Findings Of Fact At all times material, Respondent Michael Eric Pose, age fifteen, was a student at West Miami Junior High School (West Miami) in Dade County, Florida. Respondent's academic performance during the 1986-1987 school year was very poor. He received the grade of "F" in every class. His grades for conduct were also mostly "Fs." In addition, he received the lowest grade for effort (3). Respondent's poor academic performance, lack of effort, and unacceptable conduct resulted in his rot being promoted to the next grade. During the first three marking periods of the 1986-1987 school year, Respondent was enrolled in Louise Johnson's math class, where he was marked absent about 58 times and late 12 times. When Respondent did attend classes he would come without materials and refused to do work when materials were provided by his teacher. He failed to complete 99 percent of his homework assignments and refused 95 percent of the time to perform any class work. On at least two occasions, Respondent was caught sleeping in class by Ms. Johnson. The grades he received in that class for academic performance, effort and conduct were "F- 3-F" (scholarship-effort-conduct). Ms. Harriet Wade, physical education teacher, also had Respondent as a student during the 1986-87 school year. In that class, he was absent 60 times and late 8 times. He refused to wear his gym clothing to the physical education class, refused to participate in games or perform exercises, and frequently engaged in activities which disrupted the class, such as talking to other students and wandering over to talk to other groups. He earned "F-3-F". Ms. Wade's normal form of discipline is to assign detentions and/or the running of laps. Respondent refused to serve either punishment on each occasion it was assigned. Respondent's mother offered as an excuse for Respondent's failure to meet the physical education requirements that he had dislocated his hip when he was four years old. However, she also stated that the surgery was deemed successful and it is clear that the proper medical excuses or records were never submitted to school personnel. There is no competent medical opinion that Michael is presently disabled from normal sports or participation in other school activities. In the same school year, Respondent was also a student of Ms. Tania Martinez-Cruz, English teacher. He was absent from her class 64 times and late 6 times. He refused to do classwork 98 percent of the time and never turned in any homework assignments. After it became apparent that Respondent would not bring materials to class, Ms. Martinez-Cruz kept materials in her classroom for him so that he would have no excuse to avoid working in her class. This method failed. Moreover, during the times he did attend class, Respondent spent 90 percent of the class period sleeping, even though she placed him in the front of the class and required him to participate in classwork as much as possible. Student Case Management Referral Forms (SCMRFs) generally reserved for serious behavior problems, were issued on Respondent's behavior by Ms. Johnson, Ms. Wade, and Ms. Martinez-Cruz due to his lack of interest in school, poor behavior, absences, and tardies. In addition, Respondent received five other SCMRFs from different teachers and/or administrators, all of whom complained of his disinterest in school and unacceptable behavior. One such complaint involved breaking in to a teacher's automobile. Because Respondent was frequently engaged in conflicts of a disruptive nature, he was suspended five times during the 1986-87 school year. Mr. Sotolongo, Assistant Principal, had numerous conversations with Respondent's mother regarding his excessive absences, poor behavior and lack of progress. However, to date the mother has not been able to improve Respondent's interest in school. After numerous attempts at counseling the mother and Respondent, a child study team report was made and conference thereon was held. This report and conference resulted in the administrative assignment of Respondent to J.R.E. Lee Opportunity School. The opinions of the Assistant Principal and the other teachers and administrators who had conferences regarding Respondent was that the more structured environment of an opportunity school would be better for him, as opposed to permitting him to remain in the regular school program where he was making no progress.
The Issue Whether Respondent's employment should be terminated based on the allegations contained in the Notice of Specific Charges.
Findings Of Fact At all times relevant to this proceeding, Petitioner has been a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Florida Constitution, and Section 1001.32. Petitioner has continuously employed Respondent since 1992 as a custodian at Melrose Elementary School, one of the public schools in Miami-Dade County. At all times relevant to this proceeding, Cynthia Gracia was the principal of Melrose Elementary School. Respondent is a non-probationary "educational support employee" within the meaning of Section 1012.40, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system . . . who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 1012.39. . . . "Employee" means any person employed as an educational support employee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. (b) Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . At the times material to this proceeding, Respondent was a member of the AFSCME collective bargaining unit. AFSCME and Petitioner have entered into a CBA, which provides in Article XI for discipline of covered employees. Article XI, Section 4 provides that covered employees who have been employed by Petitioner for more than five years (such as Respondent) may only be discharged for "just cause." Article XI, Section 4 of the CBA pertains to types of separation from employment. Article XI, Section 4(B) pertains to excessive absenteeism and abandonment of position and provides as follows: (B) An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall be grounds for termination. . . . School Board Rule 6Gx13-4E-1.01 provides as follows: Except for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave. Pursuant to Section 1012.67, a school board is authorized to terminate the employment of an employee who is willfully absent from employment without authorized leave, as follows: Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his or her employment shall be subject to termination by the school board. Petitioner's leave policies do not permit a leave of absence for an incarcerated employee, unless the employee can demonstrate that he or she was wrongfully incarcerated. At the times material to this proceeding, Respondent was not wrongfully incarcerated, and he was not eligible for a leave of absence under Petitioner’s leave polices. School Board Rule 6Gx13-4A-1.21 states in pertinent part that: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. On September 25, 2002, Respondent was charged with assault and battery (domestic violence) involving his then girlfriend. Those charges were pending at the time of the final hearing. On or about November 14, 2002, Respondent appeared at a court hearing. Because he had missed an earlier court date, Respondent was incarcerated in the Miami-Dade County jail. Shortly after he was arrested, Respondent attempted to contact Ms. Gracia at Melrose Elementary School. Respondent testified he tried to call the school five or six times on the day he was arrested, but the call from jail was long distance and the school would not take a collect call. That same day, Respondent called his new girlfriend (Leanne Perez), told her that he was in jail, and asked her to tell Ms. Gracia that he was in jail. On November 14, 2002, Ms. Perez told Ms. Gracia by telephone that Respondent had been detained. When questioned, Ms. Perez explained that Respondent was in jail, but she did not provide any additional information. Respondent returned to his job site on December 16, 2002. Between November 14 and December 16, Respondent was absent from work without authorized leave. Neither Respondent nor anyone on Respondent's behalf contacted or attempted to contact Ms. Gracia between Ms. Perez's telephone call on November 14 and Respondent's reappearance at the job site on December 16. Prior to his incarceration, Respondent had absences from work without authorized leave. From April 11, 2002, to December 16, 2002, Respondent had 29.5 days of unauthorized absences from the worksite. Respondent's unauthorized absences impeded the provision of the custodial services that are necessary to keep a school clean and safe. During Respondent's unauthorized absences, the other members of the custodial staff had to perform their duties and had to perform extra work to cover for Respondent's absence. On December 5, 2002, Ms. Gracia wrote a memorandum to Respondent styled "Employment Intention." After listing the dates Respondent had been absent between October 10, 2002, and December 5, Ms. Gracia wrote as follows: These absences have caused the effective operation of the worksite to be impeded, and/or efficient services to students to be impeded. I am requesting your immediate review and implementation of any of the following options: Notify the worksite of your intended date of return; or Effect leave procedures (request for leave [form] attached); or Implement resignation from Miami-Dade County Public Schools. (Resignation letter attached.) You are directed to notify the worksite within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. Ms. Gracia's memorandum was mailed to the address Respondent had given Petitioner as his residence, and a relative of Respondent, who was not named at the final hearing, signed for the mailing. Respondent testified, credibly, that he did not receive the memorandum until after he got out of jail. Respondent did not respond to the memorandum. Respondent testified, credibly, that he did not intend to abandon his employment. Respondent worked between December 16, 2002, and April 9, 2003, the date Petitioner suspended Respondent's employment without pay and instituted these proceedings to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law set forth in this Recommended Order, sustains the suspension of Respondent's employment without pay, and terminates that employment. DONE AND ENTERED this 24th day of October, 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2003.
The Issue Whether Respondent engaged in the conduct alleged in the Statement of Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:5 The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in St. Lucie County, Florida, (including, among others, Parkway Elementary School, Woodland Academy, Westwood High School, Centennial High School, and Port St. Lucie High School) and for otherwise providing public instruction to school-aged children in the county. Among the School Board's instructional programs is its Hospitalized/Homebound Services Program (Program), which serves "students who are hospitalized [in St. Lucie County] or [otherwise] not able to come to school for at least three weeks." Instructional services are provided to students in the Program in out-of-school settings within the jurisdictional boundaries of St. Lucie County: at the hospital (if the student is hospitalized6) or at the student's home (if the student is homebound). These services are furnished through certified teachers who go to where the students are confined to provide them with instruction. "[M]ost [but not all] of the teachers . . . providing services in [the Program] are teachers who teach during the course of the [regular school] day . . . at [the School Board's] schools." In addition to receiving their regular salaries, these teachers are compensated at an hourly rate of $17.00 per hour for the time that they spend with the hospitalized or homebound students to whom they are assigned. They are also paid at that same rate ($17.00 per hour) for the time that they spend engaging in hospitalized/homebound "pre-planning" (up to a maximum of one hour per student assignment) and hospitalized/homebound "post-planning" (up to a maximum of one hour per student assignment). During "pre-planning," the hospitalized/homebound teacher (H/H teacher) engages in the preparations necessary for providing instructional services to the hospitalized or homebound student. These preparations include meeting with the guidance counselor and teachers at the student's home school to determine what instruction the student will be receiving and to ascertain the role, if any, the home school will play in the instructional process. "[O]btaining [needed] books and materials and creating [any necessary] lesson plans" are among the other things that an H/H teacher is expected to take care of during his or her "pre-planning" time. "Post-planning" time is for the H/H teacher to complete the "dismissal process," which involves turning in paperwork and "meet[ing] with the secretary in the [P]rogram." In addition to the compensation they receive for the actual contact they have with their assigned students and for their "pre-planning" and "post-planning" time, H/H teachers also get paid ($8.50, or one half of their hourly rate) "for their inconvenience" each time they make a scheduled visit to a student's home to provide instruction and no one is there (which happens infrequently). H/H teachers are to "reinitiate services" following such a student "no show" only "after contact ha[s] been made with the home to be certain that the student w[ill] be present." To get paid, H/H teachers must submit completed Hospitalized/Homebound Service Logs (H/H Service Logs) for each assigned student, documenting the dates and times they spent with the student, as well as their "pre-planning" and "post- planning" time and any student "no shows." On each occasion that they visit with a student, H/H teachers must enter on the H/H Service Log for that student the date and the starting and ending times of the visit7 and obtain (on the "Parent Signature" line next to these entries) the signature of the student's parent or other responsible adult present (as verification that the visit was made as indicated by the teacher). Because "pre-planning," "post-planning," and student "no shows" do not involve actual student contact, there is no requirement that (nor reason for) the H/H teacher to obtain the signature of the student's parent or the parent's surrogate to verify that the teacher's entries on the H/H Service Log of "pre-planning" and "post-planning" time and student "no shows" are accurate. H/H teachers are not compensated for the time that they spend traveling in connection with the discharge of their duties, but they are reimbursed for such travel, on a per trip basis, for their mileage in excess of ten miles. To receive such reimbursement, they must submit a completed Monthly Travel and Request for Reimbursement Form reflecting the dates of travel and, for each trip, "from where to where" they traveled, the trip's purpose, and the total number of miles traveled. The foregoing Program policies are of a long-standing nature and were in effect at all times material to the instant case. H/H teachers report to a Program Specialist, who oversees "the day-to-day operations of the Program." Billy Tomlinson was the Program Specialist from 1989 to 1994. Mr. Tomlinson's successor was Bennet Buckles, Jr., who remained in the position until the beginning of the 1999-2000 school year, when Brenda Washington became the Program Specialist. Ms. Washington was the Program Specialist during the 1999-2000 and 2000-2001 school years. Ms. Washington was replaced by Talecia Jones. Karen Clover is the current Program Specialist. Immediately above the Program Specialist in the chain of command is the School Board's Director of Exceptional Student Education,8 whose immediate supervisor is the School Board's Executive Director of Student Services. The Director of Exceptional Student Education and the Executive Director of Student Services are administrators who have the authority to establish and modify Program policies. Sandra Akre is now, and has been since approximately 1998, the School Board's Director of Exceptional Student Education. Barbara Slaga is now, and has been since 1992, the School Board's Executive Director of Student Services. It is expected that any questions that an H/H teacher has regarding the Program will first be directed to the Program Specialist; however, H/H teachers are free to consult with Ms. Akre and Ms. Slaga, particularly if the teachers are told something by the Program Specialist that "seem[s] to be in conflict with past practice or what they have done before."9 The Program Specialist is a not an administrator, but rather is a "teacher on special assignment" responsible for seeing to it that Program policies are followed. The Program Specialist lacks the authority to permit an H/H teacher to receive compensation for more than one hour of "pre-planning" time per student (the maximum allowed under Program policy), even where "extraordinary circumstances" exist. Such a deviation from Program policy must be approved by an administrator. Among the duties of the Program Specialist is to train H/H teachers. A prerequisite to becoming and remaining an H/H teacher is participating in an annual training session conducted by the Program Specialist. This required training is "typically . . . provided at the beginning of the [school] year" and is "extensive." Each training session lasts "two to two-an-a-half hours [and] all the [Program] procedures and the rules" are covered, including the long-standing Program policies regarding H/H teacher compensation and reimbursement discussed above.10 The Program Specialist uses a training manual to facilitate training. The contents of the manual for H/H teachers are reviewed during training. A copy of the manual is given to each H/H teacher to keep and "use . . . as a reference." Training at the beginning of the 1999-2000 school year was jointly conducted by Ms. Washington, the new Program Specialist, and Mr. Buckles, her predecessor. The following school year, Ms. Washington conducted the training herself, using a new training manual that she had put together (2000-01 Manual or Manual). The 2000-01 Manual contained "more detail" on some subjects than the version it replaced. The following "Hospitalized/Homebound Procedures" were set forth in the 2000-01 Manual: Upon admission to the Hospitalized/Homebound Program, the referral form is generated from the Doctor and submitted to the Homebound office where it will be processed. A staffing will be held to determine eligibility for the program. As prescribed by rule 6A-6.03020(3) the IEP will be developed on an informal basis unless they are enrolled in ESE. If enrolled in ESE, then a school based staffing MUST take place. At this point a teacher will be assigned to provide the educational program. The assignment of the teacher will be determined by the ESE office. The number of hours for the student will be determined on an individual basis. The teacher is responsible for developing the Individual Education Plan as outlined in the flow chart. Our responsibility is for the delivery of subjects that are required in the educational program NOT necessarily the elective subjects. Elective instruction should be correlated between the school and homebound teacher. Elective subjects that are required for graduation will be given consideration.* (*This does not mean that we will not provide instruction in elective subjects.) The guidance counselor must be an active participant in determination of the subjects to be covered. All Hospital[ized]/Homebound teachers must use the Hospital[ized]/Homebound Conference Form. It is the responsibility of all homebound teachers to meet with all of a student's classroom teachers and document how information will be transferred. After the conference a copy must be forwarded to the principal of the school. NEVER leave the school without obtaining a signature on the form from either the guidance counselor or principal. During the conference stress the fact that grades will improve because of one-on- one instruction. If they do not improve someone is not doing something correct[ly]. . . . 12. Assignments are to be returned on a weekly basis with communication reports going to the school along with a copy of the communication report forwarded to the Hospital[ized]/Homebound office. The "Hospital[ized]/Homebound Staff Responsibilities" section of the 2000-01 Manual provided as follows: Upon admission to the Hospital Homebound Program, each student will be assigned to a teacher. The teacher is responsible for: -Attend inservice and workshops as required. -Attend staffings at ESE office or home school as assigned. -Setting up appointments with guidance counselors, teachers and parents. -Completing necessary paperwork, including writing short-term objectives. Contacting home schools to determine courses/concerns as necessary. Act as liaison between subject area teachers and parents when needed; if a concern arises for a student in a particular class or subject area, the subject area teacher should first contact the parent. If the issue is not resolved, the Homebound teacher should be contacted for input. The specialist should be notified following the resolution by the subject area [teacher] and Homebound teacher. -Preparing and maintaining grade sheets. -Scheduling instructional time periods. -Keeping accurate attendance records. -Delivering and returning materials, textbooks, units, or tests. -Filling out FTE individual student schedules for FTE count. -Maintaining papers for school/parents to be mailed. -Administering state, local, and teacher developed test/assessments. -Completing Hospital[ized]/Homebound grade sheets. Conferring with student, parents, and school guidance counselors on course changes or adaptations. -Providing information to other subject area teachers about a student's medical problem, limitations, and education background. However, if student is in a hospital, all information is confidential. -Maintaining accurate weekly schedules and travel logs. Completing weekly Communications logs between Hospital[ized]/Homebound and regular education teacher. -In order for a teacher to claim pay for 1 (one) hour of pre-planning, it will be necessary to submit to us the Homebound Conference Form which shows actual attendance at school based meeting. -In order for a teacher to obtain pay for 1 (one) hour of post-planning, it will be necessary to sign off on Homebound dismissal with Janet Cooper. At the dismissal time, all paperwork must be submitted and at the close-out staffing it will be disseminated to the appropriate school. You have 24 hours after dismissal to have all paperwork turned in to the ESE Homebound Office. You must call and make an appointment with Janet Cooper. The "Guidelines [for] Hospitalized/Homebound Teachers" section of the 2000-01 Manual provided as follows: Welcome to the Hospitalized/Homebound Program of St. Lucie County. Your interest and willingness to help are appreciated, and we feel sure that you will enjoy the work you do with our students. You probably have many questions concerning this program, and we hope that these few guidelines will be of some help. Call the school counselor to schedule a meeting. Call the student's home and inform the parent/guardian of the meeting with the guidance counselor. It is best if the parent can meet with both of you. If they cannot, however, you can make an appointment with the parent to review the plan. Remind the parent or guardian that a responsible adult must be present at all times while you are in the home. This may be a relative or neighbor if the parents are unable to be there. It is recommended that an average of 3-5 hours per week be spent with elementary students, 4-8 hours per week with middle school students and 7-12 hours per week with high school students, but some situations may require more or less time. (Flexibility is the name of the game in this program.) In your initial conversation with the parent, you may find out whether the student has books and/or assignments and what he/she needs from school. Each time you visit the student, ask the adult who is there to sign your contracted teacher log. If the student is in the hospital, ask a nurse to sign it for you. Please follow the payroll schedule to assure proper payment for your services. You will be paid for actual student contact hours. Mileage is included in your stipend for the first ten (10) miles traveled on any visit to the student residence or place of instruction. We will try to assign students within a reasonable distance from your home. Please work with the students on regular school days, not on holidays or weekends. The School Board considers only those school days according to the official school calendar as appropriate teaching days. When you accept a student, you will be given a packet containing all forms and information that you will need. There will always be questions so please feel free to call. Our number at the ESE office is . . . . The 2000-01 Manual also contained the following "Hospitalized/Homebound Program Procedures for Completing Travel Forms": The following procedures have been established for completing travel forms: Contracted teachers are required to submit the travel form that coincides with the time sheet. Accounting has requested this requirement. Stipend teachers' travel can be accumulated and then submitted after the form is completed for the month. In the column "From Where - To Where" write from where you are leaving (ex: School Name or your home), then write the student's address (not name), next, where you returned to (ex: School Name or your home). You may write "home" because your address appears at the bottom of the form. As noted on the form "indicate clearly if round trip." You may submit trips to the student's school to pick up homework, meetings, etc. for the student. Indicate the mileage from point of departure to the destination, then point of return. In the column "Purpose" write the reason for the trip, such as tutor homebound student. If other than tutoring, please indicate the reason. When calculating mileage the following steps are necessary: Enter the total miles from your point of departure to the student's home then to your point of return. Write on the form under "Miles" the total miles for this round trip. Then, write the subtraction of 10 miles from the total. This will be the figure allowed for reimbursement. You must write round trip total per trip minus 10 miles for each day. If this is not indicated on your form that you subtracted 10 miles for each trip, then we will subtract 10 from the daily totals to calculate your reimbursement. At the bottom of the form, write the date you completed the form, your social security number, print your name and address, and be sure to sign. This form cannot be submitted without your signature and will be returned to you if omitted. If you have any question, please call Janet for further assistance at . . . . In addition, the 2000-01 Manual included copies of the following forms, among others: the Hospitalized/Homebound Conference Form, the Hospitalized/Homebound Program Record Weekly Communication Record, the H/H Service Log, and the Monthly Travel and Request for Reimbursement Form. On the top of the Hospitalized/Homebound Conference Form in the Manual was the following statement: The Hospital[ized]/Homebound Program is coordinating the education services for the student listed. To maintain parity with the quality education provided by the classroom teacher, the program will require a copy of course syllabi, appropriate textbooks, weekly assignments and evaluations. *If the Hospital[ized]/Homebound teacher is responsible for grading assignment and evaluations an answer key is required. The Guidance Department must determine if the existing course schedule is appropriate for Hospital[ized]/Homebound instruction. Appropriate modifications to course offering or content must be determined prior to plan implementation. The form had spaces for the student's name, address, school, grade, guidance counselor, and H/H teacher, the "date of meeting," the "subjects to be taught" by the H/H teacher, the signatures of the "classroom teachers" who would otherwise be teaching the student those subjects, and the signatures of the guidance counselor and the H/H teacher. There were also spaces to indicate, for each subject, whether assignments and examinations would be "transferred" by "PONY," the student's parent, or the H/H teacher and whether these assignments and examinations would be graded by the classroom teacher or the H/H teacher. The Hospitalized/Homebound Program Weekly Communication Record in the Manual had spaces for the H/H teacher to indicate the student's "academic average for the week by subject." The H/H Service Log in the Manual indicated on its face that it was a "record of hospitalized/homebound teacher services." It had spaces for the H/H teacher to indicate the "[d]ays(s) and time(s) of the week [the] student [in question] was served." In all caps and boldface type on the log was the reminder, "Parent/Guardian signature required daily," and there were spaces on the log for such signatures. The log also contained the following certification to be signed and dated by the H/H teacher: "I hereby certify that the above services were provided by me as indicated." Underneath the signature line for the H/H teacher were signature lines for the Program Specialist and the "administrator [giving] approval." The Monthly Travel and Request for Reimbursement Form in the Manual had four columns with the following headings, reading from left to right: "Date of Travel," "From Where - To Where (Indicate clearly if round trip)," "Purpose," and "Miles." On the bottom left hand corner of the form was the following "Note": Miles to and from school centers must agree with approved school mileage chart. Each date of travel must be reported separately. Respondent was among the H/H teachers who were trained and supervised by Ms. Washington during the 2000-01 school year.11 This was not the first year that she had taught in the Program.12 At all times that she served as an H/H teacher, Respondent was also under contract with the School Board to provide school-based instruction during the regular school day. Although she has been employed by the School Board since approximately 1981, she has not been a teacher for this entire period of time. From the commencement of her employment with the School Board until the 1994-95 school year, she held various noninstructional positions. During the 1994-95 school year, Respondent graduated from Nova Southeastern University with a degree in exceptional education. She obtained, and still holds, Florida certification in the areas of emotionally handicapped and severely emotionally disturbed. It has only been since the 1994-95 school year, when she taught a varying exceptionalities class at Parkway Elementary School, that Respondent has worked as a teacher for the School Board. At the beginning of the 2000-01 school year, Respondent taught at Westwood High School. In or around September 20, 2000, she was transferred to Woodland Academy, where she remained for the rest of the school year. Respondent returned to Westwood High School the next school year. S. S. is one of the students served by the Program. She is a sixteen-year-old girl who has Cystic Fibrosis. Because of her illness, S. S. "runs infections quite a bit" and often needs to be hospitalized for ten days to two weeks or more at a time. As a result, "she doesn't get much time home." J. S. is S. S.'s mother. J. S. "work[s] a tremendously demanding job" with long hours that often prevents her from being home before evening. Sometime after the beginning of the 2000-01 school year, in or around late September or early October of 2000, Respondent (who had already undergone the required annual training for H/H teachers) was assigned by Ms. Washington to be S. S.'s H/H teacher. The assignment continued until the end of the school year. During the 2000-01 school year, S. S. was a ninth grade student taking, among other subjects, English, algebra, biology and global studies. Her home school that year was Centennial High School. S. S. was hospitalized at St. Mary's Medical Center in West Palm Beach, Florida, on seven different occasions during the 2000-01 school year. The shortest of these hospital stays was ten days. The longest was 19 days. Before each of these hospitalizations, J. S. gave the School Board notice (by telephoning either Respondent or the School Board's Exceptional Student Education office) that S. S. would be going into the hospital. At no time during the 2000-01 school year did S. S. have access to a functioning computer (either at the hospital or at home) that she used for schoolwork.13 The School Board provided S. S. with a computer that Respondent tried to set up in S. S.'s home, but the computer "never worked." During the period that Respondent was S. S.'s H/H teacher (and S. S. was at home and not hospitalized), Respondent did not visit S. S. every school day; rather, she visited once or twice a week. J. S. was present for only a "few" of these visits. She was under the impression that she did not need to be there when Respondent visited inasmuch as S. S. had "hit high school age." The longest Respondent ever stayed with S. S. during a visit was one and half to two hours. There were only one or two visits of this length. They occurred "at the beginning" when Respondent was attempting to set up the computer in S. S.'s home. The other visits were "short" and, for the most part, involved Respondent "just dropping off work" for S. S. When S. S. completed the work that Respondent had dropped off for her, she gave it to her mother or her sister to give to Respondent. Respondent provided S. S. with no instruction during her visits with S. S. except for "a little bit" of instruction in algebra.14 Respondent submitted completed H/H Service Logs (using the form contained in the Manual) on which she knowingly made false representations, with the intent to defraud the School Board,15 concerning the "services [she] provided" S. S. She did so to obtain compensation to which she knew she was not entitled.16 On many of the occasions that Respondent claimed, on the logs, she had been with S. S. providing "services," she, in fact, had not provided the "services" claimed. Respondent made these false claims knowing that they were not true and anticipating that the School Board would rely upon them in determining the amount of pay she would receive. J. S. was an unwitting participant in Respondent's scheme. J. S. signed H/H Service Logs presented to her by Respondent after being told by Respondent that Respondent "had been coming" to visit S. S. when J. S. was not home and that J. S. needed to sign the logs to indicate that such visits had been made. J. S. took Respondent at her word about these alleged visits and followed Respondent's directions. Some of the H/H Service Logs that Respondent gave J. S. to sign had the dates and times of these alleged unsupervised visits already filled in. Others did not. The evidentiary record contains twelve H/H Service Logs (collectively covering the period from September 25, 2000 to May 25, 2001) that Respondent filled out and turned in during the time that she was S. S.'s H/H teacher. On each, Respondent "certif[ied]" (by her signature) that she had "served" S. S. on the dates and times indicated thereon. There is a signature purporting to be that of J. S. on the "Parent Signature" line to the right of each date of "service[]" entered on each log.17 With one exception (the log covering the period from April 23, 2001, to May 11, 2001), each log also bears what purports to be Ms. Washington's signature on the "Program Specialist" signature line directly underneath Respondent's "certif[ication]." On the first log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from September 25, 2000, to October 13, 2000: Monday, September 25, 2000, for an hour, from 8:30 to 9:3018; Tuesday, September 26, 2000, for two hours, from 7:30 to 9:30; Wednesday, September 27, 2000, for one hour, from 8:30 to 9:30; Thursday, September 28, 2000, for one hour, from 8:30 to 9:30; Friday, September 29, 2000, for three hours, from 6:30 to 9:30; Monday October 2, 2000, for two hours, from 9:00 to 11:00; Tuesday, October 3, 2000, for two hours, from 9:00 to 11:00; Wednesday, October 4, 2000, for two hours, from 9:00 to 11:00; Thursday, October 5, 2000, for three hours, from 8:00 to 11:00; Friday, October 6, 2000, for three hours, from 5:30 to 8:30; Tuesday, October 10, 2000, for three hours, from 6:00 to 9:00; Wednesday, October 11, 2000, for three hours, from 6:00 to 9:00; and Thursday, October 12, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that October 9, 2000, was Yom Kippur and that October 13, 2000, was an "inservice day." On the second log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from October 16, 2000, to November 3, 2000: Monday, October 16, 2000, for one hour, from 6:00 to 7:00; Tuesday, October 17, 2000, for two hours, from 6:00 to 8:00; Wednesday, October 18, 2000, for two hours, from 6:00 to 8:00; Thursday, October 19, 2000, for two hours, from 6:00 to 8:00; Friday, October, 20, 2000, for one hour, from 6:00 to 7:00; Tuesday, October 24, 2000, for two hours, from 6:00 to 8:00; Wednesday, October 25, 2000, for two hours, from 6:00 to 8:00; Thursday, October 26, 2000, for two hours, from 6:00 to 8:00; Friday, October 27, 2000, for two hours, from 6:00 to 8:00; Monday, October 30, 2000, for one hour, from 6:00 to 7:00; Tuesday, October 31, 2000, for two hours, from 6:00 to 8:00; Wednesday, November 1, 2000, for two hours from 6:00 to 8:00; Thursday, November 2, 2000, for two hours, from 6:00 to 8:00; and Friday, November 3, 2000, for one hour, from 6:00 to 7:00. On the third log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from November 6, 2000, to November 24, 2000: Monday, November 6, 2000, for three hours, from 6:00 to 9:00; and Tuesday, November 7, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days during the period. On the fourth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from November 27, 2000, to December 15, 2000: Wednesday, November 29, 2000, for three hours, from 6:00 to 9:00; Thursday, November 30, 2000, for three hours, from 6:00 to 9:00; Friday, December 1, 2000, for three hours, from 6:00 to 9:00; and Monday, December 4, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days during the period. On the fifth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from January 3, 2001, to January 12, 2001: Wednesday, January 3, 2001, for two hours, from 6:00 to 8:00; Thursday, January 4, 2001, for two hours, from 6:00 to 8:00; Friday, January 5, 2001, for two hours, from 6:00 to 8:00; Monday, January 8, 2001, for two and a half hours, from 6:00 to 8:30; Tuesday, January 9, 2001, for two and a half hours, from 6:00 to 8:30; Wednesday, January 10, 2001, for two and a half hours, from 6:00 to 8:30; Thursday, January 11, 2001, for two and a half hours, from 6:00 to 8:30; and Friday, January 12, 2001, for two hours, from 6:00 to 8:00. On the sixth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from January 15, 2001, to February 2, 2001: Tuesday, January 16, 2001, for two hours, from 3:00 to 5:00; Wednesday, January 17, 2001, for two hours, from 3:00 to 5:00; Thursday, January 18, 2001, for two hours, from 3:00 to 5:00; Monday, January 22, 2001, for two hours, from 3:00 to 5:00; Tuesday, January 23, 2001, for two hours, from 3:00 to 5:00; Wednesday, January 24, 2001, for two hours, from 3:00 to 5:00; Thursday, January 25, 2001, for two hours, from 3:00 to 5:00; Friday, January 26, 2001, for two hours, from 3:00 to 5:00; Monday, January 29, 2001, for two hours, from 3:00 to 5:00; Tuesday, January 30, 2001, for two hours, from 3:00 to 5:00; and Wednesday, January 31, 2001, for two hours, from 3:00 to 5:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days (February 1 and 2, 2001) during the period. On the seventh log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from February 5, 2001, to February 16, 2001: Wednesday, February 7, 2001, for three and half hours, from 3:00 to 6:30; Thursday, February 8, 2001, for three and half hours, from 3:00 to 6:30; Friday, February 9, 2001, for four hours, from 3:00 to 7:00; Monday February 12, 2001, for one hour, from 3:00 to 4:00; Tuesday, February 13, 2001, for three and half hours, from 3:00 to 6:30; Wednesday, February 14, 2001, for three and half hours, from 3:00 to 6:30; Thursday, February 15, 2001, for three and half hours, from 3:00 to 6:30; and February 16, 2001, for a half hour, from 3:00 to 3:30. It was noted on the log that S. S. was in the hospital on the remaining regular school days (February 5 and 6, 2001) during the period. On the eighth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from February 19, 2001, to March 2, 2001: Monday, February 19, 2001, for two hours, from 3:00 to 5:00; Tuesday, February 20, 2001, for two hours, from 3:00 to 5:00; Wednesday, February 21, 2001, for two hours, from 3:00 to 5:00; Thursday, February 22, 2001, for two hours, from 3:00 to 5:00; Friday, February 23, 2001, for one hour, from 3:00 to 4:00; Monday, February 26, 2001, for two hours, from 3:00 to 5:00; Tuesday, February 27, 2001, for two hours, from 3:00 to 5:00; Wednesday, February 28, 2001, for two hours, from 3:00 to 5:00; Thursday, March 1, 2001, for two hours, from 3:00 to 5:00; and Friday, March 2, 2001, for one hour, from 3:00 to 4:00. On the ninth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from March 5, 2001, to March 16, 2001: Monday, March 5, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, March 6, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, March 7, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, March 8, 2001, for an hour and a half, from 3:00 to 4:30; and Friday, March 9, 2001, for an hour, from 3:00 to 4:00. It was noted on the log that S. S. was not provided any "services" the week of March 12, 2001, and that she was "hospitalized" for the last three days of that week. On the tenth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from April 2, 2001, to April 20, 2001: Monday, April 2, 2001, for two hours, from 3:00 to 5:00; Tuesday, April 3, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, April 4, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, April 5, 2001, for an hour and a half, from 3:00 to 4:30; Friday, April 6, 2001, for two hours, from 3:00 to 5:00; Monday, April 16, 2001, for two and a half hours, from 2:30 to 5:00; Tuesday, April 17, 2001, for two hours, from 2:30 to 4:30; Wednesday, April 18, 2001, for two hours, from 2:30 to 4:30; Thursday, April 19, 2001, for two hours, from 2:30 to 4:30; and Friday, April 20, 2001, for two and a half hours, from 2:30 to 5:00. It was noted on the log that the week of April 9, 2001, was "spring break." On the eleventh log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from April 23, 2001, to May 11, 2001: Monday, April 23, 2001, for two hours, from 3:00 to 5:00; Tuesday, April 24, 2001, for two hours, from 3:00 to 5:00; Wednesday, April 25, 2001, for two hours, from 3:00 to 5:00; Thursday, April 26, 2001, for two hours, from 3:00 to 5:00; Friday, April 27, 2001, for two hours, from 3:00 to 5:00; Monday, April 30, 2001, for two hours, from 3:00 to 5:00; Tuesday, May 1, 2001, for two hours, from 3:00 to 5:00; Monday, May 7, 2001, for two hours, from 3:00 to 5:00; Tuesday, May 8, 2001, for two hours, from 3:00 to 5:00; Wednesday, May 9, 2001, for two hours, from 3:00 to 5:00; Thursday, May 10, 2001, for two hours, from 3:00 to 5:00; and Friday, May 11, 2001, for two hours, from 3:00 to 5:00. It was noted on the log that S. S. was "hospitalized" on the remaining regular school days (May 2, 3, and 4, 2001) during the period. On the twelfth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from May 14, 2001, to May 25, 2001: Monday, May 14, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, May 15, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, May 16, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, May 17, 2001, for an hour and a half, from 3:00 to 4:30; Friday, May 18, 2001, for an hour and a half, from 3:00 to 4:30; Monday, May 21, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, May 22, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, May 23, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, May 24, 2001, for an hour and a half, from 3:00 to 4:30; and Friday, May 25, 2001, for an hour and a half, from 3:00 to 4:30. On an area of the log where there were no printed words or lines was the following notation: "One hour planning." No date or times were given, nor was there any signature next to this notation.19 The evidentiary record also contains four Monthly Travel and Request for Reimbursement Forms (Travel Reimbursement Forms) that Respondent filled out and turned in during the time that she was S. S.'s H/H teacher.20 The first of these Travel Reimbursement Forms covered the period from September 25, 2000, to October 13, 2000, the same period covered by the first service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back (a round trip of 33.5 miles) on each of the days that, according to the first service log, she "served" S. S.21 No other travel was reflected on the form. The second of these Travel Reimbursement Forms covered the period from January 15, 2001, to February 9, 2001. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the sixth service log, she represented she "served" S. S. She further claimed, on this Travel Reimbursement Form, that she made the same round trip on February 7, 8, and 9, 2001 (days that, on the seventh service log, she represented she "served" S. S). No other travel was reflected on the form. The third of these Travel Reimbursement Forms covered the period from February 19, 2001, to March 2, 2001, the same period covered by the eighth service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the eighth service log, she represented she "served" S. S. No other travel was reflected on the form. The fourth and last of these Travel Reimbursement Forms covered the period from March 5, 2001, to March 16, 2001, the same period covered by the ninth service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the ninth service log, she represented she "served" S. S. No other travel was reflected on the form. The evidentiary record also contains one H/H Service Log on which Ms. Washington "certif[ied]" that she "served" S. S. (as S. S.'s H/H teacher) on September 18, 2000, for four hours, from 5:00 to 9:0022; September 20, 2000, for four hours, from 5:00 to 9:00; September 22, 2000, for four hours, from 5:00 to 9:00; September 24, 2000,23 for four hours, from 5:00 to 9:00; September 25, 2000, for four hours, from 5:00 to 9:00; and September 26, 2000, for four hours, from 5:00 to 9:00.24 There is no "Parent Signature" to the right of either the September 18, 21, 24, or 26, 2000, entry. There is a signature purporting to be that of J. S. on the "Parent Signature" line to the right of each of the other alleged dates of "service[]." There is a notation on the log (together with an arrow) indicating that S. S. was "[r]e-assigned [to] Celestine Baker" on the Thursday of the school week beginning Monday, September 25, 2000 (that is, on September 28, 2000).25 The administrator who signed the log was someone other than Ms. Slaga or Ms. Akre. It was not until after the end of the school year that it "c[a]me to [Ms. Slaga's] attention that Ms. Washington had some service logs[26] related to [S. S.]." Ms. Slaga found it "very unusual to see" an H/H Service Log submitted by a Program Specialist. At the suggestion of Susan Ranew, the School Board's Director of Personnel, Ms. Slaga visited J. S. and showed her the service logs in question. J. S. told Ms. Slaga, after examining the logs, that "no services" were provided on some of the alleged dates of "service[]," including dates on which S. S. "was in the hospital in West Palm Beach." J. S. added that not all of the signatures on the "Parent Signature" lines on the logs were hers. When Ms. Slaga returned from her visit with J. S., she "pulled out all of [S. S.'s] logs," including those submitted by Respondent, and reviewed them. Ms. Slaga noticed that "some of the dates that were on [Respondent's] log were the same dates that Ms. Washington had [claimed] that she [had] provided services to [S. S.]."27 These were dates on which, according to what J. S. "had already shared" with Ms. Slaga, S. S. "was in the hospital in West Palm [Beach]." After obtaining information from St. Mary's Medical Center concerning S. S.'s hospitalizations, Ms. Slaga re- examined the service logs and confirmed "that there were days of service indicated by both Ms. Washington and [Respondent] that [S. S] had been in the hospital." Ms. Slaga "turned the information over to the [School Board's] Personnel [Office]." Russell Anderson, the School Board's Assistant Superintendent for Human Resources, after consulting with the School Board's Superintendent of Schools, called in the law firm of Richeson and Associates to engage in "formal fact finding." During the "formal fact finding," Respondent was provided the opportunity to give "a statement of her side of the story." Through her attorney, she declined to give such a statement.28 At some point in time, Respondent telephoned S. S. and told S. S., if S. S. "were contacted by the School [Board] regarding [Respondent's] services," to lie and say that Respondent "came every day."29 Ms. Washington, unlike Respondent, did give a statement, which "was eventually turned into an affidavit." In her affidavit (which was received into evidence as Respondent's Exhibit 3, over the School Board's objection), after discussing the Program and procedures relating to the completion and approval of H/H Service Logs and Travel Reimbursement Forms, Ms. Washington went on to describe those "activities . . . related to [S. S.'s] involvement in the hospitalized/homebound program" in which she claimed she engaged on the dates of "service[]" indicated on her "service logs for the time periods of 8/22/00-8/30/00; 8/31/00-9/13/00; and 9/18/00-9/27/00." Some of the "activities" she described did not involve "actual student contact," such as "visiting different locations in St. Lucie and Martin Counties . . . in attempts to acquire a needed adapter for [an] Apple laptop computer so that [she] could provide the laptop to S. S." and attending "meetings at Port St. Lucie High School [S. S.'s home school at the time] concerning providing hospitalized/homebound services to [S. S.]." Ms. Washington further stated that, "[o]n 8/30/00, [she] went the [S. S.'s] home and installed a desktop computer and password" and that "[t]his desktop computer had the computer program 'Plato' installed on it so that [S. S.] could utilize computerized instruction." Ms. Washington added that, "since [she] had Plato installed on [her] laptop, [she] was able to monitor [S. S.] while [S. S.] worked on the desktop computer." Ms. Washington went on to claim that she did such "monitor[ing]" on the following dates: August 31, 2000; September 2, 2000; September 6, 2000; September 7, 2000; September 8, 2000; September 11, 2000; September 12, 2000; September 13, 2000; September 18, 2000; September 20, 2000; September 22, 2000; September 24, 2000; September 25, 2000; and September 26, 2000. These representations were false. There was no "computerized instruction." There was no "monitoring." Indeed, there was not even a "desktop computer" set up in S. S.'s home. These were all things that Ms. Washington had made up.30 Having described in the preceding portions of her affidavit the non-"actual student contact" activities in which she claimed to have engaged on the dates of "service[]" reported on the service logs she submitted, Ms. Washington made the following self-serving statements in paragraphs 21, 22 and 23 of the affidavit:31 I wrote the training manual for teachers in relation to the ESE Hospitalized/Homebound Program. Although page 9 of this training manual (#6) states "you will be paid for actual student contact hours" this does not prevent a hospitalized/homebound teacher or program specialist from submitting time on their service log for any activity related to a student in the hospitalized/homebound program. The Training Manual does not address all possible scenarios and is only intended to be a guide for teachers. The reference on page 9 of this training manual, which states "you will be paid for actual student contact hours" refers only to teachers/program specialists being reimbursed for mileage. I believe that it is proper for a teacher or program specialist to record on their service log any time that the teacher or program specialist spends performing any activity related to a student in the hospitalized/homebound program if that activity is performed outside the teacher's or program specialist's normal workday. Page 8 of this training manual provides that in order for teachers and program specialists to claim payment for 1 hour of pre-planning, actual attendance at a school based meeting[] is required. However, I believe that a teacher or program specialist is allowed to perform this pre-planning at [his or her] home, and that any time that the teacher or program specialist spends performing any activity at a school (outside [his or her] normal work hours) in relation to a student in the hospitalized/homebound program may be recorded on the service log. I performed the pre-planning for [S. S.] while I was in my office, during normal working hours. By mid-October of 2001, Ms. Washington had been suspended from her Program Specialist position and Ms. Jones had been assigned to take her place. While Ms. Jones was "in training," Mr. Tomlinson was asked to review and sign the completed H/H Service Logs submitted by the H/H teachers. Among the completed service logs Mr. Tomlinson reviewed was one submitted by Respondent, on which Respondent "certif[ied]" (by her signature) that she "served" J. A., a hospitalized/homebound student to whom she had been assigned, on the following dates and times during the period from October 1, 2001, to October 16, 2001: Monday, October 1, 2001, for two hours, from 3:15 to 5:15; Tuesday, October 2, 2001, for two and a half hours, from 3:15 to 5:45; Wednesday, October 3, 2001, for two and a half hours, from 3:15 to 5:45; Thursday, October 4, 2001, for two and a half hours, from 3:15 to 5:45; Friday, October 5, 2001, for two and a half hours, from 3:15 to 5:45; Monday, October 8, 2001, for two and a half hours, from 3:15 to 5:45; Tuesday, October 9, 2001, for two and a half hours, from 3:15 to 5:45; Wednesday, October 10, 2001, for two and a half hours, from 3:15 to 5:45; Thursday, October 11, 2001, for two and a half hours, from 3:15 to 5:45; Friday, October 12, 2001, for two hours, from 3:15 to 5:15; Monday, October 15, 2001, for two hours, from 3:15 to 5:15; and Tuesday, October 16, 2001, for two and a half hours, from 3:15 to 5:45. When Mr. Tomlinson received the log, there was a signature purporting to be that of J. A.'s mother on the "Parent Signature" line to the right of each date of "service[]" entered on the log.32 These signatures were forgeries (as evidenced by the misspelling, in each case, of J. A.'s mother's last name33). They had been placed on the log by Respondent, who did so because she knew that there needed to be a signature on the "Parent Signature" line next to each date of "service[]" in order for her to get paid for the hours of "service[]" she reported having provided on that date.34 Respondent was subsequently, like Ms. Washington, suspended without pay and recommended for termination. No showing has been made that, in being suspended without pay and recommended for termination, Respondent was treated differently and less favorably than any similarly situated teacher suspected by the School Board of having deceptively falsified documents for his or her own personal gain;35 nor has it been shown that she has been targeted for prosecution for any invidious or unlawful reason, such as her race.36
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a professional service contract teacher with the School Board for having engaged in the deceptive and fraudulent conduct described above. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2002.
The Issue The issue is whether Petitioner is entitled to a permanent Florida Educator's Certificate.
Findings Of Fact Petitioner was born on May 25, 1976. She was educated predominantly in the Tampa Bay area, having attended two years of elementary school, all of middle school, and all of high school in Largo. Petitioner is Hispanic and conversant in Spanish, which is the first language that she learned at home, but her primary language is now English, which she speaks fluently and without accent. Petitioner attended the University of South Florida (USF), from which she graduated on July 1, 1998, with a bachelor of science degree and a 3.3 grade point average. She majored in English education and completed the state-approved teacher education program for English certification for grades 6-12. While attending USF, Petitioner participated in an internship under the supervision of a reading teacher with 11 years' teaching experience. During the internship, which ran from January to April 1998, Petitioner taught language arts and drama to Hillsborough County middle-school students who were predominantly Hispanic. Petitioner's supervising teacher gave her two employment references: the first to the Hillsborough County School District and the second to the Pinellas County School District. In the first reference, which is dated April 5, 1998, the supervising teacher evaluated Petitioner as "excellent" in all categories. The categories are "appearance," "English usage," "cooperation and dependability," "emotional stability," "mature judgment," "leadership," "ability to get along with others," and "ability to work with children in a friendly and understanding way." In her remarks, the teacher stated: "We will be lucky to have her." The teacher enthusiastically recommended that Petitioner be employed as a substitute. In the second reference, which is dated September 18, 1998, the supervising teacher assigned Petitioner the highest score in all categories except "ability to discipline," "professional attitude & growth," and "sympathetic understanding and treatment of students," for which the teacher assigned Petitioner the second highest rating. In response to a question if she know why Petitioner should not work with students, the supervising teacher responded, "Absolutely not." In response to a question if she would employ Petitioner, the supervising teacher stated that she would. Under additional comments, the supervising teacher added: "[Petitioner] motivated students on every level. She has the management skills of a ten year teacher." This case arises out of Petitioner's employment during the summer of 1998 as a residential counselor with the Summer Migrant Institute at the University of South Florida (Migrant Institute). This was Petitioner's first job after college. Her prior employment consisted of working at Walgreens pharmacy, escorting USF teachers and students to ensure their safety while walking the USF campus at night, working in the USF Marriott cafeteria, and serving as a substitute teacher in Hillsborough and Pinellas counties. Her present employment is in customer service at the Home Shopping Network. The Migrant Institute is a six-week program sponsored jointly by USF and the Hillsborough County School District. Each summer, eligible middle- and high-school students from throughout Florida live in USF dormitories and attend remedial academic instruction in USF classrooms. The Migrant Institute employs teachers and residential counselors, among other staff. During the summer of 1998, the teachers, residential counselors, and three administrators in charge of the program all resided in the dormitories with the students. The residential counselors performed a variety of supportive roles, such as serving as liaisons with the parents, advisors to the students, and assistants to the teachers. The administrators assigned female residential counselors to female students and male residential counselors to male students, at about a 1:10 ratio. Residential counselors, but not teachers, were required to eat their meals with the students in the cafeteria. There is some dispute, even among the administrators, as to what the administrators told the residential counselors they could and could not do with the students. The record suggests that the assistant director, in particular, was somewhat ambitious in his description of the guidelines and prohibitions that the administrators gave the residential counselors. Of course, nothing in the record suggests that Petitioner lacked the common sense to recognize that she could not voluntarily have sexual contact with a 13-year-old male student. The record is less developed as to what the Migrant Institute rules required Petitioner to do if a 13-year-old male student kissed her, once or even twice. However, the evidence does not support, and even contradicts, the assertions of the administrators that the rules of the Migrant Institute prohibited any contact whatsoever between staff and students of the opposite sex. The student involved in this case is A. M., who was born on August 21, 1984. He had failed most of his classes during the prior school year. He attended the Migrant Institute at the suggestion of his school counselor, who hoped that he could acquire sufficient skills to earn a promotion to the next grade. A. M. took five or six classes during the six-week summer program and earned grades of Bs, Cs, and Ds in his courses. A. M.'s first four weeks at the Migrant Institute passed without incident. In the fourth week, A. M. met Petitioner. Although she was not his residential counselor, A. M. approached Petitioner one afternoon while walking to the dormitories from his last class. During this initial conversation, Petitioner and A. M. spoke only about baseball. However, later in the fourth week, Petitioner and A. M. spoke about other matters, such as his grades and personal problems that he was having that interfered with his academic performance. A. M. missed his father, who was working in Mexico. During the fourth week, Petitioner asked A. M.'s teacher to release him from class, so that Petitioner and A. M. could talk about his problems and academic performance. One day, during the fourth week, after Petitioner and A. M. had spoken three or four times, Petitioner and A. M. happened to encounter each other in a stairwell in the dormitory. It was late in the afternoon after the recreation period, just before the students were to prepare to eat supper. Someone had directed Petitioner to find another boy. After she had found him, Petitioner was climbing the stairs to return to her room when she met A. M. walking down the stairs. Petitioner and A. M. spoke for about a minute on the stairs. Then, without warning, A. M. kissed Petitioner briefly on the lips. Completely surprised by A. M.'s behavior, Petitioner pushed him hard, saying, "What the fuck are you doing?" Obviously unhurt by the push and unoffended by the language, A. M. replied that Petitioner had nice lips. She ignored A. M.'s impertinent comment and warned him never again to misbehave in this manner. A. M. apologized and said that he knew he should not do that. Petitioner added that she did not want to get into trouble or be fired from the program, and A. M. said that he understood. Due to her concerns that she would get into trouble for getting kissed and pushing and swearing at a student, Petitioner decided not to report the incident to the administrators. The next time Petitioner saw A. M. neither of them said anything about the incident, and their relationship returned to how it had been prior to the incident. On one other occasion, Petitioner removed A. M. from class to talk to him. On one occasion, Petitioner sat next to A. M. in the cafeteria and ate lunch with him. Two or three days after the stairwell kissing incident, Petitioner encountered A. M., again late in the afternoon. After having walked her students back to their dormitory following class, Petitioner returned to the classroom building to tutor some boys in a study hall. Knowing Petitioner's teaching background, someone had asked her to tutor the boys because, the prior day, one of the boys' tutors had left the program to return to Mexico. A. M. was among the boys in the study hall. For about 45 minutes, Petitioner tutored the boys, but A. M. was disruptive for the entire time, slamming books and throwing paper. Petitioner told him to stop being disruptive and do his work, but he ignored her. Unable to summon assistance, because she would be leaving the study hall unsupervised, Petitioner tried to deal as best she could with A. M., who was a reasonably large, well developed boy. At the end of the study hall, Petitioner dismissed the other students for dinner, but told A. M. to remain so she could speak to him. Petitioner told A. M. that she did not appreciate his behavior and that other students had a right to learn. Petitioner and A. M. were both sitting, facing each other. Suddenly, A. M. leaned over and kissed Petitioner briefly again. Petitioner was upset, although not angry. She said that they had spoken about this before, and he needed to consider the position in which his behavior left both of them. A. M. again agreed not to attempt this behavior. Again, Petitioner did not report the incident due to concerns that she would get into trouble. It is difficult to describe Petitioner's characterization of these two incidents. At the hearing, Petitioner seemed somewhat shy and even intimidated. In her dealing with the authority represented by the persons at the hearing, Petitioner seemed a very young 24 years old and presumably was an even younger 23 years old during the summer of 1998, as she credibly claims to have felt uncomfortable with the three administrators. On balance, the most compelling view of all of the evidence is that Petitioner felt that A. M.'s behavior was a relatively minor annoyance--a product of an otherwise-harmless crush that he had on her and, if revealed, a potential source of trouble for her with her supervisors. Regardless of her handling of A. M.'s advances, Petitioner unwisely did not discourage his flirting, as she admits even to have engaged in some undescribed flirting herself with A. M., "explaining" that he had told her that he was 16 years old. On Sunday, July 19, the director of the Migrant Institute summoned Petitioner to his room to discuss with him, the assistant director, and the residential counselor supervisor reports that they had heard that Petitioner had an improper relationship with A. M. The director, Patrick Doone, was a USF employee. For the most part, he delegated responsibility for the residential counselors to the assistant director, Sundy Chazares, an assistant principal of a high school within the Hillsborough County School District, and the residential counselor supervisor, Rosie Mendez, also a USF employee, who had been a residential counselor for the preceding seven years before becoming the residential supervisor in the summer of 1998. The meeting consisted of two parts. In the first part, which lasted 15 minutes, Mr. Doone began by asking Petitioner if there was "anything going on" between her and a student, possibly naming A. M. Petitioner said that there was not. Mr. Chazares then took over, saying that he knew that A. M. and Petitioner had kissed. Petitioner admitted that she and A. M. had kissed, but added, "it's not the way you think it is." The meeting quickly became confrontational, with Mr. Chazares and Ms. Mendez loudly making accusations, rather than asking questions and giving Petitioner a chance to explain. Illustrative of the level of discourse was Ms. Mendez's rhetorical question, "So you like 14- year-old boys?" Petitioner began to cry and did not say anything else. Mr. Doone then told Petitioner to return to her room, which she did. After a brief discussion among the three administrators, they decided to terminate Petitioner from the Migrant Institute program that night. Mr. Doone summoned Petitioner from her room and told her, "Pack up your bags and leave the premises as soon as possible." After packing her clothes and saying goodbye to the girls whom she had supervised, Petitioner left the USF campus that evening and did not return, nor did she have further contact with A. M. As a result of her termination from the Migrant Institute program, Petitioner lost the job that she had been given to start teaching fulltime in the Hillsborough County School District in the fall of 1998. On September 14, 1998, Petitioner completed an application for a teaching position with the Pinellas County School District. Submitted the next day, the application discloses the employment with the Migrant Institute. Petitioner answered "no" to the question, "Have you ever been suspended without pay, or dismissed from employment or resigned while an investigation was in progress for possible disciplinary action?" The declaration above Petitioner's signature states in part: "I declare that the answers given by me to the foregoing questions and statements are true and correct without pertinent omissions." At the time that she responded to this question, Petitioner was represented by counsel concerning the incidents of the summer of 1998. However, the Administrative Law Judge excluded evidence of reliance upon advice of counsel. Petitioner testified that she felt that a confidentiality directive issued by a Hillsborough County School District investigator precluded the disclosure of her termination, but this explanation is inadequate. If Petitioner had developed evidence of reliance upon advice of counsel, the evidence might have been mitigative, but not entirely exculpatory because such reliance must be justifiable. The application squarely asked whether the applicant had ever been terminated, and Petitioner failed to answer the question. No legal advice can overcome these simple facts. The incidents during the summer of 1998 do not constitute gross immorality or moral turpitude. These incidents do not constitute personal conduct that seriously reduces Petitioner's effectiveness as an employee of the school board. These incidents do not constitute a violation of any of the rules cited in the proposed recommended order of Respondent. Petitioner did not kiss A. M., but was kissed by him. Petitioner mishandled the misbehavior of A. M. by not reporting it to one of the administrators, at least by the second occasion, although it appears likely that Petitioner justifiably feared that she might lose her job, even if she had reported the misbehavior after the first incident. In any event, Petitioner clearly did not enter into a sexual relationship with a 13-year-old student. The omission of the termination from the Pinellas County School District application was material and dishonest. By answering the question in the negative, Petitioner made a fraudulent nondisclosure of information that is crucial to the hiring decision that any school district must make. Lying on this application denied Petitioner's prospective employer of the right that it has to learn of material facts concerning job applicants, weigh this information, and then arrive at an informed employment decision.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner a Florida Educator's Certificate. DONE AND ENTERED this 26th day of June, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 26th day of June, 2000. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 B. Edwin Johnson Attorney at Law 1433 South Fort Harrison Avenue Suite C Clearwater, Florida 33756 J. David Holder Law Offices of J. David Holder, P.A. Post Office Box 489 DeFuniak Springs, Florida 32435
The Issue The issue is whether Petitioner, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter from Assistant Superintendent Ron Ciranna to Respondent dated March 3, 2008.
Findings Of Fact Ms. Brown has been employed by the School Board as a teacher for 11 years. She is a member of the Polk Education Association, the collective bargaining unit for teaching personnel; is covered by the collective bargaining agreement between the School Board and the Polk Education Association; and holds a professional services contract with the School Board pursuant to Section 1012.33, Florida Statutes. During the first several years of her employment, Ms. Brown was assigned to Dundee Elementary School as an Exceptional Student Education ("ESE") teacher, working with children classified as severely emotionally disturbed, emotionally handicapped, and varying exceptionalities. When she transferred to Spook Hill, Ms. Brown initially worked in a self-contained varying exceptionalities classroom. Three years ago the principal of Spook Hill, Matthew Burkett, requested that Ms. Brown transfer to a new ESE Pre-kindergarten (Pre-K) unit that was being established at the school.2 Ms. Brown started work in the ESE Pre-K unit at the start of the 2005-2006 school year and has remained there ever since. Most of the children in Ms. Brown's class were classified as educable mentally handicapped, or EMH. Testing showed that they were developmentally delayed, with developmental ages that were typically one to two and one-half years behind their chronological ages. At any given time, there could be as few as four or as many as 12 children in Ms. Brown's class. A paraeducator was assigned to assist Ms. Brown. The ESE Pre-K classroom was a portable with a ramp leading to the front door. The front door had a gate with a pool lock. The pool lock was chest-high to an adult, out of the reach of most small children. Outside the portable was the ESE playground, which was completely fenced, with a gate and lock. The playground contained a swing set and other equipment. A child could not exit the playground without adult assistance. The school bus pick-up area was just outside the playground gate. Between January 22, 2007, and February 12, 2008, Mr. Burkett disciplined Ms. Brown 16 times, through verbal warnings, written reprimands, letters of concern, and recommendations to the superintendent for suspensions. The first documented disciplinary action was a "written confirmation of a verbal warning" from Mr. Burkett to Ms. Brown dated January 22, 2007. The letter references "many issues" that had been discussed at a January 19, 2007, conference, stating that Ms. Brown had already addressed several of the issues discussed. Mr. Burkett then wrote: I would like to target the issue of "falling asleep" during nap time as a very critical area which must be corrected. You stated that it has happened because you have to model and cuddle with the children to get them to fall asleep and that your para was present. I instructed you to sit up while cuddling the children to sleep and that you must not ever fall asleep. Please know any instance from this point on that jeopardizes the health and safety of the students will result in further disciplinary action. On February 8, 2007, Mr. Burkett issued a written reprimand to Ms. Brown. The reprimand letter stated that on February 2, 2007, at 12:45 p.m., Mr. Burkett walked through Ms. Brown's class to observe. The room was quiet and dark. All the students were lying down, and some of them were already asleep. Mr. Burkett observed that Ms. Brown was lying down with several students. She was not asleep, and she responded when spoken to by Mr. Burkett, who nonetheless felt obliged to issue a written reprimand in light of his prior warning. Ms. Brown signed the reprimand letter, acknowledging receipt, but also wrote the following: "Due to this concern I have quit sitting w/any students. I sit in my chair w/students around my desk. Any parent concerned about their child not napping will be directed to the office (Burkett or [assistant principal Sharon] Neal)." On February 9, 2007, Mr. Burkett issued a "letter of concern" to Ms. Brown regarding conferences held on February 2, 5, and 8, 2007. The letter discussed a number of concerns that had been voiced by parents or school administrators. Ms. Brown's high school student assistant had not submitted the required application to obtain volunteer status and would be barred from the classroom until her paperwork was completed. An unauthorized man had been seen in Ms. Brown's class. The man was an old classmate of Ms. Brown's and was helping her to plan a class reunion. Mr. Burkett informed Ms. Brown not to conduct personal business during the school day. A parent observed that Ms. Brown was "always on her cell phone." Ms. Brown had been repeatedly cautioned about cell phone use, and the letter of concern directed her not to have her personal cell phone on her person during the school day. Another parent observed that nap time appeared to last for two hours. Mr. Burkett instructed Ms. Brown that nap time should be only one hour long. The letter of concern also addressed the issue of parents dropping off students to Ms. Brown's class prior to the 7:15 a.m. start of the school day. Mr. Burkett told Ms. Brown that he would intervene on her behalf to stop the children from arriving early, but Ms. Brown stated that she was voluntarily arriving early to take the children and would voluntarily continue to do so. On the same day as the letter of concern, February 9, 2007, Mr. Burkett also issued a "written documentation of a verbal warning" to Ms. Brown. This warning concerned Ms. Brown's having left the campus from 11:30 a.m. to 12:05 p.m. on February 7, 2007, without permission from the school's administration. The letter stated that Mr. Burkett was forced to send the assistant principal, Ms. Neal, to Ms. Brown's classroom to assist with the supervision of the students in Ms. Brown's absence. Ms. Brown's excuse was that she had to take her niece to work at McDonald's. Mr. Burkett's letter of concern emphasized that, whatever the emergency, Ms. Brown was required to make arrangements with the administration before leaving the campus. On March 6, 2007, Mr. Burkett issued a written reprimand to Ms. Brown "for your continued use of your personal cell phone during student contact time." On March 1, 2007, Mr. Burkett observed Alice Staton, Ms. Brown's paraeducator, sitting on the swing set holding a child. Ms. Staton yelled across the playground, "Get back in that room." Mr. Burkett saw three of the ESE Pre-K students outside the classroom, running up and down the portable's ramp. The door and gate to the portable were open. Mr. Burkett "corralled" the three students back into the classroom, where he observed three other students in Ms. Brown's chair, swinging it in circles. Mr. Burkett then noticed that Ms. Brown was speaking on her cell phone. She did not notice that Mr. Burkett had entered until he walked all the way across the room toward the students in her chair. According to the written reprimand, Ms. Brown then "placed the phone down discreetly and proceeded to use a loud tone of voice instructing the class to clean up." Ms. Brown submitted a handwritten response to the letter of reprimand. She did not deny the facts as stated by Mr. Burkett, but offered her justification for this "unexpected" incident: A parent called my cell # at the time we were having issues with a student who was screaming & crying. Alice walked this student outside to make the room quieter. She accidentally left door & gate open. I thought she told me she would be outside. I didn't hear the "playground" due to the child screaming. I turned[,] was helping students clean when my cell phone rang. It was a parent checking on her child. I may have been on the phone 2-3 seconds. Mr. Burkett had walked in. Alice had eye contact with the outside students & I had eye contact with the ones in the room. At the hearing, Mr. Burkett testified that, although Ms. Brown's use of her personal cell phone violated the directive of his February 9, 2007, letter of concern, his overriding motivation in reprimanding Ms. Brown was the lack of supervision he observed during the incident. He believed that the children running on the ramp were out of the sightline of either Ms. Brown or Ms. Staton, and he observed that Ms. Brown was so engrossed in her telephone conversation that she did not even see him enter the portable. By letter dated March 14, 2007, Superintendent McKinzie suspended Ms. Brown without pay for a period of one day effective March 22, 2007.3 The grounds for this suspension were the events of March 1, 2007, as recited in Mr. Burkett's written reprimand of March 6, 2007, as well as the following, as stated in Superintendent McKinzie's letter: Later that same day [March 1], it was reported to the principal that not only did you use your cell phone again, but you asked the para assigned to your class to "keep watch" for you. This statement was provided for [sic] in writing by another employee and notarized. This action took place immediately after you had just left a conference with Mr. Burkett in which you were given a directive not to have your cell phone in class. The principal discussed with you his concerns regarding student safety and told you that you could not provide adequate supervision while on personal cell phone calls. By letter dated April 18, 2007, Superintendent McKinzie suspended Ms. Brown without pay for one day effective April 25, 2007. The grounds for the suspension were stated as follows in Superintendent McKenzie's letter: This action is based on an incident which happened on March 19, 2007. On that date, Principal Matt Burkett was notified that you had allegedly hit a high school student on the campus of Spook Hill Elementary. Your classroom paraeducator witnessed the altercation and attested that you had engaged in an argument during student contact time. She stated that you slapped the student in the face and that she saw you follow the student in your truck off campus. Principal Burkett spoke with you regarding the alleged incident. You admitted that you did slap the student in the face and that you did get in your truck and follow her off campus. By your own admission, you stated that there had been a prior altercation off campus with this particular student. Clearly, you allowed a personal situation to escalate into a violent confrontation on the school campus. Although you did apologize for your actions, your behavior was totally unprofessional and cannot be condoned. Your lack of judgment in this situation jeopardized the safety of the students in your charge. Please remember that teachers are role models for their students and should behave accordingly. On May 8, 2007, Mr. Burkett wrote a letter of concern to Ms. Brown to inform her of continuing inadequacies that Mr. Burkett was observing in Ms. Brown's job performance. The letter notes that on March 8, 2007, a Professional Development Plan ("PDP") had been established "to address the learning environment in your classroom." A PDP is a plan to help struggling teachers in areas of inadequate performance. A team of professionals is assigned to work with the teacher to aid in professional development and address the teacher's inadequacies. In his letter of concern, Mr. Burkett noted the following specific PDP items that were "in need of positive change": Circulate and monitor with appropriate proximity during all activities. (On 3/20 on your observation I marked you for remaining at desk. On 4/15, 4/26, 4/30, and 5/7 as I walked into your room you were sitting behind your desk.) Provide structured hands-on activities during outside play. (I have taken photos of your play area, as well as the equipment for outside play activities. They indicate a need to enhance and organize the learning environment.) Constantly engage and interact with students. (Please refer to item number one.) Daily schedule will be posted. (On 4/26 Mrs. Neal and I addressed the need to post your daily schedule and be certain that times are indicated.) IEP's must be in compliance.[4] (I showed you the report in which two of your students were listed as out of compliance.) Safety issues will be jointly addressed and teacher will comply with all administrative directives. (On 5/4/07 you called for the school resource officer. . . . I entered your classroom and observed you talking on your personal cell phone. You have also been tardy to work which is an issue we have addressed in the past.) On September 5, 2007, Mr. Burkett wrote a letter to Superintendent McKinzie recommending that Ms. Brown be suspended, based on "her history of jeopardizing the safety and welfare of her students" and in light of the following specific incident: On August 31st I went into Ms. Brown's Pre-K room and she was not present. I noticed a student tipped over strapped into a high chair. I asked the para-professional where the teacher was and she stated "I do not know." She said the teacher stated she "had to get out." The para also stated she did not place the child in the high chair. According to the para the teacher had been gone for about ten minutes. I was in the room for five minutes before the teacher returned. Ms. Brown sent me an email and stated she went to the restroom and laminated some things. I am very concerned because Ms. Brown has explained on several occasions the severity of the needs her students have and the need for more time to have in small group teaching. Therefore, while I understand the need for a bathroom break, I do not understand the need to choose this critical time to laminate. Secondly, she left a child in a high chair as a "time out" which is an inappropriate use of the chair. Furthermore, she left the child for an excessively lengthy time and in fact she left the classroom while the child was still restrained. As a result of her actions the child turned over in the high chair. At the hearing, Mr. Burkett conceded that the child's IEP stated that he could be strapped into the high chair for feeding. However, neither Ms. Brown nor Ms. Staton offered affirmative testimony that the child was in fact strapped into the high chair for feeding. Because no testimony or other evidence was presented to contradict the version of events set forth in Mr. Burkett's letter to Superintendent McKinzie and adopted by Mr. Burkett at the hearing, Mr. Burkett's version is credited. By letter dated September 10, 2007, Superintendent McKinzie suspended Ms. Brown without pay for five days effective September 17, 2007, through September 21, 2007, as a "result of your continued lack of attention to the safety and welfare of the students in your charge."5 In a letter dated January 25, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be suspended "as a continuation of the progressive discipline section 4.4-1 of the Collective Bargaining Agreement." Mr. Burkett noted that Ms. Brown received a verbal warning on February 9, 2007, for leaving campus without permission, and was suspended on April 25, 2007, for an incident that included her leaving the campus. Mr. Burkett's letter described the current incident as follows: On January 17, 2008, Ms. Brown once again left campus without permission during her contact hours which extend to 3:15 pm. At approximately 2:25 pm transportation contacted the school to ascertain the whereabouts of a Pre-K child because they had a bus at Spook Hill waiting on a student. The teacher placed the child on another bus. However, transportation needed to confirm the child was placed on a different bus before they allowed the bus to leave. As a result of Ms. Brown leaving the campus without informing the administration there was an unnecessary delay in getting vital transportation information regarding what bus the child was placed on by the teacher. Furthermore, there was tremendous stress placed on the office staff as they tried locating and contacting Ms. Brown in order to confirm the child was safely on the bus. In our conference on January 23, 2008, regarding the matter Ms. Brown acknowledged she left campus for a personal matter and that her actions were incorrect and she apologized for the incident. Unfortunately, Ms. Brown chose not to follow clearly stated written instructions from her previous disciplinary actions. By letter dated January 30, 2008, signed by Mr. Ciranna, assistant superintendent for Human Resource Services, Superintendent McKinzie suspended Ms. Brown for five days without pay effective February 6 through February 12, 2008, based on Mr. Burkett's recommendation. In a letter dated February 11, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be suspended for failure to complete her students' progress reports as required by their IEPs. The letter stated, in relevant part: I met with Ms. Brown on January 31st, 2008, and asked if she completed progress reports for her students. She replied that she did not have time to complete them. I gave her a directive to complete her student's progress reports and I provided her coverage. On February 1st, 2008, Ms. Brown sent me a letter which stated: "Yesterday when we met you asked me about my progress reports. I spoke from memory and indicated that I was way behind because of the time it takes me to work with my one on one student. Because of the assistance you provided, I was able to review the information and found I was not as far behind as I had indicated." According to a report provided to me by Chris English (Network Specialist) not a single progress report was created by Ms. Brown prior to January 31st, 2008. To further understand the severity of this offense it should be noted that Ms. Brown is currently on a Professional Development Plan (PDP) and one of the strategies is written as follows: "All IEP's and IEP notices must be in compliance and correctly written. Teacher will provide a one week notice if coverage is needed so she can prepare the IEP." Prior to our meeting on January 31st, 2008, Ms. Brown has never requested coverage to complete progress reports as part of the student's IEP. In a written response, Ms. Brown stated that she had "asked at least twice in the past for assistance to complete IEP paperwork a week in advance and was not provided coverage." While she stated her general disagreement with Mr. Burkett's letter, Ms. Brown did not otherwise contradict any of the specific factual assertions made by Mr. Burkett. At the hearing, Mr. Burkett testified that prior to February 12, 2008, he had a discussion with the School Board's director of employee relations about terminating Ms. Brown's employment, but that Superintendent McKinzie decided to suspend Ms. Brown on this occasion. By letter dated February 12, 2008, signed by Mr. Ciranna, Superintendent McKinzie suspended Ms. Brown for one day without pay effective February 20, 2008, based on Mr. Burkett's recommendation. By letter dated February 29, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be terminated as an employee with the School Board. This recommendation led to the suspension and termination letter of March 3, 2008, the relevant terms of which are set forth in the Preliminary Statement above. Mr. Burkett based his recommendation on "multiple issues extending over the course of the past year," as well as the following specific events occurring during February 2008: During Ms. Brown's recent suspension she acted insubordinately by coming on school campus during her suspension. I met with Ms. Brown on February 4, 2008, and I gave her a directive not to come on campus for any reason during her suspension days. Ms. Brown later called me on the phone and asked if she could come after the school day to do her lesson plans. I again stated to her that she could not be on school campus during her suspension days. On February 11, one of Ms. Brown's five suspension days, it was brought to my attention that she was on campus and delivered lunch to her paraprofessional. I have a statement from Ms. Brown in which she admits she delivered lunch. I also have a statement from the paraprofessional which states, "Yesterday, I called Ms. Brown about the Valentine's list. She called me back and asked if I wanted her to bring us lunch. I told her no and she is not supposed to be on campus. She said it was alright if she went to the office. She called me later again, and told me to come to the back of the lunch room door to get the lunch. . ." Additionally, I have a statement from my secretary in which Ms. Brown asked her "not to let Mr. Burkett know that she was here because she would get in trouble." Ms. Brown was previously suspended on March 22, 2007, in part for asking her paraprofessional to "watch out" for administration so she could insubordinately use her cell phone. Ms. Brown's actions depict an employee that has an established pattern of deliberate insubordination. Most concerning of all, in a four day span of time between February 19, 2008, and February 22, 2008, Ms. Brown continued to display a pattern of allegations [sic] of child endangerment. The following is a brief description of the incidents: On February 19, 2008, Mrs. Jenny Baker, a paraprofessional, was covering her classroom so I could serve her notice of suspension for February 20th. Mrs. Baker stated that upon Ms. Brown's return to class she asked if she could leave. Since the teacher did not respond Mrs. Baker left the portable to attend to her other duties and noticed three Pre-K students behind her and Ms. Brown was nowhere in sight. It was obvious that these students had left Ms. Brown's classroom without her supervision. Mrs. Baker waited for the other para to return from the buses to escort the kids back into the class. On February 19, 2008, I went to the classroom at approximately 2:30 (after Mrs. Baker had informed me of her concern). I noticed Ms. Brown at her computer behind her desk. The door to the portable was wide open and two students were sitting out of the teachers [sic] view behind the "cubby." These students could have readily left the classroom without Ms. Brown's knowledge. It was previously recommended by Ms. Sherwin (Educational Diagnostician) on February 5, 2008, that "in general, I think rearrangement of your classroom. . . may help. . . . I am particularly concerned with the arrangement that has the area between your door and shelving not visible to you at all times." On February 21, 2008, Mrs. Neal, the assistant principal, was walking through Ms. Brown's portable. Upon entering she noticed Ms. Brown getting up from her desk. The para was placing a band aid on another child. Ms. Brown stated that she was printing progress reports. Mrs. Neal stated the room was "a mess" and she began to straighten a piece of carpeting so the kids would not trip over it and hurt themselves. Mrs. Neal then counted the students and noticed one was missing. "Ms. Brown . . . looked puzzled." The paraprofessional and the teacher began to look for the missing child. She was found by Ms. Brown in the bathroom. The duration of time the child was missing was approximately five minutes. On February 22, 2008, at approximately 10:40 a.m. I was walking the exterminator to the classroom. As we walked up to the portable I noticed the front door wide open and two Pre-K students were on the ramp running. One tripped and fell. I rushed to the gate because I thought he was hurt, but he was already up and running down the ramp again. Clearly, these two students were not able to be observed by Ms. Brown and were not under her supervision or control. The exterminator and I entered the gated area and then Ms. Brown came out yelling for the boys to "get back in here." * * * I am entirely in favor of helping employees grow professionally as can be established by allowing Ms. Brown to create a second Professional Development Plan. However, she has established a pattern of allegations of child endangerment that results in disciplinary action. In addition, her multiple serious violations of school and district policies over the course of time have also established a pattern necessitating disciplinary action. It is for this reason that I am recommending termination pursuant to Article 4.4-1 of the collective bargaining agreement. As to the February 11, 2008, incident described in his letter, Mr. Burkett testified that Ms. Brown knew that she was not to come onto the campus while under suspension, because he had discussed the matter with her during one of her previous suspensions. Mr. Burkett testified that he was following School Board policy in prohibiting Ms. Brown from entering the campus during her suspension. Ms. Brown testified that as of February 11, 2008, she had never been told not to come on the campus while serving a suspension. Ms. Brown stated that she simply wanted to do something nice for Ms. Staton, her paraeducator, by way of bringing lunch. Ms. Brown had known Ms. Staton since the former was herself a student at Spook Hill. While Ms. Brown's good intentions may be credited, her testimony that no one had told her not to come on campus during a suspension is not credible. Her stealth in bringing lunch to Ms. Staton indicates that she knew she should not be there. Further, Mr. Burkett's letter quotes a statement from Ms. Staton in which she told Ms. Brown that she was not supposed to be on the campus. Ms. Staton testified at the hearing, and Ms. Brown had ample opportunity to question her about the events of February 11, 2008, and her statement to Mr. Burkett. However, Ms. Staton was questioned only about the February 21, 2008, incident. Mr. Burkett testified that the February 19, 2008, incidents were of greater concern to him because of the child safety issues involved. Mrs. Baker, the paraeducator who covered the class for Ms. Brown, testified that Ms. Brown was quiet when she returned from her meeting with Mr. Burkett. Ms. Brown sat at her computer. Mrs. Baker announced that she was now leaving the class, but Ms. Brown did not respond. Mrs. Baker walked out to the gate. When she started to close the gate, she looked behind her and saw three children who had followed her out of the class. Ms. Brown was still in the classroom, apparently unaware that the children had walked out. Mrs. Baker saw that Ms. Staton was outside placing another child on a school bus. On her way back into the classroom, Ms. Staton took charge of the three children who had followed Mrs. Baker out the door. Mrs. Baker returned to the main office. When Mr. Burkett asked how things had gone, she reported the incident to him. Ms. Brown testified that she did not recall the incident. Mrs. Baker's version of this incident is credited. After receiving the report from Mrs. Baker, Mr. Burkett was concerned for the children. He went to the class and saw Ms. Brown sitting at the computer behind her desk, and two students sitting out of her view though the door to the portable was wide open. Mr. Burkett testified that experts from the School Board had already come into the portable and discussed the room set-up with Ms. Brown, particularly the fact that there were obstacles to her having a clear line of vision from the desk to the door. A bookshelf that extended from the "cubbies" blocked her view of the doorway. Mr. Burkett noted that the two children could have walked out of the classroom without Ms. Brown seeing them. Ms. Brown testified that the two students in question rode the last bus from the school. Ms. Staton had already left the classroom to go on bus duty. Ms. Brown left the door open so that she could see the bus as it came around the side of the portable. The two students sat there playing as Ms. Brown worked at her desk. No one else was in the classroom. Ms. Brown could hear the children as she worked and testified that she could have heard them go out of the room because the front ramp squeaks. She also could have seen them through the windows. Ms. Brown was adamant that she knew the children in her class and she knew where these two children were, sitting there waiting on their bus. This was their daily routine, and there was nothing unusual about this day other than Mr. Burkett's entrance. Ms. Brown testified that Mr. Burkett said nothing about his concerns for the children's safety at the time. The only discussion was "something about the cubbies." Mr. Burkett came to the room the next morning and said the cubbies had to be moved. He and Ms. Brown moved the cubbies before the children arrived, making the door more visible from Ms. Brown's desk. Ms. Brown testified that the room had been arranged the same way since school started in August and that she was concerned because consistency is vitally important to students who are functioning at the level of 18 to 24 months of age. Any change to their environment can throw off their routines and cause them to have bad days. Ms. Brown did not believe that moving the cubbies was necessary. As to the events of February 21, 2008, assistant principal Sharon Neal testified that she went to observe Ms. Brown's classroom on that date. As she walked in, Ms. Neal saw Ms. Brown sitting at her computer. She asked Ms. Brown how many students were in the class, and was told that all the students were present. Ms. Neal counted the students, then recounted them. Then she told Ms. Brown and Ms. Staton that if everybody is here today, then someone is missing. Ms. Brown and Ms. Staton began to count, then began searching the room. After a minute or two of searching, they wondered if perhaps Student D. was in the bathroom.6 They opened the bathroom door and found Student D. Ms. Neal discussed with Ms. Brown and Ms. Staton what could have happened with the child going missing for a period of several minutes. Ms. Brown testified that when Ms. Neal stated that a child was missing, she responded that the child had to be somewhere in the classroom. She knew this because the front door was equipped with a buzzer that went off when the door was opened, and Ms. Brown's desk was next to the back door. She and Ms. Staton scanned the portable and quickly concluded that the child must be in the bathroom. Ms. Brown testified that Student D. was a very large child whose functional age was eight months. She wore pull-up diapers, though it was becoming difficult to find diapers to fit the child. Ms. Brown and the child's mother had been working diligently on potty training the Student D. This was the first time she had gone to the bathroom on her own. Ms. Staton confirmed their surprise at finding Student D. on the potty, because they did not believe her capable of going to the bathroom alone. Ms. Staton conceded that neither she nor Ms. Brown knew where the child was before Ms. Neal noted that a student was missing. As to the events of February 22, 2008, Mr. Burkett testified that there had been an insect problem in the portable, and therefore an exterminator had been called. As Mr. Burkett walked the exterminator down to the classroom, he noticed the door of the portable was "wide open." Two Pre-K students were running down the ramp, and one of them tripped and fell. Mr. Burkett was concerned for the student's safety, but the child popped up and started running again. Mr. Burkett estimated that another 30 seconds passed before Ms. Brown came out of portable, "yelling for the kid to get back inside." Mr. Burkett noted that this was yet another incident in which "the door was open, the kids were on the loose, and not properly supervised." Ms. Brown testified that the students were working at their regular daily schedules when the phone rang in the classroom. The school secretary was calling to tell Ms. Brown that Mr. Burkett and the exterminator were on their way to spray the classroom. The secretary told Ms. Brown that she needed to have the children out of the portable by the time Mr. Burkett and the exterminator arrived. Ms. Brown and Ms. Staton began trying to quickly move the students out of the portable. Ms. Staton secured the women's purses, then went outside to unlock the shed on the playground as instructed by the secretary. Meanwhile, Ms. Brown was lining up the children to proceed out the door. Ms. Brown turned momentarily to get diapers from the changing table. As she turned, two of the children took off and ran out the door. Ms. Brown testified that these were two boys who were prone to running away. She knew who they were because she could hear them laughing. She turned and ran to the door and called their names. When she got to the ramp, Mr. Burkett was helping one of them up from where he fell. Ms. Brown testified that it usually takes from five to ten minutes to line up the children, get the diapers and other supplies, and proceed out the door as a class even when the move is planned, and she has Ms. Staton to help with the children. In this situation, she was moving the children on short notice, and Ms. Staton was busy securing the purses and unlocking the shed. There is no real contradiction between Mr. Burkett's and Ms. Brown's versions of this incident, save for Mr. Burkett's estimate that 30 seconds passed between the time the student fell on the ramp and Ms. Brown appeared at the door of the portable. It is found that Mr. Burkett's estimate of the time is likely exaggerated due to his dismay at the situation and that Ms. Brown in all likelihood came out the door only a few seconds after the boys. Ms. Brown's version of events, while credible, calls her judgment into question. She described a somewhat frantic decampment from the portable, as if she believed Mr. Burkett would order the exterminator to begin spraying whether or not the children were out of the classroom. There is no reason to believe that Mr. Burkett would not have preferred a slow but orderly procession to the scene he encountered. Except where noted in the above findings of fact, Ms. Brown did not contest the factual allegations made against her. Ms. Brown's defense was twofold. First, the great majority of incidents cited as grounds for discipline were run of the mill occurrences in a Pre-K ESE classroom. Second, the sheer number of disciplinary actions establish a concerted effort by Mr. Burkett to build a record against Ms. Brown by seizing any opportunity to find fault with her job performance. As to her first defense, Ms. Brown testified as follows regarding the four incidents described in Mr. Burkett's letter recommending termination: Those are things that can happen at any moment at any time in an ESE Pre-K classroom. There's children that pull away from their teachers, their parents. These children are sent to our room to get some structure, and to help them to cognitively, socially, behaviorally develop, because they are delayed in all that development. Ms. Brown's point is valid as to some of the disciplinary incidents cited in the termination letter. The February 19, 2008, incident essentially involved a difference of opinion between Mr. Burkett and Ms. Brown. He believed that she should have the children in her line of vision at all times. She believed it was safe to be able to hear what the two children were doing and testified that this had been her daily practice all year. The February 21, 2008, incident was a matter of Student D. unexpectedly taking the initiative to go to the bathroom alone. The February 22, 2008, incident involving the exterminator was simply a matter of two students bolting for the door as soon as Ms. Brown's back was turned, something that could happen at any time with a group of Pre-K children. Ms. Brown is correct when she argues that the events of February 19 through February 22, 2008, standing alone, would provide slim grounds for the dismissal of a veteran ESE teacher. However, these events were not the sole factual basis for the School Board's decision to terminate Ms. Brown's employment. The termination letter makes clear that the School Board considered these events to be emblematic of a long history of Ms. Brown's "pattern of failing to properly supervise the students under your care." The termination letter references all of Ms. Brown's previous suspensions and, expressly, references Ms. Brown's insubordination in entering the campus during her suspension despite Mr. Burkett's directive that she was not to come onto campus for any reason during that time. Ms. Brown had been suspended five times between March 14, 2007 and February 12, 2008. The March 14, 2007, suspension was for insubordination regarding the use of her personal cell phone. The April 18, 2007, suspension was for a physical altercation with a high school student, followed by Ms. Brown's leaving the campus in pursuit of the student. The September 10, 2007, suspension was for the inappropriate use of a high chair for student discipline, resulting in the student's falling while strapped into the chair. The January 30, 2008, suspension was for leaving the campus for personal reasons, without permission or notice to the administration, resulting in confusion as to whether a student was on the correct bus. The February 12, 2008, suspension was for Ms. Brown's failure to complete student progress reports. The events of February 19 through February 22, 2008, must be viewed in light of Ms. Brown's disciplinary history since at least her first suspension on March 14, 2007. In that light, these relatively minor events indicated to Mr. Burkett and the School Board that Ms. Brown's performance showed no prospects of improving. A consistent theme throughout Ms. Brown's disciplinary history, in addition to her continuing insubordination, was her failure to adequately supervise the children in her care. The fact no child was seriously injured in any of these events was fortuitous, not a reason to minimize or overlook Ms. Brown's often casual approach to minding these very young ESE students. The School Board had taken every disciplinary action available to it under the Teacher Collective Bargaining Agreement, including multiple suspensions short of moving for termination. This last point addresses Ms. Brown's second argument, that the number of disciplinary events indicates a vendetta on the part of Mr. Burkett. No evidence was offered that Mr. Burkett bore any personal animus toward Ms. Brown. The evidence indicated that Ms. Brown was under additional scrutiny because of her disciplinary history. The evidence further indicated that Mr. Burkett made reasonable effort to assist Ms. Brown in improving her performance, including the establishment of a PDP and the appointment of a team of professionals to observe her class and offer advice. The number of disciplinary events indicates, if anything, forbearance on the part of Mr. Burkett and the School Board, imposing multiple suspensions rather than moving precipitously to the final step of termination. The evidence did not establish that Mr. Burkett was motivated by anything other than the desire to ensure the safety of the students at Spook Hill.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating the employment of Deana Brown as a teacher at Spook Hill Elementary School. DONE AND ENTERED this 3rd day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 3rd day of February, 2009.
The Issue The issue is whether Respondent's teaching certificate should be disciplined.
Findings Of Fact At all times material here Respondent was, and continues to be, an employee of the Hernando County School Board (HCSB) as a member of the instructional staff. Respondent is employed under a "professional service contract." The origin of these proceedings occurred on December 5, 1996, when Respondent was arrested for allegedly engaging in inappropriate sexual conduct with a male, minor student. Apart from the allegations raised in this case, Respondent has been a satisfactory and effective employee of HCSB. Respondent began working for HCSB in 1989 at Powell Middle School as a science teacher with regular classroom duties. He eventually became the technology resource coordinator at Powell Middle School. As such, he no longer had regular classroom duties. Throughout his teaching career, Respondent frequently tutored and mentored students who needed help. Even without regular classroom duties Respondent continued to help students. Such help continues today. In fact, Respondent is known and respected by peers and parents for the mentoring and tutoring he gives to students and the success he has had with troubled students. Beginning in January 1995, Respondent served as director of an after-school program at Powell Middle School. HCSB and the local YMCA sponsored and funded the after-school program until sometime in the Spring of 1996 when the program was discontinued. Respondent was in large part responsible for the successful creation, organization, and operation of the after-school program. The after-school program began immediately after each school day and continued until 5:00 p.m. The program was staffed by Powell Middle School staff and other adults who taught different classes. Some of the after-school activities, like swimming lessons, took place on the premises of the YMCA. The after-school program participants enrolled in the off-campus activities rode a school bus from the school to the various activities in remote locations. Respondent directed the after-school program initially from his classroom in the science building of Powell Middle School and, subsequently, from a room used as a computer lab, adjacent to his former classroom. A number of school administrators and teachers were constantly walking in and out of the areas where Respondent worked each day because supplies for the after-school program were stored in the computer lab storage rooms. After school, teachers frequently visited Respondent's work station unannounced. Janitors and work details were on the school premises until 11:00 p.m. Bathrooms and a refrigerator for staff were located near Respondent's work station. Respondent's classroom in the science building had large windows along the outside wall. There were windows between the computer room and Respondent's classroom. There were windows between the computer room and another classroom in the same building. The only area which had any possibility of privacy was a walk-in storage closet in the computer room. The doors to the science classrooms, the computer room, and closet were never locked. During the summers, Respondent spent his time working at Camp Sangamon, a camp in Vermont for boys of all ages. He began working at the camp in 1980 as a regular counselor. Later he served as head of the activity trip program. Respondent worked as the camp's assistant director for about eight years. In the Summer of 1995, Respondent lived in a cabin with older boys who were counselors-in-training (CITs). However, he spent almost all of his time in the administrative office taking care of paperwork, planning activities, and supervising programs. He never went to his cabin in the middle of the day unless he was specifically looking for a CIT. Respondent's cabin was on a main trail through the camp in close proximity to other cabins and a basketball court. People were constantly walking by the cabin, especially in the middle of the day during a free activity period. The cabin did not have a lock on its door. It had large windows with no screens, which were usually propped open with a stick. The panels that formed the walls of the cabin were separated by approximately one inch. The spaces between the panels left the interior of the cabin visible during the day. As assistant director, Respondent could arrange for Florida boys to attend the camp at a reduced rate. Over the years, he made these arrangements for several boys. Respondent met C.B., a seventh grade student at Powell Middle School, in 1995. C.B. was a very troubled young man. He regularly skipped school, lied, and ran away from home. His home life included physical and mental abuse. His relationship with his parents was poor. His grades were very poor and he was on a track for dropping out of school. In 1995, C.B. was not one of Respondent's regular students. He was a participant in the after-school program. Initially, C.B.'s stepmother called Respondent to check on C.B.'s attendance in the after-school program. The stepmother and Respondent discussed C.B.'s problems, including his attempts to run away from home. During subsequent conversations, Respondent offered C.B. a scholarship to attend Camp Sangamon for three weeks in the summer of 1995. C.B.'s family was pleased that he would have an opportunity to go to camp. They accepted Respondent's offer and made final arrangements for C.B. to attend camp for three weeks at a reduced rate. When C.B. arrived at camp in 1995, he announced that he was going to stay at camp all summer. Despite his initial positive attitude, C.B. had trouble adjusting to camp life. He had problems interacting with other campers. He sometimes would curl up into a fetal position and cry uncontrollably. Respondent often helped C.B. get through these episodes. With help from his counselors and encouragement from Respondent, C.B. stayed at camp for eight weeks. Gradually, Respondent learned of C.B.’s troubled home life and felt sympathy for him and wanted to help. During the summer of 1995, Respondent assisted C.B. with the completion of a science project. C.B. had to complete the project in order to be promoted to the eighth grade. Respondent's cabin was always open with CITs coming and going. There was no reasonable expectation of privacy in the cabin at any time. C.B.'s testimony that, at Respondent's request, he masturbated Respondent's penis in the cabin during a free activity period just before lunch is not credited since C.B.’s multitude of statements regarding multiple alleged incidents of sexual activity between Respondent and himself were highly inconsistent and consisted of changeable details which showed the implausibility, if not impossibility, of such activity occurring. In fact, all of C.B.’s allegations suffer from this infirmity. After returning from summer camp, C.B. went boating with Respondent and several other people. The group enjoyed snorkeling and water skiing. However, C.B. and Respondent were never alone on a boat. C.B. was in the eighth grade at Powell Middle School in the Fall of 1995. Even though he was not in one of Respondent's classes, C.B. often received passes from his teachers to visit Respondent's classroom during the regular school day. C.B. participated in the after-school program activities both on- and off-campus. There was some indication that C.B. was not permitted to go home after school unless someone was present at the home. Respondent regularly drove C.B. home following the close of the after-school program. Respondent worked one-on-one with C.B. to improve his grades. Respondent also worked one-on-one with other students during the same time period. He set up a program for C.B. that required C.B. to obtain the signatures of his teachers on an attendance and work form. Two to three times a week, Respondent visited C.B.'s home to tutor C.B. C.B. also was tutored by Jen O’Connor during the after-school program. C.B.'s grades improved markedly and he made the honor roll during the first grading period of his 8th grade year. Respondent encouraged C.B. to set high school graduation as a goal which would cause C.B. to be the first in his family to remain in school and graduate. C.B. testified that during the after-school hours of the 1995-96 school year, he twice complied with Respondent's request to masturbate Respondent's penis on school grounds, either in the science classroom or the adjoining computer/storage room. This testimony is contrary to the greater weight of the evidence and again lacks credibility. On October 20, 1995, Respondent took C.B. to Disney World as a reward for his academic success during the first grading period. The Disney trip was an incentive for good progress which had been agreed to earlier that year by C.B.’s parents. Respondent and C.B. traveled in Respondent's pickup truck and shared the expenses of the trip. C.B. left with enough money to buy a one-day pass to one of the three Disney parks. Respondent and C.B. arrived at the Disney World parking lot before the amusement park opened. They parked in front of the ticket booth around 9:00 or 9:30 a.m. Other cars were also arriving. Parking attendants and people waiting to enter the entertainment area were in close proximity to Respondent's vehicle at all times. Disney was running a special promotion for Florida residents. For a small increase in the price, a Florida resident could purchase a pass to all three Disney parks for a year. Respondent wished to go to all three parks but could not do so unless C.B. was able to take advantage of the Disney promotion. Respondent and C.B. paid their entrance fee for all three parks with Respondent providing the difference in price. They entered one of the theme parks as soon as it opened for business. The evidence did not show that there was anything inappropriate about the ticket upgrade or Respondent making up the difference in price. The purchase of the pass was in no way harmful to C.B. With so many people around, there was no privacy or expectation of such in Respondent's truck. C.B.'s testimony that he masturbated Respondent's penis in the Disney World parking lot is not credited. During the 1995-96 school year, Respondent arranged for C.B. to attend a counseling session with a guidance counselor at Powell Middle School. Respondent made the appointment because he suspected that C.B. was the victim of abuse at home. On February 5, 1996, C.B. and his father had an argument. The father lost his temper and punched C.B. in the face and ear. C.B. did not go to school the next day. The school resource officer noticed bruises on C.B.'s face the following week at school. He reported his observations to an investigator from the Department of Children and Family Services. C.B.'s father admitted to the investigator that he hit C.B. in the face. The authorities took no legal action against C.B.'s father. At the end of his eighth grade year, C.B. was promoted to ninth grade and would be attending Springstead West High School. At the time, both C.B. and his parents expressed great appreciation over the help Respondent had given to C.B. That summer C.B., with the permission of his parents, again attended camp at a reduced rate. He went to Vermont early so that he could earn money working at camp before it opened. During his stay at the camp, Respondent "fronted" C.B. the money to buy a portable CD player, CDs, and some articles of clothing with the understanding that C.B. would repay Respondent later from the funds C.B. had in his camp account. In fact, C.B. did repay Respondent for these items. Additionally, Respondent permitted C.B. to use his credit card to order and purchase items from a catalog over the telephone. Again C.B. paid Respondent back. There was no evidence that these purchases were improper or harmed C.B. Mrs. Peady O'Connor, one of Respondent's friends, also went to camp in the summer of 1996 to work in the kitchen. C.B. stayed at camp all summer, returning home with Respondent and Mrs. O'Connor on August 16, 1996. There was no evidence the scholarships to camp Respondent provided during any of the summers at question here were improper. If anything, the scholarships benefited C.B. and the other boys who received them. Immediately upon his return to Florida, Respondent began having trouble with his truck. He took it to the shop on Saturday, August 17, 1996. He spent the rest of the day with a friend, Jackie Agard. Respondent did not go boating that weekend. School started on August 19, 1996, for the 1996-97 school year. Respondent returned to work at Powell Middle School as the technology resource coordinator. C.B. attended ninth grade at Springstead West High School. C.B. would occasionally contact Respondent for help. On Tuesday, August 20, 1996, Respondent leased a new sport utility vehicle. It did not have a pre-installed trailer hitch necessary for towing Respondent’s boat. The next Saturday, August 24, 1996, Respondent spent the day with friends from out-of-town. He did not go boating that weekend. On August 29, 1996, Respondent purchased a trailer hitch. He intended to install the hitch personally. That same day, Respondent and Chuck Wall, a scuba diving instructor, met with C.B. and his parents. The purpose of the visit was to sign C.B. up for scuba diving lessons. Respondent agreed to pay for the lessons as he had for those of other young people. Again, no evidence demonstrated that such lessons or the payment for scuba lessons were inappropriate or in any way harmful to C.B. On Saturday, August 31, 1996, Respondent took some of his friends to dinner and a movie in his new vehicle. He did not go boating that weekend. Respondent's boat was parked at the home of his parents all summer while Respondent was in Vermont. It was still there when Respondent installed the trailer hitch on his new vehicle on Labor Day, September 2, 1996. On September 3, 1996, Respondent took C.B. to his first scuba diving lesson. After the lesson, Respondent, C.B., and Mr. Wall took Respondent's boat to a marina at Crystal River. After launching Respondent's boat, Chuck Wall had difficulty getting the boat to run because it had not been used for such a long time. Respondent left his boat at the marina for the rest of the fall boating season. The greater weight of the evidence indicates that C.B. and Respondent never went boating alone. There was no inappropriate sexual conduct between C.B. and Respondent on Respondent's boat. On Saturday, September 7, 1996, Respondent took a group of students to Disney World. The trip was a reward for the students' involvement with a video yearbook project sponsored by Respondent. C.B. did not participate in the activity. The next Saturday, C.B.'s scuba diving lesson was cancelled. C.B. did not go boating with Respondent or have a scuba lesson that weekend because he was on restrictions at home. Respondent was invited to and attended C.B.’s stepmother’s birthday party on September 17, 1996. On or about September 18, 1996, C.B.'s parents became aware that C.B. was responsible for long distance phone calls to a girl that C.B. met at camp. The calls totaled about $300.00. Initially, C.B. had hidden the bill from his parents. C.B.’s stepmother discovered the bill. After a confrontation with his parents over the telephone bill, C.B. ran away from home. For the next few days, C.B. was living with friends. There was no evidence that Respondent knew where C.B. was staying or that once he discovered his whereabouts that Respondent withheld that information from anyone. Respondent was eventually asked to help locate C.B. On September 21, 1996, Respondent went to C.B.'s home. C.B.’s father asked Respondent what he thought should happen with C.B. regarding living at home. Respondent suggested that C.B.'s parents let C.B. live with the O'Connor family for a short period of time. He also suggested that C.B. receive counseling and agreed to arrange for the therapy. Mr. and Mrs. O'Connor and their son and daughter were close friends of Respondent. They are good, decent people. The son, Sean O'Connor, was away at college. The daughter, Jennifer or Jen, still lived at home. C.B.'s parents agreed to let C.B. live with the O’Connors on a trial basis provided that C.B. remain on restrictions within the O'Connor home for a period of time and pay back the telephone charges he had incurred. The O'Connors did not live within the Springstead West High School District. C.B. did not want to talk to his parents. Therefore, Respondent and the O'Connors worked together to provide C.B. with transportation to and from school. Further the parents did not provide C.B. any money for lunch while he was at the O’Connors. Again it was up to both Respondent and the O’Connors to provide C.B. with lunch money. C.B.’s parents were aware of the need for transportation and lunch money but did not offer to provide or provide any of these needs while C.B. was at the O’Connors. In fact, C.B.’s parents did not attempt to visit C.B., communicate with C.B., or be otherwise interested in C.B.'s well-being during his month long stay at the O’Connors. Respondent also purchased C.B. a beeper to facilitate communication between C.B. and Mrs. O'Connor. All of these provisions were reasonable for C.B. There was no evidence which showed these items were improper gifts on the part of Respondent or could reasonably be anticipated to cause harm to C.B. On the contrary, these "gifts" were beneficial, if not necessary, to C.B. After moving in with the O'Connors, C.B. was allowed to attend a football game. He did not meet Mrs. O'Connor after the game as he had been instructed. The police found C.B. and turned him over to C.B.'s stepmother. As soon as he got to the gate of his parent's property, C.B. got out of his stepmother's car and ran away again. The police eventually found C.B. at the home of his stepbrother's girlfriend on October 2, 1996. C.B.'s parents told the police to release C.B. to Respondent's custody. Respondent took C.B. back to live with the O'Connors. October 7, 1996, was an early release day at school. Respondent, C.B., and another student left from school to look for a lost anchor. Later that evening, Respondent dropped off C.B. at the O'Connors' residence then proceeded to take the other student home. October 8, 1996, was a hurricane day for the school district. Mrs. O'Connor was at home all day. Respondent and C.B. were never alone in the O'Connors' home. There is no persuasive evidence that Respondent ever performed anal intercourse upon C.B. at the O'Connors' home or at Powell Middle School in the storage closet of the computer room. During the time that C.B. lived with the O'Connors, Respondent arranged for C.B. to attend two counseling sessions with a school psychologist. On October 23, 1996, there was an ESE staffing meeting at Springstead West High School regarding C.B. The meeting was related to C.B.'s special education program. At some point prior to the meeting, the assistant principal was asked to investigate the fact that C.B. was living at the O'Connors and attending a school outside the zone in which the O'Connors lived. Normally, the principal would not be at a staffing meeting. He did not participate in any decision regarding C.B.'s education. Both Respondent and Mrs. O'Connor were invited to attend the meeting by C.B.'s stepmother. All three people attended the meeting along with appropriate education staff. The meeting grew heated over the issue of out-of- district attendance with Respondent becoming exacerbated with the principal and calling him a "liar" and addressing the principal forcefully while getting up out of his chair. The principal became verbally forceful with Respondent. Eventually, both calmed down. Forcefully stating a position is not coercion and the evidence did not show that either Respondent’s or the principal's behavior was either coercive or oppressive, especially since the principal later was instructed by the Superintendent to apologize to Respondent for his behavior during the meeting. During the meeting, C.B.'s stepmother decided it was time for C.B. to return home. She was prepared to take C.B. home that night after the meeting. She asked Respondent to leave her son alone. However, apparently her words were spoken out of exasperation since C.B., who was at the school, left with Respondent and Mrs. O’Connor at the conclusion of the meeting with C.B.'s mother's consent. C.B. had an appointment with a therapist that evening. C.B.'s father would pick C.B. up at the O'Connors the following day. On Thursday, October 24, 1996, C.B.'s father went to the O'Connors to pick up C.B. and move him back home. When the father arrived at the O'Connors' home, C.B. attempted to have a heart-to-heart talk with his father. C.B. wanted to know why his father always sided with his stepmother against him. He also told his father that he did not want to return home. His father told C.B. that he was coming home and that he could either come home the easy way or the hard way. When the father insisted that C.B. return home, C.B. went down the hall and ran out into the backyard of the O'Connors' home. C.B.'s father went out the front door and around the corner of the O'Connors' house. C.B.'s father caught up with C.B., grabbed him from behind, pulled him to the ground, straddled him and, while holding C.B. on the ground with a knee in C.B.'s pelvic area, repeatedly punched C.B. in the face with a closed fist and an overhead strike. C.B.'s father picked his son up by the collar and drug him over to a metal fence. C.B. was trying to push his father’s hands away. His father grabbed C.B. by the neck and slammed his head into the metal fence approximately three times. He struck C.B. about three more times in the face with a closed fist. At that point, a witness to the struggle grabbed C.B.'s father from behind in a half nelson and pulled him off of C.B. Once the father had released his grip and stepped back, the witness let go of C.B.'s father. During the first part of the struggle, C.B.'s father was calling his son a "fucking asshole" and "dirty little bastard." C.B. was yelling that he wanted to kill himself, wanted to get this over with, and hated himself. The father's response was that he could help his son end his life, that he had a gun back at the house, and "you know, we can get this on right now, let's kill you, let's get it over with." Almost immediately after being pulled off, C.B.'s father attacked his son again, grabbed him by the collar and struck him several more times in the face with a closed fist and slammed his head into the ground several times. The witness grabbed C.B.'s father again and tried to pull him off. C.B.'s father did not want to disengage and resisted the witnesses' efforts. The witnesses forced C.B.'s arms off his son and held him. At some point during the struggle, Mrs. O'Connor had come into the backyard. C.B. grabbed Mrs. O'Connor around the ankles and would not let go. C.B. was crying saying he wanted to die and "stop it, stop it, please." Mrs. O'Connor was yelling at C.B.'s father to stop. C.B.'s father still had C.B. by the belt loop and the neck. He had one knee in C.B.'s back. He was grinding C.B.'s head into the ground. The witnesses was forcing C.B.'s father's arms off C.B. Mrs. O'Connor told her daughter, Jen, to call the police. At that point, C.B.'s father let go of C.B. and ceased his attack. All of the blows which the father hit his son with were full force punches. C.B. was bloodied and bruised by his father. Photographs taken show extensive bruising on C.B.'s face. Incredibly both C.B. and his stepmother deny the physical effects of the struggle that night. C.B.'s father was arrested and taken to jail. The next day, C.B.'s stepmother filed a police report alleging that Respondent had sexually abused C.B. After his father was arrested, C.B. spent one night with his stepbrother. His stepmother told him not to attend school the next day. She wanted C.B. to go with her to talk to the authorities and to get C.B.'s father out of jail. Despite these instructions, C.B. rode to school with Jen O'Connor. When C.B.'s stepmother discovered that he was at school, she went to pick him up. When she arrived at school, C.B. refused to go home with or meet with her alone. Because he would not meet with his stepmother alone, he met with her in the presence of the school resource officer. Because C.B. refused to go home, C.B. was taken to a youth shelter in Pasco County, known as the Run-Away Prevention (RAP) house. C.B. ran away from the shelter that night at about 1:00 or 2:00 a.m. C.B. turned to the only adults he knew who could safely contact for help. C.B. called the O'Connors from a pay phone at a mini market in Pasco County. Respondent was at the O'Connors at the time. Both Respondent and Mrs. O'Connor went to pick up C.B. Respondent drove because Mrs. O'Connor did not drive. They picked C.B. up at the mini market in Pasco County. Both discussed with C.B. where he could go. Because of the incident with C.B.'s father, C.B. could not return to the O'Connors' house. Respondent suggested that he return home. However, C.B. rejected that suggestion, saying he would immediately run away again. Additionally, Respondent and Mrs. O'Connor very reasonably believed it would not be physically safe for C.B. to return home. All decided that C.B. would go to the home of another teacher. When they arrived at the teacher's home, some discussion occurred about C.B.'s predicament. There was some discussion about emancipation, but the discussion was purely theoretical. C.B. was given the number for the Domestic Violence Hotline so that he could call and report his father and perhaps obtain some protective services from the state. Neither the teacher nor her roommate, who was also a teacher, reported C.B. to the police or advised his parents of his whereabouts. They did not so report because they reasonably feared for his safety. This was the last time that Respondent had any material contact with C.B. The next day C.B. left the teacher's house and stayed with a friend that he generally stayed with when he ran away. The friend was known to his parents and the friend' house was within a mile of C.B.'s home. Interestingly, C.B. continued to sporadically attend school while on runaway status until he was prevented from riding the bus to school by a bus driver. During the time C.B. was on runaway status, no one asked Respondent if he knew where C.B. was or if he could guess where he might be. Moreover, under these facts, Respondent did not have the duty to report any such information about C.B. On October 29, 1996, and November 6, 1996, a deputy sheriff interviewed C.B. about the allegations raised by his stepmother. On both occasions, C.B. denied that Respondent had ever engaged in or attempted to engage in inappropriate conduct with him. On November 8, 1996, a sheriff's detective, Detective Baxley, and a worker from the Department of Children and Family Services each questioned C.B. C.B. again denied ever having any sexual contact with Respondent. In November 1996, C.B. returned to live with his parents. On November 13, 1996, the day that C.B.'s father made his first court appearance, with some direction on what needed to be said to the state attorney from Detective Baxley, C.B. told the state attorney, in the presence of both parents, that he did not want to press charges against his father and that the "fight" was his fault. The charges were subsequently dropped. On November 18, 1996, Detective Baxley and Detective Cameron interrogated C.B. Towards the end of the interview, C.B. accused Respondent of having inappropriate sexual contact with him on two occasions. C.B. alleged that he had masturbated Respondent's penis in Respondent's cabin at camp in the summer of 1996.1 C.B. also alleged that he had masturbated Respondent's penis on Respondent's boat in Crystal River sometime in the early Fall of 1996, within weeks of the beginning of school. The detectives had C.B. call Respondent. They taped the conversation without Respondent's knowledge. C.B. told Respondent that the police had given him a polygraph when in fact they had used a computer voice stress analyzer. Respondent told C.B. he had nothing to worry about as long as he told the truth. The police interrogated C.B. again on November 27, 1996. During this interview, C.B. accused Respondent of inappropriate sexual conduct involving masturbation of Respondent's penis in Respondent's science classroom or the computer room at Powell Middle School during after-school hours of the 1995-96 school year. Respondent was arrested on or about December 5, 1996. In January of 1997, C.B. alleged for the first time that he masturbated Respondent's penis in the parking lot at Disney World on October 20, 1995. On March 27, 1997, C.B. accused Respondent of having anal sex with him at the O'Connor residence during a "hurricane day" in October of 1996. On April 16, 1997, C.B. accused Respondent of having anal sex with him in the walk-in closet of the computer/storage room at Powell Middle School on two occasions in September or October of 1996. None of these various accusations were credible. Finally, there was no credible evidence that Respondent interfered with the relationship between C.B. and his parents in a manner which could reasonably be foreseen to harm C.B. Moreover, there is nothing in the statutes or rules of DOE which, absent harm, purports to make interference with a parent's custody or ignoring a parent's wishes a violation of those rules subject to discipline. Respondent met A.P., a sixth grade student at Powell Middle School, in 1995 as a participant in the after-school program. A.P. was a very out-going person, who demanded attention. He was also known for lying, especially when seeking attention. At times, Respondent, as director of the after-school program, had to discipline A.P. A.P. did not find Respondent to be strong, mean, violent, or scary. He never heard Respondent swear, tell dirty jokes, talk dirty, or threaten anyone. During his sixth grade year, A.P. would routinely visit Respondent's classroom during the school day even though Respondent was not one of his teachers. A.P. often visited Respondent during the after-school program. Respondent frequently gave A.P. a ride home after the after-school program. Respondent offered A.P. a scholarship to attend Camp Sangamon in the Summer of 1995. With the consent of his parents, A.P. attended camp at a reduced rate for three weeks that summer. In the Fall of 1995, A.P. was in the seventh grade. He was in a science class taught by Respondent. He continued to attend the after-school program. Respondent worked on computers during the times that A.P. and other students visited in the computer room. There is no persuasive evidence that pornographic pictures of nude males on the Internet ever appeared on the computer monitors while Respondent was operating a computer in A.P.'s presence. In January of 1996, A.P. continued to visit Respondent in Respondent's classroom or in the computer room after school. Respondent did not at any time ask A.P. to touch Respondent in a sexually inappropriate manner. Respondent never masturbated A.P.'s penis on school property. Respondent developed a plan for A.P. to work and earn money so that he could attend camp during the Summer of 1996. A.P. did not follow through with the plan. Consequently, he did not attend camp for the second time. In the Fall of 1996, A.P. entered the eighth grade at Powell Middle School. A.P. continued to visit Respondent in the computer room after school up until the police arrested Respondent. Just before Respondent's arrest, Detective Baxley interviewed several of Respondent's students. One of those students was A.P. Of his own accord, Detective Baxley went to A.P.'s home to interview him. During the interview, A.P. told the detective that Respondent had shown him pornographic pictures from the Internet in the school's computer room. A.P. also claimed that, on one occasion, A.P. declined Respondent's request for A.P. to touch Respondent's penis. On another occasion, Respondent allegedly masturbated A.P.'s penis. According to A.P., the latter two incidents took place in the computer room. At one point, A.P. also admitted to a teacher and a guidance counselor that he had lied about these incidents. Again the greater weight of the evidence shows that Respondent did not engage in any sexual activities with A.P. or engage in any improper behavior or relationship with A.P. Respondent never harmed A.P. in any way. J.K. was another student attending the after-school program at Powell Middle School. He went to school with both C.B. and A.P. He also attended Camp Sagamon during the summer for at least one summer. While at camp, J.K. testified that one time Respondent, while sitting on the porch of his cabin, asked him about what he thought about two men being together. However, J.K. does not remember what the specific words were. J.K. did not particularly respond and left. Nothing was said about anybody having sex. The statement did not have a sexual connotation. Clearly, no violation of the statutes and rules is supported by such a vague, out-of-context statement. J.K. also recalled one incident when Respondent accidentally bumped into J.K. while he was in the storage room. The incident occurred when J.K. came out from behind the door to the storage room while Respondent was entering. The back of Respondent's hand brushed J.K.'s groin area. Respondent was startled by the encounter, jumped back and said excuse me to J.K. Again, nothing in this incident even remotely supports a violation of statute or rules. Finally, J.K. testified about Respondent teasing him about not skinny-dipping while at summer camp. The episode occurred while J.K. and Respondent were on Respondent's boat with a group of other people. None of the others overheard the conversation or were in a position to overhear the conversation. There is nothing in the episode which suggests that the teasing was overbearing or disparaging. Again, no violation of the rules or statutes was shown.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Education enter a final order finding Respondent not guilty of any violations alleged in the Administrative Complaint and dismissing the Administrative Complaint. Jurisdiction is reserved over the issue of attorney fees should the parties not be able to agree on such. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 24th day of June, 2002.
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated January 16, 2003, and in the Notice of Specific Charges filed February 27, 2003, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002).3 At the times material to this proceeding, Mr. Lefkowitz taught emotionally handicapped and seriously emotionally disturbed students in North Miami Beach High's Bertha Abbess exceptional student education program. He has been employed by the School Board since 1993, and is currently employed under a professional services contract. At the times material to this proceeding, Mr. Lefkowitz and at least one other person were making a music video for a course they were taking at Florida International University. Alvarro Gutierrez was working with Mr. Lefkowitz on the video, and Mr. Gutierrez had chosen the girl who would sing and would choreograph the dances for the video. Mr. Gutierrez did not, however, have any dancers, and Mr. Lefkowitz told Mr. Gutierrez that he knew some girls "from school" who were dancers and that he would ask them if they wanted to dance in the video. J.D. was, at the times material to his proceeding, an 11th-grade student at North Miami Beach High, although she was not a student of Mr. Lefkowitz. Rather, J.D. met Mr. Lefkowitz in a school hallway, while she was selling candy for her French class, and they apparently had several conversations during school hours. In one of these conversations, Mr. Lefkowitz mentioned that he was filming a music video for a college class. J.D. asked if she could be in the video, and Mr. Lefkowitz agreed and asked J.D. if she had any friends who could also dance in the video. J.D. introduced Mr. Lefkowitz to her friend N.F. N.F. was, at the time, an 11th-grade student at North Miami Beach High, but she did not know Mr. Lefkowitz until J.D. introduced them. Mr. Lefkowitz did not know at the time he met her that N.F. was a student at North Miami Beach High. J.D. also introduced Mr. Lefkowitz to Glamour Legros, whom she knew because she and Ms. Legros attended the same church. Prior to introducing Mr. Lefkowitz to Ms. Legros, J.D. had told him on a number of occasions how much Ms. Legros wanted to meet him.4 Ms. Legros and N.F. shared an apartment. Ms. Legros was not a student at the times material to this proceeding, and she was older than N.F. and J.D. J.D., N.F., and Ms. Legros agreed to dance in the music video and went to Mr. Lefkowitz's apartment several times to discuss, rehearse, and shoot the video. Mr. Lefkowitz picked up J.D., N.F., and Ms. Legros and drove them to his apartment on the occasions when they were working on the video. Mr. Lefkowitz also took J.D. and her friends home on these occasions. M.D., J.D.'s brother and a student at North Miami Beach High at the time, went to Mr. Lefkowitz's apartment once, and H.D., another student at North Miami Beach High, was at Mr. Lefkowitz's apartment on at least one occasion, when she danced for the music video. These two students also rode with Mr. Lefkowitz in his car on at least one occasion. In addition to her visits to Mr. Lefkowitz's apartment and her rides in his car, J.D. spoke with Mr. Lefkowitz numerous times on the telephone. When working on the video, J.D. went to Mr. Lefkowitz's apartment with her friends. She was alone with Mr. Lefkowitz once, after her friends left Mr. Lefkowitz's apartment; Mr. Lefkowitz took her home after about an hour. Mr. Gutierrez did not observe Mr. Lefkowitz engage in any improper behavior with J.D. or her friends at Mr. Lefkowitz's apartment during the time they were discussing, rehearsing, and shooting the music video. On April 21, 2003, Ms. Legros called the police and she and N.F. reported that Mr. Lefkowitz had come to their apartment, beat on the door, and threatened them verbally. According to the police incident report, the police were dispatched at 10:09 p.m. and arrived at Ms. Legros's and N.F.'s apartment at 10:12 p.m. Mr. Lefkowitz had outpatient surgery on April 18, 2002. Mr. Lefkowitz's mother was with him at his apartment from April 18 through the morning of April 22, 2002, the day he returned to work. According to Ms. Lefkowitz, Mr. Lefkowitz was in bed, asleep, on the night of April 21, 2002. On April 22, 2002, Raymond Fontana, the principal of North Miami Beach High, received a telephone call from a woman who identified herself to Mr. Fontana's secretary as J.D.'s aunt and who told Mr. Fontana that an exceptional student education teacher named "Neil" was having a relationship with J.D., a student at North Miami Beach High; the caller also reported that the teacher had been involved in an "incident" that had been reported to the police. Ms. Legros was the person who called Mr. Fontana.5 Mr. Fontana called Allyn Bernstein, an assistant principal at North Miami Beach High, into his office and asked her to look into the allegations made by the caller. Dr. Bernstein called Mr. Lefkowitz into her office and, before she could say anything, Mr. Lefkowitz told her that he knew why she had summoned him, that an ex-girlfriend had threatened to make trouble for him because he wouldn't give her money. When Dr. Bernstein questioned Mr. Lefkowitz about his relationship with the student J.D., Mr. Lefkowitz denied knowing her. Dr. Bernstein also called J.D. into her office. In response to Dr. Bernstein's questions, J.D. denied knowing Mr. Lefkowitz. She stated that she did not have a social relationship with any teacher outside of school and that she had never met any staff member outside school. After Dr. Bernstein reported to Mr. Fontana that she believed that there might be "something there,"6 Mr. Fontana reported the matter to the school district personnel, who referred the matter to the Miami-Dade School Police Department, and an investigation was initiated. Once the investigation was initiated, Mr. Lefkowitz was placed on alternate assignment at his home effective May 3, 2002. The investigator, Detective Victor Hernandez, interviewed N.F., Ms. Legros, J.D., H.D., M.D., and Mr. Lefkowitz. During the course of his investigation, Detective Hernandez was told that Mr. Lefkowitz and N.F. had dated and that they had had sexual intercourse. When Detective Hernandez interviewed Mr. Lefkowitz, Mr. Lefkowitz denied that he knew either J.D. or N.F. In a report dated September 2, 2002, Detective Hernandez described his investigation and set forth the substance of the statements given by the witnesses. Detective Hernandez concluded that the charges that Mr. Lefkowitz had violated Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, and School Board Rules 6Gx13-4.109 and 6Gx13-4A-1.21 were substantiated. A Conference-for-the-Record was held on October 2, 2002, with Paul Greenfield, District Director, presiding. Mr. Lefkowitz attended the Conference-for-the-Record, together with the School Board's Director of Region II and Mr. Fontana. Mr. Lefkowitz requested that his attorney be allowed to attend, but this request was denied.7 Mr. Greenfield reviewed Mr. Lefkowitz's history with the Miami-Dade County public school system and presented the results of the investigation. Mr. Lefkowitz denied having met J.D. and N.F. and denied that they were ever in his apartment. After the Conference-for-the-Record, Mr. Fontana recommended to the Superintendent of Region II that Mr. Lefkowitz's employment be terminated. Mr. Lefkowitz lied to Dr. Bernstein, to Detective Hernandez, and to the participants in the Conference-for-the- Record about his relationships with J.D. and N.F. because he knew it was improper for the students to be in his apartment and for him to associate with students outside of school. Mr. Lefkowitz expressed remorse at his behavior and acknowledged that his conduct was not appropriate. J.D. testified that she and Mr. Lefkowitz never dated or had sexual intercourse. Ms. Legros testified that she did not know whether Mr. Lefkowitz and J.D. had had sexual intercourse. She claimed, however, to have observed Mr. Lefkowitz and J.D. at Mr. Lefkowitz's apartment hugging and kissing and acting like "boyfriend and girlfriend to me."8 Ms. Legros has no personal knowledge that Mr. Lefkowitz had sexual relations with N.F., but testified that N.F. told Ms. Legros that she had had a relationship with Mr. Lefkowitz. An 11th-grade student testified at the hearing that he considered Mr. Lefkowitz to be a good teacher, a role model, and a teacher that he would remember after high school. Mr. Fontana testified that he thought Mr. Lefkowitz's effectiveness as a teacher had been impaired because of the "manner in which he dealt with students, having students come to his apartment, dealing with students that are out of the realm of his teaching responsibilities." Mr. Fontana observed that "once you breach that student/teacher relationship and you lose that professionalism I don't think you can ever go back and have the same degree of effectiveness as a teacher."9 In making his decision to recommend that Mr. Lefkowitz be terminated from his employment as a teacher, Mr. Fontana considered Mr. Lefkowitz's employment history with the Miami- Dade County public school system. Mr. Lefkowitz was twice referred for evaluation as to his medical fitness to perform his duties as a teacher and was twice found fit to perform these duties. Mr. Lefkowitz was the subject of three allegations of battery on a student, one in February 1995, one in February 1999, and one in March 1999; the February 1995 charge was substantiated,10 and Mr. Lefkowitz was given a verbal warning; the remaining two charges were unsubstantiated. Finally, in August 1995, Mr. Lefkowitz had an unacceptable annual evaluation, was given a TADS Category VII prescription in the area of Professional Responsibility, and successfully completed the prescription within the specified time. Summary The greater weight of the credible evidence presented by the School Board is insufficient to establish that Mr. Lefkowitz dated either J.D. or N.F. or that Mr. Lefkowitz had sexual intercourse with N.F. The School Board presented no direct evidence establishing that J.D. and Mr. Lefkowitz had a romantic relationship or that N.F. and Mr. Lefkowitz had a sexual relationship. The School Board relied exclusively on Ms. Legros's testimony to establish that these relationships existed,11 and most of her testimony was based on hearsay, not personal knowledge. Ms. Legros had no personal knowledge that N.F. had sexual relations with Mr. Lefkowitz, and the only behavior that Ms. Legros testified that she personally observed was Mr. Lefkowitz and J.D. in Mr. Lefkowitz's apartment hugging and kissing and, in Ms. Legros's estimation, acting like boyfriend and girlfriend. Ms. Legros is found not to be a particularly credible witness, and her uncorroborated testimony is not sufficiently persuasive to establish that Mr. Lefkowitz and J.D. more likely than not were dating or that the hugging and kissing, if she indeed observed such behavior, was sexual in nature. Both J.D. and Mr. Lefkowitz denied having a romantic relationship, but it is difficult to credit fully their testimony, given that both J.D. and Mr. Lefkowitz lied to School Board personnel about knowing one another and that Mr. Lefkowitz lied to School Board personnel about being acquainted with N.F. However, on reflection and after a careful review of the evidence, the testimony of J.D. and Mr. Lefkowitz is credited over that of Ms. Legros. The greater weight of the credible evidence presented by the School Board is not sufficient to establish that Mr. Lefkowitz telephoned N.F. on April 21, 2002, and threatened her or that he went to the apartment shared by Ms. Legros and N.F. on the night of April 21, 2002, and made threats to harm them. Mr. Lefkowitz's mother testified unequivocally that she was with Mr. Lefkowitz from April 19 through the morning of April 22, 2002, and that he was recovering from surgery and sleeping on the night of April 21, 2002. The School Board presented no evidence that Mr. Lefkowitz telephoned N.F. and threatened her, and Ms. Legros was the only witness to testify that Mr. Lefkowitz came to her apartment and made threats. The testimony of Mrs. Lefkowitz is credited over that of Ms. Legros.12 The evidence presented in this case is sufficient to establish that Mr. Lefkowitz failed to exercise the best professional judgment, failed to maintain the highest ethical standards, and used his position as a teacher to his personal advantage by recruiting young women students to perform as dancers in the music video he was filming as part of a college assignment. Mr. Lefkowitz admitted that he had engaged in inappropriate conduct: He had had a personal relationship outside of school with both J.D. and N.F.; J.D. and N.F. danced in a music video he made for a college project; J.D. and N.F. were in his apartment several times; and he drove J.D. and N.F. in his car to and from his apartment. The contents and tone of the written statement Mr. Lefkowitz adopted as his testimony supports an inference that he was on very familiar terms with both J.D. and N.F., and with Ms. Legros as well.13 Mr. Lefkowitz's poor judgment in developing significant social relationships outside of school with two female students at North Miami Beach High and his inappropriate behavior in having these students as guests in his car and in his apartment reflect poorly on him as a teacher employed by the School Board. Mr. Lefkowitz also failed to exercise the best professional judgment and to maintain the highest ethical standards with respect to his dealings with the School Board during the investigation of his conduct. Mr. Lefkowitz lied to Dr. Bernstein and Detective Hernandez and at the October 2, 2002, Conference-for-the-Record when he said he did not know J.D. or N.F., and he admitted at the final hearing that he lied because he knew that he should never have involved these students in making the music video, should never have given these students rides in his car, and should never have invited the students to his apartment. Mr. Lefkowitz's lack of truthfulness reflects poorly on him as a teacher employed by the School Board. The evidence presented by the School Board is also sufficient to establish that Mr. Lefkowitz engaged in one instance of inappropriate behavior involving students M.D. and H.D. Mr. Lefkowitz admitted that, on one occasion, he picked up these two students in his car and drove them to his apartment, where H.D. danced in the music video and M.D. observed Mr. Lefkowitz and cohorts filming the music video. Mr. Lefkowitz did not have repeated out-of-school contacts with these two students, as he did with J.D. and N.F., but his behavior with M.D. and H.D. reflected poorly on him as a teacher employed by the School Board. The evidence presented by the School Board, which consisted only of Mr. Fontana's conclusory and general statements, is not sufficient to establish that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami- Dade County public school system. The evidence presented by the School Board is, however, sufficient to permit an inference that Mr. Lefkowitz's effectiveness as a teacher was impaired. Mr. Lefkowitz encouraged students to develop personal relationships with him and to spend significant amounts of time with him in his apartment. Even though J.D., the young woman with whom he was primarily involved, was not a student in his class, his willingness to become involved with this student and her friends brings his personal and professional judgment into question and necessarily affects the school administration's assessment of his fitness for supervising high school students. It may also be inferred that Mr. Lefkowitz's effectiveness as an employee of the School Board was also impaired because he lied to the principal and assistant principal of his school and to the regional superintendent of the Miami-Dade County public school system about even knowing J.D. By not being truthful with the school system administrators, Mr. Lefkowitz diminished his credibility as a professional educator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order; Finding that Neil D. Lefkowitz is guilty of having committed misconduct in office and of violating School Board Rules 6Gx13-4-1.09 and 6Gx13-4A-1.21; Suspending Mr. Lefkowitz without pay for a period of 24 months, retroactive to the date on which the School Board suspended him from his employment without pay; and Imposing such conditions on Mr. Lefkowitz upon his return to employment as the School Board deems appropriate. DONE AND ENTERED this 31th day of July, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31th day of July, 2003.
The Issue Whether Respondent committed the offenses alleged in the Amended Notice of Specific Charges and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a duly constituted school board, charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida. The Petitioner has rule making authority and the authority to enter into collective bargaining agreements. At all times pertinent to this proceeding, the parties were bound by the provisions of the collective bargaining agreement between the United Teachers of Dade and the School Board. Pursuant to Section 1 of Article V, Petitioner has the exclusive right to suspend, dismiss, or terminate an employee for "just cause." The term "just cause" as defined by Section 3(D) of Article XXI of the contract: . . . includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009 (Florida Administrative Code). Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4A-1.21, which sets forth the expected conduct of employees as follows: All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4C-1.02, which sets forth the expected conduct of non-instructional personnel as follows: The Board recognizes and appreciates the important supporting role played by non- instructional personnel in the school system's educational program. For that reason the Board endeavors to select persons of the highest quality to fill vacancies as they occur. One of the important functions served by the non-teaching staff is that of demonstrating good citizenship in the community. The Board reaffirms the wish that all employees of the schools enjoy the full rights and privileges of residency and citizenship in this community and in the state. Because of its high regard for the school system's non-teaching staff, the Board confidently expects that its employees will place special emphasis upon representing the school system ably both formally and informally in the community. Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4-1.08, which prohibits violence in the workplace as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public School employees have a right to work in a safe environment. Violence or threats of violence by or against students and employees will not be tolerated. Article VIII of the collective bargaining agreement addresses the subject of a “Safe Learning Environment.” Section 1(A) of Article VIII provides, in pertinent part, as follows: “A safe and orderly learning environment is a major priority of the parties. ” At all times pertinent to this proceeding, Respondent was employed by Petitioner as a school security monitor. The job description of a school security monitor provides the following basic objectives and responsibilities: BASIC OBJECTIVES Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures the appropriate standards of conduct are followed. JOB TASKS/RESPONSIBILITIES Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school administration and resolves minor altercations. Physically patrols all school buildings, grounds, and determines reason for the presence of outsiders. Stops and questions all students not in class during class time. Monitors parking lots and student gatherings (before, during, and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee. Respondent was initially employed by Petitioner as a temporary custodian in February 1988, and assigned to Madison Middle School (Madison). In June 1988, Respondent was employed as a school security monitor at Madison, where he remained until December 1993. At all times pertinent to this proceeding, Thelma Davis was the principal of Madison. In December 1993, Respondent's assigned post was near a gate in close proximity to the chorus room. J. B. and K. A. were female students at Madison during the school year 1993-94. J. B. was born March 8, 1981. In December 1993, J. B. was a twelve year-old seventh grader and a member of the chorus class taught by Edward G. Robinson. In early December 1993, Respondent made a series of inappropriate comments and gestures of a sexual nature to J. B. when she passed his assigned post. Respondent winked at J. B. as she passed his post and blew her kisses. On one occasion, he asked if she was a virgin. On another occasion he asked her the color of her underwear. On another occasion, he made a statement as to how warm they would be under covers together. K. A. overheard Respondent say to J. B. that he and she would be warm under the covers together. J. B. became visibly upset the day Respondent asked her the color of her underwear. Mr. Robinson observed J. B. crying. J. B. thereafter told Mr. Robinson about Respondent's comments and behavior. Mr. Robinson reported the information to the principal. A day or two later, J. B., accompanied by K. A., again complained to Mr. Robinson about Respondent's comments and behavior. Mr. Robinson again reported the information to the principal, and an investigation was instigated. The investigation was conducted under the supervision of Captain Arnie Weatherington, an experienced law enforcement officer employed by the Dade County School Police. In December 1993, Respondent was removed from the school campus and reassigned to the Region III office. The investigation was closed in May 1994 as being substantiated. In light of the substantiated findings, Ms. Davis recommended that Respondent's employment with the Petitioner be terminated. Louise Harms of the Petitioner' Office of Professional Standards conducted a Conference for the Record (CFR) with Respondent on May 3, 1994. During the CFR, Ms. Harms advised Respondent as to the findings of the investigation. Respondent remained assigned to the Region III office until February 1995, when he was involuntarily transferred to Westview Middle School. The investigation into this incident was closed by Respondent’s reassignment to Westview. There was no formal recommendation at that time by the Superintendent or by the Office of Professional Standards that Respondent’s employment be terminated for his misconduct at Madison. At Westview, Respondent had the responsibility to patrol the outdoor areas of the campus. He was given a walkie- talkie and a golf cart to assist him in performing his duties. Respondent’s instructions as to the cautious and safe use of the golf carts included the explicit instructions that children were not permitted to ride in a golf cart or to sit in a parked golf cart. During the school year 1996-97, Respondent's assigned responsibilities included patrolling the physical education area. During the 1996-97 school year, John McHale was a physical education teacher at Westview. His responsibilities included taking attendance, maintaining control of the class, and following the district curriculum. In November 1996, Mr. McHale's physical education class and three other classes that were taught by a Ms. Roque, Patricia NewKirk, and Nathaniel Stephens were held on an outdoor basketball court. On November 13, 1996, Mr. McHale was in charge of his own class and, in her absence, Ms. Roque's class. Mr. McHale's class and Ms. Roque's class were assembled on the basketball court so Mr. McHale could take roll. In addition, Mr. Stephens' class was assembled on the basketball court so Mr. Stephens could take roll. While Mr. McHale was in the process of taking roll, Respondent began joy riding in his golf cart. He rode onto the basketball court around and between the two classes under Mr. McHale's supervision. Students jumped on the golf cart. Respondent talked to students. Mr. McHale approached Respondent, told Respondent that he needed to get the classes under control, and asked Respondent to get the golf cart off the basketball court so he could do his job. In response, Respondent stated: "Take your ass back to your class. No bald-headed white man telling me what to do."2 Tempers flared, Respondent got off the golf cart, and the two men approached one another. Mr. Stephens, who is larger than either Respondent or Mr. McHale, stepped between the two men with his back facing Respondent. Respondent struck out at Mr. McHale with a closed fist, making contact with Mr. McHale’s shoulder. Mr. Stephens separated the two men and took Mr. McHale to the locker room. Respondent did not have any justification for driving the golf cart onto the basketball courts while the physical education classes were using the courts. That conduct disrupted the classes that were using the courts. Mr. McHale reported the incident to Darrel Berteaux, the school principal. Mr. Berteaux requested that the DCSP conduct an investigation. The investigation into this incident was conducted by Lieutenant Oryntha Crumity, an experienced law enforcement officer employed by the Dade County School Police. During the course of the investigation, Respondent contacted several of the student witnesses and asked each student whether the student was on his side. By making such contact, Respondent attempted to intimidate these student witnesses. Approximately a month after the incident, Mr. Berteaux received reports that Respondent had approached several student witnesses. He immediately requested that Respondent be transferred from Westview. Respondent was thereafter transferred from Westview. Proceedings to terminate his employment were initiated following a review of these matters by the Petitioner's legal staff.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the final order terminate Respondent's employment. DONE AND ENTERED this 8th day of September, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1998
Findings Of Fact Carter holds Florida teaching certificate number 383679, graduate, rank III, valid through June 30, 1978, covering the area of music education, and at all times pertinent hereto was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a Band teacher. During the summer school session of 1978, at Matthew Gilbert, Carter was assigned as teacher for the Band class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 15 band students be enrolled and in attendance. In previous summers, band was an enrichment program which received no FTE money and did not require attendance records. However, during summer school of 1978, these requirements were changed and it was necessary to maintain a register of attendance of the Band class for FTE auditing purposes. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Carter prepared a student attendance register for the summer school of 1978 band class beginning June 16, 1978, and ending July 28, 1978. That register reflects 18 enrolled students in the course. Carter also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 30, 1978, and shows 19 students enrolled in Band. The second is dated July 10, through July 14, 1978, and reflects 18 full-time students and 1 half-time student enrolled in Band. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Carter. Deidre Sampson was reported as having been present for thirty (30) days between June 16, 1978, and July 28, 1978. Ms. Sampson also received a grade of "C" in the course. While Ms. Sampson was enrolled in the course, she attended no more than two or three days. Deborah Grant Lewis enrolled for the course and attended it for a period of three weeks and then lost interest and withdrew from the course. She received a "B" for the course and the attendance register reflects that she was present for twenty-nine (29) days with one day absent. Lloyd Gillespie neither enrolled in the course nor ever attended the course, yet he received a grade of "C". The attendance register reflects that Lloyd Gillespie was present for twenty-nine (29) days with one day absent. Ricky King enrolled in the course and attended for two or three weeks and then dropped out. The attendance register reflects that he was present twenty-seven (27) days with three days absent. LeVonne Sinclair enrolled in the class and attended through July 3, 1978, at which time she dropped out because of other employment responsibilities. While Ms. Sinclair did not receive a grade, her attendance register reflects twenty-seven (27) days in attendance with three days absent. Patricia Willis enrolled in the band course but never attended any classes. Nonetheless, Ms. Willis received a grade of "C" in the course and the attendance register reflects she attended twenty-six (26) out of the thirty days. Laura Redden enrolled in the Band course but never attended. She did not receive a grade but the attendance register reflects thirty days attendance with no absences. Vanessa McBride never enrolled in or attended the Band class but shows on the attendance register as having attended twenty-seven days with three days absent and receiving a grade of "C". It was the responsibility of Carter to prepare the student attendance registers and grade reporting forms for his class. The evidence establishes that Carter's signature appears on those forms which reflect the inaccurate attendance data and the award of undeserved grades. Mr. James E. Thompson, who is principal of Matthew school where Carter teaches, is willing to accept Carter in the future as one of his teachers because of Carter's overall abilities. Carter's efficiency ratings reflect that he is, otherwise, an effective teacher. The evidence establishes that Carter signed his name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the Band class, the class would have been cancelled and Carter would not have received remuneration for services as a Band instructor during that summer session of school. The evidence does not establish Carter's motivation as being that of protecting his income or insuring that the course was made available to those students who did attend.
