The Issue Whether just cause exists to suspend Respondent without pay for a total of ten days, based on two separate incidents.
Findings Of Fact Mr. Marshall has been a teacher in Broward County for approximately 20 years. At all times pertinent to the instant case, Mr. Marshall was employed as a math teacher at McArthur High School. Prior to working at McArthur High School he had taught math at Hollywood Hills High School, and then at Flanagan High School. During his tenure at Hollywood Hills High School, Mr. Marshall was placed on a Performance Development Plan (PDP), which required Mr. Marshall to remediate and reteach math lessons in an effort to obtain 70 percent comprehension in his classes. During his tenure at Flanagan High School, Mr. Marshall was once again placed on a PDP, which included the same requirements as the previous PDP at Hollywood Hills. Mr. Marshall was next transferred to McArthur High School for the 2007-2008 school year. Because Mr. Marshall had not completed the second PDP while at Flanagan High School, he was placed on a PDP and 90-day probationary period to start his tenure at McArthur High School. He successfully completed the PDP. During the fall of 2010, Mr. Marshall complained about Mr. Jose Gonzalez, the assistant principal who supervised the math department at the time. Mr. Marshall was then permitted to choose which assistant principal would supervise him. He chose Shawn Aycock, who at the time worked as the assistant principal for the language arts department. On November 5, 2010, Ms. Aycock observed Mr. Marshall in his classroom. Ms. Aycock noticed the following deficiencies: Mr. Marshall did not have the students start an activity as soon as the students entered the room, he had the students perform a task that had no educational value and was not tied to the day's activity, he gave inappropriate responses to students' questions, the students were confused with the lesson, he did not provide proper feedback to the students, he did not provide complete answers to student questions, he used vocabulary that was beyond the students' ability, he gave the students a sample problem but did not work through the problem with the students, and he made no attempt to re-teach the lesson or remediate in any way. On November 16, 2012, Ms. Aycock met with Mr. Marshall to discuss the observation. Mr. Marshall was confrontational, denied that the observation of hers was accurate, and accused Ms. Aycock of lying. Ms. Aycock had observed many teachers before she observed Mr. Marshall, but had never seen the need to write up notes after a meeting with a teacher. But after her meeting with Mr. Marshall, she did. Since then, she has not seen the need to write notes arising from a meeting with any other teacher. During the meeting, Mr. Marshall indicated that he would not water down his instruction for any student, and that he would have no problem with observations that were done ethically and did not consist of lies that were made by unqualified individuals. On November 19, 2010, Ms. Aycock provided Mr. Marshall with a memo detailing her concerns and expectations: Concerns: Students were asked upon entering the class to copy the day's objective. Students did not understand all of the math vocabulary used to explain the lesson. A student seeking further explanation on a problem was told,"If you didn't get it not to worry. It will not be on the quiz." Students were referred back to their notes when they questioned the lesson. Only two math problems were worked during a half an hour review. Expectations: All student activities should be of value and tied to the day's activity. Teacher will use math vocabulary consistent with student ability level and explain lessons in multiple ways. Insinuating that lessons are learned only for a test is inappropriate. All student questions will be answered and explained in full. During a review a minimum of five review problems will be worked per concept. Additionally, we discussed the importance of you checking your email. I am directing you to check your email prior to the conclusion of first period and again prior to the conclusion of fourth period. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received hours upon hours of assistance in these areas. My expectation is that you will follow the directives listed above immediately. If you feel you need assistance, please see me. Next, Ms. Aycock requested that Principal LaPace, who had an extensive math background, observe Mr. Marshall. He did so on January 7, 2011. Mr. LaPace's extensive notes regarding the observation detail Mr. Marshall's failure to have a proper lesson plan, his scattered presentation manner, and his ineffective management of the classroom. Mr. LaPace prepared a memo detailing his concerns and expectations: Concerns: Students were not given clear directions causing confusion among the students. The lesson was not sequential. The objective on the board did not match the lesson being taught. Modeling sample problems were ineffective. Expectations: Always give clear and concise directions to students. Plan and deliver lessons so that are presented in sequential order. The lesson presented in class will align with the objective posted for the day. During a lesson a minimum of three sample problems will be worked per concept. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately. When Mr. LaPace met with Mr. Marshall regarding his observation, Mr. Marshall disagreed with Mr. La Pace's observations, but did not indicate why he did. Mr. Marshall also declined all types of support from other staff members. The administration asked Mr. Marshall to provide documentation of remediation and retesting of students if he had over 35% of his students earning Ds or Fs. The documentation needed to be specific information regarding times that Mr. Marshall sat down with students in small group settings, or phone logs regarding communication with parents, or any type of specific information regarding steps that Mr. Marshall was taking to raise the level of success of his students. Mr. Marshall was never observed remediating or re-teaching, despite the fact that all teachers were asked to allot the final 30 minutes of a class to these activities. On February 17, 2011, Ms. Aycock, Mr. Gonzalez, and Mr. Marshall met for a Pre-Disciplinary Meeting. Mr. Marshall was given a verbal reprimand for insubordination. In the memorandum which documented the verbal reprimand, Ms. Aycock directed Mr. Marshall to: Reduce the number of students in your class receiving D's [sic] and F's [sic] to at or below thirty-five percent through re-teaching and remediating of those students. Check your school email throughout the day, a minimum of twice per day. Follow all directives given by and with proper authority. Failure or refusal to follow the above directives will result in further disciplinary action. On September 20, 2011, Ms. Aycock again met with Mr. Marshall to discuss concerns and expectations, and also to conduct a Pre-Disciplinary Meeting, wherein Mr. Marshall was issued a second verbal reprimand for insubordination. On September 22, 2011, Ms. Aycock wrote a memorandum detailing the conversation during the meeting, and reminding Mr. Marshall that from June 2010 through September 2011, he had attended seven meetings regarding the high percentage of students in his classes that were receiving Ds and Fs. At each meeting, he had been directed to reduce the number of students receiving Ds and Fs to at or below 35 percent, through remediation and re-teaching. Because Mr. Marshall had failed to comply with these directives, and had failed to provide a reason why he should not be disciplined, he was issued the second verbal reprimand. He was also directed to: Reduce the number of students in your class receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students. Follow all directives given by and with proper authority. Stemming from the same meeting, Ms. Aycock documented her concerns and expectations: Concerns: You are receiving a large number of student and parental complaints in relation to your teaching practices. Students are not being graded in a fair and consistent manner. The department grading policy is not being followed. Meaningful assignments are not being given to students. Students are not receiving corrective and immediate feedback as it relates to their assignments. Expectations: You will model lessons for students. You will differentiate instruction to meet the needs of all the students. You will develop and implement rubrics so students have clear expectations of class participation and effort requirements. All assignments will correlate to the standards as tested by the Geometry EOC. Students will receive corrective feedback within seventy-two hours. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately. Around December 2011, Ms. Aycock was promoted to the position of Principal for a middle school, and Ms. Arnita Williams became Mr. Marshall's supervising Assistant Principal. Ms. Williams and Ms. Aycock once again conducted a classroom observation of Mr. Marshall, and Ms. Williams documented her concerns and expectations as follows: Concerns: Students were not given clear directions causing confusion among the students. The lesson was not sequential. You did not address students' questions and concerns. Modeling sample problems was ineffective. You did not provide and use the correct mathematical vocabulary. Expectations: Always give clear and concise directions to students and check for understanding. Plan and deliver lessons so they are presented in sequential order. Students' questions and concerns need to be addressed. Mathematical vocabulary on student's level should be used. In previous memos additional directives were given. Below were the following expectations: You will develop and implement rubrics so students have clear expectations of class participation and effort. Provide a copy of your participation rubric to Ms. Aycock by the close of business on Friday, September 26, 2011. Differentiate instruction every day the last 30 minutes of class the [sic] meet the needs of ask [sic] your students. Student will receive corrective feedback within seventy-two hours on all graded work. Reduce the number of students receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students. Daily indicate in your lesson plans interventions and strategies used to differentiate instruction. A minimum of two grades each week must be entered into pinnacle per student. Vocabulary used in class must be consistent with student's ability. Check your school email throughout the day, a minimum of twice daily (before and after school). During a lesson a minimum of three sample problems will be worked per concept. Follow all directives given by and with proper authority. You have been given the above directions numerous times in the past. It is my expectation that all directives will be implemented immediately. On December 12, 2011, Ms. Williams issued a written reprimand for failing to meet the performance standards required of his position as a math teacher. As grounds for the written reprimand, Ms. Williams focused on Mr. Marshall's repeated failure to reduce the number of students receiving Ds and Fs to at or below 35 percent through remediation and re-teaching, and his failure to follow all other directives given by and with proper authority. School administration consistently directed Mr. Marshall to remediate and re-teach daily; he advised the administration that he would do so on one particular day of the week. The administration denied that request. As a result of Mr. Marshall's non-compliance, students were moved from Mr. Marshall's class to other classes, which resulted in a disparate amount of students in other classes. While most math teachers had from 30-35 students in their classes, Mr. Marshall's class was reduced to about 17 students. On January 5, 2012, Ms. Williams conducted a pre-disciplinary meeting with Mr. Marshall, for failure to provide daily re-teaching and remediation for students the last 30 minutes of class, as he had been instructed to do numerous times. He was informed by letter that he was being recommended to the School Board for a three-day suspension. On October 10, 2012, approximately nine weeks into the next school year, Ms. Williams sent Mr. Marshall a memorandum that stated: Due to the large number of complaints, schedule changes, high failure rate and conferences, you are hereby directed to provide the following documentation for each of the 93 students (Juniors) who presently have a grade of F in your class at interims by October 15, 2012. Please provide copies to Ms. Williams and Ms. DiPaolo by 2:45 p.m. Interventions and strategies for each student Parent phone contact log On that same date, Mr. Marshall responded to this request by giving Ms. Williams a document that read as follows: MATHEMATICAL RUBRIC Tests/Quizzes Correct Problems 10pts. Completely Wrong 0pts. Total is 100% Please note that the total number of questions can affect the outcome. Since the reply by Mr. Marshall was completely lacking in usefulness and did not supply the information requested by Ms. Williams, she attempted once again to solicit the proper information from Mr. Marshall by sending an e-mail to him on October 15, 2012, at 6:03 a.m., giving him a second notice that the deadline for production of the requested information was that same day. Mr. Marshall never complied with the directive to provide information on each student who was failing his class. He never asked for more time to collect the information, and despite that fact that he admitted it would have been easy to retrieve his phone log and submit it, he never did so. Ms. Williams met with Mr. Marshall, informing him that he would be recommended to the School Board for a seven-day suspension. The greater weight of the evidence established that Mr. Marshall is guilty of gross insubordination for his conduct before and after July 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board issue a final order suspending Mr. Marshall without pay for a total of ten days, based on his conduct before and after July 2012. DONE AND ENTERED this 28th day of August, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2013.
The Issue The issue in this case is whether to impose sanctions against Respondent, Brooke Braly, up to, and including, revocation of her Educator’s Certificate.
Findings Of Fact The Commissioner is responsible for monitoring each person who holds a Florida Educator Certificate and who is working in any school district within the State. Part and parcel of the Commissioner’s duties is the determination of whether any teacher violated any of the Principles of Professional Conduct for the Education Profession. At all times relevant hereto, Ms. Braly held Florida Educator Certificate No. 1106771, covering the areas of elementary education and English for speakers of other languages. The certificate is valid through June 30, 2021. Ms. Braly is employed as a teacher in the Volusia County School System, teaching at the School in the area of Modified ESE with Varying Exceptionalities. Her students were those with physical and/or mental disabilities which resulted in learning difficulties. Ms. Braly had served in that position for seven years as of the date of final hearing, including the 2017-2018 school year. An incident occurred at the School on December 5, 2016, i.e., the 2016-2017 school year, involving the Student. Based on that incident, the Commissioner issued an Administrative Complaint on November 21, 2017 (some 10 months later), which contained the following allegations: On or about December 5, 2017, [Ms. Braly] failed to notify school administrators after she confiscated a BB gun from a student at the beginning of the school day. [Ms. Braly] also failed to properly secure the BB gun to prevent the student from regaining possession of it while still on school property. The Salient Facts From the evidence presented, it is clear that on December 5, 2016, the Student approached Ms. Braly at the beginning of the school day. The Student told Ms. Braly that he had inadvertently failed to remove his BB/airsoft pistol from his backpack before leaving for school that morning. He asked her what he should do, and Ms. Braly took the gun from him to secure it for the day. At no time was she worried that the Student had intentions of using the BB gun or that it was a serious problem. In fact, Ms. Braly did not even believe it was a BB gun, but thought it was a plastic toy gun. At the end of the day, the Student took the gun home with him. As the Student was exiting the school bus at his stop that afternoon, another student sitting on the bus saw the BB gun, which the Student had stuck into his waistband under his shirt. The Student’s shirt was lifted for some reason and the other student spotted the gun. That student went home and immediately sent an email to several School administrators to report what he had seen. The administrators reviewed surveillance videos from the bus and identified the Student as the person carrying the gun. An investigation ensued and the Administrative Complaint was filed. The less clear and/or less persuasive “facts” of this case are set forth below. The Gun The Commissioner presented a picture of a BB gun at final hearing which was purported to be the same gun Ms. Braly had confiscated from the Student on December 5, 2016. The black and white picture shows a replica Smith & Wesson handgun of small to average size. Ms. Braly says that the gun depicted in the picture is not the gun she took from the Student. The Student’s father brought a handgun to final hearing that he said was the gun at issue. It was plastic, lightweight, and tan and black in color. There was a clip (presumably for holding BBs) that could slide into the handle of the gun. The father demonstrated how to insert the clip and how to “cock” the gun by sliding back the top portion. That action would engage a spring that would release once the trigger was pulled, i.e., it was a spring-fired pistol, not a recoil action weapon. According to the Student, the gun fired plastic pellets rather than BBs. Ms. Braly, who only saw the gun for a few moments on the morning of December 5, 2016, remembers it to be black with an orange tip, unlike the gun produced at final hearing. At some point, the Student was asked to identify the gun from a picture depicting several different handguns. The Student pointed out to an investigator which of the depicted guns looked most like his BB pistol. The photographic line-up was not offered or admitted into evidence, so no finding is made as to what it may have shown, vis-à-vis what the gun looked like. At the final hearing, the Student’s father acknowledged that he had previously told School administrators he had destroyed his son’s gun back in December when the event occurred. The gun he produced at final hearing was obviously not destroyed; in fact, it looked very new and barely used. The Student said the gun produced at hearing was the same gun he gave to Ms. Braly on December 5, 2016. Mr. Starin, an investigator for the Volusia County School District, was tasked with looking into the incident. He did not speak to the Student’s parents nor did he attempt to locate the gun (other than having the Student identify what the gun looked like from the pictorial lineup). The most persuasive evidence is that the gun given to Ms. Braly on December 5, 2016, was the same as or similar to the one depicted in the Commissioner’s exhibit and proffered at final hearing. It was very light and obviously a toy, but was designed to resemble a real gun. Though it looked somewhat like a real weapon from afar, it is hard to believe anyone who held the gun or saw it up close would think it real or capable of causing serious harm to a person. December 5, 2016 As the Student was walking to his bus stop, he told his sister he had forgotten to remove the BB gun from his backpack after carrying it with him to the park the night before. His sister advised the Student to give the gun to his teacher so as not to get in trouble at school. Upon arrival at the School, the Student immediately approached Ms. Braly, who he trusted and believed would help him do what was most appropriate in this situation. When no other students were nearby, the Student told her about the gun. Ms. Braly took the gun and placed it in her office in a desk drawer. The Student remembers her placing the gun in a cardboard soda can box. Ms. Braly remembers just placing it in a desk drawer. It is patently obvious by his actions that the Student had no intentions of displaying the gun at school for any purpose. He very intentionally tried to diffuse any danger or unease that might have arisen due to his mistake. Ms. Braly took the Student’s actions and demeanor into account when deciding what to do. Ms. Braly thought the toy gun would be safe in her locked office as that was where she kept her purse and car keys during the school day. Normally no one had access to the office during the day, except that construction was going on and some of the workers did have access to the office. Ms. Braly did not consider those workers a threat to steal anything or to rifle through her desk during the day. She also did not consider the toy gun worthy of anyone’s interest. She believed her response to the situation was reasonable, based on all the circumstances and her knowledge of the Student. At the end of the day, the Student retrieved the gun. How that occurred is not entirely clear from the evidence. The Student says that he asked Ms. Braly at the end of the day if he could get his gun. She was very busy at the time and just told him, “yes,” so he went into the office and retrieved it. He remembers Ms. Braly telling him to put it in his backpack so that no one else would see it. He did so, but then transferred it to his waistband later. An ESE co-teacher with Ms. Braly remembers Ms. Braly being completely absorbed in the preparation of an Individual Education Plan for another student that afternoon. The co-teacher had instructed students not to bother Ms. Braly and does not remember the Student or anyone else talking to Ms. Braly that afternoon. Ms. Braly does not remember being asked by the Student whether he could get his gun from the office. She simply did not even think about the gun after acquiring it that morning. To her, the gun was a toy and did not warrant much attention. Sometime the next day, she realized the gun was gone and surmised that the construction workers must have left the door open so that the Student was able to get his gun. She did not explain why she thought the Student – rather than the workers – had taken the gun from her office. At any rate, the Student retrieved his gun before he left for home. As he was exiting the school bus, the other student noticed the gun in his waistband and notified School administrators. That action is very understandable considering the school shootings across the nation in recent times. December 6, 2016 Once the school administrators got word about the gun and identified the Student, they contacted Ms. Braly. The School resource officer, Deputy Abato, went to Ms. Braly’s class and asked to talk to her. They went into her office, away from the students, and she was asked about the gun. The conversation lasted only a few moments. Deputy Abato was only concerned with whether the gun was real or not. Convinced it was not, he did not pursue the matter. Later, Ms. Braly was asked by assistant principal Feltner to write a statement concerning the incident. Her statement reiterated what had happened, i.e., the Student showed her the gun, she identified it as a toy and placed it in her office, and the Student later retrieved it. Again, how she knew that the Student retrieved the gun rather than someone else getting it is not clear. Deputy Abato’s statement from that same day mirrored Ms. Braly’s statement. Deputy Abato said that if a student pulled a gun on him that looked like the one in the picture offered into evidence, he would order the student to put the gun down. If they did not do so, he would likely shoot them. Whether the gun the Student had was like the picture is not clearly established in the record. The best evidence is that the gun could have looked like that, but even that evidence is neither clear nor convincing. The gist of the Commissioner’s argument in this case is that: IF an armed deputy saw the Student with the gun, and IF the deputy ordered him to put it down, BUT the student did not immediately comply, THEN the deputy MIGHT be inclined to fire on the student. Though completely plausible in general terms, that eventuality seems very unlikely under the facts of this case. Later Developments On December 15, 2016, Investigator Starin issued an “Investigative Summary” describing his findings after conducting a brief investigation. The report did little more than recite what other people had said. Mr. Starin concluded that the Student brought the gun to school, gave it to his teacher, and retrieved it at the end of the day. The summary provides little substantive information and makes no recommendation or assertion of wrongdoing by Ms. Braly. The investigator only talked to three people as part of his minimal investigation into the incident on December 5, 2016: Ms. Braly; Deputy Abato, who had only secondhand knowledge; and the Student. It is remarkable that Mr. Starin did not interview Ms. Braly’s co-teacher or her paraprofessional, both of whom were in the classroom that day, or the Student’s parents. The overall level of the investigation is consistent with the degree of seriousness of the events. That is, there was a slight breach of protocol, but no probability of harm to the Student or others at the School. The Board decided that the incident nonetheless warranted some discipline. The School Board notified Ms. Braly that a letter of reprimand would be issued and she would be suspended for three days without pay. Although this was a fairly low level of discipline, Ms. Braly has challenged it; the matter is currently in arbitration. Notwithstanding the discipline imposed, the Board has re-hired Ms. Braly for the 2018-2019 school year in the same position she has held for the past seven years. In fact, she has continued teaching at the School since the December 5, 2016, incident. She is an effective teacher and has not had any other disciplinary actions against her, and the School recognizes her as an effective ESE teacher. The Commissioner also seeks to discipline Ms. Braly, noting that she failed to report the incident and did not adequately secure the toy gun. Both of these allegations are true, whether they violate any particular policy or not. The Commissioner proposes a letter of reprimand, suspension of Ms. Braly’s Educator Certificate for six months, and two years of probation. However, based on the best evidence available, Ms. Braly’s conduct was both reasonable and essentially benign. If any sanction against Ms. Braly was warranted, it should be minimal at worst.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint filed against Respondent, Brooke Braly, in its entirety. DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2018. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Based upon the evidence submitted, the following facts are determined: On August 29, 1979, John A. Hall filed with the DEPARTMENT an application for a Florida teaching certificate. Official records indicate that HALL was convicted and found guilty of assault to commit murder in the second degree on November 19, 1970. He was sentenced to 13 1/2 years in the State Prison, and released on a two-year parole in 1977. (R.E. 1.) On January 4, 1980, HALL was employed as a substitute teacher at Beasley Middle School in Palatka, Florida. The only qualifications for being employed as a substitute teacher in Putnam County are that the individual be of age and hold a high school diploma. At his request, HALL's name had been placed on the Beasley Middle School list of available substitutes although it does not appear that anyone at the school was acquainted with him. (Testimony of Meredith Barker.) On January 4, 1980, Harry Willis was a 13-year-old student in the seventh grade math class where HALL was assigned as a substitute teacher. HALL saw him in the back of the room, told him to go to his seat, and pushed him into his chair. When the bell rang, Harry got up and tried to go out the door. HALL told him he wasn't going anywhere, pushed him back, and struck him in the jaw with his fist. Harry pleaded with him to let him go and, finally, pushed him out of the way as he rushed to the principal's office. It took several hours for Harry, with the support of the principal and assistant principal, to regain his composure; he was visibly shaken by the incident. He had never been a disciplinary problem at the school. (Testimony of Ivey, Barker, Lamoreaux). HALL was directed to report to the office of the school principal, Meredith Barker. There, he admitted striking Harry, but defended it was necessary to "uphold discipline." He said he wanted to apologize to Harry and return to his class. Ms. Barker, however, dismissed HALL, telling him to gather his belongings and leave the school grounds. HALL's effectiveness as a teacher at Beasley Middle School has been seriously reduced due to the notoriety of the incident and the expressed desire by parents that he not be allowed to teach there again. (Testimony of Barker.) Immediately prior to the opening of hearing, HALL informed counsel for the DEPARTMENT that the hearing could be cancelled since he was withdrawing his application for a teaching certificate; HALL then abruptly left the hearing room. However, since HALL's statement was not made in writing or on the record, Respondent asserted that the application remained in effect and requested that the hearing be conducted, as scheduled.
Conclusions Petitioner failed to establish entitlement to the requested teaching certificate; moreover, the Respondent Department established two grounds for denial of Petitioner's application: (1) his conviction of a felony, and (2) his having engaged in personal conduct which seriously reduces his effectiveness as an employee of the school board. Petitioner's application for a teaching certificate should, therefore, be DENIED.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That John A. Hall's application for a Florida teaching certificate be DENIED. DONE AND ORDERED this 20th day of November, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1980.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent has been employed by the Escambia County School Board since 1967. On or about October 3, 1973, he was suspended from his position as Principal of Scenic Heights Elementary School because criminal charges had been filed against him. Sometime during the year 1971, Respondent and Mr. Alfred F. Brown went to an auction of leased office equipment at the Holiday Inn on Highway 29. Items for bids were on display in a room and identical items were in boxes in a trailer outside. Persons in the display room were able to bid on the displayed articles or to purchase boxed items at the same price which the highest bidder had paid. Respondent did not bid at the auction, but he did purchase two Bell and Howell projectors, two Wollensak tape recorders and a Panasonic portable television set. Respondent did not notice any school markings on these items and he kept them in his home from 1971 until October of 1973. On August 9, 1973, Respondent went to Zoellner Music House to pick up Mr. James Justice, a blind piano tuner, and take him to his residence to tune an eight to ten year old Story and Clark piano located in Respondent's living room. Mr. Justice was under the impression that said piano belonged to Scenic Heights Elementary School, and that the tuning was being done because Respondent was having an open house for the teachers at his school . Mr. Justice was also asked by Respondent to give his opinion as to the condition of a ten to eighteen year old Wurlitzer piano located in Respondent's garage. Pursuant to instructions from Respondent, the secretary at Zoellner's made out the bill for the tuning to Scenic Heights School. Mr. Justice brought said bill to Respondent's residence when he tuned the piano and Respondent signed the bill on the same day. Respondent did not pay for the twenty dollar tuning bill. In March of 1973, Respondent and his wife purchased a home located approximately one block from Scenic Heights Elementary School. They moved into their new home in July, 1973. Respondent used one of the rooms in the house as an office. In mid-July of 1973, Respondent purchased from Bill Thompson's Office Equipment Center a 30-compartment cabinet, an executive chair, an executive and a secretarial plastic chair mat and a file cabinet. The statement for these items in the total amount of $328.20 was made to Scenic Heights Elementary School. It was the testimony of Respondent and his wife that Respondent told Thompson's that he intended to pay for those items used in his home office, but that he requested Thompson's to sell him the items at the same discounted price which the county schools would be charged. The bill was not paid by Respondent as of October 3, 1973--the date he was suspended by the school board. On August 11, 1973, Respondent purchased two lawn rakes and the bill in the amount of $17.02 was made to Scenic Heights School. Respondent explained that he purchased these rakes for the Boy Scouts to use when they wished to contribute something for the school. These two rakes were not found at the school. At the time Respondent and his wife moved into their new home in July of 1973, Respondent owned an old, dark Wurlitzer piano which did not match his wife's new living room furniture. Sometime in July, Respondent and his wife drove over to Santa Rosa County to the Treasure House to look at antiques. While there, Respondent met the owner, Mr. Franklin Willis, and Inquired whether Willis had or ever got any used pianos. Mr. Willis told Respondent that he did not ordinarily stock pianos because of their size, but said he would call Respondent if he ran across any. Respondent left his business card with Willis for that purpose. While Respondent was at the Treasure House, he also saw Harley Carmen Phillips, whom he knew previously from having Mr. Phillips work on his cars. Within a week or two after this, Respondent again had Phillips do some work on his car and they discussed the purchase of a fishing boat. On or about August 3, 1973, Respondent bought the boat from Phillips, who delivered it to Respondent's residence. Respondent paid for the boat by a $700 check. Phillips had trouble cashing the Respondent's Pensacola bank check at a bank in Milton. During this period of time, Phillips and Willis were in the business of transporting stolen automobiles from one state to another and selling them. At a later time they were both convicted for violations of the Dyer Act and served time in the penitentiary. Respondent was unaware of the illegal activities engaged in by Phillips and Willis until October of 1973. A week or two after his visit to the Treasure House, Respondent received a telephone at the school from Mr. Willis. Willis informed Respondent that he had a piano he thought Respondent would be interested in. Respondent said he would have to see it first. About noon, Mr. Phillips brought in Willis truck a Story and Clark piano to Respondent's residence. Respondent called Willis to negotiate the price he would pay. Respondent thought he could sell his old Wurlitzer for about $400 and he therefore offered Willis $400 for the Story and Clark. Willis agreed. Due to the trouble Phillips had had previously cashing the Respondent's check for the boat, Respondent paid for the piano in cash. Phillips helped Respondent move his old Wurlitzer into the garage. When the Story and Clark piano was being delivered, Respondent's maid, Ms. Magnolia Long, now deceased, told Respondent that she would like to have a cheap piano for her child. Respondent therefore told Willis on that same day to be "on the lookout" for a piano costing $100 or $125. On or about August 17, 1973, Willis called Respondent at school and told him he had a piano for Respondent's maid. Respondent told him to bring it to his residence around 3:00 p.m. and he and the maid would look at it. Again, Phillips was driving Willis' truck with two pianos on it. Ms. Long said she wanted the piano so Respondent called Willis to negotiate the price. They agreed upon a price of $125. While on the phone, Willis offered to sell the other Wurlitzer piano on the truck to Respondent. Respondent said he would buy it for a good price, figuring that he could sell it at the same time that he sold his old Wurlitzer. He thus bought the second piano on the truck for $225 by a check made out to cash. That piano was placed in Respondent's garage along with the originally owned Wurlitzer, and the $125 piano was taken to the home of Ms. Long. Respondent told Ms. Long that he would deduct any profit he made on the sale of the $225 piano from the cost of the $125 piano he bought for her. Respondent then placed a classified ad in the Pensacola News Journal advertising the two Wurlitzer pianos for sale. He sold them both, receiving $350 from John Boazman for the piano Respondent had paid $225. Thus, Respondent did not charge Ms. Long anything for the $125 piano. Mr. Boazman testified that Respondent had told him at the time that he was selling this piano for a friend, and went to the house to call said friend to see if he would accept $350. Sometime thereafter and at the request of Ms. Long, Respondent called Willis and inquired about obtaining another piano for Ms. Long's church. This time, Willis himself brought the piano to Respondent's residence. Respondent thought that Ms. Long's church could raise the money for the piano and, if not, Respondent could get the P.T.A. to buy it for his school. With the exception of the Wurlitzer piano originally owned by Respondent, all of the other pianos were stolen from churches outside the Pensacola area. The only evidence that Respondent had knowledge that these pianos were stolen came from Mr. Willis, who testified that Respondent told him to get the pianos from areas other than Pensacola. Respondent purchased from Willis a riding lawn mower for $140 and approximately 54 bundles of shingles. These items were also stolen by Willis. Sometime in late September of 1973, Mr. Willis was arrested and charged with receiving stolen property and possession of a firearm by a convicted felon. He also had federal charges pending against him for transporting stolen automobiles across state lines. In exchange for information on Respondent, the State granted Willis immunity on the stolen property charge. The possession of a firearm charge was dropped for insufficient evidence. The State also agreed to help Willis on the federal charge by explaining to the judge that Willis had given information regarding Respondent. Based upon information from Willis that certain reported stolen items were located in Respondent's home, a search warrant was executed on October 1, 1973. Respondent was not home at the time, and law enforcement officers seized the Wurlitzer piano located in Respondent's garage, the Story and Clark piano located in Respondent's living room and a Zenith radio having a school board property number on it. Respondent was arrested on the same date while at a conference in Santa Rosa County. Another search of Respondent's residence was conducted on or about October 19, 1973, and the following items were found: two tape recorders, two projectors, a Panasonic television set and a riding lawn mower. There was evidence that the television set had the name of Fideles School written on it in indelible ink. The shingles were found in the carport at a rental home owned by Respondent or his wife. During October 22-24, 1973, three tape recordings of conversations between Respondent and Willis were taken with the consent of Willis and without the knowledge of Respondent. Respondent's attorney had advised him to talk with Willis and to obtain any information he could from him regarding the charges against Respondent. Respondent had many conversations with Willis between October 1 and the dates of the tape recordings. At the time of the recordings, Respondent had already been told by Willis that the items sold to him had been stolen. Respondent explained that he had taken the Zenith radio from the school in order to listen to the election returns at his home. He further explained that it was always his intention to personally pay for the piano tuning and the office equipment in his home. His suspension on October 3, 1973, prevented him from doing so.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Respondent's teaching certificate be revoked for a period of six years, effective August 31, 1973. Respectfully submitted and entered this 10th day of February, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire P. 0. Box 1752 Tallahassee, Florida 32302 James A. Johnston, Esquire One North Palafox Street Pensacola, Florida 32501 Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: GLENN PORTER DISMUKES DOAH CASE NO. 76-1776 /
The Issue Whether Respondent violated sections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes (2008),1/ and Florida Administrative Code Rules 6B-1.006(3)(a) and 6B- 1.006(5)(a), and, if so, what discipline should be imposed.
Findings Of Fact Ms. Dunn holds Florida Educator's Certificate 930668, covering the area of exceptional student education, which is valid through June 30, 2012. At all times pertinent to this case, Ms. Dunn was employed as a varying exceptionalities teacher at Seminole High School in the Pinellas County School District (School District). Deborah Joseph (Ms. Joseph), the director of School Partnerships for St. Petersburg College, hired Ms. Dunn for the Spring Semester of 2009 to supervise 12 student interns, teaching in various Pinellas County elementary schools. Ms. Joseph credibly testified that she asked Ms. Dunn what Ms. Dunn would do with her current employment as a Pinellas County teacher, if offered a job. Ms. Dunn stated that she would resign as a teacher. On January 30, 2009, during school hours, Ms. Dunn left the Seminole High School campus without permission from the school administration. When the school's assistant principal, Phillip Wirth (Mr. Wirth), questioned Ms. Dunn about her whereabouts, Ms. Dunn alternately claimed that she had been given permission by another principal to leave the campus and that she had been meeting with another teacher. Neither of Ms. Dunn's explanations was supported by the assistant principal or the teacher. Consequently, on March 9, 2009, Mr. Wirth gave Ms. Dunn a written reprimand for her conduct. The evidence clearly and convincingly shows that Ms. Dunn continued her employment as a teacher at Seminole High School while at the same time working a second job for St. Petersburg College, supervising student interns working in elementary schools. Unfortunately, Ms. Dunn's work hours at Seminole High School coincided with the student interns' work hours at the elementary schools. In order to work both jobs, the record shows that Ms. Dunn was routinely untruthful in her use of sick leave time and left the Seminole High School campus during school hours without permission. For example, the record shows that she requested sick leave on February 26, 2009; March 4, 2009; March 6, 2009; and March 17, 2009. On those very same dates, Ms. Dunn signed in to supervise interns at Pinellas Central Elementary School, Sandy Lake Elementary School, Plumb Elementary School, and McMullen Booth Elementary. Again, on one date, April 23, 2009, Ms. Dunn wrote in her leave request that "family and kids touch [of] flu" and that she was signing out for a doctor's appointment beginning at 9:30 a.m. The record shows on that same day Ms. Dunn miraculously recovered from the illness and was able to eat lunch at her husband's nearby restaurant at 11:50 a.m., and then supervise an intern at Pinellas Central Elementary School at 1:33 p.m. In addition to misusing sick leave, the record clearly showed that Ms. Dunn would leave the Seminole High School campus without permission or signing out and would falsify school records. For example, the record clearly showed that, on April 16, 2009, Ms. Dunn left the school campus without permission. The record shows that she signed out for lunch at 1:00 p.m. and that she returned at 1:30 p.m. However, the records also show at 1:45 p.m., that same day, Ms. Dunn signed into High Point Elementary in order to supervise an intern. Again, on April 22, 2009, Ms. Dunn left Seminole High School without permission or signing out at 9:46 a.m. Walter Weller (Mr. Weller), the principal of Seminole High School, credibly testified that co-teachers, like Ms. Dunn, are placed in exceptional student education classes in order to assist with the students' individual education plans and to help the students succeed. Further, he credibly testified that it was important that teachers remain on campus to keep classrooms covered, and it is a safety issue for the students. James Lott (Mr. Lott), an administrator in the Office of Professional Standards for the School District, credibly testified that the School District felt that progressive discipline was not appropriate in Ms. Dunn's case, because her actions amounted to stealing time and outright falsification of records. Ms. Dunn testified that she did not dispute that she had the second job and claimed that the collective bargaining agreement allowed her to work a second job. Ms. Dunn testified that she never used time off with pay and that the School District should have used a progressive discipline against her, rather than terminating her employment. Further, Ms. Dunn claimed that she and the School District had reached an agreement concerning her claim for unemployment compensation that the School District "would not go after my certificate." Ms. Dunn showed no remorse or acknowledgement of her many untruthful statements or wrongdoing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Dunn violated sections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j) and rules 6B-1.006(3)(a) and 6B-1.006(5)(a), and suspending her educator’s certificate for two years followed by a period of three years' probation during which she shall be required, along with standard conditions utilized by the Education Practices Commission, to complete a three-hour college level course in ethics during the first year of her probation. DONE AND ENTERED this 27th day of April, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2011.
The Issue Whether Respondent should be transferred to Jan Mann Opportunity School.
Findings Of Fact Respondent, Antwan Clark (Antwan), attended the sixth and seventh grades at Carol City Middle School during the academic years 1991-1992, and 1992-1993, respectively. On October 10, 1991, Antwan was suspended outdoors for three days for fighting. On October 22, 1991, Antwan was caught running in the school hallways by the assistant principal Don DeLucas. When Antwan was told to stop, he ignored the verbal request. Antwan was given a detention for his behavior. On November 5, 1991, Antwan was referred by his sixth period teacher to Assistant Principal DeLucas for being tardy to class, refusing to sign for detention, and walking out of class without a pass. Antwan was issued a reprimand/warning for his behavior and a conference was held with school administrators and his parents. After school was dismissed on March 10, 1992, the school principal Mary Henry walked toward the Carol City Elementary School while watching the students leave the middle school grounds. Antwan, across the street in a gas station parking lot, threw rocks across the street in the direction of Ms. Henry. Police Officer Christopher Burgain observed Antwan tossing the rocks. When Antwan saw the police officer, he moved to another group of students in the parking lot. Officer Burgain got Antwan and took him to Ms. Henry who told him to take Antwan back to the school. Ms. Henry called Antwan's parents. Antwan was suspended outdoors for two days for this incident. On March 16, 1992, Antwan's teacher, Ms. Viamonte, referred him to Assistant Principal DeLucas for getting out of his seat, coming to class unprepared, responding to the teacher when she asked for his daily progress report that she "was wasting his time" and threatening to tear up the daily progress report. Antwan was given a reprimand/warning and a conference was held with his parents. On April 16, 1992, Antwan cut his sixth period and was given a three- day indoor suspension. Another conference was held with his parents. On May 11, 1992, Antwan was caught gambling at a nearby senior high school. The assistant principal for the senior high school returned Antwan to Ms. Henry at the middle school. Antwan was suspended outdoors for three days. On July 22, 1992, Antwan was referred to Assistant Principal John Strachan for disciplinary action for telling a teacher that he didn't have to do what the teacher told him to do. Antwan was suspended outdoors for one day. During the 1992-1993 school year, Antwan was placed in the Student At Risk Program (SARP), which is a program designed for students who are at risk of dropping out of school. Students participating in SARP are given more attention than the students in the mainstream population. A counselor is assigned to the SARP program. On September 21, 1992, Ms. McGraw, Antwan's fifth period teacher referred Antwan to Assistant Principal Strachan for refusing to do his work, yelling at her about a pass to the office after she told him he could not have a pass, and refusing to give her a working telephone number for his parents so that she could call them. Antwan was given an indoor suspension until school administrators could meet with his parents. Antwan failed to stay in his class area during physical education class. His teacher, Janet Evans, would have to stop her class and call Antwan back into the class area. On September 24, 1992, Antwan left class without permission, and Ms. Evans found him and some other students outside the girls' locker room gambling by flipping coins. For these actions he was given a one- day indoor suspension. On October 29, 1992, Antwan was referred to Assistant Principal Strachan for excessive tardiness to school. Antwan refused direction by Mr. Strachan and was verbal and disruptive about being given a suspension. Antwan's mother was called to come and pick up him. Antwan was given a three-day outdoor suspension. On November 20, 1992, Teacher Golditch referred Antwan to the principal for shouting across the room to the extent that the teacher had to stop the class lesson and change what the class was doing. When Antwan got to the principal's office he got out of his seat, made noises, and went to the staff's counter when he was not supposed to do so. Antwan was given a one-day outdoor suspension for these actions. On January 6, 1993, Antwan and four other students were horseplaying in the cafeteria, resulting in the breaking of a window. He received a three- day indoor suspension for this behavior. On February 11, 1993, Antwan was walking around in Ms. Schrager's class and would not take his seat even though Ms. Schrager repeatedly asked him to do so. Antwan was distracting other students in the class, and Ms. Schrager had to stop the class to correct Antwan. Ms. Schrager referred the matter to Assistant Principal Strachan. A security officer was required to remove Antwan from the classroom. When asked by Mr. Strachan why he would not take his seat when asked by Ms. Schrager, Antwan responded that he wanted to sit where he wanted to sit. For this incident, Antwan received a five-day indoor suspension. Cheryl Johnson, Antwan's math teacher, had witnessed incidents in Ms. Schrager's class when Antwan would get out of his seat, walk around the classroom, and talk to other students, thereby disrupting Ms. Schrager's class. Ms. Johnson also had problems with Antwan in her classroom. Antwan would bring his drumsticks to class and tap on his desk. He was tardy to class, failed to do his homework assignments and participated very little in class. On March 8, 1993, Antwan and other students were throwing books at each other in Ms. Schrager's classroom during class. Ms. Schrager referred the incident to Mr. Strachan, who talked with Antwan. Antwan told Mr. Strachan that a student had hit him so he threw several books in retaliation. Other students were also written up for this incident by Ms. Schrager. Antwan received a five- day outdoor suspension for this episode. On March 23, 1993, Ms. Kramer, Antwan's language arts teacher, referred him to Mr. Strachan for disciplinary action for the following behavior: walking around the classroom, talking to other students, refusing to take his seat when asked to do so by his teacher, telling his teacher he didn't have to do what she was telling him to do, and rolling his eyes while continuing to move around. He received a detention. On April 21, 1993, Ms. Schrager observed Antwan showing his friend an object which resembled the outline of a gun. She asked Antwan to come talk to her. He began to walk toward her and then walked to the other side of the room. She called a security guard to come into the classroom but they were unable to find the object. Antwan was given a ten-day outdoor suspension which was reduced to a six-day suspension after school administrators talked with Antwan's parents. On May 7, 1993, Antwan was in the hallway and was fifteen minutes late for class. Mr. Strachan saw him and told Antwan to come to him. Antwan ran away from Mr. Strachan. When Mr. Strachan caught up with him, Antwan wanted to know what he had done wrong. Antwan received two detentions for the incident. On May 13, 1993, Antwan chased a female student into Ms. Arlene Shapiro's classroom. He grabbed the front of the girl's blouse trying to get a beeper which she had underneath her blouse. The girl called for help. Antwan was not Ms. Shapiro's student and was not supposed to be in her classroom. Ms. Shapiro told Antwan to let the girl go and he replied, "No. Make me." She put her hand on his back to guide him out of the classroom, and he told her not to touch him or he would hit her. She took her hand away. He punched her on her arm and then ran down the hall. Ms. Shapiro referred the matter to Assistant Principal DeLucas. Mr. DeLucas questioned Antwan about the incident and Antwan admitted hitting the teacher. Antwan received a ten-day outdoor suspension. Antwan was not doing well academically at Carol City Middle School. His report card for the school year ending June, 1993, showed final grades of four "F's" and three "D's." While at Carol City Middle School, Antwan received numerous group and individual counseling sessions with guidance counselors. Additionally, Ms. Henry, the principal, took Antwan "under her wing" and tried to counsel him. School administrators met with Antwan and his parents to discuss the problems that Antwan was having at school. However, these efforts to correct Antwan's disruptive behavior were unsuccessful. Additionally, as Antwan's disruptive behavior continued to escalate, resulting in more frequent conferences with his parents, Mr. and Mrs. Clark's attitude seemed to change from conciliatory to hostile and defensive. Antwan was reassigned to Jan Mann Opportunity School during the summer of 1993. The classes are smaller than the traditional school class. There are counselors and a full-time psychologist on staff. The focus at Jan Mann is to try build self-esteem, teach conflict resolution, develop social skills, and correct past behavior problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered affirming the assignment of Antwan J. Clark to the Jan Mann Opportunity School. DONE AND ENTERED this 18th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 18th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5483 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 3: The first two sentences are accepted in substance. The first part of the third sentence stating that Mr. Strachan personally removed Antwan from the classroom from five to ten times is rejected as not supported by the greater weight of the evidence. The remainder of the sentence is accepted in substance. Paragraph 4: Accepted in substance. Paragraph 5: Accepted in substance. Paragraph 6: The first three sentences and the first half of the fourth sentence are rejected as subordinate to the facts actually found. The second half of the fourth sentence and the last two sentences are accepted in substance. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: The first sentence is rejected as not supported by the greater weight of the evidence. Ms. Schrager saw an object which resembled a cap gun. The second sentence is rejected as not supported by the greater weight of the evidence. The first part of the third sentence is accepted in substance. The second part of the third sentence is rejected as constituting argument. The last sentence is accepted. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 12: The first sentence is rejected as constituting argument. The remainder of the paragraph is accepted in substance. Paragraph 13: The first sentence is rejected as constituting argument except the fact that Antwan threw rocks at Ms. Henry is accepted. The remainder of the paragraph is accepted in substance. Paragraphs 14-15: Accepted in substance. Paragraph 16: The first three sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 17-19: Accepted in substance. Paragraph 18: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts actually found. Paragraph 21: The two sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as constituting argument. Paragraph 5: Accepted in substance except to the extent that gambling occurred on only one occasion. Paragraph 6: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 7: The first two sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance. Paragraph 8: Rejected as constituting argument. Paragraph 9: Rejected as not supported by the greater weight of the evidence. Respondent's Exhibit 1 shows numerous counseling sessions between Antwan and his counselor and at least one conference between Antwan's parents and a counselor. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as not supported by competent substantial evidence. Paragraphs 12-14: Rejected as subordinate to the facts actually found. Paragraph 15: The first sentence is rejected as not supported by the greater weight of the evidence. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. I find that the parents' testimony is not credible. Paragraph 16: Rejected as not supported by the greater weight of the evidence. Paragraphs 17-19: Rejected as constituting argument. Paragraph 20: Rejected as irrelevant to this proceeding. Paragraph 21: Rejected as not supported by the greater weight of the evidence. Paragraph 22: Rejected as constituting argument. Paragraph 23: The first sentence is accepted in substance as it relates to early conferences with the parents and school officials. The remainder of the paragraph is rejected as constituting argument. COPIES FURNISHED: Anne G. Telasco, Esquire First Nationwide Building 633 NE 167th Street, Suite 304 North Miami Beach, Florida 33162 Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 3211 Ponce De Leon Blvd., Suite 210 Miami, Florida 33134 Mr. Octavio J. Visiedo 1450 Northeast 2nd Avenue, #403 Miami, Florida 33312-1308 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issues to be determined are whether Respondent, Diane Velez, violated section 1012.795(1)(g) and (j), Florida Statutes (2017), and Florida Administrative Code Rule 6A-10.081(2)(a)1., and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor of the witnesses, the testimony given, and the documentary evidence received, the following Findings of Fact are made. Respondent holds Florida Educator’s Certificate 789520, covering the areas of Elementary Education, English for Speakers of Other Languages, (ESOL), and Exceptional Student Education (ESE), which is valid through June 30, 2020. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an ESE teacher at Stillwell Middle School (Stillwell) in the Duval County School District. She has been teaching for approximately 20 years, with no prior discipline. Respondent teaches in a wing at Stillwell that is referred to as the SLA Unit, which stands for Supported Level Academics. The students in the SLA Unit are cognitively delayed and have all of their classes in this self- contained unit. The SLA Unit is located in a wing at the back of the school, near the bus loop. If someone is looking down the hall from the doors closest to the rest of the school, there are female and male bathrooms for students to the left and right, respectively, closest to those doors. From those bathrooms, there are five classrooms on each side of the hall. Ms. Velez’s classroom is the third classroom on the right-hand side of the hallway. There are additional restrooms in the wing, all congregated in the area between the third and fourth classrooms on the left hand side of the hallway. At least one of those bathrooms is entered from within a classroom. Stillwell had a policy that if a student was given permission to leave the classroom, the student should not be gone for more than eight to ten minutes without the teacher calling for assistance to locate the student. Teachers could call for assistance from Ronald Messick, the lead ESE teacher; send a paraprofessional to look for the student; or call the front office or a resource officer. The eight-to-ten minute window was not a written policy, but was discussed during pre-planning meetings at the beginning of the year, as well as at faculty meetings. While attendance logs from pre-planning and faculty meetings were not introduced to establish that Respondent was present during faculty meetings or pre-planning meetings, no evidence was presented to indicate that she was absent. In addition, the 2017-2018 Faculty Handbook (Handbook) for Stillwell had more than one section that addressed supervision of students. For example, under the caption “Supervision of Students,” beginning on page 12 of the Handbook, it states:1 It is the responsibility of the school to provide supervision for students in attendance. It is the teacher’s responsibility to make sure that students in his/her charge are supervised at all times. Teachers should be aware of the legal and progressive discipline aspects of failure to provide adequate supervision. Students should always have adult supervision. Under the caption “Hall Passes,” on page 16 of the Handbook, it states: Hall passes are to be used for emergencies only. In an effort to reduce the number of students out of class during instructional time, each classroom will have either a lime/orange vest or a Colored clipboard. Students needing to leave the classroom are required to wear the vest or carry the clipboard. Please make sure students continue to sign-out when leaving/returning to your classroom so if the vest/clipboard disappears, you will know who was in possession of it last. Only one student per class may be on a hall pass at any given time. If it is necessary that a student leave your classroom to go to an Administrative Office and your vest/clipboard is already being used, security will need to escort student(s) to and from the classroom. While it is our desire that no student be in the halls during instructional time, there are absolutely NO hall passes for any reason during the first/last 30 minutes of each class and NO hall passes during 2nd block each day unless called by an Administrator. Students who are found out of class during the first/last 30 minutes of the block will have the vest or clipboard taken and given to the Assistant Principal for you to retrieve. Students who are out of class, unaccompanied by security, and do not have a vest/clipboard will be 1 All italics, underlining, and bold used in the quoted material is as it appears in the Handbook. considered skipping and appropriate consequences will be assigned. The teacher will also be held accountable if not following school procedure. Finally, under the heading “Hall and Campus Monitoring,” it states in all capitals and bold letters, “STUDENTS SHOULD NEVER WALK BY THEMSELVES.” On or about January 11, 2018, J.L. was an 11-year-old female student in the sixth grade. J.L. was assigned to Respondent’s classroom, and has an Individual Education Plan (IEP). J.L. was a student in a class containing students who functioned cognitively at the lowest level for students at Stillwell. While those who testified could not state definitively what the IQ level was for the class, it was generally around 67-70. Ms. Velez described the class as one for which there was “a need to have eyes on them.” J.L. was new to the school during the 2017-2018 school year. On August 22, 2017, Ronald Messick sent an email to J.L.’s teachers, including Respondent, stating that J.L. could not be left alone and that she would “leave with a complete stranger.” He advised that when J.L. uses the restroom, she likes to play in it, and directed that the teacher who has J.L. the last period of the day needed to make sure she used the restroom. J.L.’s mother had called Mr. Messick the first week of school with concerns that J.L. had been unsupervised in the bus pick-up area. Her mother explained her concerns to Mr. Messick regarding J.L.’s need for constant supervision. The email referenced making sure that J.L. went to the bathroom before boarding the bus simply because she would have a long ride home from school. An IEP meeting was conducted for J.L. on October 12, 2017. Mr. Messick was present as the LEA (lead educational agency) representative, along with Ms. Velez, who wrote the IEP, and three others. J.L.’s IEP states that “[s]he has Williams Syndrome which is a developmental disorder that affects many parts of her body.” The IEP also states that J.L. “is a very trusting child and will walk away with a stranger. She does not distinguish friend from stranger and this causes danger to her safety,” and that J.L. “needs increased supervision to ensure her safety.” The statement that J.L. needs increased supervision to insure her safety is included in two separate sections of her IEP. Respondent was J.L.’s case manager. As her case manager, Respondent reviews, completes entries, and inputs other appropriate data in J.L.’s IEP. She was aware of the information contained in J.L.’s IEP. On January 11, 2018, J.L. was present in Ms. Velez’s classroom during the last period of the day. At approximately 2:05, she asked for, and received, permission to go to the bathroom. Ms. Velez allowed J.L. to go by herself. No adult or other student accompanied her. Allowing J.L. to go the restroom alone was not permitted by her IEP. Further, it appears to violate the policies outlined in the Handbook, which prohibits allowing hall passes for the first 30 minutes of each class. The final class of the day began at 2:05.2 It also runs afoul of the email sent by Mr. Messick at the beginning of the school year, which specifically directed that J.L. not be left alone. After J.L. was permitted to leave the classroom, T.B., a male student in Respondent’s class, also asked to go the bathroom, and was allowed to leave the classroom. Ms. Velez did not check to see where J.L. was before letting T.B. leave the classroom. T.B. was also unaccompanied. J.L. was absent from the classroom for approximately 24 minutes. There are no credible circumstances presented at hearing by which a student should be absent from the classroom for that length of time, regardless of 2 The Administrative Complaint does not charge Respondent with violating this policy, and no discipline is recommended for apparently doing so. It is included simply to show that there were multiple guidelines in place to prohibit allowing J.L. outside of the classroom alone. their mental capacity, the policy contained in the Handbook, or any policy discussed at faculty meetings. T.B. returned to the classroom before J.L. After he entered Ms. Velez’s classroom, T.B. apparently told Ms. Velez that J.L. was in the boys’ bathroom. Ms. Velez testified that she was about to look for her when J.L. returned to the classroom. Ms. Velez testified that she noticed J.L. had “a lot of energy,” and was breathing hard and her hands were shaking. Ms. Velez asked J.L. if she had been in the boys’ bathroom, and testified at hearing that J.L. responded that she did not want to get in trouble. J.L. became upset and asked to speak with the school nurse. Ms. Velez allowed her to go to the nurse’s office, this time accompanied by an eighth grade girl. While Ms. Velez described the child who accompanied J.L. as “very responsible,” it is noted that she was also a child in this classroom of children who represented the lowest functioning students at Stillwell. Lana Austin was the school nurse at Stillwell, and her office was down the hall from Ms. Velez’s room in the SLA wing. She testified T.B. was in her office when J.L. arrived. It was not explained at hearing whether T.B. had also asked Ms. Velez to go to the nurse’s office or just how he came to be there. When she arrived at the nurse’s office, J.L. was crying and somewhat distraught, and T.B. was also getting upset. Ms. Austin tried to get J.L. to tell her what was wrong, and J.L. kept saying they were trying to get her in trouble. J.L. wanted to call her mother, and Ms. Austin let her do so, because she believed it would calm her down. A paraprofessional came into Ms. Austin’s office while J.L. was on the phone with her mother. So while the paraprofessional was in the office with the students, Ms. Austin contacted Ms. Raulerson, the principal at Stillwell, and notified her there might be a problem so that someone could look at the hallway video and find out if anything happened. Ms. Austin knew that J.L. was a student who needed to be escorted. She was always brought to the nurse’s office by an adult. On this occasion, there was no adult. Jennifer Raulerson was the principal at Stillwell during the 2017-2018 school year. She is now the executive director for middle schools in Duval County. Ms. Raulerson testified that J.L.’s father came to the school immediately after J.L.’s telephone call home, and started asking questions. Because of the nature of his questions, consistent with school protocols, Ms. Raulerson contacted Stillwell’s school resource officer (SRO), Officer Tuten, as well as Mr. Messick and Ms. Hodges, who was the dean of students, to discuss with J.L.’s father what needed to be done to investigate what actually happened.3 The following morning, Ms. Raulerson, Ms. Hodges, and Mr. Messick spoke to J.L., T.B., and M.N., another student in the hallway, about what happened the day before. Based on their answers, Ms. Raulerson gave Ms. Hodges a basic timeframe, and asked her to check the cameras to see if she saw anything that would indicate that something happened involving J.L. and T.B. Ms. Hodges testified that a person can type in a date and time on the computer and look at a specific timeframe on the video, which is what she did. Once she viewed the video and realized how long a student had been out of the classroom, she went to Ms. Raulerson and they looked at the video again. Mr. Messick also watched the video with them. Administrators at the school could access the surveillance video on their computers. The surveillance video software has dates and times from which you can retrieve a time period to watch. However, when you download 3 Although they were under subpoena, neither J.L. nor J.L.’s father appeared to testify at hearing. Any statements attributed to them cannot support a finding of fact for the truth of the matter asserted. § 120.57(1)(c), Fla. Stat. Statements by J.L. that are included in this Recommended Order are not intended to establish the truth of her statements, but rather, to explain why teachers and administrators took the actions they did in response to the situation. a section of the surveillance video, the downloaded portion does not include the timestamp. When Ms. Raulerson viewed the surveillance video on the computer screen, she could see the time stamp. While the video in evidence as Petitioner’s Exhibit 17E does not contain the time stamp, Ms. Raulerson credibly testified that it is the same video she and the others viewed to determine whether J.L. and T.B. were out of the classroom and how long they were out of the classroom. Petitioner’s Exhibit 17E is a type of evidence commonly relied upon by reasonably prudent persons in the conduct of their responsibilities as a school administrator. There is no evidence that the tape itself has been altered, edited, or tampered with in any way. The lack of a time stamp is not all that important. What is important is not so much the time of day when J.L. and T.B. were absent from Respondent’s classroom, but the length of time that they were absent.4 Ms. Velez admits that she allowed both students to leave her classroom on January 11. She simply disputes how long J.L. was gone. The surveillance video is 39 minutes and 53 seconds long. The times given in the summary of the video activity below are based on the times recorded on the video, as opposed to the time of day. A comparison of those timeframes with the timeline made by Ms. Austin and Mr. Messick shows that the timelines are essentially the same. The video shows the following: 4 Respondent claims she is prejudiced by the admission of the video, because she was not able to view it with the time-stamps to verify that it was, in fact, the video for January 11, 2018. It is noted that Respondent initiated no discovery in this case. Petitioner filed an exhibit list that included a reference to a video as early as July 24, 2020, some three weeks before hearing. Moreover, the Order of Pre-Hearing Instructions specifically requires not only a list of all exhibits to be offered at hearing, but also any objections to those exhibits and the grounds for each objection. Respondent did not note any objection in the Second Amended Joint Pre-Hearing Statement to the admission of any of the videos admitted as Petitioner’s Exhibit 17. At eight minutes, 17 seconds, J.L. leaves Ms. Velez’s classroom and heads down toward the girls’ bathroom at the end of the hall.5 She is wearing an over-sized jacket, but is not wearing a vest or carrying a clipboard. At nine minutes, 15 seconds, she comes out of the girls’ bathroom and speaks to an adult in the hallway, and then heads back to the bathroom. At the 13-minute, 4-second mark, T.B. walks down the hall from Ms. Velez’s classroom and, curiously, walks over toward the girls’ bathroom before going over to the boys’ bathroom. At 14 minutes, 39 seconds, T.B. comes out of the boys’ bathroom and walks over toward the girls’ bathroom a second time. After approximately ten seconds, he exits the area near the girls’ bathroom and heads back to the boys’ bathroom. At approximately 15 minutes into the video, and almost seven minutes after leaving Ms. Velez’s classroom, J.L. comes out of the girls’ bathroom, peers down the hallway in both directions, and goes over to the boys’ bathroom. At this point, she is still wearing her jacket. At approximately 18 minutes, 16 seconds into the video, a second male student, later identified as M.N., walks down the hall. M.N. is not in Ms. Velez’s class during this class period. He also goes toward the girls’ bathroom first, and then stands in the hallway outside the boys’ bathroom. After approximately 30 seconds, he walks down the hall and back, before going toward the boys’ bathroom and out of sight at 19 minutes and 40 seconds. At 20 minutes, 16 seconds into the video, other students start lining up in the hallway. Approximately four classes line up in the hallway, with no one coming out of the boys’ bathroom. At approximately 29 minutes, 5 Respondent established at hearing that one cannot actually see students enter and exit the bathrooms from the surveillance video. The sight line for the video stops just short of the doors to the two bathrooms. However, the only other alternative to going in the bathrooms would be for students to exit the SLA unit through the doors near the bathrooms. If that were the case, J.L. would be subject to harm as well, given that the doors lead to the rest of the school and the bus loading zone. 26 seconds, girls in line outside the bathroom are seen looking toward the boys’ bathroom and appear to be laughing. J.L. comes out of the boys’ bathroom at the 29-minute, 53-second mark, followed by T.B. J.L. is not wearing her jacket, and her belt is undone. T.B. throws J.L.’s jacket on the floor and walks down the hallway with his hands up in the air. Both J.L. and T.B. walk down the hall toward Ms. Velez’s room, and then turn around and return to their respective bathrooms. At the 31-minute, 53-second mark, J.L. comes out of the bathroom with her shirt tucked in and her belt fastened. She is still not wearing her jacket, a small portion of which can be seen on the floor of the hallway. She does not pick it up, but stays in the hallway until T.B. comes out of the bathroom, then both go down the hall toward Ms. Velez’s class, with T.B. running and J.L. walking. J.L. re-enters Ms. Velez’s classroom at 32 minutes, 21 seconds into the video. Finally, at 32 minutes, 30 seconds, M.N. comes out of the boys’ room, picks up J.L.’s jacket and heads down the hall. Based on the surveillance video, J.L.was out of the classroom for slightly over 24 minutes. T.B. was absent from the classroom for over 18 minutes. Ms. Velez is never seen in the hallway. There is no admissible evidence to demonstrate what actually occurred during the time that J.L. appeared to be in the boys’ restroom. Regardless of what actually happened, no female student should be in the boys’ bathroom, and a female student already identified as needing increased supervision should not be allowed to be unsupervised outside of her classroom at all, much less for such a lengthy period of time. The potential for harm was more than foreseeable, it was inevitable. Ms. Velez did not go in the hallway or send Ms. Kirkland, the paraprofessional present in her classroom that day, to check on J.L. or T.B. She did not call the SRO, the front office, or Mr. Messick to ask for assistance in locating either child. She also did not contact Ms. Raulerson, Mr. Messick, or J.L.’s parents after T.B. told her that J.L. had been in the boys’ restroom. She testified that, while J.L. certainly should not be in the boys’ restroom, there was nothing that led her to believe or suspect that there could be neglect or abuse. Ms. Velez acknowledged that she allowed J.L. to go to the bathroom unsupervised, and stated that she was training J.L. to go to the bathroom by herself. If that was the case, doing so was directly contrary to Mr. Messick’s email of August 22, 2017, and to the requirements of J.L.’s IEP. Ms. Velez had approximately 18 students in her classroom. Her focus, according to her, was on providing instruction to the students in her class. She denied losing track of time, but stated that once the students were engaged, she took her time with the lesson, which “led me to not noticing what time it was as normally as I should,” and she “possibly got distracted.” She did not take any responsibility for her actions. Instead, she blamed the situation on the fact that, at the time of the incident, she did not have a full- time paraprofessional assigned to her classroom. While the paraprofessional position for her class was not filled at the time of this incident, Ms. Kirkland traveled with the class and was present in Ms. Velez’s class when J.L. was allowed to leave the classroom. Ms. Velez also appeared to minimize the importance of providing increased supervision for J.L., and claimed that she was training her to go to the bathroom by herself. Yet, she described the class as a whole as one that needed “eyes on them” at all times. Further, J.L.’s parents clearly felt the increased supervision was crucial, and called early in the school year to make sure that staff knew J.L. was not to be left alone. Ms. Velez gave no explanation as to why she would “train” J.L. to leave the room unsupervised (and one wonders what training could be taking place, if the child is allowed to go alone outside the classroom), when she knew that to do so was clearly contrary to J.L.’s parents’ wishes. On January 22, 2018, the Duval County School District (the District) began an investigation into the incident concerning J.L. that occurred on January 11, 2018. During the District investigation, Ms. Raulerson notified the Department of Children and Families (DCF) and law enforcement of the incident. Both entities conducted investigations. The results of those investigations are not part of this record. On March 16, 2018, the District reprimanded Respondent and suspended her for 30 days for failing to provide adequate supervision of her students. The School Board’s approval of the suspension and the basis for it was reported in the press.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rule 6A- 10.081(2)(a)1. It is further recommended that Respondent pay a fine of $750, and that her certificate be suspended for a period of one year, followed by two years of probation, with terms and conditions to be determined by the Education Practices Commission. DONE AND ENTERED this 29th day of October, 2020, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Stephanie Marisa Schaap, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 (eServed) Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Respondent, Lucille Stuart Foster (Respondent), violated provisions of Florida law governing teachers and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, as the Commissioner of Education, is responsible to investigate and prosecute complaints against persons who hold a Florida Educational Certificate, and are alleged to have violated provisions of law related to the education profession in the State of Florida. See §§ 1012.79 and 1012.795, Fla. Stat. (2010). Respondent holds a teaching certificate in Florida, Certificate Number 383630, that covers the areas of reading, mathematics, and music. Respondent's certificate is valid through June 30, 2015. At all times material to the allegations of this case, Respondent was employed by the Collier County School District (District) and worked as a music teacher at the elementary school level. Prior to the allegations encompassed within this case, Respondent had not been disciplined by the District. Respondent was employed by the District from 1976 through the 2009-2010 school year. With the exception of one year, Respondent's performance evaluations have been acceptable until the allegations of this matter arose. Prior to the 2008-2009 school year, Respondent was assigned to one school on a full-time basis. Beginning in 2008, Respondent was assigned to be an "itinerant" teacher. As such, Respondent was directed to teach at three different elementary schools and to move among the schools during the school week, as her schedule dictated. The three schools were Corkscrew Elementary, Golden Terrace Elementary, and Big Cypress Elementary. An administrator at each of the schools was assigned supervision and evaluation duties for Respondent's job performance. All of the administrators required that Respondent prepare and submit lesson plans for review. All of the administrators observed Respondent in the class setting. All of the administrators found deficiencies in Respondent's job performance. At the conclusion of the 2008-2009 school year, the District returned Respondent from her continuing contract status to an annual contract. More critical to this case, however, is the fact that the District put Respondent on a prescriptive plan for improvement so that she could address the deficiencies in her work performance. The District offered support services to encourage Respondent to make the improvements needed. Respondent did not acknowledge, and does not acknowledge, that her work performance during the 2008-2009 school year was unacceptable. Respondent maintained that one of the administrators harassed her and then wrongly sought to discipline her. When the 2009-2010 school year began, Respondent was directed to complete remediation so that the problem areas of her job performance could improve. Specifically, Respondent was to prepare and timely submit appropriate lesson plans. She was to follow the plans in the teaching of her students. She was to maintain classroom decorum so that students would remain on task and not disrupt or interfere with the learning experience. In recognition of the difficulty of teaching at three different schools, Respondent was allowed to prepare one lesson plan that could be implemented at all three locations. It was expected that music students would prepare for and publicly perform at designated school functions. In the past, Respondent successfully led her students in many performances that demonstrated an appreciation for music and musical achievement. During the 2009-2010 school year, however, Respondent's ability to focus on the improvements sought by her administrators diminished. As her frustration level grew, her civility toward one of the administrators waned. Respondent was convinced that efforts to assist her were not genuine. Principal Lettiere, Respondent's supervisor at Big Cypress Elementary School, identified the following deficiencies in Respondent's job performance: Failure to have lesson plans; Failure to timely submit adequate lesson plans; Insufficient delivery of lesson plans to the class; Failure to tie the lesson plan to the lesson taught; Failure to timely report for work; and Failure to provide an accommodation for a student with disabilities during the music lesson. Principal Lonneman, Respondent's supervisor at Corkscrew Elementary School, identified the following deficiencies in Respondent's job performance: Failure to keep students engaged during class time; Failure to include musical instruments into the music curriculum; Failure to timely prepare lesson plans; and Failure to incorporate the music curriculum within lesson plans. Principal Glennon, Respondent's supervisor at Golden Terrace Elementary School, observed Respondent multiple times during the 2008-2009 school year. Principal Glennon documented the following deficiencies in Respondent's job performance: Failure to keep students on task; Lack of classroom management skills; Failure to have a structured lesson; and Failure to follow adequate lessons. Principal Glennon tried to meet with Respondent to go over the deficiencies, but Respondent did not timely comply with his requests for a conference. Instead, Respondent has steadfastly and resolutely claimed her teaching skills to be adequate, if not superior. In February 2009, Principal Glennon cited Respondent for failure to report to work; failure to provide a classroom management plan, as he had requested; and failure to redirect students who engaged in off-task behaviors. In March 2009, Respondent was advised that she would be returned to annual contract status at the end of the school year. Respondent received a contract for the 2009-2010 school year, but began the year with a plan for her improvement in the classroom. Respondent was afforded 90 days within which to improve her performance. Mr. Glennon hoped that by outlining the areas that needed to be improved, Respondent would soldier on and make the necessary corrections. When Respondent failed to address the concerns outlined by her improvement plan, her school administrators, with the consent and authorization of the District superintendent, removed her from the schools. Respondent was placed in the status of "pool" teacher and completed the 2009- 2010 school year in that assignment with benefits and salary. At the end of the year, Respondent's contract was not renewed. Respondent is a talented musician who played with a local symphony for many years. Early in her career, Respondent was effective as a music teacher. Respondent was praised by former administrators who worked with her during those times. None of the former administrators observed Respondent during the periods of time critical to this case. It is unknown whether during those earlier years the requirements regarding lesson plans, classroom management, and curriculum were the same or similar to the requirements of the 2008-2009 and 2009-2010 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent's teaching certificate be suspended for a period up to one year during which time Respondent be required to successfully complete continuing education courses to address Respondent's deficiencies in classroom management, lesson plans, and professionalism. DONE AND ENTERED this 30th day of November, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2012. COPIES FURNISHED: Peter James Caldwell, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew K. Foster, Esquire Brooks, LeBoeuf, Bennett, Foster and Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent is an employer as that term is used in Section 23.167, Florida Statutes. By memo dated November 6, 1981, all principals in Pinellas County were advised by Seymour Brown, Director, Secondary Placement and Substitute Teachers, that Thomas A. Rateau, Petitioner, was eligible to substitute in their schools as a teacher in business education and mathematics for grades 7 through 12. That substitute teacher offer was conditioned upon Rateau passing the November 11, 1981, physical examination. Rateau passed this examination. The principal at Dunedin Senior High School needed a teacher in business education to complete the semester ending January 25, 1982. He reviewed the applications on file in the office of Dr. Seymour Brown, interviewed Petitioner, and selected Petitioner to fill the vacancy at his school. The principal notified Dr. Brown of his choice and Petitioner was offered a contract for a teaching position in the Pinellas County school system for the 1981-82 school year for a period of 32 duty days beginning November 30, 1981, and ending January 25, 1982, which Petitioner accepted (Exhibit 2). This offer and acceptance were conditioned upon acceptable certification by licensed medical practitioner on a medical information form provided by the Personnel Department (Exhibit 2). At his option Petitioner took the medical information form to his attending physician, Dr. Guiterrez, who, on November 24, 1981, conducted a complete physical examination. Dr. Guiterrez summarized Petitioner's condition as "physically healthy." Following this entry the box checked provided: "Has permanent physical limitations acceptable for this job. Re-examine before transfer to another position." Dr. Guiterrez also completed the School Board form (Exhibit 6) in which he wrote or checked the following: Diagnosis: Status Post-spinal Surgery Prognosis: Fair Medication Prescribed: Bufferin Dosage: Restrictions, If Any: No heavy lifting Eligible To Work: Yes Under My Care: Yes The physical examination conducted by Dr. Guiterrez was forwarded' to the School Board examining physician, Dr. Joseph A. Baird. Dr. Baird had Petitioner complete the medical information part of Exhibit 12. Therein Petitioner acknowledged that he had had back surgery, that he has a current medical problem with his back, that he has received worker's compensation, and that he has physical limitations. In describing his worker's compensation claim (Exhibit 12), Petitioner stated that while employed by the U.S. Postal Service an industrial accident caused by a failure of equipment exacerbated an unknown, pre-existing condition which was determined to be a tumor growing in his spinal column. Surgery subsequently removed that part of the tumor that had grown out of the bottom of his spine. He was terminated by the postal service because he could no longer perform the continually heavy lifting required by his postal service job. Dr. Baird questioned Petitioner about his back problems and learned that if the tumor again grows out of his spine Petitioner may need additional surgery. Dr. Baird observed the scar on Petitioner's back, had Petitioner bend at the waist and checked his knee-jerk reflexes. This examination took less than five minutes. Dr. Baird then contacted Patricia Diskey, Employment Coordinator for the School Board, and discussed with her Petitioner's condition and asked her to provide him with the physical requirements for a teacher of business education in a Pinellas County high school. Following this discussion, Dr. Baird submitted the form letter to the office of Dr. Brown stating simply that Petitioner did not meet the physical requirements necessary for employment in the Instructional Department of the Pinellas County School Board (Exhibit 11). At the hearing Patricia Diskey testified that the job requirements for a high school business education teacher included the ability to do frequent and heavy lifting of typewriters, computer components, and other office equipment used to teach business education; to be able to bend down to clearly see the data processing screen used by the students; to move numerous books from classroom to classroom; to transport equipment to the school's service center several blocks distant, take the equipment into the center for repairs and return with replacement equipment; and to stand for long periods of time. She also testified that business education teachers would be required to lift and move equipment around the classroom weighing up to 100 pounds. However, no evidence was presented that a demonstration of such physical ability was ever required of a business education teacher in the Pinellas County school system. Dr. Baird never includes a muscle-tone test in the examinations he conducts for teacher applicants. Petitioner was not requested to demonstrate his capability or inability to lift equipment used in the classroom. Physically, Petitioner is a well-developed white male. Exhibit 12 shows him 5 feet eleven and one-half inches in height and weight of 225 pounds. He is not obese and gives the appearance of one having greater than average strength normally found in men his age. Respondent presented evidence that it has employed disabled persons, and a list of those handicapped persons employed in Respondent's secondary schools was presented as Exhibit 9. It is noted that the majority of those handicapped employees listed have permanent type disabilities such as blind in one eye, deformed arm, legally blind, uses crutches, part of limb missing, speech impediment, hearing problems, limps, crippled leg, etc. Respondent also presented evidence that persons suffering back problems were hired by the School Board (Exhibit 10), one of whom was a paraplegic confined to a wheelchair, but produced no evidence that it had employed a teacher so handicapped.
