The Issue Should discipline be imposed on Respondent's Florida Educators Certificate 174039?
Findings Of Fact Stipulated Facts: The Respondent holds Florida Educator's Certificate No. 174039, covering the areas of Elementary and Business Education, which is valid through June 30, 2005. Respondent was at all times material to the allegations of this administrative complaint an employee of the Alachua County School District. On or about April 27, 1999, the Commission of Education found probable cause to file an Administrative Complaint (Commission of Education v. Earnestine M. Young, Case No. 978-0721M) against Respondent. The Administrative Complaint in Case No. 978-0721M alleged that "during the 1995- 1996 and 1996-1997 school years, Respondent made derogatory and insulting comments to and about students, in front of a whole class. She referred to one student as 'stupid' because he had a calculator, told another student to 'stop looking at me like that because you look queer . . .' and in other ways demeaned her students. Respondent, also ignored students in class if they had annoyed her." The Administrative Complaint contained three counts alleging violations respectively of Section 231.28(1)(i), Florida Statutes, and Rule 6B- 1.006(3)(a) and 1.006(3)(e), Florida Administrative Code. On or about November 3, 1999, the parties entered into a settlement agreement pertaining to Case No. 978-0721M. To settle the dispute in Case No. 978-0721M, the parties agreed that Respondent not admit nor deny but elected not to contest the allegations in the Administrative Complaint and to accept a letter of reprimand, a copy of which would be placed in Respondent's certification file with the Department of Education and in her personnel file with the employing school district. The parties agreed that the Respondent should be placed on a period of probation of one year commencing upon the issuance of a final order by the Education Practices Commission. The terms of that probation, in pertinent part, incorporated the requirement that Respondent violate no law (statutory violations) and not violate the State Board of Education Rule 6B-1.006 during her probation. It was likewise agreed that if the Respondent failed to comply with the conditions of the probation, Petitioner would be authorized to file an administrative complaint for sanctions up to and including the revocation of her teaching certificate based upon the violation of the terms of the probation. On or about December 28, 1999, the Education Practices Commission entered a Final Order approving the settlement agreement in Case No. 978-0721M. Additional Facts: In the school year 1999-2000, Respondent was assigned to Duval Elementary School, part of the Alachua County School District. In late January 2000, J.M. was a second grade student in Respondent's class with other students. On this date Respondent was serving as a substitute teacher in an art class. J.M. got up from her seat to retrieve a piece of paper without raising her hand for permission from Respondent. During this encounter Respondent hit the student with a pen on her knuckles. J.M. described the incident to the effect that "it hurt a little bit, but it did not hurt that much." The incident happened at the Respondent's desk in the classroom. After the incident Respondent told the student, "Just sit down." The student then started to cry. J.M. was not sure whether Respondent intended to strike her. Respondent concedes that she may have struck the student. Respondent denies any intent to strike the student. Respondent was grading papers at the desk with a pen and noticed the papers moving, put her hands down on the paper, repeated that procedure and commented to the effect that the student should not take the papers that were being graded. (What J.M. considered to be a pencil was in fact a pen.) To the extent that J.M. surmised that she was being struck because she did not raise her hand to ask permission to get a piece of paper, that belief by J.M. was not established in the proof. After weighing these facts, it is not certain that Respondent intentionally struck the student on the hand. On February 18, 2002, Respondent was responsible for a computer class at the Duval Elementary School. The computer lab class included A.H., a fifth grade student. A.H. sat down at his seat and raised his hand. Respondent approached A.H. and under her breath, but loud enough to be heard by A.H. and student H.J. stated, "I hate these damn kids." Respondent struck A.H. on the back of his head with her hand. A.H. turned around and looked at Respondent. Respondent told A.H. to "turn back around and do your work." In 1999-2000 Lenita McNeally was the principal at Duval Elementary. In that school year she observed Respondent with students in class and described Respondent as gruff in her mannerisms and demeanor. Ms. McNeally considered Respondent's teaching style to be curt and not what Ms. McNeally would expect. Ms. McNeally did not deem Respondent to be as pleasant as Ms. McNeally would desire. Ms. McNeally believed the children to be uncomfortable with Respondent. Ms. McNeally felt that the Respondent needed to come forth with a mild-mannered temper, with a smile and to diminish her tone. Ms. McNeally's comments concerning the tone Respondent used in dealing with Respondent's students are accepted. Ms. McNeally did not hear the use of foul language, or Respondent calling students names or making derogatory remarks about the abilities of students as alleged in the Administrative Complaint. Laura Renfroe was a reading facilitator in the reading program at Duval Elementary School during the school year 1999-2000. She observed Respondent in class and found Respondent to be very strict, and very tough with the students. When the students would question Respondent, Respondent often seemed angry in giving her answers. Respondent's tone, as observed by Ms. Renfroe, was angry and upset. This approach by Respondent was met by the students' silence beyond that point. The observations Ms. Renfroe made of Respondent in providing instruction were as reading facilitator. Ms. Renfroe also overheard Respondent from Ms. Renfroe's adjacent room to the Title I lab where Respondent was teaching. Again, what Ms. Renfroe overheard was the tone used by Respondent in addressing her students which was angry, upset, and sarcastic. Ms. Renfroe did not hear Respondent use foul language or call the students by derogatory names. Ms. Renfroe did not hear the Respondent tell the students that she did not wish to be in the classroom or did not like them personally.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Counts 1 through 5 and suspending her teaching certificate for a period of 60 days. DONE AND ENTERED this 31st day of October, 2002, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2002.
The Issue An amended administrative complaint dated February 22, 1992 alleges that Respondent violated several provisions of Section 231.28(1), F.S. and Rule 6B- 1.006(5), F.A.C. Those alleged violations are based on incidents of criminal conduct in 1978 and 1989, and Respondent's failure to disclose the incidents on various employment or teaching certificate applications. The issue in this proceeding is whether the alleged violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Donny R. McCoy (McCoy) currently holds teaching certificate number 431066, in the areas of childhood education, mental retardation, elementary education and English as a second or other language. His recently- renewed certificate is valid through June 30, 1998. McCoy submitted applications for extension of his Florida teacher's certificate, signed and notarized October 1, 1982 and December 8, 1987. He also submitted an application for addition to his Florida teacher's certificate signed and notarized July 30, 1985. McCoy's application for a professional position with the Brevard County School District was dated September 1, 1990. In each of these applications, he responded "no" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" McCoy was hired as a kindergarten teacher at Gardendale Elementary School in the Brevard County School District from July 15, 1991 until September 20, 1991. As a result of his employment, the school district ran a background check and through the Federal Bureau of Investigation (F.B.I.) learned that McCoy had been involved in two criminal proceedings, one involving illegally importing parrots and the other involving charges of indecent exposure. McCoy resigned from his position effective September 20, 1991, and the Department of Education, Office of Professional Practice Services was notified. That office commenced an investigation consisting primarily of gathering court documents regarding the criminal cases. The investigation addressed three issues: the arrest and conviction for importing parrots, the arrest for indecent exposure, and McCoy's failure to acknowledge the incidents on his applications described above. McCoy was twenty-three years old on January 29, 1978 when he and a friend were arrested and charged with illegally shipping two parrots from Mexico to the United States. The Judgement Order of the U.S. District Court for the Southern District of Texas, Brownsville Division, reflects that McCoy had counsel, pled guilty and was adjudged guilty. A fine of $100.00 was imposed. McCoy was scared and remembers only going to court and leaving. Discussions were held between the attorney and the magistrate and McCoy has no recollection of the guilty plea. He felt the case was dismissed; someone else, his friend or the friend's father must have paid the fine. From 1979 until 1991, McCoy worked as a teacher in various places, including Broward County, Florida; Tokyo, Japan, for the Department of Defense; Alachua County, Florida; and St. Louis, Missouri. He claims he has been fingerprinted and had background investigations for these positions and never before has he been informed of the smuggling conviction on his record. He has told people about the parrot incident, but never put it on his application forms because he believed the case was dismissed. The application forms clearly inquire about convictions or adjudications withheld, not arrests. After the Brevard County background check, McCoy's attorney obtained an F.B.I. identification record on Donny McCoy. That record, dated 9/3/91, and provided to McCoy after he resigned from his Brevard County teaching position, reflects that the parrot charge was dismissed. On January 25, 1989 in Tazewell County, Illinois, McCoy was charged by information with three counts of "public indecency" in that he publicly "exposed his sex organ in a lewd manner." (Petitioner's Exhibit 6) Two of the counts were dismissed and the third was reduced to disorderly conduct. McCoy pled guilty to the count of disorderly conduct and adjudication was deferred on February 27, 1990. He was placed on twelve months supervision, was required to attend counselling, and was fined $100.00, plus $80.00 in court costs. After he complied with all the conditions of supervision, the case was dismissed on February 5, 1991. The case had not been dismissed as of September 1, 1990, the date of McCoy's Brevard County School District application. As of that date, he was still under supervision and adjudication was deferred. His "no" response described in paragraph 2, above, was untruthful. At some time prior to the hearing in this proceeding, McCoy, or his attorney sent to the Department of Education an affidavit that he had executed on February 7, 1992 and the copy of a polygraph report dated April 3, 1989. The polygraph report is referenced in the affidavit. The substance of these documents is an admission by McCoy that he had exposed his underwear and, at most, his pubic hair, but not his penis, to a high school youth he encountered on the street. He had done this on more than one occasion for the purpose of determining whether the individual might be gay. He did this because someone had done it to him. He participated in counselling and understood the reason for his behavior. He disavowed any desire to repeat the behavior. Throughout his teaching career, McCoy has received a series of excellent recommendations and commendations. He admits that none of the authors of those letters is aware of the Illinois incident. A criminal record does not automatically reduce a teacher's effectiveness or make him ineligible for licensure. The Department of Education, Office of Professional Practices Services looks beyond the criminal charge and disposition to the underlying incident and circumstances. In this case, it had McCoy's own explanation of the Illinois incident and it had the applications which he had submitted. These documents and the agency's long- standing policy of taking very seriously any sexual charges involving teachers, a policy reasonably based on the expectations of the public that children should be safe with people employed in schools, resulted in the agency's determination that McCoy is unfit to hold a teaching certificate in Florida.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that a final order be entered finding that Respondent, Donny McCoy violated Sections 231.28(1)(c), (f) and (h), F.S., and Rules 6B-1.006(5)(a), (g) and (h), F.A.C., and imposing the following penalty: three years suspension, followed by two years probation, under terms to be specified by the Educational Practices Commission, which terms should assist in insuring that Respondent does not represent a threat to the safety or well-being of students under his responsibility. DONE AND RECOMMENDED this 9th day of December, 1993, in Tallahassee, Florida. MARY CLARK 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 December, 1993. APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 93-2250 The following constitute rulings on the findings of fact proposed by each party: Petitioner's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 5 to the extent that the referenced exhibit reflects those findings. However, other evidence conflicts with, or supplements the disposition of the case. Adopted in paragraph 9. and 6. Adopted in paragraph 2. Adopted in paragraphs 3 and 4. Rejected as unnecessary. Adopted in paragraph 13. Adopted in paragraph 11. Adopted in paragraph 4. Respondent's Proposed Findings 1. and 2. Adopted in paragraph 1. Adopted in paragraphs 3 and 4, except that it was not established the resignation was "forced". Rejected as unsubstantiated by evidence. Reflected in the Administrative Complaint and unnecessary. Adopted in paragraph 5. Rejected as to the Illinois incident; adopted as to the Texas incident, see paragraph 6. Rejected as contrary to the weight of evidence. Adopted in paragraph 7. Rejected as unnecessary. Adopted in paragraph 9. Rejected as contrary to the weight of evidence. Adopted in paragraph 12. Rejected as contrary to the weight of evidence. COPIES FURNISHED: Gregory Chaires, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jill M. Boyd, Esquire Bond & Boyd, P.A. 411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302 Thomas H. Lanham, Esquire 1900 South Harbor City Boulevard Melbourne, Florida 32901 Karen B. Wilde, Executive Director Education Practices Commission Florida Education Center, Room 301 Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
