The Issue Whether Jessie M. Mitchell should be discharged from her employment as a teacher in the Duval County public school system for professional incompetency as set forth in Section 4(e) of the Duval County Teacher Tenure Act, Chapter 21197, 1941 Laws of Florida (hereinafter referred to as the "Tenure Act")?
Findings Of Fact At all times relevant to this proceeding, Ms. Mitchell was licensed as a public school teacher by the State of Florida. Her license was current and in full force and effect. Ms. Mitchell was licensed to teach in early childhood education. At all times relevant to this proceeding, Ms. Mitchell was employed as a tenured teacher by the Board. Ms. Mitchell received a Bachelor of Science degree from Edward Waters in 1962 and a Masters degree from Florida A & A University in 1965. During the 1985-1986 school year, Ms. Mitchell was assigned as a teacher at S. P. Livingston Elementary School (hereinafter referred to as "Livingston") in Jacksonville, Florida. Robert Strauss was the principal at Livingston during the 1985-1986 school year. Mr. Strauss had been the principal charged with evaluating Ms. Mitchell during the 1982-1983, 1983-1984 and 1984-1985 school years. Mr. Strauss had given Ms. Mitchell an overall satisfactory rating for these years. Ms. Mitchell received satisfactory ratings for the 1980 through 1985 school years. She did not receive an unsatisfactory rating until the 1985-1986 school year. During the 1985-1986 school year Mr. Strauss observed Ms. Mitchell teaching on four or five occasions. On February 14, 1986, Mr. Strauss extended the end of Ms. Mitchell's evaluation period for the 1985-1986 school year from March 15, 1986, the usual evaluation date, to May 2, 1986. In-service cadre were also requested to assist Ms. Mitchell improve her performance. John Williams was the primary in-service cadre member who provided assistance to Ms. Mitchell during the 1985-1986 school year. Mr. Williams observed Ms. Mitchell teaching on April 18, 1986 and May 22, 1986. After each observation, Mr. Williams met with Ms. Mitchell and discussed his observations. Written suggestions for improvement were also presented to Ms. Mitchell by Mr. Williams. Ms. Mitchell was also given the opportunity to observe other teachers. In addition to Mr. Williams, Cheryl Schang, Marilyn Russell and Carolyn Love provided assistance to Ms. Mitchell. Mr. Williams and Ms. Russell conducted a help session on planning and curriculum for Ms. Mitchell. Ms. Mitchell did not cooperate fully in the efforts of Mr. Williams and other in-service cadre members to assist her. She missed several meetings which had been scheduled with cadre members. Ms. Love observed Ms. Williams for approximately five hours. Based upon her observations, Ms. Love pointed out deficiencies and discussed ways of correcting those deficiencies with Ms. Mitchell. Mr. Williams provided Ms. Mitchell with language experience reading materials, teacher improvement packets and behavior management material in an effort to improve her performance as a teacher. Mr. Williams and Mr. Strauss developed a Professional Development Plan for Ms. Mitchell. The Professional Development Plan provided objectives and suggestions designed to assist Ms. Mitchell in improving her performance as a teacher. The Professional Development Plan was provided to Ms. Mitchell in April, 1986. It was not probable, nor was it anticipated, however, that Ms. Mitchell would complete the goals set out in the Professional Development Plan before the 1985-1986 school year ended. It was anticipated that the Professional Development Plan would be followed by Ms. Mitchell during the 1986- 1987 school year. The Professional Development Plan developed for Ms. Mitchell was adequate to assist Ms. Mitchell to improve her teaching performance. Ms. Mitchell did not carry out the objectives and suggestions contained in the Professional Development Plan during the 1985-1986 school year or the 1986-1987 school year. Ms. Mitchell was given a written evaluation for the 1985-1986 school year by Mr. Strauss on May 2, 1986. Ms. Mitchell was evaluated unsatisfactory. Ms. Mitchell was notified by certified mail on May 16, 1986, that her performance as a teacher during the 1985-1986 school year had not been satisfactory. Ms. Mitchell was informed that she had the right to transfer to a new teaching position for the 1986-1987 school year. Ms. Mitchell elected to transfer to a new teaching position for the 1986-1987 school year. She was assigned to teach kindergarten at Richard L. Brown Sixth Grade Center (hereinafter referred to as "R. L. Brown") for the 1986-1987 school year. William Permenter was the principal at R. L. Brown. In August, 1986, Mr. Permenter and Ms. Mitchell had a pre-planning conference. During this conference, the Professional Development Plan developed by Mr. Strauss and Mr. Williams for Ms. Mitchell was discussed with her and modified. Mr. Permenter made numerous suggestions to Ms. Mitchell to assist her in improving her teaching performance during the 1986-1987 school year. During the 1986-1987 school year Mr. Permenter observed Ms. Mitchell teaching on at least nine occasions. Conferences were held with Ms. Mitchell following these observations. Mr. Permenter also set out in writing suggestions intended to assist Ms. Mitchell in improving her teaching performance. Mr. Permenter's written suggestions to Ms. Mitchell contained clear and detailed concerns with Ms. Mitchell's performance. In October, 1986, Mr. Permenter gave Ms. Mitchell an interim evaluation of unsatisfactory. On January 30, 1987, Ms. Mitchell was informed by Mr. Permenter that she would receive an unsatisfactory evaluation for the 1986-1987 school year unless she demonstrated an acceptable level of teaching performance by March 15, 1987. In March, 1987, Ms. Mitchell was given an unsatisfactory evaluation for the 1986-1987 school year by Mr. Permenter. During the 1986-1987 school year the primary in-service cadre member who assisted Ms. Mitchell was James Constande. Mr. Constande observed Ms. Mitchell on at least six occasions, conducted conferences with Ms. Mitchell, made suggestions to her and provided her with written materials designed to assist her in improving her teaching performance. Five of Mr. Constande's six observations were scheduled with the permission of Ms. Mitchell. Jayne Owens, another in-service cadre member, also assisted Ms. Mitchell. No observations were conducted by in-service cadre from September 27, 1986, through November 25, 1986 and from November 26, 1986, through January 21, 1987, because of Ms. Mitchell's reluctance to agree to such observations. On March 23, 1987, Ms. Mitchell told Mr. Constande that she did not want to continue with classroom observations. Mr. Constande contacted Ms. Mitchell in April and May of 1987, at least twice each month. Ms. Mitchell refused to allow any classroom observations. In-service cadre members encouraged Ms. Mitchell to contact them if she needed any additional assistance. Ms. Mitchell did so only on a few occasions. Jayne Owens, an in-service cadre member during the 1986-1987 school year, conducted class while Ms. Mitchell observed. During the 1986-1987 school year Ms. Mitchell believed that Mr. Permenter and the in-service cadre members were not trying to help her. This attitude was reinforced by advice Ms. Mitchell received from counsel for the Duval County Teachers' Union. Ms. Mitchell's attitude about Mr. Permenter and the in-service cadre deteriorated after she received an unsatisfactory rating for the 1986-1987 school year. She refused any further assistance from the in-service cadre. The unsatisfactory ratings which Ms. Mitchell received for the 1985- 1986 and 1986-1987 school years were based upon her deficiencies in the general areas of classroom management and teaching effectiveness. Ms. Mitchell's classroom management deficiencies included the following: (a) failure to maintain order in the classroom and school corridors; (b) failure to maintain an attractive, organized classroom (Ms. Mitchell did improve her performance in this area, however); (c) failure to keep students on- task by engaging in conversation unrelated to the subject of her class; (d) failure to maintain effective behavior management techniques such as the use positive reinforcement to avoid negative behavior; (e) failure to stop students who interrupted by calling out; (f) failure to explain the standard of behavior she expected; (g) failure to control the noise level; (h) failure to monitor rules and to timely issue desists orders; (i) failure to identify and discipline students actually causing disruptions; (j) failure to stop children from chewing on pencils, which may be a health hazard; and (k) failure to insure that usable school materials were picked up off the floor to avoid their being sweep up and thrown away. Ms. Mitchell's teaching deficiencies included the following: (a) failure to explain the purpose of lessons at the beginning of a class and to give a review at the end of the class to reinforce what had been taught; (b) failure to provide an explanation when moving from one subject to the next; (c) failure to use correct grammar; (d) failure to give praise; (e) failure to organize the classroom effectively into learning areas; (f) failure to correctly mark report cards; (g) failure to manage time properly, resulting in a loss of momentum; (h) failure to have materials and teaching aides ready to start class; (i) failure to select subject matter of a film suitable for her students; (j) failure to keep lesson plans in accordance with district guidelines; (k) failure to assign or prepare sufficient tasks for students; (1) failure to organize instructions; (m) failure to stop unison responses; (n) failure to be familiar with subject of a film; (o) failure to avoid providing too much information to students; and (p) failure to accurately present subject matter. Ms. Mitchell's deficiencies were observed over two school years by at least six observers on several occasions. Ms. Mitchell was unable to produce current lesson plans in May, 1986. Ms. Mitchell did not adequately plan. Therefore, she was unable to provide an effective learning environment and she was unable to reduce discipline problems. Ms. Mitchell failed to have a series of groups of students and a series of activities for each group throughout a school day. Ms. Mitchell failed to properly maintain cumulative folders during the 1986-1987 school year. Ms. Mitchell was given clear and detailed statements of her deficiencies throughout the 1985-1986 and 1986-1987 school years. The Superintendent of Duval County Public Schools brought charges against Ms. Mitchell seeking to discharge her for professional incompetency by certified letter dated May 19, 1987. The charges were based upon Ms. Mitchell's teaching performance during the 1985-1986 and 1986-1987 school years, the two years for which Ms. Mitchell received unsatisfactory evaluations. Ms. Mitchell was afforded a hearing in conformance with Chapter 120, Florida Statutes. Ms. Mitchell was afforded a speedy and public hearing, informed of the nature and cause of the accusations against her, confronted by accusing witnesses, given the opportunity to subpoena witnesses and papers and allowed to secure assistance of counsel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Mitchell be dismissed as a tenured teacher within the Duval County public school system. DONE and ENTERED this 11th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4581 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3 46. 4 38 5 39 and 41. 6 40-41. 7 6 and 9. 8 17. 9 Hereby accepted. 10-11 20. 12 11. 13 18. 14-15 21. 16-17 Irrelevant. 18 11. 19 17. 20 13. 21 12. 22 14. 23 13. 24 42. Hereby accepted. See 40. 27 16. 28 43. 29 42. 30 34. 31 15. 32 See 39. 33 19. 34 22. 35 23. 36 24-25. 37 18, 38 Hereby accepted. 39 26. 40 28. 41-42 Irrelevant. 43 45. 44 27. 45 Hereby accepted. 46-47 30. 48-49 Hereby accepted. 50 31. 51 30. 52 32. 53 35. 54 Hereby accepted. 55 32 and 37. 56 33. 57 See 40. 58-61 Hereby accepted. 62 44. 63 36. Hereby accepted. Irrelevant. 66 32 and 37. 67 36. 68-69 Hereby accepted. 70 45. 71 Cumulative. 72 47. 73 48. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 3. 3 46. 4 5. 5 6. 6 10. 7-8 21. Hereby accepted. Not supported by the weight of the evidence. 11-13 7. 14 Not supported by the weight of the evidence. 15-16 Hereby accepted. 17 17. 18 24. 19 23. Irrelevant. See 25. 22 27. 23 29. 24-29 Not supported by the weight of the evidence or irrelevant. 30 8. 31-43 Not supported by the weight of the evidence or irrelevant. 44 Hereby accepted. 45 4. 46 8. 47 Hereby accepted. 48 36. 49-52 Not supported by the weight of the evidence or irrelevant. COPIES FURNISHED: Dolores R. Gahan Assistant Counsel City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Kenneth Vickers, Esquire Suite 1 437 East Monroe Street Jacksonville, Florida 32202 Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive Jacksonville, Florida 32207
The Issue Whether the Respondent's termination of employment as a guidance counselor should be upheld.
Findings Of Fact O'Connor is a long-term employee of the School Board. She supported herself while obtaining her master's degree in counselor education and was continuously employed by the School Board as a counselor since 1986. Over the course of her employment she has served successfully as a guidance counselor at three schools under five principals. During her tenure at Salaxy Elementary, she was honored as The Palm Beach Post's "Teacher of the Week." Up until 1997, O'Connor enjoyed a professional period she calls "the golden years." Her description of an idyllic, "almost like a private practice in an elementary school," is supported by the consistently glowing performance reviews she received throughout that period from all persons designated by the School Board to perform her annual evaluations. The golden years began to come to an end for O'Connor with the arrival of a new principal, Debra Johnson (Johnson). By the spring of the 1996-97 school year, relations between O'Connor and Johnson were strained. Johnson found it necessary to reprimand O'Connor for occasional tardiness, and on May 27, 1997, O'Connor received the first negative evaluation of her career. Johnson prepared the evaluation, which reflected unsatisfactory performance in two areas: "develops and maintains an accurate record keeping system"; and "adheres to and enforces school policies." The negative evaluations in these areas reflected Johnson's concern over O'Connor's failure to provide guidance and mediation logs as requested and her failure to submit certain pre- and post-test results which needed to be sent to the Department of Drug-Free Schools pursuant to grant requirements imposed upon the School Board. The 1997-98 School Year On March 2, 1998, O'Connor was appropriately reprimanded for making unethical statements to a student. The reprimand grew out of an incident in which O'Connor, angered by the fact that parents had called Johnson to complain about O'Connor's alleged failure to provide services to a student, confronted the student and made highly inappropriate comments, including that the student was trying to get [O'Connor] fired. On March 11, 1998, Johnson conducted her second formal evaluation of O'Connor. This time, three areas of concern were noted: "management of counseling sessions"; "demonstrates self control"; and "adheres to and enforces school policies." On April 20, 1998, O'Connor was scheduled to conduct a student mediators' training session between nine and ten a.m. While conducting rounds that day, Johnson found O'Connor playing solitaire on the computer in her room. Asked whether she had conducted the mediators' group, O'Connor lied to her principal. O'Connor's conduct on April 20 appropriately resulted in a three-day suspension without pay beginning August 12, 1998. The 1998-1999 School Year Throughout the period of time during which O'Connor's performance reviews began to deteriorate and disciplinary actions increased, O'Connor was experiencing medical problems which ultimately led her to request and receive a medical leave of absence for the fall, 1998 semester. O'Connor maintains that her medical difficulties, which included brain surgery in 1995, have no bearing on her job performance. O'Connor contends her work was unaffected by her medical issues, and there was no evidence to the contrary. During O'Connor's medical leave, Lisa Bentolila (Bentolila) was hired as an interim guidance counselor. Bentolila discovered serious record-keeping violations committed by O'Connor. Correcting the problems consumed the time of Bentolila and at least two supervisors. In January 1999, O'Connor returned to Orchard View. She continued her traditional counseling schedule, which included classroom guidance, and individual and small group counseling sessions. The evidence suggests that Johnson was not enthusiastic about O'Connor's return, but the evidence is not sufficient to establish O'Connor's theory that by this time, if not earlier, Johnson had conceived a "conspiracy" to fire O'Connor, and had enlisted other School Board personnel to assist her in achieving that goal. On Johnson's request, a formal observation on March 8, 1999, was conducted by Dr. Jeanne Burdsall (Burdsall), who watched O'Connor conduct a small group counseling session and teach a classroom guidance lesson. Burdsall prepared a report which noted five areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; and "action development and planning skills." The report also set forth an improvement strategy as to each area of concern. Burdsall observed a disturbing pattern of obliviousness by O'Connor to student behaviors and comments which cried out to be decisively dealt with, but were instead ignored by O'Connor, or met with inappropriate responses. Misconduct was a serious problem during Burdsall's observation periods. The misbehavior was exacerbated, and perhaps provoked, by O'Connor's inability to effectively manage the sessions by starting on time with clear and succinct goals, rules and expectations; by dealing with negative behavior at its inception; and by communicating and reinforcing appropriate messages keyed to the theme of the lesson, and drawing the students out on pertinent issues and then taking advantage of the information they provided to make the lesson meaningful to them. O'Connor failed to address several instances of students' fighting with one another, as well as student comments which required attention, such as one little girl who yelled out, "I'm crazy enough to jump off a roof." O'Connor would abruptly move from one discussion to another, making it impossible for the children to receive effective guidance counseling. On April 14, 1999, Johnson conducted another observation. On that day, her concerns included: "poor concept development"; "excessive teacher talk"; "failure to provide children an opportunity to respond"; and "failure to use age appropriate vocabulary". The combined observations of Burdsall and Johnson were reduced to a formal evaluation scoresheet on April 15, 1999. Six areas of concern were noted: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; "action development and planning skills"; and "develops and maintains an accurate record keeping system." This unsatisfactory evaluation resulted in O'Connor being placed on school-site performance probation beginning on April 15, 1999 and ending June 2, 1999. Under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, on-site performance probation affords 30 calendar days to improve performance to a satisfactory level, as well as improvement strategies geared to her specific deficiencies. On May 6, 1999, Dr Ann Lynch (Lynch), a professor at Florida Atlantic University in the Counselor Education Department, who has provided workshops and some observations of counselors for the Palm Beach County School District, conducted, at the School Board's expense, an extended one-on-one workshop with O'Connor on counseling skills covering three areas of concern: "development of rapport"; "interpersonal skills"; and "problem clarification." O'Connor was cooperative and receptive to numerous suggestions provided by Lynch during the workshop. However, at the next observation, conducted by Johnson on May 20, 1999, the principal saw no evidence that O'Connor had profited from the workshop; the deficiencies observed in April still remained. A similar conclusion was also reached by Sandra Cunningham (Cunningham) of the Department of Student Services, who also observed O'Connor on May 20, 1999. Cunningham's specific areas of concern were: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; and "interpersonal skills." In particular, Cunningham noted that while O'Connor was able to establish initial rapport with the students, she could not maintain it throughout the session. She had a hard time pacing the lesson; was unable to engage the students; ignored some of the students; did not respond with consistency to children's misconduct; and would be sarcastic to the children, in violation of the most basic precepts of counseling. Cunningham provided O'Connor with improvement strategies, including reviewing a group counseling book, specifically looking at hints for leading groups, and proposing that O'Connor videotape herself and review it with a colleague. On June 2, 1999, Johnson again observed O'Connor in a regular classroom session. During this session, O'Connor's failure to appropriately manage student misbehavior resulted in an ineffective counseling session for all the children. Throughout the various observations and conferences which made up the 30-day school-site assistance plan, O'Connor professed understanding of the criticisms leveled against her and stated that she had already corrected the problems, as observers would see for themselves at subsequent observations. Yet, the same deficiencies consistently appeared. O'Connor had an additional opportunity to improve during the summer months. She was provided with a schedule of summer remediation activities and reference materials reasonably calculated to help her improve her performance. O'Connor claimed she was unable to avail herself of any of these materials and activities due to transportation issues. Yet, the uncontroverted evidence is that O'Connor failed to contact Johnson to ask for assistance in obtaining these resources despite Johnson's numerous offers to help. The 1999-2000 School Year On September 3, 1999, a meeting was held with O'Connor regarding the status of the school site-assistance plan. The discussion included information concerning future observations and what kind of assistance would be required and provided. On September 10, 1999, Cunningham observed O'Connor teaching a third and a fourth grade classroom guidance lesson. In addition she observed O'Connor counseling an individual student. In a memorandum to Johnson summarizing the observations, Cunningham's comments were consistently positive. She was able to conclude that O'Connor's performance was at all times effective. Johnson was encouraged about O'Connor's future. On September 16, 1999, Johnson again observed O'Connor. At that time, the progress Cunningham had observed was not evident to the principal. The following day, she prepared a report to the Superintendent in which she indicated six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills”; and "develops and maintains an accurate record keeping system.” Based on this report, O'Connor was placed on a so- called 90-day plan. In fulfillment of the requirements of Section 231.29, Florida Statutes, and under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, a 90-day plan affords time to improve performance to a satisfactory level, as well as improvement strategies geared to the employee's specific deficiencies. Employees subject to a 90-day plan have a right to request to be reassigned to another school. O'Connor timely exercised this right, but the request was denied by the School Board. In spite of, or perhaps because of, the difficulties O'Connor was having with her regular duties, Johnson elected to make a significant change in O'Connor's job duties with the adoption by the school of a so-called "intensive guidance model." The model, which was adopted without input from O'Connor, has a stated goal of assisting students to "learn appropriate social skills and conflict resolution skills in order to reduce their discipline concerns." Children assigned to the program had repeated issues regarding solving conflict, anger management, not being able to make friends or self-defeat. The program concept was to place these children together in a class to learn new skills in making friends, anger management, etc. There were approximately four to five children in such a class. Johnson assigned O'Connor to run this program four days a week during the fall of 1999. On the fifth day, she was to provide small-group or individual counseling. O'Connor viewed the program with great suspicion. She believed it was a glorified "in-school suspension" for the children, and, more fundamentally, an effort to place her in a situation in which she would fail. On October 14, 1999, Lynch observed O'Connor during a classroom guidance program of third and fourth grade classrooms. In the third grade classroom, the children were not consistently on task. It became obvious that O'Connor had prepared for the wrong session, mistakenly thinking she had been to that class the week before. In addition, O'Connor failed to establish rapport with the children at the expected level. Similar deficiencies were observed in the fourth grade class. O'Connor failed to advise students of the rules on confidentiality, together with their limitations, applicable to the class. This is a fundamental ethical duty of counselors, and Lynch had reviewed this requirement with O'Connor during her one-on-one workshop. Asked why she did not review these limitations with the children, O'Connor stated "she forgot to do it." Also on that day, Lynch observed O'Connor ask a teacher to see a child she had been counseling. The child came out to the hallway and stated several times that he wanted to go back in his classroom. After a couple of questions, O'Connor allowed the child to return to his classroom. No effective counseling took place during O'Connor's interaction with this child; moreover, it is generally inappropriate to conduct counseling sessions in a school hallway. On November 9, 1999, O'Connor received a written notice of verbal warning regarding her inappropriate and unprofessional language while on duty with students. Specifically, O'Connor contacted the school office over the public address system and stated in the presence of her students that she needed help or she was going to hit one of them; in addition, she used profanity in the presence of her students during that session. On November 19, 1999, Johnson observed Respondent in the classroom. During this observation, O'Connor failed to deliver a clear lesson, failed to give the students adequate opportunity to participate, and did not address resistance by the students. On December 13, 1999, Dr. Lynch again held a one-on- one group counseling session with O'Connor. Topics were geared to the now-familiar litany of complaints by observers and included: "working with the children"; "how to structure a group"; "what kinds of rules to establish"; "how to discuss confidentiality"; "what were the different skills needed"; "linking the children together"; "other techniques like role- playing"; and "age-appropriate activities and how to close a group." In addition, Lynch provided books and other materials on group counseling and showed O'Connor a video of what counselors actually do. As in the past, O'Connor was enthusiastic and receptive to the information. Cunningham returned to observe O'Connor on December 15 and 16, 1999. O'Connor's work on those days was in stark contrast to her largely good performance during Cunningham's observation on September 7, 1999. Cunningham's December observations included findings that O'Connor failed to clearly state the goals of the group; she used sarcasm and belittling remarks such as "That is why you are in this group;" she had trouble enforcing rules and monitoring behavior or in some instances, ignored behavior, resulting in many of the students being bored or acting out. On January 5 and 6, 2000, Burdsall observed O'Connor conducting a group counseling session and presenting a classroom guidance lesson. During these sessions, Burdsall did not observe effective guidance counseling. A particularly egregious lapse of professional judgment occurred when two first-grade boys came in to O'Connor's classroom. She turned to one of the boys and said "Your mother called, and she's getting a divorce." O'Connor said to the other boy,". . . your mother said that your family left Texas, and they left your father there 'cause he couldn't get along . . ." The boys looked at her, stunned. There is ample evidence that this was inappropriate and did not constitute competent guidance counseling. On January 19, 2000, Johnson again observed O'Connor and again saw failure to manage the classroom properly and to address misconduct. All observations were conducted by trained professionals in accordance with lawful standards, and were timely reviewed with O'Connor. O'Connor never disagreed with the substance of the evaluations and feedback she received. Rather, she would say such things as she was "correcting that behavior" or "Oh, yeah, wait 'til you see next time, I've already corrected that so when you come in, you're going to see this." However, there was never any consistent and significant improvement. By the time of the January 21, 2000, assistance review meeting, Johnson had appropriately concluded that O'Connor still exhibited significant deficiencies and would be recommended for termination. Notwithstanding Johnson's recommendation, on April 14, 2000, the parties entered into an agreement pursuant to which O'Connor released all legal claims against the School Board, and in exchange was provided an additional 90 days to remediate the noted deficiencies. During this second 90-day plan, O'Connor once again timely asserted her right to request a transfer to another school. Once again, the School Board refused the request, without explanation. For the second 90-day plan, O'Connor was given the opportunity to select some of the individuals who would observe her and provide assistance. The observation and assistance team for the second 90- day plan consisted of a diverse group of qualified professionals. Lynch remained and provided continuity. Johnson continued to participate until she was replaced as principal by Linda Nelson (Nelson); Susan Atherley, Ron Armstrong, and Dr. Gregory Brigman (Brigman) were added to the team and the new principal also had the opportunity to conduct her own observations. At the School Board's expense, Brigman provided a one day, one-on-one "supportive training" workshop again geared to the six deficiencies for which termination had initially been recommended. The 2000-2001 School Year On August 22, 2000, Brigman conducted the first observation of the new school year and again found that O'Connor failed to adopt the strategies provided to her during training, and was essentially operating at the same level she had since 1997. O'Connor's difficulties in managing her workload also continued into the new school year. On September 13, 2000, Nelson reprimanded O'Connor for failing to have her small groups in place. She was directed to prepare a list of the students needing small group services and to have all groups functioning immediately. In view of the growing consensus that O'Connor was unable to provide effective counseling, it is a mystery why the principal would insist that ineffective or inappropriate services be foisted upon the students most in need of competent professional help. However, this line of inquiry was not pursued by O'Connor in support of her theory that the School Board wanted to get rid of her either because of Johnson's personal animus, or because her medical needs, the substantial expense of which was at least partially borne by the School Board, caused her to be regarded as a liability. On September 28, 2000, O'Connor was again criticized for her record-keeping with a notice that she had failed to update certain legally mandated records known as "504 files." On September 28, 2000, Nelson conducted a formal annual personnel evaluation of O'Connor. Listing the now familiar six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills"; and "develops and maintains an accurate record keeping system," Nelson recommended that O'Connor's employment be terminated. Acting in accordance with Nelson's recommendation, the School Board voted on October 25, 2000, to suspend O'Connor without pay and to terminate her employment effective November 9, 2000.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board issue a final order terminating Leslie O'Connor's employment for unsatisfactory performance as set forth in the Administrative Complaint dated November 7, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 18th day of May, 2001. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Glen J. Torcivia, Esquire 1800 Australian Avenue, South Suite 205 West Palm Beach, Florida 33409 Dr. H. Benjamin Marlin, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard Room C316 West Palm Beach, Florida 33406-5869 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes (2011), and Florida Administrative Code Rule 6A- 10.081(3)(a) and (e), with respect to her treatment of students in her sixth-grade class and if so, what penalty should be imposed.
Findings Of Fact Based upon the demeanor of the witnesses, the documentary evidence presented, and the record as a whole, the following facts are found: Respondent, Donna Faber-Soukey, is a licensed educator in the State of Florida, who holds Florida Educator Certificate 840010, covering the areas of elementary education and prekindergarten primary education, valid through June 30, 2015. Respondent has also obtained certification in the areas of K-12 health and K-12 physical education in the State of New York, and has a master’s degree in health administration. Respondent began teaching at Old Kings Elementary School (Old Kings) in the Flagler County School District in approximately 2004. Through the spring of 2010, she taught kindergarten and/or first grade, and received highly effective, exemplary, or very effective (depending on the rating tool) evaluation ratings each school year. In August 2010, Respondent’s husband suffered a significant health emergency that required her absence from school. As a result of events that are not the subject of these proceedings, Respondent did not teach at Old Kings for the 2010- 2011 school year, but returned in the fall of 2011. During this time, there were many issues in Respondent’s life that were causing extra stress for her, including the significant illnesses of several close family members, as well as her own diagnosis for depression. Nancy Willis was the new principal at Old Kings in the fall of 2011. While it was her first year at Old Kings, she had many years of experience as a principal. At the beginning of the 2011-2012 school year, she needed a sixth-grade inclusion teacher and understood that Respondent had taught upper grades before. She needed a veteran teacher, so placed Respondent in the sixth-grade inclusion classroom. Respondent was not comfortable with this placement and made her concerns known to Ms. Willis. Despite her request to be assigned to a first-grade or kindergarten class, she remained assigned to the sixth-grade class. Respondent found the class to be difficult to control, and admitted at hearing that she was “not on her game.” As noted above, there were other events taking place in Respondent’s life that effected Respondent professionally. However, any reference to other issues that were present is supplied only for context or for mitigation purposes. This Recommended Order deals only with those factual issues specifically alleged in the Amended Administrative Complaint. At the beginning of the school year, Respondent outlined the classroom rules and procedures that she expected the children to follow in her classroom. Students admitted at hearing that those rules were reasonable. One of the established rules was that when students came into the room, they were supposed to get the materials they would need for class out of their backpacks and were to place their backpacks in cubbies in the back of the room. This rule was important to Respondent, because she considered it to be essential for maintaining a safe environment in the classroom. However, it was common for students in the class to ignore this rule, and leave their backpacks on the floor next to their desks. Respondent would remind students of the need to place the backpacks in their assigned cubbies, but to no avail. At some point, Respondent started taking the backpacks found on the floor and placing them outside the classroom. While she testified that she simply put them outside the door, several students testified credibly that she would sometimes toss the backpacks, without regard for what may be inside them. Specifically, Respondent tossed both M.B. and J.A.’s backpacks outside of the classroom. There was testimony that J.A.’s glasses were inside his backpack and were broken as a result of the backpack being tossed, but J.A. did not testify. While other students saw Respondent toss the backpack, the testimony regarding the broken glasses was based upon J.A. telling other students that his glasses were broken, as opposed to the students who testified seeing the broken glasses themselves. Moreover, the Amended Administrative Complaint makes no mention of Respondent being responsible for breaking J.A.’s glasses. It must be noted, however, that the term “toss” conjures up different visuals for different people. According to Merriam Webster, the term means to throw with a quick, light motion; to move or lift something quickly or suddenly; or to move back and forth or up and down. www.merriam- webster.com/dictionary/toss. There is nothing in the definition that would attach a violent intent to the action, and it is possible for a person to “toss” a backpack with no intention of damaging the backpack or its contents. It is found that Respondent tossed the backpacks outside with no intention of damaging them or their contents, but did so in a careless fashion and did not take any measures to insure that nothing was in fact damaged when she did so. Some students testified that having students’ backpacks handled this way made them feel Respondent had no respect for their personal belongings. Their testimony in this regard is accepted. The students in Respondent’s classes were a challenging group. Some who testified admitted at hearing that they were not the best behaved. For example, one admitted that he enjoyed being referred to as the class clown, and another admitted that she had an “attitude problem.” There were also indications of significant bullying and conflict between students, and referrals to the office and refocus forms were issued frequently. Some students did not respect Respondent as a sixth-grade teacher and acted accordingly. Respondent had difficulty controlling the students in her class, and was exceedingly frustrated by their behavior. Simply put, teaching in a sixth-grade inclusion class was far different from the kindergarten/first-grade environment to which Respondent was accustomed. On at least two occasions, her frustration was such that she authored and provided documents for students to sign, which contained information about the behavior of other students in her classroom. For example, on December 14, 2011, there was an incident in her classroom involving student Z.M. The details related to the incident are not important, but the incident resulted in a referral for Z.M. Respondent wrote her account of the incident, comprising two pages. She asked two students who were present at the time of the incident to sign the second page of the document as witnesses. Respondent admitted authoring the document and asking the two students, H.W. and L.L., to sign it. She explained that she prepared the narrative for the benefit of the administrator who would receive the referral, and asked for the students to sign it so that the administrator would know which students had witnessed the incident. Respondent testified that she only showed the students the second page, which had a little more than one paragraph of text and a place for their signatures. H.W. did not testify, and L.L. recognized her signature on the narrative but did not recall signing it. Respondent’s testimony that she only showed the students the second page is accepted. However, it makes little difference. The second page stated: [s]uspension, today’s events and his current failing academic standing as a retention in 6th grade. I have tried to keep this child in my classroom since he is a repeater and will be going to seventh grade next year. He could easily have been written up and referred weekly. I have tried to develop a relationship with him to support and encourage him. His behavior is however, a detriment to the class as a whole. At this point, he will no longer be extended any leniency for inappropriate behavior. The line for the first signature is less than one inch from the typed text. It does not matter whether the two students signing the document were shown the first page: there is significant derogatory information about both Z.M.’s behaviors and academic issues on the page that the two students signed. The fact that page two of the document does not mention Z.M. by name is also irrelevant, given that the students were asked to sign the narrative soon after the incident where Z.M. was clearly a participant. On or about December 19, 2011, Respondent prepared a second narrative regarding problematic behaviors in her classroom. The narrative also stated that the students signing it have never witnessed Ms. Soukey use physical force to get the boys in her class to behave. She asked several students in the classroom to sign the document, and admits doing so. This narrative is signed by students R.R., S.R., S.P., N.S., C.G., G.D., and B.B. Only one of these students testified at hearing, and that student’s testimony does not reference the narrative. Respondent admitted preparing the narrative, stating that upon the advice of counsel, she was documenting those things that were happening in her classroom because she felt that she was being set up for a constructive termination. This narrative does not reference Z.M. Preparing the documents for her personal use is one thing. Having students sign the documents regarding the behavior of their classmates is another matter altogether. It was inappropriate to ask students in the classroom to sign a document detailing the misbehavior of other students in their class. Respondent must have been aware that a student had accused her of using physical force against him, in light of her including a denial of such behavior in the December 19 narrative. However, the evidence presented at hearing did not rise to the level of clear and convincing evidence that she, in fact, inappropriately grabbed, pushed or hit students in her class. There were students who testified that Respondent pushed them in order to get them moving to their seats. Some students described Respondent’s actions as placing her hands on a student’s shoulders to propel them forward toward the student’s seat. It is found that she did in fact place her hands on students to nudge them along to their seats. Beyond that, however, the students’ testimony was vague at best. The students often did not indicate who was pushed, pulled, or hit, and little or no date or time-frame was identified.3/ On the other hand, several students testified that they never saw Respondent punch, slap, or push anyone, or pull their hair. Z.M., one of the most credible students who testified, admitted his role in a fight that occurred in the classroom, and admitted that he enjoyed being considered the class clown. However, he did not recall Respondent ever punching, slapping, or grabbing a student by the hair. When asked if she ever grabbed anyone by the shirt and pulled them, he answered, “not really in an aggressive way, no.” One student, K.J., testified that Respondent deliberately stepped on his toes in class. K.J. is a tall student who could not sit comfortably at his desk with his feet under the desk, because to do so caused his knees to hit the underside of the desk. As a result, he often had his feet in the aisle in front of him. K.J. sat on the front row, and Respondent told him repeatedly to keep his feet out of the aisle. K.J. testified that Respondent stepped on his toes at least twice. He testified that he would ask her to get off of his feet and she would not respond, acting like she did not hear him, and then would ask him to put his feet under the desk. He was not aware that custodians had come to the classroom to alter his desk so that he could sit more comfortably. K.J. admitted it was possible that Respondent asked him to keep his feet under his desk for safety reasons, but believed that she stepped on his toes deliberately. However, on the totality of the record presented, while the evidence is compelling that Respondent did in fact step on K.J.’s toes, the evidence leaves more than one equally plausible alternative in terms of Respondent’s intentions. She could have deliberately stepped on K.J.’s toes to make a point to him about keeping them under his desk, or she could have stepped on them accidentally because they were admittedly in an aisle that should have been clear. Testimony was fairly uniform that the classroom was noisy. She could have heard his request that she move off of his toes and ignored it, or she could have not heard it. Given that either interpretation is plausible, the evidence is not clear and convincing that stepping on Respondent’s toes was intentional. There was no dispute that the classes Respondent taught that year were unruly and that she was frustrated with the students in her care. There was a lot of yelling, and little effective discipline. There was discussion among the students about the desire of some them to have a different teacher, and at some point in February 2012, students in Respondent’s classes were asked to go to the office and make statements about things they observed in the classroom. Ms. Willis testified that the students were asked to write a statement if there was anything that had happened in Respondent’s class. The statements were far from uniform. It is clear from reading some of the statements that the students are reacting to an inquiry concerning inappropriate touching, and responding that yes, she did touch students, or no, she did not. Whether the question that framed the responses came from Ms. Willis or from the students themselves is not clear: however, there was testimony that the students circulated a petition to try to get her fired, and that they discussed among themselves what they were going to write in their statements. Even with such discussion, there is not enough concrete detail about the alleged events to deem them credible.4/ In addition, there were several adults who came in and out of Respondent’s classroom and spent significant time there during this period. Among those adults were Ms. Christensen, Ms. King, Ms. Hammack, and Ms. Bentz. All who testified talked about the noisy, unruly atmosphere of the classroom, and there was agreement that Respondent appeared frustrated. However, none testified to ever seeing her inappropriately touch a student. Ms. Christensen did not testify. She was a paraprofessional in Respondent’s classroom. There are written statements by Ms. Christensen about various matters occurring in the classroom, in which she states that she had not witnessed Ms. Soukey physically handle a student by hitting, slapping, or punching them.5/ Ms. Hammack was also a paraprofessional who worked in Respondent’s classroom, generally every day. She identified her statement that she had never seen Respondent use physical force to force a student to comply, and testified credibly that she never saw Respondent punch or kick a student, or grab them by the hair, and that she would have seen it if it had occurred. Similarly, Ms. King was a special education teacher who worked in Respondent’s classroom approximately twice a week, in the mornings. She testified credibly that while there was not much control in the classroom, she never saw Respondent be physically inappropriate with a student. Finally, Jan Bentz was a veteran teacher who worked as a substitute at Old Kings. In January 2012, she was asked to work in Respondent’s classroom to provide classroom management support while Respondent taught. When Respondent was eventually removed from the classroom, Ms. Bentz took her place. She, like the other adults who spent time in Respondent’s classroom, testified that she never saw Respondent use excessive force with a student. More importantly, Ms. Bentz testified that the students told her about things that had happened in the classroom previously that she did not in fact witness. She gave the student’s stories little credence because she considered it to be hearsay. When asked on cross-examination about what she was told, she stated that what the students told her was mostly about thrown backpacks: “I don’t know that any actual hand-on-kid type thing happened, and I don’t recall being told about anything like that.” Surely, reporting that a teacher used excessive use of force would have been as important, if not more so, than relating instances where backpacks were tossed outside. Respondent readily admitted that she was not well- suited to teach in a sixth-grade inclusion class, and that because of the many issues going on in her life, she was not doing her best work. However, she also testified, credibly, that while she was exhausted, frustrated, and sometimes angry while working with these students, she did not touch them inappropriately. While it is found that she did guide students to their seats by placing her hands on their shoulders, and sometimes applied pressure to get them to sit in their seats; and that she stepped on K.J.’s toes, it is found that she did not take either action with the intention of harming any child in her care. Respondent clearly did not have control of the sixth- grade classroom and it was a mistake to place her there, especially given the concerns she had expressed when given the assignment. The many serious complications in her personal life, including the serious illness of her husband, mother, and father, and her own debilitating depression, certainly affected her ability to perform her job as she wanted to. Her actions in creating narratives and having them signed by students was misguided and meant as a way of documenting things happening in her classroom. However, it was inappropriate to involve the students in her classroom in her attempt to create any kind of record, whether personal or professional.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated section 1012.795(1)(j) and rule 6A-10.081(3)(a) and (e). It is further recommended Respondent be reprimanded; that she be placed on probation for a period of one year; and that as part of her probation, she be required to attend courses as determined by the Commission, in the areas of ethics and stress management. DONE AND ENTERED this 15th day of January, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 15th day of January, 2016.
The Issue The issue is whether Juan Jiminez should be assigned to J.R.E. Lee Opportunity School-South?
Findings Of Fact Juan is an 8th grade student at the Citrus Grove Middle School in Dade County, Florida. According to the school records, Juan has been involved in a number of instances of misconduct. On January 12, 1988, he received a referral to the school office for generally disruptive conduct, defiance of school authority, and excessive tardiness. On January 14, 1988, he received another referral for general disruptive conduct, and received in-school suspension. On March 9, 1988, he was involved in a fight, was suspended from the school grounds, and a letter concerning the matter was written to his parents. After he returned to school, on March 21, 1988, he again received a referral for disruptive behavior, followed by another suspension on April 18, 1988, for generally disruptive conduct and defiance of school authority, for which he received an in-school suspension. On May 2, 1988, he received a referral for cutting classes, which resulted in a conference with his parents. He received another referral on May 6, 1988, for general disruptive conduct and excessive tardiness, for which he received an in-school suspension. As the result of his poor performance during the 1987-88 school year, at the beginning of the 1988-9 school year in September of 1988, Juan was selected for participation in a drop-out prevention program, known in the Dade County schools as the Student At Risk Program (SARP). As a result of, the referral, a multi-disciplinary child study team considered his record. It was recommended to Juan's mother that Juan be placed in an opportunity school, but she resisted the suggestion, and the school's administrators agreed to continue the placement at Citrus Grove Middle School while Juan participated in the SARP program. In that program, Juan would be in small classes (usually 18-20) students in order to provide him additional attention. The school and the parents have been working, to some extent, at cross purposes. The parents regard Juan as a good child because he was not a gang member. The school was not concerned because they thought Juan was a member of a gang, but because of his disinterest in his subjects, and his cutting classes, being tardy, or acting out in class which inhibited not only his learning, but that of other students in the class. Even in the SARP program, Juan's situation did not improve a great deal. On November 15, 1988, he received another disciplinary referral for general disruptive conduct, for which he received a reprimand. On November 23, 1988 he received another referral for fighting, and he was suspended from the school grounds. On January 25, 1989, he received a referral to the administration from his reading teacher in the drop-out prevention program, Ms. Jane Liberman. Juan and two friends had come in late, been disruptive in class, and disturbed other students. He was reprimanded and given detention. Juan's excessive absences resulted in a home visit by W. Chester on March 8, 1989. The school administrators hoped for behavioral improvement following the visit, but Juan's behavior did not improve. Juan received at least three more disciplinary referrals that year for disruptive conduct, defiance of school authority, and for cutting class. Juan's disruptive behavior continued in the 1989-90 school year. On September 21, 1989, he received a disciplinary referral from Ms. Sonia Alcazar, his math teacher, for arriving late, being disruptive in class, using foul language, and making fun of the teacher. September 21, 1989, was only his fourth day in math class. He had come to school on September 5, 1989, but then had cut class until September 19, 1989. He attended on the 19th, 20th, and 21st, when the disciplinary referral occurred. Juan needs the increased structure and discipline that is available for students disinterested in education and which is offered at an opportunity school. That program should assist him academically. His current pattern of conduct is a substantial disruption which inhibits other students in his classes at Citrus Grove Middle School from taking advantage of instruction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the assignment of Juan Jiminez to the J.R.E. Lee Opportunity School-South be upheld. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March, 1990. WILLIAM R. DORSEY, JR. 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 23rd day of March, 1990. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 Gladys Jiminez 1512 Northwest 25th Avenue Miami, Florida 33125 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues to be determined are whether Virginia Young (Respondent or Ms. Young) violated: section 1012.795(1)(g) Florida Statutes (being found guilty of personal conduct, which seriously reduces effectiveness as an employee of the school board); section 1012.795(1)(j) Florida Statutes (violating the Principles of Professional Conduct for the Education Profession as prescribed by the State Board of Education rules); Florida Administrative Code Rule 6A-10.081(2)(a)1. (failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety); and Florida Administrative Code Rule 6A- 10.081(3)(e) (intentionally exposing a student to unnecessary embarrassment or disparagement)1/; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is the state agent responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Respondent holds Florida Educator Certificate 624273 in the areas of: Educational Media Specialist; English; Elementary Education; English for Speakers of Other Languages; Guidance and Counseling; Physical Education; Social Science; Business Education; Family and Consumer Science; and Exceptional Student Education. Respondent’s certification is valid through June 30, 2017. Respondent is also certified in Middle Grades Integrated Curriculum, which is valid through June 30, 2017. Respondent taught in the Polk County School District (PCSD) for eight years and retired two years ago. At all times material to these allegations, Respondent was employed as a social studies teacher at Traviss or as an elementary combination teacher at PVS in the PCSD. BATHROOM HALL PASS 2013-2014 School Year For the 2013-2014 school year, Respondent taught tenth- grade English and World History at Traviss. Her classroom was a portable building in the school’s parking lot. Although there was a bathroom in the portable, it had been disassembled and was unusable. When a student needed to use the bathroom, the student obtained a bathroom pass to leave the portable and go to another building where there was a functioning bathroom. Respondent’s policy for any student (pregnant or not) to obtain a bathroom pass was simple: the student had to sign in, find their assigned seat, write down the “SMART Board question” of the day, and go to the classroom aide (or paraprofessional) to obtain a bathroom/hall pass. Each student had an agenda book, and the aide would mark the time of the bathroom pass. If the student was gone too long, the aide would try to find them. Respondent never denied a student’s request for a bathroom pass although she had, on occasion, asked a student if they could wait “five minutes” because Respondent was starting a clip and was concerned she could not replay the clip. Respondent never signed a bathroom pass, but had her paraprofessional or classroom aide handle the passes. There was no evidence adduced by any former student, pregnant or not, who was denied a bathroom pass. E.G. testified there were “students” in her class who were pregnant and, with the assistance of counsel, she confirmed one student’s identity, A.G. However, A.G. did not testify that she was pregnant and A.G. did not testify that she was denied the opportunity to use the restroom. E.G. heard Respondent deny “those students’” request to go to the restroom on a “few occasions.” E.G.’s testimony was unpersuasive. Petitioner’s Exhibit 29 is a verbal warning with a written confirmation regarding Respondent’s alleged denial of pregnant students’ rights to use the restroom when asked. The undersigned acknowledges this warning; however, the non-hearsay testimony at hearing failed to support such a finding. INAPPROPRIATE LANGUAGE 2013-2014 School Year As part of the English curriculum, Respondent taught literature. Each year she used the novel To Kill a Mockingbird, by Harper Lee, which was on the approved reading list in her tenth-grade, English 2 class. In that novel, the “n” word is used once or twice. Respondent does not use the “n” word. E.G. and Ms. Ibarra were questioned about inappropriate language used during their class. Ms. Ibarra thought she was in Respondent’s eleventh or twelfth grade English class, yet she did not recall if the class was discussing a book or a movie when she claimed to have heard the “n” word used. E.G. knew Respondent was her English teacher, but could not recall if the class had been discussing the book when the “n” word may have been used. Both students’ testimony was vague and unpersuasive. TREE NUT ISSUE 2015-2016 School Year Respondent moved to PVS for the 2014-2015 and 2015-2016 school years. At PVS she taught grades kindergarten through fifth grade. Respondent had multiple preparations for the different classes she taught at PVS. Elementary students are young, and in addition to the virtual teaching time, each grade level is brought into the “brick and mortar” school once a month for a two-hour “face-to- face” class. This is to ensure that each PVS student is progressing appropriately and to ensure that each student is not being unduly assisted by their “learning coach,” an adult or other person. At PVS, teachers were expected to contact each student’s parent(s) prior to the school year starting. This “welcome call” was to introduce themselves, provide a course overview, and to chat about the individual student who would be in Respondent’s class. During the 2015-2016 school year, Respondent taught PVS’s first-grade virtual class in addition to other grades. S.D. was in Respondent’s first-grade class. S.D. is now an eight-year-old student residing and attending school out of Florida. While residing in Florida, S.D. was home schooled for the kindergarten school year. S.D. attended PVS as a first-grade student during the 2015-2016 school year. The following year S.D. attended PVS for second grade. S.D. has an allergy to tree nuts. Prior to the start of S.D.’s first-grade year, Respondent called and spoke with S.D.’s mother. During that telephone call, Respondent explained that she incorporated food in her classroom. At this mention, S.D.’s mother first raised S.D.’s severe tree nut and sesame seed allergy. S.D.’s mother advised Respondent that S.D. would probably stay home if the parents were told walnuts were going to be used in the face-to- face classroom exercise. S.D.’s mother offered to bring in other equivalent materials when food was to be used in the classroom. In September 2015, at the first face-to-face classroom meeting, S.D.’s parents spoke with Respondent, and reaffirmed S.D.’s tree nut allergy. S.D.’s parents renewed their offer to supply equivalent things for S.D. to use when food was to be used in the classroom curriculum. On October 6, 2015, Respondent entered school counselor Balladin’s office and noticed an EpiPen. In her discussion with Ms. Balladin, when told the EpiPen was S.D.’s, Respondent said the EpiPen could not be S.D.’s because it was an adult, expired EpiPen. Ms. Balladin directed Respondent to telephone S.D.’s mother about the EpiPen left in Ms. Balladin’s office. Respondent confirmed she spoke with S.D.’s mother as directed. Respondent recorded the conversation in the PVS computer system as “[Respondent] called LC to inform that they [S.D.’s parents] had left [S.D.’s] peanut allergy pen in Ms. Balladin’s office. Mom said she had a spare and would pick it up on Friday morning.” On December 8, 2015, S.D. and one other student were the only two students to participate in the face-to-face first- grade class at PVS. Towards the end of the class, Respondent provided each student with a “Christmas tree brownie still in the wrapper on the plate.” Respondent told the students not to eat the brownie until they checked with their respective mothers as it was close to lunch time. Respondent walked the two students to the front office area of the school. When S.D.’s mother saw S.D., she noticed that S.D. had a partially eaten brownie. S.D.’s mother noticed there was no wrapper to the brownie and she asked Respondent about it. S.D.’s mother wanted to know the brand to purchase it. Respondent admitted that she read the label of ingredients on the box before she purchased the brownie treats, and she did not think it would harm S.D. S.D.’s family left PVS to drive home, which was an hour or more away from PVS. Shortly after the family left PVS, S.D. became ill, frequently vomiting into a bucket on the way home. S.D.’s parents reported the illness to PVS. The brownie given to S.D. came from a box labeled “Christmas Tree Brownies [by] Little Debbie.” The brownies were Christmas tree shaped with green icing and small edible “candy toppers” on top. The box contained a list of more than 15 ingredients and also contained the following: ALLERGY INFORMATION: CONTAINS WHEAT, SOY, MILK, EGG. MAY ALSO BE PRESENT IN THIS PRODUCT: PEANUTS, TREE NUTS. Respondent thought the brownie was safe for S.D. It was not. Respondent initially testified that she did not receive any training from the school about how to deal with students’ allergies, but then immediately claimed she obtained allergy training three months after this December 8 event. The source of that training was unclear. The evidence regarding the tree nut allergy issue was established through clear and convincing evidence: Respondent provided a food product that contained tree nuts to S.D., a student who was known to have a tree nut allergy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of Counts 2 and 3 in the Amended Administrative Complaint, suspending her educator certificate for 18 months, placing her on probation for two years with conditions to be determined by the Education Practices Commission, and dismissing Counts 1 and 4. DONE AND ENTERED this 20th day of February, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 20th day of February, 2018.
Findings Of Fact The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M. After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly. Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension. THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1985. COPIES FURNISHED: J. David Bolder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 33512 Perry Gall Gruman, Esquire 202 Cardy Street Tampa, Florida 33606
The Issue Issues for consideration in this case include whether there exists an adequate factual basis for Petitioner Duval County School Board (the Board) to terminate Respondent's employment as a principal and teacher for those violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida, 1941, as amended (the Act), which are alleged by the Board's Notice of Dismissal; and whether there exists an adequate factual basis for the Education Practices Commission (EPC) to revoke or suspend Respondent's teaching certificate or otherwise discipline Respondent for violations set forth in the Amended Administrative Complaint.
Findings Of Fact Respondent holds Florida Educator's Certificate number 263958, covering the areas of physical education and school principal (all levels). The certificate is valid through June 30, 2001. Respondent is a certified teacher who, on the basis of his long-term employment by the Board, has tenure as a result of the length of his service in a satisfactory capacity. Respondent was employed as the Principal at Sandalwood High School by the Board from 1988 through the spring semester of 1994. Commencing in the summer of 1994 and continuing through October 20, 1995, Respondent was employed by the Board as Principal at Forrest High School. Respondent has been removed from his position as Principal of Forrest High School, but continues as a salaried employee of the Board pending resolution of the charges which form the basis for this proceeding. During Respondent's tenure as Principal at Forrest High School, he supervised teachers Julie T. Lee, Kimberly L. Smith, Pamela W. Bean, and Karen E. Jones. Julie T. Lee, Teacher During the 1994-1995 school year, Lee was both the Student Activities Director and the Cheerleading Coach for Forrest High School. In addition, she taught two classes on the subject of ecology. As Student Activities Director, she had an office centrally located, apart from the classroom she used. In November of 1994, Respondent called Lee into his office. He shut and locked the door. He asked Lee to sit down in a chair that Lee noted had been turned and was out of place. She sat down. Respondent then went behind her and proceeded to rub her shoulders. Lee was uncomfortable and did not welcome or encourage Respondent's actions. On February 6, 1995, Respondent again called Lee into his office and shut and locked the door. After a conversation with Lee, Respondent approached Lee and said he need a hug. He proceeded to hug Lee without her consent. In May of 1995, while Lee was using the telephone in the Principal's office for a long distance call, Respondent returned unexpectedly, shut and locked the door, and sat down in a chair behind Lee. He proceeded to grab Lee about her hips and pull her down to sit in his lap. He told her if she would take care of him, she could have anything she wanted at the school. Lee got up, said she would take care of student activities and left. About a week later, Respondent encountered Lee outside her office and asked her if she had thought about his offer. Lee acted as if she didn't know what Respondent was talking about. Later, before the end of the school year, Respondent informed Lee that he was moving her office. The new location for Lee's job as Student Activities Director was a weight room near the school gym. The room was bright red, smelled of sweat, and was located in an out of the way place for purposes of student activities. Lee commenced using the new location prior to the end of the school year for a period of approximately four weeks. At the end of the four week period, Respondent came to Lee's office and told her that she had one hour in which to move. The new office was a former special education classroom at the other extreme end of the building, away from a central location, flooded with water and dirty. A few days thereafter, Respondent also told Lee that she would have to teach three out-of-field social studies classes in addition to the Cheerleading Coach and Student Activities Director jobs. Lee felt she could not do all three jobs under any circumstances. Further, she felt that teaching a majority of out- of-field classes would subject her to being surplussed the following year unless she became certified in those areas in the interim. Lee did not accept the justification that the additional class assignment was purely the result of budgetary constraints and felt that she was being subjected to retaliation for not meeting Respondent's sexual overtures. She talked with Mark Scott, a music teacher, about the matter on September 18, 1995. Scott had heard about difficulties that another teacher was having with Respondent. Scott revealed his discussion with the other teacher, Kimberly Smith, to Lee. Lee subsequently contacted Smith. Kimberly Smith, Teacher Sometime near the middle of the 1994-1995 school year, Respondent walked up behind Smith in the school library and massaged her shoulders. Smith did not welcome or invite Respondent's conduct. On or about June 14, 1995, Respondent asked Smith into his office and locked the door. After a conversation relating to her resignation as basketball coach, Respondent asked Smith for a hug. As Smith attempted to pull back from the hug, Respondent pulled Smith against his body and with his face on her neck told her that she smelled good. Respondent then told Smith to get out of there before he forgot who he was. The next school year, on September 18, 1995, Respondent approached Smith in the hallway near the library and after some conversation grabbed her arm, pulled her to him and requested that Smith come to his office and give him "some tender loving care." If she complied, Respondent promised to "see what I can do for you." Smith told Jon Nerf, an English teacher at Forrest High School, about the September 18, 1995 incident shortly after it occurred. Nerf's testimony establishes that Smith was emotionally upset by Respondent's action. Pamela W. Bean, Teacher In April of 1995, Respondent asked Pamela W. Bean, a teacher, to come into his office when she asked to talk with him. He closed the door. After she was seated and talking, Respondent told Bean that she "looked stressed." He stepped behind her and began to rub her shoulders. When Bean got up, Respondent told her that he "needed a hug." Bean, nonplussed by the unsolicited and unwelcome advance of Respondent, complied with a brief hug and left. The next day, a similar incident with Bean occurred in Respondent's office. Again, Respondent's back rub and hug overtures were unsolicited by Bean who complied again with Respondent's request for a hug. Karen Jones, Teacher In the spring of 1995, Karen E. Jones, another teacher, asked to speak with Respondent. He asked her into his office and closed the door. Respondent then told Jones "I need a hug" and proceeded to hug her. After hugging Jones, Respondent told her that "we need to do that more often." In the first half of September of 1995, Respondent asked Jones to come into a room near his office called "Trawick's Trough." After entering the room, he again asked for a hug and hugged Jones. Jones did not solicit or welcome the hug. Jones later confided prior to initiation of any formal charges against Respondent in her long-term friend, Susan Ingraham, who is a school board employee, regarding Respondent's overtures. Julie A. Gray, Teacher Julie A. Gray was a first year teacher of Spanish and the yearbook sponsor at Sandalwood High School during the 1991-1992 school year when Respondent was her supervisor and the Principal at that school. Respondent approached Gray in the hallway during the early part of that school term. Respondent told Grey that he liked to get hugs from his faculty members. Gray patted him lightly on the shoulders. Respondent then said,"oh, I didn't mean here. I meant in my office." Later in the school term, Gray went to report to Respondent that all the yearbooks had been sold. Gray found Respondent near the bookkeeper's office and started talking to him. He leaned over and tried to kiss her on the mouth. When she backed away, Respondent tried to hug Gray. She was embarrassed by the incident and informed Peggy Clark, a professional support staffer for new teachers, that Respondent had made remarks of a sexual nature to Gray. Gray's roommate was also informed by Gray regarding Respondent's attempt to kiss Gray. The Teachers As a result of Lee's conversation with Mark Scott, Lee subsequently compared experiences with Smith. Bean, assigned by Respondent to sit in the student activity office during one of Lee's social studies classes also had a discussion with Lee. The three, Lee, Smith and Bean, decided to lodge complaints with the school administration and did so in early October of 1995. Lee felt she had not choice if she did not want to lose her job. Smith would have reported Respondent's behavior toward her earlier, but felt that she was alone and could not succeed. Bean, likewise, had felt she was alone and would not be believed over the word of a principal. Jones learned about the other teachers and their grievances a couple of weeks following Respondent's last advance toward her and decided to join the others in making a complaint. Gray had considered bringing sexual harassment charges against Respondent in the spring of 1992, but felt it would simply be her word against Respondent. She decided to come forward with her allegations in response to requests by the Board's representative who had learned of Respondent's behavior in 1992 toward Gray. Based on their candor and demeanor while testifying, as well as the consistency of their testimony with earlier statements made by them to persons with whom they spoke following various incidents, the testimony of all five teachers, Lee, Smith, Bean, Jones, and Gray, is fully credited and establishes that Respondent's conduct toward them was intimidating and adversely affected their abilities and enthusiasm for teaching in such situations. Stefani Powell, Contract Manager Stefani Powell was a district supervisor for ARAMARK, the operator of the Board's food service in the school system during the 1994-95 school year. In her capacity, Powell managed 14 school cafeterias, including the one at Forrest High School. Respondent, as the Principal at Forrest, was a client of ARAMARK's, oversaw what happened in the cafeteria, and approved certain aspects of the cafeteria's functioning. In meetings with Powell in his office, Respondent began closing and later locking the doors, commencing in October of 1994. He initiated hugs with Powell at the end of these meetings. On approximately eight to 10 occasions, the last in January or February of 1995, Respondent hugged Powell. Initially, the hugs were light, but progressed and grew stronger with Respondent eventually placing his hand on Powell's back and pushing inward. On the last occasion, Respondent kissed Powell on the cheek. None of these attentions by Respondent was solicited by Powell and were unwelcome. Since Respondent's advances made Powell uncomfortable, she eventually confided in her supervisor who advised that Powell always take someone with her or ensure the presence of a third person at conferences with Respondent. Powell followed this practice with regard to future meetings with Respondent. After reading in the newspaper of the allegations of the teachers at Forrest High School, Powell told her mother, a school board employee, of her experiences with Respondent. As a result, Powell was put in touch with the Board's investigator and her complaint against Respondent followed. Due to her candor and demeanor at the final hearing, as well as consistency of her testimony with statements made by her to others, Powell's testimony is totally credited. Dishonesty In The Course Of Employment Carol Abrahams was a clerk one at Forrest High School during the 1994-1995 school year. She shared a social relationship with Respondent and his wife. In April of 1995, Respondent made Abrahams the Principal's secretary. Abrahams was a clerk one. A clerk three is the customary rating and higher paying position normally assigned duties as a Principal's secretary. Respondent sought to augment Abrahams' pay since she was paid less than a Principal's secretary would normally receive. Respondent directed the use of Community School funds to pay Abrahams for work after the normal school day hours. Commencing with the beginning of the 1995-1996 school year, Abrahams was paid $9.50 per hour for the hours of 3:30 p.m. to 6:30 p.m. each day that Community School functioned, Monday-Thursday, through September of 1995. Abrahams did not work during all the hours for which she claimed payment for the period of August 23, 1995 through September 28, 1995. Specifically, Abrahams went to an aerobics class conducted at Forrest High School from 3:30 until 4:30 p.m. almost every Monday, Wednesday and Thursday of each week during August and September, 1995. On three payroll hour certifications signed by Respondent, payment was made to Abrahams for a total of 16 hours during 16 days that were not actually worked at the times claimed. Respondent knew that Abrahams was attending the aerobics classes, but it was assumed by he and others that Abrahams would make up the missed hours. Abrahams testimony that she did school work at home, on weekends and at other times in an amount of hours sufficient to more than make up for the hours claimed on the subject pay roll certifications, while creditable, is not corroborated by any record of such "comp" time and cannot serve to extinguish the commission by Respondent of the technical violation of approval of those time sheets for subsequent payment when he knew those records were not accurate. Conduct And Effectiveness Respondent's misconduct, as established by the testimony of Lee, Smith, Bean, Gray, Jones and Powell, constitutes personal conduct reducing Respondent's effectiveness as an employee of the Board.
Recommendation Pursuant to provisions of disciplinary guidelines contained within Rule 6B-11.007, Florida Administrative Code, it is RECOMMENDED that a final order be entered by EPC revoking Respondent's teaching certificate for a period of two years, with recertification at the conclusion of that time conditioned upon Respondent's acceptance of a three year probationary period upon terms and conditions to be established by the EPC, and it isFURTHER RECOMMENDED that a final order be entered by the Board dismissing and discharging Respondent from his position of employment with the Board.DONE AND ENTERED this 13th day of December, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996. COPIES FURNISHED: Ernst D. Mueller, Esquire Office of the General Counsel City of Jacksonville 600 City Hall 220 East Bay Street Jacksonville, Florida 32202 J. David Holder, Esquire 14 South 9th Street DeFuniak Springs, Florida 32433 William J. Sheppard, Esquire Sheppard and White, P.A. 215 Washington Street Jacksonville, Florida 32202 Karen Barr Wilde, Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8154
