down these false things against me, I could do your job just as well as you can do it. And maybe that offend some people. . . .” (Tr. 115). Respondent also attempted to discount the significance of the EPC Final Order by alluding to various medical problems he was experiencing that caused him to enter into a settlement agreement, even though he claimed the charges were not true. Respondent offered no evidence to substantiate his claims, but stated generally that he “had just got over having a kidney removed” and that he “had prostate cancer.” He also said that he had taken his wife’s money to fight the allegations, and agreed to the settlement so he could get back to work. (Tr. 111). Notwithstanding Respondent’s testimony, the EPC Final Order cannot be collaterally attacked in this proceeding. Respondent accepted the terms of that Final Order, and knew full well that he was required to comply with the probation conditions or face more discipline for violating the terms of his probation. Respondent also claimed that he was set up for failure by being assigned to ALC, which was more than one hour away from his home instead of the ten-minute commute he enjoyed when teaching at the school where he earned a lengthy suspension, after a string of six letters of reprimand. Respondent did not contest the assignment, but accepted the teaching position at ALC. Respondent’s school assignment may have been a matter he could have raised in a grievance proceeding, but it is not a matter that explains his inappropriate conduct while teaching there, especially knowing he was on probation. Finally, in a seeming admission that his temper was erratic and his behavior volatile while he was teaching at ALC, Respondent testified that he was undergoing radiation treatment for prostate cancer, and that anybody undergoing that treatment “would have such mood swings some times.” Yet in the next breath, he said: “But it never affected my effectiveness in my classroom.” (Tr. 112). In his predetermination conference in which Respondent was informed of the investigation findings and allowed to respond to the allegations of misconduct, Respondent did not mention that he had been undergoing treatment that may have affected his behavior or his classroom conduct. If this was a legitimate reason that might explain or excuse, even in part, Respondent’s conduct in December 2012 and January 2013 that was the subject of the School District’s investigation, surely Respondent would have shared information about his treatment and how it might have affected him in a conference to determine if there was probable cause to proceed to terminate his employment. Without more to substantiate the relevance of any medical conditions, treatment, or other external factors alluded to by Respondent, including specifics as to the timing of such matters, they cannot excuse or explain Respondent’s improper conduct as found above. As in the administrative hearing that resulted in the 2010 Suspension Order, Respondent offered evidence of his positive contributions as a teacher, as mitigating evidence to consider in imposing discipline. However, most of Respondent’s evidence is old, pre-dating Respondent’s suspension, and in fact, duplicating the evidence of Respondent’s contributions, honors, and achievements considered and addressed in the 2010 Suspension Order. Respondent’s contributions and achievements in 2009 and earlier years were expressly credited as mitigating against a harsher result in the 2010 Suspension Order for his misconduct committed during the same timeframe as the contributions. Having already enjoyed the mitigating benefit of his pre-2010 achievements, honors, and contributions to lessen the consequences of his pre-2010 misconduct, Respondent’s older achievements are not considered again in this proceeding in mitigation of the appropriate penalty for Respondent’s post- suspension improper conduct. Respondent presented evidence that after he returned to teaching when his suspension was completed, he continued his participation in the computer give-away program, working with a community computer club sponsoring free laptop computers for selected students who wrote an essay explaining how they would benefit from a laptop. Respondent provided one such essay submitted by an ALC student. Respondent’s continued involvement in the computer give-away program while at ALC was a positive contribution for at least one ALC student who participated. The other post-suspension evidence offered by Respondent shows that he is bettering himself by pursuing higher education, obtaining an additional degree and a certificate, as he stated he would do in his March 2013 resignation letter when he stopped teaching. These are positive contributions by Respondent, but cannot be considered contributions by Respondent as an educator to mitigate the penalty imposed for Respondent’s improper conduct as an educator. Respondent has not worked as a teacher since he submitted his resignation letter to the School District in March 2013, but he has been pursuing the higher education described in that letter. It is unclear whether Respondent would otherwise be seeking work as a classroom teacher pursuant to his educator’s certificate. Petitioner’s witness for the School District testified that he could not imagine that the School District would consider hiring Respondent back to teach there. The ALC principal echoed that sentiment. The principal would be concerned because it is his job to make sure the school is safe for all students. He would not want Respondent back in a teaching role at his school because of his track record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order: Finding Respondent guilty of violating section 1012.795(1)(j) and (1)(l), Florida Statutes, and Florida Administrative Code Rule 10A-1.081(3)(a), (3)(e), and (5)(p); Finding Respondent not guilty of violating section 1012.795(1)(g); and Revoking Respondent’s educator’s certificate no. 777352 for a period of three years. DONE AND ENTERED this 1st day of August, 2016, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 1st day of August, 2016.
The Issue This is a case in which the Petitioner seeks to suspend and terminate the Respondent's employment on the basis of allegations of misconduct set forth in a Notice of Specific Charges. The allegations of misconduct charge the Respondent with immorality, misconduct in office, incompetency, and conviction of a crime involving moral turpitude.
Findings Of Fact At all times material to this proceeding, the Respondent, Wilfredo D. Rivera-Carde, was employed by the School Board of Dade County pursuant to a professional service contract as a JROTC Instructor assigned to Miami Jackson Senior High School. During the course of his employment as a JROTC Instructor, the Respondent's students in the JROTC program included the following: T. F., S. G., I. R., E. P., and B. V. Of these, all but B. V. were females. At all times material hereto, the JROTC Instructors had their offices in a large room that was divided by large cabinets and other furniture into two offices. The back office was the Respondent's office. The back office was accessible via a passage way from the larger office occupied by the other two JROTC Instructors. The passage way was formed by tall cabinets on both sides. During the 1992-93 school year, I. R., who was at that time a female student enrolled in the JROTC program, was one of the JROTC clerks. In her capacity as clerk she was required to perform clerical duties in the Respondent's office on a frequent basis. When I. R. was performing those clerical duties, often the only other person in the back office was the Respondent. At all times material hereto, the School Board's employee conduct rule was in effect at Miami Jackson Senior High School. The rule provides that teachers must maintain a proper relationship with all of their students and prohibits inappropriate touching of students by teachers. The employee conduct rule is incorporated in the teacher handbook, a copy of which is provided to each teacher each year. Moreover, it is the practice of the Principal at Miami Jackson Senior High School to review the employee conduct rule with all teachers during orientation at the beginning of each school year and at faculty meetings throughout the year. During the course of the Petitioner's investigation of this matter, the Petitioner provided the information it had gathered to police authorities. In March of 1993 the Respondent was arrested on criminal charges filed by female students, T. F. and I. R. The criminal charges against the Respondent have since been dismissed by the Office of the State Attorney. For the reasons mentioned in the Preliminary Statement, in the Endnotes, and in the Appendix, the evidence in this case is insufficient to prove any of the allegations of misconduct set forth in the Notice of Specific Charges.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Dade County School Board issue a Final Order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of October, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1994.
