The Issue The issue presented is whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At the time the Administrative Complaint was filed in this case, Mr. Tullos held Florida teaching certificate number 165642, covering the areas of administration and physical education, which was to expire in June 1995. 2/ At all times material to this proceeding, Mr. Tullos was employed as an assistant principal of student services at Glades Central High School ("Glades Central") in the Palm Beach County School District. He was employed pursuant to a three-year contract commencing in July 1990 and terminating in July 1993. 3/ Mr. Tullos has been employed since 1965 at what is now known as Glades Central, where he served as dean of boys until the title was changed to assistant principal some twelve years ago. He received appreciation awards for his work with students at Glades Central every year from 1987 through May 1991. Mr. Tullos has had regular contact with female students for many years in his positions as dean of boys and assistant principal of student services. In September 1991, Calvin Taylor issued a "Warning Letter" to Mr. Tullos expressing concerns about his behavior with students. At the time, Mr. Taylor was assistant superintendent for personnel relations with the Palm Beach County School Board. The letter was issued following an informal hearing regarding complaints from several students. These complaints were basically the same as those which are the subject of the instant proceeding. Mr. Taylor's role was to hear the evidence and determine what type of discipline to recommend to the school superintendent. Upon consideration of the evidence presented by the school board investigator and by Mr. Tullos, Mr. Taylor recommended that the appropriate discipline was the issuance of the "Warning Letter." In the letter, Mr. Tullos was admonished to "[b]e very careful about the manner in which you touch and associate with students." In May 1992, Mr. Tullos received an "At Expectation" performance evaluation from Dr. Effie C. Grear, principal of Glades Central. During the 1992-1993 school year, Mr. Tullos was one of three assistant principals at Glades Central and was assigned to work with all ninth-grade students. Lois Lewis and Willie McDonald, the other two assistant principals, were assigned to work with all tenth-grade and one-half of the eleventh-grade students and with all twelfth-grade and one-half of the eleventh-grade students, respectively. Mr. Tullos's duties included student discipline, monitoring the halls and cafeterias, loading and unloading students on the school buses, issuing passes, making arrangements for medical care for students injured on campus and contacting the parents, making arrangements to have unruly students removed from campus, and performing teacher evaluations. Each school day, Mr. Tullos monitored the cafeteria during breakfast. When the bell rang for first period, he, Ms. Lewis, and another school administrator monitored the halls and wrote late passes for students who were tardy. Mr. Tullos wrote a pass for any student who approached him, regardless of grade level. Once the halls cleared, Mr. Tullos usually returned to his office, where he wrote passes for other late students who came to his office and worked on discipline referrals. Mr. Tullos and Ms. Lewis also monitored the cafeteria during the two lunch periods. For most of his work day, Mr. Tullos worked in his office on student discipline referrals, averaging fifty to sixty per week. Discipline referrals are made by teachers, who complete a form giving an explanation of the disciplinary problem with a particular student; the form is normally given to the student who is the subject of the referral, who must take it to the assistant principal assigned to work with the students of his or her grade. Sometimes, teachers ask a student to take a discipline referral form to the office even though that student is not the subject of the referral. Mr. Tullos conducted a conference with the students and/or parents for all referrals within his jurisdiction. Student W. K. 4/ W. K. was a ninth-grade student at Glades Central during the 1992-1993 school year. She was often in trouble at school during that year and had many discipline referrals. Since she was in the ninth grade, she took the referrals to Mr. Tullos, so she came into frequent contact with him. One day, after she had been repeatedly late to one particular class, she and another student, S. S., were sent to Mr. Tullos's office with discipline referrals. When W. K. was alone with Mr. Tullos in his office, he commented on her legs, saying something to the effect that she had "fine" legs or that her "fine" legs could carry her to class on time, and he told her that she shouldn't be late to class. She thought nothing of the remark about her legs because she had known Mr. Tullos in the community since she was a child and had known him as a nice man. On two other occasions when she was in his office with discipline referrals, Mr. Tullos told her that he would "smooch" her if she got another referral. She understood this to mean that he would kiss her, but, again, she thought nothing of the remark because she did not take it in a negative way. She thought that being kissed by Mr. Tullos would be disgusting and that he was threatening to kiss her so she would not get into trouble again. W. K. had heard other girls talk about Tullos but she never saw him do the things they described. She also heard around school that girls who took discipline referrals to Tullos wouldn't get in trouble. W. K. did not take offense at Mr. Tullos's comment about her legs or his threats to smooch her, but she did think that this behavior was not appropriate for a school administrator. Although she talked about the incidents to all her friends at school, she did not go to anyone in authority to complain. At some point during the 1992-1993 school year, Ms. Lewis, the assistant principal in charge of the tenth- and part of the eleventh-grade students, called her in and asked her about the incidents with Mr. Tullos and asked if she knew any other students who had similar experiences. Shortly after she spoke with Ms. Lewis, she was called into the office of LaVoise Smith, the guidance coordinator at Glades Central, where she told Ms. Smith about the incidents. Student S. S. S. S. was a ninth-grade student at Glades Central during the 1992-1993 school year. She now attends the Choice school, which is in the Palm Beach County School District. As noted in paragraph 11 above, S. S. was the student who was sent with W. K. to Mr. Tullos's office with discipline referrals for being repeatedly late to one class. According to S. S., when she and W. K. were both in Mr. Tullos's office, he told them that they had pretty legs and were pretty girls. She could not, however, remember his exact words. She felt uncomfortable when he commented on her legs because she had heard other girls talk about Mr. Tullos and the things he would say to them. On another occasion, a teacher asked S. S. to take a discipline referral on another student to Mr. Tullos's office. When she entered his office, he glanced at the form in her hand and told her that, if the referral was for her, he would have to "smooch" her to make her do better. As S. S. was leaving Mr. Tullos's office, Mr. Tullos was leaving as well. S. S. went out of the door first, and Mr. Tullos stopped her by touching the top of her shoulder. When she turned around, his hand dropped to brush the top of her breast. She is not certain that he deliberately dropped his hand from her shoulder. Several times when Mr. Tullos saw S. S. with her boyfriend, he would tell the boyfriend to "leave that girl alone" or something to that effect. Even though he made these remarks in a joking manner, S. S. felt uncomfortable. In fact, she felt uncomfortable "every time he said something." In yet another incident, S. S. and Mr. Tullos were standing in the hallway outside his office when Mr. Tullos told her that her boyfriend was no good for her and that she should give all her "good loving" to him. After this last incident, S. S. and some of her friends discussed their experiences with Mr. Tullos. They decided that someone had to go to the office and report Mr. Tullos's behavior. Shortly after one of the girls reported Mr. Tullos to Ms. Smith, S. S. was called into Ms. Smith's office and interviewed. Student Y. J. Y. J. was a ninth-grade student at Glades Central during the 1992-1993 school year. Sometime around Christmas, Y. J. was in the cafeteria at lunchtime and asked Mr. Tullos for a quarter. He responded by asking what she would give him in return. She did not know what he meant by this remark, but it made her feel uncomfortable. On another occasion, Mr. Tullos had scheduled a conference with Y. J.'s mother to discuss a discipline referral. Y. J. forgot to tell her mother about the conference, and she used the telephone in Mr. Tullos's office to call her. Y. J. was wearing a low-cut v-necked shirt and a necklace which hung in the cleavage of her breasts. While she was on the telephone, Mr. Tullos commented that the necklace was "a pretty charm," and he reached over and picked the necklace up. As he did so, his hand "slightly" brushed her breast. She was alone with Mr. Tullos in his office, and he was sitting behind the desk while she was standing on the side of the desk. Y. J. does not know if he touched her breast intentionally, and she did not report the incident to school authorities. Sometime around Easter, Y. J. took a discipline referral to Mr. Tullos. They were alone in his office. He asked her when she was going stop giving her "loving to the guys and give him some." This made Y. J. so uncomfortable that she reported the incident to Ms. Lewis either the same day or the next day. After this last incident, but before she went to Ms. Lewis, she talked with a group of her friends about Mr. Tullos's behavior. Several of the girls claimed to have had similar experiences with Mr. Tullos, and some of them said that they blackmailed Mr. Tullos into giving them what they wanted by threatening to tell the administration about his behavior. Up until this time, however, none of the girls had reported Mr. Tullos. When Y. J. said she was going to go to Ms. Lewis to complain, several of the other girls said they would complain also. Y. J. spoke with Ms. Lewis, who sent her to Ms. Smith, the school's guidance coordinator. Y. J. gave Ms. Smith the names of the other girls she knew who had encounters with Mr. Tullos, and they were called in to talk with Ms. Smith. Student T. S. T. S. was a ninth-grade student at Glades Central during the 1992-1993 school year. She knew Mr. Tullos because teachers would ask her to take discipline referrals regarding other students to him and because she would ask him for a late pass if he was the first dean she saw in the hall. On several occasions during the 1992-1993 school year, when T. S. approached Mr. Tullos in the hall to obtain a late pass, Mr. Tullos made her wait until last, when there were not many people in the hallways. He then made remarks to her which made her feel uncomfortable, such as telling her after spring break that he missed her, telling her that he was jealous because he saw her hugging a boy (her cousin) in the hall, and telling her that she had to give him a kiss in order to get a late pass. She did not think he was joking about giving him a kiss because he said it on several different occasions. These remarks made her feel very uncomfortable. On "about" four occasions, when she approached him in the hall to obtain a late pass and he made her wait until last, Mr. Tullos hugged her. She felt very uncomfortable because these were not "ordinary" hugs like other teachers gave; rather, "[w]hen he grabbed me he just rubbed." On yet another occasion, a teacher asked T. S. to take a discipline referral regarding another student to Mr. Tullos. She took the referral to his office, and he told her to close the door. She felt that this was not necessary, and she gave him the referral and left his office. T. S. did not discuss her experiences with Mr. Tullos with her girl friends at school, nor did she personally report him. She eventually told her mother, who called the school to report Mr. Tullos's behavior. Student N. B. N. B. was a ninth-grade student at Glades Central during the 1992-1993 school year. Sometime during that year, N. B. went to Mr. Tullos's office with a discipline referral. She has a lot of jewelry and was wearing several necklaces on that day. He was sitting behind his desk, and she was standing across from him, in front of the desk. Mr. Tullos asked N. B. to give him one of her necklaces, and she told him no. He then asked if she would give him "something else," and reached over the desk as if to grab one of the necklaces. N. B. had heard that Mr. Tullos got "fresh" with girls, and she stepped back and left his office. N. B. went directly to Ms. Lewis's office and told her about this last incident. Afterwards, she talked with Ms. Smith. N. B. did not discuss the incident with her girl friends until after she had spoken with Ms. Lewis. Student T. F. T. F. was a ninth-grade student at Glades Central during the 1992-1993 school year. Sometime during that school year, T. F. had a "stop order" issued against her because she had missed detention. In order to go back to class, she had to obtain a pass from Mr. Tullos, which she would take to each of her teachers. She went to Mr. Tullos's office, and, when she asked for the pass, he asked her what she would give him. T. F. took this as a "sexual gesture" because of the way he said it and the way he looked at her; she did not respond. Mr. Tullos then called her aunt for an explanation of why she missed detention and gave her the pass. During the incident, she and Mr. Tullos were alone in his office. On another occasion, Mr. Tullos caught N. B. cutting into the lunch line. He pulled her out of the line and took her ten to twenty feet away from the line. He remarked that her boyfriend must be teaching her to do "stuff like that" and told her that she wasn't supposed to have any boyfriend but him. He also asked if she would go out to dinner with him and if she was ashamed to ride in his truck. He did not specify a date or time for dinner but asked if she liked Red Lobster. She turned down the invitation and walked away. During this exchange, T. F. and Mr. Tullos were standing in the cafeteria, which was packed at the time with students eating lunch. Although Mr. Tullos was not whispering to her, he was not talking loudly, either. On another occasion, she and a girl friend were in the hall, and they asked Mr. Tullos for a quarter so they could use the telephone. He responded by asking what they were going to give him in return. They told him to keep his quarter and borrowed a quarter from a friend. T. F. had heard from other students about Mr. Tullos's behavior, but she decided to give him the benefit of the doubt. A few weeks after the incident involving T. F. related in paragraph 39 above, the incident described in paragraph 26 above occurred between her friend, Y. J., and Mr. Tullos. After she heard about this, T. F. told her aunt and Y. J. about her encounters with Mr. Tullos. She and Y. J. talked it over and decided to talk with Ms. Lewis. Student M. R. M. R. was a ninth-grade student at Glades Central during the 1992-1993 school year. M. R. was late for class many times. On one occasion during the second half of the school year, she approached Mr. Tullos for a late pass. He told her that he would give her an "unexcused" pass but that, if she gave him a hug, he would give her an "excused" pass. She refused to give him a hug, and he gave her an "unexcused" pass. She did not think anything of this incident; she just took her pass and went to class. 5/ M. R. did not report the incident, but, at some point, she spoke to Ms. Smith about it. Ms. Smith has been employed as guidance coordinator at Glades Central for the past nine years. One of her duties is to work with female students who have problems. On May 3, 1993, Y. J., S. S., and T. F. came to Ms. Smith complaining that Mr. Tullos had made improper comments to them and/or had touched them in a way that they thought was inappropriate and that made them uncomfortable. When she asked if there were any other students who had similar experiences with Mr. Tullos, she was given several names. She called these students to her office and, from them, got the names of still other students. She spent the day interviewing all of the students whose names she had been given, and she took statements from ten students who she thought had complaints which should be further investigated. At the end of the day, she telephoned the Department of Health and Rehabilitative Services and the school board's security office to report the complaints. She also talked with Dr. Grear, the principal of Glades Central, and gave her the statements she had obtained. Dr. Grear handled the investigation from this point forward. In a performance evaluation dated May 28, 1993, Dr. Grear rated Mr. Tullos "At Expectation," commenting that he "works well with other members of the administrative staff and faculty." Mr. Tullos's behavior toward the seven students who testified at the hearing was unprofessional and inappropriate. The evidence is clear and convincing that his conduct seriously reduced his effectiveness as an employee of the school board. He repeatedly committed serious offenses against students who had been given into his care, and he exposed himself to the derision of the students who had been the objects of his indecent remarks and touches. His behavior was the subject of discussion among students, and some students even claimed to have gotten special treatment because they threatened to report him. The evidence is also clear and convincing that he harassed the seven students who testified at the hearing on the basis of their sex. He made remarks to them which were explicitly or implicitly sexual in nature, and he touched several of them in ways which were improper and offensive. 6/ Mr. Tullos's conduct made several of the seven students who testified at the hearing uncomfortable and/or angry, but others either did not take him seriously or were not bothered by his behavior. There is no clear and convincing evidence that the students' scholastic endeavors were affected or that they suffered any mental or physical harm as a result of his actions. The lack of mental harm was also apparent from the demeanor of the students as they testified at the hearing. Likewise, there is no clear and convincing evidence that any of the students were exposed to embarrassment or disparagement as a result of Mr. Tullos's actions; in fact, most of the students testifying at the hearing willingly and openly discussed their experiences with their friends at school. And, while he may have tried to exploit his relationship with the seven students as the assistant principal in charge of their grade, there is no clear and convincing evidence that Mr. Tullos obtained any personal gain or advantage.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Virgil Wayne Tullos guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board of Palm Beach County, in violation of section 231.28(1)(f), and of harassing students W. K, S. S., Y. J., S., N. B., T. F., and M. R. on the basis of sex, in violation of rule 6B- 1.006(3)(g) and, therefore, of section 231.28(1)(i). It is further RECOMMENDED that the following administrative sanctions be imposed: Suspension of Mr. Tullos's teaching certificate for a period of one (1) year; and, Upon reinstatement of his teaching certificate, placement of Mr. Tullos on probation for a period of three (3) years, with Mr. Tullos being required, as a condition of probation, to submit to psychological examination and to any recommended treatment through the recovery network program established in section 231.263, Florida Statutes. DONE AND ENTERED this 3rd day of July, 1996, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 3rd day of July, 1996.
Findings Of Fact The Respondent holds Florida teaching certificate 195597 covering the area of industrial arts. During the school years of 1973-1974 to 1983-1984, Respondent had no persistent pattern involving professional incompetency or unprofessional conduct. The Respondent was employed as a teacher of industrial arts at Vero Beach Junior High School in the Indian River County School District during the 1983-1984, 1984-1985, and the first three weeks of the 1985-1986 school years, until his suspension effective September 16, 1985. During 1983-1984, he also apparently taught mathematics. At various times, the classes Respondent taught at Vero Beach Junior High School included some classes directed to regular students and others directed to exceptional students, including the educable mentally handicapped (EMH). EMH students have intelligence quotients (IQs) of less than 70. At all times, all of the industrial arts classes taught by Respondent were elective. THE 1983-1984 SCHOOL YEAR Mr. Marion Bass was the Respondent's supervising principal at all times material to the administrative complaint. As the Respondent's supervising principal, Mr. Bass observed and evaluated the Respondent's teaching performance. Prior to evaluating the Respondent's teaching performance, Principal Bass received formal training in the evaluation of teachers and had 12 to 13 years of practical experience in conducting teacher evaluations. Principal Bass observed the Respondent's teaching performance informally on two or three occasions during the 1983- 1984 school year and twice formally at the end of that school year. In his observations and evaluation of Respondent, Bass found the Respondent's performance to be unsatisfactory. Specifically, Bass observed that the Respondent did not satisfactorily control students in his classroom, his planning was not as complete as it should be, implementation of his lesson plans was not acceptable, and Respondent's "voice procedures" (i.e., diction and volume) were unsatisfactory. Bass opined that the Respondent did not have a specific structure to his industrial arts class. Even if students were knowledgeable of their assigned task on a given day, the students were not always on-task. Instead, they would be out of their seats, moving around the room and discussing topics unrelated to class work. In Bass' view, Respondent failed to provide proper supervision of the students, and as a result, the students did not appear to respect the Respondent's instructions. Bass observed that students ignored Respondent's instructions to sit down and be quiet. On other occasions, he observed that the Respondent ignored some students' off-task behavior while he was involved with others. However, none of Bass' observations in the 1983- 1984 school year were reduced to writing nor formally discussed with Respondent, and the formal year-end evaluation of Respondent of March 16, 1984, by Laurent Smith, Assistant Principal, rated Respondent as overall satisfactory and his contract was subsequently renewed for the 1984-1985 school year. On or about May 15, 1984, Bass inadvertently discovered that the Respondent was not knowledgeable of his mathematics students' progress in their skills continuum. This was particularly disturbing to Bass in that each student is required by the Indian River County School Board to accomplish at least 70 percent proficiency in state-mandated skills in order to be promoted to the next higher grade. Thereafter, Bass made an attempt to ascertain the level of skills accomplishment by the students in Respondent's classes. While doing so, Bass questioned Respondent about the matter. The Respondent indicated that certain students were in the Compensatory Education Program. Bass subsequently learned that those students were not compensatory education students but were Level Two students. It alarmed Bass to discover that the Respondent did not even know what level of students he had been teaching for seven months. THE 1984-1985 SCHOOL YEAR On September 17, 1984, Bass prepared a memorandum to Dr. Douglas King, Director of Personnel for the School Board. In that memorandum, Bass outlined his concerns regarding Respondent's teaching performance. The memorandum addressed seven general areas of deficiency: failure to control students' behavior; failure to provide meaningful structure and direction and failure to support an enthusiasm for learning; failure to demonstrate the ability to plan a course of study with overall goals and objectives providing direction and continuity in the subject matter; difficulty in implementing what lesson plans the Respondent did develop; addressing only a small percentage of the students in his class when presenting a lesson; difficulty with proper grammar and diction; and a demonstrated lack of understanding for the basic academic and social skill needs of his students. Following preparation of his September 17, 1984 memorandum, Bass continued to make observations of the Respondent's teaching performance. Bass observed the Respondent's teaching performance on October 15, 1984 and completed a Classroom Observation Instrument containing his notes of that observation which rated the Respondent's performance in the classroom as "extremely poor, one of great concern." The notations on the Classroom Observation Instrument itself indicate that the Respondent gave directions to a limited number of students, assisted only a small number of students, engaged in very little class communication, did not enunciate well, used poor diction, utilized "very poor" classroom management, and failed to keep the students on task. Following Bass' observation of the Respondent on October 15, 1984, he prepared a written memorandum of his concerns and his suggestions for improvement. He met with the Respondent and discussed both his concerns and suggestions for improvement. The Respondent received a copy of the memorandum. During this conference, Bass told the Respondent that he was there to help him in any way that he knew how to help. Bass expressed similar sentiments in other conferences with Respondent regarding Respondent's teaching performance and offered to allow Respondent to visit other schools and other teachers both in and out of the school district in an effort to help Respondent remediate his observed deficiencies. On September 13, 1984, Theresa Wagner, chairperson of the vocational department of Vero Beach Junior High School, sent all teachers within that department a memorandum establishing dates for computer usage. One of the components of the Respondent's industrial arts curriculum was demonstration of computer literacy. Respondent received a copy of the memorandum. On October 15, 1984, the first day of the Respondent's assigned time block for use of the computers, the Respondent advised Ms. Wagner that his class was not ready to use the computers and would probably not be ready the following week. However, until that date, Respondent had expressed no problem with the time block assigned to him and had requested no assistance in preparing for this new function of the curriculum. When Ms. Wagner reminded him that computer skills were a part of his required curriculum at that time, Respondent replied that he could not understand why he had to teach something he did not know anything about. Further, he stated that he could not learn it. Respondent apparently made two attempts to learn the computer and gave up. Respondent's failure to adapt himself to the new computer programming time blocks inconvenienced Ms. Wagner and others who were required to share the single computer during the finite time available in a school day/school year. At hearing, Respondent advanced the theory that because his major was in TIE (Trade Industrial Education), he ought not to be required to adapt to teaching manufacturing, woodworking, and computer literacy, which are outside of his expressed field of interest, but which apparently are very much contemplated within the general field of industrial arts. Additionally, he felt he certainly should not be required to adapt to teaching all these "new" areas at one time. However, it appears he had been teaching woodworking for some period of time anyway. Overall, Respondent made it clear he did not want to teach the curriculum assigned to him. As a part of her assigned responsibilities as department chairperson, Ms. Wagner was required to observe each of the teachers within the vocational department. On October 10, 1984, she observed the Respondent. Her memorandum to the Respondent dated October 10, 1984, outlined her observations as well as her suggestions for his improvement. Ms. Wagner had difficulty understanding the Respondent when he was teaching. She suggested that he talk louder and make a special effort to enunciate clearly. She observed that the Respondent failed to provide a handout for one girl in the class. The girl raised her hand and had it up for five minutes before the Respondent noticed the student and gave her the handout. Ms. Wagner observed a lot of non-essential, non-productive movement of students in the classroom. Finally, she noted among other things that the last lesson plans which the Respondent turned in were for the week of September 17, 1984, although he was on notice that he was supposed to turn in lesson plans weekly. Ms. Wagner observed little, if any, instruction being provided by the Respondent. The students failed to respond to the Respondent's directions and did not pay attention to him or obey his directions. In fact, the majority of the students ignored the Respondent during this observation by Ms. Wagner. Lesson plans were an on-going problem between Ms. Wagner and Respondent. Only when Ms. Wagner specifically asked the Respondent for lesson plans did she receive them. Those which she did receive from the Respondent were not satisfactory. In her opinion, any substitute teacher would have had a very difficult time teaching effectively based upon the plans which Respondent did submit to her. Although other departmental personnel sometimes missed turning in lesson plans timely, everyone except the Respondent eventually "caught up" with their lesson plans. Ms. Wagner later observed Respondent on several other occasions. Those observations of the Respondent's teaching performance were consistent with her observations on October 10, 1984. On September 14, 1984, Richard Thomas, Vero Beach Junior High School Dean and Assistant Principal, observed the Respondent's classroom performance. Mr. Thomas is trained for such evaluations. Using the teacher evaluation form containing 39 observable "behaviors," Thomas rated the Respondent as "needs improvement" in 14 of the 39 categories based upon his observations on September 14, 1984. Thomas categorized the Respondent's performance on that date as incompetent. On September 20, 1984, Thomas became aware that the Respondent was sending a large number of student referrals to the Guidance Department for the purpose of having the students seek reassignments from his classes to other classes. Respondent's action was creating problems for the Guidance Department, the students, and the Respondent himself because by that point in the school year, a change of classes under the circumstances was impossible. Thomas prepared a letter dated September 20, 1984 to Respondent requesting that he refrain from such conduct. In the letter, Thomas offered to discuss the matter with the Respondent. Respondent's reasons for his acceleration of referrals was never made entirely clear. However, one explanation offered by the Respondent at formal hearing was that when he had behavioral problems with students in his classes and was not permitted to lock them out of the class (see findings of fact 21, 32, and 33 infra.) and was not otherwise "backed up" by Principal Bass and Assistant Principal Thomas, Respondent felt justified, as a strict disciplinarian, in referring those students whom he viewed as troublemakers to the Guidance Department either to be dealt with by Thomas or for reassignment elsewhere. Under the circumstances, this explanation by Respondent of strict discipline is flawed and unreasonable and evidences lack of classroom control. At hearing, Respondent expressed his objection to having exceptional and special education students in his classes due to their low IQs, even though he admittedly had taken courses in this area. Although all school and School Board personnel assumed Respondent was certified for EMH students, Respondent was not specifically so-certified. He maintained that because of their low IQs, EMH students created special discipline problems, which fact was confirmed by Mr. LaPointe and Mr. Bass. However, Mr. LaPointe, a specialist in the field, also opined that an industrial arts certificate should qualify Respondent to teach industrial arts to EMH students. Respondent attributed much of his professional troubles to the inability of the exceptional education students to learn as opposed to his own inability to teach. At first, Respondent further suggested Bass and Thomas had also assigned students with disciplinary problems to both his regular and exceptional classes. However, he could not substantiate this premise in light of the elective nature of all industrial arts classes. Overall, Respondent only made it clear that he did not want to teach the students assigned to him. On October 17, 1984, as a follow-up to his September 14, 1984 visit, Thomas observed Respondent teaching and prepared a Classroom Observation Instrument. He concluded that the Respondent's "with-it-ness" was poor because Respondent was oblivious to a fight which was about to break out between students in the back of his classroom and because a student had to approach the Respondent and almost physically pull on the Respondent's arm to get his attention. Thomas observed that the Respondent was not in control of his class and that he failed to maintain the attention of all students. Thomas observed no improvement in Respondent's performance on his October 17, 1984 return, except that on that particular date, the Respondent did attempt to implement some organizational structure through the use of an overhead projection covering four items. On November 9, 1984, Thomas wrote the Respondent a letter in regard to the manufacture of weapons by students in the Respondent's manufacturing class. Prior to that date, Thomas had verbally cautioned the Respondent about the manufacture of weapons by students in his class. No direct competent substantial evidence nor any corroborated hearsay supports a finding of fact that "weapons" per se were in fact created in Respondent's class with his knowledge. It was, however, demonstrated that various lathe-produced wooden objects, possibly intended by Respondent for use as chair legs, were smuggled out of his class by students. Although Respondent denied certain items described as "swords" and "paddles" were weapons and even that some of the "chair legs" were made in his class, the fact that he admitted that a paddle and certain "chair legs" could have been smuggled out by students indicates an appalling nonchalance for his duties of supervision of young people. It was further demonstrated that a sign bearing the expression "I LOVE SEX" and that a paddle bearing the expression "DUCK BUT!" [sic] were manufactured in Respondent's class without his disapproval. On October 16, 1984, Jean Carter, the Director of Vocational Adult and Community Education for the Indian River County School District, observed the Respondent's second period class. Ms. Carter is a qualified observer with the Florida Performance Measurement System. During her observation on October 16, 1984, Ms. Carter noted that the Respondent did not begin his class promptly. Students talked in loud voices and milled around the room. The Respondent had difficulty communicating with his students. Most of his comments were inaudible. The Respondent turned his back on some students when he spoke to other students. Few students attempted to write the notes shown on the overhead projector as the Respondent ordered. Other students never faced the projector, and the Respondent seemed to be unaware that they were not taking notes. Ms. Carter observed several students off task. Four or five students were throwing paper and spitballs around the room. The word "important" was misspelled on the transparency. Respondent exhibited no enthusiasm for the subject matter, never praised the students, spoke positively, or smiled. He did not appear to enjoy teaching. In November 1984, a request was made to the Florida Department of Education to provide an assistance review of the Respondent's teaching performance. The purpose of the assistance review was to provide the Respondent with assistance in becoming a more proficient teacher. Following the assistance review, a very lengthy, detailed report was prepared by the reviewer and submitted to the Indian River County School District. On February 7, 1985, a conference was held involving Superintendent Burns; Principal Bass; Dr. Eddie Hudson, Personnel Coordinator; Mrs. Shirley Hanawait, Assistant Superintendent; Ms. Carolyn Sheppard, CEA President; Jean Carter, Director of Vocational Education; Dr. Douglas King, Director of Personnel; and the Respondent. The purpose of the conference was to review the report prepared by the Department of Education assistance reviewer and to make arrangements to provide Respondent with additional help and assistance as needed. In that conference, Respondent's supervisors made arrangements to correct, repair, or adjust equipment in Respondent's classroom; to have another industrial arts teacher assist Respondent; to provide Respondent with relief time to observe other professional teachers in the same vocational area; to send the Respondent to two professional conferences; to provide Respondent with professional journals; to provide Respondent with assistance through the department head; and to provide assistance from Mr. Bass in the areas of grading, lesson plans, supervision, management, and organization. Mr. Bass, Superintendent Burns, and Dr. King emphasized to Respondent that he must begin to show improvement in his performance immediately. Respondent was advised that if no improvement were demonstrated immediately, Respondent could be removed from continuing contract status or dismissed altogether. The Respondent received a copy of the conference summary prepared by Dr. King as a reminder of the action Respondent was expected to take to improve his classroom performance. Ms. Carter participated in the conference held with the Respondent on February 7, 1985, to review the assistance review report and to provide the Respondent with help. Her purpose in attending the conference was to provide the Respondent with assistance in any way possible to improve his performance. Ms. Carter later made sure that all of the Respondent's equipment was in proper working order, that he had copies of the performance standards mandated for the courses he taught, that he received professional journals, and that he was authorized to attend two conferences relating to his subject matter area. Respondent did not, however, attend either conference. Subsequent to the February 7, 1985 conference, Bass conducted five classroom observations of the Respondent's teaching performance. On each occasion, Bass completed a Classroom Observation Instrument. On March 8, 1985, Bass observed the Respondent's class and found that no valid learning activity was going on in the classroom. On March 12, 1985 at 7:35 a.m., Bass observed the Respondent's industrial arts class for exceptional education students. There were seven or eight students in the class. Bass observed that the Respondent gave the students approximately 15 vocabulary words to look up while the Respondent straightened up the classroom. In Bass' opinion, such an assignment for exceptional education students was inappropriate due to their limited intelligence, attention span, and the purpose for which such students were enrolled in the course. Mr. Bass characterized Respondent's performance on that date as poor. Subsequently, on the same date, Bass observed the Respondent teaching manufacturing to a regular class of about 17 students. Although Bass characterized Respondent's performance in this class as better, he still gave it an overall score of poor because Respondent's presentation lacked continuity and his discourse was "disjointed." Bass continued to note that the Respondent had difficulty with grammar, enunciation, and projection of an enthusiasm for the subject matter. On March 18, 1985, Bass again observed Respondent's manufacturing class for exceptional students. Although Bass also termed this observation better than those he had made of Respondent in the past, he still considered it a below average observation. On the observation instrument itself, Bass noted that the Respondent was late to class, wasted time by marching the students to a film which was set up in a classroom in a separate building, provided no orientation or preview prior to showing the film, and conducted no discussion of the film after it had been shown. He further noted that the Respondent performed much of the project work himself, thereby limiting the hands-on experience that the students were in the class to receive. That same day, Bass observed the Respondent's manufacturing class for regular students, which viewed the same film as had been shown to the exceptional education students. The content of the film would have been acceptably pitched for both types of classes if Respondent had appropriately introduced the film and had led post-film discussions appropriate to each level, which he did not. Bass felt that once again a lot of time was wasted, there was scant review of the film's content, and there existed the same problems with diction and discourse by the Respondent. Bass concluded that the Respondent's teaching performance remained virtually unchanged from what it had been prior to the assistance review. Bass' March 27, 1985 Annual Teacher Evaluation for Respondent's 1984- 1985 school year resulted in a rating of "needs improvement" in 23 of the 39 "behaviors" evaluated on the form. Bass met with Respondent on March 28, 1985 to review the evaluation and discuss it with him. Before Bass could begin discussion of the evaluation, Respondent stated, "Let me make a long story short, Mr. Bass, I am not going to sign my evaluation even if we talk all week. You're 100 percent right on what you wrote, but I'm still not signing it." On more than six occasions, Thomas found the Respondent's students out of class when they were supposed to be in his room. On certain occasions Respondent locked them out. When the Respondent locked students out of his classroom, those students were free to roam the halls with the excuse that they had been locked out of their classroom. On one occasion, school staff members caught one of the Respondent's students committing a theft at a time when he was supposed to be in Respondent's class. Although the theft incident was not conclusively tied to a date Respondent locked students out of his classroom, Respondent was still responsible for indicating to the administration that the student was "cutting" and had not done so. On June 4, 1985, Bass learned that the Respondent was locking his students out of his classroom. Final examinations were being conducted at the time. The Respondent told Bass that he could not make the students stay in class without this procedure, which he had designed to catch students when a student still in the classroom tried to let those who had left the classroom back into the classroom from the outside. Respondent also told Bass he could not give an examination and control the students if the door were not locked. Respondent repeated this explanation from the stand at formal hearing as if his plan were designed to catch those who "cut" class, but Respondent also maintained it was a method of timing the number of minutes students remained out of class so that Respondent could tell their parents why he would not permit them ever to leave the room again, apparently even for reasons as mundane and urgent as using the bathroom. Such reasoning process is flawed and unreasonable, if not downright silly. The Respondent refused to sign the incident report resulting from this incident and further refused to discuss the incident report with Mr. Bass. As a vocational education teacher, Respondent was required to submit end of the year reports to Ms. Carter as a part of state and federal funding requirements. Ms. Carter had informed Respondent of the requirement that he prepare and submit the reports prior to leaving school. Respondent testified he submitted the required reports at the end of the 1984-1985 school year by placing them in the school office mail box of Ms. Wagner. Ms. Carter testified that she did not receive them. The problem with transmittal of the reports appears to be one that could have been resolved by Ms. Wagner or someone notifying the Respondent immediately by telephone that they had not been received. This was not done, although Ms. Carter and Dr. King followed up with written reproofs. Such an infraction under these circumstances will not support discipline of Respondent. Respondent's annual evaluation for the 1984-1985 school year, dated March 27, 1985 and referenced above, was not satisfactory, but Respondent's contract was subsequently renewed for the 1985-1986 year. THE 1985-1986 SCHOOL YEAR On September 3, 1985, Howard LaPointe, then a staff associate in the Exceptional Education Program of the Indian River County School District, observed Respondent teaching exceptional students in his manufacturing class. Although school had begun on August 17, 1985, Respondent took his class on a tour of the other building on September 3, 1985. Mr. LaPointe observed numerous deficiencies during his observation and noted that the Respondent needed assistance in the areas of classroom management, instructional materials, orientation to class work, utilization of student notebooks, and competency based upon the curriculum guide. On September 13, 1985, the Respondent met in Principal Bass' office with Bass, LaPointe, Carolyn Sheppard (president of the teachers' union) and Dr. King to review LaPointe's observation conducted on September 3, 1985 and to discuss suggestions for Respondent's professional improvement. As Mr. LaPointe began to present his plan for providing assistance to the Respondent, Respondent became angry and upset. After a sharp exchange between LaPointe and Respondent, wherein LaPointe asked Respondent "What the hell do you expect the children to do?" or some similarly-phrased question, Respondent left the meeting and did not return. Bass and Dr. King walked down to the Respondent's office, a glass- enclosed room. They could see Respondent was in a highly emotional, agitated state. The Respondent had knocked his personal television set onto the floor. It was not demonstrated that Respondent damaged a projector or any other school property or that two obscenities uttered by Respondent were heard by anyone other than a fellow teacher, Mr. Humphrey, who had entered the enclosed room as a friend to calm down the Respondent. Had Bass and King not followed Respondent to his own office they would not have even observed his agitated state. Respondent was excused for the remainder of the school day after Mr. Humphrey calmed him down. Later that day, Superintendent Burns suspended the Respondent without pay. Respondent was subsequently terminated by the School Board for incompetence, misconduct, and gross insubordination. On December 12, 1985, Dr. King notified the Florida Department of Education that the Respondent had been dismissed from his position of employment. Dr. King recommended that the Respondent's teaching certificate be permanently revoked. Based upon Bass' observations and evaluations of the Respondent's teaching performance over a period of more than two years, Bass holds the professional opinion that the Respondent is an incompetent teacher. Bass would not recommend the Respondent for employment in Indian River County or any other school district. In Bass' professional opinion, students in the Respondent's regular classroom did not receive even a minimal educational experience and the exceptional students received only a minimal educational experience. No evidence whatsoever supporting the allegations of unprofessional conduct at Clemans Elementary School was offered and no such unprofessional conduct is found. No direct competent substantial evidence nor any corroborated hearsay supports the allegation that Respondent used profanity in the presence of students and no such conduct is found. Respondent's pre-1983-1984 school year evaluations are technically irrelevant to the charges at bar but were admitted to give Respondent every opportunity to "prove up" his allegations that his current problems arose from personal or personality conflicts with Bass and Thomas. Unfortunately for Respondent, these exhibits show some of his deficiencies are long-standing but were sporadic as opposed to forming a consistent pattern early on. Otherwise, these exhibits are too remote in time to have great weight. Respondent also defended, pursuant to Rule 6B-4.08(2), Florida Administrative Code, upon the premise that after a bombardment of evaluations and conferences he felt he was being harassed rather than given corrective assistance and that he was given too little time in which to make the adjustments required. Rule 613-4.08(2) requires Respondent's immediate supervisor to make all efforts possible to aid Respondent to correct the matter which caused his dismissal. Although this is a questionable defense when, as here, Petitioner and the School Board are not one and the same entity, some of Respondent's allegations have a mitigating effect. There is some merit to his allegations with regard to the timeframe and limited assistance provided but none as to the allegation of harassment. Respondent did unsuccessfully apply for transfer and volunteer to accept a custodial job at the same pay in order to avoid his problems with Bass and Thomas, but he could not demonstrate at formal hearing any reason other than his own attitude and teaching performance for Bass' and Thomas' poor evaluations and refusal to transfer him. Moreover, the consistency of the other observers' analyses belies any conspiracy or vendetta against Respondent on the part of Bass and Thomas. There is some evidence that Respondent made some minimal improvements in technique after assistance was provided by the professional reviewer, which assistance Mr. Bass characterized as the only significant remediation provided the Respondent. Upon his superiors' advice, Respondent also conferred with at least one other teacher in his field who came to his school. Ms. Carter testified that Respondent was authorized to attend two professional conferences and he did not, in fact, attend, but it is unclear from her testimony and the supporting documentary evidence whether federal grant monies were ever authorized for Respondent's attendance at either of these conferences. Mr. LaPointe's evidence that special assistance with regard to exceptional students was offered by him but rebuffed by Respondent is indicative of Respondent's poor attitude. There is evidence that equipment was repaired for Respondent and although not stated by any one witness in so many words, it may be inferred from the collective testimony of several witnesses that Respondent could have requested time off to observe other industrial arts classes and confer with other industrial arts teachers outside his own school but failed to do so. In light of Respondent's satisfactory rating in the 1983-1984 school year, the fact that significant efforts to assist Respondent did not commence until November 1984 (reviewer visit) and that internal assistance did not begin in earnest until the February 7, 1985 conference, I find Respondent had really only from February to March 1985 to avoid an initial unfavorable annual evaluation. From March 1985 to school's closing in June and part of August and September in the 1985-1986 school year was all the time permitted Respondent for remediation because he was dismissed in mid-September 1985. Even so, he showed some minimal improvement which has been considered.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's Florida teaching certificate be suspended for three years with provision for reinstatement as provided by statute. DONE AND ORDERED this 22nd day of June, 1987, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4101 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF). Petitioner's Proposed FOF: Covered in FOF 1. Covered in FOF 3. Covered in FOF 5. 4-5 Covered in FOF 6. 6-8 Covered in FOF 7 but amplified to conform to the record as a whole. Covered in FOF 8. Covered in FOF 9. Accepted that there were such reports but rejected as set forth in FOF 41. Covered in FOF 10. Covered in FOF 11 except as to the subordinate and unnecessary. 14-15. Covered in FOF 12 except as to the subordinate and unnecessary. Covered in FOF 25. Covered in FOF 26. 18-19. Covered in FOF 27. 20. Covered in FOF 29. 21-23. Covered and amplified in FOF 30 to conform to the record, but eliminating the legal argument from proposal 23. 24. Covered in FOF 31. The commentary about the presence of a secretary and Respondent's mood are rejected as immaterial in light of no charges of insubordination. Further, mild anger in the presence of the Principal's secretary is hardly likely to impair Respondent's effectiveness. 25-26. Covered, modified and amplified as necessary in FOF 33 to convey the full scope of the material facts of record. That which is cumulative, subordinate and unnecessary has been rejected. 27. Covered in FOF 36; what is rejected is subordinate and unnecessary. 28-29. Covered in FOF 39; what is rejected is cumulative. 30-31. Covered in FOF 13-14 and amplified to more accurately convey the evidence of record as a whole. Covered in FOF 16 but modified for clarity. Covered in FOF 18. Except for elimination of the cumulative, covered in FOF 17. Except as cumulative, subordinate and unnecessary, covered in FOF 19. Covered in FOF 19. 37-38. Covered and amplified in FOF 20 to more accurately reflect the evidence of record as a whole. 39-42. Except as cumulative, subordinate or unnecessary, covered in FOF 22. 43-46, and 49 Rejected as not supported by the direct, credible competent substantial evidence of record as a whole. 47-48. Accepted that reports were written but rejected on the basis of uncorroborated hearsay, unsupported by direct credible competent substantial evidence in the record as a whole as covered in FOF 41. 50. Covered and amplified to more accurately reflect the record evidence as a whole in FOF 32. See also FOF 33. 51-53. Except for the cumulative, subordinate and unnecessary, covered in FOF 24. Covered in FOF 28 and 42. Rejected as not supported by the record as a whole. All witnesses are entirely credible on this point and Respondent's testimony is not truly contrary to other testimony. The benefit of the doubt must be resolved in his favor in this penal procedure. 56-58. Rejected as stated as not supported by the credible competent substantial evidence of record as a whole which is set out in FOF 37. 59. Covered in FOF 38. 60-61. Rejected as subordinate and unnecessary except as covered in FOF 38. 62. Covered in FOF 38. 63-65. Rejected as irrelevant except as covered in FOF 42. Rejected as cumulative. See FOF 20, 21, 32 and 33. Accepted but covered as set forth in FOF 23 since the proposal does not constitute an ultimate, material fact. Rejected as legal argument except to the extent it is peripherally covered in FOF 42. Respondent's Proposed FOF: 1-3. Accepted but cumulative upon the acceptance of similar proposals by Petitioner. 4. Rejected as stated in that it constitutes argument but the topic is covered in FOF 7, 21 and 42, as supported by the record as a whole. 5-8. Accepted but cumulative upon the acceptance of similar proposals by Petitioner. This proposal is not a sentence and is therefore rejected. Accepted that Respondent had the feelings and made the statement but rejected as stated as misleading of the record as a whole. See FOF 37. Except as covered in FOF 4, rejected as irrelevant, although true. Accepted but this goes to Respondent's overall incompetency and is not an ultimate material fact and therefore not adopted. See FOF 21. Rejected as some of these were not admitted in evidence and those in evidence do not support the proposal, neither does the record evidence as a whole. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Charles L. Hendley, Esquire 1500 Delaware Avenue Fort Pierce, Florida 33450 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 =================================================================
The Issue Whether Respondent should be transferred from Glades Middle School to an opportunity school.
Findings Of Fact For the 1989-90 school year John Sarmiento was enrolled in the Dade County public school system and he was assigned to the eighth grade at Giades Middle School. On November 27, 1989, Petitioner administratively transferred him from Glades Middle School to J.R.E. Lee, an opportunity school. The stated basis for the transfer was the student's disruptive behavior and his failure to adjust to the regular school. As an opportunity school, J.R.E. Lee has a more structured program than a traditional school, such as Glades Middle School, and is designed to assist students with discipline problems. While attending Glades Middle School, John Sarmiento repeatedly engaged in disruptive conduct that interfered with his own learning and with the learning of others in his classes. This conduct resulted in his being referred to the assistant principal's office between five and ten times per week. On one occasion the student, while in class, threw a piece of chalk at another student. On another occasion, the student engaged in an argument with another student that almost resulted in a fight during class. On an almost daily basis, the student would wander around the class while making loud, boisterous comments. This student's misconduct would have merited his suspension according to the district code of student conduct. Instead of suspending this student, the school officials worked with him and with his parents in an effort to improve his behavior. Unfortunately the considerable efforts of the personnel at Glades Middle School to serve the student's educational needs did not succeed. The student needs the structured environment that the opportunity school can provide, and his educational needs will best be served by his transfer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which approves John Sarmiento's assignment to the J.R.E. Lee opportunity school. DONE AND ENTERED this 3rd day of April 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April 1990. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 Maria Ruiz de la Torre, Esquire 7111 Biscayne Boulevard, Suite Three Miami, Florida 33138 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Paul W. Bell Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
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 The basic issue in this case is whether there exists "just cause" within the meaning of Section 231.36(1)(a), Florida Statutes, to terminate the professional services contract between the School Board of Gadsden County, Florida, and John C. Buckley. The School Board seeks such a termination on the basis of allegations that John C. Buckley engaged in various forms of inappropriate conduct during the course of a science fair trip. Briefly summarized, the allegations are that John C. Buckley (a) permitted students to smoke cigarettes, (b) purchased alcoholic beverages in the presence of a student, (c) consumed alcoholic beverages in the presence of students, (d) provided alcoholic beverages to students and permitted them to consume such beverages, and (e) inappropriately touched one or more female students. At the hearing, the parties presented the testimony of several witnesses, including the testimony of Respondent. Following the hearing, a transcript of the proceedings was filed and all parties thereafter filed timely proposed recommended orders. The parties' proposed recommended orders have been carefully considered during the formulation of this recommended order. All findings of fact prepared by the parties are specifically addressed in the appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the evidence received at the hearing and the admissions of the Respondent, I make the following findings of fact: At all times material, the Respondent, John C. Buckley, was employed as a science teacher at the James A. Shanks High School in Gadsden County, Florida. At all times material, the Respondent was employed under a professional service contract as defined in Section 231.36(3)(a), Florida Statutes (1987). The Respondent accompanied a group of Gadsden County high school students to Jacksonville to attend a science fair on April 13, 1988, through April 16, 1988. There were three other adults present during the trip; Oscar Rogers, a school bus driver employed by the Gadsden County School Board, Cynthia B. Clark, a science teacher from Carter Parramore Middle School, and Betty Williams, a chaperon. On the way to Jacksonville, the following three female students rode with the Respondent in his personal car: Ginger Godwin (10th grade), Twanna Scott (12th grade), and Yvonne Dunson (12th grade). The other students and adults rode in a school bus. During the drive to Jacksonville, two of the students in Respondent's car were smoking cigarettes. The Respondent knew these two students intended to smoke in his car and he did not prohibit either student from smoking in his car. During the evening of April 13, 1988, the Respondent drove in his car to a liquor store in Jacksonville, where he purchased some beer, some bottled wine coolers, and a small bottle of bourbon. Twanna Scott, a student, rode in Respondent's car to and from the liquor store, but she did not get out of the car when the Respondent went into the liquor store. During the evening of April 13, 1988, the Respondent consumed several beers, probably three or four. Some of the Respondent's consumption of beer took place in the presence of some of the students, specifically at a time when the students and the adults on the trip were eating pizza for their evening meal. The Respondent did not, on April 13, 1988, or any other time, provide any alcoholic beverages to any of the students, nor did he permit any of the students to consume alcohol. Later, on the evening of April 13, 1988, the Respondent entered the motel room in which Ginger Godwin, Twanna Scott, Yvonne Dunson, and Precious Anderson were staying. At the time the Respondent entered the room, Godwin, Scott, and Dunson, and several other people were also in the room. During the time the Respondent was in the room a door that connected to the next room was open. The next room was the room in which Cynthia B. Clark, a teacher, was staying with two other female students. While the Respondent was in the room, Twanna Scott complained of a stiff back and the Respondent sat on the edge of the bed and gave Twanna Scott a brief back rub. At the time of the back rub, the only other people in the room were Ginger Godwin and Yvonne Dunson. Following the back rub, the Respondent left the room. The Respondent did not touch any part of Twanna Scott's body other than her back. The Respondent did not touch either of the other female students who were in the room. On the evening of April 14, 1988, while the Respondent was away from the motel with some of the students, Ginger Godwin, Twanna Scott, and Yvonne Dunson told Cynthia B. Clark, one of the teachers, that they wanted to spend some time watching television in the motel room of some insurance salesmen they had recently met at the motel. Mrs. Clark agreed to let them do so, subject to some ground rules which included: the door to the salesmen's motel room had to remain open, the curtains had to remain open, and the girls had to check with Mrs. Clark every 30 minutes or so. At about 9:45 p.m. during the evening of April 14, 1988, Mrs. Clark walked by the salesmen's room and observed Ginger Godwin drinking a beer. Mrs. Clark told Ginger Godwin that she did not approve of such conduct and Ginger Godwin acted indifferent to the disapproval. Mrs. Clark told the girls that they needed to be back in their own rooms by 10:30 p.m. Sometime between 10:30 and 10:45 p.m., Mrs. Clark returned to the salesmen's room and tried to get the three girls to return to their own room. They essentially ignored her and remained in the salesmen's room. The Respondent returned to the motel sometime shortly after 11:00 p.m., at which time Mrs. Clark told him about the three girls in the insurance salesmen's room. Mrs. Clark and the Respondent then went to the salesmen's room and the Respondent told the girls they had to return to their own room. After some argument, the three girls eventually complied. Later in the evening the salesmen were down tapping on the window of the girls' motel room and the girls were talking to the salesmen through an open window. When this was brought to the Respondent's attention, he went to the girls' room, told them they should go to bed and tried to get the salesmen to leave. The three girls and the insurance salesmen all rebuffed the Respondent's efforts, and the Respondent ultimately had to call the motel security guard. At about that time, Ginger Godwin got into a heated argument with the Respondent, during the course of which there was some yelling and shouting back and forth. Apparently there were further heated arguments the next day about the salesmen. At some point in the arguments, Ginger Godwin threatened to retaliate against the Respondent as a result of his interference with the relationship between the three girls and the insurance salesmen. The threats made to the Respondent included statements such as, "I know how to get you," "I'm going to take care of your job Monday," and "I'll get even with you and I'll take care of you Monday when I get back." Upon returning home, Ginger Godwin, Yvonne Dunson, and Twanna Scott reported to school authorities that the Respondent had engaged in improper conduct during the science fair trip. They accused the Respondent of, among other things, improper sexual touching of Dunson and Scott. The allegations of improper sexual touching were false. School rules prohibit the use of tobacco substances at school campuses, activities, or field trips. School rules prohibit the consumption of alcoholic beverages on School Board premises, at school activities, and on school field trips. School rules prohibit the consumption of alcoholic beverages by teachers in the presence of students, during school field trips. When supervising field trips, teachers have 24-hour supervisory responsibility over the students on the field trip. The Respondent had been previously warned to curtail his smoking in front of students by Janey DuPont, an Administrator employed by the Petitioner. Respondent had also been specifically warned by Janey DuPont not to consume alcoholic beverages in the presence of students. The Respondent knew or should have known that he was not supposed to be drinking alcoholic beverages in the presence of students under his supervision.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the administrative charges against the Respondent Buckley be dismissed and that the Respondent be reinstated as a professional service contract teacher with full back pay. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1988. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1988. APPENDIX TO RECOMMENDED ORDER The following are my specific rulings on all findings of fact proposed by the parties to this case. Findings proposed by Petitioner: Paragraph 1: Accepted Paragraphs 2 and 3: Rejected as unnecessary recitation of procedural details. (Findings have been made incorporating the substance of the conduct admitted by the Respondent.) Paragraphs 4 and 5: Rejected as unnecessary. Paragraphs 6, 7, 8, 9, and 10: Accepted. Paragraph 11: Rejected as irrelevant to the issues in this case. Paragraphs 12, 13, 14, 15, 16, and 17; Accepted. Paragraphs 18 and 19: Rejected as subordinate and unnecessary details. Paragraphs 20, 21, 22, and 23: Accepted, with some unnecessary details omitted. Paragraphs 24, 25, 26, 27, and 28: Rejected as subordinate and unnecessary details. Covered in preliminary statement. Paragraph 29: Accepted. Paragraphs 30 and 31: Rejected because there is no clear and convincing evidence that any inappropriate touching of female students occurred on this occasion and, absent any inappropriate touching, the proposed details are subordinate and unnecessary. Specifically, there is no persuasive evidence that the Respondent made several attempts to bite Twanna Scott on her ear. Ms. Scott's testimony to that effort is unconvincing. The Respondent's denial is accepted. Paragraphs 32, 33, 34, and 35: Rejected as not supported by credible evidence. I reject as unworthy of belief the testimony that the Respondent provided alcoholic beverages to three students. I accept the Respondent's denial that he provided alcoholic beverages to any student. Paragraph 36: Rejected as irrelevant because the Respondent has not been charged with this conduct and, in any event, there is no evidence that Respondent consumed sufficient alcohol to impair his ability to drive safely. Paragraph 37: First fourteen words rejected as contrary to the greater weight of the evidence; I have rejected the testimony that Respondent provided alcoholic beverages to any students. Next seven words rejected as irrelevant and unnecessary because there has been no showing that the Respondent consumed sufficient alcoholic beverages to impair his judgment. The remainder of this paragraph is accepted. Paragraph 38: First sentence rejected as vague and inaccurate; the subject student was wearing a robe and was on the bed watching television. Second sentence accepted in substance with a few clarifying details. Paragraphs 39, 40, and 41: Rejected as contrary to the greater weight of the evidence. In view of all the circumstances, the Respondent's denials and the Respondent's version of what occurred is more believable than the testimony of Yvonne Dunson, Twanna Scott, and Ginger Godwin. Yvonne Dunson, Twanna Scott, and Ginger Godwin are not credible witnesses. Paragraph 42: Rejected as inaccurate; the girls made a report when they returned, but it was a false report. Findings proposed by the Respondent Paragraphs 1, 2, 3, 4, 5, and 6: Accepted in substance. Paragraphs 7 and 8: Rejected as constituting summaries of testimony rather than proposed findings of fact. Further, the subject matter of these paragraphs is irrelevant because in the hand holding in the car is not the "inappropriate" touching with which the Respondent has been charged. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraphs 11, 12, 13, and 14: I have not made any findings on the subject matter addressed by these paragraphs because there is no clear and convincing evidence that any inappropriate touching of female students occurred on this occasion and, absent any inappropriate touching, the proposed details are subordinate and unnecessary. Paragraph 15: Rejected as subordinate and unnecessary details. Paragraph 16: First sentence accepted. Second sentence rejected as irrelevant. Paragraphs 17 and 18: Rejected as constituting summaries of testimony rather than proposed findings of fact. On this subject, I have found that the greater weight of the evidence is consistent with the Respondent's denial. Paragraph 19: Accepted in substance. Paragraphs 20, 21, and 22: Rejected as constituting summaries of testimony rather than proposed findings of fact. (The summarized testimony has not been credited.) Paragraph 23: First sentence accepted. Second sentence rejected as not supported by persuasive evidence; I seriously doubt that Ginger Godwin told the other two girls anything about any "incidents" on Wednesday night. I believe the three girls (Ginger Godwin, Twanna Scott, and Yvonne Dunson) fabricated their stories at a later date. Paragraph 24: Rejected as constituting a summary of testimony rather than proposed findings of fact. I have, however, made findings of fact consistent with the Respondent's version of this incident. Paragraph 25: Accepted in substance. Paragraph 26: Rejected as subordinate and unnecessary details. Paragraphs 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, and 37: Accepted in substance. COPIES FURNISHED TO: CLAUDE B. ARRINGTON, ESQUIRE RUDEN, BARNETT, MCCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A. 101 NORTH MONROE STREET MONROE-PARK TOWER, SUITE 1010 TALLAHASSEE, FLORIDA 32301 PHILIP J. PADOVANO, ESQUIRE POST OFFICE BOX 873 TALLAHASSEE, FLORIDA 32302 ROBERT H. BRYANT SUPERINTENDENT OF SCHOOLS SCHOOL BOARD OF GADSDEN COUNTY POST OFFICE BOX 818 QUINCY, FLORIDA 32351
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
The Issue The issue for consideration in this matter is whether Respondent's certification as a teacher in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner was the official responsible for the certification of teachers and educational professionals in this state. The Respondent was certified as a teacher in Florida by certificate No. 615085, covering the areas of guidance, physical education and health education, and which is valid through June 30, 1993. During the 1990 - 1991 school year, Respondent was employed as a teacher of exceptional education math and social studies at Charles R. Drew Middle School, a school under the administration of the School Board of Dade County. Respondent has taught for between 11 and 12 years and took the course in crisis prevention and intervention offered by the National Crisis Preventon Institute in 1988. In September, October and November, 1991, Respondent was teacing exceptional math and social science to classes of between 4 and 7 students, all of whom were classified as either educable mentally handicapped, learning disabled, or emotionally handicapped. He had neither teaching aides nor assistants. In order to keep the class size small, the instructors in these classes were required to forego their planning period and spend that period in the classroom setting. On or about September 26, 1991, between the 4th and 5th class periods, Respondent was standing out in the hallway of the school, positioned in such a way that he could monitor the students' behavior in the hall as well as in his classroom. He heard a confrontation arise between K.G., a minor male student, and M.B., a minor female student. He went into the room and saw the two students screaming at and hitting each other. Though he told them to quiet down, they did not do so and he stepped in and broke up the fight, sending each student to his/her respective seat. Since their seats were near to each other in the back of the room, he removed K.G. to the front to the room to put as much distance between them as was possible. The two students still continued their verbal assaults on each other regardless of his efforts so he again stepped in and settled them down. Having determined that the argument arose out of M.B.'s accidentally stepping on K.G.'s sore foot, he advised K.G. that hitting was no basis for settling any dispute. K.G. allegedly responded that he hit anyone he wanted at any time. As Respondent subsequently crossed the room, he accidentally bumped K.G's foot which, he claims, K.G. shoved out in front of him. When he did, K.G. came out of his chair, struck Respondent twice in the stomach, and kicked him in the shin. K.G., who was not present to testify, claimed that Respondent intentionally stepped on his foot. This evidence is hearsay and no other direct evidence on the matter was offered. It is found, therefore, that if Respondent did come in contact with K.G.'s foot, the contact was accidental and not intentional. Regardless of the prompting, there is little question that K.G. struck the Respondent in the stomach and when he did, Respondent, applying the techniques for crisis prevention and intervention he had been taught, took K.G. to the floor with his arm behind him and sent another student for security. As a result of this altercation, K.G. was not injured at all but Respondent had to see a doctor for the blows to the stomach and the kick to the shins. He was given two days off from work to recuperate and offered more if he needed it. From that point on, K.G., who within two weeks of the incident, handed Respondent a letter of apology, was one of the best behaved students in the class. In addition, he was one of the two students who gave Respondent a Christmas present that year. He was subsequently removed from Respondent's class and from the school, but that departure was voluntary and had nothing to do with the altercation described above. When the matter was reported to Ms. Annunziata, the school board's Director of Professional Standards, she decided that an administrative review of the incident was sufficient action. The memorandum of understanding between Respondent and the school principal, Ms. Grimsley, regarding the incident, referred him to procedures for handling student discipline and commented on the need to use sound judgement and call school security before a situation escalated into a physical confrontation between the teacher and a student. Less than a month later, on October 15, 1991, Respondent was putting some information on the blackboard during class when another student, A.C. came up and stood beside him close enough to interfere with his work. He moved to another section of the board, and noting that A.C. had a toothpick in his mouth, directed him to resume his seat and remove the toothpick. A.C. did as he was told, but immediately came back up and stood beside the Respondent with another toothpick in his mouth. Again Respondent directed the student to sit down and take the toothpick out of his mouth, and the student did as told. However, he shortly again came up to stand near Respondent at the board with a toothpick in his mouth, so close as to cause concern in Respondent for the safety of his eye. Having already told the student to sit down and remove the toothpick twice without lasting success, Respondent reached over and took the tooth pick out of the student's mouth. A.C. claims that in doing so, Respondent grabbed his lips, but this is doubtful. The other student called to testify about this incident was not clear on details and it is found that while Respondent removed the toothpick from A.C.'s mouth, he did not grab the student's lips. In any case, however, the student reacted violently. Respondent again told the student to sit down but he refused and shouted he was leaving. Respondent asked another student to go for security since there was neither an intercom system nor a workable phone in the room, but no one did. A.C. started out of the room and on his way, veered over to where the Respondent stood and struck him in the rib cage with his elbow. At this Respondent, again using the CPI techniques he had been taught, took A.C. down to the floor and, holding the student's arms behind his back, opened the door and called for help. A teacher from another classroom came into the room and took A.C. to the school office. Shortly thereafter, Ms. Grimsley, the Principal, heard a teacher trying to calm A.C. down after what she was told was an incident with the Respondent. In her discussion with the student he told her that Respondent had hit him in the mouth, thrown him to the floor, and pulled his arm up behind his back. An investigation into this incident was reportedly conducted by the school administration. Thereafter, a conference was held in the Dade County Schools' Office of Professional Standards, attended by Respondent; Ms. Grimsley; Ms. Menendez, Coordinating Principal; the Union representative; and Ms. Annunziata, Director of the Office of Professional Standards, to discuss, inter alia, this alleged battery and Board policies and rules regarding discipline. A copy of the report was given the Respondent and he was afforded an opportunity to respond to the allegations. He denied using intentional restraint on A.C., and when asked why he had not called security, pointed out that all prior efforts to seek security assistance were met with no response. Thereafter, on February 26, 1991, he was administered a letter of reprimand by Ms. Grimsley. This reprimand indicated he had violated the provisions of the teacher contract as well as the School Board Rules and that he was being rated as unacceptable in Category VII, Professional Responsibilities, of the TADS. Neither the memo of the conference nor the letter of reprimand reflect any specific findings of fact regarding the incident. Only the conclusion that Respondent inappropriately disciplined a student is listed as a reason for the reprimand. Respondent accepted the Reprimand on March 1, 1991 without exception. A.C.'s disciplinary record for the months of the pertinent school year prior to the incident in question, maintained by school authorities, reflects that on September 5, 1990, he was the subject of a parent conference because of his general disruptive conduct and his defiance of school authority. On September 19, 1990 he was found guilty of fighting; on October 11, 1990, reprimanded for general disruptive conduct; on October 23, 1990, reprimanded for defiance of school authority; and on October 30, 1990, suspended for the use of provocative language. This is not the picture of a young man who would reasonably feel mistreated by a teacher who stood up to him. Respondent continuously maintains he did not initiate any physical contact with the student nor did he intend to use physical restraint. He made that clear at the conference in early February. Yet he was apparently not believed though the student's disciplinary record would tend to support Respondent's recollection of the incident. Dade County Schools prohibit the use of corporal punishment and allows restraint only for the protection of students or teachers. The application of these guidelines must be effected with common sense and a recognition of the empirics of the situation, however. Under the circumstances Respondent's actions do not appear inappropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Administrative Complaint filed in this matter be dismissed. RECOMMENDED in Tallahassee, Florida this 5th day of June, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0176 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. 6. First two sentences accepted and incorporated herein. Third sentence rejected as not supported by competent evidence of record. 7. Rejected as argument and contra to the weight of the evidence. 8. Accepted and incorporated herein. Rejected as not supported by competent evidence. In an interview with Mr. Kerr after this incident, as per her testimony at hearing, Ms. Grimsley related that he indicated he asked K.G. what he would do if he, Kerr, stepped on K.G.'s foot. When she indicated she thought to challenge a student like that was an error in judgement, he agreed, but at no time did he indicate he had stepped on K.G.'s foot. & 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. & 15. Accepted and incorporated herein except that the incident was repeated three times before Mr. Kerr removed the toothpick from A.C.'s mouth. Accepted and incorporated herein with the modification that A.C. was standing very close to Respondent at the time the toothpick was removed and was not in his seat. & 18. Accepted in part. The better evidence indicates that A.C. left the room only after assaulting Mr. Kerr by hitting him in the stomach. Accepted and incorporated herein. Accepted and incorporated herein. Accepted in part. An inquiry was made, but only the ultimate conclusion was presented to the Hearing Officer. Neither the report of investigation nor specific findings of fact were presented. Accepted and incorporated herein. Accepted as Ms. Annunziata's opinion. The policy was not introduced into evidence. All cases of physical contact might well not constitute a violation. Accepted. This was not found to have happened, however. For the Respondent: 1. - 4. Accepted and incorporated herein. & 6. Accepted and incorporated herein. Accepted but what was in the Respondent's mind - his purpose - is unknown. Accepted and incorporated herein. Accepted and incorporated herein. - 13. Accepted and incorporated herein. & 15. Accepted. Accepted and incorporated herein. Accepted. A.C.'s partial disciplinary record has been incorporated herein. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 William Du Fresne, Esquire 2929 SW Third Avenue, Suite One Miami, Florida 33129 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Jerry Moore Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 George A. Bowen, Acting Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
