The Issue Whether just cause exists for the Petitioner's proposed non-renewal of the professional services contract under which the Respondent is employed.
Findings Of Fact From school year 1987-88 to school year 1990-91, and at all times material to this case, Respondent Aaron Ellis was employed as a guidance counselor by the School Board of Hendry County pursuant to a professional service contract. The professional services contract under which the Respondent was employed specifically provides that the Respondent may not be dismissed except for just cause as provided in Section 231.36(1)(a), Florida Statutes. Richard K. Shearer has been the Principal at Westside Elementary School since July 1989. At the time Shearer was assigned to Westside, the Respondent was on staff as a guidance counselor, but did not have regular classroom duties and was to respond to referrals from teachers of troubled students. Between August 7 and December 12, 1989, the Respondent placed 44 long distance telephone calls from his school office telephone. The calls, totaling 64.81 in tolls, were not school related. Westside Elementary School's Teacher Handbook specifically provides that long distance calls made from and charged to the school should be school related, and that permission must be obtained prior to such calls being made. On January 23, 1990, Principal Shearer discussed the inappropriate telephone use with the Respondent and informed him that reimbursement was required. Prior to this conversation, the Respondent had made no attempt to reimburse the school for the cost of the calls. By letter of January 26, 1990, Principal Shearer confirmed the conversation and stated that reimbursement was required by February 9, 1990. The letter, a copy of which was placed in the Respondent's personnel file, further states that, "[i]n the future, all long distance calls must be directly related to Westside Elementary school students, and must be logged completely and accurately with specific information as to who was called, what student it was in reference to, and the reason for the call." On April 4, 1990, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. Mr. Shearer discussed the evaluation with the Respondent who refused to sign the evaluation, but instead filed a separate response. Prior to completing the form, Mr. Shearer had observed the Respondent on an informal basis at least three times and had performed one documented formal observation. He also observed the Respondent in casual meetings with numerous students. In the evaluation, Mr. Shearer noted that the Respondent required improvement in the areas of "utilization of time", "interpersonal relationships", and "routine office procedures". The Respondent's overall performance rating was unsatisfactory. The comments section provided that: Mr. Ellis has some excellent qualities in the way he communicates with students. He also has some glaring weaknesses in making the most effective use of school time, in relating to fellow staff members including those in authority over him, in following generally understood office procedures. Improvement is necessary in these areas during the 1990-91 school years. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that if improvements were unsatisfactory, the Respondent's employment contract could be non-renewed. Mr. Shearer was concern that the Respondent did not follow through on referrals by teachers of troubled students. He also believed the Respondent to be difficult to talk to and was somewhat distant from other staff. As to desired improvements in interpersonal relationships, the notice of desired improvement provided: Mr. Ellis does not work as effectively with other staff members as might be possible or desirable. He seems to have trouble or resent answering to those in authority over him.... Mr. Ellis needs to stay in closer contact with teachers and administrators as together they decide on strategies to help students needing counseling or referrals for possible E.S.E. staffing....Staff or small group meetings will be set up upon request to discuss staff relations and counseling procedures. Expectations of the Counselor will be fully discussed at the beginning of the new school year....Better staff relations will hopefully develop by the end of the 1990-91 school year. Mr. Shearer believed that the Respondent failed to spend adequate time assisting referred students. As to desired improvements in utilization of time, the notice of desired improvement provided: Mr. Ellis does not use his time as efficiently or as effectively as he might during the school day....Mr. Ellis needs to show more initiative in scheduling his time appropriately during the school day....Schedules may be provided or developed and/or a classroom assigned to help him achieve more contact with students in need of counseling. A log of counseling sessions may be put to use....Improvements are expected during the 1990-91 school year. Mr. Shearer was sometimes unable to locate the Respondent on-campus, sometimes due to the Respondent's alleged illness (notice of which was not timely provided), other times because the Respondent would leave the Westside Elementary campus or would walk to another school located on the same property with Westside. As to desired improvements in routine office procedures, the notice of desired improvement provided: Mr. Ellis does not follow normally accepted office procedures. He does not always call in when he is to be out for the day, does not discuss extended absences with his supervisor, misses too much time from work, and has had a problem with unauthorized long distance phone calls....Mr. Ellis will conform to normal office procedures that are expected of all staff members.... A full explanation of what is expected of Mr. Ellis will be given by the Principal during the week of pre-planning....These problems should be corrected immediately, but for certain by the end of the 1990-91 school year. By memorandum of April 19, 1990, the Respondent replied to Principal Shearer's April 4th assessment. The Respondent stated that he believed he worked effectively with other staff members and did not have trouble in working or answering to those in authority. He noted that there were no complaints from teachers related to him and that he had never refused to perform assigned tasks. He wrote that he believed his time to have been utilized efficiently, that he had not been made aware of any related problems prior to the evaluation, and that he was amenable to suggestions related to more effective use of time. The Respondent insisted that he followed routine office procedures, although he acknowledged one instance of absence without notifying superiors. He noted that the matter of the inappropriate telephone calls had been handled through the letter of January 26, 1990 (a copy of which had been placed in the Respondent's personnel file) and through the reimbursement for such calls. He concluded, "I believe that your formal assessment of my performance should have, for reasons cited above, rated me as "satisfactory" in all areas. I will, however, do all you find necessary in order to demonstrate my better-than-satisfactory performance as a counselor at Westside Elementary School." By letter dated April 20, 1990, Hendry County School Superintendent William C. Burke informed the Respondent that due to the Principal Shearer's assessment and evaluation, he was being charged with unsatisfactory performance for the 1989-90 school year. The letter stated, "As provided in F.S. 231.36, you may request to meet with me or my designee for an informal review of the determination of unsatisfactory performance and/or request an opportunity to be considered for a transfer to another appropriate position, with a different supervising administrator, for the 1990-91 school year." The letter also stated that during the 1990-91 school year, the Respondent would "be provided assistance and inservice training opportunities to help correct the noted deficiencies" and that he would "be evaluated periodically to keep you apprised of progress." Although Principal Shearer was available to offer assistance or additional information related to the performance deficiencies, the Respondent demonstrated no interest in taking advantage of the available assistance, apparently because he did not agree with the evaluation. There is no evidence that the Respondent requested transfer to another position with a different supervising administrator. Thereafter, Mr. Shearer determined it necessary to provide a structured setting for the Respondent to perform his responsibilities. By letter dated June 21, 1990, Principal Shearer provided and outline of the guidance program he expected the Respondent to implement during the 1990-91 school year. The Respondent was assigned a permanent classroom for the school year which was designated as the "time-out or in-school suspension room" which was a part of the school's discipline program. "Disruptive" and "disinterested" students were to be referred to the Respondent's classroom. Such students would "benefit from more direct contact with the Guidance Counselor than we have been able to give in the past years." The Respondent was assigned three tasks related to the permanent classroom setting. He was to develop and maintain a record-keeping system for each child that included basic information, the reason for the referral to time- out, and "any notes on types of counseling or any progress made...." He was to "supervise and hopefully motivate students to keep up with their classwork while in time-out." Finally, he was to "use whatever opportunities that arise, individually or collectively, to counsel with students about the feelings or attitudes that led to their disruptive behavior or lack or (sic) classroom performance and ways to deal more appropriately with these feelings." The June 21 letter provided that the Respondent would "have a good deal of autonomy within your classroom, but it should be understood...that this is not a 'reward' or play time, or something to be looked forward to. The students will have no 'special area' privileges while in your room....The idea is total isolation from other students until dismissal time." The letter indicated that this job description was unusual for a school counselor, but that the program would permit the Respondent to have "much more direct contact with students who are having trouble succeeding in school." Concluding, the principal wrote that the plans were "subject to fine-tuning" as the year progressed, and that he welcomed the Respondent's input in the program. A memorandum from the principal went to all Westside Elementary teachers on or about August 22, 1990 which provided information on the Respondent's "time-out" classroom. The information in the memorandum was essentially similar to that in the June 21 letter to the Respondent. Between August 6 and August 17, 1990, the Respondent placed 7 long distance telephone calls from his school office telephone. The calls, totaling $17.25 in tolls, were not school related. By letter to the Respondent dated October 11, 1990, Principal Shearer wrote that, "...once again, in spite of my clear instructions to the contrary, you have charged personal telephone calls on our school telephone." The letter stated that "NO MORE personal calls are to be charged, by you, to our school phone! This is not a service available to you, or any other staff member." The Principal required immediate reimbursement and placed a copy of the letter in the Respondent's personnel file. The letter noted that continued noncompliance would result in more serious discipline being imposed. During the 1990-91 school year, Mr. Shearer often relieved the Respondent from the Time-Out room during lunch and planning periods, and had frequent contact with the Respondent. The Respondent was often observed sitting at the desk, his feet up on the desktop, reading a newspaper or book. Occasionally, the Respondent would be eating in the classroom. Additionally, there were complaints from the adjoining school that the Respondent took Time- Out students on walking tours around the other school campus, allowing them to purchase and eat snacks. Mr. Shearer believed the situation to be inappropriate, given that the Time-Out room was directed towards correcting inappropriate behavior, and spoke to the Respondent on several occasions about the situation, but the Respondent apparently did not believe the matter to be a problem. Mr. Shearer also encouraged the Respondent to discuss counseling concerns with highly-regarded staff from other schools and to attend relevant conferences, but the evidence fails to establish that the Respondent took advantage of such opportunities. On January 8, 1991, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. The evaluation was reviewed by Shearer and the Respondent on January 18, 1991. The Respondent signed the evaluation. The Respondent's evaluation in the area of "interpersonal relationships" had improved to satisfactory. Mr. Shearer noted that the Respondent still required improvement in the areas of "utilization of time", and "routine office procedures". The Respondent's overall performance rating was not noted. The comments section provided that: Some improvement noted in interpersonal relationships. Paperwork is very weak. Personal phone calls were made again this year on school phone and on school time against my direct instructions. Does not make use of available time with problem students in Time-out or with other students when counseling could be beneficial. Continues to miss entirely too much time from school. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that if improvements were required by March 15, 1991 or that the principal would recommend non-renewal of Respondent's employment contract. As to desired improvements in utilization of time, the notice of desired improvement provided: Continues to miss too much time from school. Does not make best use of extended time with problem kids in Time-Out. Does not actively seek out students or opportunities to counsel. Does not adequately follow-up on students referred for counseling....Make school attendance a higher priority. Take the initiative in scheduling students for counseling, those in Time-Out, as well as others who are in need....Keep an active log of students counseled in Time-Out and at other times. Keep a daily "diary" of activities done and students worked with....All necessary forms and papers will be made available. An F.P.M.S. package on "Using Time Efficiently" will be provided. As to desired improvements in routine office procedures, the notice of desired improvement provided: Paperwork is very weak, and record-keeping is almost non-existent. Long-distance personal phone calls have been made on school phones and on school time after direct instructions to the contrary....Record-keeping must be more accurate and more detailed to document work done with and for students. Compliance with directives is mandatory. All calls on school phones will be school related!....Progress will be monitored closely....Assistance will be provided as needed and/or as requested....Notebook with updated forms to be filled out on each student in Time-Out and those counseled otherwise will be provided. Mr. Shearer provided the Respondent with materials appropriate to maintain records on counseling activities. There is no evidence that such materials were utilized or that the Respondent made any effort to address the performance deficiencies noted by Mr. Shearer. On March 26, 1991, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. The Respondent refused to sign the evaluation. Mr. Shearer noted that the Respondent required improvement in the areas of "utilization of time", and "routine office procedures". The Respondent's overall performance rating was unsatisfactory. The comments section provided that: Mr. Ellis has made some improvements in his general attitude and has begun to have a little more student contact, but there is still much room for improvement. There are several major areas that are still unsatisfactory. At this time I am recommending that his contract not be renewed for the 1991-92 school year. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that the principal was recommending non-renewal of Respondent's employment contract. As to desired improvements in utilization of time, the notice of desired improvement provided: Continues to miss too much time from school. Still spends too much of his school day without direct contact with students. Has not been consistent enough on his follow-up of many of the children referred to him for counseling.... Must make school attendance a higher priority. Must show more initiative in meeting with students having problems. Initial contacts must be followed up and documented on a regular basis....Should meet with teachers on a regular basis to see what students are experiencing difficulties that he might be able to help with....Every consideration will be given to working out student schedules to allow maximum contact time with the Guidance Counselor. As to desired improvements in routine office procedures, the notice of desired improvement provided: Paperwork remains very poorly and sloppily done. Record-keeping is still very sketchy. Record-keeping must be more accurate and more detailed to document work done with students....Assistance will be provided as needed or as requested....Will continue to supply record books, calendars, files, etc. as may be needed to help keep organized and documented. By letter to Respondent dated April 11, 1991, Hendry County School Superintendent Burke informed the Respondent that due to the Principal Shearer's assessment and evaluation, he was being notified that "your performance deficiencies have not been corrected. Further I am notifying you that you shall not be issued a new professional service contract for the next school year." The Time-Out program was continued through the remainder of the 1990- 91 school year, but was thereafter discontinued. Mr. Shearer assessed the program as having been unsuccessful, at least in part due to the lack of interest and negative attitude regarding the program by the Respondent, who believed the program to have been a punitive measure against him by Mr. Shearer. Guidance counselors in the Hendry County Schools are asked to "volunteer" 1/ to assist school officials in obtaining psychological and social histories of students who may be emotionally or environmentally handicapped. The practice is to seek out a counselor who is assigned to the same school as the student. The counselor interviews the child and family, and completes appropriate paperwork containing the relevant information. The forms are not complicated and do not require special expertise to complete. The counselor receives $20 for each complete history taken and $10 to update a previously taken history. The Respondent was asked and agreed to take the history of a specific Westside Elementary School student. Neither the student nor the family spoke English to the extent that the Respondent, speaking only English, would be able to conduct the interview. In such situations, interpreters may be used, but the interview is to be conducted by the counselor. The Respondent did not ask if he could use an interpreter and did not seek approval to give the interview assignment to another teacher. The Respondent asked Rosa M. Santana, a Spanish speaking second grade teacher at Westside Elementary, to perform the interview. He did not offer to compensate her prior to her performing the interview. On or about April 28, 1991, Ms. Santana interviewed the child and family. Ms. Santana took her mother, who speaks Spanish fluently, with her to the interview. The Respondent was not present when the interview was done. Ms. Santana completed the interview form and listed herself as the interviewer. Ms. Santana thereafter returned the interview form to the Respondent. He altered the interview form to identify himself as the interviewer and Ms. Santana as an interpreter. He then submitted the completed form and the bill for $20 to school officials as his charge for taking the student's social history. School officials became aware of the fact that the Respondent did not complete the interview, and paid the money to Ms. Santana rather than to the Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Hendry County School Board enter a Final Order terminating the professional services contract of Aaron Ellis at the end of the 1990-91 school year. DONE and RECOMMENDED this 22nd day of November, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1991.
The Issue The issue in this case is whether, and how, Respondent should be disciplined for failing to take appropriate action regarding a middle school student who brought a knife to school.
Findings Of Fact Respondent holds Florida Educator Certificate 1063574 and is licensed in the fields of English, English for Speakers of Other Languages (ESOL), Reading, and Exceptional Student Education. She began teaching at Bonita Springs Middle School in Lee County in September 2011, after the start of the 2011-2012 school year. During instruction in her fourth period class on February 13, 2012, Respondent heard a student ask another student, who was an Exceptional Student Education (ESE) student with emotional issues, "was that a knife?" The ESE student responded, "Drama!" When Respondent looked up, she saw the ESE student place something in her lap, out of Respondent's view. Respondent did not see what it was but saw a flash of silver or metal. The class started to "act up," and Respondent decided to diffuse the incident and quiet the class by telling the ESE student to "put it away." The ESE student then put the object in her backpack. When the class ended, Respondent approached the ESE student and asked if she had a knife. The student denied it. Respondent told the student, if she had a knife, that would be unacceptable, but Respondent did not pursue the matter any further at the time and allowed the student to leave for her next class. During Respondent's eighth period class, the last period of the day, Respondent asked her student-aide, who also was a student in her fourth period class, about the incident during fourth period. The student-aide told Respondent that it was a knife, like a small steak knife, and that the ESE student had been licking it. After speaking with her student-aide, Respondent sent the school's ESE director, who also was the ESE student's caseworker, an electronic message simply asking to discuss the student with her when she had a moment. No details about the incident were included in the message out of Respondent's concern that it would be a public record. Respondent did not receive a response by the end of the school day. The ESE director received the message after hours. The next morning, Respondent saw the ESE director at a teacher's meeting and explained the previous day's incident. The ESE director was concerned about the delay in doing anything else about it and immediately went to the school principal, who was in the cafeteria, as were several other students, including Respondent's ESE student. The principal immediately went to the student and asked if she had a knife. The student admitted she did and thought it was no big deal since Respondent did nothing about it the day before. The student later stated that she was depressed and was considering cutting herself with the knife. Respondent now understands that she did not take the appropriate action on February 13, 2012. However, she contends that there are mitigating factors to consider, and any discipline should be constructive (such as, additional training), not punitive. Respondent attempts to defend herself to an extent by saying she did not actually see the knife during fourth period. However, it is clear that Respondent heard students asking about a knife, and saw something silver or metallic that could have been a knife, and was aware of the student's emotional issues. In light of those circumstances, Respondent should not have been satisfied with the student's denial that she had a knife; she should have involved the school's administrators and resource officer at that point. When she learned during eighth period that the student in fact had a knife, she should not have been satisfied with an unacknowledged electronic message to the ESE director. Respondent also attempts to deflect some blame onto the school for not making sure she knew what to do about incidents like the one that confronted her on February 13, 2012. It may well be true, as she testified, that Respondent did not get a copy of the Parent Guide and Code of Conduct for Students, normally distributed to teachers at the beginning of the school year, which identifies a kitchen knife as a weapon and prohibits it. Petitioner attempted to impeach Respondent's denial of receipt of the document by citing a handful of student discipline referrals by Respondent that use incident types taken from that document. One incident type, albeit not used by Respondent in any of her referrals, was possession of weapons; however, the form does not define weapons. Respondent testified convincingly that she used the forms without reference to the source document. Nonetheless, she knew it would be unacceptable for a student to have a knife at school. When Respondent started teaching at the school, she was offered an opportunity to take the APPLES program for new teachers, which provides information and training on codes of conduct, including provisions to protect the safety of students and faculty. Respondent opted out, stating that she took the APPLES program during her previous employment in Collier County. While perhaps not handed to Respondent when she started teaching at Bonita Springs Middle School, the Parent Guide and Code of Conduct for Students was easily accessible from Respondent's school computer via a program called SharePoint that was a link on the home page. Respondent denies ever accessing the material from her computer. However, Respondent prepared a professional development plan shortly after she started teaching at the school in October 2011. It included a plan to train on how to download documents from SharePoint, but Respondent had not yet followed through on that plan by the time of the incident. Information also was available to Respondent in the form of an Agenda book that she was given. The Agenda book contained the school's rules, including one prohibiting weapons as nuisances and providing that they would be confiscated. It is not clear whether any of the information provided or available to Respondent would have told her what to do in circumstances where she suspected, but was not certain, that a student had a knife, and the student denied it. Based on the facts of this case, additional training is appropriate and actually is desired by Respondent. On the other hand, Respondent would rather not be reprimanded, submit to supervised probation, and pay a $500 fine and pay costs, as Petitioner proposes. Under the facts and circumstances of this case, Petitioner's proposal would be harsh, not constructive, and possibly demoralizing. The evidence is clear that Respondent will follow the rules she is given and take appropriate action in a situation if she knows what is expected of her. A repeat of the failure to act appropriately in a situation similar to the incident on February 13, 2012, is not likely.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission find Respondent guilty of violating rule 6B-1.006(3)(a), issue a letter of reprimand, and place her on a short term of probation conditioned on the completion of appropriate additional training. DONE AND ENTERED this 8th day of April, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2013.
The Issue The issue presented for decision herein concerns the appeal of the Board's assignment of Jesus Valladares to Youth Opportunity School South, an alternative school placement.
Findings Of Fact Jesus Valladares, date of birth April 11, 1970, is an eighth grader who was enrolled at Rockway Junior High School during the 1983-84 school year in the Dade County School System. By letter dated March 14, 1983, Respondent was advised by the Director, Alternative Education Placement, William Perry, Jr., that in lieu of expulsion, Jesus was being administratively assigned to the opportunity school program. The basis of that administrative assignment stems from an incident on February 16, 1984 wherein Respondent carried a knife on his person while attending school at Rockway Junior High School. On February 14, 1984, Respondent displayed the knife to several students and threatened one student with the knife. On February 16, 1984, Lewis Plate, Principal of Rockway Junior High, took the knife from Respondent's person. As noted herein above, Respondent, or a representative on his behalf, did not appear to contest or otherwise refute the basis upon which the Petitioner administratively assigned him to Youth Opportunity School South.
Recommendation Based on the foregoing findings of fact and conclusions of of law, it is hereby recommended: 1. That the Petitioner, School Board of Dade County, Florida, enter a Final Order of assignment of Respondent, Jesus Valladares, to Youth Opportunity School South, an alternative school placement. RECOMMENDED this 13th day of July, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1984.
The Issue The issue is whether just cause exists for Petitioner to suspend Respondent from her teaching position for five days, without pay, based upon Respondent's interactions with students in a photography class she taught during the 2018-2019 school year.
Findings Of Fact The Broward County School Board ("School Board" or the "district"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant to this matter, Respondent Brenda Joyce Fischer ("Fischer"), was employed as an art teacher at Western High School, where she had been assigned since 2009. Fischer first became an employee of the district in 1992. During the 2018-2019 school year, Fischer taught a photography class, which met during first period several days per week. The events at issue occurred in this first-period class in the early months of 2019. The main incident took place on March 1, 2019, and involved a tenth-grade student named M.G., who——as she frequently did——arrived late that day to the 90-minute class, which started at 7:40 a.m. On this particular morning, M.G. walked in no earlier than 8:00 a.m. (her recollection) or as late as 8:20 a.m. (according to Fischer). Whether M.G. was 20 minutes or 40 minutes late, however, is immaterial. The important (and undisputed) fact is that M.G. was quite noticeably tardy, again. Within minutes after her untimely arrival, M.G. showed Fischer a pass, which authorized M.G. to leave class early to attend a school-sponsored function. The student asked the teacher for permission to go. Fischer denied M.G.'s request because M.G. had not completed the day's assignment. At some point, Fischer made the comment that gave rise to this proceeding, namely, that M.G. was operating on "Latin time" despite living in the United States (or words to this effect).1/ Fischer's exact words have been lost to time, but the phrase "Latin time" was among them, and the gist of the remark was to suggest that M.G. was prone to running late, as Latin people are known to do (so the statement would have it). M.G. claims that this remark offended her. After Fischer denied M.G.'s request to leave class for the special function, M.G. protested to Fischer about the perceived slight.2/ The undersigned credits Fischer's testimony that she did not intend to cause offense and, indeed, did not at the time regard the "Latin time" remark as a to-be-taken-seriously commentary on the unpunctuality (as the remark implies) of Latinos and Latinas. Rather, she thought it was a bon mot, something more light hearted or humorous than cutting or disparaging. Of course, as Fischer should have known, remarks of this nature, once commonplace, had by 2019 fallen into disfavor, and a culture of victimhood had arisen, which encouraged people to seek redress even for unintentional, de minimis offenses. Fischer should have known better than to utter a comment that was practically guaranteed to be called out as culturally insensitive, as indeed it is, to some degree. There is no dispute that, despite her lack of bad intent, Fischer was in the wrong. As it happened, though, M.G. was apparently less offended by the implied stereotype of Latin people as being chronically unpunctual, than by the application of the stereotype to a non-Latina such as herself. As M.G. informed Fischer when she complained about the remark, M.G.'s familial roots are in Spain, not Latin America, and thus, she identifies as European (Spanish), not Latin. This can be taken as an objection by M.G., not to the term "Latin time" per se, but to being lumped together with other Spanish speaking peoples, whose shared language, she maintains, should not be assumed to indicate similarities in other respects.3/ The irony is that M.G.'s comment, therefore, was itself offensive, because her statement can reasonably be understood as an assertion that Spaniards, in general, are more punctual than Latinos. The undersigned points this out, not to criticize or discredit M.G., but to illustrate that it is easy for a person innocently to make a statement which can be interpreted by another as offensive, particularly if the listener is primed to take offense. M.G. did not intend to insult Latinos by distinguishing herself from them, but her remark is, actually, somewhat insensitive in its implication, if taken at face value. It is interesting to note, as an aside, that none of the other students took offense at M.G.'s comment. This might, in part, reflect the higher status conferred by victimhood at the hands of a teacher versus those of a student. But more likely, the indifference to M.G.'s seeming acceptance of the cultural stereotype suggests that no one present actually took the "Latin time" remark seriously as a true statement of Fischer's opinion about people of Latin descent. What the students recognized was that Fischer's ill-advised attempt at humor, which was doomed to failure because that joke isn't funny anymore (if it ever was), gave M.G. an opening, and that as soon as M.G. pounced, she had won the victim's unassailable virtue. Fischer responded to M.G.'s objection appropriately, if predictably: she apologized, twice to M.G., and again to other students within earshot of her "Latin time" remark. M.G. rather ungraciously refused to accept Fischer's repeated apologies, accusing Fischer of being insincere about not having meant the remark to be interpreted "that way," i.e., as a mean spirited slur.4/ Not content to let Fischer off the hook, M.G. appealed for help to the school administration, which did not hesitate to oblige. When she turned Fischer in for making the "Latin time" remark, M.G. also reported an unrelated incident involving another student, C.C., whom M.G. felt Fischer had mistreated; his story is told below. The district's disciplinary machine, its fuel having been ignited by the spark of these accusations of prejudice, went to work, leading eventually to this hearing. As regards C.C., the charges against Fischer are founded on allegations that she "yelled" at the student "aggressively" and "inappropriately." By way of background, at the time of his enrollment in Fischer's photography class, C.C. was attending school in the U.S. for the first time, having just recently emigrated from Venezuela. C.C. could not speak English when he arrived in this country. C.C. used his cell phone in class as a translation tool, which everyone agrees is permissible. He also, however, frequently used his phone to communicate with others via text messages, which is generally not allowed, for obvious reasons. In fact, Fischer often observed C.C. surreptitiously texting during class when he should have been paying attention to the lesson or working on an assignment. One morning, Fischer noticed that C.C. was texting instead of editing a photograph, which he was supposed to be doing. She walked up behind C.C. and, at close range in a loud voice, ordered him to get off the phone. Now, clearly, a teacher should not be subject to discipline for telling a student to stop goofing off in class. So what could Fischer have done wrong here? The district alleges that Fischer "yelled" at C.C. and contends that "yelling" constitutes a disciplinable offense. In other words, it is not what Fischer said, but how she said it, which forms the basis of the alleged offense. The fatal flaw in the district's theory is that there is no evidence of an objective standard by which to measure the relative ferocity of Fischer's vocalization. Instead, several students testified that Fischer "yelled," in their respective opinions, on this and other occasions. Fischer, for her part, acknowledged that she has a loud voice, but denied having yelled at C.C. Maybe each witness told the truth in this regard, as he or she sees it. One person's tolerance for loud sounds may differ from another's. If there is an objective standard for distinguishing "appropriate" from "inappropriate" volume levels for purposes of suspending or terminating a teacher for "yelling," however, it is certainly not established by the opinions of a few of the teacher's students.5/ To be clear, there is no evidence suggesting that when Fischer "yelled" (as these students saw it), she was enraged, ranting, gesticulating wildly, or otherwise behaving in a manner that might indicate a potentially dangerous inability to control her emotions or actions. When Fischer ordered C.C. to get off his phone, she startled him, causing the student to leave the classroom. C.C. immediately proceeded to the guidance counselor's office, to report that Fischer's reprimanding him for unauthorized cell phone use had made him anxious and upset. The district makes much of C.C.'s emotional reaction, but it is hardly remarkable for a student to feel upset over being reprimanded. What's important here is that C.C. had not been unjustly reprimanded. His feelings, while understandable, are not persuasive proof of wrongdoing by Fischer. The district also believes it is somehow relevant that C.C. was the subject of a Response to Intervention ("RTI") process due to his having been diagnosed with autism and ADHD in Venezuela. As a threshold matter, because Fischer taught an elective class and, hence, was not one of C.C.'s "core" teachers, it is unclear whether she knew much, if anything, about this RTI. In any event, there is no evidence that Fischer was provided any written instructions concerning accommodations that she was supposed to provide, which she thereafter failed to offer. If such documentation exists, it was not produced at hearing. The few students who testified against Fischer accused her broadly of having given C.C. a hard time in class, insinuating (if not outright stating) that she did not care for C.C., specifically, because he struggled to keep up academically, nor for Spanish speaking students, in general. The evidence in this regard is nonspecific, undetailed, lacking in context, and, in a word, thin. The proof is insufficient to support any findings of material fact. Determinations of Ultimate Fact The district has failed to prove, by a preponderance of the evidence, the charges brought against Fischer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order exonerating Brenda Joyce Fischer of all charges brought against her in this proceeding and awarding Fischer back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 29th day of January, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2020.
The Issue The issue in this case is whether cause exists to terminate the Respondent's employment by the Pinellas County School Board based on the allegations set forth in the Superintendent’s letter dated May 6, 1997.
Findings Of Fact Kay Kennedy (Respondent) has been employed as a teacher by the Pinellas County School Board (Board) since October 3, 1977, under a continuing contract of employment pursuant to Section 321.36(4)(c), Florida Statutes. Since 1990, the Respondent has taught at Safety Harbor Middle School. By all credible accounts, the Respondent has been an effective and capable teacher throughout her career. The Test Review The Pinellas County School District administers a Comprehensive Test of Basic Skills (CTBS) test to middle school students. The CTBS test measures the skill level of individual students within their grade levels and is used to compare the District’s students to similiar students in other Florida school districts and in other states. The compiled math and language arts scores of each District school are published in the local newspaper to permit local school-by-school comparison. Individual student scores are not released. Teachers are encouraged by school officials to prepare students for the examination. The District provides review materials in math and language arts to each middle school. Teachers in each school review the material with students in the days immediately prior to administration of the test. Reviews may take as much as a full week of class time to complete. Teachers in subject areas other than math and language arts also provide subject matter review to students although the District provides no review materials for those review sessions. The Respondent has provided a general social studies review during the seven-year period she was employed as a geography teacher at Safety Harbor Middle School. Other teachers in non- math and non-language subject areas offer their own reviews. During the review period, the Respondent initiated discussions with her classes about general social studies topics. Because the District provides no materials, the Respondent was left to determine the topics for her review. In the 1996-97 school year, the Respondent taught five geography classes. She used the first period time as a planning period and taught her classes beginning in the second period. Teachers who had first period classes administered the 1997 CTBS test. Because the Respondent did not have a first period class, she was not involved in the administration of the 1997 CTBS test. After the test was completed, some of the Respondent’s students believed that in her review, the Respondent had given them the answers to the social studies section of the CTBS test. The students relayed their belief to parents. One student’s father, a principal at another Pinellas County School, was already concerned with the Respondent and had complained to her superiors about her teaching. He immediately contacted the Safety Harbor Middle School principal. There is no evidence that the Respondent’s teaching fails to meet minimum standards. To the contrary, the Respondent’s teaching evaluations appear to be completely acceptable. Shortly thereafter, the Safety Harbor principal also heard from another parent, and from a teacher who overheard students discussing the matter. The Safety Harbor principal contacted district officials and initiated an inquiry into the matter. Based upon the allegations, representatives of the school and the District interviewed the children, and came to the conclusion that the Respondent had provided answers to specific questions contained in the social studies section of the CTBS test. The CTBS test is kept under secure and locked conditions. Teachers receive test materials immediately prior to administration of the test. The materials are bar-coded and individually scanned to assure that all materials distributed are returned. Although the evidence is unclear as to how many versions of the CTBS test exist, multiple versions of the exam exist. It is reasonable to assume that the District would annually rotate versions of the test to prevent students from sharing test content with students who will be tested the next year. The Respondent administered the CTBS test during the 1994-95 school year. There is no evidence that she made or kept a copy of the test. There is no evidence that she made or kept any personal notes as to what was on the test. There is no evidence that the Respondent had access to the 1997 CTBS test. There is no evidence that the 1997 exam was the same test administered by the Respondent in 1994. There is no evidence that the Respondent had knowledge regarding the questions contained in the social studies section of the CTBS test. There is no evidence that the Respondent knew which version of the exam would be administered in the 1997 school year. There is no evidence that there is any benefit whatsoever to a teacher who provides test answers to a student. The results of the CTBS tests are not used in teacher performance evaluations, in matters related to salary, or in any other employment issues. There is no evidence that the Respondent’s students, having supposedly been told the answers to the social studies section of the CTBS test, scored higher than other students in the school who took the same exam and answered the same questions. The Respondent’s students were re-tested using another version of the CTBS social studies test after the allegations of improper test preparation were raised. There is no evidence that the Respondent’s students scored higher the first time they were tested than they did when they were re- tested. At the hearing, students acknowledged discussing the matter. At the time the initial accusations were made, some students discussed using the allegations as grounds to have the Respondent’s employment terminated for apparently personal reasons. Again, there is no evidence that the Respondent had access to the 1997 CTBS test, knew which version of the CTBS test would be administered, or had any personal gain to realize from providing answers to students. Absent any supporting evidence, the testimony of the students in this case is insufficient to establish that the Respondent provided specific answers to the social studies portion of the 1997 CTBS exam to her students. Assistance During the Exam At the time of the 1997 CTBS exam, R. M. was a student at Safety Harbor Middle School. He had not been in the school for very long, was not proficient at speaking English, and had never before taken an exam like the CTBS test. The Respondent was present during the time R. M. was taking the math portion of the CTBS test to momentarily relieve the teacher responsible for administration of the test. The Respondent saw R. M. filling in boxes on his test answer sheet and believed him to be doing so in a random manner known as “Christmas-treeing” the test. A student who does not know test answers may choose to randomly fill in the answer sheet in hopes that at least some of the guesses will be correct. The Respondent approached R. M. and advised him to work the problems instead of guessing. She worked a problem similar to those on the test to demonstrate how to perform the task. At the hearing, R. M.’s testimony regarding the incident was inconsistent. It is insufficient to establish that the Respondent provided answers to the math questions actually appearing on the test. Although the evidence fails to establish that the Respondent provided test answers to R. M., the provision of test assistance to R. M. during the examination was inappropriate. Working a demonstration problem for a student taking a standardized examination is improper, and is unfair to students who do not receive such assistance. At the hearing, the Respondent acknowledged that she should not have assisted R. M. with the exam. Prior Reprimands The May 6, 1997, letter states that the Respondent has “received four reprimands for leaving your classroom unsupervised, lack of judgment, kicking a student and misrepresenting the truth.” The evidence establishes that in 1990, the Board prosecuted the Respondent for such allegations and attempted to impose an unpaid three-day suspension. After an administrative hearing was held, the charges were dismissed. The prior allegations provide no basis for any current disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a Final Order reprimanding Kay Kennedy for providing assistance to a student during an examination and dismissing all remaining allegations set forth in the Superintendent's letter of May 6, 1997. DONE AND ENTERED this 23rd day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 23rd day of April, 1998. COPIES FURNISHED: C. Wesley Bridges II, Esquire Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779 Mark Herdman, Esquire Herdman & Sakellarides, P. A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770-2942 Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner has just cause to terminate Respondent, a noninstructional employee.
Findings Of Fact Petitioner hired Respondent in December 2002 to provide clerical services at Sunset Elementary School, where she worked until she was suspended, as described below. Sunset Elementary School is a magnet school that receives more applications than it can accept. At all material times, Respondent was the sole magnet clerk, who handled the vast amount of paperwork through the recruitment/application process that runs annually from October 1 through January. These duties included ensuring that the paperwork was accurate and scheduling interviews with candidates. Under her 12-month contract, Respondent was required to perform her duties from 8:30 a.m. to 4:30 p.m. daily. A new principal arrived at Sunset Elementary School for the 2003-04 school year. Immediately, Respondent began having problems with attendance, arriving late or not at all. At first, the principal spoke with Respondent informally, reminding her of her duties and the importance that she arrive at work on time every day. When informal discussions failed to result in any improvement, the principal sent Respondent a memorandum dated September 24, 2003, identifying seven absences for various reasons and six tardies. The memorandum requires Respondent to provide advance notice of absences and a physician's note for absences due to illness. This intervention was ineffective. By memorandum dated April 16, 2004, the principal detailed 21 additional absences or tardies during the same school year since the prior memorandum. These absences included seven consecutive school days in April. As the principal testified, the main purpose of this memorandum was to learn if Respondent had quit. By memorandum dated July 21, 2004, the principal reprimanded Respondent for her excessive absences and tardies during the preceding school year. Respondent's attendance was not satisfactory the following school year. By memorandum dated April 14, 2005, the principal again reprimanded Respondent for repeated absences and tardies and failure to comply with the directives from the preceding school year. Since the memorandum of July 21, 2004, Respondent had been absent, tardy, or left early 43 times. In the six weeks since the April 14, 2005, reprimand, Respondent missed all or part of six days of work. By memorandum dated May 25, 2005, the principal reprimanded Respondent for gross insubordination due to the six absences or tardies since the April 14 memorandum. Again, Respondent failed to respond to these interventions. During the 2005-06 school year, she was absent 45 times, as advised by memorandum to her from the principal dated June 12, 2006. By memorandum dated June 13, 2006, from the principal, Respondent was again reprimanded for her absences and tardies during the preceding school year. On October 13 and 19, 2006, Respondent failed to appear at work without prior (or subsequent) authorization. Petitioner conducted a conference for the record on November 7, 2006, at which its representatives discussed with Respondent her noncompliance with attendance rules. By memorandum dated November 21, 2006, from the principal to an assistant superintendent, the principal recommended dismissal of Respondent for gross insubordination and unsatisfactory attendance. By letter dated December 20, 2006, the assistant superintendent informed Respondent of her intention to ask Petitioner, at its January 17, 2007, meeting, to suspend Respondent without pay and initiate dismissal proceedings against her, unless Respondent requested a hearing within 20 days. Respondent timely requested a hearing. Article XXI, Section 3.D of the applicable collective bargaining agreement applies to "educational support employees" and provides: Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause 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.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing Respondent from employment. DONE AND ENTERED this 22nd day of May, 2007, in Tallahassee, Leon County, Florida. S 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 22nd day of May, 2007. COPIES FURNISHED: Dr. Rudolph F. Crew Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ana I. Segura, Esquire Janeen R. Richard, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Amy Marie Utrera 1201 Southwest 124th Court, Unit C Miami, Florida 33184
The Issue The issue is whether Petitioner, Ricky Lynn Sapp (Sapp), was nonrenewed for his annual teaching contract for constitutionally permissible reasons.
Findings Of Fact Petitioner was first employed by the Escambia County School Board for the 1984-85 school year in the compensatory education program at Bellview Middle School and later that school year he took the place of an eighth grade math teacher who was out on maternity leave. Sapp holds a Florida Teaching Certificate in elementary education and is not certified to teach in middle school. He has a bachelors degree. Sapp was asked by the School Board to take the courses necessary to become certified in middle school math, but did not do so because he was working at another job at the time. Petitioner was hired on annual contract by the principal of Bellview Middle School to teach seventh grade math during the 1985-86 school year and to teach sixth grade for the 1986-87 school year. For the most part, Sapp received excellent performance evaluations from the Bellview principal. In September, 1986, a mother of a Bellview Middle School student complained to the principal regarding what she believed to be unacceptable contact between Sapp and her son. The principal told Sapp to stay away from the student, but the parent's complaints continued. The student had been in Sapp's seventh grade math class the prior school year. On November 7, 1986, Sapp was arrested for lewd and lascivious assault on that student. As a result of these charges the Superintendent of the Escambia County School District recommended to the School Board that Sapp be suspended without pay. The School Board voted to disapprove the Superintendent's recommendation. Instead, Sapp was reassigned to administrative duties at the Hall Center. In the fall of 1986, Sapp was also notified by the Department of Education, Professional Practices Services (PPS), that an investigation of the allegations involved in the criminal charge had been instituted. On April 1, 1987, Sapp received the standard memo from the School Board, signed by the Bellview principal, indicating that his annual contract was going to expire at the end of the 1986-87 school year. The memo also indicated that the school district would move as rapidly as possible on the reappointment of the annual contract teachers recommended to the Superintendent for reappointment for the 1987-88 school year, but "personnel assignments resulting from the closing of the Beggs Center and the redistricting of all middle school boundaries greatly obscures the timeline for such reappointments." During the summer of 1987, Sapp talked to Dr. Roger Mott, the Assistant Superintendent for Personnel Services of the school district, and others in his office regarding appointment to an annual contract for the 1987-88 school year. Sapp claims he was told by Mott that he would not be rehired until after his criminal trial. Mott denies telling this to Sapp. Because Sapp's testimony was very confused and contradictory regarding these alleged statements by Mott, Sapp's version is given little weight. Instead, it is found that Mott did not tell Sapp that he would be rehired after the criminal trial. During the discussions between Sapp and Mott in the summer of 1987, Mott did tell Sapp that he was free to interview with any principals in the district for open annual contract positions, however those principals who inquired would be told that there was a Professional Practices Services investigation. Sapp expressed interest only in employment at Bellview. During 1987 the middle schools of Escambia County were redistricted. As a result of redistricting, Bellview Middle School anticipated losing approximately 300 students and 10 teaching positions for the 1987-88 school year. After the jury found him not guilty on August 12, 1987, Sapp again inquired regarding employment. According to Charles McCurley, principal of Bellview Middle School, there were no positions available at Bellview. By letter dated August 21, 1987, Sapp was advised that the Professional Practices Services was investigating two complaints. The first related to the charge of lewd and lascivious assault on a child. The second complaint was that Sapp had received his teaching certificate by fraudulent means because he failed to disclose two criminal convictions on his applications. Mott became aware of the PPS investigation and he discovered that Sapp had apparently falsified the applications for his teaching certificate and the applications for employment with the Escambia County School District. Mott then informed Sapp that the chances of reemployment were not good and that he could not be considered for employment until the PPS investigation was complete. Mott also testified that Sapp was not reemployed because of the information that formed the basis of the second PPS investigation. While this is not the place to determine whether or not Sapp falsified these applications, it is necessary to determine what facts the Respondent acted on in not renewing Sapp's annual contract. Sapp's applications to both the school district and the state showed that he answered "no" when asked if he had ever been convicted of a felony or first degree misdemeanor or other criminal offense other than a minor traffic violation. Sapp has, in fact, been convicted of at least two such violations which were not disclosed. Sapp approached Robert Husbands, Executive Director of the Escambia Education Association, for assistance in getting employment. Husbands talked to Mott. Mott informed him that Sapp could not be rehired until the PPS investigation was resolved. Husbands found that there were seven teaching positions in the whole county which were vacant at the beginning of the 1987-88 school year. Two of those positions were located some distance from Pensacola. Only one of those positions was known to have been filled by an annual contract teacher. There were 37 annual contract teachers in the school district who were not renewed for the 1987-88 school year. Eight others who were not renewed at the beginning of the school year were rehired during the year. Because of redistricting, Bellview had only one opening for an annual contract teacher after it placed its continuing contract teachers. That one opening was for reading and was filled by a reading teacher with a masters degree. Sapp was not qualified for that position. After the 1987-88 school year had begun, Bellview experienced increased enrollment and a resulting increase in teaching positions. Those positions were filled by teachers who were teaching in their field of certification and who were at least as qualified as Sapp. It was very important that Bellview have teachers working in their area of certification because the school was to be audited for accreditation in the 1987-88 school year. Sapp's former position at Bellview was filled by a continuing contract teacher who had previously taught seventh grade and who was certified to teach in both middle and elementary school. The teacher who took over Sapp's class in the 1986-87 school year was not rehired. During the first week of the 1987-88 school year, Sapp sought employment at Bellview and the principal correctly told him there were no jobs. Later, in October, 1987, a position opened up at Bellview and a continuing contract teacher with a masters degree in reading and 18 years of experience was transferred in at her request. Sapp believes he was not renewed as retaliation for the School Board's rejection of the Superintendent's recommendation for suspension on January 27, 1987. This allegation is based only on Sapp's personal feeling and no evidence was presented to substantiate his belief. Sapp also believes he was not renewed because of the arrest itself. Again, no evidence was presented to substantiate his belief. By letter of September 18, 1987, the School District, through counsel, advised Sapp's attorney that Sapp would not be considered for reemployment until the PPS investigation was concluded and the District was advised of the results. The PPS has not filed any complaint against Sapp based on either of its investigations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Ricky Lynn Sapp, be DENIED relief from the nonrenewal of his annual contract and that his request for relief be DISMISSED. DONE and ENTERED this 8th day of March, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5059 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Finding's of Fact Submitted by Petitioner, Ricky Lynn Sapp Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(10); 3(12); 4(14); 5(2); 6(2); 8(3); 9(3); 11(4); 12(5); 13(8); 15(6); 16(7); 18(23); 20(20); 21(24); 22(26); 23(26); and 25(27). Proposed findings of fact 7, 17, 28 and 29 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 10 is rejected as irrelevant. Propose findings of fact 14, 19, 24, 26, 27, and 30 are rejected as being unsupported by the competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Escambia County Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(1 and 10); 3(11); 4(25); 5(25); 6(13); 7(14 and 16); 8(15 and 22); 9(18); 10(22 and 23); 11(6); 12(19); 13(29); 14(30 and 31); 15(32); 16(33); 18(19); 19(27); 20(28); 21(33); 22(34); and 23(35). Proposed finding of fact 17 is rejected as being unnecessary. Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: G. James Roark, III, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Mike Holloway Superintendent of School Board Escambia County 215 West Garden Street Post Office Box 1470 Pensacola, Florida 32597-1470 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
The Issue The issue in this case is whether Respondent, a noninstructional employee of Petitioner's, should be fired.
Findings Of Fact Material Historical Facts At all times material to this case, Respondent Jimmie Alvin ("Alvin") was a School Security Monitor in the Miami-Dade County School District ("District").1 From 1989 until September 2003, when Petitioner Miami-Dade County School Board ("Board") suspended him without pay, Alvin worked at Miami Beach Senior High School. During the 2001-02 school year, Alvin failed to show up for work without authorization at least twice, and he was tardy some 28 times. Alvin was disciplined for this poor performance at a conference-for-the-record held on April 25, 2002. Alvin's attendance improved thereafter, and during the 2002-03 school year, he was late for work just six times. Other problems arose, however. In September 2002, a female student accused Alvin of having touched her arm inappropriately while, allegedly, simultaneously calling her a "whore" in front of others. Following the student's complaint, the District charged Alvin with violating the School Board Rule against improper employee- student relationships. School detectives investigated the charge and found it "substantiated" on conflicting evidence. At the final hearing in this case, however, Alvin credibly denied the allegations. For its part, the Board offered no persuasive, competent, nonhearsay evidence to prove that Alvin actually committed the acts of which the female student had accused him. Thus, it is determined as a matter of ultimate fact that the evidence fails to establish Alvin's guilt with regard to the charge of engaging in an improper employee- student relationship. On March 3, 2003, Alvin was arrested and charged with possession of cocaine and marijuana with intent to sell. On April 24, 2003, Alvin pleaded "no contest" to the criminal charge and was sentenced to one year's probation. At a conference-for-the-record on May 6, 2003, Alvin was notified that the District would review information concerning his past attendance problems, the alleged improper relationship with a student, and his recent criminal conviction, to determine an appropriate disciplinary response. At its regularly scheduled meeting on September 10, 2003, the Board suspended Alvin without pay pending the termination of his employment for just cause. At all times material, Alvin was a member of United Teachers of Dade ("UTD"), a teachers' union. The conditions of Alvin's employment were governed by a collective bargaining agreement referred to in the record as the "UTD Contract."2 Ultimate Factual Determinations The undersigned is unable to determine whether, as a matter of ultimate fact, Alvin should be fired for reasons stated in the collective bargaining agreement, because the UTD contract is not in the evidentiary record.3 Therefore, it is determined that the Board has failed to carry its burden of proving the alleged grounds for dismissal by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Alvin of all charges brought against him in this proceeding; (b) providing that Alvin be immediately reinstated to the position from which he was suspended without pay; and (c) awarding Alvin back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 19th day of March, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2004.
The Issue The ultimate issue in the instant case is whether Respondent should be administratively reassigned to Petitioner's alternative education/disciplinary program at Jan Mann Opportunity School-North.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Norland Middle School is a public school operated by Petitioner. Respondent was previously a student at Norland Middle School. While a student at Norland Middle School, Respondent was involved in an incident in August, 1989, which caused Petitioner to initiate action to reassign him to the alternative education/disciplinary program at Jan Mann Opportunity School-North. Thereafter, in September, 1989, Respondent moved with his mother from Dade County to Broward County and enrolled at Hallandale High School, a school operated by the School District of Broward County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order dismissing the instant proceedings on the ground that Respondent, as a resident of Broward County, is no longer subject to Petitioner's jurisdiction. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1990. COPIES FURNISHED: Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Virginia Timmons 103 Northeast 185th Terrace Miami, Florida 33179 Madelyn P. Schere, Esquire Assistant School Board Attorney 1450 Northeast Second Avenue Miami, Florida 33132 Russell W. Wheatley, Assistant Superintendent Office of Alternative Education 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
