Findings Of Fact At all times material hereto, Respondent was an instructional employee of the School Board of Dade County, Florida, and was assigned to Comstock Elementary School as a physical education teacher. At the time of the occurrences which are the subject of this proceeding, Respondent was on continuing contract and was in his seventh year as an instructor in the Dade County School System. Prior to these incidents, Respondent's evaluations with the school system had been uniformly very good. On the date in question, Respondent was in charge of a third grade class of approximately sixty students, including Steven Cole and Dwayne Wilson. During the class period, Respondent had planned motor activities, physical exercise and "free play". Respondent caused the class members to line up in formation for preliminary exercises, which were to be performed to music played by Respondent on a record player. At the beginning of the exercises, Respondent requested that the class dance, clap or move around to the music. He advised the class that if anyone did not want to participate in the dancing exercises, they would be allowed to perform "push-ups" as an alternative. Utilization of "push-ups" by Respondent in his classes was not uncommon. Shortly after the beginning of the dance exercises, Respondent observed Steven Cole not participating as instructed. The youngster advised Respondent that he did not want to dance or clap his hands, so Respondent required him to begin exercises by way of "push-ups". The student performed three or four of these exercises, refused to do more, and started to walk away from the class. Respondent attempted to call the student back to the class, but the student refused to return. Thereupon, Respondent walked over to the student, took him by the arm and attempted to bring him back to the class. The student resisted Respondent's efforts, and began struggling with Respondent. The child was not hitting or kicking at Respondent, and it does not appear from the record that Respondent used excessive force in attempting to deal with the student. When it appeared to Respondent that the student was becoming upset, Respondent felt it advisable to place the student in a physical education equipment room immediately adjacent to the exercise area. Respondent placed the student in the equipment room seated on mats used for tumbling exercises, and Respondent placed his chair slightly in front of the door to avoid having the student run from the room. During the entire encounter between Respondent and the student, the student remained erect and was never thrown or tripped to the ground. After placing Steven Cole in the equipment room, Respondent returned his attention to the remainder of the class. However, he then observed another student, Dwayne Wilson, refusing to participate in the classroom exercises. When Respondent inquired of the student whether he wished to participate in the dance exercises or engage in the option to perform "push-ups", the student refused any audible reply. Respondent approached the student, took him by the arm, and brought him to the front of the class immediately in front of the teacher's chair. The Respondent then placed the student in a push-up position, and Respondent extended his hands and arms approximately six inches above the student's back while the student was in a "push-up" position with his arms extended, in order to prevent the student from standing up and running from the class. Although there is conflicting testimony in the record, it is specifically found that the student attempted to stand up from the "push-up" position, lost his balance while attempting to do so, and fell to the concrete, hitting his forehead. There is insufficient testimony in the record to indicate that Respondent either intentionally or negligently caused the student's fall. Respondent immediately observed swelling on the student's forehead where he had struck the ground, and took the student to the nearby school cafeteria in order to obtain ice to apply to the injury. As soon as the ice was obtained, Respondent had the student taken to the principal's office by cafeteria personnel, and returned to his class. Respondent then arranged for another teacher to cover his class, removed Steven Cole from the equipment room and took him with him to the principal's office. The school principal conferred with Steven Cole, Dwayne Wilson, and other members of the class, called the parents of Steven Cole and Dwayne Wilson, and those students were taken to hospitals to check their condition. Although unclear from the record, Steven Cole apparently was taken to a hospital because of complaints made to the principal concerning difficulty in breathing and a pain in his chest. It is significant that, although a significant period of time had elapsed between the time Steven Cole was placed in the physical education equipment room and the time he was seen by the school principal, he had made no complaints concerning any physical injury until he saw the principal almost one-half hour after being placed in the equipment room by Respondent. In addition, there is no evidence in the record, other than the testimony of Steven Cole, to substantiate that any injury was, in fact, inflicted upon him by Respondent. Dwayne Wilson was taken to Cedars of Lebanon Hospital, where he was treated for a contusion of the forehead and released. As indicated above, prior to the incidents involving Steven Cole and Dwayne Wilson, Respondent has an exemplary record as a teacher in the Dade County School System. Steven Cole and Dwayne Wilson, on the other hand, had been disciplinary problems on occasion at Comstock Elementary School and had, in fact, been "paddled" by the school principal on several occasions. Since the testimony of Steven Cole and Dwayne Wilson was submitted to the Hearing Officer by way of deposition, it was, unfortunately, not possible to observe the demeanor of these young men while testifying. There exist substantial differences in the testimony of the students and that of Respondent. In attempting to resolve these differences, the undersigned noted numerous inconsistencies in the students' testimony, no doubt due, at least in part, to their youth. Steven Cole was, at the time of the incident, nine years old, and Dwayne Wilson was eight years old. In light of these inconsistencies, the Hearing Officer has chosen to accept the testimony of Respondent as the more credible in this case. Both Petitioner and Respondent have submitted Proposed Findings of Fact in this proceeding. To the extent the Proposed Findings of Fact have not been adopted in, or are inconsistent with, factual findings in this Order, they have been specifically rejected as being irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue Whether the allegations in the Amended Administrative Complaint have been proven by clear and convincing evidence and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Health, Board of Physical Therapy Practice, (Petitioner or Board) is the state agency that licenses and has regulatory jurisdiction of physical therapists. At the time of the hearing, Respondent Raymond Cralle (Cralle) had practiced physical therapy for three decades and was known to colleagues as a competent and innovative professional. He holds licenses in Florida, Virginia, Iowa, and other states by reciprocity, and also holds a specialized certification in physical therapy for persons suffering from injuries to the brain and spinal cord. Cralle received his academic training from the University of Iowa’s School of Allied Health. Upon graduation, he began a hospital based practice at Good Samaritan Hospital in West Palm Beach, Florida, and thereafter built a large and successful private practice in the Greater West Palm Beach area. Over the years, Cralle was also active in professional activities. In addition to speaking, writing and consulting, Cralle was heavily involved in legislative advocacy work on behalf of his profession. Throughout his career, his clinics have usually had some type of formal or informal relationship with schools of physical therapy, offering opportunities for students to intern or to perform other types of work. By 1992, Cralle was operating 13 clinics. That year, he sold some of his practice to HealthSouth and the rest to Novacare, two publicly traded companies. Not ready to retire, Cralle opened another private practice in Delray Beach, Florida. At the time of the events giving rise to the charges against Cralle, his clinic had space to treat eight patients at a time. In addition to Cralle, three physical therapists, one occupational therapist, and one physical therapy intern were working regularly on the premises. In addition, aides were employed to perform non- professional chores such as setting up equipment, assisting patients in making their way to treatment rooms, draping patients, and the like. For approximately three months in the year 2000, the precise dates of which are not reflected in the record, physical therapy student Helen Mesa (Mesa) was employed as an aide in Cralle’s clinic. When treating patients, Cralle was frequently accompanied by a colleague, either an aide or a more highly trained staffer, who would be asked to enter notes on the patient’s chart. The notes were dictated by Cralle. Cralle used staff this way to avoid having to interrupt treatment in order to document treatment. When accompanied by student interns or aides such as Mesa, the dictation served a teaching function as well. Mesa's brief tenure at Cralle’s clinic is consistent with her pattern of unstable employment. Since she left Cralle’s employ, she has worked in at least three jobs, including one in a supermarket and two involving physical therapy, and each of these jobs lasted roughly three months. Mesa’s instability is further evidenced by the fact that initially she resigned from Cralle’s clinic, saying she could not handle the stress of the job and single motherhood. Cralle hired a replacement while Mesa worked out her notice. Then, Mesa changed her mind and asked to stay. Cralle, having promised her job to another, said no. The circumstances surrounding her departure may or may not be the cause of Mesa’s hostility toward Cralle, but the hostility was unmistakable during her testimony in this case. Her demeanor under oath was prosecutorial. She would volunteer information and argue with defense counsel about what questions he should be asking her. As a student, Mesa was taught a method of documenting patient progress known as SOAP notes. The acronym stands for Subjective-Objective-Assessment-Plan. Under the SOAP methodology, the “S(ubjective)” portion includes everything that the patient says about how he feels. The “O(bjective)” portion states what was done with the patient. The “A(ssessment)” portion states what progress the patient is making toward short or long-term goals. The “P(lan)” portion reflects what is expected by or at the next treatment. Cralle does not like the SOAP form of note-taking and generally does not use it in his practice. No law or rule requires the use of the SOAP format in documenting, or “charting” patient progress. However, when assisted by Mesa, Cralle often used the SOAP format when dictating notes, because it was familiar to Mesa from her studies. Mesa is the only complaining witness. At hearing her claims about Cralle’s charting practices went well outside the boundaries of the amended administrative complaint. She claimed that she worked on patients with no supervision and that some of “her” patients did not have an evaluation sheet in their chart, although such sheets are the most basic tool of physical therapy practice. Mesa also provided the only testimony in support of the Board's primary charge, which is that she wrote entire SOAP notes on charts without any input, let alone dictation, from Cralle or other qualified personnel. In addition, Mesa claimed that none of the patient files in which she wrote notes had been signed by Cralle the next time she worked with that patient. Yet, it is undisputed that of the 103 partial patient charts reviewed by the parties during discovery, all but about 15 percent of the patient entries in Mesa's handwriting had been signed off on by Cralle. Of 17 unsigned notes placed in evidence, at least some reflect a degree of technical knowledge and vocabulary that Mesa did not have. Her claim to have written each of them, entirely on her own, is not credited. There was no evidence as to whether, or under what circumstances, a physical therapist is required to initial patient notes, and none of the allegations of the Amended Administrative Complaint allege errors or omissions with respect to Cralle's signature, initials, of lack thereof. There was no evidence that any or all of the alleged charting deficiencies compromised patient care or safety in any way. Rather, as Petitioner’s attorney stated during the questioning of its only other witness, physical therapy expert Linda Nash (Nash), “As you know, this case is about what duties a physical therapist can delegate to unlicensed personnel . . . what are [a] physical therapist’s responsibilities as far as the record keeping itself?” Nash’s answer was instructive. She replied: Well, we have a responsibility to document everything and, and document it in a form be it SOAP or narrative or any way that demonstrates that that patient, where they were the moment that they came in and how they were continuing to progress. For several reasons. Number one, for your own benefit because if you have to defend yourself in a case you have, you know, notes that are documented as to what went on and what you did for insurance purposes. Insurance companies don’t like to pay if they’re, if the patient is not making progress. And you need to be able to document those kinds of things in the notes. After revealing that her primary interest in good documentation is as a means of covering herself in malpractice litigation or to obtain insurance reimbursement, a theme which would recur again on her cross-examination (in her words, “so that I covered my tail”), Nash eventually turned her attention to issues pertinent to the state’s interest in protecting the public’s health and safety, but provided no testimony indicating that any or all of Cralle's charts constituted a danger to any patient. Nash acknowledged that in her years of experience, she has never seen a "perfect chart." Nash, as well as the experts who testified on behalf of Cralle, agreed that it would be improper to delegate to an unlicensed aide the task of assessing the patient and determining the content of a plan of care. The most that could properly be delegated is the documentation of tasks and activities performed by patients in the presence of the unlicensed person. It was also undisputed among the experts that there is nothing improper about dictating notes to an unlicensed aide. The uncorroborated testimony of Mesa that she was delegated tasks which may be lawfully performed only by a physical therapist is not worthy of belief when evaluated in the context of Cralle’s 30 years as a successful and well-regarded physical therapist. Cralle had a number of associates and employees of long standing whose qualifications were entirely appropriate for all aspects of patient care and record keeping. It is illogical to assume that Cralle would delegate vital functions to a brand new employee with no experience, and there is no credible evidence that he did. Petitioner's expert Nash realized that because the state’s entire case rested upon Mesa’s credibility, it would be important ”. . . to insure that no misrepresentations [were] provided, the office manager as well as the current PT techs and PTs are interviewed for accuracy.” Petitioner did not follow-up on that recommendation. Had those individuals been interviewed, and additional office records been examined, the true circumstances surrounding Cralle's record keeping practices could have been ascertained. In the absence of such evidence and witnesses, there is no clear and convincing evidence of the Rule violations alleged. Mesa claimed that two physical therapists working in Cralle’s clinic instructed Mesa not to write in the charts of their patients, and, further, that these therapists complained to Cralle about his practice of permitting Mesa to write in his charts. Petitioner offered no corroboration for these claims, even though one of the physical therapists to whom Mesa's testimony on this matter referred was present and testifying on behalf of Cralle. A number of notes in Mesa's handwriting included frequent use of phrases such as “patient tolerated treatment well due to no complaints” and “continue with plan of care.” These are not models of informative note writing, but neither are they clear and convincing evidence of improper delegation when viewed in light of the entire record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Physical Therapy Practice enter a final order dismissing the Amended Administrative Complaint against Raymond Cralle. DONE AND ENTERED this 27th day of November, 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 27th day of November, 2001. COPIES FURNISHED: Mary Denise O'Brien, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building Three Tallahassee, Florida 32308 Richard Willits, Esquire 2290 10th Avenue North, Suite 404 Lake Worth, Florida 33461 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C05 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether or not Respondent is incompetent to teach as defined in Rule 6B-4.009(1)(a), Florida Administrative Code; and whether or not Respondent's alleged incompetency to teach and perform his duties constitutes just cause to terminate his employment and to terminate his continuing contract pursuant to Subsection 1012.33(4)(c), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner operates, controls, and supervises the free public schools of Brevard County, Florida. It has entered into individual and collective agreements with the teachers it employs and has published bylaws and policies that control the activities of its teaching professionals. Respondent is a teacher who was employed by Petitioner from 1976 until his termination in April 2003. He had taught at Palm Bay Elementary from 1984 until 2003. Respondent has a degree in health and physical education. Early in his teaching career he was a classroom teacher; he has taught physical education since 1984. Petitioner conducts annual and interim evaluations of its instructional personnel using a formal Instructional Personnel Performance Appraisal System. The system delineates specific areas of evaluation, the basis for evaluation, and overall performance scores. The system evaluates nine "performance areas": planning, instructional organization and development, presentation of subject matter, instructional communication, knowledge of subject matter, responsibilities, relationships, management of student conduct, and student evaluation. In addition, there is an overall evaluation. Administrative personnel, in the instant case, the principal and assistant principal, are trained to perform the instructional personnel evaluations. Teachers receive one of three ratings in each performance area: unsatisfactory, needs improvement, or effective. Typically, evaluations are done annually. During his teaching career, Respondent served under five principals. In 1998, Joan Holliday became principal of Palm Bay Elementary. An analysis of the performance evaluations of Respondent's first 22 years of teaching reflects that he was an "effective" and "exemplary" teacher (high ratings during the particular rating periods). The same evaluations reflect recurring, but not consistent, shortcomings in the areas of planning and related responsibilities. In Respondent's 1997-1998 annual evaluation, Principal Joseph F. Padula, Jr., who had evaluated Respondent from 1984 to 1998, rated him as unsatisfactory in "planning." Comments by Principal Padula describe Respondent's failure to meet the requirements of the Sunshine State Standards and show evidence of "maintaining pace with new curriculum requirements." Principal Joan Holliday's first opportunity to provide an annual evaluation of Respondent was in the 1998-1999 school year. Her assessment reflects Respondent as a teacher who effectively teaches physical education, but could improve in planning, organization, and "could benefit from newer philosophies in physical education." Respondent responded to his 1998-1999 evaluation by letter dated February 25, 1999. The letter is defensive and reflects his opinion that he is making attempts to improve but that he believes that he is an effective physical education teacher. Respondent's 1999-2000 evaluations (there were two interim evaluations during the 1999-2000 school year) reflect that he was responding positively to the previous critical assessments although he continued to struggle with his lesson plans. The evaluations indicate that he was continuing to effectively teach and interact with students. A 2000-2001 interim evaluation, dated December 11, 2000, contains an unsatisfactory rating. This occurs in the "relationships" assessment area and reflects an apparent problem Respondent has related to "kidding" students which was sometimes not well-received and resulted in sporadic complaints from parents. This rating appears to be incongruous with the effective rating he received in "management of student conduct" in the same evaluation. He continued to receive effective ratings in "presentation of subject matter" and "instructional communication." According to Petitioner's Instructional Personnel Performance Appraisal System, an effective rating describes performance of "high quality" and is the highest rating achievable. The annual evaluation for the 2000-2001 school year rates Respondent unsatisfactory in the "relationships" category. Respondent's "kidding" of students, which caused parental complaints that evoked evaluator's concern and was the apparent basis for the unsatisfactory rating in "relationships" in the 2000-2001 interim and annual evaluations, was clearly subject to interpretation. Testimony did not reveal any "kidding" which would have caused the undersigned to believe Respondent warranted an unsatisfactory rating as defined in the Performance Appraisal System's rating scale definitions. In addition, negative references to Respondent's interaction with "classroom teachers" is not borne out by the testimony. Respondent received five unsatisfactory ratings in his 2001-2002 school year evaluation. He is rated unsatisfactory in "planning," even though it is indicated that Respondent "does turn in his weekly lesson plans," and there is criticism of his failure "to integrate reading, mathematics and writing into [physical education] curricula." At the final hearing, Principal Holliday testified that Respondent's lesson plans for 2001-2002 and 2002-2003 were "adequate." He also is rated unsatisfactory in "responsibilities" and "relationships"; these ratings are supported by comments indicating perceived communications and cooperation problems with other faculty. These perceived communications and cooperation problems were not borne out by the testimony of faculty members. On March 11, 2003, immediately prior to his termination, Respondent received six unsatisfactory ratings on an interim appraisal. This interim appraisal is the only evaluation Respondent received during the 2002-2003 school year. The evaluator observes that Respondent continued to fail to indicate in lesson plans how he was integrating writing, reading, and mathematics into his physical education curriculum and that "developmentally appropriate activities should be planned and taught at each class." Respondent was rated unsatisfactory in "instructional communication"; during Principal Holliday's tenure, Respondent had been rated effective (the highest rating) in this area on five occasions. Comments in this category indicate that Respondent "addresses students in a loud, threatening voice." He was rated unsatisfactory in the "responsibilities" category. "Communication with classroom teachers" is referenced in the comments to this category. The unsatisfactory in "relationships" is referenced by a need to continue to "work on his written and oral communication skills with students, parents, and peers." Principal Holliday had determined late in the 2001- 2002 school year that she was going to recommend Respondent for termination by reason of incompetency. As a result, the evidentiary value of this last assessment is questionable. Principal Holliday acknowledges that most of her concerns with Respondent relate to "lesson planning and communication." If Respondent, in fact, had inappropriate communication with students, such communication reflects teacher misconduct, not incompetence. Her testimony reflects that she formally observed Respondent teaching his class infrequently and that when she formally observed, "he did everything he was supposed to do in a correct manner." Principal Holliday's opinions of Respondent's teaching abilities and utilization of new methodology are largely drawn from her review of his lesson plans, not observing Respondent teaching physical education to students. She is critical of Respondent's failure to implement new (sometimes controversial) physical education methodology; however, she acknowledges that none of these new educational theories are mandated. Respondent's lesson plans for his final teaching years were "adequate." As far as Principal Holliday knows all of Respondent's students met the Sunshine State Standards for physical education; the Sunshine State Standards were all noted in his plan book during the final years she evaluated Respondent. The ultimate goal of a teacher is to teach children, not to write lesson plans. During the period of their relationship as principal- teacher, Principal Holliday wrote 29 letters of reprimand to Respondent. There are 58 faculty members at Palm Bay Elementary; during the five years she was principal, Principal Holliday issued four letters of reprimand to other faculty members. Most of the letters of reprimand concern subjects that appear in Respondent's interim and annual evaluations. Six Palm Bay faculty members testified as witnesses for Respondent. They represent 115 cumulative years of teaching experience; each of their teaching careers at Palm Bay Elementary overlap Respondent's, giving each a familiarity with Respondent. While they did not assess Respondent's lesson plans, record and document production, and other administrative details solely in the cognizance of administration, they had ample opportunity to observe Respondent teaching his physical education classes, his interaction with students, his interaction with faculty, his attention to his faculty responsibilities, and other areas formally assessed by the Instructional Personnel Performance Appraisal System. These informal evaluators collectively report Respondent as "very dependable," having "good rapport with the faculty," appearing to have "well-planned classes," and responsive to suggestions [made by other faculty members] for physical education for younger children, "very helpful." One witness advised, "he jokes with the kids; talks with them in a way they understand." One witness offered the unsolicited comment, "we really consider him to be an asset to the school because of his rapport with some of the older children. It's really nice to have him there." A witness who had early morning bus duty with Respondent reported that he was punctual and dependable. Nothing reported by any of these teacher/witnesses suggests a lack of teaching competency; in fact, their testimony suggests that Respondent was a good teacher. The evidence presented by Respondent's teaching contemporaries, admittedly not trained evaluators, presents a dramatically different assessment of Respondent's teaching performance than does that offered by Petitioner. The testimony of Respondent's teaching peers is credible. The assistant principal, who authored critical interim evaluations, testified that she did not witness Respondent interact with any student in an inappropriate way, except that he spoke loudly on occasion; that when she observed him teaching, the children appeared to be learning; that he conducted class in an appropriate and effective way; and that, recently, he appeared to be complying with Sunshine State Standards in terms of developing students' physical skills.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Brevard County School Board, enter a final order finding that Respondent should not have been terminated and reinstating his continuing employment contract effective the date of his termination. DONE AND ENTERED this 13th day of October, 2003, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of October, 2003. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Alan S. Diamond, Esquire Amari & Theriac, P.A. 96 Willard Street, Suite 302 Cocoa, Florida 32922 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Richard A. DiPatri, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699
The Issue The ultimate issue for determination at the formal hearing was whether Respondent's teaching certificate should be revoked for violating Subsection 231.28(1)(f), Florida Statutes, and Florida Administrative Code Rule 6B- 1.06(3)(a) and (e), as more fully described in the Administrative Complaint.
Findings Of Fact At all times material to this proceeding, Respondent was licensed as a substitute teacher pursuant to certificate number 479861 from the State of Florida Department of Education. Respondent's teaching certificate expires on June 30, 1991. Respondent had approximately 10 years experience as a substitute teacher in Dade and Broward counties. He never received an evaluation less than satisfactory and never received a written reprimand during his 10 years of employment as a substitute teacher. Respondent never achieved annual or continuing contract status with any school board in Florida. Respondent was a permanent substitute teacher in physical education during the 1988-1989 school year. His teaching responsibilities were divided between Natural Bridge Elementary and Biscayne Gardens Elementary. Respondent also worked as an actor and had appeared in at least one episode of the television program "Miami Vice". One of Respondent's students at Biscayne Elementary was Omar de Jesus. Omar was in the sixth grade at the time. Racquel de Jesus, Omar's younger sister, was in the fifth grade at Biscayne Elementary but was not one of Respondent's students. Judy Aulet is the mother of Omar and Racquel. Mrs. Aulet and her children lived approximately two blocks from Biscayne Elementary. They moved to Florida after the school year began. Omar and Racquel began attending Biscayne Elementary sometime in October, 1989. Neither Omar, Racquel, nor Mrs. Aulet knew that Respondent was an actor. Respondent approached Omar approximately two to three weeks after Omar began attending school in October, 1989. Respondent told Omar that Respondent had noticed Omar's mother the first day Omar started school and that Omar's mother was very pretty. Respondent asked about Omar's mother during class on several subsequent occasions, asked Omar for his mother's telephone number and address so Respondent could talk to her, and generally engaged Omar in extended conversations about Omar's mother. On one occasion, Respondent told Omar that Respondent had obtained the address and telephone number of Omar's mother through the school records and was coming over for dinner that evening. Omar was alarmed at Respondent's apparent preoccupation with his mother and was embarrassed by Respondent's repeated comments and inquiries. Omar disclosed the problem to his mother. When Respondent told Omar that he was coming over for dinner, Omar disclosed the situation to his mother. At that time, Omar discovered that Respondent had also been talking to Omar's sister, had given a picture of himself to Racquel, and had asked her to take the picture to her mother. Racquel was first approached by Respondent during physical education class one day. Racquel accompanied two of her friends over to where Respondent was teaching another physical education class. After the two friends left, Respondent told Racquel that her mother was very pretty. The next Monday during Racquel's lunch break, Respondent asked Racquel if her mother was going out with anyone or if she had a husband. Approximately two to three days later after school, Respondent gave Racquel a picture of himself and told Racquel to give it to her mother. Racquel did not want Respondent to go out with her mother and was concerned over the situation. Racquel was afraid that Respondent would get mad if Racquel told Respondent that her mother did not want to go out with him. Racquel was also afraid to tell her brother for fear her brother would get mad at Respondent. After Racquel disclosed the situation to her mother, Racquel was concerned enough to telephone her father in New York for advice. /1 One day during his physical education class, Omar accused Respondent of cheating in-favor of the girls' team when Respondent was refereeing a game between the boys and girls. Omar and Respondent began arguing. Omar told Respondent that he was going to get Respondent fired for confronting Omar and his sister about their mother and that a detective was coming to school to investigate the matter. Respondent grabbed Omar by the arm, shook him, called Omar a "motherfucker", and threatened Omar. Respondent told Omar that if he was fired over this he would "come after" Omar. Omar had a disciplinary history involving failure to listen, inattentiveness, and "mouthing off" at teachers. Omar was sent to the principal's office many times by other teachers. Omar accused Respondent of cheating in favor of the girls team whenever Respondent refereed games between the girls and boys. Omar called Respondent a "cheat" to Respondent's face on more that one occasion. Respondent never sent Omar to the principal's office for discipline. Respondent awarded Omar a grade of B in physical education and a C in conduct. The altercation between Omar and Respondent occurred approximately two to three weeks after Omar and Racquel had disclosed the situation to their mother. At the time of that disclosure, Mrs. Aulet had put Respondent's picture in a drawer and told her children she would report the matter to the school. She told her children not to confront Respondent with the issue. Mrs. Aulet did not know Respondent and had never communicated with him or met him. Mrs. Aulet reported the incident to Dr. Jolivette, the school's principal, after the altercation between Omar and Respondent. Dr. Jolivette questioned Respondent and verbally reprimanded Respondent. Dr. Jolivette requested an investigation, and the matter was investigated by a detective. Respondent was suspended from his employment and remained suspended at the time of the formal hearing. Respondent's actions subjected Omar and Racquel to unnecessary embarrassment. The conditions both children were subjected to were harmful to learning. Respondent demonstrated extremely poor judgment in his course of conduct. He used Omar and Racquel in an attempt to attain personal gain outside the scope of his employment. Respondent's actions and course of misconduct were serious in their nature.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Subsection 231.28(1)(f), Florida Statutes, and Florida Administrative Code Rule 6B- 1.06(3)(a) and (e). It is further recommended that Respondent's teaching certificate be revoked for a period of three years from the date of the final order in this proceeding. DONE and ENTERED this 4th of September 1990, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September 1990.
The Issue The issue for determination is whether Respondent's employment with Petitioner should be terminated.
Findings Of Fact At all times material hereto, Miami-Dade County School Board (Petitioner) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within Petitioner's district, pursuant to Article IX, Florida Constitution, and Section 230.03, Florida Statutes. At all times material hereto, Raynard W. Pasteur (Respondent) was employed by Petitioner as a school security monitor at Frank C. Martin Elementary School (Martin Elementary). Respondent began his employment with Petitioner on August 31, 1990, at Palmetto Middle School (Palmetto) as a school security monitor and remained at Palmetto until September 29, 1991. On January 27, 1994, Respondent began working as a school security monitor at Martin Elementary. At all times material hereto, Respondent was a member of the United Teachers of Dade (UTD). As a member of the UTD, Respondent was subject to the collective bargaining agreement (UTD Contract) between Petitioner and the UTD, as well as any Memorandum of Understanding between Petitioner and UTD. On February 2, 1998, a conference-for-the-record (CFR) was held with Respondent. In attendance at the CFR were Respondent; two of his union representatives; Isaac Rodriguez, Director of Petitioner's Office of Professional Standards (OPS); Dr. Jose Carbia, Petitioner's Director of Region V; and Pamela Siplin, Principal at Martin Elementary. The purpose of the CFR was to address Respondent's medical fitness to perform his assigned duties, to review Respondent's records, and to address Respondent's future employment status with Petitioner. Prior to the CFR, Jose Garcia, a clinical coordinator with Petitioner's Employee Assistance Program (EAP), performed an assessment of Respondent. After performing the assessment, Mr. Garcia determined that he had a duty-to-warn situation. The circumstances of a duty-to-warn situation demonstrate that serious bodily harm or injury may result or that there is a threat of serious bodily harm or injury. Having made such a determination, Mr. Garcia contacted his supervisor and discussed the duty-to-warn situation involving Respondent. Afterwards, Mr. Garcia contacted OPS. Mr. Garcia, his supervisor, and OPS subsequently contacted Dr. Carbia. Mr. Garcia informed Dr. Carbia that his (Mr. Garcia's) assessment of Respondent presented a duty-to-warn situation and that potentially bodily harm or injury could be inflicted against certain employees of Region V. Mr. Garcia did not discuss any details with OPS or with Dr. Carbia. An employee's participation in the EAP program is confidential and voluntary. Breach of the confidentiality by a clinical coordinator is permitted when a duty-to-warn situation presents itself in order to warn the affected persons of the threat of serious bodily harm or injury without discussing details of the situation. Under the circumstances, Mr. Garcia was permitted to breach the confidentiality afforded Respondent. A written statement dated February 2, 1998, explaining Petitioner's justification for requiring Respondent to submit to a medical examination, was presented to Respondent. The written statement stated, among other things, the following: This employer [Petitioner] has need to determine your fitness to carry out your assigned duties. Because of your exhibited behavior at the worksite as well as your self reported medical condition, this employer has reason to seek an immediate medical examination which will be considered relative to your future and continued employment with Miami-Dade County Public Schools. According to Ms. Siplin, the principal at Martin Elementary, Respondent's attendance was good and, in most instances, he was cooperative. She never reported any erratic or unusual behavior exhibited by Respondent. As observed by Ms. Siplin, Respondent's behavior at the worksite was acceptable and satisfactory. However, the behavior complained of referred to the Respondent's behavior at the work site as assessed by Mr. Garcia. A finding of fact is made that the written statement dated February 2, 1998, is a sufficient written statement justifying Petitioner's requirement for Respondent to submit to a medical examination regarding his fitness to carry out his assigned duties. At the CFR, a determination was made, among other things, that a medical fitness evaluation, i.e., a fitness-for- duty evaluation, was required. During the CFR, a representation was made to Respondent that Mr. Garcia had spoken to Respondent's psychiatrist because of Mr. Garcia's concern for Respondent and the staff at Martin Elementary; however, Mr. Garcia did not reveal any details of Respondent's assessment to OPS or the Director of Region V. The representation has no effect on the determination that a fitness-for-duty evaluation was required. A finding of fact is made that, regardless of the representation, a sufficient basis existed for such a determination and that it was reasonable and appropriate to require a fitness-for-duty evaluation of Respondent. A fitness-for-duty evaluation is an assessment by a psychologist or psychiatrist to determine whether an employee is psychologically competent to perform his or her job and whether that employee could potentially be a danger to himself or herself, co-workers, or students. The fitness-for-duty evaluation is designed to identify what it would take to get the employee back to work. The employee chooses the medical practitioner to perform the fitness-for-duty evaluation. According to the UTD Contract, when there has been a written statement of the need for an examination, the employee is to choose the medical practitioner from Petitioner's list of State-licensed physicians, psychologists, and psychiatrists. Respondent and his union representatives were provided a list of Petitioner approved psychiatrists and psychologists from which Dr. Larry Harmon, Ph.D., was chosen by Respondent. An appointment was made by OPS for Respondent with Dr. Harmon and was scheduled for February 6, 1998, at 9:00 a.m. At the CFR, Respondent was also placed in an alternative assignment at home during the process of the fitness-for-duty evaluation. Certain directives were given to Respondent during the CFR. The directives were as follows: Keep your scheduled appointment with Larry Harmon, Ph.D. Call Ms. Pamela Siplin at 238-3688, each work day between 7:30-7:40 a.m. and 3:50- 4:00 p.m. Be available at home during work hours for phone calls from your work site. Notify the work site of any appointments that would necessitate your absence from your alternative assignment (home) during work hours. Respondent was advised that failure to comply with the directives would necessitate a review by OPS for the imposition of disciplinary measures, including suspension, demotion or dismissal. At the CFR, Respondent was also provided a copy of Petitioner's Rule 6Gx13-4A-1.21, Employee Conduct and Rule 6Gx13-4C-1.02, Non-Instructional Personnel. Dr. Larry Harmon, Ph.D., conducted the fitness-for- duty evaluation which was administered for approximately nine hours over a three-day period, beginning on February 6, 1998. The evaluation consisted of Dr. Harmon reviewing background information provided by Mr. Rodriguez of OPS and background memoranda concerning Respondent's prior criminal activity; reviewing Respondent's job description; conducting a clinical interview with Respondent; performing psychological testing of Respondent; consulting with Mr. Garcia of EAP; and conferring with Respondent's parents. Dr. Harmon was unable to consult with Respondent's treating psychiatrist and psychologist. Routinely, Dr. Harmon requests that his patients sign a release and consent for the fitness-for-duty evaluation. The release and consent provides for the exchange and release of information and discussion with OPS, as well as EAP. Respondent signed Dr. Harmon's release and consent and, as a result, Dr. Harmon was able to consult with Mr. Garcia of EAP. Dr. Harmon also attempted to obtain a release from Respondent regarding the exchange of information with Respondent's treating psychologist, Dr. Eve McNanamy, Ph.D., and treating psychiatrist, Dr. Edgar Patino, M.D. In Dr. Harmon's opinion, the outside information from Respondent's treating psychologist and psychiatrist was essential to corroborate Respondent's self-report. However, Respondent refused to sign the release. Respondent did not "like" some of Dr. Harmon's methods or the way Dr. Harmon kept his office. Moreover, Respondent's psychiatrist, Dr. Patino, advised Respondent that he (Respondent) was not required to sign the release and that his (Respondent's) failure to sign could not be held against him. Having reviewed background information provided by Mr. Rodriguez of OPS and background memoranda concerning Respondent's prior criminal activity; having reviewed Respondent's job description; having conducted a clinical interview with Respondent; having performed psychological testing; having consulted with Mr. Garcia of EAP; and having conferred with Respondent's parents, Dr. Harmon formed an opinion as to Respondent's psychological condition. In his report dated March 1, 1998, (Report), Dr. Harmon made the following observations in his "Summary and Recommendations": With respect to diagnosis -- based on clinical interview, mental status examination, psychological test results, collaborative consultation, and review of related written records -- he [Respondent] presents, according to the Diagnostic and Statistical Manual, Fourth Edition (DSM IV), with a probable as follows: Axis I: Clinical Disorders and Conditions Delusional Disorder (297.1), Persecutory Type [emphasis in original] Axis II: Personality Disorders Deferred. [emphasis in original] Axis III: Physical Disorders and Conditions Deferred. [emphasis in original] Given the information with which this psychologist was able to utilize, there is no clear evidence of any severe cognitive or affective disorder which would absolutely prevent him form currently performing any kind of work at all. However, because he was highly guarded and reluctant to share his current life circumstances, history, and current treatment recommendations, it is difficult to rule out the probability of a potential direct threat, especially to coworkers. With respect to his current position as a School Security Monitor II, the job requirements include, but are not limited to, both physical and interpersonal tasks . . . He appears to be capable of performing the physical requirements of the job . . . In addition, he is probably able to perform the non-interpersonal responsibilities of his job description . . . However, individuals with Delusional Disorder may have significant difficulties effectively and objectively performing complex interpersonal job tasks . . . His current symptoms -- clearly consistent with Delusional Disorder -- are likely to cause his thinking to be suspicious and potentially impair his judgement. In fact the DSM IV states that "People with persecutory delusions are often resentful and angry, and may resort to violence against those they believe are hurting them." Based on the above information, there appears to be a potentially significant risk of substantial harm to coworkers based on the following factors: The results of this individualized Fitness for Duty assessment . . . The results of objective psychological assessment, based on current psychological knowledge and assessment tools and techniques, suggest a potential for unpredictable and highly aggressive behavior. A review of prior history [criminal history]. . . A review of current information that suggests he is a current risk based in part on this evaluation as well as upon Jose Garcia's (of the M-D.C.P.S. E.A.P.) report that Mr. Pasteur recently called him and stated, among other comments, that "I am going to stop them." And "I'm just telling you that in case I have to do something." Finally, Mr. Pasteur reports that his psychiatrist's efforts to treat him with medication are obstructed by his unwillingness to follow his psychiatrist's recommendations and so it appears that efforts to reduce or eliminate his delusional thinking are not fruitful which, therefore, maintain the current level potential of significant risk of substantial harm to others. Therefore, because he is considered a potential direct threat and, thus, a significant risk of substantial harm to others, there is insufficient supporting information based on this assessment to clear him to return to work. Therefore, he is considered as the present time not fit for duty. [emphasis in original] His Delusional Disorder appears to seriously impair major life functions such as his social judgement, an essential requirement for his job which requires significant skills to interact effectively in interpersonal interactions. In his Report, Dr. Harmon continued with the following recommendations in his "Summary and Recommendations": In order for Mr. Pasteur [Petitioner] to be eventually cleared to return to work, it is recommended that M-D.C.P.S. support Mr. Pasteur's efforts to reduce and, hopefully, eliminate the probability that he will be a potentially direct threat to others. The following accommodations are recommended in order to assist him to get appropriate and effective treatment so that he may return to work: Provide Mr. Pasteur with at least one month of medical leave, consistent with medical leave benefits and policies for all other employees in his category, so that he may receive appropriate mental health treatment. It is recommended that he follow all of his psychiatrist's recommendations which are designed to reduce the symptoms of his Delusional Disorder to a sufficient extent that he is fit for duty. Participate in psychotherapeutic treatment with Eve McNanamy, Ph.D., his treating psychologist, and follow all recommendations designed to reduce the symptoms of his Delusional Disorder and improve his social judgement and interpersonal functioning to the extent that he is no longer a potentially direct threat and is able to function adequately in the School Security Monitor II position. In order to provide assurance that he is no longer a potentially direct threat and that he is fit for duty, that Mr. Pasteur provide me with a limited Release of Information for all of his mental health professionals which restricts the release of information to those symptoms, behavioral patterns, and treatment compliance issues directly relevant to his Fitness for Duty determination. . . . Because of his likely resistance [to take prescribed antipsychotic medication], and in order to support that his continuation and increased frequency of psychotherapeutic and psychiatric treatment render him fit for duty, it is recommended that Mr. Pasteur sign a Release of Information which enables the Employee Assistance Program to communicate directly with his psychologist and psychiatrist to assist him in getting additional treatment sessions approved, etc. It is recommended that he be re- evaluated for fitness for duty after at least one month to determine the extent to which he is adhering to treatment recommendations, responding to treatment as evidenced by reduced symptoms, displaying symptomoloty which could impair his job performance, and free of symptoms which render him a potentially direct threat to others. Dr. Harmon's fitness-for-duty evaluation was forwarded to Petitioner. On March 3, 1998, a CFR was conducted to address Respondent's medical fitness for continued employment, to review the record, and to address Respondent's future employment status. In attendance at the CFR was Respondent and his UTD representative; Mr. Rodriguez; a representative for Dr. Carbia; and Ms. Siplin. Respondent's father was allowed to attend but only as an observer. Prior to the CFR, Respondent was provided a copy of Dr. Harmon's Report and read it. After reading the Report, Respondent requested, and Mr. Rodriguez complied with the request, that no one at the CFR be allowed to review the Report. Respondent was advised that the focus of the CFR was Dr. Harmon's recommendations contained in the Report. During the CFR held on March 3, 1998, Respondent's father interrupted the CFR several times. Finally, Respondent's father was asked to leave the CFR and, unfortunately, the last interruption by Respondent's father caused the CFR to end. A Summary of the CFR dated April 30, 1998, was sent to Respondent. The Summary included, among other things, directives from Mr. Rodriguez which were that Respondent was required to comply with Dr. Harmon's recommendations and to comply within five (5) days of receipt of the Summary. The Summary also advised Respondent, among other things, that Mr. Rodriguez would verify his (Respondent's) compliance with the directives; that, as of March 16, 1998, Respondent's status on Petitioner's payroll record was on leave-without-pay authorized; that Respondent had applied for a medical leave of absence retroactive from March 17, 1998, through May 17, 1998, which complies with one of Dr. Harmon's recommendations; and that Respondent's failure to comply with the directives could lead to suspension or dismissal. By memorandum dated May 20, 1998, Respondent was notified by the executive director of OPS that clearance from OPS was required in order for his return to work. Respondent was further advised that a clearance conference was a requirement for his return to work; that he must schedule a clearance conference before May 27, 1998; and that failure to schedule and/or attend the clearance conference would result in disciplinary action. Respondent failed to comply with the directives given him in the Summary of the CFR dated April 30, 1998. As a result, a CFR was held on June 4, 1998, essentially to address his noncompliance with the directives. The attendees of the CFR on June 4, 1998, were Respondent and his UTD representative; Mr. Rodriguez; Ms. Siplin; and a representative for Dr. Carbia. One of the directives was for Respondent to comply with Dr. Harmon's recommendations; Respondent had complied with only one of the recommendations which was to obtain extended medical leave. At the CFR, among other things, Respondent was directed to make an appointment with Dr. Harmon by a date certain and to obtain a medical leave extension to cover his present absence and future absence to be recommended by Dr. Harmon. By memorandum dated August 4, 1998, from Mr. Rodriguez, Respondent was provided with a written Summary of the CFR held on June 4, 1998. The Summary also contained events that had occurred since the CFR. Mr. Rodriguez indicated in the Summary, among other things, that Respondent had provided notification that he (Respondent) was currently being treated by Dr. Patino; that Dr. Harmon's office had notified OPS that Respondent had scheduled an appointment and had later cancelled the appointment, but had not rescheduled the appointment; that Respondent failed to obtain approved leave and was on non- approved leave status; and that Respondent continued to be in noncompliance with the directives. Mr. Rodriguez again gave Respondent directives in the memorandum of August 4, 1998. The directives were as follows: You [Respondent] are advised of the availability of services from the District's [Petitioner's] support referral service. You must comply with Dr. Harmon's recommendations as stated in his report. You must schedule an appointment with Dr. Harmon by contacting his office no later than 24 hours from receipt of this letter. You must immediately obtain a Board [Petitioner] approved medical leave of absence to cover the period from 5/19/98 through the necessary recommended time by Dr. Harmon. Mr. Rodriguez further advised Respondent in the memorandum that failure to comply with the directives would compel Petitioner to take further disciplinary action including dismissal. Respondent continued to fail to comply with the directives. As a result, a CFR was held on September 21, 1998. In attendance at the CFR was Respondent and his UTD representative; Mr. Rodriguez; Ms. Siplin; and the personnel director for Petitioner's Region V, Clarence Jones. At the CFR on September 21, 1998, among other things, Respondent indicated that he had not complied with Dr. Harmon's recommendations and had not applied for and obtained an approved medical leave of absence. However, Respondent indicated that he had obtained an appointment with Dr. Harmon which was scheduled for September 25, 1998. Consequently, Respondent requested that he be allowed to keep his appointment with Dr. Harmon, obtain an approved medical leave of absence, and again attempt to resolve the matter after the appointment and a review of his medical evaluation report. Mr. Rodriguez did not agree to Respondent's request, but advised Respondent that his (Respondent's) matter would be forwarded for legal review and possible disciplinary action including suspension or dismissal. Even after the CFR of September 21, 1998, OPS attempted to give Respondent another opportunity to comply with the directives. By letter dated November 9, 1998, the senior executive director of OPS, Dr. Joyce Annunziata, notified Respondent that he was again being provided an opportunity to comply with the directives. The directives in the letter were as follows: You [Respondent] must comply with all of Dr. Harmon's initial recommendations as stated in his March 1, 1998, medical fitness for duty [sic] report. You must schedule an appointment with Dr. Harmon by contacting his office no later than 24 hours from receipt of this letter. You must immediately obtain a Board [Petitioner] approved medical leaves [sic] of absence to cover absences starting May 19, 1998 through the present. (Leave application attached.) Dr. Annunziata further directed Respondent to comply with the above directives within three (3) working days of receipt of the letter. She advised and notified Respondent that his continued failure to comply would be considered gross insubordination and would lead to disciplinary action including dismissal. Respondent failed to comply with the directives given him by Dr. Annunziata. Because Respondent failed to schedule another appointment with Dr. Harmon to provide Dr. Harmon an opportunity to re-evaluate Respondent, Dr. Harmon's initial evaluation remained valid. Respondent remained unfit to return to work. Respondent had a right not to execute a consent and release of information for Dr. Harmon to contact and exchange information with his (Respondent's) treating psychiatrist and psychologist. Such an exchange of information would have immensely assisted Dr. Harmon, and in his Report, Dr. Harmon referred to such exchange of information as essential. Respondent had no understanding that his refusal to sign a consent and release would have such serious ramifications, i.e., dismissal proceedings. Even though lack of information from Respondent's treating psychiatrist and psychologist warrant finding Respondent unfit to return to work, Respondent cannot be disciplined for exercising his right to not execute a consent and release of information. Moreover, this Administrative Law Judge is persuaded that Respondent continued to believe that, as long as he was not refusing to be seen by Dr. Harmon and as long as he was being continually treated by his psychiatrist and psychologist, he (Respondent) could and would be permitted to reschedule his appointment with Dr. Harmon. Respondent did not appreciate the serious ramifications, i.e., dismissal proceedings, of not keeping his appointments with Dr. Harmon. Even at the hearing before this Administrative Law Judge, Respondent continued with his disbelief that failure to reschedule and keep the appointment with Dr. Harmon was such a serious course of action on his part. Respondent presented no medical evidence at hearing to contradict Petitioner's medical evidence and to demonstrate that he is medically fit to return to work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the suspension of Raynard W. Pasteur without pay, but not dismissing him from employment, and reinstating Raynard W. Pasteur under the terms and conditions deemed appropriate. DONE AND ENTERED this 23rd day of July, 1999, in Tallahassee, Leon County, Florida. Hearings Hearings ERROL H. POWELL Administrative Law Judge Division of Administrative 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 this 23rd day of July, 1999.
The Issue The issue is whether respondent should be dismissed from his position as a physical education teacher aide for the reasons cited in petitioner's letter of March 12, 1991.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Wilson McKenzie, Jr., was employed as a physical education teacher aide at St. Petersburg Challenge (SPC) in St. Petersburg, Florida. The school is a part of the public school system operated by petitioner, School Board of Pinellas County (Board). Respondent's employment with the Board began on August 16, 1990, when he was assigned as a full time physical education teacher aide at Melrose Elementary School (MES). In early September McKenzie was reassigned to work at MES during the morning hours only and then during the afternoon hours at SPC, a drop-out prevention school for disadvantaged fourth and fifth graders. Pursuant to a collective bargaining agreement between the Pinellas Educational Support Personnel Association and the Board, respondent served in a probationary status during his first six months of employment. Under the same agreement, he was continued in that status for an additional ninety days after his first evaluation. According to Article 9, Section 1 of the agreement, a probationary employee may be terminated "for any reason", and the Board's termination letter of March 12, 1991, relied upon that provision of the agreement as its authority for terminating McKenzie. Pending the outcome of this proceeding, McKenzie has remained in a suspended without pay status since March 28, 1991. The Board's Reasons for Termination Respondent's performance at MES during the morning hours was apparently satisfactory since petitioner, in its charging letter of March 12, 1991, chose not to rely upon any performance deficiencies at MES as a basis for termination. 1/ As the first ground for terminating respondent, petitioner alleged that respondent was deficient in the "area of relationships with students". To support this charge, petitioner presented the testimony of ten students, all fifth graders at SPC during school year 1990-91 and who came in contact with respondent. While some of the students gave conflicting versions of what transpired, and thus their complaints were questionable, it is found that, contrary to school policy and orders from his supervising teacher, respondent yelled at and argued with students during physical education class in an effort to enforce class discipline. In addition, he placed his hand on students' shoulders or backs and would pinch them despite their requests that he not do so, and twice called students insulting names (e.g., bitch) in the presence of other students. It was further established that on several occasions respondent went to the home of a student to discuss school problems instead of inviting the parent to come to the school. He also had difficulty in maintaining classroom discipline. Several of the students testified that respondent made them uncomfortable by "staring" at them during class or lunch period. Finally, respondent was observed by several students looking up the dress of a female student who sat on the floor with her legs spread apart. In fairness to respondent, however, it should be noted that in some instances the students were acting in an unruly fashion or were violating cafeteria rules by talking loudly and "trading" food, thus prompting respondent to yell at them. Even so, it is fair to say that respondent had numerous difficulties in his relationships with students and most of the students who testified disliked respondent and appeared to be afraid of him. In addition to the above ground, petitioner has cited respondent's failure to follow "directives from superiors" as a second reason for terminating his employment. This charge stems primarily from respondent's sponsorship of a dance program for students that he conducted after school hours. Respondent's group was known as the Very Important Kids Association and was made up of young, disadvantaged children from the south side of St. Petersburg. Respondent was told early on by various superiors, including the SPC principal, assistant principal and physical education teacher, that group activities should not be arranged during school hours, the group should not meet on school property and respondent should refrain from asking students to join his group during school hours. Despite having at least three formal conferences with SPC administrators concerning this matter, and receiving written memoranda with specific instructions, respondent continued to violate these instructions by asking students during school hours to join his group. By doing so, respondent failed to follow "directives from superiors" as alleged in the charging document. Respondent's Case Respondent, who is 27 years old, maintained at hearing that he was "set up" on these charges by unnamed individuals and that he gave his best effort at doing a good job. McKenzie pointed out that he had no problems at MES and that all problems were encountered at SPC. He stated he is sincerely interested in helping underprivileged children and offered a number of letters from third parties to corroborate this contention. Through cross-examination, respondent established that several complaints offered by the testifying students were caused by their own misbehavior and respondent's subsequent efforts to discipline them.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the allegations in the charging document and that he be terminated from his position as a teacher aide. DONE and ENTERED this 12th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1991.
Findings Of Fact James D. Alford, III, was initially employed by the Board of Education in the Public Schools of Duval County, Florida during January of 1973. Respondent holds teacher's certificate no. 333009, graduate, rank 3 and is a graduate of Tuskegee Institute where he received a B.S. Degree in Industrial Arts. For approximately two and one-half years subsequent to January, 1973, he was assigned to southside Junior High School as an Industrial Arts Special Education Teacher in a pilot program. It appears that there is no difference in the qualification required for teachers of industrial arts in special education programs as opposed to other industrial arts teachers that are certified in industrial arts. In addition to his employment with the Duval County School Board, Respondent served in a student teacher training program for nine weeks in Montgomery, Alabama. Respondent, during his assigned duties for the Duval County School Board, taught a special education industrial arts class consisting of seventh, eighth and ninth grade students. He trained students how to safely use tools and to perform projects requiring the use of industrial arts tools. He assigned students projects based on their manipulative skills. He noted that "special ed" students had to be trained to use even the simplest tools such as hand saws. Respondent testified that discipline was a major problem in teaching "special ed" students and that for the first and/or minor offense, he attempted to discipline students by verbal commands and that when that failed he sent students to the Dean's Office. He denied ever using physical force to punish students for unruly conduct. His testimony is that his only physical contact with students was to restrain them from physical acts and it suffices to say that he denied all of the allegations filed by the Council in its petition to revoke his teaching certificate. Respondent was aware of the Board's policy respecting discipline and testified that he never administered corporal punishment to students. Following altercations with two students during late 1974, Respondent was offered transfers on at least two occasions which he declined because he "had recently received approximately $5,000.00 of new shop equipment" and further that he wanted to remain at Southside for a sufficient period in order to administer in a smooth and efficient manner the special ed industrial arts program at Southside. The first significant incident involving the Respondent occurred during December of 1974 during an altercation with one of his students i.e., Gary Roary. According to Respondent, Roary initially hit him whereupon he retaliated by striking him back. Roary then left the room, picked up a two by four and returned to the classroom where Roary attempted to hit Respondent. Respondent, in an effort to snatch the two by four from Roary, shoved him causing him to fall on a saw. Roary sustained an injury which required three sutures at the emergency room at a local hospital. Respondent states that he did not know that Roary had injured himself until he was later called to the office where he was told to meet with Mr. Buford Galloway. The Principal, J. R. McDaniel, investigated the incident involving Gary Roary and concluded that Respondent was "rather rough with Gary". See Petitioner's Exhibit #1. Respondent testified that the incident occurred during a demonstration of a "boomerang" that he had constructed to motivate students to make one. He first threw the boomerang and then a student threw it. When the student threw the boomerang, it struck a teacher's car which resulted in a scratch. One of the students relayed this information to the teacher involved, Ms. Williams, whose car was parked near the shop area. A brief uproar resulted when the boomerang struck Ms. William's car and Respondent grabbed Willie Critton, another student by the front of his shirt. Roary yelled for Critton to hit Respondent and evidence revealed that Respondent retorted by saying "hit me, hit me," when Roary said "hit him". Respondent released Critton and grabbed Roary and this brought about the above incident in which Roary sustained the cut. Respondent admits to pushing Roary and striking him on the right shoulder stating that this was done in self- defense. He acknowledged that it was probably a mistake for him to hit Roary. Following this incident, Respondent was transferred to another school for the remainder of the school term. Marilyn Bagby, a program coordinator for mentally retarded for the Duval County School Board testified that she has known Respondent since 1972, and that during a visit to one of his classes, she saw a student roaming the hallway in front of his class. She testified generally that she was able to determine that students had been left out in the hall for periods up to approximately three weeks. However Mrs. Bagby was not specific in her testimony respecting these incidents and for these reasons, little weight can be attached to her testimony. Lowell T. Hudson, Industrial Arts Superintendent for the Duval County School Board, testified that the Respondent's class was properly equipped and that during his visits to Respondent's class, he noticed discipline problems. Mr. Hudson was involved in one conference concerning the disciplinary procedures utilized by Respondent and during a subsequent incident, Respondent was transferred. Joseph R. McDaniels, the Prinicpal at Southside High for approximately four years and an employee for approximately 19 years testified respecting approximately five conferences concerning Respondent and his disciplinary techniques. On three of these conferences, he wrote memos respecting the details of such conferences. He explained the City wide disciplinary policy to Respondent and cautioned him against using corporal punishment to discipline students. He recalled that two conferences occurred during May of 1974 and a third conference occurred during December of 1974. Ms. Eleanor Williams, the instructor whose car was struck by the boomerang which was thrown by one of Respondent's students, testified that Respondent assisted her on one occasion in a dispute with a student who was fighting another student. Respondent requested that Ms. Williams go to his office to obtain his stick which she refused and thereafter he asked the students to go get his stick. She testified that one student who was involved in the altercation had a paring knife. Respondent, in an effort to break up the students, swung at one student and missed striking a refrigerator and a bread box resulting in a dent in the refrigerator of approximately eight inches. Respondent, according to Ms. Williams, never requested that the students stop fighting. Instead Respondent kicked one of the students, Tim Walden, and Don Jones, the other student who was involved was struck in his face. At that time, several instructors were summoned who restrained Respondent from further hitting the students. 1/ Willie J. Critton, a 16 year old eleventh grade student attended shop classes with Respondent during his eighth grade school year. He testified that on numerous occasions, Respondent bent his fingers back and twisted his fingers. He further testified that it was common practice for Respondent to expel students from his class room and force them to stand outside in the hallway. Gary Roary was called and testified substantially as other witnesses who gave testimony on the boomerang incident during December of 1974. Specifically, he testified that Respondent hit Willie Critton and thereafter grabbed him. During the above incident, he was shook by Respondent and struck in the mouth. When he broke away from Respondent, he left the classroom, obtained a stick and entered the room. Upon his return, he swung at Respondent and fell when Respondent shoved him and his head struck a saw. This resulted in the cut referred to above which required three stitches. Betty Allison, a qualified expert in mental retardation, testified that while discipline is a problem in teaching EMR students (Educable Mentally Retarded), she objected to the disciplinary procedures utilized by Respondent calling them inappropriate in EMR situations. She testified that to be effective, EMR instructors must devise well organized lesson plans and that classroom instruction must be motivating in order to secure and retain the students' attention. Other witnesses testified that EMR students cause more discipline problems than others and generally testified that Respondent was effective as most instructors in teaching EMR students. Section 231.28, Florida Statutes, 1975, empowers the Department of Education to suspend or revoke a valid Florida Teaching Certificate held by an individual who is committing or has committed certain acts or omissions which justify revocation or suspension on grounds enumerated in the statute. One of the grounds as provided in the statute exist when the teacher, upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board. Here the Petitioner seeks revocation of the Respondent's teacher's certificate based on the fact that he has allegedly engaged in numerous offensive activities, which has seriously impaired and reduced his effectiveness as an employee. After careful consideration of all the evidence adduced herein, the testimony of witnesses and the arguments of counsel, I conclude that the disciplinary measures used by the Respondent departed from the county's established procedure for disciplining students and despite repeated warnings that he refrain from corporally punishing students, he continued to do so. His conduct in the Gary Roary and Willie J. Critton incident on December 3, 1974, is exemplary of his disciplinary methods. Based thereon and the entire record herein, I find that Respondent's usefulness as a teacher-employee has been reduced within the meaning of Section 231.28, Florida Statutes.
Recommendation Based on the foregoing finding of facts and conclusions, I hereby RECOMMEND: 1. That the Respondent's teaching certificate be suspended for a period of one year. DONE AND ENTERED this 10th day of May, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
