Findings Of Fact The Respondent holds Florida teaching certificate 595057, covering the area of Speech and Language Impaired, which is valid through June 30, 1993. At all times pertinent to the allegations in this case, the Respondent was employed as a Speech Therapist at Castle Hill Elementary School (hereinafter "Castle Hill") in the Broward County School District. At all times pertinent hereto, Dr. Valoria Latson was the principal of Castle Hill, Ronald Wright was the Director of Professional Standards for the Broward County School Board, Mark Seigle was the Associate Superintendent of the Broward County School Board, and Virgil Morgan was the Superintendent of the Broward County School Board. In the Spring of 1990, the Respondent began to exhibit unusual and bizarre behavior both in and out of school. Such behavior included: Claiming that students in her class and children around her neighborhood were watching her; Claiming that students and teachers were talking about her personal life; Claiming that her classroom, apartment, phone and car contained covert listening devices; Claiming that unknown persons were breaking into her car and home on a frequent basis; Calling police on numerous occasions requesting them to investigate and/or fingerprint her apartment and car because they were tampered with; Claiming that she was being followed by friends, staff members, church members and the State of Florida; Claiming that her lesson plans had been stolen and copied; Claiming that her lesson plans were being photographed by a camera in the light bulbs or air conditioner in her classroom; Claiming that staff members were listening in on her class through the school intercom. The accusations and claims made by the Respondent were the product of delusional thought processing and paranoia. Dr. Latson became concerned about Respondent's bizarre behavior, which she described as exhibiting overt signs of paranoia. In July of 1990 Dr. Latson referred Respondent to the Employee Assistance Program ("EAP"). This referral did not benefit the Respondent. With the onset of the 1990-91 school year, Dr. Latson remained concerned about Respondent's continued bizarre behavior. On September 10, 1990, Dr. Latson advised Mr. Wright of her concerns about Respondent and about the referral to the EAP. On September 21, 1990, Dr. Latson advised Mr. Wright that she had not observed any significant changes or improvements in the Respondent. Mr. Wright recommended that Dr. Latson have her Assistant, Ms. Weissberg, observe the Respondent at least 2 to 5 minutes a day, 3 to 4 days a week, to be certain that nothing was going on in that classroom that should not be. On or about October 26, 1990, Dr. Valoria Latson had a conference with the Respondent and the Assistant Principal, Ms. Weissberg, at which time the Respondent indicated that she was "tired of this shit" and would be giving them her letter of resignation. The Respondent failed to bring in her letter of resignation. The Respondent had also informed Ms. Laura Rogers, Program Specialist with the Exceptional Student Education Department for the central area, that she was going to resign. After further observation of Respondent's behavior, it was determined that a formal psychological or psychiatric evaluation of the Respondent would be appropriate. On November 5, 1990, Dr. Latson met with Mr. Seigle and Ms. Lucy Thomas, a friend of the Respondent, regarding the Respondent's unusual behavior. Dr. Latson was concerned about the Respondent's ability to function as a classroom teacher and her ability to work with children and adults in a school setting. Dr. Latson requested that Mr. Seigle make arrangements for a psychological or psychiatric evaluation of the Respondent. She also requested that Respondent be taken out of the classroom until her emotional and mental stability was assessed. Dr. Latson believed that a psychological evaluation of the Respondent was necessary because of her bizarre behavior and her unusual accusations. Dr. Latson believed that the Respondent's effectiveness in the classroom had been reduced, and that it was in the best interests of the students for Respondent to be evaluated. Dr. Benjamin Barnea, a physician trained in Neurology and Psychiatry, conducted an initial evaluation of the Respondent on November 8, 1990. Dr. Barnea summarized his findings in a letter to Mr. Seigle on November 12, 1990. Dr. Barnea's impression of Respondent's condition was that of schizophreniform disorder. His recommendation provided, in pertinent part, as follows: The patient presently shows overt delusional thought processing that prevents her from functioning and interacting with her peers and students. I would not recommend that she be returned to her regular employment until she seeks treatment and is stabilized. Since she has never had a formal workup for her disturbed thought processing, I would recommend that she receive an MRI of the brain and an EEG for completeness sake to rule out possible underlying pathology that might be amenable to treatment. In addition, the patient will need to be started on anti- psychotic medications and I have broached this subject with her but she shows no insight into her illness and does not show willingness to participate in treatment. The prognosis is unfortunately guarded, if her workup is totally negative then the long- term picture is one of probable continued mental illness. In this initial evaluation of the Respondent, the Respondent indicated to Dr. Barnea that she believed her phone conversations at school were being monitored, that her lesson plans were being photographed from the light bulb in her room, that someone at the school knows whose behind this and is doing it, that she is being followed wherever she goes by the Methodist Church that she belongs to, and that her students who are in the age range of five (5) to six (6) years old are aware of who she is dating and sleeping with because, as the Respondent explained, her boyfriend has a pet snake and the students were making hissing sounds in class. During a follow-up evaluation on December 3, 1990, with Dr. Barnea, Respondent again showed evidence of a "fixed delusional system involving people getting into her apartment and moving things around in collusion with her church and her school". Dr. Barnea noted that this was continual evidence of an underlying delusional thought processing that was ongoing with the Respondent, and not merely a transit thing that happened on one particular day. During a follow-up evaluation on December 13, 1990, Dr. Barnea again attempted to convince the Respondent to consider treatment with anti-psychotic medication. Dr. Barnea noted that Respondent refused his advice and was of the opinion that she had no insight that she has a mental problem. Respondent underwent the physical tests recommended by Dr. Barnea. These results of these tests revealed no physical abnormalities. Following his evaluation of Respondent on January 30, 1991, Dr. Barnea noted that Respondent remained delusional with no insight into her illness and that she continued to refuse treatment in the form of anti-psychotic medication for the underlying thought disorder. Dr. Barnea again saw the Respondent briefly on February 4, 1991. It was still his opinion that Respondent was unable to function as a classroom teacher or in an educational setting as long as the underlying delusional thought processing was present. With the exception of anti-psychotic medication, there is no other treatment for a delusional thought disorder. There was no evidence in this proceeding that Respondent's condition had improved since her last evaluation with Dr. Barnea. There was no evidence that she has sought or received treatment or that she was on any type of medication that would benefit her. Without proper treatment, Respondent's delusional thought processing makes her behavior unpredictable. Her behavior could range from being totally docile to physically violent. Although there was no evidence that she had become physically violent, Dr. Barnea was of the opinion that persons suffering from Respondent's mental condition have the potential to become violent because of the underlying delusional thought processing. Respondent should not be placed in a position of responsibility and is incapable of teaching. On or about April 23, 1991, the Respondent was suspended without pay by the Broward County School Board and dismissal proceedings were initiated. Pursuant to the petition for formal proceedings, filed by the Broward County Superintendent of Schools, Virgil Morgan, the Respondent requested a formal hearing before the Division of Administrative Hearings (DOAH) and the case was assigned DOAH Case No. 91-2839. The formal hearing conducted in that case was heard before William Dorsey on September 4, 1991. On November 7, 1991, a Recommended Order was issued by the Hearing Officer in DOAH Case No. 91-2839 that concluded, in pertinent part, that Respondent's ". . . thought disorder places any children who would be assigned to her class at unreasonable risk of harm which could result from unpredictable reactions by Ms. Wynne to those students. She is currently not competent to perform her duties as a teacher." The Recommended Order recommended that Respondent's contract with the Broward County School Board be terminated due to her mental incompetency. On January 17, 1992, the Broward County School Board entered a Final Order which adopted the Recommended Order in its entirety, including the Findings of Fact, Conclusions of Law, and Recommendation, and the school board thereby terminated the Respondent from her employment effective April 23, 1991. Based on the School Board's position that the Respondent was mentally incompetent and unfit to hold a teaching certificate, Mr. Wright reported the allegations against the Respondent to Professional Practices Services ("PPS) of the Department of Education. The Respondent is incompetent to perform her duties as an employee of the public school system based upon her mental incompetency. Consequently, her effectiveness as an employee of the school board has been lost.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order which finds Respondent guilty of violating Sections 231.28(l)(b) and 231.28(l)(f), Florida Statutes, and which bars the Respondent from reapplying for a new teaching certificate for a period of three (3) years. It is FURTHER RECOMMENDED that prior to recertifying Respondent as a teacher in the State of Florida, the Education Practices Commission require Respondent to submit documentation from appropriate mental health professionals that establishes that Respondent does not represent a threat to the safety or well-being of students under her supervision or care, that she is receiving any recommended treatment, and that she is competent to perform her educational and administrative duties in an acceptable and satisfactory manner. DONE AND ENTERED this 17th day of December, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 17th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3376 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraph 1 are unnecessary as findings of fact, but are incorporated in the Preliminary Statement section of the Recommended Order. The proposed findings of fact in paragraphs 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 34, 35, 41, 43, 44, 45, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, and 74 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, 38, 39, 40, 42, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 71, and 75 are subordinate to the findings made. The post-hearing submittal filed by Respondent contained no proposed findings of fact. COPIES FURNISHED: Jill M. Boyd, Esquire Bond & Boyd, P.A. 411 East College Avenue Post Office Box 26 Danita Wynne, pro se 9277 Dunwoody Lane Indianapolis, Indiana 46229 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent should be terminated from employment with Petitioner for abandonment of position.
Findings Of Fact No dispute exists that, at all times material hereto, the School Board was a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Broward County, Florida. No dispute exists that, at all times material hereto, Ms. Granatelli was an instructional employee with the School Board. At the time of hearing, Ms. Granatelli had been an instructional employee with the School Board since 2005. Ms. Granatelli moved from Illinois to Florida in 2005, having been recruited to be a teacher with the School Board. She obtained a teaching certificate in Florida, certifying her to teach Exceptional Student Education (ESE) for grades K through 12. Her teaching certificate was valid July 1, 2005 through June 30, 2010. The ESE certification authorizes and permits the holder to teach autistic children, as well as others with developmental and emotional delays. Ms. Granatelli’s first position with the School Board was at Cooper City High School for the 2005-2006 school year, as a support facilitator within the ESE program. On May 1, 2006, Ms. Granatelli received a letter from the principal of Cooper City High School, Wendy Doll, regarding excessive absenteeism by Ms. Granatelli. Ms. Doll’s letter, among other things, specified the absent days, the status of Ms. Granatelli’s balance of sick and personal leave, and the applicable Florida statutory provisions regarding sick leave and absence without leave; and indicated that Ms. Doll was bringing the excessive absenteeism to Ms. Granatelli’s attention. By letter dated May 2, 2006, Ms. Granatelli responded to the letter of excessive absenteeism providing, among other things, an explanation as to why she was absent. In her explanation, Ms. Granatelli indicated, among other things, that she had unfinished moving, family, and divorce circumstances to occur. For the 2006-2007 school year, Ms. Granatelli was re- assigned to Cooper City High School. However, by letter dated August 7, 2006, Ms. Granatelli resigned from her employment and indicated, among other things, that she would not return to Cooper City High School. By letter dated August 17, 2006, Ms. Granatelli rescinded her resignation letter. She was permitted to rescind her resignation letter. Ms. Granatelli requested a transfer and indicated on the request that she be assigned to Attucks Middle School. For the 2006-2007 school year, she was assigned to Attucks Middle School, as a support facilitator within the ESE program for the eighth grade. Ms. Granatelli desired to move to a high school for the 2007-2008 school year and requested a transfer to a high school, providing a list of high schools to which she desired to be transferred; but she was re-assigned to Attucks Middle School. However, in the Fall of 2007, Ms. Granatelli was notified by the principal at Attucks Middle School that, due to the decrease in student enrollment, some teachers would be surplused, that Ms. Granatelli would be one of the surplused teachers, and that she (Ms. Granatelli) would need to complete a surplus form. When the School Board has a decrease in student enrollment, either through the loss of students or the movement of students to a charter school, the principals lose budgeted monies and, therefore, must “surplus” their excess employees. Surplus is referred to as an “Involuntary Transfer.” The school that loses budgeted monies can no longer support the employees on its budget and must, therefore, reduce the number of employees who have been appointed to that school; the employees are involuntarily transferred from the school that has suffered a lost of budgeted monies to another school. The teachers with the least seniority are the employees who are transferred. Ms. Granatelli refused to complete the surplus form and failed to identify schools to which she wished to be assigned. Ms. Granatelli was surplused, for the 2007-2008 school year, to Fairway Elementary School, where she was an ESE teacher in the areas of math and reading. Ms.Granatelli continued to have the desire to teach at a high school. She requested a transfer from Fairway Elementary School. At the end of the 2007-2008 school year, instead of being transferred, Ms. Granatelli was surplused from Fairway Elementary School to Wilton Manors Elementary School for the 2008-2009 school year. By letter dated July 15, 2008, Ms. Granatelli was notified by the School Board’s Supervisor of Instructional Staffing that she was being assigned to Wilton Manors Elementary School for the 2008-2009 school year. Further, the letter advised her, among other things, that she may request to be transferred from Wilton Manors Elementary School and the process for such a request; that she was expected to report to the school on August 11, 2008, unless she secured her own transfer; and that her failure to report would result in a recommendation to the School Board for her termination. On July 21, 2008, Ms. Granatelli met with the principal of Wilton Manors Elementary School, Mark Narkier. During their meeting, he notified her that she had been assigned to teach second grade in the autistic program, as an autistic teacher. Ms. Granatelli expressed her concern to him that she was not comfortable teaching in the second grade autistic program and notified him that she would seek a transfer. Also, at that meeting, Mr. Narkier signed her request for transfer. Further, during that meeting, Mr. Narkier attempted to alleviate her concern and reassure her that she could be a successful second grade autistic teacher. He advised Ms. Granatelli that he would provide her with all of the resources that were available to assist her in getting comfortable and more familiar with teaching autism. He informed her that paraprofessionals would be available to provide assistance as needed and the same paraprofessionals who had worked with the students the previous school year would be available; and that full-time autism coaches and other School Board employees would be available to provide assistance. Furthermore, on August 8, 2008, he sent her an e-mail providing her with a list of workshops that were available for training on autism, including the dates and registration information for the workshops. Additionally, Mr. Narkier attempted to reassure Ms. Granatelli that he would provide her with all of the support that she would need to be a successful teacher in the position. Eventually, Ms. Granatelli decided that she did not want to take advantage of the workshops because they were time- consuming and because they were being offered after the beginning of the school year. Teachers were to report to Wilton Manors Elementary School on August 11, 2008. On August 10, 2008, the day before she was to report, Ms. Granatelli sent an e-mail to Mr. Narkier at approximately 11:29 p.m. notifying and indicating to him, among other things, that the time had come for her “to sever [her] career path with [the School Board]. . . Although your office has sent me with [sic] information on all the trainings I would need to become a successful Autism teacher, It [sic] is not something I chose or would choose for my career aspirations. . . Please know that I want to continue being the excellent teacher and team player I am, but unless an appropriate assignment is given to me, [the School Board] is going to lose a highly qualified, experienced, caring individual. Any suggestions would be appreciated at this time.” Ms. Granatelli did not report to Wilton Manors Elementary School on August 11, 2008. At hearing, she testified that she failed to report because she had the belief that her being in the position of an autistic teacher in the second grade was putting the health and safety of the autistic children and herself in jeopardy. Ms. Granatelli did not review the records of the autistic children who were assigned to her class. She did not observe or have any contact with the children who were assigned to her class. She did not access the abilities of the children who were assigned to her class. Further, no evidence was presented to indicate that attending the training after the beginning of the school year would be detrimental to the children who were assigned to her class or to her. The evidence fails to support Ms. Granatelli’s belief that the health and safety of the autistic children and herself were in jeopardy as a result of her being in the position of an autistic teacher in the second grade at Wilton Manors Elementary School. By letter dated August 11, 2008, Mr. Narkier directed Ms. Granatelli to report to Wilton Manors Elementary School on August 15, 2008. He further advised her in the letter that her contract began that day; that she neither reported for work nor called in sick nor requested leave; and that, if she failed to report to work by August 15, 2008, her employment with the School Board would be terminated based upon job abandonment. Furthermore, out of concern for Ms. Granatelli and the possibility of her losing her employment, Mr. Narkier telephoned her and spoke with her regarding the same matters in the letter. During the telephone conversation, he suggested to her that, if she was not going to report, it would be better to resign than be terminated because termination would look worse than resignation; and she indicated that she would resign. The letter from Mr. Narkier dated August 11, 2008, was sent by certified mail, return receipt. The return receipt indicates that Ms. Granatelli received the letter on August 15, 2008. An inference is drawn and a finding of fact is made that Ms. Granatelli intentionally did not retrieve the letter until the day that she was required to report, i.e., August 15, 2008; and that she did not contact Mr. Narkier to notify him that she had received the notice that same day. As a result, a finding of fact is made that Ms. Granatelli intentionally refused to report to Wilton Manors Elementary School on August 15, 2008, as directed by Mr. Narkier. The evidence demonstrates that Mr. Narkier, as principal of Wilton Manors Elementary School, had the proper authority to give Ms. Granatelli a direct order. Furthermore, the evidence demonstrates that the directive given by Mr. Narkier to Ms. Granatelli was reasonable in nature. Ms. Granatelli did not report to work on August 15, 2008, or thereafter. Also, no letter of resignation from her was received by Mr. Narkier. On August 22, 2008, Ms. Granatelli contacted her BTU representative, George Segna, by e-mail relating to him the circumstances of her refusal to accept the assignment at Wilton Manors Elementary School. She indicated, among other things, that she was not resigning and was not abandoning her assignment. Subsequently, on that same date, Mr. Segna e-mailed Ms. Granatelli. He advised her, among other things, that she would be considered to have abandoned her position if she was absent from work for more than three days without approved leave. Ms. Granatelli does not dispute that, at the time of the e-mail, she was absent from work for more than three days without approved leave. No dispute exists that being absent from work for more than three days without approved leave constitutes abandonment under School Board policy. Also, in the e-mail, Mr. Segna advised Ms. Granatelli, among other things, that, as a general rule, even if the School Board violates her rights, she must comply with her assignment unless it endangered her health or safety; and that, absent a violation of her rights, the School Board has the right to assign her within her area of certification and to assign her outside her area of certification involuntarily for one year. Additionally, in the e-mail, Mr. Segna advised Ms. Granatelli, among other things, that her only options were either to apply for leave for which she qualified; or to report to work for the assignment which she had been given; or to resign; or to be terminated for abandonment. Moreover, in the e-mail, Mr. Segna recommended to Ms. Granatelli that, if she chose not to accept the assignment, she should resign to not mar her employment record and to allow a permanent replacement to be hired, without delay, for the class. Ms. Granatelli did not follow any of the advice provided by Mr. Segna or his recommendation. By another letter dated August 21, 2008, Mr. Narkier directed Ms. Granatelli to report to his office on August 28, 2008, at 2:00 p.m., for a pre-termination meeting to discuss her abandonment of her job on August 11, 2008. He also advised her in the letter that she had the right to have a representative of her choosing present and that her failure to attend would result in her name being forwarded to the School Board for termination. The letter dated August 21, 2008, was sent certified mail, return receipt. The return receipt indicates that Ms. Granatelli received the letter nine days later on August 30, 2008. An inference is drawn and a finding of fact is made that that Ms. Granatelli intentionally did not retrieve the letter until after the date that she was directed to attend the pre-termination meeting, i.e., August 28, 2008; and that she did not contact Mr. Narkier to notify him that she had not received the letter until August 30, 2008. As a result, a finding of fact is made that Ms. Granatelli intentionally refused to attend the pre- termination meeting on August 28, 2008, as directed by Mr. Narkier. The evidence demonstrates that the directive given by Mr. Narkier to Ms. Granatelli was reasonable in nature. Mr. Narkier had intended, at the pre-termination meeting, to inquire of Ms. Granatelli as to why she failed to report and to discuss whether termination was appropriate. However, she failed to attend the pre-termination meeting and, therefore, there was no discussion. With Ms. Granatelli having failed to attend the pre- termination meeting, by letter dated August 28, 2008, Mr. Narkier notified her that he would be submitting her name to the School Board with a recommendation for termination on the basis of abandoning her job by failing to report to work. He indicated to her, among other things, that her failure to report to work adversely affected Wilton Manors Elementary School. Also, by letter dated September 8, 2008, the School Board’s Director of Instructional Staffing, Rebeca Brito, informed Ms. Granatelli that, on September 23, 2008, her name would be submitted to the School Board with a recommendation for termination of her employment. Subsequently, by letter dated September 24, 2008, Ms. Brito advised Ms. Granatelli that, at its meeting on September 23, 2008, the School Board had approved the recommendation to terminate her employment. Ms. Granatelli timely requested a hearing on the decision to terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order terminating the employment of Diane Granatelli for abandonment of position. DONE AND ENTERED this 1st day of October 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 1st day of October, 2009.
The Issue The issues is whether Ms. Wynne's employment as a speech therapist with the School Board of Broward County should be terminated for lack of the necessary emotional stability to carry out her duties.
Findings Of Fact Ms. Wynne is a speech therapist, and has been employed by the School Board of Broward County as a speech and language therapist. She works with elementary age children on articulation, fluency, voice and hearing disorders. At times she works with students individually, at other times in groups of 4 to 5. She obtained a professional services contract with the School Board on October 24, 1990, during the 1990-91 school year. It provides that she may not be dismissed during the term of the contract except for just cause, as provided in Section 231.36(1)(a), Florida Statutes, and that she is entitled to annual renewal of that contract under the provisions of Section 231.36(3)(e), Florida Statutes. Ms. Wynne was first employed by the School Board in August of 1987, after her graduation from Indiana University. She has been the speech and language therapist at Castle Hill Elementary during the entire period of her employment by the School Board of Broward County. Ms. Wynne's performance has been evaluated each year. Her evaluations have been satisfactory based on observation of her classroom teaching, through the evaluation conducted on May 8, 1990 for the 1989-90 school year. Ms. Wynne began to exhibit unusual and bizarre behavior beginning at approximately the end of the 1989-90 school year, which continued into the first portion of the 1990-91 school year. Ms. Wynne had friendly relations with a number of people, including Lucy R. Thomas, the principal of Walker Elementary Magnet School who had interviewed Ms. Wynne for her teaching position in Broward County after her graduation from Indiana University, and who had helped her in obtaining her job and housing. They attended the same church. At about August of 1990, Ms. Thomas noticed that Ms. Wynne's behavior began to change: she lost weight, seemed withdrawn, and in several conversations indicated to Ms. Thomas that a musician at the church was "bugging her." Ms. Wynne asked Ms. Thomas to speak with the musician and tell him to leave her alone. She also indicated a belief that the minister and another church member had been driving by her home to spy on her. Ms. Wynne had also had a close relationship with another teacher, Sonia Bernard, who is employed at the Sandpiper Elementary School. They had roomed together at Indiana University. Shortly after Ms. Wynne obtained employment with the School Board of Broward County Ms. Bernard also moved to Florida. Ms. Wynne was at Ms. Bernard's wedding and is godparent to Ms. Bernard's son. About a year ago Ms. Bernard noticed a marked change in Ms. Wynne's behavior. Ms. Wynne accused Ms. Bernard's husband of tapping her telephone and also maintained that the musician at church had tapped her phone and was following her. She aggressively questioned Ms. Bernard's six year old son in a manner that frightened him, asking him "why are you in my business." Ms. Bernard found Ms. Wynne's behavior to be paranoid. Ms. Wynne also began to exhibit unusual behaviors at school. At first the behaviors were merely quirky. She told the principal of the school, Dr. Valoria Latson, that she thought the parents of the children she taught did not believe Ms. Wynne was doing a good job based on the children's behavior in class. Ms. Wynne also asked Dr. Latson to explain Ms. Wynne's job responsibilities to other staff members at the school during a staff meeting, when there was no reason for this to be done. In late March of 1990 there were teacher manuals missing from her room and Ms. Wynne expressed the idea that someone had stolen them, but they turned up in her room a week or so later and had not been stolen. About this time she began to express concern that children in the school and children from the neighborhood near the school were watching her. She expressed to Dr. Latson the belief that school staff members were listening in on her classroom through the intercom, when this was not the case. By July of 1990 she said she believed her classroom had been bugged. About this time she also expressed to other people at the school that she believed her home phone had been tapped, and that people around school were "discussing her business" out of her presence. She believed that her home telephone conversations were being repeated by teachers in the teacher planning room, although Ms. Wynne was never specific as to any teacher who repeated anything, or about the content of any conversations which were repeated. She went so far as to have the phone company check her line for bugs or taps. Eventually Ms. Wynne expressed to Ms. Erma Harrison, a clerk at the school, the belief that her car had been bugged and that people were following her. She would at times appear at the home of Ms. Harrison and demand to know "what was going on" in a manner which was so bizarre as to frighten Ms. Harrison's children. Ms. Harrison eventually had her telephone number changed to avoid harrassment by Ms. Wynne. By about October of 1990, Ms. Wynne expressed the belief that the young children in her class, ages 5 and 6, had bugged her classroom, and knew things about her personal life. She believed that the children knew who her boyfriend was, because the children were making hissing sounds in class. Her boyfriend did own a pet snake, and she believed that the children were making the hissing sounds as a way of communicating to her that they knew who her boyfriend was; there was no way for them to know anything about Ms. Wynne's personal life. She also expressed the belief that the children were taking pictures of her lesson plans with a camera placed in the light bulbs of her classroom. Matters came to a head in late October of 1990. On October 26, 1990, Ms. Wynne had a conference with the principal of the Castle Hill Elementary School, Dr. Latson, and the Assistant Principal, Ms. Weissberg, during which she announced that she would be immediately resigning from her position with the School Board of Broward County and would bring them a typed letter of resignation that day. She did not submit such a letter. The following Monday, Ms. Wynne was absent from school. She telephoned on Tuesday, October 30th to say that "she had it and was leaving," although no letter of resignation had been submitted. On Friday, November 2nd, Ms. Wynne telephoned the school early in the morning to say that she would be late. Later, at approximately 11:30 a.m., an investigator for the School Board's Special Investigative Unit, Ellis Dardeen, telephoned the principal to report a conversation which he had had that morning with Ms. Wynne at his office. Ms. Wynne had come to the Special Investigative Unit to ask that an investigation be initiated as to why other teachers and students at Castle Hill Elementary School were talking about Ms. Wynne. When Mr. Dardeen asked what was being said, Ms. Wynne responded that students were talking about her parents, about her mother's home and about the basement in the home. When Mr. Dardeen asked what they were saying about the basement, Ms. Wynne merely shrugged and asked how students would know that her mother's home had a basement. When asked what the teachers at Castle Hill Elementary were saying about her, Ms. Wynne did not respond, but said that her neighbors and people at the grocery store were talking about her. Mr. Dardeen regarded this matter as so bizarre that he telephoned Dr. Latson to let her know about his meeting with Ms. Wynne. He also memorialized his conversation in a memorandum to the Director of the Office of Professional Standards, Mr. Ron Wright. Ms. Wynne arrived at Castle Hill Elementary School at about 12:45 p.m. on November 2nd and asked for the rest of the day off. She told Dr. Latson that she had been evicted from her apartment and had been driving around "thinking." Dr. Latson asked Ms. Wynne about the status of her letter of resignation. Ms. Wynne declined to sign the standard resignation form used by the School Board. At this point, Dr. Latson was sufficiently concerned about Ms. Wynne to request the Associate Superintendent, Mark Siegle, to arrange for a psychological or psychiatric evaluation of Ms. Wynne, and asked that she not be assigned to the classroom until the evaluation was concluded. The Office of Professional Standards prepared a memorandum which was delivered to Ms. Wynne placing her on administrative leave, with pay, as of Tuesday, November 6, 1990, pending the results of a psychiatric or psychological evaluation which would be performed by the School Board. Associate Superintendent Siegle arranged with Dr. N. Benjamin Barnea, a board-certified psychiatrist who works with School Board employees, to see Ms. Wynne. He did so on November 8, 1990, and his report of that meeting was prepared for Associate Superintendent Siegle on November 12, 1990. Dr. Barnea also saw Ms. Wynne on December 3rd and December 17, 1990. Dr. Barnea found Ms. Wynne to be suffering from a thought disorder which resulted in delusions. In order to determine whether her behavior had an anatomical basis he had a CAT scan of the brain and an EEG performed, but neither showed any anatomical problems. Dr. Barnea recommended a course of treatment for Ms. Wynne's behavior through the use of drugs which can be helpful in correcting delusional thought processing, although they are not always effective. There is no other course of treatment available for these sort of thought disorders. Dr. Barnea believes that Ms. Wynne may have had an underlying problem for some time but was able to function until some precipitating event occurred which manifested the thought disorder. Part of the difficulty in treating a thought disorder is that the patient has no insight into the fact that there is a problem, but rather has a fixed belief that they have no psychological problem. Dr. Barnea's testimony was convincing that while suffering from delusional thought processing, Ms. Wynne cannot be in a position of responsibility over students as a teacher. Any event or statement by children could be misinterpreted and could result in acting out, which could be dangerous to the students. Those suffering from delusional thought processing exhibit a spectrum of behaviors, from docility to violence. It is not possible to predict the type of behavior which the person suffering from this problem will exhibit. She has already frightened children of Ms. Bernard and Ms. Harrison, see, Findings 6 and 8. Without drug treatment there is no reason to believe that there will be a remission of the psychological problem. The medications Dr. Barnea would try include neuroleptics such as Trilafon. Ms. Wynn refused to take the medication which Dr. Barnea offered to prescribe. Ms. Wynne testified that after seeing Dr. Barnea she had consulted another psychiatrist, Dr. Patnelli, who had given her a prescription for Trilafon which she had been taking for approximately ten days before the hearing. She also testified that she had only informed her attorney of this treatment the day before the hearing. She expressed no faith in the utility of taking the drug, but was willing to do so in order to help keep her job. No prescription scrip or actual medication was exhibited at the hearing. It is impossible to know whether Ms. Wynne would take the medication faithfully, or whether it would have any affect upon her condition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the employment of Danita Wynne as a teacher by the School Board of Broward County under the Professional Service Contract which she obtained on October 24, 1990, be terminated pursuant to the provisions of Section 231.36(1)(a), Florida Statutes, due to her mental incompetency. DONE and ENTERED this 7th day of November, 1991, at Tallahassee, Florida. 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 7th day of November, 1991. Copies furnished: Charles T. Whitelock, Esquire Whitelock and Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Thomas W. Young, III, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Virgil L. Morgan, Superintendent School Board of Broward County 1320 Southwest 4 Street Fort Lauderdale, Florida 33312 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 issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent holds Florida Educator's Certificate 762313, covering the area of varying exceptionalities, valid through June 30, 2004. At all times material hereto, Respondent was employed as a varying exceptionalities teacher by the Broward County School Board. She was assigned to the Wingate Oak Center, a school for multiply-handicapped and mentally- handicapped students, ages five through twenty-two. During the 1998-1999 school year, Respondent taught autistic students, having six to nine students in her class. Mary, one of those students, was very aggressive. She physically attacked teachers, paraprofessionals, and other students. She was non-verbal and communicated by using hand signals. A special system for disciplining autistic students was in place at Wingate Oak Center. The professional management crisis system, an intervention system, was comprised of four steps: (1) crisis prevention; (2) de-escalation; (3) actual crisis intervention in a physical crisis; and (4) post-crisis intervention, returning the student to his or her activity. The first two steps were the responsibility of the classroom teacher. If a child continued his or her disruptive, aggressive, or self-injurious behavior despite the classroom teacher's use of the first two steps, any staff member would press a buzzer in the room and yell "Code Red." In the front office of the school, the intercom would flash the room number, and the secretary in attendance would announce "Code Red" throughout the entire school. The Code Red team composed of administrators, staff, and persons certified in professional crisis management would respond by immediately going to the room where the teacher or other staff member needed assistance in controlling the child. Certification was required because physical intervention needs to be accomplished in a safe and effective manner that does not embarrass the student. The Code Red team uses personal safety techniques and/or immobilization techniques to keep the student from hurting himself or herself and/or transportation techniques if the student requires being transported to another area to calm down. Although Respondent had been trained in the required techniques, her certification expired prior to the 1998-1999 school year. Respondent worked closely with Mary's parents and conferred with them regularly. Mary wore a hair band and her hair in a ponytail. When Mary misbehaved in class, a technique that worked well was to remove Mary's hair band and mess up her hair. Mary was told that if she behaved, her hair band would be returned and her hair would be brushed. Mary liked the positive reinforcement of having her hair brushed and wearing her hair band, so she usually stopped misbehaving. On February 18, 1999, Mary threw her desk aside and started to attack another student. Respondent handed her the "comfort" towel to calm her down but that did not work. Instead, Mary started kicking Respondent and pulling Respondent's hair and clothes. As Mary pulled at her, they both fell on the floor. Respondent told the paraprofessional to take the other students to the other side of the room and to call Code Red. The paraprofessional did so. Respondent kept trying to calm Mary down and to break loose from Mary. Each time she was successful in breaking loose, Mary grabbed Respondent's hair and clothes and began kicking her again. Respondent attempted to restrain Mary so she could not grab Respondent's hair and clothes again. She managed to pin Mary down and calm her. When the Code Red team entered Respondent's classroom, Mary was lying on the floor on her back. Respondent was straddling Mary, with a knee on the floor on each side of Mary, holding Mary's arms in a crossed position across Mary's chest. Mary was calm and quiet. Respondent was not sitting on Mary. Neither Respondent nor Mary suffered any injury during their physical encounter. Respondent was reported for failing to follow school policy by restraining Mary herself. Corporal punishment is forbidden at Wingate Oaks and by Broward County School Board policy. Respondent did not administer corporal punishment to Mary that day. She merely defended herself by restraining Mary to keep Mary from injuring herself, Respondent, or anyone else. Although Respondent failed to follow the Code Red protocol on that day by waiting for the Code Red team to arrive to physically restrain Mary, the record in this cause suggests that was not an option since Mary was kicking Respondent and pulling Respondent's hair and clothes. Respondent did not pull Mary's hair as a form of discipline or corporal punishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against her in this cause. DONE AND ENTERED this 22nd day of January, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 22nd day of January, 2001. COPIES FURNISHED: Victoria Laubach 4601 Southwest 42nd Terrace Fort Lauderdale, Florida 33314 William R. Scherer, III, Esquire Conrad & Scherer 633 South Federal Highway Post Office Box 14723 Fort Lauderdale, Florida 33302 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Respondent should be transferred to Jan Mann Opportunity School.
Findings Of Fact Respondent, Antwan Clark (Antwan), attended the sixth and seventh grades at Carol City Middle School during the academic years 1991-1992, and 1992-1993, respectively. On October 10, 1991, Antwan was suspended outdoors for three days for fighting. On October 22, 1991, Antwan was caught running in the school hallways by the assistant principal Don DeLucas. When Antwan was told to stop, he ignored the verbal request. Antwan was given a detention for his behavior. On November 5, 1991, Antwan was referred by his sixth period teacher to Assistant Principal DeLucas for being tardy to class, refusing to sign for detention, and walking out of class without a pass. Antwan was issued a reprimand/warning for his behavior and a conference was held with school administrators and his parents. After school was dismissed on March 10, 1992, the school principal Mary Henry walked toward the Carol City Elementary School while watching the students leave the middle school grounds. Antwan, across the street in a gas station parking lot, threw rocks across the street in the direction of Ms. Henry. Police Officer Christopher Burgain observed Antwan tossing the rocks. When Antwan saw the police officer, he moved to another group of students in the parking lot. Officer Burgain got Antwan and took him to Ms. Henry who told him to take Antwan back to the school. Ms. Henry called Antwan's parents. Antwan was suspended outdoors for two days for this incident. On March 16, 1992, Antwan's teacher, Ms. Viamonte, referred him to Assistant Principal DeLucas for getting out of his seat, coming to class unprepared, responding to the teacher when she asked for his daily progress report that she "was wasting his time" and threatening to tear up the daily progress report. Antwan was given a reprimand/warning and a conference was held with his parents. On April 16, 1992, Antwan cut his sixth period and was given a three- day indoor suspension. Another conference was held with his parents. On May 11, 1992, Antwan was caught gambling at a nearby senior high school. The assistant principal for the senior high school returned Antwan to Ms. Henry at the middle school. Antwan was suspended outdoors for three days. On July 22, 1992, Antwan was referred to Assistant Principal John Strachan for disciplinary action for telling a teacher that he didn't have to do what the teacher told him to do. Antwan was suspended outdoors for one day. During the 1992-1993 school year, Antwan was placed in the Student At Risk Program (SARP), which is a program designed for students who are at risk of dropping out of school. Students participating in SARP are given more attention than the students in the mainstream population. A counselor is assigned to the SARP program. On September 21, 1992, Ms. McGraw, Antwan's fifth period teacher referred Antwan to Assistant Principal Strachan for refusing to do his work, yelling at her about a pass to the office after she told him he could not have a pass, and refusing to give her a working telephone number for his parents so that she could call them. Antwan was given an indoor suspension until school administrators could meet with his parents. Antwan failed to stay in his class area during physical education class. His teacher, Janet Evans, would have to stop her class and call Antwan back into the class area. On September 24, 1992, Antwan left class without permission, and Ms. Evans found him and some other students outside the girls' locker room gambling by flipping coins. For these actions he was given a one- day indoor suspension. On October 29, 1992, Antwan was referred to Assistant Principal Strachan for excessive tardiness to school. Antwan refused direction by Mr. Strachan and was verbal and disruptive about being given a suspension. Antwan's mother was called to come and pick up him. Antwan was given a three-day outdoor suspension. On November 20, 1992, Teacher Golditch referred Antwan to the principal for shouting across the room to the extent that the teacher had to stop the class lesson and change what the class was doing. When Antwan got to the principal's office he got out of his seat, made noises, and went to the staff's counter when he was not supposed to do so. Antwan was given a one-day outdoor suspension for these actions. On January 6, 1993, Antwan and four other students were horseplaying in the cafeteria, resulting in the breaking of a window. He received a three- day indoor suspension for this behavior. On February 11, 1993, Antwan was walking around in Ms. Schrager's class and would not take his seat even though Ms. Schrager repeatedly asked him to do so. Antwan was distracting other students in the class, and Ms. Schrager had to stop the class to correct Antwan. Ms. Schrager referred the matter to Assistant Principal Strachan. A security officer was required to remove Antwan from the classroom. When asked by Mr. Strachan why he would not take his seat when asked by Ms. Schrager, Antwan responded that he wanted to sit where he wanted to sit. For this incident, Antwan received a five-day indoor suspension. Cheryl Johnson, Antwan's math teacher, had witnessed incidents in Ms. Schrager's class when Antwan would get out of his seat, walk around the classroom, and talk to other students, thereby disrupting Ms. Schrager's class. Ms. Johnson also had problems with Antwan in her classroom. Antwan would bring his drumsticks to class and tap on his desk. He was tardy to class, failed to do his homework assignments and participated very little in class. On March 8, 1993, Antwan and other students were throwing books at each other in Ms. Schrager's classroom during class. Ms. Schrager referred the incident to Mr. Strachan, who talked with Antwan. Antwan told Mr. Strachan that a student had hit him so he threw several books in retaliation. Other students were also written up for this incident by Ms. Schrager. Antwan received a five- day outdoor suspension for this episode. On March 23, 1993, Ms. Kramer, Antwan's language arts teacher, referred him to Mr. Strachan for disciplinary action for the following behavior: walking around the classroom, talking to other students, refusing to take his seat when asked to do so by his teacher, telling his teacher he didn't have to do what she was telling him to do, and rolling his eyes while continuing to move around. He received a detention. On April 21, 1993, Ms. Schrager observed Antwan showing his friend an object which resembled the outline of a gun. She asked Antwan to come talk to her. He began to walk toward her and then walked to the other side of the room. She called a security guard to come into the classroom but they were unable to find the object. Antwan was given a ten-day outdoor suspension which was reduced to a six-day suspension after school administrators talked with Antwan's parents. On May 7, 1993, Antwan was in the hallway and was fifteen minutes late for class. Mr. Strachan saw him and told Antwan to come to him. Antwan ran away from Mr. Strachan. When Mr. Strachan caught up with him, Antwan wanted to know what he had done wrong. Antwan received two detentions for the incident. On May 13, 1993, Antwan chased a female student into Ms. Arlene Shapiro's classroom. He grabbed the front of the girl's blouse trying to get a beeper which she had underneath her blouse. The girl called for help. Antwan was not Ms. Shapiro's student and was not supposed to be in her classroom. Ms. Shapiro told Antwan to let the girl go and he replied, "No. Make me." She put her hand on his back to guide him out of the classroom, and he told her not to touch him or he would hit her. She took her hand away. He punched her on her arm and then ran down the hall. Ms. Shapiro referred the matter to Assistant Principal DeLucas. Mr. DeLucas questioned Antwan about the incident and Antwan admitted hitting the teacher. Antwan received a ten-day outdoor suspension. Antwan was not doing well academically at Carol City Middle School. His report card for the school year ending June, 1993, showed final grades of four "F's" and three "D's." While at Carol City Middle School, Antwan received numerous group and individual counseling sessions with guidance counselors. Additionally, Ms. Henry, the principal, took Antwan "under her wing" and tried to counsel him. School administrators met with Antwan and his parents to discuss the problems that Antwan was having at school. However, these efforts to correct Antwan's disruptive behavior were unsuccessful. Additionally, as Antwan's disruptive behavior continued to escalate, resulting in more frequent conferences with his parents, Mr. and Mrs. Clark's attitude seemed to change from conciliatory to hostile and defensive. Antwan was reassigned to Jan Mann Opportunity School during the summer of 1993. The classes are smaller than the traditional school class. There are counselors and a full-time psychologist on staff. The focus at Jan Mann is to try build self-esteem, teach conflict resolution, develop social skills, and correct past behavior problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered affirming the assignment of Antwan J. Clark to the Jan Mann Opportunity School. DONE AND ENTERED this 18th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 18th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5483 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 3: The first two sentences are accepted in substance. The first part of the third sentence stating that Mr. Strachan personally removed Antwan from the classroom from five to ten times is rejected as not supported by the greater weight of the evidence. The remainder of the sentence is accepted in substance. Paragraph 4: Accepted in substance. Paragraph 5: Accepted in substance. Paragraph 6: The first three sentences and the first half of the fourth sentence are rejected as subordinate to the facts actually found. The second half of the fourth sentence and the last two sentences are accepted in substance. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: The first sentence is rejected as not supported by the greater weight of the evidence. Ms. Schrager saw an object which resembled a cap gun. The second sentence is rejected as not supported by the greater weight of the evidence. The first part of the third sentence is accepted in substance. The second part of the third sentence is rejected as constituting argument. The last sentence is accepted. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 12: The first sentence is rejected as constituting argument. The remainder of the paragraph is accepted in substance. Paragraph 13: The first sentence is rejected as constituting argument except the fact that Antwan threw rocks at Ms. Henry is accepted. The remainder of the paragraph is accepted in substance. Paragraphs 14-15: Accepted in substance. Paragraph 16: The first three sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 17-19: Accepted in substance. Paragraph 18: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts actually found. Paragraph 21: The two sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as constituting argument. Paragraph 5: Accepted in substance except to the extent that gambling occurred on only one occasion. Paragraph 6: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 7: The first two sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance. Paragraph 8: Rejected as constituting argument. Paragraph 9: Rejected as not supported by the greater weight of the evidence. Respondent's Exhibit 1 shows numerous counseling sessions between Antwan and his counselor and at least one conference between Antwan's parents and a counselor. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as not supported by competent substantial evidence. Paragraphs 12-14: Rejected as subordinate to the facts actually found. Paragraph 15: The first sentence is rejected as not supported by the greater weight of the evidence. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. I find that the parents' testimony is not credible. Paragraph 16: Rejected as not supported by the greater weight of the evidence. Paragraphs 17-19: Rejected as constituting argument. Paragraph 20: Rejected as irrelevant to this proceeding. Paragraph 21: Rejected as not supported by the greater weight of the evidence. Paragraph 22: Rejected as constituting argument. Paragraph 23: The first sentence is accepted in substance as it relates to early conferences with the parents and school officials. The remainder of the paragraph is rejected as constituting argument. COPIES FURNISHED: Anne G. Telasco, Esquire First Nationwide Building 633 NE 167th Street, Suite 304 North Miami Beach, Florida 33162 Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 3211 Ponce De Leon Blvd., Suite 210 Miami, Florida 33134 Mr. Octavio J. Visiedo 1450 Northeast 2nd Avenue, #403 Miami, Florida 33312-1308 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Respondent was an employee of the School Board of Dade County, Florida, more particularly a Title One teacher at Miami Carol City Senior High School during the 1981-1982 school year. On May 6, 1982, John Cohn was a student in Respondent's fourth period class. Arnold Coats was a substitute teacher working with Respondent in Respondent's classroom on that day. After Respondent had given the students an assignment, Cohn requested and received permission to leave the classroom to go to the bathroom. While absent from the classroom, Cohn decided he wished to speak with Ronald Golemhieski, another teacher at Miami Carol City Senior High School. Cohn returned to Respondent's classroom to request permission. Coats came to the door and gave Cohn permission to go talk to Golembieski, but Cohn decided he should get permission from Respondent since Respondent was the teacher of the class. Cohn waited in the doorway of Respondent's classroom. When he finally got Respondent's attention, he beckoned with his finger, requesting Respondent to come to the doorway. Respondent went to the doorway, and Cohn requested Respondent's permission to go talk to Golembieski. Respondent grabbed Cohn, pulling him forcefully into the classroom. Commotion broke out in the classroom, and someone yelled for assistance. Golembieski heard the commotion, as did Victoria Bell, the hall monitor. When they arrived at Respondent's classroom, Respondent and Cohn were struggling with each other. They were face to face, and Respondent had his arm around Cohn's neck with his hand on Cohn's throat in a choking manner. Golembieski grabbed Cohn away from Respondent and, after separating them, took Cohn to his classroom to calm him down. Bell and Coats pushed the rest of the students back into their seats and restored order in Respondent's classroom. When the altercation ended, Cohn's shirt was torn and he had scratches on his chest. Just prior to Respondent's outburst, Cohn did nothing to provoke Respondent in any way and was not disrespectful to Respondent. When Cohn got Respondent's attention, Respondent both looked at Cohn and walked to the doorway in a normal manner, thereby giving no warning that he intended to touch Cohn in any way. Respondent interpreted Cohn's beckoning with his finger as an invitation to fight, although Respondent admits that Cohn said nothing to him indicating that he wished to fight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Notice of Charges, approving Respondent's suspension and dismissing him as an employee of the School Board of Dade County, and denying any claim for back pay. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
Findings Of Fact William Haynes Gandy, for 17 years a school teacher and coach, began his most recent stretch of employment with the Santa Rosa County School Board in the fall of 1978 at Jay High School. He coached football and taught girls' physical education and math courses during the 1978-1979 school year, even though he held a teacher's certificate in physical education only, at all pertinent times. Coaching assignments entail a certain amount of prestige and entitle their recipients to a salary supplement. In Santa Rosa County, school principals make coaching assignments in their unfettered discretion. LETTER NO FACTOR On July 1, 1979, Mary Cecelia Diamond Findley, assistant principal of Jay High School during the preceding school year, became principal. During Dr. Findley's first year as principal, Mr. Gandy taught math and science courses. In the fall of the year, a student asked petitioner to write a letter on her behalf, because she had been accused of a burglary. Dr. Findley's son had also been charged with this crime. On November 30, 1979, Mr. Gandy addressed the following letter "To Whom it May Concern" and gave it to the student's parents: I, W. H. Gandy, being employed by Santa Rosa County School Board as an in- structor at Jay High School do hereby give the following statement in behalf of Karen Cooley. I have known this student for several years. She was in my class last year and was an excellent student. I found her to be very cooperative, initiative [sic] and enthusiastic young student. Her capabilities and talents are unlimited if she applied herself. I know of no past conflicts or involvements in our community or school which would reflect on her character. In working directly with young people for the past 15 years, I have found that most all students need help at one time or another. Of course, their needs vary, from personal, emotional problems, school discipline problems, to problems with the laws of our society and state. I feel Karen realized what she did was wrong and now must face the consequences. She has already been subjected to the scrutiny of her classmates at school, to the embarrassment of hurting her parents and family, and to the fact that she took part in crime and now has a record which will remain with her the rest of her life. Karen cannot undo the wrong she has done, but certainly since this is her First Offense, and she has the ability and desire to mature into a useful citizen in our community, she should be given this opportunity. I hope and pray that she will be given some kind of a probation period and given the opportunity to finish school and start a meaningful life of her own. Petitioner's Exhibit No. 1 He told no one other than the Cooleys and Karen's attorney about the letter, at the time. Dr. Findley did not learn of the letter until this year. Dr. Findley's decision not to reappoint Mr. Gandy as assistant football coach, more than two and a half years after the letter was written, took place after discussions with the head football coach and had nothing to do with the letter or any other exercise by petitioner of his first amendment rights. TRANSFER Beginning with the 1979-1980 school term, Mr. Gandy has been on continuing contract as a teacher for respondent. On Dr. Findley's recommendation, at the close of the 1982-1983 school year, and that of Bennett C. Russell, respondent's superintendent, respondent transferred Mr. Gandy to the Gulf Breeze Middle School. Originally he was to teach health classes there, but he was assigned physical education classes after his request for formal hearing was filed. Respondent had taught some classes out of his field every year he was at Jay High School. Before the letter on behalf of Ms. Cooley was ever written, and, according to petitioner, before there were any ill feelings between Dr. Findley and himself, he was assigned exclusively math and science courses for the 1979-1980 school year. In 1980-1981, and again the following school year, Mr. Gandy taught a single physical education class and several math classes. He taught math courses exclusively during the 1982-1983 school year. By the spring of 1983, there were five teachers at Jay High School who had taught there shorter periods than the five years petitioner had taught at Jay High School. Of these, Oliver Boone, the band director, and Deborah Walther, who was certified in art and science, were retained. Desiree Jamar, who was certified in art, was transferred; and the two other junior teachers did not have their annual contracts renewed. One of these two, Deborah Gomillion, who is certified to teach exceptional education classes, was subsequently rehired to head the exceptional education program at Jay High School. Five of the 32 teachers at Jay High School for the 1982-1983 school year were certified in physical education, but, unlike respondent, some of them were certified to teach other subjects, as well. Respondent transferred another coach from Jay High School who was certified in social studies as well as physical education. There was only one teacher certified in mathematics for the 1982-1983 school year. Respondent hired a second certified mathematics teacher for 1983-1984 who was to teach five mathematics courses and coach football at Jay High School. On July 28, 1983, respondent hired a teacher certified in physical education to teach at Pace High School. Dr. Findley and Mr. Gandy had their differences. She believed him guilty of certain improprieties never formally established. He resented a notice of non-renewal Dr. Findley, under the erroneous impression that Mr. Gandy had not yet been awarded a continuing contract, sent in response to instructions so to notify all annual contract teachers who taught compensatory classes like the math classes he was teaching at the time. The low esteem in which Dr. Findley held petitioner was a factor in her recommending that he be transferred. The superintendent was aware of the friction, but he made his decision "because we were cutting back personnel at Jay High School and we had a position available at Gulf Breeze Middle School." (T. 129) Respondent's superintendent did not accept her recommendation that petitioner be transferred just to keep the peace. Dr. Findley herself was transferred from Jay High School for the 1983-1984 school year. The continuing contract of employment between the parties does not grant petitioner the right to teach in a particular school. Joint Exhibit No. The master contract in effect between Santa Rosa County School Board and the Santa Rosa Professional Educators provides: Involuntary transfer of teachers shall be made by the Superintendent and Board based upon: l) Santa Rosa County School District needs as determined by the Superintendent and the Board; 2) certification; 3) length of service in Santa Rosa County; and, 4) any other data. Petitioner's Exhibit No. 6, p. 8. Article IV of the same agreement establishes in detail a grievance procedure, but does not make it mandatory or exclusive.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent dismiss petitioner's request for hearing, without prejudice to his filing a grievance as regards his transfer. DONE and ENTERED this 27th day of September, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of September, 1983. COPIES FURNISHED: Philip J. Padovano, Esquire 1020 East Lafayette Street Tallahassee, Florida 32302 Paul R. Green, Esquire Post Office Box 605 Milton, Florida 32570
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is 45 years of age. He is married and has two children. In 1968, following his graduation from college, Respondent began his career as a classroom teacher with the Dade County School Board. He remained with the Board until 1974, when he went to work for the Xerox Corporation. Respondent was rehired by the Board during the 1987-88 school year and assigned to teach sixth grade at Highland Oaks Elementary School in North Miami Beach. Virginia Boone has been the Principal of Highland Oaks for the past 27 years. At all times material hereto, Barbara Cobb has been her Assistant Principal. Respondent was reassigned to the fifth grade at Highland Oaks at the beginning of the 1988-89 school year. He taught fifth grade for the remainder of his stay at Highland Oaks, which ended during the 1990-91 school year. As a fifth grade teacher at Highland Oaks during the 1988-89, 1989-90 and 1990-91 school years, Respondent was a member of a team consisting of four other fifth grade teachers: Terri Lynne, Arnold Pakula, Virginia Valdes and Betty Kravitz. Each member of the team had a home room class and was responsible for teaching math and language arts to the students in that class. In addition, each team member was assigned a special subject, such as health, science, social studies, maps/globes or spelling/handwriting, to teach to all of the fifth graders. All such instruction took place simultaneously in a large open area shared by the five fifth grade teachers, rather than in separate rooms. In accordance with the Board's Teacher Assessment and Development System (TADS), principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe remedial activities designed to improve the teachers' performance. The categories of classroom performance that are assessed are preparation/planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. Under TADS, a teacher is also rated in a seventh area, that of professional responsibility, which encompasses matters that go beyond the teacher's performance in the classroom. For the 1987-88 and 1988-89 school years, Respondent received an acceptable rating in all seven assessment categories on the TADS annual evaluations he received. There was a precipitous decline, however, in Respondent's overall performance, which began during the first half of the 1989-90 school year and continued the following school year until his suspension. Respondent's attendance was irregular at best. He was frequently absent. When he was not absent, he often came late and left early. As a result, he did not participate with his team members in a number of early morning and late afternoon parent-teacher conferences that were held during his scheduled workday. Respondent did not adequately plan his lessons as directed. His failure to prepare sufficient written lesson plans was a particular problem because of his frequent absences. Without such plans, substitutes were unable to provide Respondent's students with any substantial continuity in instruction. Respondent also failed to grade and record his student's work and to prepare progress reports and report cards as directed. On a daily basis, Respondent would leave his class unattended without notifying any of his team members. Invariably, the students would become boisterous in Respondent's absence and disrupt the instruction that was taking place in the other fifth grade classes. Very little instruction occurred in Respondent's classroom. He appeared more interested in amusing his students with his antics than in teaching them. He sang, danced, told jokes, balanced boxes on his head, hung bags from his ears, made guttural noises and engaged in other childish behavior unbecoming a teacher. The laughter these antics generated made it difficult for the students in the other fifth grade classes to learn. Respondent regularly ate in the classroom in front of his students when he was supposed to be instructing them, notwithstanding that such conduct was clearly prohibited. To make matters worse, he often did not clean up after eating. At times, Respondent fell asleep in class and had to be awakened by his students. Although it was his responsibility to do so, Respondent frequently failed to pick up his students in a timely manner from their physical education, art and music classes which were held in areas of the school outside the fifth grade pod. Respondent's dereliction of his responsibilities placed an additional burden on the other fifth grade teachers. They tried to offer him advice and counsel, but Respondent was not receptive. Principal Boone and Assistant Principal Cobb, who received complaints about Respondent from his team members and from the parents of his students, also met with Respondent in an effort to make him a more productive member of the fifth grade team. During these meetings, they reminded Respondent of what was required of him as a teacher at Highland Oaks. Respondent, however, defied their directives and continued to act irresponsibly. Among the conferences that Boone had with Respondent was one held on October 26, 1989. Cobb, as well as Respondent's union steward, were also present. During this conference, Boone specifically directed Respondent to record for each of his students a minimum a three grades per week per subject, to prepare appropriate lesson plans for substitute teachers to use during Respondent's absences, to prepare daily lesson plans reflecting the day's activities, to ensure that his students were under supervision at all times and to participate in scheduled parent-teacher conferences. On December 1, 1989, Boone referred Respondent to the Board's Employee Assistance Program (EAP), which is a program designed to help employees who are having personal problems that are interfering with their work performance. On the form she submitted to the Coordinator of the EAP, Boone indicated that the referral was being made because of the following: "excessive absences;" "excessive tardiness;" "absences on Mondays and/or Fridays;" "changes in personal appearance;" "marked changes in mood;" "marked changes in activity level;" "frequent trips to restroom;" "poor judgment:" and "assignment failures" on Respondent's part. On the bottom of the form, Boone added the following comments: Mr. Long has not set the world on fire with his teaching since he came to our school, but he did receive acceptable evaluations. However, this year presents a different story. He has been absent 16 days out of 60 since 9/5/89, papers are not graded, tests are not given, lesson plans are not done and, if they are, very little. His discipline is poor, pals with students telling jokes. He has a long list of excuses for being late to work or not coming at all. I know I have given him every inch of rope I can. I must have someone who cares about the students to teach. On December 6, 1989, Respondent slept throughout a faculty meeting at which the Board's "Drug Free Workplace" rule was discussed. Following this meeting, Boone met with Respondent and reiterated the directives she had issued during their October 26, 1989, meeting. On the following day, Cobb attempted to conduct a formal observation of Respondent's classroom teaching. Cobb noted many deficiencies in Respondent's performance, including his failure to have a written lesson plan. She left after only sixteen minutes in the classroom. Instead of completing a formal post-observation report with prescriptions and handing it to Respondent, Cobb spoke with Respondent after the observation and informed him of those things that he needed to do to improve his performance. On December 12, 1989, Cobb reviewed Respondent's grade book. Her review revealed that Respondent still had not complied with the specific directives concerning grading that Boone had first issued Respondent on October 26, 1989, and had reiterated on December 6, 1989. Cobb therefore ordered Respondent to comply with these directives by January 2, 1990. Cobb reexamined Respondent's grade book on January 2, 1990. She found that the directed improvements had not been made by Respondent. On January 12, 1990, while in the cafeteria with his students, Respondent playfully held a straw to his nose as one would do if he was snorting cocaine. This incident was reported to Boone. It was further brought to Boone's attention that Respondent had been derelict in his responsibility to properly supervise his class that day. Boone reacted by relieving Respondent of his duties for the day. On June 18, 1990, a conference-for-the record was held. In attendance were Respondent, his union representative, Boone, Doretha Mingo, the Coordinating Principal for the Board's Region II and, as such, Boone's supervisor, and James Monroe, who, at the time, was the Director of the Board's Office of Professional Standards. Respondent was advised of the various complaints that had been made against him. Among the matters discussed was the January 12, 1990, incident with the straw, Respondent's repeatedly falling asleep in class and at meetings, his failure to properly supervise his students, his refusal to record student assessment data in accordance with established procedures and grading criteria, his lack of planning and preparation of written lesson plans, his erratic attendance and his unwillingness to attend scheduled conferences as required. Another subject of discussion was an incident that had occurred the month before during which Respondent had conducted a search, in contravention of Board policy, of two students on school property. Respondent had been aware of this Board policy at the time he conducted the search. At the June 18, 1990, conference-for-the-record, Respondent was directed by Mingo to return his grade book to Boone no later than the following day. Respondent did not comply with this directive. Directives were also issued by Monroe at the June 18, 1990, conference-for-the-record. He ordered Respondent to remain on alternate assignment at home, beginning the next day, and while on such assignment to be accessible by telephone during his seven-hour and five-minute workday between 8:15 a.m. and 3:20 p.m. Monroe further informed Respondent that Respondent was required to undergo a medical examination and drug test to determine his fitness to perform his assigned duties. On January 19, 1990, Monroe telephoned Respondent at home. He directed Respondent to report for his medical examination on January 22, 1990. He further instructed Respondent that, following the completion of the medical examination, Respondent was to remain at home during the remainder of the workday. On January 19, 1990, Respondent submitted to a drug test. The results were positive for cocaine. Respondent failed to appear for his medical examination on January 22, 1990. The examination was rescheduled for Saturday, January 27, 1990. On January 23, 1990, and again on January 24, 1990, Monroe made various attempts to reach Respondent at home by telephone during the workday. Respondent, however, was not at home and therefore Monroe was unable to contact him. Monroe finally got in touch with Respondent on January 25, 1990. He advised Respondent that Respondent was expected to report for his rescheduled medical examination on January 27, 1990, and to remain at home by the telephone during the rest of the workday. He further informed Respondent that he considered Respondent to have been insubordinate and that any further acts of noncompliance on Respondent's part would be deemed gross insubordination and result in a recommendation that Respondent's employment with the Board be terminated. On Monday, January 29, 1990, Monroe received a report from the physician who was to have examined Respondent that Respondent had not kept his January 27, 1990, appointment. That day, January 29, 1990, and the next, Monroe tried telephoning Respondent at home during Respondent's scheduled work hours, but was unable to reach him. 1/ Monroe tried again on January 31, 1991. This time he was successful in reaching Respondent. He ordered Respondent to report immediately to a new alternate assignment at the Board's Region II administrative office. While on this assignment, Respondent was to be supervised by Mingo. Respondent reported to the Region II administrative office later that day. He met with Mingo who provided him with the following written instructions: Effective January 31, 1990 you are directed to report to the Region II office for your assignment. Your work schedule is from 8:15 a.m. to 3:20 p.m. You are to sign in upon arrival and sign out when leaving in the Region II office. If you are going to be absent, you are to call 891-8263 and report your absence to Mrs. Escandell. You may take one hour for lunch between the hours of 11:30 a.m. to 1:00 p.m. You must be back from lunch by 1:00 p.m. You are not to make any personal calls. Requests to make emergency calls must be forwarded to Mrs. Escandell or any secretary in the front office during her absence. Any deviation from this schedule must be approved by Mrs. Mingo. During the Conference for the Record with you on January 18, 1990, you were directed to return your grade book to your school on the following day, January 19, 1990. As per your principal, Mrs. Boone, you have failed to provide the school with the official grade book for your class as of this date. You are directed to turn your grade book in to this writer [Mingo] effective February 1, 1990. Additionally, you will be supplied with a box of ungraded papers from your class which are to be corrected and grades recorded while you are assigned to this office. A schedule for completing this task will be discussed with you on February 1, 1990. Further, during this assignment, you are directed not to report to or call Highland Oaks Elementary School. If there is a need to communicate with anyone at the school, discuss the need with me. Respondent turned in his grade book the following day. That same day, Mingo established a deadline of February 6, 1992, for Respondent to complete his grading of the uncorrected papers with which he had been supplied. On February 5, 1990, Monroe conducted another conference-for-the- record with Respondent. As he had done during the previous conference-for-the-record, Monroe discussed with Respondent the provisions of the Code of Ethics of the Education Profession and Principles of Professional Conduct for the Education Profession in Florida and directed Respondent to comply with these provisions. He emphasized that it was imperative that Respondent maintain the respect and confidence of colleagues, students, parents and other members of the community, that he make every reasonable effort to protect his students from conditions harmful to learning and safety, and that he not expose students to unnecessary embarrassment or disparagement nor violate their legal rights. Respondent was placed on authorized medical leave effective February 5, through June 21, 1990, to enable him to receive treatment for his drug abuse problem. He was advised that his failure to pursue such treatment would be grounds for dismissal. At the time he was placed on authorized medical leave, Respondent had not completed the grading of the uncorrected papers he had been given. Shortly after being placed on authorized medical leave, Respondent was admitted to Mt. Sinai Hospital where he participated as an inpatient in the hospital's 28-day drug abuse treatment program. He remained in the program for the entire 28 day period. After leaving Mt. Sinai, Respondent went to a halfway house, where he stayed until late April, 1990. On April 26, 1990, Respondent enrolled as an inpatient in the drug abuse treatment program at Concept House. He transferred to Concept House's outpatient program three months later. As an outpatient, Respondent was required to meet with his counselor once a week and to attend group therapy sessions twice a week. On August 21, 1990, the Board's Office of Professional Standards received a sworn statement from Respondent's counselor at Concept House that Respondent was "in treatment and [was] employable at this time." That same day, Joyce Annunziata, Monroe's successor, gave Respondent clearance to return to work as a fifth grade classroom teacher at Highland Oaks. Respondent's continuing employment, however, was conditioned upon his remaining in treatment for his drug abuse problem. It became evident, following Respondent's return to Highland Oaks, that he had not mended his ways. From the outset, he was embroiled in controversy. During the teacher planning days before the opening of school, Respondent loudly argued, without reason, with team members over his spelling/handwriting assignment and declined to participate with them in planning for the upcoming school year. After school opened, Boone began receiving the same type of complaints about Respondent that she had received the previous year. There was no improvement on Respondent's part. If anything, his conduct and performance were worse than the 1989-90 school year. Particularly disturbing were the disparaging remarks Respondent directed to individual students during class in front of their classmates. On or about December 5 or 6, 1990, it was brought to Annunziata's attention that Respondent was no longer participating in the outpatient program at Concept House. He had been terminated from the program on December 3, 1990, because of noncompliance with his treatment plan. Respondent had started missing required individual and group counseling sessions in September. At the time of his termination from the program, he had not had any face-to-face contact with his counselor for at least 30 days. On December 6, 1990, Annunziata prepared a memorandum directed to Respondent which read as follows: At the conference in the Office of Professional Standards on August 21, 1990, you were cleared to return to full classroom duties at Highland Oaks Elementary School. This release was contingent upon your compliance with program requirements structured by the District's support agency. It has been brought to my attention that you are not complying with program requirements and are thus jeopardizing your employment. Please be advised that if you do not contact the District's referral agency within forty-eight hours of receipt of this memorandum and prepare to contract with the District to participate in a structured program, this office will pursue disciplinary measures. By copy of this memorandum, Ms. Boone is advised to provide to OPS all documentation relating to your performance during the 1990-91 school year. Future noncompliance with program directives will be considered an exhaustion of assistance and engender district action. Respondent received the memorandum on December 28, 1990. On or about December 17, 1990, Respondent's behavior was such that he had to be relieved of his duties for the day. He sang and danced in the cafeteria during lunchtime and slept in the classroom when he was supposed to be teaching, despite a student's attempt to wake him. When awake, he was unable to stand to conduct his class. Instead, he remained slumped in his seat. While seated, he sucked on a candy cane and his fingers making loud, exaggerated noises. He also swung his arms and kicked his legs in all directions. At the request of one of the other fifth grade teachers who reported that Respondent was "out of it," Cobb went to Respondent's classroom. After confirming that Respondent, who appeared glassy-eyed and unaware of his surroundings, was in no condition to continue teaching, she approached Respondent and told him that she wanted to speak with him in her office. In Cobb's office, Respondent told Cobb that he was tired because he had not gotten any sleep the night before. He then went on to tell Cobb a bizarre story about what had purportedly occurred at his house the prior evening. By all appearances, the story, which he repeated for Boone's benefit, was a product of Respondent's imagination. Respondent was supposed to exchange student progress reports with the other fifth grade teachers on December 17, 1990. He was unprepared to do so, however, on this date. On December 29, 1990, Respondent was arrested for possession of cocaine and drug paraphernalia. 2/ He remained in jail until January 18, 1990, when he was released on his own recognizance. On Sunday, January 6, 1991, the day before classes were to resume after the winter holiday break, Respondent telephoned Cobb at home. He told her that he would be absent because he had to go out of town to attend his father- in-law's funeral and that he did not know when he would be able to return. He did not mention anything about his arrest and incarceration, which was the real reason he would be unable to report to work the following day. By misrepresenting his situation to Cobb, Respondent was laying the groundwork to obtain sick leave benefits to which he was not entitled. While Board employees are entitled to paid sick leave for absences resulting from the illness or death of their father-in-law, they are not entitled to such leave for absences resulting from their own incarceration. On or about January 11, 1991, Annunziata reassigned Respondent from Highland Oaks to the Region II administrative office, where Respondent was to be under Mingo's supervision. January 22, 1991, was Respondent's first day back to work after his arrest. He reported to the Region II office and met with Mingo. Mingo gave him the same instructions, which are recited in paragraph 38 above, that she had given him the prior school year when he had been assigned to her office. On January 24, 1991, Annunziata conducted a conference-for-the record with Respondent to address issues relating to his continued employment with the Board. She informed Respondent during the conference that no final decision would be made until the matter was further reviewed. On Friday, February 8, 1991, Respondent left the Region II office for lunch at 11:30 a.m. He did not return to work that day. It was not until around 2:00 p.m., well after he was supposed to be back from his lunch break, that he first called the office to advise that he was having car trouble. Respondent was also absent the following workday, Monday, February 11, 1991. He telephoned the office to give notice of his absence that day. On February 12, 1991, Respondent neither reported to work, nor telephoned the office to give notice of his absence. Respondent returned to work on February 13, 1991. Upon his return, Mingo spoke with him. She reminded him of the directives she had previously given him regarding leave and attendance matters and made clear to Respondent that he was expected to comply with these directives. Furthermore, she indicated that Respondent would not be paid for the time he was away from the office on February 8, 1991, and February 12, 1991, because she considered his absences on these dates to have been unauthorized. Mingo was concerned not only with Respondent's noncompliance with leave and attendance reporting requirements, but with his sleeping while on duty as well. She therefore directed him, at around 9:10 a.m. on February 13, 1991, to submit to a drug test. She referred him to the urine collection site nearest the office and ordered him to report back to work after he had dropped off his urine sample. Respondent went to the collection site, 3/ but did not return to work that day as directed. Respondent reported to work the next workday. Mingo had another meeting with him. She expressed her displeasure with his having again failed to comply with her directives regarding leave and attendance matters. She once again repeated what those directives were. At around 11:05 a.m. that same day, February 14, 1991, Respondent left the office without authorization at approximately 11:05 a.m. He did not return until around 3:40 p.m. As Respondent was signing out for the day, Mingo confronted him about his unauthorized absence from the office that day. In response to Mingo's inquiry, Respondent told her that, after leaving the office that morning, he had spent the remainder of the day in his car in the parking lot outside the office. Mingo conducted a conference-for-the-record with Respondent on February 20, 1991. She discussed with him his failure to comply with the directives she had given him. During the conference, she reiterated those directives and ordered Respondent to follow them. A month later, on March 20, 1991, the Board took action to suspend Respondent and to initiate dismissal proceedings against him. At the time of his suspension, Respondent was serving under a continuing contract. The directives referenced above that Cobb, Boone, Mingo, Monroe and Annunziata gave Respondent during the 1989-90 and 1990-91 school years and which Respondent refused to obey were reasonable in nature, consistent with Board rules and policies and within these administrators' authority to issue. Respondent's failure to comply with these directives was the product of his unwillingness, rather than a lack of capacity, to do so. Although Respondent may not have received a TADS annual evaluation for the 1989-90 and 1990-91 school years, nor received at any time during these school years a TADS Post-Observation Report reflecting unacceptable performance, he was certainly put on notice by the administration through other means of his deficiencies and what he needed to do to cure these deficiencies. He was given a fair and reasonable opportunity to improve, but simply failed to take advantage of the opportunity. During the 1989-90 and 1990-91 school years, Respondent did not teach effectively and efficiently in accordance with the prescribed curriculum. As a result, his students suffered. They were deprived of the education to which they were entitled. Respondent displayed little or no concern for the educational development and potential of his students. Nor did he appear particularly interested in protecting them against conditions harmful to their safety and general well-being. Respondent's behavior in the classroom during the 1989-90 and 1990-91 school years was inconsistent with the standards of public conscience and good morals. It has brought him notoriety among his colleagues, students and their parents. Such notoriety can only serve to impair his effectiveness as a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the School Board of Dade County issue a final order sustaining the charges of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency against Respondent and dismissing him from employment. RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of February, 1992. STUART M. LERNER 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 11th day of February, 1992.
Findings Of Fact Exception Number 1 is withdrawn by Petitioner. Exception Number 2 is accepted as a matter law. Section 90.803(23), F.S., permits introduction of the affidavit of Chad Johnson proffered as PE-3. Therefore the Conclusions of Law in the Recommended Order, paragraphs 27, 30-35 are modified to the extent they are inconsistent with the legal ruling on admissibility of the affidavit. Further, the Commission adds to Findings of Fact those facts adduced in the affidavit and outlined in Petitioner'S proposed findings of fact, paragraphs 19-27. It concludes these facts are supported by competent substantial evidence in the record, the affidavit of Chad Johnson. Exception Number 3 is withdrawn. Exception Number 4 is withdrawn. Exception Number 5 is withdrawn. RULINGS ON EXCEPTIONS - CONCLUSIONS OF LAW Exception Number 1 is accepted in conjunction with Exception Number 2 to factual findings that, as a matter of law, the affidavit is admissible. Exception Number 2 is accepted, having accepted the facts contained in PE-3, the affidavit of Chad Johnson, that as a matter of law Petitioner has proven that Roy Proctor is guilty of immorality. Paragraph 35 of the Hearing Officer's Recommended Order is rejected.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 5th day of January 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1993. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following constitutes my specific rulings on proposed findings of fact submitted by the parties: Petitioner's proposed findings 1. Rejected, legal argument. 2.-3. Accepted. 4. Rejected, not supported by weight of the evidence. 5.-11. Accepted. 12. Rejected, subordinate to Hearing Officer's findings on this point. 13.-18. Accepted. 19.-27. Rejected, unreliable hearsay. Accepted. Rejected, unnecessary. Rejected, unsupported by weight of the evidence, hearsay. The transcript indicates that the guidance counselor was told by C.J. that Respondent wanted to flick C.J.'s penis. Accepted. 32.-33. Rejected, subordinate to Hearing Officer's findings on this point. 34.-37. Rejected, unnecessary. 38.-40 Accepted. 41.-46. Rejected, subordinate to Hearing Officer's findings on this point. Respondent's proposed findings Respondent's proposed findings were not referenced to any particular transcript citation or evidentiary exhibit. However, the proposed findings have been reviewed, and to the extent possible, are addressed by the foregoing findings of fact. COPIES FURNISHED: Robert J. Boyd, Esquire Post Office Box 26 Tallahassee, Florida 32302 Guy D. Adkins, Esquire 2821-A Bolton Road Orange Park, Florida 32073 Karen Barr Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practice Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Sidney H. McKenzie, Esquire General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400
