The Issue Whether Respondent, Teresa Wimmer, violated Florida Administrative Code Rules 6A-10.080, the Code of Ethics of the Education Profession in Florida (Code of Ethics), or 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida (Principles of Professional Conduct), as alleged in the Hernando County School Board’s March 9, 2015, notice of recommendation of termination, and March 24, 2015, modification of that notice; and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Hernando County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. Respondent has been a teacher at Pine Grove for roughly 11 years. During the 2014-2015 school year, Respondent was a teacher of first-grade students, with a class of approximately 18 students. As a classroom teacher, Respondent was expected to comply with the 2014-2015 Staff Handbook. Among the provisions applicable to Respondent was the following: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety and/or welfare of a student or for protection of themselves. Respondent has been the subject of several disciplinary proceedings over the years. In September 2004, Respondent was involved in an employee conference for grabbing a student’s arm on two occasions to correct misbehaviors, the result of which appeared to be a reprimand. The report of the employee conference was to remain in the school file for one year. In January 2006, Respondent was involved in an employee conference for making derogatory comments regarding a student and allowing classmates to do the same. Respondent was required to re-read the Code of Ethics and Professional Practice forms and write a letter of apology to the student and parents. The employee conference report closed with “[a]ny further behaviors involving embarrassment to students will result in further disciplinary action.” In September 2013, Respondent was involved in an incident that is of more direct relevance to this proceeding. In that instance, Respondent was accused of roughly handling students in her classroom. As a result, she was offered, and accepted, a Stipulation for Employee Discipline and Last Chance Agreement (Stipulation). In the Stipulation, Respondent acknowledged that she “engaged in misconduct by having inappropriate and unprofessional interactions with students in her classroom” and that such conduct “warrants disciplinary action up to and including termination.” In lieu of termination, the School Board and Respondent agreed that she would be suspended for ten days and, thereafter, serve a probationary period for the remainder of the 2013-2014 school year. The Stipulation further provided that Respondent “agrees that she will not engage in the conduct which gave rise to this Stipulation at any time or any place so long as she is an employee of the Hernando County School District. Further, [Respondent] understands that if she does engage in misconduct, it will result in disciplinary action, up to and including termination.” Respondent successfully completed the terms of her probation without incident. School principals, assistant principals, guidance counselors, and persons in similar duties are trained in Crisis Prevention Intervention (CPI), which is an approved method of restraining or transporting completely out-of-control students or removing children from the classroom. CPI training is not provided as a matter of course to classroom teachers. Respondent has not received CPI training. Holding a student’s hand is not a CPI hold. There is nothing inherently inappropriate with a teacher taking a student by the hand and walking with the student. The 2014-2015 Staff Handbook provides, in the section entitled “Return of Students to Classroom (Authority of the Teacher),” that: Teachers should follow their school’s procedure for the removal of students who are acting out. Suggestions include: having an adult accompany the student from the class or requesting an administrator to come to the class. (emphasis added). The routine procedure for removal of a disruptive or unruly student from the classroom is for the classroom teacher to call the office, whereupon Ms. Johnson, Ms. Kasten, or a guidance counselor, each of whom are trained in CPI, would go to the room, try to calm the student, and, if warranted, take the student to the office. Despite the procedure described above, Ms. Kasten testified that teachers, on occasion, “would bring the student down for me to talk to or the guidance counselor to talk to.” In such instances, “[t]hey would just walk them down” to the office. Although the teacher would usually call the office first, the evidence did not support a finding that a call was required or necessary, or that it happened in each event. Although the timing of those other events of taking students to the office was described as generally occurring “during their planning period or whatever, if they were at specials or whatever,” the preponderance of the evidence supports a finding that the act of walking a student to the office, per se, does not constitute a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook and that the school has not previously determined it to be so. Among the reasons for having teachers call the office for assistance with disruptive students is to limit those periods in which a teacher may leave students unattended or, as in this case, leave a co-teacher responsible for up to 36 students while the disruptive student was walked to the office. However, Ms. Tyree testified that there have been times when she would ask Respondent to “keep an eye on [her] class” while she went to attend to other things, and vice versa. There was no suggestion that asking a co-teacher to watch over a class was improper, as long as “your class is covered.” In the weeks prior to February 4, 2015, J.S., a student in Respondent’s classroom, had become increasingly disruptive in the classroom. The behaviors ranged from J.S. talking in “baby-talk” and rolling crayons on his desk, to choking another student with a lanyard. Respondent did not know why J.S.’s behavior had spiraled out of control, but indicated to Ms. Kasten that it was creating a problem for her ability not only to teach J.S., but to teach the other students in her classroom. The office was called on three occasions to deal with J.S., and Ms. Kasten went to the class to address the situations. On two occasions, J.S. remained in the classroom after Ms. Kasten’s intervention. On one occasion, Ms. Kasten removed J.S. from the classroom. On the occasion when Ms. Kasten removed him from Respondent’s classroom, J.S. was walking around the room and disturbing the other students. Ms. Kasten could not get J.S. to listen to her. Thus, she decided to take J.S. to the office. She did not employ her CPI training or use a CPI hold, but took him by the hand “with the idea of keeping him from getting away.” During the walk to the office, J.S. “was pulling a little bit” to try and get away.1/ There was no suggestion that the actions of Ms. Kasten in taking J.S. by the hand and walking him to the office were inappropriate or contrary to the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. On the afternoon of February 3, 2015, Ms. Kasten met with Respondent to discuss the behavior of J.S. in her classroom. Respondent was upset and frustrated with J.S.’s unruly behavior and wanted to know what could be done about it. Ms. Kasten suggested that the two of them could work to develop a behavior plan for J.S. and indicated that she would bring a plan to Respondent the next day for them to work on. The incident that forms the basis of this proceeding occurred on February 4, 2015. As students were entering the class for the day, Respondent heard screaming and the words “stop hitting me.” She turned and saw J.S. striking a female student with his fists. Respondent was able to verbally quell the disturbance. However, after initially returning to his seat, J.S. went to the back of the room where he began kicking table legs and other items. Respondent asserted that prior to her taking the student to the office, she called Ms. Kasten to advise her that she would be doing so and received permission from Ms. Kasten. Ms. Kasten had no recollection of having received any such call. The telephone records admitted at the hearing do not reflect that any calls were placed between Respondent’s line and the office.2/ There was no evidence to support a finding that the telephone records maintained by the school were unreliable. The greater weight of the evidence indicates that Respondent did not receive prior approval before taking the student to the office on the morning of February 4, 2015. However, the issue of whether Respondent received or did not receive permission to take J.S. to the office, and whether the act of doing so violated any school policy, was not pled as a basis for Respondent’s termination. On her way out of the classroom with J.S., Respondent passed through the classroom of her co-teacher, Ms. Tyree, with whom she shared a paired classroom, and stated to her something to the effect of “[c]an you watch my class? They told me to take [J.S.] to the office.” Although not a frequent occurrence, it was not unusual for Respondent and Ms. Tyree, as paired teachers, to watch one another’s classes while the other was out for short periods. In this case, Respondent’s class was covered while she walked J.S. to the office. Respondent took J.S. by the hand and tucked his arm inside her arm. Although J.S. did not want to go to the office, his resistance was described by Ms. Tyree as “verbal like ‘I don't want to go, I don't want to go.’ But there wasn't a, like, a tug of war going on there.” Respondent indicated that she took J.S. by the hand in order to keep him safe. Given J.S.’s actions of physically assaulting a fellow student, followed by continued physical agitation at the back of the room, Respondent’s concern for safety, not only for J.S., but for the other students in her charge, was warranted. The walk to the office was captured by the school’s video system. The video covered the time from 8:33:00 to 8:33:58. Respondent and J.S. are clearly visible in the video for approximately 30 seconds, from frame 08:33:04 to frame 08:33:32. The video is somewhat grainy, and certain details are not readily observable. However, the video is consistent with Respondent’s statement that she was holding J.S. by the hand. Thus, the preponderance of the evidence supports that Respondent was holding J.S. by the hand as she walked with him to the office and not by the “wrist area,” as surmised by Ms. Johnson. At frames 08:33:12 and 08:33:13, J.S. appears to briefly resist Respondent’s efforts to take him to the office by trying to remove his hand from Respondent’s hand as they walked side-by-side. Despite his resistance, Respondent was not “pulling/dragging” J.S. during those frames. At frames 08:33:18 and 08:33:19, J.S. appears to briefly pull away from Respondent. The action was that of J.S., not of Respondent. Respondent did not release J.S., but neither did she pull or drag J.S. The action at frames 08:33:18 and 08:33:19 is entirely consistent with that described by Ms. Kasten when giving the account of her earlier walk to the office with J.S. -- which did not involve a CPI hold -- when J.S. “was pulling a little bit” to try and get away. Despite J.S.’s efforts to pull away in both instances, neither Respondent nor Ms. Kasten was “pulling/dragging” J.S. during their walks to the office. For the remainder of the walk to the office, Respondent and J.S. walked side-by-side at a consistent pace. The evidence suggests that J.S. was vocal in his reluctance to be taken to the office, consistent with the description of his verbal resistance when being taken from the classroom as described by Ms. Tyree. The verbal resistance apparently continued, as evidenced by the reaction of the boy using the walker, who comes into the picture at frame 08:33:22. However, J.S.’s verbal protestations did not involve pulling or dragging and do not form the basis of a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. Respondent’s actions, though firm, did not appear to be aggressive. They were consistent with the description offered by Ms. Tyree, who testified that, as to the Respondent’s walk through her classroom, “there wasn't an altercation of, like, dragging or, you know -- it wasn't -- she was walking, he was walking. But he wasn't happy, you could tell that he didn't want to.” As Respondent entered the office with J.S., Ms. Kasten, the elementary assistant, was in the office, though on the other side of the office. Respondent approached the office with J.S. The door to the office opens out. It occasionally slams, and Ms. Kasten has seen it slam on students. In order to ensure J.S.’s safety, Respondent placed both of her hands on his arms to move him through the door and into the office. Respondent yelled for Ms. Kasten to “take him.” Ms. Kasten observed that Respondent was trying to get J.S. into the doorway to someone who could help. Although Respondent’s calls for Ms. Kasten to take J.S. were loud, her tone of voice was not pled as a basis for Respondent’s termination. Upon their entry into the office, Ms. Kasten went over to Respondent and J.S. J.S. stopped resisting once he saw Ms. Kasten. There was no evidence that J.S. was physically harmed in any way, i.e., there were no bruises, scratches, or marks of any kind. Respondent indicated to Ms. Kasten that J.S. had come to class very angry and was physically fighting with his female cousin. Ms. Kasten’s contemporaneous statement of the incident indicated that J.S. was “very upset that he had a fight with his sister.”3/ There was no suggestion that J.S. was upset about his walk to the office with Respondent. Ms. Kasten took J.S. off to the side and talked with him. After J.S. calmed down, Ms. Kasten advised Respondent that she would handle the situation from there, and Respondent left the office. J.S. was ultimately kept in the in-school suspension room for an hour or two. Ms. Kasten reported the incident to Ms. Johnson, who was not in her office or out front and did not witness the event. Shortly thereafter, in a conversation regarding other matters, Ms. Johnson reported to Ms. Martin at the District office that Respondent “brought a student in yelling and dragging.” Ms. Johnson was instructed to immediately remove Respondent from student contact. Ms. Johnson called to Respondent’s classroom and left a message with Respondent that she needed to speak with her. The following day, a meeting was convened to discuss the incident. Present at the meeting were Ms. Johnson, Respondent, and Respondent’s union representative. The confidential secretary to the school principal, Mr. Deen, was also in attendance to take minutes of the meeting. During her February 5, 2015, interview regarding the incident, Respondent indicated that “I was keeping him safe. I was holding his hand at first and he was okay. Then he started pulling away from me and I wanted to make sure he didn't hurt himself.” Her statement is consistent with the video. During the meeting, Respondent remained adamant that she had called Ms. Kasten and received the instruction to bring J.S. to the office. In conjunction with the investigation of the incident by Petitioner, Ms. Johnson reported the incident to the Department of Children and Families. The School Board received nothing from the Department of Children and Families to suggest that it found wrongdoing on the part of Respondent. Ms. Johnson believed, based on the information conveyed to her, that there was no reason for Respondent to remove the disruptive student from the classroom and that such action did not follow the protocol for the school for the removal of an unruly student. The alleged breach of protocol involved in taking the child to the office was not pled as a basis for Respondent’s termination. On February 18, 2015, Respondent was advised of the opportunity for a pre-determination meeting to be held the following week. Respondent took advantage of the opportunity. The pre-determination meeting was held on February 25, 2015. In attendance were Respondent, Ms. Martin, labor counsel Tom Gonzales, Ms. Johnson, and Joann Hartage, who appeared to be representing Respondent. Ms. Martin’s secretary, Sherrie Kudla, was also in attendance to take minutes of the meeting. During the pre-determination meeting, Respondent gave her account of the incident and was questioned, primarily by Ms. Martin. In addition to questions regarding the walk to the office, Ms. Martin asked about interviews of Respondent’s students undertaken by Ms. Johnson, which Ms. Martin found to be “very concerning.” Among the issues raised by Ms. Martin was “their perception [] that you yell and get aggravated with students and that you’re mean to [J.S.].” Although Respondent stated that she had read the statements, she was not involved in the interviews, and had no opportunity to ascertain the accuracy of the statements. More to the point, whether Respondent yelled or was a mean teacher was not pled as a basis for Respondent’s termination. At the conclusion of the pre-determination meeting, Ms. Martin conferred with the school superintendent, and the decision was made to recommend to the School Board that Respondent be terminated from employment. By letter dated March 9, 2015, Respondent was advised that, as a result of her “pulling/dragging a student to the front office,” the District determined that she had violated rules 6A-10.080(2) and (3), rules 6A-10.81(3)(a) and (3)(e), and the School Board Policy/Staff Handbook; that she was suspended with pay; and that she had the right to appeal the recommendation of termination. On March 23, 2015, Respondent appealed the recommendation of termination. By letter dated March 24, 2015, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective April 22, 2015, and referral of her appeal to the Division of Administrative Hearings. At the April 21, 2015, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. Ultimate Findings of Fact Based upon the facts as set forth herein, Petitioner failed to prove, by a preponderance of the evidence, that Respondent engaged in an incident of “pulling/dragging a student to the front office.” The preponderance of the evidence supports a finding that Respondent walked J.S. to the office and, despite J.S.’s verbal protestations and brief efforts to resist, did so in a safe and effective manner. Any “pulling” was brief and on the part of J.S., not on the part of Respondent. There was no “dragging.” The preponderance of the evidence demonstrates that a teacher’s act of walking an unruly or disruptive student to the office is not, in and of itself, a violation of any applicable procedure or standard and has not been determined to be so in the past. The preponderance of the evidence demonstrates that there is nothing inherently inappropriate or improper with a teacher taking a student by the hand and walking with the student. Issues of whether Respondent received telephonic approval to take J.S. to the office, should have left Ms. Tyree to watch her class, spoke to Ms. Kasten in a loud voice, or was loud or mean with her students were not pled as bases for Respondent’s termination, and, thus, cannot form the basis for any disciplinary sanction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order: dismissing the March 9, 2015, notice of recommendation of termination; reinstating Respondent to a position equivalent to that previously held with the Hernando County School Board; and to the extent there is a statute, rule, employment contract, or collective bargaining agreement that authorizes back pay as a remedy for Respondent’s wrongful termination/suspension without pay, Respondent should be awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 25th day of August, 2015, in Tallahassee, Leon County, Florida. S GARY EARLY 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 25th day of August, 2015.
Findings Of Fact The Respondent holds Florida Teacher's Certificate No. 607875 with a validity period from July 1, 1986 through June 30, 1991. The Respondent was employed by the Pinellas County School Board at Largo High School from the beginning of the 1987- 88 school year through March 23, 1988. In September, 1987, the Respondent commented that Erin Hawkins, a female student at Largo High School, should wear shorter skirts and touched her on the leg. The Respondent admitted to making a comment about the length of Miss Hawkins' skirt and to pinching her on her leg. As a result of this incident, the Respondent was counselled at length by Judith Westfall, principal at Largo High School, and Patricia Palmateer, Assistant Principal at Largo High School, regarding the need to refrain from making inappropriate comments to students. Ms. Westfall and Ms. Palmateer cautioned the Respondent to keep discussions with students on a professional level; to maintain professionalism whenever the Respondent touched a student; and to refrain from being alone with a student in the classroom. Conference summaries and the Respondent's written statement concerning the incident were placed in Respondent's personnel file. Although no additional disciplinary action was taken at that time, the Respondent's pinching a student on her leg, even for the alleged purpose of having the student move away from Respondent's desk, was not an appropriate method of working with female or male students.1/ In February, 1988, as Tara Ward, a female student at Largo High School, was leaning over a table, the Respondent stated "nice view, Miss Ward." At a subsequent conference between the Respondent, Ms. Westfall, and Ms. Palmateer, the Respondent admitted mailing the comment for the alleged purpose of correcting Miss Ward's posture.2/ The Respondent's comment was inappropriate even accepting his asserted motive. As a result, Ms. Westfall and Ms. Palmateer again cautioned the Respondent about the need to maintain professionalism in comments made to students and about the need to avoid being in a classroom alone with a student. In March, 1988, Cindy Shinall was a senior at Largo High School In the program for Educable Mentally Handicapped (EMH) students. The EMH program is for students whose I.Q.'s range between 50 and 72. In Miss Shinall's case, her grade level in March, 1988, would have been somewhere between third and fifth grade abilities. Miss Shinall was motivated to improve, eager to assist teachers, well-mannered, and considerate of others. The school had no disciplinary problems with Miss Shinall. Miss Shinall was an honest person who would frequently speak up when she was aware that other students were breaking school rules. On March 9, 1988, Miss Shinall was a student assistant for Carolyn Underwood during sixth period. As a student assistant, Miss Shinall would run errands for Ms. Underwood, including going to the school office. During the course of running errands for Ms. Underwood, Miss Shinall was permitted to ask other teachers if they had errands for her to do. In fact, Ms. Underwood encouraged Miss Shinall to take the initiative in seeking work from other teachers. On March 9, 1988, Ms. Underwood sent Cindy Shinall on an errand in the vicinity of the school office. Miss Shinall encountered the Respondent in the hallway coming from the office outside the double doors leading into the "pod" where the Respondent's classroom was located. She followed the Respondent into the pod and asked him if there was anything she could do for him. The Respondent replied "yes" and escorted Miss Shinall into his classroom. The Respondent did not have class during sixth period, and so he and Miss Shinall were alone in the classroom. Respondent asked Miss Shinall to "give me a hug," and she did. Respondent then kissed Miss Shinall. In his own words, he then "lost control" and began to kiss her and "felt her up." He kissed her on her neck, touched her buttocks, put his hand under her shirt and her bra on her left breast, and sucked her left breast. In an effort to escape from the Respondent, Miss Shinall told him she had errands to complete for Ms. Underwood. At this point, the Respondent grabbed Cindy Shinall's hair behind her head and pulled her head back, asking her to promise to return. Miss Shinall went directly from the Respondent's classroom to a girl's restroom, where she was found, crying, by a Ada Bell, a fellow student. She told Miss Bell that the Respondent had touched her. At the time she spoke with Miss Bell, Miss Shinall was crying very hard, almost to the point that Miss Bell was unable to understand what she was saying. Miss Bell understood clearly, however, that the Respondent had done something to Miss Shinall that she did not want him to do. Immediately thereafter, while still in the girls' restroom, and while still visibly upset and crying, Miss Shinall related the incident to her friend Aimee Hall. Miss Hall then took Miss Shinall to their teacher, Carolyn Underwood. At that time, Miss Shinall was still upset and pulling her hair and twitching from side to side. She was upset to the point of being almost incoherent. She told Ms. Underwood that the Respondent had kissed her, touched her breasts, and pulled her hair back. She then recounted the events again to Ms. Underwood and to another teacher, Ms. Silva. Ms. Underwood immediately took Miss Shinall to the administrative offices and contacted Ms. Westfall and Ms. Palmateer. Ms. Palmateer was in the school cafeteria when notified by Ms. Underwood. She went directly to her office where she spoke with Miss Shinall. Miss Shinall told Ms. Palmateer that the Respondent had kissed her, felt her breast underneath her clothes, and touched her buttocks. Miss Shinall told Ms. Westfall that Respondent had kissed her, touched her breast underneath her bra, touched her buttocks, and pulled her hair, asking her to promise to come back. She related the incident to Ms. Westfall within one hour of the incident. At the time she related the events to Ms. Westfall, Miss Shinall was still visibly upset and embarrassed to talk about the incident. As a result of the incident of March 9, 1988, the Respondent tendered his resignation to the Pinellas County School Board, and the resignation was accepted. The Respondent later tried unsuccessfully to rescind the resignation. As a result of the incident of March 9, 1988, Cindy Shinall was the subject of rumor, gossip, and disparaging remarks among the students at Largo High School. She suffered embarrassment and disparagement. The Respondent's conduct on three separate occasions--to wit: in September, 1987, when he made an inappropriate comment about a female student's dress and pinched her leg; in February, 1988, when he made an inappropriate comment about a female student's posture; and in March, 1988, when he kissed and fondled a female student--seriously reduces the Respondent's effectiveness as an employee of the school district. The Respondent is unable to deal with his students in a professional manner, and the school district's ability to trust the Respondent with female students has been substantially diminished. Female students in the Respondent's classes and under his control would be "at risk." The Respondent's conduct on those three separate occasions also constitutes a failure to make reasonable efforts to protect students from conditions that were harmful to their learning, health, or safety. Indeed, the Respondent actively created situations which jeopardized the learning, health, and safety of his students. The Respondent's conduct on those three separate occasions also constitutes conduct which intentionally exposed the Respondent's students to unnecessary embarrassment or disparagement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's Florida teaching certificate be revoked. DONE and ENTERED this 16th day of June, 1989 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 16th day of June, 1989.
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against Respondent on the basis of alleged misconduct which is set forth in a three count Administrative Complaint. The misconduct alleged consists primarily of assertions that the Respondent used various forms of corporal punishment on her students and that she also engaged in verbal abuse of her students.
Findings Of Fact The Respondent currently holds Florida teaching certificate number 151121, covering the area of elementary education. The certificate is valid through June 30, 1995. During the 1990-1991 school year and during the 1991-1992 school year, the Respondent was employed as a teacher at Charles R. Drew Elementary School in the Dade County School District. In January of 1992, the Respondent threw a wooden ruler at A. S., who was a minor male student in her class. The ruler hit A. S. in the face and left a scratch on his face. This incident took place in class in the presence of other students in the class. During the 1991-1992 school year, the Respondent pinched A. S., a minor male student, on the ear in front of the other students in the class. During the 1991-1992 school year, the Respondent struck L. W., a minor female student, with a ruler on her hands and on her legs. The ruler left marks on L. W.'s hands. Student L. W. cried as a result of being struck with the ruler and she felt sad. During the 1991-1992 school year, the Respondent on several occasions used offensive and indecent language in the classroom, sometimes directing such language towards her students. The offensive and indecent language included such words as "fuck," "damn," "bitch," and "ass." During the 1991-1992 school year, the Respondent used tape to restrain M. S., a minor male student. Specifically, the Respondent taped student M. S.'s mouth closed, taped his arms to the arm rests of his chair, and taped his feet to the legs of his chair. During the 1991-1992 school year, the Respondent used tape on minor male student, P. B., to keep his mouth closed. Student P. B. was taped up in front of the class, which caused him to feel sad. During the 1991-1992 school year, the Respondent used tape on minor male student, A. S., to keep his mouth closed. During the 1991-1992 school year, the Respondent used tape on minor male student, T. L., to keep his mouth closed and to prevent him from talking. The Respondent also used tape to restrain T. L. Specifically, the Respondent taped T. L. to his chair. On several occasions during the 1991-1992 school year, the Respondent threw a wooden ruler, and other similar objects, at students in her class. During the 1991-1992 school year, the Respondent struck minor male student, M. S., with a wooden ruler. This incident was observed by the other students in the class and made M. S. feel sad and embarrassed. During the 1991-1992 school year, the Respondent struck minor male student, P. B., on the buttocks with a wooden ruler. During the 1991-1992 school year, the Respondent struck minor female student, D. H., on the buttocks with a counter in class. This incident embarrassed the student. During the 1991-1992 school year, the Respondent stuck minor male student, T. L., on his left arm with a counter in class. This incident embarrassed the student. During the 1991-1992 school year, the Respondent pinched the ear of minor male student, T. L. in class. On numerous occasions prior to the 1991-1992 school year, the Respondent, and all other teachers at Charles R. Drew Elementary School, had been made aware of the policies of the Dade County School District prohibiting corporal punishment. The Respondent had also been made aware of what was encompassed by the term "corporal punishment." In a memorandum dated February 12, 1991, concerning the use of corporal punishment, the Respondent was specifically instructed not to throw rulers at students.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case revoking the Respondent's teaching certificate for a period of three years and providing that any recertification of the Respondent shall be pursuant to Section 231.28(4)(b), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of September 1993. MICHAEL M. PARRISH 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 28th day of September 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6896 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3 and 4: Accepted in substance. Paragraph 5: Accepted. Paragraph 6: Accepted in substance, although the language used is more accurately described as indecent or offensive than as profanity. Paragraphs 7, 8, 9, 10, 11, 12 and 13: Accepted in substance, with some repetitious information omitted. Paragraph 14: Admitted Paragraph 15: Rejected because not charged in the Administrative Complaint. Paragraphs 16, 17, 18, 19, 20, 21, 22, 23 and 24: Accepted in substance. Paragraph 25: Rejected as irrelevant. Paragraphs 26, 27, 28, 29, 30 and 31: Rejected as subordinate and unnecessary details, many of which are also irrelevant. Findings submitted by Respondent: Paragraphs 1 and 2: Accepted in substance. Paragraphs 3, 4 and 5: These paragraphs are accurate summaries of a portion of the allegations and of a portion of the evidence, but there was other evidence which supports a finding that Audric Sands was struck on the chin by a ruler thrown at him by the Respondent. Paragraph 6: Rejected as contrary to the greater weight of the persuasive evidence. Paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20: These paragraphs are all essentially correct summaries of the testimony described in each paragraph. Although there are differences in the details reported by the several child-witnesses, such differences are not unusual when several young children describe an event. There was a great deal of consistency on several relevant matters. Paragraphs 21 and 22: These paragraphs are essentially accurate summaries of the testimony of the witness referred to. Although the witness Mr. Jim Smith testified he never heard or saw any misconduct by the Respondent, I still find the testimony of the child-witnesses to be persuasive. The child-witnesses were with the Respondent on many occasions when Mr. Smith was not present. Also, Mr. Smith worked as an aide to the Respondent only from some time in November or December until sometime in late January. Paragraphs 23, 24 and 25: These paragraphs are essentially accurate summaries of the Respondent's testimony. To the extent the testimony summarized here conflicts with the testimony of the child-witnesses, I have generally accepted as more persuasive the testimony of the child-witnesses. Paragraphs 26 and 27: I have resolved the conflicts in the evidence other than as suggested here. I have found most of the child-witnesses' testimony to be credible. COPIES FURNISHED: Gregory A. Chaires, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 South West Third Avenue, Suite One Miami, Florida 33129 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact At all times material hereto, Respondent has been a licensed teacher in the state of Florida, having been issued Florida Teacher's Certificate No. 415935 by the Department of Education. In October, 1985, Respondent was a guidance counselor at the Larkdale Elementary School in Broward County, Florida. On October 30, 1985, T B. was eleven years old and a fifth-grade student at Larkdale Elementary School. On that date, while returning from the bathroom to her classroom T. B. encountered Respondent in the hallway. Respondent asked T. B. to accompany him to his office for the ostensible purpose of performing some filing. Upon arriving at Respondent's office, Respondent requested that T. B. fill up a candy jar. While T. B. was bending over getting candy out of the bottom of the filing cabinet, Respondent placed his hands around her waist. Respondent then lifted up so that she was standing in front of Respondent. Respondent placed his hand under her dress, then placed his hands inside her dress and fondled her breast. T. B. began crying and asked Respondent's permission to return to her classroom. At the time, Respondent was T. B.'s guidance counselor, and she talked to him about "everything." In February, 1986, Respondent was still employed as a counselor at Larkdale Elementary School. In February, 1986, K. C. was twelve years old and a fifth-grade student at Larkdale. In February, 1986, K. C. and two other students were standing in a hallway outside a classroom when they were approached by Respondent. Respondent placed his arms around K. C. and began talking to her. He then placed his hand on K. C.'s left breast. K. C. slapped Respondent's hand and told Respondent she was going to inform her teacher of what had occurred. On March 7, 1986 the Broward County Sheriff's Office filed a Probable Cause Affidavit against Respondent. The Probable Cause Affidavit alleged that on October 30, 1985, Respondent had committed a lewd and lascivious assault on T. B., a child under the age of 16, contrary to section 800.04(1), Florida Statutes. The Probable Cause Affidavit alleged: The victim was doing secretarial work for the Defendant, and was sitting on the floor in the Defendant's office sorting papers. The Defendant came up behind the victim, and put both his arms around her sliding one of his hands inside her shirt, and began to fondle her breast, the victim had forcibly [sic] get away from the Defendant. Respondent was arrested and charged with lewd and lascivious assault upon T. B. Subsequent to the filing of the Probable Cause Affidavit, the State Attorney's Office for the Seventeenth Judicial Circuit filed a one-count criminal information against Respondent (Case No. 86-4538CF) which charged Respondent with committing a lewd and lascivious assault on a child (T. B.), in violation of section 800.04(1), Florida Statutes. The State Attorney's Office for the Seventeenth Judicial Circuit also filed a one-count criminal information against Respondent (Case No. 86-4539CF) which charged Respondent with simple battery on a child K. C., in violation of section 784.03, Florida Statutes. On June 5, 1986, Respondent entered a plea of guilty to the violation of section 800.04(1), Florida Statutes, a second degree felony, as alleged in the information filed by the State Attorney's Office in the matter of State of Florida v. James R. Feldman, Case No. 86-4538CF. Adjudication was withheld. On June 5, 1986, Respondent entered a plea of guilty to, and was adjudicated guilty of, a violation of section 784.03, Florida Statutes, a first degree misdemeanor, as alleged in the information filed by the State Attorney's Office in the matter of State of Florida v. James R. Feldman, Case No. 4539CF. Jacquelyn Box (f/k/a Jacquelyn Moore) was the Principal of Larkdale Elementary School during the 1985-86 school year. With regard to T. B., Ms. Box received a report from a teacher that Respondent had been touching the student inappropriately. She discussed the matter with the student and informed the student's mother. Ms. Box also reported the incident to the school system's Internal Affairs Department. With regard to K. C., Ms. Box became aware of the incident after the student's mother confronted Respondent. Upon being informed of the incident by her daughter, the student's mother came to the school to confront Respondent. During the confrontation, the student's mother struck Respondent. Upon being notified of the confrontation, Ms. Box contacted the Police Department and the school system's Internal Affairs Department. Both the staff and the students of Larkdale Elementary School were aware of the sexual improprieties committed by Respondent with regard to each of the female students. Certain students discussed the allegations with the Principal. Approximately 40-50% of the 4th and 5th grade students were aware of the allegations. The Principal was contacted by the parents of students in that school who were concerned about the incidents. Students and staff must have trust and confidence in a guidance counselor for the counselor to be effective. At times, a guidance counselor has to engage in one-on-one counseling with a student. One of the areas a guidance counselor works in with the students is human sexuality. A guidance counselor cannot be effective if the students do not trust him. The disclosure of the foregoing incidents had a negative impact upon Respondent's effectiveness as a teacher, substantially reducing that effectiveness. The students did not trust Respondent following the disclosure and would not trust Respondent if he returned to the school as a guidance counselor. Respondent's actions in fondling the two female students and the subsequent disclosure of Respondent's actions rendered Respondent totally ineffective as a guidance counselor. Respondent's actions in conjunction with the disclosure destroyed the bond of trust necessary for a guidance counselor to be effective.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Respondent's teaching certificate. DONE and RECOMMENDED this 12th day of April, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 12th day of April, 1988. APPENDIX TO RECOMMENDED ORDER D0AH Case No. 87-3908 Petitioner's proposed finding of fact numbered 20 has been rejected as not being supported by the evidence in this cause. The remainder of Petitioner's proposed findings of fact have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact are in the form of a letter with unnumbered paragraphs. For purposes of specific rulings herein, each paragraph has been numbered consecutively. Only Respondent's paragraph numbered 7 has been adopted in substance in this Recommended Order. Respondent's paragraphs numbered 1, 47 6, 8-13, and 15-17 have been rejected as not constituting findings of fact bud rather as consisting primarily of argument. Respondent's paragraphs numbered 2, 3, 5 and 14 have been rejected as being contrary to the credible evidence in this cause. COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Chris H. Bentley, Esquire 2544 Blairstone Pines Drive Tallahassee, Florida 32301 James R. Feldmann 6210 Northwest 26th Court Sunrise, Florida 33313 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399
The Issue The issue to be determined is whether Respondent violated the provisions of Section 1012.795(1)(c), (f) and (i), Florida Statutes (2007)1/, and Florida Administrative Code Rule 6B- 1.006(3)(a) and (e), and if so, what penalty should be imposed?
Findings Of Fact At all times relevant to this proceeding, Respondent held a Florida Educator's Certificate, numbered 1003139, covering the area of athletics coaching. The certificate was valid through June 30, 2008. Petitioner is the state agency charged with the certification and regulation of teachers, pursuant to Chapter 1012, Florida Statutes. At all times relevant to these proceedings, Respondent was employed as an in-school suspension teacher and a track coach at Hernando High School in the Hernando County School District. The allegations in this proceeding involve events that occurred during the 2007-2008 school year, and deal with three separate incidents: Respondent's conduct in connection to the prom; his actions toward M.G.; and his actions toward A.H. The Prom The prom for Hernando High School was held on or about April 5, 2008, at the Glen Lakes Country Club in Hernando County. Joy Nagy was a coordinator for the prom, and Vicelia Azzarelli was the administrator on duty. Teachers who desired to chaperone the prom signed up in advance. They were given specific responsibilities, including a schedule for monitoring students' behavior. Volunteers' duties did not include dancing with the students. Those teachers who were not volunteering but wanted to stop by and see the students dressed up in their prom attire were also expected to get prior authorization. According to Joy Nagy, Respondent neither signed up to volunteer nor sought permission to attend the prom. Respondent came to the prom with Mr. Mobley, a long-time substitute teacher. Both men were present for a short time, approximately twenty minutes. During their appearance at the prom, they were seen on the dance floor dancing with the students. Assistant Principal Azzarelli observed Respondent while he was at the prom, and he appeared to her to be under the influence of alcohol. He had the smell of alcohol on his person and on his breath, his eyes were dilated and his gait was unsteady. She and another administrator requested that Respondent and Mr. Mobley leave the dance, and they did so. After the prom, a group of students chose to continue celebrating, and rented rooms at a hotel in Clearwater Beach. Respondent and Mr. Mobley went to the hotel where the students were staying, and socialized with the students. The students were drinking alcohol at the hotel, and the presence of alcoholic beverages was evident. The next week, some students came forward asserting that Respondent and Mr. Mobley were partying with students in Clearwater Beach following the prom. During a subsequent investigation into the partying, Respondent admitted to Ms. Azzarelli that he went to Clearwater Beach after the prom, and had a couple of drinks at a club there. He also admitted that he went to the hotel room of some of the students. As a result of the investigation into the events surrounding the prom, school officials also received information regarding possible conduct by Respondent with respect to two female students at Hernando High School. M.G. M.G. is currently a student at Valencia Community College. At the time of the events in this case, she was a senior at Hernando High School, and was, along with a few other students, a manager for the track team. At some point during the 2007-2008 school year, M.G. was sent to the in-room suspension room for a dress code violation, because she was wearing a skirt that was too short. She was the last student to leave the room. As she was leaving the classroom, Respondent came up behind her and reached around, putting his hand underneath her skirt, over her underpants. M.G. immediately left the room. She did not report the incident to anyone initially, because there were no witnesses to the conduct and she did not think anyone would believe her. She thought that by staying out of in-school suspension and working with the other track managers, she would not be in a position where the situation could be repeated. However, there was a subsequent occasion where M.G. was taking inventory of the uniforms for the track team. She was again alone with Respondent, and he again came up behind her and touched her in the crotch area, over her clothes. On this occasion, M.G. was wearing capris pants. She left the room and, as before, did not tell anyone because she did not want to be in a position where she reported the behavior and no one believed her. She only came forward after hearing about another incident involving Respondent's alleged conduct with a female student.3/ A.H. A.H. was also a student at Hernando High School at the time of the events in question. She graduated in 2009, and is now a student at Pasco-Hernando Community College. There was an occasion during the 2007-2008 school year when A.H. was alone with Respondent in the portable where he taught. Respondent kissed her, and she tried to walk out. He grabbed her arm, pulled her back to him and kissed her again. Respondent also sent A.H. inappropriate text messages. For example, he would text her that he did not want to have sex with her because he knew she was a virgin, but that "I'll go down on you and show you a good time." Like M.G., A.H. did not want to tell anyone about the incident with Respondent because she did not want anyone to know about it. When questioned initially by school officials, she denied it for the same reason. Both girls were interviewed by Detective Morrell of the Hernando County Sheriff's Office during her investigation stemming from the conduct related to prom. The information given during the investigation by Detective Morrell and the information provided during the hearing was consistent. Unfortunately for both girls, after the conduct was investigated, there was significant publicity regarding the incidents. Information was published in both the print and electronic media. Consistent with her fears, M.G. was subjected to ridicule and the publicity related to the investigation made it difficult for her to finish her senior year. Neither girl wanted to press charges as a result of Respondent's conduct, because they did not want to have to deal with the publicity associated with criminal charges. Neither girl wanted to testify in this proceeding. However, both girls were candid and credible, despite their obvious reluctance to appear. On or about May 5, 2008, Respondent resigned in lieu of termination from his position with the school district.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding that Respondent violated Section 1012.795(1)(c), (f), and (i), Florida Statutes (2007), and Florida Administrative Code Rules 6B-1.006(3)(a) and (e), and permanently revoking his teaching certificate. DONE AND ENTERED this 10th day of February, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2010.
Findings Of Fact The Respondent, Michael Fort, at times pertinent to the charges in the Administrative Complaints, held teacher's certificate number 514033, issued by the State of Florida Department of Education (Department). That certificate authorized practice as a teacher in the area of music education. The Respondent was employed as a teacher at Lake Weir Middle School in the Marion County School District. The Respondent was under an annual contract with that school system from November 23, 1983, through the 1984-85 school year. The Respondent's last annual contract expired on June 7, 1985. The Respondent's teacher's certificate expired on June 30, 1985. Some time prior to the expiration of his teacher's certificate, the Respondent applied to the Department for its renewal. That application still pends before the Department. In October 1983, the Respondent had a minor student spend the night at his apartment. The minor student had previously been a close friend of the Respondent and had socialized with him in the past, including spending the night at his residence on other occasions. The Respondent had entered into a close, friendly relationship with the minor, Darien Houston, by frequently letting him stay at his residence during periods of time when Darien Houston's parents were fighting or otherwise engaging in domestic discord, which apparently was very disturbing to the student. Darien Houston, although a student in the Marion County School System, was not a student of the Respondent. Indeed, the Respondent was not yet employed by that school district. In any event, during the course of the evening in question, while they were sitting near each other watching television, the Respondent placed his hand on the student's leg and the student requested that he remove his hand. The student at the time thought Fort was joking or had no serious intent by this action. Fort then went to bed and the student went to bed, sleeping on the floor in his jeans in a sleeping bag. Some time later that night, the student was awakened and realized that the Respondent had undressed himself and undressed the student and had proceeded to place his hand on and fondle the student's penis. He thereafter attempted to roll Houston over onto his stomach in spite of Houston's objections. In response to the student's objections, the Respondent made a statement to the effect, "Do you want to do it with me?" The student continued to object and to retreat from the Respondent's advances. He retreated to the bathroom where he locked himself in and remained for the remainder of the night. The student was embarrassed because of the incident and elected not to report it to school officials or others for approximately a year and a half. However, Houston did tell his best friend what had happened, who in turn informed Houston's mother of the incident. Eventually, Houston's brother informed another individual of the occurrence, who then informed Mr. Springer, the principal at Lake Weir Middle School, of the incident. Darien Houston, a student there, was then called before Mr. Springer, who investigated the matter. Houston related the information about the subject occurrence to him, in approximately May 1985. Thereafter, the criminal proceeding against the Respondent related to this incident and the instant administrative Prosecutions ensued. The matter became public knowledge among students at Lake Weir Middle School, who teased Houston about the incident, causing him great embarrassment and humiliation. The occurrence was widely reported in local newspapers. Sometime in May 1985, while a teacher at Lake Weir Middle School, during the course of a puppet show being Presented in a sixth grade classroom, Respondent stuck his hand down the back of a minor male student's pants between his underwear and his trousers. This action by the Respondent shocked and embarrassed the student, although it was not established that any bystanders, of which there were a number present, observed the incident. The student, Patrick Hammer, was embarrassed to tell anyone of the occurrence, but ultimately informed his teacher of the incident by writing a note to the teacher concerning it. Other students at the school ultimately became aware of this and teased Patrick Hammer about it, causing him embarrassment and humiliation. In approximately May 1985, the Respondent attended a party at a local hospital. The Respondent was in the company of three minor male students who were then enrolled at Lake Weir Middle School. The students, Steve Hall, Richard Slaughter and Eddie Ericson, or some of them, were drinking beer from a keg or draft dispenser at the party. Steve Hall's mother, who was employed at the hospital, was present at the party and was aware that her son was drinking beer. All three of the boys later left the party and went with Mr. Fort to his apartment. While en route, the Respondent stopped at an ABC Liquor Store and purchased approximately two six-packs of beer. After purchasing the beer, the Respondent took the three students to his apartment where the students swam in the swimming pool and, in his presence and with his knowledge, drank the beer that the Respondent had purchased. It was not established that the Respondent bought the beer with the specific intent of giving it to the students but, by his own admission, he offered no objection to the students' consumption of the beer in his presence at his residence. On May 12, 1986, the Respondent pled nolo contendere to one count of attempted sexual battery and one count of lewd and lascivious behavior. He was sentenced to ten years probation, fined $200, ordered to undergo mental health counseling, to complete 100 hours of community service and to refrain from any custodial or supervisory contact with any person under the age of 16 years. Respondent's arrest, the circumstances surrounding the charges and his plea regarding the above incidents received widespread publicity in the local media and was known to students, faculty and other School Board personnel and the public at large. On or about April 10, 1985, the Respondent received a letter from Nick Marcos, Assistant Superintendent of Administrative Services with the School Board of Marion County, informing him that he would be reappointed to a position as an annual contract teacher with the Marion County School System as soon as he had been issued a regular or temporary teaching certificate for the 1985-86 school year. On or about May 16, 1985, the Respondent submitted a reapplication for a temporary certificate to the Florida Department of Education. On or about August 9, 1955, Respondent received a letter from R. S. Archibald, District School Superintendent, advising him that he had been suspended as an instructional employee of the Marion County School System, pending a meeting of the School Board. Thereafter, on or about August 19, 1985, the Respondent received a letter from Jim Ergle, as Chairman of the School Board, advising him of the Board's decision to suspend him without pay based upon the above-described arrest and charges. In the April 10, 1985 letter, the Assistant Superintendent had informed him that he had been recommended for reappointment for the 1985-86 school year, but reminded him that he would have to renew his teaching certificate to be eligible for reappointment. Upon his application for renewal of his teaching certificate, the application demonstrated that all requirements for renewal had been met. His teaching certificate expired on June 30, 1985. The renewal application was never acted upon by the Department, although it informed Mr. Fort, sometime prior to August 1985, that his application was in order and the certificate would be forthcoming. His suspension without pay was predicated upon the charges pending before the Circuit Court for Marion County concerning the alleged sexual battery and lewd and lascivious conduct, and the letter informing Mr. Fort of it did not indicate that it was at all based on his failure to renew his teaching certificate. The School Board employed the formal suspension process against the Respondent, although his express annual contract had already expired, in an abundance of caution because a grace period is normally allowed teachers to re- apply for renewal of their certificates after expiration and because the Board allows a grace period for reappointment of a contract teacher after the expiration of a teaching certificate, provided the teacher provides evidence that the certificate has been properly renewed. The Respondent was paid for all services rendered by him to the Marion County School Board through the last day of the 1984-85 school year, which was also the last day of his employment pursuant to his last express annual contract. He has never taught in the district since that time.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the EPC permanently revoking the certificate of the Respondent, Michael Fort, and that he be finally dismissed by the Marion County School District and forfeit any back pay. DONE and ORDERED this 14th day of July 1987, in Tallahassee, Florida. COPIES FURNISHED: William E. Williams, Esquire Rex D. Ware, Esquire 111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 215 Knott Building Tallahassee, Florida 32399 P. MICHAEL RUFF 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 14th day of July 1987.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes, against teachers holding Florida educator's certificates. Respondent, who has no prior disciplinary history, holds Florida Educator's Certificate 709850, covering the area of mathematics, which is valid through June 30, 2014. The Events The incident that gives rise to this proceeding occurred during the morning of April 8, 2011, at Dillard High School ("Dillard"), where Respondent has taught mathematics since 2004. At that time, Respondent was lecturing to his Algebra I honors class, which comprised approximately 15 students. During the lecture, one of the male students, 15-year- old D.P., took out his cell phone and viewed it, contrary to one of Respondent's classroom rules. Respondent immediately directed D.P. to put the phone away, and the student complied; a few moments later, however, D.P. again took out his phone, which resulted in the same reaction from Respondent. For reasons known only to D.P., he took out his phone a third time——conduct that prompted Respondent to confiscate the item. Later, during the same class period, D.P. inquired of Respondent as to when his phone would be returned. Respondent replied that the phone could be retrieved at the end of the day from Mr. Levinsky, one of Dillard's assistant principals. None too happy with this turn of events, D.P. stewed for several minutes, at which point he got up from his table and approached the front of the room, where Respondent was seated behind his desk. Suspecting that D.P. might attempt to recover the phone (which lay on Respondent's desk), Respondent picked it up. At that point, and in an audacious move, D.P. grabbed Respondent's cell phone off the desk and stated, in an angry tone, that he would return Respondent's phone when Respondent relinquished possession of his (D.P.'s). Understandably disinclined to negotiate, Respondent calmly directed D.P. to return his property. D.P. refused. Respondent again asked, to no avail, that D.P. place the phone on the desk. After a third request, which, like the others, went entirely unheeded, Respondent stood up, walked around his desk, positioned himself near D.P., and instructed D.P.——for the fourth time——to put down the phone. D.P. complied, only to pick up the phone once again just seconds later. (While doing so, D.P. remarked that he was not going to return Respondent's "mother-fucking phone.") It is at this point that the witness' accounts diverge: D.P. and student S.H. contend that Respondent reached out with one hand and, in an unprovoked act of violence, grabbed D.P. by the throat and pushed him backwards, which resulted in D.P. falling over several desks that had been placed together; students A.A., R.B., and A.P. claim that Respondent, without provocation, slammed D.P. onto the desks after taking hold of the student's throat; finally, Respondent asserts——as corroborated by student T.F.——that D.P. moved toward him in a threatening manner and that he (Respondent) simply defended himself5/ by extending his arm, which made contact with D.P.'s upper chest or neck area. Respondent and T.F. further testified that, as a result of the defensive contact, D.P. moved backward and either tripped or fell over the desks. Before the undersigned resolves the question of how D.P. wound up on the floor, a brief rehearsal of the relevant subsequent events is in order. Moments after the physical encounter, Respondent informed D.P., who was uninjured, that he intended to escort him to one of Dillard's administrators. Enraged, D.P. removed his shirt and followed Respondent into the hallway; as D.P. did so, he directed several vulgar threats toward Respondent, such as, "I'm going to fuck you up" and "I'm going to kill you." Moments later, Respondent encountered one of Dillard's security guards, Noel Buhagiar, from whom Respondent requested assistance. Mr. Buhagiar proceeded to restrain D.P., at which point Respondent made his way to school administration. Once in the front office, Respondent provided a brief description to Mr. Levinsky (as noted previously, an assistant principal) concerning his incident with D.P. Mr. Levinsky instructed Respondent to return to class and issue D.P. a referral. While en route to his classroom, Respondent walked by D.P., who, still restrained, repeated his earlier crude threats. From what can be gleaned from the record, D.P.'s behavior ultimately earned him a five-day suspension from school. Shortly after the incident, Respondent was questioned by Edward Jackson, a school resource officer assigned to Dillard. During the interview, Respondent explained that D.P. had approached him in a "fighter's stance" and that, as a result of this aggressive behavior, he feared for his safety and used an open hand (which made contact with D.P.'s neck) to ward D.P. away. Subsequently, Officer Jackson conducted an interview of D.P. in the presence of Mr. Levinsky and the student's father, during which D.P. provided a description of the incident that largely coincided with Respondent's version of events. These statements were credibly recounted during the final hearing by Officer Jackson, who testified: The child told me, in front of his father, and A.P. [Levinsky], that there was a conversation about a cell phone. He went to get his cell phone back, in an aggressive manner, and that's when [Respondent], fearing for his safety, extended his arms out, and I guess in such force, that he caused the student to fall over some chairs. I then asked, well, Mr. [Levinsky] asked the student, did at any time, did [Respondent] use his hand to choke, choke you. And D.P. answered, to the question, indicating that [Respondent] did not use his hands to choke him. And that was said in front of his father, and in front of Mr. Levinsky, so, there was no choke at all. Final Hearing Transcript, p. 173 (emphasis added). Upon the conclusion of his investigation, Officer Jackson charged D.P. with misdemeanor assault,6/ at which time the matter was forwarded to the State Attorney's Office.7/ Ultimate Findings It is determined, as a matter of ultimate fact, that Petitioner has failed to adduce clear and convincing evidence of the Amended Administrative Complaint's principal allegation—— namely, that Respondent grabbed D.P. in a "choking manner and pushed him onto [a] desk." In so finding, the undersigned rejects the testimony of Petitioner's witnesses on this issue, which, for several reasons, is less persuasive than that of Respondent and T.F. First, had Respondent committed the act alleged, it is reasonable to expect that D.P. would have suffered some form of harm, particularly since Respondent, a football coach, outweighed D.P. by at least 608/ pounds. Yet, and as D.P. conceded during the final hearing, he sustained no marks, bruises, or injuries of any kind.9/ In addition, D.P.'s present description of the event is highly dubious in light of Officer Jackson's credible testimony, which establishes D.P.'s admission during the police interview that he (D.P.) had moved toward Respondent aggressively and that Respondent had merely extended his arm for protection. Finally, D.P.'s wholly outrageous conduct, both before and after the incident——taking Respondent's property and refusing to return it, removing his shirt, and threatening to "kill" Respondent——is far more suggestive of his culpability as the aggressor. Owing to the undersigned's crediting of Respondent's final-hearing testimony, it necessarily follows that Respondent's report of the incident to law enforcement, in which he claimed self-defense, was in no manner false or dishonest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission dismissing the Amended Administrative Complaint. DONE AND ENTERED this 30th day of May, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 30th day of May, 2013.
The Issue Should Petitioner suspend Respondent without pay for three (3) days for inappropriately physically restraining a student in mid-December, 1996, while Respondent was employed at Tate High School?
Findings Of Fact At all times relevant to the inquiry, Respondent was an instructional employee of the Escambia County School Board. In this capacity he served as a physical education teacher. He also coached football and track. Respondent has been in the teaching profession for more than 21 years. The majority of that service has been in the states of Alabama and Georgia. Respondent has been employed in the Escambia County School District for approximately two years. On March 14, 1996, Respondent received a reprimand from Jim May, Principal of Tate High School. Tate High School is in Gonzalez, Florida, and is part of the Escambia County School District. The letter of reprimand stated: I am writing this letter of reprimand in regards to an incident that occurred at Tate High School on March 12, 1996. It is my findings [sic] that you put your hands on a student and physically forced him in a chair by grabbing him by the elbow. You should never put hands on a student unless to prevent bodily harm to himself or to others. These actions were inappropriate and must not reoccur. Any further actions of this sort on your part will result in serious disciplinary action to you, including possible suspension or termination. In the fall term 1996 Mr. May met with coaches, to include Respondent, and reminded the coaches not to put their hands on students for any reason in relation to involvement between the coaches and student athletes. This meeting was occasioned by an incident between another coach and a student. The policy which prohibits a teacher from putting his or her hands on a student except to prevent harm to the teacher or to others, is a policy that has application throughout the Escambia County School District. When Respondent was reprimanded on March 14, 1996, Carolyn Spooner, the present Principal at Tate High School, told the Respondent, that he should have allowed the student whom he forced into a chair to walk out of the classroom, as opposed to forcing the student into the desk chair. It was the student's intention to leave the classroom before Respondent forced the student into the chair. If the student had been allowed to leave, Respondent was advised by Ms. Spooner, that the Respondent could have sent a referral to the Dean or sent for a Dean to offer assistance. The referral practice, as contrasted with physical restraint, is the policy for the Escambia County School District. While the Student Handbook describing rights and responsibilities for students in the School District of Escambia County in the 1996-97 School Year contemplates possible corporal punishment, the school district does not impose corporal punishment for high school students. In any event the imposition of corporal punishment is not conducted ad hoc through the instructional staff. It may only be conducted through means established by guidelines for administering such punishment, which establish the nature of the punishment to be administered, under what conditions, and by whom. Notwithstanding the admonitions to Respondent to refrain from placing his hands on students other than in the limited circumstances described, Respondent violated those instructions and acted contrary to the school district policy. This incident occurred on December 10, 1996, at Tate High School while Respondent was teaching a physical education class. On that date a student was less than cooperative in his participation in the physical education class. Basically, the student was unwilling to participate. There was some question about the student's ability to participate. This circumstance followed a history of the student not participating and having provided written excuses from his mother relieving him of the responsibility to participate in the physical education class. Nonetheless, on this date, Respondent felt that the student should walk, while other students played softball. At some point during this episode the student sat on some bleachers at the athletic field and refused to walk as he had been instructed to do by the Respondent. Respondent took the student by the elbow and "helped" the student down from the bleachers. They then commenced to walk around the practice field with Respondent holding the student by the arm. The student pulled away from the Respondent and stated words to the effect that he was not going to do anything on the field that he did not want to do. Respondent sent the student to the "office" to be punished, but the Respondent did not write a referral as required by school district policy. As a result of the Respondent placing his hands on the student's arm, the student received bruises on the underside of his left arm that left dark spots. That injury was reported by the student's mother. The marks that were left on the underside of the student's arm were still visible the following day. The incident was investigated by Ms. Spooner and Roy Ikner, Assistant Principal at Tate High School. On December 13, 1996 Ms. Spooner, as Principal for Tate High School, gave notice to Respondent that disciplinary action was being considered for "grabbing the student by the arm." Ms. Spooner met with the Respondent on December 16, 1996. In that meeting Respondent did not, and does not now, deny putting his hands on the student. Eventually Jim May, who had been elected superintendent of schools, gave notice to Respondent on January 22, 1997, that the superintendent was recommending the imposition of a three-day suspension without pay for the incident with the student that took place on December 10, 1996. The nature of the alleged misconduct was inappropriate physical restraint of the student. The facts reveal that Respondent inappropriately physically restrained the student on December 10, 1996, in violation of earlier instructions from his supervisor to refrain from that conduct. Other than the letter of reprimand and the incident at issue in this case, no other proof has been offered concerning prior discipline of the Respondent. The Respondent in his defense presented assessment system evaluations for the school years 1995-96 and 1996-97, in which he has been found to be a satisfactory teacher overall and has exceeded expected performance in parts of the performance evaluations.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered which finds Respondent guilty of misconduct by the inappropriate physical contact with a student on December 10, 1996, and suspends Respondent without pay for three days. DONE AND ENTERED this 1st day of July, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1997. COPIES FURNISHED: John L. Hammons, Esquire Hammons and Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 John Benavidez 10141 Vixen Place Pensacola, Florida 32514 Jim May, Superintendent School District of Escambia County 215 West Garden Street Post Office Box 1470 Pensacola, Florida 32597-1470
The Issue The issues for determination in this proceeding are whether Respondent should be terminated from his employment with the Broward County School Board and whether Respondent's teaching certificate should be revoked, suspended, or otherwise disciplined.
Findings Of Fact Background Respondent holds Florida Teaching Certificate 595579 in science and elementary education. Respondent's teaching certificate is valid through June 30, 1992. Respondent has filed an application for renewal. Respondent has held a professional service contract with the Broward County School Board (the "School Board") since September 11, 1987. Respondent began teaching in the Broward County school system in 1987. He taught at Seminole Elementary School. His mid-year evaluation indicated he needed some improvement in the preparation of lesson plans. His final evaluation indicated that Respondent had improved his lesson plans and had good control of his class. For the 1988-1989 school year, Respondent was employed as a fourth grade teacher at Banyan Elementary School. His mid-year evaluation indicated a need for improvement in lesson plans. His final evaluation, however, was satisfactory. Respondent continued teaching at Banyan Elementary School until December, 1989. From December, 1989, until he was suspended on January 16, 1992, Respondent taught at Rogers Middle School. Respondent's initial evaluation at Rogers Middle School indicated the need for some improvement, but his final evaluation for the 1989-1990 school year was satisfactory. At the end of the 1989-1990 school year, Mr. Sterling Dupont replaced Mr. Greg Clark as the principal of Rogers Middle School. Ms. Ellen Etling and Mr. Mike Newman, two of the three assistant principals, were also new members of the administration at Rogers Middle School. Mr. Dupont assigned Respondent to a self-contained drop out prevention class during the Summer of 1990. A class is self-contained when its students remain with the same teacher for the entire day. The drop out prevention class required a teacher certified in elementary education so that the students' academic needs could be individualized. Mr. Dupont wanted a male teacher in the class because of the students' inability to perform in a school setting and behavioral problems. Respondent is approximately 5 feet 7 inches tall and weighs approximately 112 pounds. Mr. Dupont did not consider other factors in applicable School Board guidelines for assignment of teachers to a disciplinary drop out prevention class. Mr. Dupont did not consider Respondent's: desire and ability to work with problem students; expertise in behavior management techniques; desire and ability to identify and solve underlying causes of student behavior rather than merely modify behavior; ability and expertise in diagnosing difficulties opposed to motivational achievement; ability to utilize school and community resources to benefit students; and ability to utilize a variety of instructional approaches to meet individual needs and learning styles of students. Mr. Dupont did not ask Respondent if he wanted to teach the drop out prevention class and did not otherwise confer with Respondent prior to making the assignment. Respondent was informed of his assignment in August, 1990, in accordance with customary practice for all class assignments. Criteria for placement in the drop out prevention class included excessive absences, being held back a grade or being older than other students, failing to perform at the appropriate grade level, and behavior difficulties. While a majority of the students were not placed in the class due to disruptive behavior, most of the students demonstrated disruptive behavior. The class was officially categorized as a drop out prevention class but was also a very disruptive class. Many students in the class came from single parent homes, disadvantaged socio-economic environments, and exhibited low self-esteem. One of the objectives of the class was to raise the students' self-esteem and grade level performance. The class was also intended to ensure that the students made a successful transition to the middle school setting. The Broward County school system has eliminated corporal punishment as a form of discipline. Teachers are not to become physically involved with students in order to discipline or control them. The use of force is appropriate only to prevent harm or injury to a teacher or student. Teachers may not use physical means to control students, punish their behavior, or maintain order in the classroom. Respondent violated the policy against corporal punishment. During the 1990-1991 school year and the 1991-1992 school year, Respondent engaged in inappropriate physical contact with students as a means of discipline or control. Respondent used excessive force to control students, yelled at students, faculty, and administrative staff, violated rules of the State Board of Education, and engaged in misconduct. Respondent's misconduct was so serious that it impaired his effectiveness in the school system. See paragraphs 21-44, infra. In most instances, the students involved in the events at issue in this proceeding were engaged in inappropriate behavior which warranted correction, discipline, and punishment. In addition, the relationship between Respondent and the administrative staff at Rogers Middle School was strained by Respondent's dissatisfaction with administrative support and his lack of success in obtaining a transfer. However, the underlying problems between Respondent and the administration and the disruptive behavior of Respondent's students did not justify Respondent's misconduct and violation of applicable rules. The School Board complied with the requirements in Florida Administrative Code Rule 6B-4.008 for fair dismissal procedures. Respondent received an unsatisfactory evaluation for the 1990-1991 school year. On January 9, 1991, Ms. Etling issued an evaluation that Respondent needed improvement in behavior management, lesson design, and oral speech. Ms. Etling advised Respondent verbally and in writing that he would be given the opportunity to improve his performance by observing other teachers and attending workshops. On April 22, 1991, Mr. Dupont issued an evaluation that Respondent needed to improve in behavior management, classroom atmosphere, and lesson design. Mr. Dupont advised Respondent to observe other drop out prevention teachers, attend workshops, and review articles and tapes on positive attitudes. The administration arranged for Respondent to visit drop out prevention classes at other middle schools and offered Respondent the opportunity to attend workshops. Respondent attended some drop out prevention classes at other middle schools. Mr. Dupont made every reasonable effort to assist Respondent in obtaining a transfer to another school, but Respondent was unable to obtain a transfer. The School Board investigated a complaint regarding Respondent's conduct at school. On March 13, 1991, the Professional Standards Committee found probable cause to support the complaint. The Committee recommended that Respondent receive a letter of reprimand, be referred to Professional Practices Services, and be suspended for a period of time. In lieu of suspension, the School Board and Respondent entered into a Memorandum of Understanding. Pursuant to the agreement of the parties, Respondent received a letter of reprimand on May 3, 1991, sanctioning him for verbal abuse and battery against his students. The letter of reprimand was issued by Mr. Ronald Wright, Director of Professional Standards for the School Board. Respondent was referred to Professional Practices Services, required to attend in-service programs, required to implement those programs in his classroom, and required to participate in an employee assistance program. Respondent was assigned to teach seventh grade science for the 1991- 1992 school year. Many of the students in his seventh grade class also demonstrated behavior problems. Some of the students had been in the drop out prevention class during the previous school year. Respondent was placed on administrative leave effective January 17, 1992. He was suspended with pay on March 11, 1992, and suspended without pay on April 7, 1992. Reduced Effectiveness And Rule Violations In December, 1990, Respondent used excessive force to restrain a female student who was involved in a fight with a smaller male student. Quanika Murray was beating Ladarian Griffin with her fist. After Quanika failed to respond to Respondent's verbal commands, Respondent put both of his arms around Quanika in a "bear hug." Quanika hit Respondent in the ribs with her elbow. Respondent threw Quanika to the ground and pinned her there by holding both of her arms behind her back. When an administrator came to the scene in approximately 60 seconds, Respondent released Quanika Murray. She lunged at Ladarian Griffin again, and Respondent threw Quanika against the wall and pinned her there until the administrator took her away. On December 12, 1990, Respondent used excessive physical force to break up a verbal confrontation between two students and precipitated a physical confrontation between one of the students and Respondent. William Boyd and Tanika Boyd were arguing in the hall. Respondent told the students to go to class. William left but Tanika became verbally abusive and confrontational toward Respondent. Respondent pushed Tanika toward her class. Tanika hit Respondent. When another teacher approached, Respondent and Tanika backed away from each other. Tanika backed into the teacher and fell to the ground. The teacher pinned Tanika to the ground by holding both of her arms behind her. Respondent approached the two and inadvertently kicked sand in Tanika's face. On February 25, 1991, Respondent used unnecessary and excessive physical force to control and discipline a student. School policy prohibited students from being in designated areas without a pass. The policy was intended to give teachers time to prepare for class before school started each morning. Respondent was monitoring a gate to one of the designated areas. Quincy Wilkins attempted to enter the designated area without a pass. When Respondent told Quincy not to proceed without a pass, Quincy became loud, verbally abusive, and pushed Respondent. Respondent grabbed Quincy's arm, put it behind the student's back, and pushed Quincy against the wall. The hold was painful, and Quincy broke free. Respondent took the student to the front office, and charged Quincy with attempting to fight Respondent. On March 20, 1991, Respondent was verbally abusive toward a student, used unnecessary physical force to control and discipline the student, and engaged in unprofessional conduct during an IOWA testing procedure in the school cafeteria. Respondent was acting as one of the monitors for the test. He reprimanded a student for failing to follow instructions by yelling at the student, throwing the student's books on the floor, grabbing the student by the arm, and seating the student at a table closer to the front of the room. The incident created a major disturbance and caused some of the students to miss directions for taking the test. On April 15, 1991, Respondent used excessive physical force to control a student who was not threatening another teacher. Alex Hernandez had been involved in an altercation with another student. Another teacher broke up the fight and reprimanded Alex. Alex was a good student, and the teacher felt that a verbal warning was sufficient under the circumstances. While the teacher was speaking with Alex, Respondent approached Alex from behind, grabbed him by the arms, and threw him against the lockers. Respondent led Alex to the front office with both arms behind the student's back. Respondent charged Alex with trying to hit another teacher. The teacher informed the front office at a later time that Alex had not threatened him or tried to hit him. Respondent yelled at students over minuscule matters. On September 6, 1991, Respondent yelled at a student for chewing gum. Respondent's conduct prompted a complaint by the student's parents and required a conference with the parents to resolve a matter that would have been trivial in the absence of Respondent's conduct. On September 13, 1991, Respondent yelled at students over minuscule matters and called them stupid, arrogant, and rude. An administrator was required to intervene in Respondent's class. On September 16, 1991, Respondent denied a female student's request to use the bathroom. About 15 minutes after class started, a student with menstrual problems requested permission to use the bathroom. The student returned to her seat and approximately five minutes later began leaking blood onto her clothing. The student left the room and sought the assistance of an administrator. On September 20, 1991, Respondent engaged in a confrontation with the assistant principal in the presence of approximately 200 students. Respondent's anger, over the behavior of another student, was misdirected at the assistant principal. Respondent screamed and pointed his finger in the assistant principal's face. On September 30, 1991, Respondent used unnecessary and excessive physical force on a student and filed criminal charges against the student. Ladarian Griffin refused to comply with Respondent's request to behave in class. Respondent properly disciplined Ladarian by placing Ladarian in a separate chair at the front of the class. Ladarian persisted in his disruptive behavior. Respondent called the front office to have someone cover Respondent's class while Respondent ushered Ladarian to the front office. No coverage was provided. When the class was over, Respondent let all of his students leave except Ladarian and blocked Ladarian's exit through the classroom door. Ladarian attempted to run through Respondent. Respondent physically subdued Ladarian and took him to the front office. Respondent requested that the principal file charges against Ladarian with the public resource officer. When the principal refused, Respondent filed charges against Ladarian with the Fort Lauderdale Police Department. Respondent later requested that the charges be dropped. On October 4, 1991, the parents of two students telephoned the school administration to complain about Respondent yelling at their children during a class. The yelling interfered with the students' school work. On October 10, 1991, Respondent improperly accused a student of committing a felony against him. When the bell rang to end the sixth hour class, Respondent refused to allow his students to leave until the students returned their books. Respondent stood at the door to the classroom until each student placed a book on his or her desk. When Respondent turned to answer a knock at the door, Anthony Maclemore ran into Respondent with his head, shoved Respondent to the side, and ran out the door. Respondent mistakenly thought the student was Lashaun Johnson. Respondent wrote a referral for Lashaun and asked the principal to have Lashaun arrested. Mr. Dupont refused. Respondent filed a report and a complaint for prosecution against Lashaun with the local police department. Respondent told Lashaun's guardian that the police were going to arrest Lashaun that evening. The following day Lashaun and Lashaun's guardian participated in a conference with Ms. Etling and Respondent. Respondent realized his mistake and apologized. The mistaken identity caused substantial distress to Lashaun and Lashaun's guardian. Anthony Maclemore was suspended for three days. On October 15, 1991, Respondent yelled at Ms. Etling during a discussion on an educational matter. This incident occurred in the presence of numerous students. On November 13, 1991, Respondent issued a semester grade of "F" to 72 of his 160 students. During a conference with the parents of one of the students who received an "F", Respondent engaged in a tirade against the students' behavior and the failure of the administration to assist him in correcting that behavior. During a conference with the parent of another student, Respondent alluded to the student's bad behavior as a basis for the poor grade but was unable to present one disciplinary referral for that student. Between November 14 and November 21, 1991, several students or their parents complained to the administration of Respondent's verbal abuse and mistreatment of students. Respondent repeatedly yelled at students and disparaged them for their lack of academic effort. On November 21, 1991, Respondent took a folder away from Alex Holmes and told Alex he could get the folder back from Ms. Etling at the end of the day. Alex was disrupting the fifth period class by banging the folder on his desk. The folder contained materials Alex needed for another class. At the end of the class, Alex attempted to retrieve the folder himself, and Respondent attempted to prevent Alex from retrieving his folder before the end of the day. Alex hit Respondent. Respondent attempted to restrain Alex by placing his arms around Alex and pulling Alex's shirt over his head. Before Alex was restrained by other students, Alex hit Respondent in the head, forehead, face, and chest. Alex also used a bone from a skeleton that had been knocked over during the fight to hit Respondent on his leg and leave puncture wounds. Respondent filed criminal charges against Alex. Alex was arrested, prosecuted, and sentenced to one day house arrest. Respondent was absent from work until December 20, 1991, due to injuries sustained from the incident with Alex Holmes. From December 20, 1991, through January 13, 1992, Respondent was involved in several confrontations with students and administrative staff in which Respondent yelled at students and staff. On January 16, 1992, Mr. Dupont informed Respondent that Respondent was being placed on administrative leave. Mr. Dupont instructed Respondent to return to his classroom and remove his personal belongings. Respondent was escorted to the classroom by the school's resource officer. Respondent threw his personal belongings on the floor of the classroom. Documents were discarded and tossed about the classroom leaving it in complete disarray. The school resource officer was instructed by Mr. Dupont not to arrest Respondent. A police officer was called in to escort Respondent from the school campus. Respondent used a school cart to transport his personal belongings to his automobile. Respondent pushed the cart over prior to leaving the school campus. Respondent left his classroom in disarray. The classroom was cleaned by the cleaning service that night and used the next day for another class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the School Board enter a Final Order finding Respondent guilty of misconduct in office and terminating Respondent from his employment with the School Board. It is recommended that The Educational Practices Commission enter a Final Order finding Respondent guilty of engaging in conduct which seriously reduced Respondent's effectiveness as an employee of the School Board and otherwise violated applicable rules of the State Board of Education. It is further recommended that the Final Order of the Educational Practices Commission suspend Respondent's teaching certificate for one year from the date Respondent was first suspended without pay and place Respondent on probation for two years after the expiration of his suspension. Respondent's probation should be subject to such terms and conditions as may be determined by the Educational Practices Commission to be reasonable and necessary. DONE AND ENTERED this 9th day of August, 1993, in Tallahassee, Leon County, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2388 and 92-3425 Proposed findings of Petitioner, Virgil L. Morgan. 1.-2. Accepted in substance 4.-5. Accepted in substance 7.-8. Accepted in substance 10.-13. Accepted in substance 18. Accepted in substance 3.,6.9. Rejected as not supported by the weight of evidence 14.-17. Rejected as not supported by the weight of evidence 19.-21. Rejected as not supported by the weight of evidence Proposed findings of Petitioner, Betty Castor. 1.-16. Accepted in substance 17.-21. Rejected as not supported by the weight of evidence Accepted in substance Rejected as not alleged in the administrative complaint 24.-25. Accepted in substance 26.-27. Rejected as not alleged in the administrative complaint Accepted in substance Rejected as not supported by the weight of evidence 30.-32. Rejected as not alleged in the administrative complaint Rejected as not supported by the weight of evidence Rejected as not alleged in the administrative complaint 35.-36. Accepted in substance 37.-40. Rejected as not alleged in the administrative complaint 41.-46. Accepted in substance 47.-50. Accepted in substance 51.-52. Rejected as not supported by the weight of evidence 53.-68. Accepted in substance Respondent's Proposed Findings of Fact Accepted in substance Rejected in part as irrelevant and immaterial 2.-13. Accepted in substance 14. Accepted in part and rejected in part as not supported by the weight of evidence 15.-16. Accepted in substance Accepted in part and rejected in part as not supported by the weight of evidence Accepted in substance Accepted in specifics but rejected as to the generalization for the reasons stated in findings 21-44 Accepted in substance Rejected as contrary to the weight of evidence 22.-25. Accepted in substance 26. Accepted in part and rejected in part as contrary to the weight of evidence 27.-33. Accepted in substance 34. Accepted in part and rejected in part as contrary to the weight of evidence 35.-38. Accepted in substance 39. Rejected as contrary to the weight of evidence 40.-55. Accepted in substance COPIES FURNISHED: Charles T. Whitelock, Esquire 1512 East Broward Boulevard Suite 300 Ft. Lauderdale, Florida 33301 Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sally C. Gertz, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest 4th Street Ft. Lauderdale, Florida 33312
