The Issue Whether Jana Marie Lantz (Respondent) committed the violations alleged in the Amended Administrative Complaint filed by Gerard Robinson, as Commissioner of Education (the Commissioner) on April 24, 2012, and, if so, the discipline that should be imposed by the Education Practices Commission (EPC) against Respondent's educator certificate.
Findings Of Fact Respondent holds Florida Educator Certificate 725822, covering the areas of Athletic Coaching, Biology, Earth-Space Science, Physical Education, and Social Science. Respondent's Certificate is valid through June 30, 2013. The Commissioner is the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida. At all times relevant to this proceeding, Respondent was employed as a Science Teacher at TJMS, which is a public school in the Miami-Dade County School District (the District). At all times relevant to this proceeding, Respondent served as a steward at TJMS for United Teachers of Dade (UTD). On January 4, 2011, a "parent conference" was scheduled for early morning with the guardian of two students enrolled in TJMS. Ms. Kushi (an assistant principal) scheduled the meeting. Eight teachers were scheduled to attend the meeting. Respondent taught one of the students and, consequently, attended the meeting. Respondent briefly met with the guardian in the hallway before the door to the meeting room was unlocked. The guardian, Respondent, and several other teachers entered the meeting room after Ms. Kushi unlocked the door to the meeting room. Ms. Kushi then left the meeting room to remind the teachers who were not present to come to the meeting. As Respondent was reviewing her student's progress with the guardian, Ms. Weiner (a teacher) interrupted and began speaking with the guardian. Ms. Kushi returned to the meeting room at that time and also interrupted by commenting on make-up work for one of the students. Respondent became very angry. Respondent commented that she had been interrupted and that the meeting was a waste of her time. Ms. Kushi directed Respondent to sit down. Respondent refused, gathered her papers, and angrily left the meeting room. What happened next is in dispute. There is no dispute that the door to the meeting room had been propped open by a chair. Respondent testified that as she was leaving the meeting room, she tripped on the chair, fell to the floor, and hurt herself. She further testified that she pulled herself up and stood the chair up in the middle of the hallway. Respondent's version of the events is contrary to the clear and convincing evidence presented by Petitioner and is, consequently, rejected. Petitioner established, by clear and convincing evidence that Respondent picked up the chair and threw it down the hallway.2 Mr. Chiles (guidance counselor) and Mr. LaCouty (assistant principal) were in the hallway walking in a direction that had their backs to Respondent when Respondent entered the hallway. Upon hearing a noise, they turned around and saw Respondent standing in the hallway and the chair sliding away from her. Mr. LaCouty asked Respondent, "What was that?" Respondent walked toward the exit and responded, "It's what you think." Mr. LaCouty stated, "Ms. Lantz, you threw a chair down the hallway." Respondent replied, "Please," and left the building. Mr. LaCouty informed Ms. Fernandez (principal) of the incident. Later that day, Ms. Fernandez and Mr. LaCouty met with Respondent to discuss the incident. Ms. Fernandez asked Respondent why she had thrown the chair down the hall. Respondent responded that it was "better than hitting her upside her head." The reference to "her" was to Ms. Kushi. During this meeting, Respondent became angry. Respondent told Ms. Fernandez that she did not want Mr. LaCouty to be present at the meeting because she "didn't trust him to throw out my trash." Respondent at one point jumped to her feet and made an aggressive move toward Mr. LaCouty. Respondent made derogatory and insulting comments directed towards Ms. Fernandez and Mr. LaCouty. Respondent likened Ms. Fernandez to "Castro," and asked if this is a "communist country." Ms. Fernandez, a Cuban-American, was insulted by Respondent's comments. Respondent's conduct on January 4, 2011, as described above, constituted misconduct that impaired her effectiveness as a school board employee. On November 2, 2011, Respondent, Ms. Martillo (assistant principal) and Ms. Fernandez met to discuss Respondent's use of e-mail for UTD business. During that meeting, Respondent became very angry and called Ms. Fernandez a "racist pig." As she exited the office, Respondent angrily yelled "I am tired of dealing with you three pigs," referring to three administrators in the office. Respondent's comments were rude, insulting, and unprofessional. On November 4, 2011, Mr. LaCouty asked Respondent to leave a Leadership Team Meeting because Respondent was not a member of the team. In response, Respondent shouted to Mr. LaCouty: "I will not rest until I have you arrested." On November 15, 2011, Respondent disrupted a meeting being led by Mr. LaCouty to name the TJMS Teacher of the Year and Rookie Teacher of the Year. Respondent called Mr. LaCouty a bully, and asserted that she was his superior (because of her position in UTD). Respondent's repeated name-calling of administrators as described above, constituted misconduct that impaired her effectiveness as a school board employee. Ms. Fernandez has reprimanded Respondent for her misconduct on at least two occasions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a final order finding Respondent guilty of the violations alleged in Counts 1, 2, 3, 5, and 6 of the Amended Administrative Complaint. It is further recommended that the final order suspend Respondent's Florida Educator's Certificate for a period of one year to be followed by a three-year period of probation, with both the suspension and the probation to be subject to terms and conditions imposed by the Commission. It is further recommended that Respondent be required to pass a fitness for duty evaluation prior to reemployment in a position that requires an educator's certificate. DONE AND ENTERED this 7th day of November, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 7th day of November, 2012.
Findings Of Fact The Petitioner herein, the School Board of Duval County, is, in relevant part, the local government agency charged with employing teachers, establishing teacher practice standards by enactment of its own rules, as well as enforcement of the practice standards contained in the Duval County Teacher Tenure Act, cited elsewhere herein. It is charged with enforcing compliance with those professional practice standards. The Respondent, at times pertinent hereto, was a public school teacher licensed by the State of Florida in the area of physical education. He was employed by the Petitioner as a tenured teacher. During the 1988/1989 school year, the Respondent was assigned to teach physical education at Southside Junior High School. The principal of that school, his supervisor, was Dr. Gugel. On March 31, 1989, the Respondent was stopped while driving his vehicle for driving without headlights. Patrol Officer Harbin, of the Office of Sheriff of Duval County, approached his vehicle and, as the Respondent exited the vehicle, he was observed by Harbin to reach back inside the vehicle to place something beneath the front seat. He subsequently appeared to have placed the same items in his jacket pocket. Officer Harbin searched the Respondent's person and found a vial containing what proved to be powdered cocaine. He then searched the inside of the vehicle and found four marijuana cigarettes. The Respondent admitted to the officer that the cocaine and marijuana belonged to him. He admitted to the officer that he had been using illegal drugs for approximately two years. The Respondent was thereupon arrested and charged with possession of cocaine and possession of less than 20 grams of cannabis. Following the arrest, when his superiors learned of it, the Respondent was removed from his classroom duties at Southside Junior High School. The arrest and the underlying factual circumstances leading to it did not occur on or about the premises of any Duval County school or other School Board employment location. They did not involve conduct by the Respondent while engaging in his employment activities as an educator in Duval County. Subsequent to the arrest, the Respondent entered a plea of nolo contendere to a felony charge of possession of cocaine; and the court withheld adjudication of guilt and imposed a sentence of eighteen (18) months probation, including the condition that the Respondent attend a substance abuse rehabilitation program and pay court costs. The substance abuse program attended by the Respondent was at the Jacksonville Rehabilitation Center. At the time he entered the Center, the Respondent did so because the court ordered him to; and, at the time, he felt he did not have a real problem with drugs. His treating therapist testified, however, and established that there is a substantial likelihood that he will remain drug-free in the future after undergoing treatment. The Respondent has agreed to undergo urinalysis for drug testing at such times and as frequently as the Petitioner desires, should he be rehired. Prior to his apprehension by Officer Harbin, the Respondent had been using cocaine and marijuana approximately once every two weeks for the past two years. While he was employed as a physical education teacher with the Petitioner during that two-year period, he had used illegal drugs and admitted that other employees of the School Board had observed him illegally using cocaine and marijuana. Dr. Gugel has been the principal at Southside Junior High School for the past six years. He was principal during the 1988/1989 school year when the Respondent was arrested. Shortly after the Respondent's arrest, Dr. Gugel received information from the personnel department of the School Board of Duval County to the effect that the Respondent had been arrested for possession of illegal drugs. After his arrest, he was removed from the classroom and assigned to work at the media center. This is a non-instructional employment position. Ms. Peggy Williams has been the vice-principal at Southside Junior High School for the past six years, including the year the Respondent was arrested. Both Dr. Gugel and Ms. Williams testified that there has been an active, anti- drug campaign conducted at Southside Junior High School, including the time when the Respondent taught there. Dr. Ragans testified that the intensive anti-drug program at the school is characteristic of the anti-drug campaigns existing on a system-wide basis in Duval County schools. The primary goal of the program is to teach students not to use drugs because of the harmful effects on the students and the fact that it is against the law. The anti-drug program consists of several elements, including, but not limited to, teaching the students the negative effects of using drugs, workshops for teachers to help them identify and help students involved with drugs, as well as workshops for parents related to halting the use of illegal drugs. There is also a joint effort between the schools and the police department to stop the use of illegal drugs in the schools. The parent/teacher organizations have made a strong commitment to inform students regarding the dangers of substance abuse. Students are provided a whole unit of instruction on substance abuse, and the school regularly has guest speakers, through the physical education department itself, to discuss problems associated with substance abuse. There is a committee at the school which regularly plans activities and speakers to inform students as to the dangers associated with using illegal drugs. There are posters throughout the school advising students as to the dangers of drugs and a slogan contest to warn students about drug abuse. The intensive anti-drug campaign leads up to an anti-drug day in May of each year to advise students concerning the dangers of drug abuse. When students are found to have abused illegal substances at school, they are disciplined. Students found possessing drugs at school are not permitted to continue attending that school. The anti- drug campaigns in the schools within Duval County are an important aspect of the professional and educational lives of students and staff members and an important facet of the educational program. The intense anti- drug programs in the school system require teachers to be actively involved in teaching students about the dangers of drug abuse. In order to effectively teach students not to use drugs, it is imperative that a teacher set a good example by personally refraining from the use of them. A teacher who consumes illegal drugs sends a contradictory message to students. A teacher who advocates lawfulness and the harmful effects of drugs and then breaks the laws prohibiting them obviously has a difficult time motivating impressionable students to obey those laws. Teachers serve as role models for the students within the school system, as did the Respondent. In order to effectively advocate substance abuse abstinence, role models are expected to obey anti-drug laws and to refrain from using illegal drugs. Role models who fail to obey laws become ineffective role models. This is especially true of a teacher who acts in the capacity of a physical education or team-sport coach because, as the Respondent himself admits, the position of a coach is a high- profile position in any school; and students often strive to emulate their coaches. Both students and teachers at Southside Junior High School and throughout the school system became aware of the fact that the Respondent was involved with illegal drugs and that he was removed from his teaching position because of his arrest for using illegal drugs. They became aware of this through various news stories which became publicized after the Respondent's arrest. Indeed, uncontradicted testimony established that the Respondent himself had actually discussed the matter with some of his fellow teachers. The widespread knowledge of the Respondent's altercation with law enforcement authorities, and the fact that it was due to illegal drug use, has greatly diminished his effectiveness as a role model. The Respondent has been a very effective physical education teacher and basketball coach. His high level of skill could still be an asset to the Duval County school system; however, his use of illegal drugs and his arrest and sentence for such conduct will certainly diminish his ability to motivate students and to enjoy their confidence and respect, as well as that of his fellow professional teachers and School Board employees. The enjoyment of such confidence, respect and ability as a motivator of students are important elements in the effectiveness of any teacher. That effectiveness has been substantially diminished. Dr. Ragans established that the School Board of Duval County has a policy to the effect that possession and use of illegal drugs is deemed to be immoral conduct. It has a policy of normally dismissing teachers for immoral conduct. It also has a policy for dealing with teachers who come forward voluntarily and admit to a substance abuse problem, voluntarily seeking rehabilitation. These cases are treated differently from the situation where a teacher does not voluntarily admit to a substance abuse problem prior to being apprehended and exposed. In cases where a teacher voluntarily admits such a problem prior to being apprehended and seeks to overcome that substance abuse dependency voluntarily, it is deemed by the Petitioner that a teacher, voluntarily seeking corrective treatment, displays a certain strength of character not exhibited by teachers whose wrongdoing becomes public knowledge as a result of an arrest, before rehabilitation efforts are undertaken. The School Board typically does not dismiss teachers who voluntarily seek rehabilitation. Mr. Walter White testified on the Respondent's behalf in addition to the Respondent, himself. Mr. White was an instructor with the Duval County school system until his retirement in 1985. He hired the Respondent as an employee for the "Red Cap Program" for the summer of 1989. That is a program sponsored by the Jacksonville Private Industry Council. It is not a Duval County school system program, although it is a jointly sponsored effort between the Council and the Duval County school system. This is apparently a summer program with emphasis on recreation. The Duval County school system refers students to the program and they are transported to and from that program by the Duval County school system. The Respondent was hired, subsequent to his arrest, plea and imposition of sentence, in the summer of 1989, to supervise those students, including a significant number from Southside Junior High School. During his employment in this effort that summer, the Respondent supervised students in a satisfactory manner and functioned as a good role model, showing strong managerial skills and motivational talents. He maintained a good rapport with students and was able to motivate them, according to witness White. In the time that has elapsed since the Respondent's arrest and sentence, the notoriety surrounding his arrest and use of illegal drugs has subsided. The Respondent explained that during the period of time he was using drugs, he was undergoing great financial difficulties and marital discord. This has been alleviated greatly because his wife has become employed and they have both been baptized; and, with his wife's guidance, he has redirected his life according religious principles. The Respondent appears genuinely remorseful for the conduct he engaged in which brought about this disciplinary proceeding. He believes, perhaps with some justification, that his effectiveness could be restored or enhanced by his functioning as an example to students of what can occur when one disobeys laws regarding the use of illegal substances. A companion case to the instant proceeding, Department of Education v. Reuben Bernard LeCount, DOAH Case No. 89-3969, has been resolved, after the hearing and before entry of this Recommended Order. The case was heard informally before the Education Practices Commission on March 29, 1990, by agreement of the parties. The Commission imposed a penalty of five years probation, verification of completion of a drug treatment and rehabilitation program, with quarterly reports by a supervisor to the Commission, concerning the Respondent's conduct, and random blood and urine testing at the Respondent's expense. The Respondent was allowed to retain his teaching certificate.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the School Board of Duval County terminating the Respondent as a tenured teacher. DONE AND ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1990. APPENDIX TO RECOMMENDED ORDER CASE NOS. 89-3969 AND 89-4211 Petitioner, School Board of Duval County's Proposed Findings of Fact: 1-5. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter; and the second sentence is rejected, as contrary to the preponderant weight of the evidence. 9-14. Accepted. 15-19. Accepted. 20. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 21-30. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and to some extent, constituting a conclusion of law instead of a proposed finding of fact. Accepted. Accepted. (There are no proposed findings numbered 34, 35 or 36.) Accepted. Accepted. (There are no proposed findings numbered 39 through 46.) Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact: 1-7. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as contrary to the greater weight of the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted, but not itself materially dispositive. Accepted. COPIES FURNISHED: Gail A. Stafford, Esq. Assistant Counsel 421 W. Church Street, Suite 715 Jacksonville, FL 32202 Lane Burnett, Esq. 331 East Union Street, Suite 2 Jacksonville, FL 32202 David A. Hertz, Esq. 1601 Atlantic Boulevard Jacksonville, FL 32207 Dr. Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, FL 32207 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
The Issue The issue in this case is whether a veteran teacher should be dismissed for having drawn and displayed a kitchen knife while quieting a noisy class.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. As of the final hearing, Respondent Lynn Deering ("Deering") had been a teacher for about 34 years. She holds a certificate to teach in Florida. During the 2004-05 school year, Deering was employed as a science teacher at Marjory Stoneman Douglas High School, which is a public school in Broward County. For reasons that will soon be apparent, it is pertinent to note that Deering contracted polio at a young age and as an adult has suffered from post-polio syndrome. As a result of these illnesses, Deering's upper-body is weak, the range of motion of her upper extremities is limited, and she has little grip strength in her right hand, which is dominant. Since 1985, Deering has been confined to a wheelchair.1 The incident giving rise to this case occurred on March 2, 2005. When the bell rang that day to start Deering's sixth period anatomy and physiology class, the students were excited and talkative. As was her practice, Deering raised her hand to signal that she was ready to begin teaching; this gesture usually quieted the class. This time, however, the students continued to talk, and the classroom was noisy——too noisy for Deering to be heard. So Deering, who was sitting (in her wheelchair) in front of a demonstration table located at the head of the classroom, hitched up her right shoulder, reached back behind her body, and grabbed a utensil from the top of the table. She then used the utensil to tap on a glass beaker——which was filled with water and flowers——to get the students' attention. The "utensil" in question happened to be a knife. It was a chef's knife,2 bearing the Chefmate™ brand on its blade. Measured from butt to point, the knife was approximately 10 and one-half inches long. From heel to point, the blade was roughly five and three-quarters inches in length; it was no wider than about three-quarters of an inch from edge to spine. The knife was in Deering's classroom at the time because she had been using it to slice flowers and potatoes for demonstrations in her biology class.3 Upon hearing the distinctive "tap, tap, tap" of blade on beaker, most of the students stopped talking. Some in the back of the room, however, perhaps being out of earshot, continued to converse. Two were especially oblivious. Presently, Deering wheeled over to their lab table, still holding the knife in her right hand, between her thumb and fingers. When she reached the students' table, Deering turned the knife over in her hand, so that the point was down and the edge faced away from the students (toward Deering herself). Deering leaned over the table, in front of the where the two students were sitting, raised the knife an inch or two above a couple of sheets of paper that were lying on the tabletop, and, loosening her grip, let gravity pull the knife down between her fingers.4 Driven by the knife's own weight, the point punched through the papers, leaving small slits in them, and scratched the surface of the tabletop. Now gripping the knife's handle more tightly (for had she let go the knife would have fallen), Deering said, "Hello!"——which she pronounced "Heh-LOW!"——"Do I have your attention?" She did. The students stopped talking. Some were startled or frightened; others were amused or nonplussed. None, however, reacted as one might when facing a genuine threat of harm, e.g. by screaming or fleeing. As she returned to the front of the classroom, Deering joked, "Don't mess with a postmenopausal woman . . . with a knife!" This was meant to be humorous and was not uttered in a threatening tone of voice. Following this incident, Deering taught her lesson as usual, and the class unfolded in routine fashion. Her use of the knife, in other words, produced no discernible immediate fallout. At least a few students, however, were sufficiently upset by Deering's conduct to report the matter to the administration, and they did.5 The students' report not only set in motion an internal investigation, but also prompted the administration to call the police. Somehow, as well, the incident rapidly made its way into the local news. At least one local TV station aired a brief, 35-second story on the incident, which was short on facts, long on sensationalism, and notably unbalanced, in that Deering's side was not shown. The undersigned cannot comment on the contents or accuracy of other media reports, for they are not in evidence. In due course, the Broward County Sheriff's Office commenced an investigation that brought forth a criminal charge against Deering, who found herself accused of having improperly exhibited a dangerous weapon. The crime of improper exhibition, which is a misdemeanor, is defined in Section 790.10, Florida Statutes, as follows: If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self- defense, the person so offending shall be guilty of a misdemeanor of the first degree[.] Deering ultimately pleaded no contest to the criminal charge and was sentenced by the county court to three months' probation and a $30 fine. Meantime, the School Board decided that Deering should be fired, voting at its regular meeting on August 2, 2005, to accept the superintendent's recommendation that she be suspended without pay pending termination of employment. Following her suspension, Deering accepted a teaching position at the Upper Room Christian Academy, where she was working as a science and math teacher at the time of the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Deering without pay pending dismissal and (b) awarding Deering the back salary, plus benefits, that accrued during the administrative proceedings, together with interest thereon at the statutory rate. DONE AND ENTERED this 31st day of July, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2006.
Findings Of Fact Thomas W. Bennett was employed by the Sarasota County School Board in the 1967-68 school year, and assigned Shop and Drafting at the Venice Junior High School. In 1968 he was assigned a satisfactory evaluation by his principal, Mr. Guy Rose, for this school year. Respondent continued to receive satisfactory evaluations from Mr. Rose, and acquired continuing contract status or tenure. By 1971 the principal, Mr. Rose, was becoming concerned about Respondent's behavior patterns involving both students and faculty. Specifically, he was cornered about Respondent allowing students on one occasion to ride on a flat bed trailer without guard rails, and about erratic behavior evidenced by notes to other faculty members left on light cords and other odd places which in tone and content sometimes irritated the recipients. On one occasion Mr. Rose was notified that some students were at the shopping center a few blocks from the school during school hours, and upon investigation he learned they were assigned to Respondent's class and had been sent out of the class because they did not have materials with which to work. On another occasion Mr. Rose found the shop area unlocked and Respondent not in attendance. This latter he considered a safety hazard both from the standpoint of potential injury to students due to unattended power tools, as well as a potential loss of small hand tools due to pilferage. At a meeting held on March 4, 1971 to consider Respondent's request for additional lumber for his classes, these concerns were discussed and Mr. Bennett was advised by Mr. Rose that his performance needed to improve. Exhibit 2 documenting the meeting held March 4, 1971 was admitted into evidence. In 1971 and 1972 two incidents came to light regarding Respondent striking or otherwise committing a battery on students. On one occasion he struck Douglas Letson on the back of the head with a small piece of plywood approximately 1/4" thick. While working in his shop class Letson carelessly drilled through the piece of plywood into the table. When he observed this incident Respondent said "God dammit, don't drill through my table", (or words to that effect), picked up the piece of plywood on which Letson had been drilling and hit Letson on the back of the head with sufficient force to cause contusions and a subsequent swelling. The skin was not broken. On another occasion a student with a bleeding scalp wound reported to the Assistant Principal (Mr. Guy Bennett) that Respondent Bennett had struck him. Respondent denies ever having touched this student and the evidence was insufficient to support a finding that a battery was in fact committed. In 1973, after Mr. Guy Bennett had succeeded to the position of principal at Venice Junior High School, he received a report of Respondent Bennett striking a student and had the Acting Assistant Principal investigate. Exhibit 18, the Affidavit of Brett Gordon Derby attesting to being battered by Respondent, was admitted into evidence. Shortly after Guy Bennett succeeded to the position of principal he prepared a Performance Agreement, Exhibit 13, for Respondent Bennett. Therein he listed those areas wherein he considered Respondent's performance below acceptable levels. Following the concept of positive thinking these deficiencies were phrased as Operational Objectives. One operational objective was "Teacher will demonstrate self control - VJA goal #12 (no striking of students)". Another was "Teacher will maintain mutual respect in classroom - VJH goal #22 (no profanity directed at students)". Those schoolwide goals are contained in Exhibit 15, extraction from the FIO Manual presented at the hearing. Mr. Guy Bennett was also concerned regarding Respondent's grading practices. On one occasion after the principal suspended a student on Respondent's recommendation the parents of the suspended student appeared with their son's report card showing Respondent had marked their son "A" in merit and "E" (for excellent) in citizenship. At times Respondent assigned grades recommended by the class. Principal Bennett considered the drop-out rate in Respondent's class to be much higher than it should have been, and that many more of his disciplinary problems should have been resolved in the classroom. Once Principal Guy Bennett had Respondent apologize to two visiting parents who heard Respondent, after being advised over the high school public address system that he had a telephone call, respond over the public address system "aw shit". In February, 1975, while assigned to bus duty, Respondent saw Annette Lanning, a 13-year-old 8th grade student, enter the line getting on a bus at a point near the beginning of the line. Annette Lanning and the bus driver both testified that she had been pushed out of the line and was returning to her rightful place when Respondent told her to go to the end of the line. She went near the end of the line where her older sister told her to get in the line along side her. Upon Annette's arrival at the bus door, Respondent pushed her out of the line with his hand on her throat some 6 to 10 feet to a fence. He pushed her against the fence several times and made threatening gestures with a clenched fist. The bus driver who observed the entire episode from inside the bus, rushed off the bus to pull Respondent back from Annette. When released Annette ran toward the bus. The bus driver, Mrs. Walsh, submitted a report of the incident immediately afterwards. This report was admitted into evidence as Exhibit 12, and the witness testified that the report accurately reflected what she observed and did. As a result of this incident Annette's parents filed criminal charges against Respondent Bennett. When Principal Bennett returned to Venice the evening of February 7, 1975 he was advised of the incident, and contacted the Lannings to request that they withdrew their complaint before a warrant was issued. After Principal Bennett convinced them that he could better handle the problem at the school level, the Lannings withdrew the complaint. A copy of the complaint report was admitted into evidence as Exhibit 11. In May 1975, a local businessman, Mr. Robert Anderson, gave Respondent permission to conduct his students on a field trip through Mr. Anderson's plant. During the visit and after ascertaining that smoking was not prohibited in the plant, Respondent advised the students they could light up. Mr. Anderson was sufficiently concerned about Respondent's permitting the smoking, which was in violation of school policy, that he wrote letters complaining about the incident, and testified at the hearing. Witnesses testifying on behalf of Respondent considered Respondent to be a good teacher who appeared well liked by his students. They never saw Respondent lose his temper, hit any students, or swear in their presence. They would not condone striking a student over the head with a board, or choking a student. Respondent acknowledged that he had hit Douglas Letson with the board through which Letson had drilled into the desk below. He further admitted that he sent students to the library when they did not have materials to perform shop projects, and he did not follow up to ascertain if they went to the library as he directed. With respect to the Annette Lanning incident, Respondent acknowledged pushing her from the line with his hand against her throat, but he denied choking her or threatening her with a clenched fist. He acknowledged signing the letter dated February 10, 1975, Exhibit 16, which was prepared by Principal Bennett but he has not sought professional help respecting his temper. In Exhibit 16 Respondent acknowledged that he overreacted in this situation.
Recommendation RECOMMENDED that he be dismissed as a teacher from the Sarasota County School System. DONE and ENTERED this 8th day of December, 1975, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard W. Conney, Esq. Box 6167 Sarasota, Florida 33578 Louis Jackson, Esq. c/o Richard W. Cooney, Esq. Box 6167 Sarasota, Florida 33578 Sidney L. Matthew, Esq. 208 W. Pensacola Street Tallahassee, Florida 32301
Findings Of Fact Respondent holds teaching certificate number 230805 issued by the State of Florida, Department of Education. Respondent's teaching certificate is valid through June 30, 1996. Respondent is certified in administration, supervision, and physical education. Respondent has been employed by the Orange County School District for approximately 20 years (the "District"). Respondent was employed as a physical education teacher at Hungerford Elementary School for approximately 13 years ("Hungerford") until 1991 when he was transferred to Orlando Vocational Technical Center. Respondent is currently the Dean of Students at Orlando Vocational Technical Center. While he taught at Hungerford, Respondent was respected by his peers and by his students. Students generally enjoyed Respondent's physical education classes. Respondent holds a black belt in karate and is a weight lifter. He routinely allowed several students at a time to jump on him during physical education class and wrestle with him. Respondent was a strict teacher at Hungerford. He believed strongly in discipline. Students in his classes were generally well-behaved. Physical Force Against Students At Hungerford, Respondent frequently used physical contact to gain the attention of misbehaving male students. He typically tapped boys on top of their heads, in the sternum with an open hand or fist, or in the rear end with a track baton. Respondent never intended to embarrass or disparage any of his male students. The vast majority of students recognized that Respondent was merely attempting to gain their attention or playing around. Respondent's discipline in karate gave him more than adequate control to prevent harm to any misbehaving student when Respondent used physical contact to gain their attention. Respondent never lost that control in his classes. No student was physically injured as a result of physical contact from Respondent. Respondent's physical contact was not calculated to cause misbehaving students any pain or discomfort. Respondent was criticized by some who thought he was too severe a disciplinarian. In 1987, some students lodged complaints against Respondent for alleged physical abuse. Two legal proceedings were brought by the Department of Health and Rehabilitative Services over allegations of physical abuse. Respondent successfully defended both proceedings. Sometime in 1988 or 1989, Respondent tapped Andre Hunter in the chest with an open hand. At the time, Andre was a third grade student at Hungerford. Respondent did not hurt Andre. Andre ". . . didn't feel nothing. It didn't hurt. It just felt like he tapped me." Transcript at 24. On separate occasions in 1988 or 1989, Respondent tapped Billy Washington on the head with his fist and hit him on the behind with a track baton. Billy was in Respondent's physical education class during the second, third, and fourth grades. When Respondent tapped Billy on the head, "It was funny. It didn't hurt." Transcript at 34. When Respondent hit Billy on the behind with a track baton, "It stung a little bit, but it didn't bother me." Id. Emotionally, Billy ". . . felt all right." He ". . . didn't think about it. It didn't bother me." Transcript at 35. On separate occasions in 1988 or 1989, Respondent tapped Bobby King in the chest with Respondent's fist. At the time, Bobby was in the first or second grade. It hurt Bobby and made him mad. Bobby did not understand why Respondent struck him. On September 22, 1989, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for using unnecessary physical force against a student on March 20, 1989. The letter directed Respondent to refrain from the use of threatening behavior and physical force against students. Attendance And Inadequate Supervision During the 1988-1989 and 1989-1990 school years, Respondent sometimes failed to properly supervise students in his class. Respondent was late to class a few times. A few times, he left the school campus prior to the end of the school day without permission. Respondent failed to let other school employees know that he would not be at school. However, his attendance record neither adversely affected his teaching effectiveness nor impaired his relationship with his colleagues or students. On February 14, 1990, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for leaving the school campus without permission from the principal, not adequately supervising his students on one occasion, and for acting in a threatening or intimidating manner toward the principal when confronted about Respondent's supervision of his students. Transfer To Vo-Tech On August 21, 1990, Respondent was removed from his classroom duties at Hungerford and placed on relief of duty status with full pay and benefits. The District took the action as a result of allegations of inappropriate discipline, leaving students unsupervised, and insubordination. Respondent was subsequently transferred to Orlando Vocational and Technical School. Respondent continues to enjoy wide respect as a teacher from parents, other teachers, and community leaders. As Dean of Students, Respondent currently holds a responsible position of employment with the District. Respondent functions effectively in that position. Deferred Prosecution Agreement On October 8, 1991, Respondent and Petitioner entered into a Deferred Prosecution Agreement. On or before October 8, 1992, Respondent agreed to successfully complete college courses in Assertive Discipline, Classroom Management, and Methods of Teaching Elementary Physical Education. Respondent further agreed to provide written verification that Respondent completed the required courses. Respondent failed to complete the required courses in a timely manner. Although Respondent ultimately completed the required courses, he had not supplied Petitioner with written verification as of the date of the formal hearing. If Respondent had timely complied with the Deferred Prosecution Agreement, this proceeding would not have been instituted. Respondent believed in good faith that his transfer out of the classroom to his position as Dean of Students made the courses on classroom techniques unnecessary. Respondent was notified in 1993 that he was in violation of the Deferred Prosecution Agreement. Respondent promptly enrolled in the required classes and completed them. Respondent has now complied with all of the conditions of the Deferred Prosecution Agreement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a Final Order finding Respondent guilty of the charge that he failed to make a reasonable effort to protect students from conditions harmful to their learning and not guilty of the remaining charges in the Administrative Complaint. It is further recommended that the Commission issue a letter of reprimand to Respondent and, pursuant to Section 231.262(6)(c), impose an administrative fine not to exceed $750. RECOMMENDED this 22d day of November, 1994, in Tallahassee, Florida. DANIEL MANRY 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 22d day of November, 1994.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Pinellas county School Board, operated the primary and secondary public school system for Pinellas County, Florida. Respondent, Herbert Latimore, was employed by the Petitioner as a continuing contract teacher of physical education at Tyrone Middle School, a school operated by Petitioner. On August 25, 1993, very early in the school year, Respondent made a presentation to a group of sixth grade students in a physical education class. In prior years, Respondent had experienced a reluctance on the part of some students to take showers after physical education classes, and to forestall that problem, he indicated verbally that he did not want the boys to stand outside the showers looking at each other because, "...there were no faggots around here." He also told the students he expected compliance and that he did not want parents calling the administration about student shower misconduct because that created problems for him and would get him "pissed off." It is also alleged that in the course of his presentation he told a group of male students who were not paying attention that he spoke clearly and did not talk like a "nigger." Respondent, who is, himself, African-American, denies making that comment though, according to Mr. Valdes, the vice principal, Respondent admitted doing so to him in an interview the day after the alleged incident took place. It is found that Respondent did, in fact, use the word, "nigger" in his discussion with the students, but it can not be said, under the circumstances, that it was used in a racist or manner derogatory toward any student or group of students. One of the students in the Respondent's class to whom he made the comments complained of was Stephanie Zavadil, a young female who did not want to be in a physical education class in the first place and who was supposed to be in a music class instead. The incident took place the first day of school which was, coincidentally, the first day of middle school for the students in this particular class. After school that day, Stephanie, who was quite upset by the Respondent's use of the language alleged, told her mother what had happened and indicated she would rather go to summer school than be in Respondent's class. She also cried when recounting the story and indicated she was so afraid of Respondent, she would not appear to testify at hearing even under subpoena. Mrs. Zavadil, herself a high school teacher in the Pinellas County system, after discussing the matter with her husband, reported it to the school principal, Ms. Desmond. She also indicated she did not want her daughter in Respondent's class. There is no indication any other student or parent has indicated a similar objection, though as a result of the press' attendance at a School Board meeting at which this matter was discussed, an article appeared in the Clearwater edition of the St. Petersburg Times reporting the incident. Before she could call Respondent in to discuss the matter, Ms. Desmond was approached by him in the school cafeteria the following day. Ms. Desmond, who was on cafeteria duty at the time, told Respondent she would discuss the matter with him later, but he followed her to the side of the room, still trying to talk with her. When she finally had the quiet to talk with Respondent, she reported to him the substance of the complaint she had received from Mrs. Zavadil and told him that in her opinion his use of the words alleged was inappropriate and a demonstration of bad judgement. Respondent acknowledged he had used the words. Thereafter, the matter was reported to the office of the Superintendent of schools, where the matter was investigated by Mr. Barker who interviewed Stephanie and other students involved. He also spoke with Respondent who admitted the use of all words alleged except "nigger." Mr. Barker also reviewed Respondent's personnel file in which he found two prior disciplinary actions taken against Respondent. In 1982, Respondent was reprimanded for pushing a student, and in 1992, was again reprimanded for using poor judgement in making inappropriate statements in front of a student and the use of physical force with a student. On the basis of his investigation, Mr. Barker, utilizing the school board's unwritten progressive discipline policy, recommended that disciplinary action to include a suspension without pay for five days be imposed. His recommendation was based on his conclusion that Respondent's effectiveness as a teacher had been impaired by his use of the words alleged. Mr. Barker is of the opinion that teachers should comport themselves in a manner which causes students to look up to them. Here, Respondent's comments could affect the way students perceived him and also might frighten some students who, as a result, might not want to take classes from him. Respondent's use of the word "faggot", as alleged here, complicates the already existing problem schools have regarding the reluctance of some elementary and middle school children to dress out for physical education training. Mr. Barker's opinion regarding Respondent's effectiveness was reinforced by those of Dr. Hinesley, Ms. Desmond, and Mr. Valdes. Dr. Hinesley believes that teachers should be role models and Respondent's use of the language alleged was a violation of the Teacher Code of Conduct which could undermine public support for the educational process if left unpunished. Ms. Desmond agrees with the proposed suspension because of her belief that Respondent's language was both frightening to the students and inappropriate. Students and their families discuss what happens at the schools and if Respondent, because of his language, were to develop an unfavorable reputation within the community, it would make it difficult for him to establish credibility and would also impact the school's effectiveness in the community. Respondent does not contest his use of the terms "pissed-off" and "faggot" but claims he has heard them used many times by other teachers and had never been told by the principal or anyone else that they were bad words. He claims that had he considered the words to be inappropriate, he would not have used them. He also claims, and it is so found, that he did not call any student either a "faggot" or a "nigger", not did he claim to be "pissed-off" at any particular student. Respondent has three daughters and professes to love children, asserting he would never intentionally use bad language to hurt anyone. With regard to his alleged admissions to Ms. Desmond and Mr. Valdes, he claims neither one specifically asked him about his use of the words alleged. Mr. Barker did do so, however, and Respondent admitted to the use of "faggot" and "pissed-off." He has been a teacher for 18 years and during that time has never received a bad evaluation. He claims he has never been cautioned about his language, and the reprimand administered in 1992 relates more to the use of poor judgement in attempting to intimidate student rather than to the use of "inappropriate" language.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Herbert Latimore, be suspended from employment as a teacher with the Pinellas County School Board, without pay, for a period of five (5) days. RECOMMENDED this 15th day of April, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 15th day of April, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5748 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 13. Accepted and incorporated herein. 14. & 15. Not relevant to the issues herein. FOR THE RESPONDENT: ARGUMENT paragraphs, unnumbered, as treated in sequence. Not a Finding of Fact but a Conclusion of Law. Accepted and incorporated herein. & 4. Accepted as a correct comment on the state of the testimony. 5. & 6. Accepted as a correct comment on the state of the evidence. Accepted and incorporated herein. Not evidence but argument and statement of position. Accepted as an accurate recounting of Respondent's testimony. Accepted as an accurate comment on the evidence. Accepted as Respondent's position. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County School Board 301 4th Street, Southwest Largo, Florida 34649-2942 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 J. Howard Hinesley, Ed.D. Superintendent Pinellas County Schools 301 4th Street, Southwest Largo, Florida 34649-2942
Findings Of Fact The Respondent, Steven T. George, began teaching in the Bay County school system in the fall of 1977. He was employed as a physical education teacher and as a coach. The Respondent has had an exemplary record as an instructional employee of the Bay County School Board until he encountered personal problems during the 1988-89 school year. During the 1988-89 school year, he was employed as a physical education teacher and assistant football coach at Mosley High School. During that school year, his supervisor, Assistant Principal Sarah Cooper, observed his performance deteriorate unexpectedly and in a way which was out of character from his previous level of performance and demeanor. She found occasions when he was not properly supervising his class and when he had not done lesson plans, as required by the school administration. Ms. Cooper had to assist the Respondent in developing a semester examination, however, he ultimately used an examination given to him by another teacher. Thereafter, he administered the examination but did not complete the grading of it and failed to complete his grade book, which responsibility was ultimately performed by Ms. Cooper. Additionally, during the 1988-89 school year, the Respondent was observed to become increasingly isolated from other members of the faculty. His behavior became characterized by unpredictability, excessive arrogance, argumentativeness, anger and verbal aggression, which was entirely different from the personality traits which he had exhibited and which his co-workers and supervisors had observed since he had been with the school system. Indeed, female teachers in the physical education department were reluctant to be alone in the workroom with him because of the advent of these objectionable personality traits. The Respondent, during this period of time, was undergoing a divorce, or the aftermath of one, which involved a very emotional custody dispute with his former wife concerning custody of their daughter. During the 1988-89 school year, he was observed to repeatedly burden his co-workers and school administrators with the details of his personal problems and to exhibit uncharacteristic and rather severe emotional outbursts of both anger and grief. After being counseled by his supervisors concerning what they believed to be rather bizarre behavior, when measured against his prior performance and demeanor in other school years, the Respondent ultimately voluntarily admitted himself to Charter Woods, a psychiatric treatment and evaluation facility. The Respondent spent approximately 5-1/2 months in that facility, underwent treatment in response to his supervisor's advice to "get some help", and returned to Mosley High School to complete the 1988-89 school year. For the remainder of that school year, the Respondent satisfactorily assumed and carried out all of his responsibilities and performed his work as a teacher in good fashion. His temperament and demeanor had returned to that of the friendly and caring teacher and co-worker which he had formerly been before his personal problems developed. His supervisor, Ms. Cooper, gave him a satisfactory annual evaluation at the conclusion of the 1988-89 school year. The Respondent's emotional difficulties and related performance difficulties as a teacher reappeared in the 1989-90 school year. During the pre-planning phase of his teaching and coaching duties for the 1989-90 school year, in August of 1989, the Respondent was observed to be very disruptive, argumentative, and, indeed, hostile to a visiting speaker at a seminar for instructional personnel. He was observed to repeatedly interrupt the speaker with arrogant, argumentative questions and comments, during the course of which behavior he was observed to be pacing back and forth at the rear of the room where the seminar was conducted while all other attendees at the seminar were seated and listening to the speaker. This arrogant, argumentative behavior was so apparent and so inappropriate for the seminar-type setting in which it occurred that his supervisor felt it necessary to apologize to the speaker at the lunch break on that day. Additionally, during this pre-planning phase of the school year, which is before the children arrive for the school year, the Respondent was observed to have difficulties in his dealings and relationships with other coaches arising out of his increasingly arrogant, argumentative attitude and behavior. Because of this and, inferentially, because his supervisors were aware of his emotional difficulties with which they had had experience the previous school year, the decision was made to relieve him as assistant football coach at Mosley High School. A meeting was held with the Respondent, Mr. Tucker, the Principal, and Mr. Cochran, the head coach, to explain that action to the Respondent and to explain to him that he would still continue as a physical education instructor. In the course of that meeting, the Respondent became very emotional, hostile, and argumentative. He exhibited frequent angry outbursts to the extent that he would not allow Mr. Tucker or Mr. Cochran to adequately explain the basis of the personnel action directed at him. The Respondent ultimately, angrily departed from the meeting before it was completed. On that same day, he left Mosley High School without administrative permission and went to Cherry Street Elementary School on some mission related to his daughter, who was a student at that school. She had been the subject of a bitter custody dispute between the Respondent and his former wife. He is accused of interfering with the operation of Cherry Street Elementary School on that occasion, although the record does not reflect what his conduct was at Cherry Street Elementary School that day. The 1989-90 school year then commenced at Mosley High School with the arrival of the students. The Respondent assumed his regular duties as a physical education instructor. He was observed, early in that school year, on a number of occasions, to fail to control behavior of students in his gym class and to fail to be in his gym class at appropriate times which amounted to inadequate supervision of his students on those occasions. His planning for his classes was observed to become sporadic, with repeated occasions when he failed to have lesson plans prepared. Also, in the fall of the 1989-90 school year, he was observed to forget his keys to the physical education area on a number of occasions. He would, on repeated occasions, forget, from one period in a school day to the next, what he was to teach that following period. He would have to be reminded by his colleagues. He would also forget to call his students in adequate time at the end of the physical education period for them to dress for their next classes. He had to be reminded by his colleagues to do this. He would also repeatedly forget when he had extra duty, such as "door duty" and locker room assignments. His general level of cooperativeness with his colleagues declined markedly. His behavior became harsh and rude to his colleagues and to students. He was observed to be very harsh and rude to a new student coming into his physical education class and spoke loudly, in an abrasive manner to the student in front of the class, embarrassing that student. These problems occurred repetitively and in rapid succession during the first month of the school year in September of 1989. Because of the nature of the problems, the past history of the Respondent's emotional instability whereby he had lost his ability to be a caring, productive, well-performing teacher (which had been his unblemished record of behavior and performance for all the years he taught prior to the 1988-89 school year), Mr. Tucker, the Principal, felt that he had to act quickly to prevent an even worse situation occurring in the 1989-90 school year when he observed that the Respondent's emotional instability of the year before was recurring. Consequently, Mr. Tucker requested that the superintendent, Mr. Simonson, meet with the Respondent in an effort to resolve his difficulties in the matter of his perceived emotional instability and resulting declining performance. Accordingly, a meeting was held with the Respondent, Mr. Simonson, and Mr. Tucker on September 30th. At the meeting, the Respondent was confronted with the fact of his displayed emotional instability and related declining teaching performance, at which point he became very belligerent and hostile. He was, alternatively, on the verge of tears and shouting in anger. Because of the above-stated reasons for the meeting and because of the emotional instability which was so apparently displayed by the Respondent during the meeting, Mr. Simonson gave the Respondent three days of sick leave to allow him to remain at home and get some professional attention to try to regain his emotional stability before returning to the classroom. The Respondent's problems persisted, however. Although the precise date is uncertain, at approximately this time, the Respondent announced that he was going to seek election as Superintendent of the Bay County school system in opposition to Mr. Simonson. The Respondent testified himself that he elected to run for this office while he was still a teacher at Mosley High School in part, at least, to save his job because he believed that the Bay County school administration and particularly, Mr. Simonson, would be reluctant to discharge him while he was a political candidate in opposition to Mr. Simonson because of the bad impression that might make on the electorate. Shortly after he made this announcement, again on an undetermined date in the fall of 1989, the Respondent was involuntarily hospitalized pursuant to the "Baker Act", Section 394.467, Florida Statutes. Apparently, the Respondent's family members had him committed although the precise reasons are not of record. The Respondent expressed the belief at hearing that his family members had him committed because of his announcement to run for Superintendent, although that is not established to be the case. The Respondent, at the time he was committed, believed that he did not suffer from a mental condition justifying his commitment pursuant to the Baker Act. The Respondent has since come to understand that he suffered from a manic-depressive condition, also known as a "bi-polar disorder". As a result of this eventuality, Mr. Simonson determined that the Respondent should not be teaching in the school system during such a period of emotional instability. In order to be fair to the Respondent, he did not want to actually suspend him from his duties. Accordingly, Mr. Simonson elected to place the Respondent in the status known as "overused sick leave", which means that the Respondent, although he had used up all of his annual and sick leave, could still be carried on the personnel records as an employee in terms of retaining his retirement and insurance benefits, although he was not paid for the time he was absent from his duties as a result of this decision and as a result of his emotional condition. Accordingly, the Respondent was, in this fashion, removed from his instructional duties and from his job site in the fall of 1989, after his involuntary commitment, pursuant to the Baker Act. Thereafter, in the fall of 1989, the Respondent obtained treatment at the "Life Management Center" in Bay County under the care of Dr. Nellis. Dr. Nellis diagnosed the Respondent as suffering from manic-depression and prescribed Lithium to treat his manic condition. The Respondent responded well to treatment, such that Dr. Nellis, late in the fall of 1989, opined that he was fit to return to work as a teacher. The Respondent apparently accepted the fact of his illness, continued taking his medication after being released by Dr. Nellis, and was returned to his duties with the Bay County school system at Rosenwald Middle School in late January or early February of 1990. Once again, he returned to his "old self", in terms of his adequate performance as a teacher, his emotional stability, good relationships with colleagues and students, and his prior demeanor as a genuinely caring teacher. His performance for the remainder of 1990 through the end of classes in June was good. He worked for the remainder of that school year as a physical education instructor, which is the field in which he is certified as a teacher. The Respondent had also been seen by Dr. Zumarraga beginning in November of 1989, who also found him to be manic-depressive, and who informed Mr. Simonson, by letter presented to Mr. Simonson by the Respondent, that the Respondent was taking medication for his illness and had exhibited acceptable behavior. As a result of those assurances by the Respondent's psychiatrist, Mr. Simonson had allowed the Respondent to return to work at Rosenwald Middle School in approximately early February of 1990. Apparently, sometime in late spring or early summer of 1990, the Respondent had doubts that he was still suffering from his condition and consulted another physician for an additional opinion. Apparently, he quit taking his medication sometime during the summer of 1990 as a result of that consultation. In late August of 1990, the Respondent returned to Rosenwald Middle School as a physical education instructor. Ms. Love, who had been Assistant Principal at the school, had moved up to the position of Principal. In the spring of 1990, the Respondent had been quiet and cooperative, had gotten along well with colleagues and students, and had performed his duties well, after undergoing treatment and being placed on a program of medication for his manic- depressive disorder. In the fall, however, he was immediately observed by Ms. Love and others of his colleagues and supervisors to have reverted to the arrogant, abrasive and extremely assertive attitudes and behavior, which he had exhibited in the fall of 1989, prior to securing treatment. Before these attitudes and behavior had manifested themselves, however, and immediately upon the start of the 1990-91 school year, given his long and worthwhile experience in the physical education field in the county system, Ms. Love asked the Respondent if he would work on a plan for a "middle school olympics" athletic event. The Respondent agreed to do this and immediately began setting about the formulation of a plan whereby all of the middle schools in the county would participate in the olympics athletic event on a given day at Tommy Oliver Stadium. He arrived at a plan to accomplish this and drafted it in memorandum form. Instead of sharing it with Ms. Love, however, he transmitted it directly to the Superintendent, Mr. Simonson. This was a departure from appropriate procedures for the planning of such events because the Respondent did not transmit his plan to Ms. Love for her initial approval before its being communicated to supervisory personnel at the county district level. The Respondent became somewhat obsessed with the idea of planning and conducting the olympics event, devoting an inordinate amount of time and energy to it. In early September, the Respondent brought a student to the office for disciplinary reasons asserting that he had caught the student stealing or "going through the lockers". Upon questioning of the Respondent by Ms. Love, it was learned that he did not find the child in the locker room or dressing room actually invading lockers, but found him in the locker room area where he was not supposed to be. He accused the child of stealing or attempting to steal when he had not actually observed him do this. The Respondent was criticized in this action for not having actually observed the child stealing and yet accusing him of it and for having brought prior behavior of the child up in his disciplining of the child, which Ms. Love felt to be inappropriate. In fact, the Respondent had some justification for suspecting this particular child of wrongful conduct or illegal activity because of past disciplinary violations committed by the child of a similar nature. At approximately the same period of time, in early September, the Respondent was observed to have grabbed a child by the arm in the act of admonishing the child for some alleged miscreant behavior and stating that "I am going to break your little arm". Ms. Love counseled the Respondent about these two instances and gave him an "improvement notice" on September 7, 1990 concerning them. An improvement notice is a disciplinary memorandum or report to a teacher such as the Respondent by which the Principal admonishes a teacher for inappropriate behavior and directs steps for improvement of the situation which led to that criticized behavior. On September 14, 1990, Ms. Love had another formal conference with the Respondent, since she had seen his arrogant, abrasive, overly-assertive behavior with colleagues and students continuing. She discussed with him his inappropriate behavior towards students and faculty and the matter of the Respondent's disciplinary referral of a student to the guidance counselor. He had referred a student to the guidance counselor for discipline and had been overbearing and abusive to the guidance counselor in his communication with her concerning the disciplinary referral. Ms. Love counseled him about the basic procedures involved in referring students for discipline, which specifically do not involve the guidance counselor. Rather, disciplinary referrals should appropriately go to the administration of the school, as delineated in the teacher's handbook, which the Respondent had previously been provided. Additionally, Ms. Love felt that the Respondent had exhibited a pattern of not turning in required documents in a timely manner; therefore, she gave him an improvement notice for these matters dated September 28, 1990. In fact, however, it was not established by the Petitioner that the Respondent had been untimely in turning in any required documents, reports, and the like, other than one report which had been due on a Friday, when he was absent due to illness and which he promptly turned in on the following Monday. During the fall of 1990, the Respondent was observed to frequently share details of his custody dispute and problems concerning his child and problems with his wife or former wife through notes, letters and conversations with other members of the staff in an inappropriate manner. He appeared to be emotionally preoccupied with these personal problems while on duty. On the third day of school in the fall of 1990, Mr. Simonson located his office temporarily at Rosenwald Middle School. He had done the same thing at other schools in the county that were having disruptions caused by on-going construction during the fall. Rosenwald Middle School at this time was undergoing construction work, including work on its air-conditioning system, such that many of the students and teachers did not have the benefit of air- conditioning. Mr. Simonson, therefore, elected to spend a day or so at Rosenwald Middle School on a sort of "Bob Graham Work Day". Ms. Love announced that fact over the public address system during the morning announcements on that day. The Respondent came to Ms. Love's office a short time later carrying the school's daily bulletin in his hand. He seemed hostile and agitated, leaned over her desk and shook the bulletin in her face, stating to her that he wanted her to sign on the bulletin her name and the statement she had made about the reason the Superintendent was at the school on that day. He further stated to her, in effect, that he was "fixing to be fired" and that he wanted Ms. Love to admit and put in writing on the face of the morning school bulletin the real reason, as he felt it, why the Superintendent was at the school that day. Ms. Love refused to do this and considered this behavior to be bizarre and threatening, given that the Respondent obviously felt that the Superintendent had been on campus that day to "spy on him". During late September of 1990, the school embarked, at the behest of Ms. Love and other administrators and teachers, on a "school spirit week" contest. The contest involved decorating the doors of the classrooms by the students, using as themes for the decorations certain words which denoted various aspects of "school spirit". The doors were to be decorated during "trust class time". "Trust classes" are classes which meet for approximately fifteen minutes or so at the outset of the school day, somewhat analogous to what is commonly known as "homeroom classes". The students were allowed to decorate the doors during their trust class time. Ms. Love accused the Respondent of keeping students overtime in their trust class, which required them to miss part of their next class and be tardy to that class in order to decorate his room door. In fact, she gave him an "improvement notice" in the nature of a reprimand for this on September 28, 1990. It was not proven, however, that the Respondent had actually kept students late at his behest for this purpose. In fact, his testimony is that he required no students to stay in his trust class working on door decorations after the time for the trust class to be over and instructed them to obtain permission from their other teachers should they elect to stay overtime to decorate the doors. The Hearing Officer having weighed the testimony, candor and credibility of the witnesses on this issue, including the ability of the witnesses to have knowledge of the facts concerning the time and methods employed to accomplish the door decoration effort, this violation of school procedures was not proven. The door decoration contest was judged on September 28, 1990 and the Respondent's class did not win. The Respondent became very agitated and angry at this result to the point of requesting and obtaining a meeting with Ms. Love concerning it. His temper and emotions were out of control on this occasion. He behaved in a loud, abrasive, and angry manner, even to the point of alternately crying, shaking, and shouting. He accused Ms. Love of penalizing his children by denigrating their efforts in the door decoration contest in order to hurt him, claiming that her actions really were a personal vendetta against him in the course of which the children were victimized. In the midst of his emotional outburst concerning this matter, he refused to listen to any explanation which Ms. Love attempted to give him but repeatedly interrupted her efforts to explain how the contest was judged and its rules. He even attempted to call a newspaper concerning the incident. He was inordinately obsessed with the conduct of the contest and with the result. As this incident with Ms. Love was progressing, Corporal Lassiter, the school Resource Officer, observed and heard part of it. In his view, having observed the behavior of the Respondent on this occasion and being aware of the Respondent's past history, Mr. Lassiter considered the possibility of initiating an involuntary Baker Act hospitalization at that moment, because of the Respondent's behavior. During the course of this confrontation with Ms. Love, Mr. Lassiter or others persuaded the Respondent to step across the hall to a different office to calm down. After he went into the other office with Mr. Lassiter and another administrator, Mr. Barnes, the Respondent's behavior continued to be somewhat bizarre. His demeanor toward Mr. Lassiter and Mr. Barnes alternated from being very angry and upset with them to calling them, and acting toward them, as though they were good friends. At one point, he told Mr. Lassiter that when he got elected Superintendent, all would hear about this incident in the newspaper and the reasons for it all "would become very clear". He stated then that Mr. Lassiter and Mr. Barnes would have good employment positions with him when he became Superintendent. Alternatively, before making these statements and also after making these statements, he became angry and hostile to both men, saying, in essence, that they were "all against me", becoming accusatory toward them and asserting, in essence, that Mr. Lassiter, Mr. Barnes, Ms. Love, and others in the administration were seeking to do him harm. Partly at the instance of Mr. Lassiter, the Respondent finally calmed down sufficiently to accede to Mr. Lassiter's recommendation that he call a substitute to take over his classes for the remainder of the day. A substitute was called and Mr. Lassiter then escorted the Respondent to his truck in order to see that he was removed safely from the campus without further incident with colleagues or students. As the Respondent was getting into his truck, preparing to leave the campus, he told Mr. Lassiter to "tell Ms. Love that she can kiss my ass". Teachers are required to be at Rosenwald Middle School by 7:30 a.m. The first bell rings at 7:37 a.m., and the "trust class" begins at 7:45 a.m. On approximately six occasions during September of 1990, Ms. Love had to sit in on the Respondent's trust class because he was late arriving at his class. She gave him an improvement notice concerning this deficiency on September 28, 1990. Additionally, on two separate occasions, Mr. Lassiter handled the Respondent's trust classes when he was late. The next school day after the incident concerning the door decoration contest on September 28, 1990 was October 1, 1990, a Monday. The Respondent was approximately 20 minutes late to school that day. Ms. Love, being concerned about the ramifications of the behavior she had witnessed in the Respondent the preceding Friday, met with the Respondent when he arrived at school for purposes of determining his state of mind and to talk to him about his tardiness. She found him still agitated, although not as much as he had been on Friday, the 28th. He continued to accept no responsibility for those actions and for his tardiness. He denied even being late, and as a result, Ms. Love assigned the school Resource Officer, Corporal Lassiter, to accompany the Respondent whenever he had students with him for the remainder of the day. It should be pointed out, however, that on most of the occasions when the Respondent was tardy to his first class during September of 1990, it was because he did not have a key to fit his office and would have to look for another co-worker to let him in. He was given a key at the outset of the school year which did not fit. Consequently, he disposed of it, ordering another key, the provision of which to him was delayed for unknown reasons. Later that same day, the Respondent brought between 20 and 30 students to the office for being tardy to class. The procedure for handling tardies at Rosenwald Middle School is that if a child is tardy, a teacher counsels with the child at first. The parents are contacted, the child is assigned to "team detention", and a student misconduct form is forwarded to the appropriate administrator upon tardies becoming repetitive. It is unusual to bring a student to the Principal's office for tardiness. The Respondent explained when they arrived at the Principal's office that all of the students were late to class and that Ms. Love should do something about it. This was a departure from normal procedures in dealing with tardy students. It should also be pointed out, however, that the school administration had recently issued a memorandum admonishing teachers that they should deal more severely with tardy students. When this entire group of students proved to be tardy on the day in question, the Respondent volunteered, with the agreement of the other physical education teachers/coaches, to escort the students to the Principal's office for disciplinary reasons concerning their tardiness. The other teachers involved agreed. On that same occasion, on October 1, 1990, when the Respondent had the group of students waiting outside the Principal's office, he apparently had some sort of confrontation with a student named Malackai. Apparently, the student was arguing with him and denying being tardy, which was the reason he was brought to the office. The Respondent offered to wrestle the student after school and "tear him limb from limb". This action caused Mr. Lassiter to step between the Respondent and the student and to send the student to Ms. Love's office to prevent any further such confrontation. Although the student was large for his age, these actions by the Respondent intimidated the student. On that same day, the Respondent was giving a lesson in softball on the softball field. He was being observed by Mr. Lassiter at the time at the behest of Ms. Love, who was concerned about his emotional stability. During this lesson, the Respondent, for unknown reasons, began rather randomly talking about accidents, lions, the dangers of eating red meat, and some sort of discussion of suicide. When he observed a student not paying attention to him, he hit the student on the head with a clipboard. He then continued his rambling discussion. A few minutes later, the same child asked when they would be allowed to play softball; and the Respondent hit him with the clipboard again. The student got tears in his eyes and was intimidated by the Respondent's conduct. When Mr. Lassiter observed that the Respondent might be about to commit the same act for a third time, he stepped between the student and the Respondent in order to prevent this from happening again. Physical education teachers are required to supervise students by direct observation in their locker room where they dress out for physical education classes and then dress in their regular clothes again at the end of classes. This is necessary in order to prevent fights and horseplay in the locker room, which can be dangerous. On October 1, 1990, during the Respondent's period to supervise the boys' locker room, he attempted to telephone Mr. Tucker, the Principal at Mosley High School. While he was on the telephone, he left the locker room class unsupervised and was unable to observe and supervise the locker room from the location of the telephone in the coach's office. On October 2, 1990, the Respondent again left his physical education class unsupervised while he was talking on the telephone for some 15-20 minutes. During the month that the Respondent had worked with Mr. Kent in the physical education department, Mr. Kent felt that although the Respondent generally had handled his duties well, he had spent an excessive amount of time on the telephone, rather than being in his assigned area. October 2, 1990 was the Respondent's last day of employment with the Petitioner. He was suspended with pay and shortly thereafter, the School Board met and accepted the Superintendent's recommendation to suspend the Respondent without pay based upon the conduct described in the above Findings of Fact occurring in August and September of 1990. The Board took the positions that this conduct amounted to gross insubordination, willful neglect of duty, and misconduct in office. In the Amended Administrative Complaint, on which this matter proceeded to hearing, which was filed on July 30, 1991, the factual allegations of the Complaint assert that the suspension action was taken based upon "alleged gross insubordination, willful neglect of duty, and misconduct in office"; however, the Amended Complaint actually charges that the factual allegations set forth in the Amended Complaint violate Section 231.36, Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code, concerning misconduct in office allegedly so serious as to impair the Respondent's effectiveness in the school system and charges incapacity (as a subset of incompetency) alleging violations of Rules 6B-1.001, 6B-1.006, and 6B-4.009, Florida Administrative Code. Thereafter, after the suspension occurred, the Respondent was involuntarily hospitalized pursuant to the Baker Act on the day following an apparent arrest for DUI, fleeing or attempting to elude a police officer, and having a concealed firearm. The Respondent was convicted of none of these charges but, rather, pled nolo contendere to a reduced charge of reckless driving and to a misdemeanor weapons charge. Adjudication of guilt was withheld. In fact, the weapon which the Respondent had in his car was believed by him to be legally possessed since it was merely the 22 pistol with which he used blanks for training his bird dogs. The pistol happened to be on the floorboard of his car when he was arrested by the officer. The Respondent spent a short period of time at Bay Medical Center, pursuant to involuntary Baker Act commitment on this occasion. Also, in 1990, at an undetermined time in the fall, he voluntarily admitted himself to the Rivendell Psychiatric Center for approximately 2-1/2 weeks in order to receive additional evaluation because he was unsure whether he was actually manic-depressive or not. Thereafter, while still suspended from his employment, in May of 1991, the Respondent apparently had an argument with his parents at their home in Bonifay and then left their home to return to his own home in the vicinity of Panama City in Bay County, Florida. Rumors apparently were communicated to law enforcement officials to the effect that the Respondent had threatened to kill his parents and had left their home with a high-powered rifle and was journeying to Panama City to his own home. Apparently, as a result of such reports, after the Respondent was at his own home, to his surprise, law enforcement vehicles and numerous law enforcement personnel, especially the Bay County Sheriff Department Swat Team, arrived in his yard, and, by megaphone, demanded his surrender. A television news crew was present at the scene and filmed the incident, which may have received billing as an "armed confrontation" between the swat team and the Respondent. In fact, this is untrue. When the Respondent observed the law enforcement officers arriving on his premises in a number of vehicles, he telephoned his attorney to inform him of the situation and then went to the door in response to the directive that he come outside. When he went to the door to ascertain why the law enforcement officers were at his residence, he was armed with a fork and a hamburger. He was charged with no crime in connection with this incident, although, apparently, he was involuntarily committed under the Baker Act once again for a brief period of time. The incident was disseminated to the public on the electronic media. However, no armed confrontation was proven to have occurred, nor was there any proof that the Respondent ever threatened to kill his parents. Although Mr. Simonson testified that there would be a great public outcry if he reinstated the Respondent because of this incident and the other incidents, there was no showing by the Petitioner that the incidents occurring at Rosenwald Middle School leading to the Respondent's suspension nor the incidents involving the alleged high-speed chase were ever communicated to the public generally or to parents of students of the Bay County school system or the students themselves. It was not shown by the Petitioner that the Superintendent or other officials of the Petitioner received any complaints from parents or members of the general public concerning the Respondent, his behavior, or his teaching performance. The incidents involving the alleged high-speed chase and the swat team confrontation, delineated in the above Findings of Fact, did not occur while the Respondent was on school premises nor while he was engaged in his duties as a teacher or coach. With regard to either incident, he was not shown to have committed any crime or conduct which can constitute misconduct in office. Both incidents occurred in the Respondent's private life, away from his employment and away from the School Board premises. The only conduct shown to have been disseminated in the public media involved the Respondent being taken into custody at his home by the Sheriff's swat team because the television news crew was there filming the incident. He was charged with no crime on that occasion and was shown to have committed no form of reprehensible conduct. He was merely involuntarily committed shortly thereafter, pursuant to the Baker Act. None of that can constitute misconduct in office, much less misconduct in office which in any way abrogates his effectiveness as a teacher in the school system involved. The Respondent has been taking Lithium and Prozac for his manic- depressive condition since 1989. He is presently under the treatment of Dr. David Smith, a licensed psychologist; and Dr. Ben Pimentel, a licensed psychiatrist, at a facility known as the "Life Management Center", as an outpatient. Both of these professionals opined that if the Respondent continues to take his medication, the symptoms of mania and depression will remain in remission, as they are at the present time. Indeed, in the past, since he first began taking medication for his condition in 1989 after being diagnosed as manic-depressive, at those times when the Respondent was taking his medication, his behavior and his teaching performance was up to the good and satisfactory standard which he had consistently exhibited from 1977 through the 1987-88 school year. It is only on those occasions when he has ceased taking his medication, in the apparent belief that his problem was not a chronic one, that he has exhibited the emotional instability, such as that displayed at Rosenwald Middle School in August and September of 1990, which is the subject of this proceeding. Indeed, both Drs. Smith and Pimentel, the only experts testifying in this proceeding, who testified for the Respondent, established that if the Respondent continues to take his medication, his symptoms of mania and depression will remain in remission and he will be competent to teach in terms of both his emotional stability and his ability to perform his duties as a teacher. Although Dr. Smith acknowledged that the rudeness exhibited by the Respondent on the occasions at issue in this case and his behavior involving striking a student and offering to wrestle a student might be behavior unrelated to the bi-polar disorder, the totality of the evidence supports the finding that, in the Respondent's case, given the many years of his teaching experience when he was a calm, caring, competently-performing instructional employee with behavior not characterized by such outbursts and aggressiveness, such conduct is, indeed, directly related to the present, active nature of his disorder on those occasions. On those occasions, he was not taking his medication. Dr. Pimentel believes that the Respondent needs to continue his medication. If he does continue his medication, he will be competent to continue teaching or to once again teach because his symptoms will remain in remission. Dr. Pimentel believes that the Respondent may need the motivation of a court order or employment directive or condition to insure that he continues his medication because if he obtains a medical opinion that he is no longer sick, he may not take the medication and stop the treatment. Additionally, Dr. Pimentel finds that the Respondent will require monthly counselling sessions and monitoring of his medication level to make sure it remains at a therapeutic level. Under those conditions, however, he would be capable of resuming his teaching duties. The Respondent, in his testimony, expressed the wish to obtain another medical opinion to make sure, in his view, that he is still manic- depressive, although he accepts the diagnosis that he is manic-depressive and is willing to continue his medication and to submit to monthly monitoring of his medication and monthly treatment by his presently-treating professionals.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondent, Steven T. George, be suspended for a period of two years, but that the suspension be abated and the Respondent immediately reinstated to his duties as an instructional employee of the Bay County school district, with all of the rights of a tenured teacher, under the following circumstances which should remain in effect for a probationary period of two (2) years: His psychiatrist shall file monthly with the School Board a detailed report of his attendance at counselling sessions and the result of his monthly blood tests to ascertain if his medication remains at therapeutic levels. He is required to maintain the therapeutic levels of Lithium and Prozac or such medication as his physician and psychiatrist deem medically appropriate. If he fails to attend counselling sessions or to maintain therapeutic blood levels of his appropriate medication for any two (2) consecutive months, then this should be determined to be, at law, willful neglect of duty, subjecting him to dismissal as a teacher with the Bay County school district subject to the Respondent's right to contest such an employment action, pursuant to Section 120.57, Florida Statutes, in this forum. There should be no award of back pay in light of the above Findings of Fact and Conclusions of Law. There should be no award of attorney's fees in light of the above Findings of Facts and Conclusions of Law , and the opinion in Werthman v. School Board of Seminole County, Florida, 17 FLWD 1245 (Fla. 5th DCA, opinion filed May 15, 1992; Case Number 91-1831). The cases cited by the Respondent seem to accord the Respondent a hearing opportunity on the issue, with award of fees being discretionary. The Werthman decision appears contra in termination proceedings, however. DONE AND ENTERED this 31st day of May, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1-23. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record evidence. Accepted. Accepted, except that it was not proven that he had "gone through Ms. Love's mailbox". Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 28-29. Accepted. Rejected, as not supported by preponderant, competent evidence. Rejected, as not supported by preponderant, competent evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 33-35. Accepted. 36. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 37-39. Accepted. 40. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 41-47. Accepted. 48. Rejected, as not, in its entirety, being in accordance with the preponderant, competent evidence of record. 49-56. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 57-61. Accepted. 62. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-13. Accepted. 14. Rejected, as not supported by preponderant evidence. 15-22. Accepted. 23. Rejected, as not entirely in accordance with the preponderant evidence. 24-30. Accepted. 31-36. Accepted. 37. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant evidence. 38-41. Accepted. 42-48. Accepted. 49-51. Accepted. 52. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 53-54. Accepted. Rejected, as not in accordance with the evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not in accordance with the preponderant evidence of record. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not being entirely in accordance with the preponderant evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 61-63. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 64-72. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected, as not in accordance with the preponderant evidence of record. (Second No. 74). Accepted. 75-78. Accepted. 79. Rejected in the sense that it was proven by the Petitioner that at the time he was suspended, the Respondent was incompetent to teach due to incapacity related to his emotional instability. 80-85. Accepted. COPIES FURNISHED: Jack W. Simonson, Superintendent P.O. Drawer 820 Panama City, FL 32402 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Franklin R. Harrison, Esq. HARRISON, SALE, ET AL. 304 Magnolia Avenue P.O. Drawer 1579 Panama City, FL 32401 David Brooks Kundin, Esq. DOBSON & KUNDIN, P.A. 210 South Monroe Street P.O. Box 430 Tallahassee, FL 32302
Findings Of Fact During the 1993/1994 school year, the Respondent, Alan Davis, was in his 12th year teaching eighth grade science at Meadowlawn Middle School in St. Petersburg, Florida. He is on a professional services contract. He has a good record and reputation as science teacher at the school and no prior disciplinary problems (or even accusations against him.) The Respondent's classroom was located on the east wall of the school building, at the intersection of two interior hallways to the north and west of the classroom. There is a classroom door to the outside to the east, and the entire east wall of the classroom consists of windows looking across a walkway directly onto portable special education classrooms. There are vertical blinds that can be drawn across the windows and closed. The blinds usually are drawn but not closed. There is a classroom door to the hallway to the west of the classroom. Immediately across the intersecting hallway to the north of the classroom is the door to the teachers' lounge. Immediately past the intersecting hallway to the north is the door to the office of the school resource officer. Immediately past the resource officer's office, only approximately 25 feet from the door to the Respondent's classroom, is a suite of offices belonging to the school principal and other school administration personnel. Kim Wilder was an eighth grader at Meadowlawn during the 1993/1994 school year. She was in the Respondent's fourth period science class. Through about half of the year, she enjoyed a good record and reputation as a pupil of the school. Her grades were A's and B's, and she was not a disciplinary problem. However, several people noticed a change in her behavior in the middle of the school year. Her relationship with her parents deteriorated somewhat, and she sometimes displayed an attitude of not caring about family or school. The beginning of these changes in Kim roughly coincided with her friendship with a boy named Gilbert, who was a poor student, both in academics (he had to repeat grades) and in conduct. Gilbert also later began to spread rumors that he and Kim allegedly were sexually active. Such rumors came to the attention of interested and concerned teachers, one of whom alerted Kim's parents. Kim's parents became convinced that Gilbert was a bad influence on Kim and that she would be better off not seeing him. They refused to allow him to visit at their home, and they insisted that she stop seeing him. This created a conflict between Kim and her family. In the course of conversations with some girl friends approximately the end of March or beginning of April, 1994, Kim disclosed that she had been sexually assaulted by the Respondent. Initially, she told one of her friends only that the Respondent had "felt on" and "kissed" her. She told others additional details. But the first three friends she told did not recall any allegation that the Respondent performed oral sex on Kim. In later retellings, Kim added that allegation. In one later retelling, she added the allegation that the Respondent felt her breasts. Kim forbade her friends to tell anyone about her allegations. But one of her friends disclosed the allegations, and school authorities were informed on or about April 8, 1994. When Kim learned that the school authorities were investigating her allegations, she was very upset and angry at the friend who disclosed her confidences. When the school authorities confronted Kim, she maintained that her allegations were true, and the school authorities brought her home from school. Kim's parents were not home but her sister-in-law, who lived next door, was home and spoke with Kim. Based on the sister-in-law's testimony, it does not appear that Kim's statement to her was very detailed. Although Kim and her parents reported that they generally have an open and communicative relationship, Kim refused to discuss the allegations with them when they came home from work. Instead, she referred her parents to her sister-in-law. Through at least August 26, 1994, Kim had not discussed the details of her allegations with her parents. (They have, however, read statements she has written concerning the allegations.) Law enforcement interviewed Kim at her home on April 8, 1994, and memorialized the interview in a written statement. On June 21, 1994, Kim wrote an account of the alleged assault by the Respondent. Kim also recounted the entirety of the alleged assault twice during testimony at final hearing, once on direct and again on cross; parts were repeated once more on redirect. All of these statements are replete with rich detail, making them seem real. However, with one noteworthy exception, the consistent precision with which the details are repeated seems unnatural and could give the impression of being recited from a memorized script. Before her fourth period science class on Friday, December 10, 1993, the Respondent told her that her mother had telephoned the Respondent earlier that morning to inquire about the C on her report card for the second grading period (after getting an A for the first grading period) and that the Respondent had told Kim's her mother that Kim was missing seven assignments. The Respondent told Kim that she could get the assignments, together with the book she needed to do them, after school. (The required book would not be available until after school because the Respondent's classes shared the use of the same books during class.) Meanwhile, in the detailed versions of her allegations, Kim stated that she was jokingly bantering with a friend and the Respondent about whose "man" the Respondent was, as they did from time to time. She stated that, on this occasion, the Respondent informed them that he was "a dirty old man." She stated that she and her friend did not take the Respondent's statement seriously. Kim stated that, after school ended at about 3:50 p.m. on Friday, December 10, 1993, she went to the Respondent's class room to get the make-up assignments. She testified that she would have arrived at approximately 4 p.m. She said the Respondent was straightening desks and that she helped him finish before sitting in one of the desks. She stated that he then asked her if she had come by to see if he really was a "dirty old man." She made an off-hand comment to the effect, "I guess," or "whatever." He then walked to the classroom door and shut it. Several of the witnesses, including her friends and her sister-in-law, testified that, when Kim first told them what happened, she said that the Respondent locked the classroom door. The report of the law enforcement interview on April 8, 1994, also indicated that Kim told law enforcement that the Respondent locked the door. In fact, the classroom door does not lock from the inside. In her June 21, 1994, statement and in her testimony at final hearing, Kim stated that she thought the Respondent locked the door. Kim alleged that, after shutting (and, in the early versions, locking) the door, the Respondent put a poster with a monkey on it over the window portion of the door and dragged an easel with a flip chart in front of the door, apparently to block access to the classroom or, at least, to serve as an alarm to give him some time to react in the event someone tried to enter the classroom. There was indeed a poster of a monkey (or chimpanzee) on display in the Respondent's classroom that year, and there also was an easel in the classroom that would have been at the Respondent's disposal. But, in fact, the classroom door opens into the hallway, not into the classroom, and the placement of the easel in front of the door would not have been very effective. It is possible that it was the Respondent, not Kim, who overlooked the manner in which the door opened. But, even if the classroom door had been locked or blocked, the Respondent's classroom was adjacent to another science classroom, and there is a door between the two classrooms that does not lock. Ordinarily, it would not be uncommon for the Respondent's fellow science teacher, as well as a few students, to be in the adjacent classroom from 3:50 p.m. until as late as 4:05 p.m. In addition, administration personnel in the suite containing the principal's office and the other administration offices generally are occupied until 4:30 p.m., or later, even on a Friday. Custodians also circulated through the building after school (although they generally did not clean the Respondent's classroom until later.) Fortuitously, it has been possible to deduce, from some of the details provided in Kim's allegations, the precise day on which the alleged assault occurred--Friday, December 10, 1993. It so happens that Friday, December 10, 1993, was the last day of the school science fair. There were approximately 200 projects on display in the school gymnasium, which was just down the hall from the Respondent's classroom. Entrants in the fair were required to dismantle and remove their projects after school that day. As a result, although both students and teachers generally leave the school building promptly on Fridays, and fewer after school activities usually are planned for Fridays, more than the normal number of students would have been in the hallway during the time immediately after the end of school on that particular Friday. In addition, the Respondent's fellow science teacher in the connecting classroom adjacent to the Respondent's had arranged with a handful of his students to allow them to dismantle their projects earlier in the day and store them in his classroom. These students would have been in the connecting adjacent classroom between approximately 3:50 and 4:05 p.m. picking up their science projects. Kim alleged that, after securing the classroom door, the Respondent returned to her and asked whether she thought he was a "dirty old man." She stated that, when she answered, "no, I think you are a nice guy," he suggested, "maybe you should go now," and went over to remove the easel and open the door. But, she alleged, when she insisted that she had to stay in order to get her assignments, he again went to the door and repeated the steps he had just taken to secure the door. This time, when he returned to her, he backed her into a corner of the classroom, using gentle pressure on the shoulders, and (in each telling, "putting his arm around her neck") began kissing her. Kim stated that she did not resist the Respondent or call for help because the Respondent was not being violent, and she was afraid that he would become violent if she was not compliant, so she kissed him back. She alleged that he proceeded to lift her ankle-length "peach and black floral print skirt" (which she was wearing with a "black, long sleeve V-neck shirt"), remove her panties (and, in each telling, she stepped out of the panties "with [her] right foot" while he held her panties) and insert his finger into her vagina. She alleged that he pressed down on her shoulders until she was in a squatting position, lay on his back on the floor and positioned his head under her, and initiated oral sex. After this, he allegedly stood her up, and resumed kissing her, while unbuckling his belt and unzipping his pants. She alleged that he took her hand and placed it on his penis. She alleged that, when he removed his hand from hers, she removed her hand from his penis. When she allegedly thwarted his attempt to have intercourse with her, he allegedly turned her around to face the wall, bent her over (somehow, towards the walls she was facing), again pulled up her skirt, and (as best she could tell) again attempted intercourse, this time from the rear (she alleged that she "felt something hard against her vagina"). Then, she alleged, she detected movement from behind her and assumed that he was masturbating and ejaculating because, when she turned around after the movement stopped, he was wiping something off the floor with a yellow towel. (A yellow cloth, from which a piece had been torn or cut, was found in one of the closets in the Respondent's classroom during the School Board's investigation of the allegations. But it was not proven that the cloth which the Respondent allegedly used to clean the floor on the afternoon of Friday, December 10, 1993, had come from the cloth found in the closet in the Respondent's classroom.) Kim alleged that the Respondent apologized to her for what he did and begged her both never to come back to his classroom alone after school and not to tell anyone. She alleged that the Respondent made reference to a teacher who was being disciplined for sexual misconduct with a student 20 years ago and stated that he always would be afraid that she would disclose what he had done. (In fact, such a story had been reported in the local newspapers on December 8, 1993.) Kim alleged that she promised the Respondent she would not tell anyone. According to Kim, after the incident, which lasted a total of 20-30 minutes, she and the Respondent calmly and amicably left the school together. They allegedly exited through the classroom door into the hallway to the west of the classroom, crossed the intersecting hallway, immediately down which is located the door to the teachers' lounge, and continued walking down the hallway. Immediately past the intersecting hallway, they would have had to pass both the office of the school resource officer and the suite of offices belonging to the school principal and other school administration personnel. A little further down the hallway, they would have passed between the school cafeteria and the school gymnasium (the site of the science fair). Just past the cafeteria and gymnasium, they would have come to the door leading to the parking lot. Kim stated that no one saw them and that they did not see anyone on their way out of the building. Kim alleged that, before she left the building to walk home, she watched the Respondent walk across the parking lot and get in his pickup truck. The Respondent testified that, after learning the date on which it was deduced that the assault allegedly occurred, he realized that it would have been impossible for Kim to have witnessed him getting into his pickup truck on the day in question. He testified that he was having mechanical problems with the truck that week and was driving his wife's car across the bay bridge to work after dropping her off at her place of employment in Tampa, where they lived, while his truck was being repaired. He produced a cancelled check and was able to secure a computer printout from the bill he paid for the repairs when he picked the truck up the next day, Saturday, December 11, 1993. Kim also testified that the Respondent left the "monkey poster" on the door covering the window when they left the classroom. But the custodian who cleaned the Respondent's classroom each evening did not recall ever seeing the "monkey poster" anywhere but on the wall. The Respondent denied engaging in any of the alleged inappropriate behavior. He was able to reconstruct that he had bus duty on Friday, December 10, 1993, and would not have returned to his classroom until 4 p.m. He recalled that there was an unusual amount of activity in the hallways, especially for a Friday, but that probably was attributable to the school science fair. He recalled that, as he approached his classroom, he noticed several students in the adjacent connecting classroom with his fellow science teacher. He thinks he saw Kim there, too. In any event, Kim followed him into his classroom shortly after he unlocked it, opened the door and turned on the lights. He remembered that she helped him straighten desks and that he sat at a desk with her to go over the assignments. He did not recall whether he or she actually wrote the assignments down. He then gave her the book she needed, and she left. He testified that the entire process took approximately five minutes and that the door to the classroom never was closed during that time. Kim alleged that, although she never completed the missing assignments, the Respondent raised her grade from a C to a B. The Respondent testified that Kim completed four of the seven missing assignments. The Respondent normally would not either keep the make-up assignments nor, to prevent other students from copying them, return them to the student. Kim alleged that the Respondent gave her special privileges, like library passes, after the assault. But it was not proven that the Respondent gave more privileges to Kim after the alleged incident than before, or that he gave her privileges that he did not also give to other good students like Kim. Kim alleged that the Respondent often complimented her appearance. The Respondent admitted to affirmatively answering occasional direct questions from Kim as to whether she was pretty. He also recalled occasions when he told Kim and other female students that they were "pretty enough already" and did not need to (and should not) comb their hair and apply makeup in class. Kim alleged that, on one occasion, the Respondent commented that a low-cut blouse she was wearing was distracting. The Respondent recalled once reprimanding Kim for wearing a blouse that was revealing and in violation of school dress code. He admitted that he may have told her that it could be distracting to other students. The Respondent admitted to making an inappropriate comment to or about Kim on one occasion. The school assembled in the gymnasium one day for the introduction of a fund-raising campaign that featured a "money machine." The money machine consisted of a transparent booth with dollar bills inside. As part of the fund-raising campaign, students would be allowed to enter the booth while fans blowing air through holes in the floor of the booth blew the dollars bills off the floor and around inside the booth. The student inside had a limited period of time to grab as many dollar bills as possible. When volunteers were requested to demonstrate the "money machine," Kim thought better of it since she was wearing a skirt. The next day, in the Respondent's class, the Respondent asked Kim why she hadn't volunteered. When she answered that she was wearing a skirt and was concerned that air in the booth would have lifted her skirt, the Respondent commented aloud to the class, "that would have been interesting," or words to that effect. The Respondent was trying to be funny but admitted that the comment was not appropriate. It is noteworthy that, when the Respondent was told that Gilbert was spreading rumors to the effect that he and Kim had an intimate sexual relationship, the Respondent warned Kim to take appropriate steps to protect her reputation. It was revealed during the course of the investigation into Kim's allegations against the Respondent that Kim also has made allegations that, during the summer of 1993, she was forcibly raped at two in the morning, in the bathroom of a restaurant, by a 24-year old male acquaintance. Although Kim's mother thought she remembered Kim returning home upset after the alleged incident, she also testified that she may have learned about it after the allegations against the Respondent surfaced--long after the alleged rape. (Kim's mother, who has been terminally ill and on several medications for some time, seemed confused on this point.) Regardless when Kim revealed the alleged rape, both she and her mother agreed that Kim asked her mother not to tell anyone because Kim could "handle it" by herself. Kim did not receive any treatment or counseling for the alleged rape. Kim also did not mention the alleged rape to law enforcement during the investigation into the allegations against the Respondent. Although it is possible that the alleged rape or the Respondent's alleged sexual assault actually happened, both seem improbable. Yet, it is troubling that no obvious motivation for Kim to fabricate the allegations against the Respondent appears from the evidence. It is possible that she was seeking attention. It is possible that her mother's medical condition could have played a role in motivating such action. On the other hand, it could have had something to do with the relationship between Kim and Gilbert. Maybe she was upset with the Respondent for his role, minor as it was, in turning her parents against Gilbert. Maybe she was trying to deflect her parents' attention away from the bad influence that Gilbert might have represented by trying to make the point that acquaintances or even teachers could pose a worse threat. Maybe the alleged rape and the allegations against the Respondent arose from apprehension about how to explain feared consequences of sexual activity with Gilbert, as irrational as it might seem. Maybe there are other possible explanations in the nature of mental or emotional instability. Perhaps the most likely explanation is that Kim was simply making up a story to impress her girl friends and found herself committed to the story when one of them disobeyed Kim's command not to tell anyone. One can only speculate as to what the actual motivation could have been.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges and reinstating the Respondent with back pay. RECOMMENDED this 1st day of March, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-8. Accepted and incorporated. Rejected as not proven. Accepted and incorporated. First sentence, accepted and incorporated; the rest is rejected as not proven. Accepted and incorporated. 13.-29. Rejected as not proven. Accepted and incorporated. Rejected as not proven that she "volunteered." (She decided not to volunteer.) Rejected as not proven that he told Kim (privately, as opposed to as part of the class). Otherwise, accepted and incorporated. 32.-33. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13.-17. Accepted and incorporated to the extent not subordinate or unnecessary or argument. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301-4th Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638 J. Howard Hinesley Superintendent Pinellas County School System Post Office Box 4688 Clearwater, Florida 34618-4688
