The Issue Whether Respondent's professional services contract with the Petitioner should be terminated for just cause as alleged in the Notice of Specific Charges.
Findings Of Fact Respondent has been employed by Petitioner as a teacher since 1988. At the times pertinent to this proceeding, Respondent held a professional services contract with Petitioner. After he graduated from college in 1970, Respondent played professional football for the San Diego Chargers for one year. Thereafter, he taught and coached in Polk County, Florida, at Albany State College in Georgia, and at Florida A & M University. Miami Edison Senior High School (Miami Edison), Norland Middle School (Norland), and Riviera Middle School (Riviera), are all public schools in Dade County, Florida. In 1988, Craig Sturgeon, the principal of Miami Edison, hired Respondent as a teacher and the head football coach at Miami Edison. SUMMER SCHOOL 1988 During the summer of 1988, Respondent was assigned to teach a weight training class. Among the students in Respondent's weight training class were two females, Nelta Georges and Latoya Stewart. During the summer of 1988, Nelta and Latoya usually went to Respondent's office to watch television after class. Respondent usually kept snacks in his office and had a refrigerator in which he kept milk. Latoya asked Respondent if she could have some milk to drink with the cookies she had taken from the table. In response to this question, Respondent put his leg up on a table, leaned back in his chair, licked his lips, and told Latoya that he had some "Elsie's milk" that she could have. This was a sexually suggestive statement that was inappropriate for a teacher to make to a student. After Respondent made this inappropriate comment to Latoya, he gave Nelta permission to leave school to go to a store across the street from Miami Edison. Respondent violated school policy by allowing the student to leave school campus for that purpose while school was in session. Mr. Sturgeon received complaints that Respondent had made sexually inappropriate comments to female students, including the incident involving Nelta and Latoya, and that he was granting students permission to leave school. An investigation by the special investigation unit of the Dade County Public Schools Police Department, identified as S.I.U. Case #s-0854, confirmed the complaints pertaining to the sexually inappropriate comments. Respondent admitted giving students permission to leave campus. On November 9, 1988, a conference for the record was held involving Mr. Sturgeon, Respondent, and Respondent's union representative. Respondent was reprimanded and rated as unacceptable on Category VII (Professional Responsibilities) of the Teacher Assessment and Development System (TADS) on the following grounds: Substantiated Findings S.I.U. Case #s-0854. Conduct Unbecoming a School Board Employee. Permitting students to leave the school campus to go to the store while school was in session. SCHOOL YEAR 1991-92 Respondent taught a wood-shop class at Norland Middle School during a portion of the 1991-92 school year. Danielle Williams is a sixteen year old female who was a student in Respondent's wood-shop class at Norland during the 1991-92 school year. On one occasion, Respondent asked Danielle to come to his lectern and to show him her work. Danielle testified that when she did as she was requested, Respondent put his arm around her shoulder so that he touched her right breast with his hand. Danielle testified that she pushed Respondent's hand away and told him "you don't have to touch me to talk to me." This incident occurred in front of the other students in Respondent's class. Respondent admitted that he put his arm around the student, but asserted that it was a friendly gesture like he used to do with players when he coached. He denied touching the student's breast. The Special Investigation Unit of the school board's police department investigated the incident, but was unable to substantiate that Respondent touched Danielle's breast. The conflict in the evidence is resolved by finding that Respondent inappropriately draped his arm around Danielle's shoulders, but that the evidence is insufficient to establish that he touched Danielle's breast. 1/ Respondent made inappropriate comments to Danielle, asking if she had a father and stating that he wanted to "get with" her mother. Danielle also testified that Respondent stared at her inappropriately as if he could rape her with his eyes. Jonelle Hogan, another female student in Respondent's wood-shop class, testified that Respondent also stared at her in a manner she believed to be inappropriate and that he liked to touch students. John Gilbert was the principal of Norland during the time Respondent taught at that school. In September 1991, Mr. Gilbert received complaints from the parents of two students that Respondent had made sexually suggestive remarks to female students and that he inappropriately stared at and improperly touched students. Respondent was transferred to another school as a result of these complaints. 1993-94 School Year Respondent taught a wood-shop class at Riviera Middle School for a portion of the 1993-94 school year. George Gomez is a fourteen year old male who was a student in Respondent's wood-shop class at Riviera. On October 12, 1993, George was playing with another student by poking the other student in the rear with a wooden spoon. Respondent told George to stop what he was doing, but George did not obey that instruction. Respondent approached George, grabbed him by the shoulder, and told the other student to hit George. When the other student refused to hit George, Respondent punched George in the chest with his closed fist and told him to sit down. The punch hurt George, and he started crying. George was also embarrassed by this incident because the other students in the class were laughing at him. After George sat down on a stool, he got up and started to leave the classroom. Respondent grabbed George by the back of his pants, picked him off the ground, and pulled him back into the classroom. While George was being held in the air by the Respondent, George picked up a plastic garbage can and tried to hit Respondent with it. When Respondent released him, George fell on the other plastic garbage cans. George got up and Respondent told him to sit down and asked why he was crying. George said he was crying because the punch had hurt him. George picked up a baseball bat and said if Respondent wanted to see how much it hurt that he should let George hit him with the bat. Respondent told George that he would break his neck if George hit him with the bat. George tossed the bat aside, but Respondent picked up another bat and encouraged George to hit him. Respondent then picked up a rasp and asked George if he wanted to stab him. George replied "why don't you get me a gun?" Respondent asked George whether he wanted a .22 caliber pistol or a shotgun and said he would get it from his car. George believed Respondent was serious when he made the statement about the gun and he stayed silent in response to Respondent's question. At his request, George was transferred out of Respondent's class following this incident. Some of the students in the Respondent's wood-shop class were special education students. Following the incident between George and the Respondent, these special education students returned to the class of their regular teacher, Faith Feurst. These students were scared and did not want to go back to Respondent's classroom. This incident impaired Respondent's effectiveness as a teacher at Riviera. At various times while at Riviera Respondent used profane language in front of students in the classroom, using such terms as "fuck," "bitch," and "ass." At the times pertinent to this proceeding, Dr. Pauline A. Young was an assistant principal at Riviera. On October 12, 1993, Dr. Young was notified of the incident involving George. On December 6, 1993, a Conference for the Record (CFR) was held with the Respondent to discuss his employment history and the possibility of further disciplinary action against him. Respondent was reprimanded for the incident and returned to the classroom pending further review of his employment. A written summary of the CFR, dated January 10, 1994, advised Respondent that the School Board was considering whether it should terminate his professional services contract for cause. On January 4, 1994, Officer Horace Morgan, a police officer with the City of Miami Police Department was on duty and engaged in narcotics surveillance. Officer Morgan observed Respondent purchase an object Officer Morgan believed to be a plastic bag of cocaine from an unidentified individual. Officer Morgan instructed two other police officers, one of whom was Jose Moure, to arrest Respondent. Officer Moure inspected the inside of Respondent's car at the time of the arrest and found a clear plastic bag with a short red straw. There was a white powder in the bag. The contents of this bag was sent by Officer Moure to a lab for analysis. There was no evidence to establish the chain of custody or the manner in which the laboratory tests were conducted. The results of the testing were reflected by a lab report. The report Officer Moure received following the testing reflected that the white powder in the plastic bag was cocaine. This lab report is hearsay that cannot be the basis of a finding of fact. See, Section 120.58(1)(a), Florida Statutes. Petitioner failed to establish by competent, substantial evidence, that the plastic bag taken from Respondent's vehicle contained cocaine. Also discovered in Respondent's car at the time of the arrest was a military hand grenade training simulator referred to as a M116A. Officer D. C. Diaz, an investigative bomb technician with the City of Miami Police Department's Special Investigation Section, was summoned to examine the M116A. The device was "live" and would have exploded if detonated. This device had the potential to cause bodily harm and property damage. It is a third degree felony for an unauthorized individual to have possession of a device such as a M116A. Respondent had no authorization to be in possession of this device. Although it is illegal to sell such a device in the State of Florida, Respondent's testimony that he bought the device in South Carolina is found to be credible. Criminal charges were filed against Respondent for possession of cocaine and possession of a destructive device. On January 18, 1994, the Petitioner learned of the criminal charges against Respondent and removed him from the classroom. On May 2, 1994, Respondent entered a plea of nolo contendre to these charges. The presiding judge accepted this plea, withheld adjudication of guilt, and sentenced Respondent to time served. On February 16, 1994, the School Board took action to terminate Respondent's professional services contract for just cause, immorality, misconduct in office, and conviction of a crime involving moral turpitude, upon such conviction. The Petitioner subsequently filed a Notice of Specific Charges in this proceeding that alleged it has just cause to terminate Respondent's employment on the grounds of immorality and misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and the conclusions of law contained herein, that upholds the suspension of Respondent's employment, and that terminates his professional services contract. DONE AND ENTERED this 2nd day of February 1995 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February 1995.
The Issue This is a challenge to action of the Gilchrist County School Board in its act of abolishing the Petitioner's employment position with the School Board as Occupational Specialist. In particular, Petitioner alleges that this action constituted rule within the meaning of Section 120.-52(15), Florida Statutes. Further, it is alleged that that rule activity did not comply with the procedural requirements set forth in Section 120.54, Florida Statutes. Finally, Petitioner claims that the rule enactment or activity was arbitrary and capricious.
Findings Of Fact The parties have agreed by stipulation in the course of this hearing that the entire record, to include testimony and exhibits presented in the companion case, Hazel Bowdoin v. School Board of Gilchrist County, Florida, D.O.A.H. Case No. 82-1375, becomes part of the record in this proceeding and may be utilized by the Hearing Officer in arriving at the decision in this cause. The parties have also stipulated to the standing of this Petitioner to challenge the alleged activity in the abolishment of the Occupational Specialist position as being a rule. The parties are satisfied on the subject of the notice of hearing as established in a stipulation entered into at hearing. In a concluding stipulation, the parties agree that the decision to abolish the position of Occupational Specialist held by the Petitioner was not a decision which complied with the formal rule-making procedures set forth in Section 120.54 Florida Statutes. Petitioner is the holder of a Rank III Teaching Certificate, issued by the State of Florida. The certification recognizes her as an Occupational Specialist. On July 8, 1974, she was granted a continuing contract of employment with the Gilchrist County School Board as an Occupational Specialist in the Trenton and Bell schools within the Gilchrist County School District. A copy of that contract may be found as Respondent's Exhibit No. 7, admitted into evidence. The contract by its terms states at Paragraph 9, "This contract shall not operate to prevent discontinuance of a position as provided by law." It is the discontinuance or abolishment of the position of Occupational Specialist held by the Petitioner that occasioned the formal hearing in this cause. Since being granted the position of Occupational Specialist in permanent status, Petitioner has performed those duties described in the job description, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. Those functions include career planning for students, considering their personal problems, preparing them for assessment tests and the execution of job application forms. In the school year 1981-82, Petitioner worked three- fifths of her time in Trenton High School and two-fifths in Bell High School. In her capacity, Respondent considered her to be acting as the equivalent of a guidance counselor. She has never been certified by the State of Florida as a guidance counselor. Around the beginning of April 1982, the Superintendent of Schools in Gilchrist County, Ray Thomas, decided that the position of Occupational Specialist held by the Petitioner should be abolished. At that time, and at all relevant times, this position of Occupational Specialist was the only position of its type in the Gilchrist County School System. The basis for the abolition or discontinuation of the position concerned anticipated revenue shortfalls or budget inadequacy for the upcoming school year 1982-83, pursuant to information from persons within the State of Florida responsible for educational funding. In arriving at his decision, Thomas sought comment from Robert Ervin, the principal at Bell High School and James Surrency, the principal at Trenton High School. Ervin was asked if the guidance responsibility at Bell High School could best be achieved by the provision of a full-time guidance counselor. Thomas gave the impression to Surrency that the basis for requesting the discontinuation of the position of Occupational Specialist pertained to funding. No particulars were revealed to the principals on the question of the financial position of the school system facing the advent of the 1982-83 school year. Respondent's Exhibits Nos. 1 and 2, admitted into evidence, are the comments of the Trenton and Bell principals on the subject of the abolition of the position of Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist position based upon his belief that a full-time guidance counselor would be provided to his school as contrasted to the half-time guidance counselor and two-fifths time work of the Petitioner during the school year 1981-82. In his remarks, Surrency indicates reconciliation to the idea of losing the three-fifths time that the Petitioner was spending at Trenton High; however, he indicates his preference to have the Occupational Specialist position remain if it could be afforded. In the school year 1981-82, Trenton had a full-time guidance counselor in addition to the work being done by the Petitioner. After receiving the comments of the principals and in keeping with his choice, the superintendent of schools wrote to the Petitioner on April 21, 1982, advising her that he would recommend to the School Board, effective the beginning of the school year 1982-83, that the position of Occupational Specialist not be filled and offering Bowdoin a leave of absence without pay for one year. A copy of this correspondence may be found as Respondent's Exhibit No. 3. On April 22, 1982, the recommendation of the Superintendent was presented to the School Board and in the course of that meeting, the Petitioner was represented by counsel. Action on this recommendation by the superintendent was tabled. On May 3, 1982, the Superintendent wrote the School Board and modified his position on the question of Occupational Specialist from one recommending that the position of Occupational Specialist not be filled in 1982- 83 school year to one of recommending the discontinuance of the position for economic and curriculum reasons, stating that the duties of that position could be assumed or transferred to the guidance counselor at each school in Gilchrist County. A copy of this correspondence may be found as Respondent's Exhibit No. On May 4, 1982, consideration was given to the suggestion of total abolishment of the position of Occupational Specialist and the School Board in a 3 to 2 vote determined to abolish the position of Occupational Specialist. This action was in keeping with Chapter 230, Florida Statutes. Prior to the vote, no specific information was imparted by the Superintendent or other school officials as to the financial benefits to be derived from the action or effect of the abolishment in terms of curriculum changes. The school board simply accepted the Superintendent's word that it was necessary to abolish the position for financial reasons. (The Superintendent, since taking office in 1981, has abolished other positions within the-Gilchrist County School System, such as assistant principal at Trenton High School, general supervisor of instruction, food services supervisor, brick and block masonry teacher, librarian at Trenton High School and has left vacant teachers's aide positions.) At the May 4, 1982, meeting, Petitioner asked for and the Board agreed to afford a formal hearing to the Petitioner to challenge the abolishment of the Occupational Specialist position. Again, on June 1, 1982, a request was made in the Petitioner's behalf to have a grievance hearing before the board concerning the board's decision to abolish the job and it was determined that that grievance hearing should be held on July 6, 1982. On July 6, 1982, the Board requested the Superintendent to prepare a list of vacancies which Mrs. Bowdoin might be certified for, the salary schedules related to those positions, a list of programs offered other than K-12 and the state certification requirements for those positions and the name of those persons filling the positions at the time. On July 20, 1982, the Board considered the level III grievance of the Petitioner in the presence of the Petitioner's attorney on the topic of an alternative placement of the Petitioner and the salary associated with that placement. On August 3, 1982, the Board entered a written resolution of decision pertaining to the level III grievance pertaining to the Petitioner, a copy of that resolution being found as Respondent's Exhibit No. 5. In this resolution, the School Board properly identified that the Petitioner could not be placed as a guidance counselor in that she did not hold a master's degree required for such position. In lieu, of the position of Occupational Specialist which had been abolished by the School Board on May 4, 1982, by its August resolution, the Board offered the position of Teacher's Aide at Trenton Elementary School, with a substantial reduction in salary from approximately $15,000 a year to approximately $6,300 a year. This position of Teacher's Aide was reserved until August 16, 1982. Petitioner did not elect to accept the position of Teacher's Aide and has been unemployed since August 1982. In the course of an August 11, 1982 meeting, the Superintendent reported to the Board that the Petitioner had "responded" at a level IV grievance procedure. On August 31, 1982, the Board was asked to consider litigation which had been presented to it by the Superintendent. On September 2, 1982, in an Executive Board session of the School Board of Gilchrist County, discussion was made of certain civil litigation brought by Petitioner against the Board. On October 5, 1982, an update was given to the Board concerning that case of the Petitioner versus the Board. Another update was made on October 5, 1982. On December 7, 1982, the Board was made aware of the fact that the case was to be considered in arbitration. (Various minutes of School Board meetings as described in this paragraph are more completely set forth in Respondent's Exhibit No. 8, admitted into evidence.) The matter was presented before the American Arbitration Association and the Arbitrator in his report absolved the Board of any violation related to the job abolition. The copy of that report may be found as Respondent's Exhibit No. 6, admitted into evidence. The date of the report is July 21, 1983. As stated before, the Bell High School in 1982-83, employed a full-time guidance counselor in substitution for an approximately half-time guidance and two-fifths time from Bowdoin the prior year. The Trenton school went from a 1981-82 school year in which a full-time counselor and three-fifths of Bowdoin's time was devoted to counseling activities to a full-time counselor, an aide working two-thirds time mostly in a clerical capacity and some assistance by a vocational teacher in school year 1982-83. Had Bowdoin returned as an aide to the Trenton school in 1982-83, she would have been used in the guidance department in the same role as she had been given as Occupational Specialist. There was a revenue surplus left at the end of the 1982-83 school year and it was sufficient to have allowed the funding of the position of Occupational Specialist for the 1982-83 school year; however, that surplus was less than the 1981-82 school year by approximately $65,000. This funding difference in the face of providing essentially the same services in the school system, pointed out the more difficult economic circumstance that Thomas had made mention of in his initial decision to abolish the position of Occupational Specialist. In the 1982-83 Schools year, employees in the school system received salary increases. At the conclusion of the 1981-82 school year, there were approximately 900 students at the Trenton school which included grades K-12. According to Petitioner's Exhibit No. 11, excerpts from the standards of the Commission on Secondary Schools of the Southern Association of Colleges and Schools, schools of a population of 750-999 need two guidance professionals. Therefore, the reduction of one and three-fifths counselors in 1981-82 to one counselor and something less than three-fifths in 1982-83 was contrary to the statement of standards. This excerpt is at 4.10.0, Figure 1, minimum personnel requirements. Respondent replies to that assertion through its Exhibit No. 9, which are excerpts of the standards for unit schools by the Commission on Secondary Schools and Commission on Elementary Schools of the Southern Association of Colleges and Schools. At Page 9, 9.16.0-9.16.2, Respondent argues that one guidance counselor suffices for any school with a membership of 500 or more students up to 999 students. Without determining which of these guidelines related to accreditation by the Southern Association of Colleges and Schools is correct, it suffices to say that the changes that were made by the School Board in abolishing the position of Occupational Specialist as it might affect accreditation were made in good faith in that it can arguably be said that Trenton school, having 900 students, only needed one guidance counselor to meet conditions of accreditation. There were no curriculum changes made in the 1982-83 school year as a result of abolishing the Occupational Specialist position. There were curriculum changes but they were not the result of any influence provided by the abolishment of the Occupational Specialist job.
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent.
Findings Of Fact Petitioner first employed Respondent, as a custodian, in late 1991. Respondent's first job was as a substitute custodian, which was a temporary assignment offering few benefits. Petitioner assigned Respondent to Sarasota High School. The substitute position is also known as a non-appointed position. On February 1, 1994, Petitioner changed Respondent's status from non-appointed to appointed. Respondent successfully completed the six-month probationary period. Two years later, Petitioner transferred Respondent from Sarasota High School to the Oak Park School. This transfer resulted from the settlement of a grievance proceeding concerning a matter unrelated to the issues in this case. At the end of the 1996-97 school year, Petitioner transferred Respondent to Sarasota High School. By this time, Respondent had sufficient seniority to be able to bid for a job at a school of his choosing, and Respondent desired to work at Sarasota High School. Respondent began to experience serious job-related problems during the 1997-98 school year. He did a poor job cleaning the classrooms and other assigned areas. His supervisor estimated that Respondent would complete about 60 percent of his assignment. Frequently, Respondent was a "no call, no show," meaning that he neither appeared for work when scheduled nor called in advance of his nonappearance. On at least one occasion in December 1997, Respondent left work early, without permission, so that his supervisor had to have another custodian finish Respondent's job. From the 1997-98 school year until Respondent's departure from employment with Petitioner, he was repeatedly late, absent, or early in departing. On the many occasions on which Respondent was a "no call, no show," Petitioner was required to assign Respondent's work to another custodian working the same shift. This custodian would have to complete his or her own work and Respondent's work in the same shift. This repeated situation undermined the morale of Respondent's coworkers, who resented the extra work for which they received no additional compensation and their inability to do a good job, in the available time, on their assignment and Respondent's assignment. By letter dated April 16, 1998, Petitioner suspended Respondent for one day without pay due to his insubordination. After receiving this discipline, Respondent continued to require reminders from Petitioner about Petitioner's policies for requesting leave and documenting sick leave. Respondent's repeated failure to comply with these policies constituted insubordination. In January 1999, another custodian was serving as acting head custodian during the night shift that Respondent worked. A vendor representative visited the high school to examine some equipment. When the acting head custodian asked Respondent to show the representative a piece of equipment normally used by Respondent, Respondent refused. Angry at the persistence of the acting head custodian in repeating the request, Respondent then attacked the acting head custodian, grasping the man's neck so hard as to leave marks. Respondent was again disciplined for his insubordination. By letter dated March 17, 1999, Petitioner suspended Respondent for three days without pay. On March 3, 1999, Petitioner transferred Respondent from Sarasota High School to "Regional," which refers to an area encompassing several schools. During the summer of 1999, Respondent worked at the Sarasota County Technical Institute. On July 13, 1999, the senior head custodian could not find Respondent, who had already displayed the same work habits and attendance problems that had characterized his earlier employment with Petitioner. When the head custodian finally found Respondent, the head custodian accused Respondent of shirking his work. The record does not permit a finding as to whether Respondent was really performing his work. However, about an hour after giving Respondent a new assignment of cleaning some windows, the senior head custodian checked up on Respondent. Finding him productively at work, the senior head custodian complimented Respondent by saying, "Good job." Respondent replied, "You don't know who you are messing with." Respondent left the job early, without permission. The next day, Respondent called the regional manager for the Facilities Department, who is the supervisor of the senior head custodians. He warned her that if she sent him back to Sarasota County Technical Institute, he might do something bad to the senior head custodian. The regional manager immediately reassigned Respondent so that he could work at Riverview High School. After initially proposing to terminate Respondent, by letter dated August 18, 1999, Petitioner suspended Respondent for one day with pay for insubordination. As the 1999-00 school year proceeded, Respondent continued his pattern of "no call, no show," tardy appearances, and early departures. For example, from October 11, 1999, through March 24, 2000, Respondent was "no call, no show" on 11 occasions. The other custodians increasingly resented Respondent's unreliability because they had to perform Respondent's work without additional pay. Evidently learning of the dissatisfaction of one custodian, Respondent angrily confronted her by getting in her face, shaking his finger at her, and warning her that if she did not have anything good to say, she should not say anything at all. Despite the exhortations of his supervisors and coworkers, Respondent continued to disregard Petitioner's attendance and notification policies. Finally, on March 24, 2000, Respondent showed up with 15 minutes left in the eight-hour shift that he had specifically requested the night before and explained that he had had car trouble. He did not offer an explanation for why he had failed to call his supervisors and Petitioner's district office to notify them of this claimed problem. This incident effectively ended Respondent's employment with Petitioner. By letter dated June 19, 2000, Petitioner terminated Respondent's employment, effective July 12, 2000, due to insubordination. During his employment with Petitioner, Respondent repeatedly disregarded Respondent's policies regarding notification and documentation of leave, repeatedly disregarded the reasonable requests of his supervisors that he comply with these policies, repeatedly ignored the reasonable requests of his supervisors to perform specific assignments in a competent manner, and repeatedly abused coworkers, to the point of grasping one by the throat. In context, these behaviors by Respondent constituted gross insubordination.
Recommendation It is RECOMMENDED that the Sarasota County School Board enter a final order terminating Respondent's employment with the school board effective July 12, 2000. DONE AND ENTERED this 18th day of September, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2000. COPIES FURNISHED: Dr. David Bennett, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231 Honorable Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Charles D. Bailey, III Bowman George 22 South Tuttle Avenue, Suite 3 Sarasota, Florida 34237 Wayne Goff 107 20th Street West Palmetto, Florida 34221
The Issue The issue in this case is whether the School Board of Pinellas County (School Board) should accept the Petitioner's recision of her resignation from her position as a high school teacher and reinstate her to her former position on the ground that her resignation was given under legal duress.
Findings Of Fact During the 1992/1993 school year, the Petitioner, Deborah Green, taught high school in the GOALS (drop-out prevention) program at Dixie Hollins High School. In January, 1993, she applied for a year of medical leave of absence due to stress and stress-related symptoms. The School Board approved leave starting January 27, through June 11, 1993. Shortly after going on medical leave, the Petitioner was notified that a student had made serious accusations against her. One of the accusations was that the Petitioner freely told the student details about her romantic relationship with a Michael Miller, who was married and the principal of another Pinellas County high school. She contacted the student to find out what the accusations were and met with her principal and the student and his mother to discuss the accusation. At the meeting, the student recanted. The Petitioner left for Dallas, Texas, shortly after her leave began, but she continued to receive telephone messages locally through her friend and former housemate. Not long after the Petitioner left for Dallas, the student who had accused her, and then recanted, again accused the Respondent, alleging that he had recanted because the Petitioner had asked him to lie for her. When this happened, the principal of Dixie Hollins referred the matter to Stephen Crosby, Director of Personnel Services for the Pinellas County Schools. Crosby called the Petitioner at her local telephone number and left a message. When the Petitioner returned the call from Dallas, Crosby explained that he was investigating serious charges that had been made against her and that, as always in such circumstances, it was important for him to meet with her about them as soon as possible. The Petitioner declined, stating that she was not emotionally, mentally, or physically prepared at the time to handle the situation or the stress of the situation. She insisted that her meeting with Crosby be postponed. As an accommodation to the Petitioner, Crosby agreed to postpone the meeting, and the two agreed to meet on March 1, 1993. On or about February 28, 1993, on a return trip to Pinellas County, the Petitioner visited her school and left a written message for Crosby to tell him that she still was unable to meet with him and would not attend the scheduled March 1, 1993, meeting. Crosby did not get the message until the morning of the scheduled meeting. On receipt of the message, Crosby turned to the School Board's legal office for advice on how to proceed. Based on the advice of counsel, Crosby sent the Petitioner a letter stating that he viewed the delay in the interview until March 1 to be an unusual accommodation, since teacher interviews normally are conducted as soon as he becomes aware of the charges. He wrote that, since the Petitioner would not meet on March 1, as they had agreed, he would have to proceed exclusively on the basis of his interviews of students and others. In accordance with normal procedures, he also advised her that, unless she chose to resign by March 12, 1993, he would be recommending to the School Superintendent that he recommend to the School Board that the Petitioner be dismissed. On March 3, 1993, the Petitioner received Crosby's March 1 letter and wrote back in response to offer her resignation, effective June 11, 1993. In the Petitioner's own written words, she resigned "for my personal sanity and for the credibility of Michael Miller." Crosby processed the Petitioner's resignation to be considered at the March 24, 1993, School Board meeting. It is standard operating procedure to process resignations before their effective dates, if possible, so that replacement personnel can be hired. The School Board accepted the Petitioner's resignation (among others) at its March 24, 1993, meeting. The Petitioner tried unsuccessfully several times after March 24, 1993, to contact Crosby by telephone to rescind her resignation. She was unable to speak to him but was told that the School Board already had accepted her resignation and that it was too late to rescind it. In April, 1993, the Petitioner learned that the Florida Education Practices Commission of the Florida Department of Education also was investigating the allegations against her, notwithstanding her resignation. On or about June 3, 1993, the Petitioner returned to Pinellas County and met with a lawyer about getting her teaching position back and about defending her teacher certificate. On June 8, 1993, the lawyer wrote a letter to the School Board Attorney (which was received on or before June 11, 1993) purporting to rescind the Petitioner's resignation. It was not proven that the Petitioner had no choice but to resign from her position as a teacher between March 1 and March 12, 1993, due to her emotional, mental and physical condition at the time. As a result of her long-standing membership in the local teachers' union, the Pinellas Classroom Teachers Association (PCTA), the Petitioner knew that dues-paying members of the PCTA may be entitled to the services of an attorney, free of charge, in a teacher dismissal proceeding. She claimed that she did not know she still was entitled to free legal counsel after going on medical leave of absence as of January 27, 1993, and ceasing to pay union dues while on leave. However, there was no evidence that she inquired as to the availability of paid counsel until after the effective date of her resignation. Had she done so in a timely fashion, she would have learned before her resignation was accepted that she was entitled to the services of an attorney, free of charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Amended Petition for Administrative Hearing. RECOMMENDED this 16th day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6074 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven. Third sentence, accepted but subordinate and unnecessary. Rejected as not proven that she spoke to Crosby more than once. Explaining the discrepancies between her testimony and his is problematic. But some of the telephone conversations she supposedly had with Crosby would have been on weekends (e.g., January 16 and 23, 1993), giving rise to a question as to the accuracy of her testimony. In addition, the Petitioner's own evidence suggested that her condition during this time period impaired her thought process and memory. Perhaps the Petitioner is counting unsuccessful attempts to contact Crosby as actual conversations with him. Rejected as not proven that the Petitioner acted on the advice of her physician in cancelling the March 1, 1993, meeting with Crosby. Otherwise, accepted and incorporated. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, rejected as not proven that she resigned "under protest because of her inability to participate in the investigation due to her medical condition"; otherwise, accepted and incorporated. First sentence, rejected as not proven. See 7., above. (Some of the telephone conversations she supposedly had with Crosby during this time period would have been during the spring school holidays when all school offices were closed.) Second sentence, accepted and incorporated. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected in part as not proven as to "rational decisions with respect to her employment"; otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-7. Accepted but subordinate and unnecessary. 8.-20. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. 23.-26. Accepted but subordinate and unnecessary. (As to 25., the referee appeared to be referring to Green's medical leave of absence.) COPIES FURNISHED: Mark F. Kelly, Esquire Kelly & McKee, P.A. P. O. Box 75638 Tampa, Florida 33675-0638 Keith B. Martin, Esquire Assistant School Board Attorney Pinellas County Schools Administration Building 301 Fourth Street SW Largo, Florida 34649-2942 Dr. J. Howard Hinesley Pinellas County School Board 301 4th Street SW Largo, Florida 34640-3536 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the professional service contract of the Respondent with the School Board of Dade County should be terminated for misconduct in office, gross insubordination and incompetency due to inefficiency.
Findings Of Fact The Respondent, who is 40 years old, became a teacher in 1985 and taught from 1985 through March 4, 1992 as an employee of the School Board of Dade County. She held a professional service contract. Before the 1989-90 school year her teaching performance was adequate. During the 1989-90 school year she was employed at Kinloch Middle School as a sixth grade language arts teacher. Students at Kinloch are predominately of Hispanic background. In May, 1990 she was reassigned to Edison Middle School, where the students are predominantly African-American. During the 1990-91 school year, Respondent had a difficult time managing the behavior of the children in her classroom. Walking by her classroom at Kinloch, administrators often saw the class in serious disorder, with students running around, yelling, throwing papers, and not doing school work. On one occasion an assistant principal found 40 to 50 paper balls on the floor of her classroom. On another day while the students were engaged in a "paper fight," one of the students broke a glass display case with his head. One of the assistant principals at the school, Irving Rashkover, performed a formal observation of the Respondent's teaching on March 5, 1991, using the formal observation instrument for assessing teacher performance developed by the School Board of Dade County for all teachers, known as TADS, the Teacher Assessment and Development System. He found that the Respondent was significantly deficient in the areas of preparation and planning, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. As is required when an observation shows deficient performance, the Respondent was given prescriptions designed to assist her in improving her performance in her areas of deficiency. Prescriptions are also directives which are given by an administrator requiring the teacher to perform the specific prescriptive tasks, which are designed to improve classroom performance. The prescriptions given to Respondent included such things as requiring her to prepare lesson plans and tests to be turned in to another assistant principal, Mrs. J. Reineke. The Respondent failed to comply with these prescriptions. It would have been difficult for her to perform all the directives, because she was removed from the classroom and assigned to the regional office, not long after the observation of her teaching. She nevertheless failed to perform the tasks that did not require her to be on the school site, such as the preparation of lesson plans for the substitute teacher in her classroom, and recreating her grade book. Because of her poor work performance, the Board required that the Respondent have a psychological evaluation. That evaluation indicated that she might benefit from psychotherapy, but that she could return to the classroom. The Respondent also requested to change her work location. Both she and school administrators believed that a change in schools might assist her in improving her performance, so in May 1991 she was transferred from Kinloch Park to Miami Edison Middle School. Ordinarily, teachers whose performance has been found deficient and who are therefore working on prescriptive activities to improve their teaching are not eligible for transfer. The approval of this transfer showed that the School Board was making a special effort to accommodate the Respondent in an effort to improve her teaching. Respondent was transferred to Miami Edison Middle School as a team teacher. This meant that she did not have primary responsibility for the classroom in which she worked. Another experienced teacher had primary responsibility, and Respondent assisted in teaching. An external performance evaluation was done for Respondent, that is, the TADS evaluation was done by an evaluator who was not an administrator at Miami Edison Middle School. In the new team teaching situation, the external evaluation resulted in an acceptable performance rating for the Respondent. She received an acceptable annual evaluation for the 1990-91 school year, despite her earlier problems that year at Kinloch, the need to remove her from the classroom, assign her to the district office and have the psychological evaluation done before her reassignment to Miami Edison. Respondent was placed in a self contained classroom at Miami Edison for the 1991-92 school year. Unfortunately, the deficiencies that she had exhibited at Kinloch returned. A TADS observation of her teaching was done on October 24, 1991. The evaluation found her deficient in planning, classroom management, techniques of instruction and assessment techniques. She was given prescriptive activities to help her to remediate these deficiencies to complete by November 21, 1991, but she did not do them, even though the matter was brought to her attention in a memo dated December 3, 1991. The Respondent was wholly unable to control her classroom. Her students essentially engaged in free-for-alls during her class periods. They would not remain in their seats, they were talking, running, throwing paper balls at each other, going in and out of the classroom and engaging in fights. While this disorder was taking place around her, Respondent merely sat at her desk and did nothing to control it. Simply put, Respondent did not teach. Her inability or disinclination to require discipline of her students made it impossible for anyone to teach in the circumstances prevailing in her classroom. This was coupled with other unusual behavior by the Respondent: she directed her students to make up and insert their own grades in their progress reports. This is wholly unacceptable conduct by a teacher. Administrators at Miami Edison became aware of the disarray in Respondent's classroom because of complaints by students and parents. Her classroom had been on the second floor, but when students were seen sitting on the window sill, the school administration moved her classroom to the first floor, near the main office. It was hoped that the move would make her classroom more safe for her students, since if she failed to control them they would not be in danger from sitting in upper floor windows, and the proximity to the main office was designed to help improve student behavior since they would be so close to the school administration. The misbehavior, however, continued unabated in her classroom. The level of disorder in the classroom and the consequent lack of teaching caused continuing parental complaints to administrators about the Respondent's performance. Another TADS classroom observation was performed by the school's principal in the Respondent's classroom on November 22, 1991, the day after her prescriptive activities from the October observation were to have been completed. Her performance again was found deficient in classroom management, techniques of instruction, teacher-student relationships and assessment techniques. Additional prescriptions were issued to Respondent but again she did not complete these either. When these failures were again brought to her attention her response to the administration was that "she didn't feel it was necessary" to comply with the prescriptions (Tr. 87). On December 19, 1991, the principal had a conference with Respondent on her failure to complete the prescriptive activities assigned after the two evaluations in October and November 1991. The principal followed up again, and specifically told the Respondent on January 6, 1992 that unless she complied with the prescriptions, he would recommend that she not be reappointed as a teacher. The disarray in her classroom continued. School security had to go to her classroom to break up fights. Continuing complaints by parents came both to the school administration and to the central administration of the School Board. The photographs of her classroom taken on December 20, 1991, are almost unbelievable (School Board Composite Exhibit 12). The classroom looks as if it were the scene of a riot. Shortly after that day, Respondent was removed as a classroom teacher. During a formal "conference for the record" with the Director of the Office of Professional Standards of the school board, Dr. Joyce Annunziata, in January 1992, the Respondent stated that student behavior was the responsibility of the students, not the teacher; the teacher's duty is to teach and the student's duty is to learn, but if students don't want to learn there is nothing the teacher can do about it; and, that she was powerless to change the student's behavior. The principals of Kinloch Middle School and Edison Middle School both testified that in their opinion, which is credited, the Respondent was incompetent as a teacher, and that her failure to maintain discipline in her classroom after receiving assistance in doing so through prescriptions for improved classroom management constituted misconduct in office and gross insubordination. Neither would willingly reemploy her as a teacher at their schools. The repeated complaints about her classes, rising from the school level to that of the central district administration, is further persuasive evidence that Respondent has lost her effectiveness as a teacher in the community. The Respondent has failed to create an effective and safe learning environment for students in her classrooms. Based on her prior acceptable evaluations, she knows how to keep order in her classes. She has also demonstrated by her repeated failure to teach and impose classroom discipline that she is now incompetent to teach. Moreover, her repeated refusal to comply with prescriptions given to improve her classroom performance by administrators at Kinloch and Miami Edison Middle Schools, which are specific directions which have been given to her by administrators with proper authority, constitutes gross insubordination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the School Board of Dade County terminating her employment as a teacher for misconduct in office, incompetency and gross insubordination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1993. WILLIAM R. DORSEY, JR. 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 22nd day of February 1993. APPENDIX The findings proposed by the School Board have been accepted. Findings proposed by the Respondent: Paragraphs 1-3 have been accepted. Paragraphs 5-8 are rejected for the reasons stated in the Findings of Fact dealing with her ineffectiveness, gross insubordination and incompetency by reason of inefficiency. It is true that no annual evaluation of the Respondent's teaching performance showed an unacceptable evaluation. This occurred because she was transferred to the district office and removed from the classroom for a substantial period of time in 1991, and the annual evaluation could not be one finding unsatisfactory performance since, by the end of the year, she was performing satisfactorily in the team teaching situation with another teacher (Tr. 105). She may be able to perform adequately in that situation, but the School Board is not required to employ her as a teacher who needs a guardian in the form of another teacher in her classroom. A competent teacher keeps order in her class herself. COPIES FURNISHED: James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 William Du Fresne, Esquire Du Fresne & Bradley, 2929 Southwest Third Avenue Miami, Florida 33129 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Octavio J. Visiedo, Superintendent Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard Suite 215 Miami, Florida 33132
The Issue The issues in this case are (1) whether an education paraprofessional made salacious and vulgar comments to a female student and, if so, (2) whether such conduct gives the district school board just cause to suspend this member of its instructional staff for 30 workdays, without pay.
Findings Of Fact At all times relevant to this case, Respondent Alfredo Regueira ("Regueira") was an employee of Petitioner Miami-Dade County School Board ("School Board"), for which he worked full time as a physical education paraprofessional. At the time of the events giving rise to this proceeding, Regueira was assigned to Miami Senior High School ("Miami High"), where he led exercise and fitness classes in the gymnasium. As of the final hearing, A. M., aged 17, was a senior at Miami High. She had met Regueira in the spring of her sophomore year at the school, in 2005, outside the gym. Thereafter, although never a student of Regueira's, A. M. would chat with "Fred"——as she (and other students) called him——about once or twice per week, on the gymnasium steps, during school hours. As a result of these encounters, A. M. and Regueira developed a friendly relationship. At some point, their relationship became closer than it prudently should have, moving from merely friendly to (the undersigned infers) nearly flirty. A. M. gave Regueira a picture of herself inscribed on the back with an affectionate note addressed to "the prettiest teacher" at Miami High. Regueira, in turn, spoke to A. M. about sexual matters, disclosing "what he did with women" and admitting a proclivity for lesbians. Notwithstanding this flirtatious banter, there is no allegation (nor any evidence) that the relationship between Regueira and A. M. was ever physically or emotionally intimate. As time passed, however, it became increasingly indiscreet and (for Regueira at least) dangerous. At around eight o'clock one morning in late February or early March 2006, A. M. and her friend E. S. went to the gym to buy snacks, which were sold there. Regueira approached the pair and, within earshot of E. S., made some suggestive comments to A. M., inviting her to get into his car for a trip to the beach. Later, when E. S. was farther away, Regueira spoke to A. M. alone, using vulgar language to communicate his desire to have sexual relations with her. In A. M.'s words, "Mr. Fred me dijo en English 'I want to fuck you.'" (Mr. Fred told me in English "I want to fuck you.")1 At lunch that day, while conversing with E. S., A. M. repeated Regueira's coarse comment. A. M. did not, however, report the incident contemporaneously either to her parents, being unsure about how they would react, or to anyone else in authority, for fear that she would be disbelieved. After the incident, A. M. stopped going to the gym because she was afraid and embarrassed. A few weeks later, A. M. disclosed to her homeroom teacher, whom she trusted, what Regueira had said to her. The teacher promptly reported the incident to an assistant principal, triggering an investigation that led ultimately to the School Board's decision to suspend Regueira. Thus had the candle singed the moth.2 That this incident has diminished Regueira's effectiveness in the school system is manifest from a revealing sentence that Regueira himself wrote, in his proposed recommended order: "Since this situation has been made public[,] . . . my peers have lost all respect for me." An employee who no longer commands any respect from his colleagues is unlikely to be as effective as he once was, when his peers held him in higher regard. Ultimate Factual Determinations Regueira's sexually inappropriate comments to A. M. violated several rules and policies that establish standards of conduct for teachers and other instructional personnel, namely, Florida Administrative Code Rule 6B-1.006(3)(e)(prohibiting intentional exposure of student to unnecessary embarrassment or disparagement), Rule 6B-1.006(3)(g)(forbidding sexual harassment of student), Rule 6B-1.006(3)(h)(disallowing the exploitation of a student relationship for personal advantage), School Board Rule 6Gx13-4A-1.21 (banning unseemly conduct); and Board Rule 6Gx13-4-1.09 (proscribing unacceptable relationships or communications with students). Regueira's misconduct, which violated several principles of professional conduct as noted above, also violated Florida Administrative Code Rule 6B-1.001(3)(employee shall strive to achieve and sustain the highest degree of ethical conduct). This ethics code violation, it should be mentioned, is secondary to the previously described misdeeds, inasmuch as sexually inappropriate behavior in the presence of, or directed toward, a student necessarily demonstrates a failure to sustain the "highest degree of ethical conduct." Regueira's violations of the ethics code and the principles of professional conduct were serious and caused his effectiveness in the school system to be impaired. In this regard, Regueira's admission that his colleagues have lost all respect for him was powerful proof that, after the incident, he could no longer be as effective as he previously had been. Based on the above findings, it is determined that Regueira is guilty of the offense of misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order suspending Regueira from his duties as a physical education paraprofessional for a period of 30 workdays. DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2007.
Findings Of Fact At all times material hereto, Respondent was employed by Petitioner as a physical education teacher at Homestead Junior High School pursuant to a continuing contract. On May 17, 1984, Assistant Principal Woodward sent a memorandum to Respondent regarding Respondent's late notification for absence from duty two days prior. That memorandum read, in pertinent part: I feel that it is essential that I again remind you of the problems caused by your late notification of the need for a substitute. Subs are difficult to get in the morning after the high schools have begun their day. Last year Mr. Rosbaugh covered a portion of your 1st period class at least 15 times. This year you have been out 10 1/2 days in addition to the entire month of December (12 days) and 9 days in January due to injury. You also have arrived late to homeroom on a number of occasions. Please direct your attention to these professional matters. During the 1986-87 school year Respondent was absent approximately 30 days. In addition, Respondent's department head reported him for being tardy 13-15 times although Respondent was tardy on even more occasions. During the 1987-88 school year between the commencement of school in August and December 9 when Respondent was suspended from employment he was absent from school approximately 60 days, 53 of which were leave without pay. He was also tardy approximately 15 times. Because Respondent failed to notify the school when he expected to be tardy and because he repeatedly failed to notify the school when he would be absent, school personnel did not have time to obtain the services of a substitute teacher. Therefore, other teachers had to cover Respondent's physical education classes in addition to covering their own, thereby lessening the safety of the students in those physical education classes. At all times, Respondent's students were left running unsupervised in the hallways, thereby impacting other classes and other students' safety. Respondent's department head discussed the problem with Respondent on numerous occasions during both the 1986-87 and the 1987-88 school years. He gave Respondent verbal directives to be prompt for all his classes since Respondent would be tardy not only for the first period class but would also disappear between periods and be tardy at the beginning of other periods. School personnel had no telephone number for contacting Respondent. During the 1986-87 school year Respondent's department head went to Respondent's home on four or five different occasions to see if Respondent was coming to work since the school day had already begun and Respondent was absent. He also went to Respondent's home for the same purpose two or three times during the 1987-88 school year. Each time he went to Respondent's home, he found him asleep. During the 1986-87 and 1987-88 school years Assistant Principal Woodward had meetings with Respondent on approximately 30 occasions to discuss Respondent's chronic lateness in reporting to work. He also went to Respondent's home after the school day had begun to find out if Respondent would be coming to school that day six or seven times during 1986-87 and two or three times during 1987-88. On one such occasion--March 12, 1987--he went to Respondent's home and awakened Respondent at 10:30 a.m. Assistant Principal Woodward directed Respondent on numerous occasions to observe the school's required procedures for notifying the school of Respondent's absences or tardiness. Each time Respondent was awakened at his home by school personnel, he was very apologetic, promised to do better, and stated that he fully understood the required procedures and the impact on his classes. Each time, he explained that he had overslept and that he had personal problems. Although Respondent promised improvement, no improvement occurred. On a number of occasions Assistant Principal Woodward recommended that Respondent contact the employee assistance program due to Respondent's stated problems with oversleeping and Respondent's repeated advice that he had personal problems and since Woodward noticed that Respondent was losing weight and evidencing some differences in personality. However, Respondent refused to contact the employee assistance program. Principal Chandler had numerous conferences with Respondent both years formally and informally regarding his absences and tardiness. He offered Respondent transportation to school even though Respondent lived only a few blocks away. Respondent declined his offer of transportation. Principal Chandler visited Respondent at Respondent's mother's home at Respondent's request three times during 1987-88. He also had a meeting with Respondent and some of Respondent's associates with whom he was experiencing problems with paternity charges. Based upon Respondent's continued failure to comply with reporting procedures, and based upon Respondent's repeated excuse that he overslept and/or had personal problems, and based upon Respondent's statements made to him during one of the meetings at Respondent's mother's home, Chandler requested Respondent to undergo a fitness examination which Respondent refused. Based upon Respondent's refusal to undergo a fitness examination and Respondent's refusal to comply with the directives to be punctual and to comply with reporting requirements, Chandler contacted the Office of Professional Standards of the Dade County Public Schools. An official conference for the record was scheduled for November 3, 1987, and Respondent failed to appear. A second conference for the record was scheduled for November 18, 1987, and Respondent attended that conference. Respondent was requested to sign the notice acknowledging that he had been notified of the conference he was attending, and he refused to acknowledge receipt of that notice Respondent was ordered to undergo a fitness determination, and he refused to comply. On November 18, Respondent was assigned to his home, thereby terminating his assignment to Homestead Junior High School. On November 23, he was assigned to the Area Office but he refused to report to the Area Office. On December 1, 1987 he was temporarily assigned to Arvida Junior High School. However, he indicated he had transportation problems and could not report there. On December 2, he again indicated that he had transportation problems and again would not report there that day. On December 3, he again indicated that he had transportation problems and that he could not accept the assignment on that day or any other day. Respondent's absences exceeded the amount of accumulated leave and sick leave during both 1986-87 and 1987-88. Respondent never indicated to any of his superiors that he was unable to comply with the directives to improve his attendance and correct his tardiness. Respondent never indicated that he was sick; rather, he continuously maintained that his problem was simply a matter of oversleeping resulting from his personal problems. Accordingly, the extended sick leave provisions in the union contract between the teachers in Dade County and Petitioner do not apply to Respondent. Even if they did, there are no provisions in that contract which permit a teacher to continually be tardy for that teacher's first period class and to disappear between classes and report for the next class 10 or 15 minutes late as was Respondent's pattern of behavior. Petitioner has exhausted all available resources in its attempt to assist Respondent, and there is no expectation of improvement on Respondent's part. Respondent's effectiveness as a teacher has been impaired by his failure to be in regular and punctual attendance for his assigned duties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing Respondent from his employment with the School Board of Dade County and denying him any claims for back pay and benefits. DONE and RECOMMENDED this 9th day of August, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5596 Petitioner's proposed findings of fact numbered 1 has been adopted in this Recommended Order. Petitioner's proposed findings of fact numbered 2-16 have been rejected as not complying with Rule 22I-006.31(3), Florida Administrative Code, and also as not constituting findings of fact but rather as constituting recitation of the testimony. Respondent's proposed findings of fact numbered 1 and 2 have been adopted in this Recommended Order. Respondent's proposed finding of fact numbered 3 has been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 4 and 5 have been rejected as being subordinate to the issues under consideration herein. Respondent's proposed findings of fact numbered 8 and 17-19 have been rejected as being irrelevant to the issues under consideration herein. Respondent's proposed findings of fact numbered 12, 14, and 15 have been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 6, 7, 9-11, 13, 16, and 20 have been rejected as not constituting findings of fact but rather as constituting either recitation of the testimony or argument of counsel. COPIES FURNISHED: Joseph A. Fernandez, Superintendent Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Johnny Brown, Esquire Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Lorraine C. Hoffman, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129
The Issue The issue in the case is whether the Respondent's employment with the Sarasota County School System should be terminated.
Findings Of Fact At all times material to this case, the Respondent George H. Lewis was employed as a teacher by Petitioner Sarasota County School Board. The Petitioner initially hired the Respondent in October of 1987. During his employment with the School Board, the Respondent has at various times worked as a teacher and as a guidance counselor. Although during the hearing, there was testimony of minimal competence by some witnesses, the Respondent's performance evaluations were all within an acceptable range. Leslie Bachtel is employed by the Petitioner as a teacher. During the 1990-1991 school year, Ms. Bachtel worked at the Venice Middle School, where the Respondent was also employed. On one occasion during the 1990-1991 school year, the Respondent became angry and aggressive towards Ms. Bachtel as they passed in a school courtyard. The Respondent walked towards Ms. Bachtel, stating "you're a fucking bitch," and grabbed her arm with sufficient force to leave an impression on the arm. Students were in the courtyard at the time of the aggression. Ms. Bachtel immediately reported the event to the school principal. According to the testimony of Ms. Bachtel, within an hour, the Respondent confronted Ms. Bachtel's daughter, a Venice Middle School student, in a similar manner. During the 1990-1991 school year, the Respondent received a written reprimand for use of profanity in the presence of administrators, teachers, and students. During the 1994-95 school year, Ms. Bachtel was assigned to an alternative school program ("IDEAL") where the Respondent was also employed. Towards the beginning of the school year, the Respondent confronted her in her classroom and stated that he thought he'd "gotten over it but I haven't," that he would "get even" with her, and that he "hated" her. Ms. Bachtel reported the situation to the school principal. Ms. Bachtel is unaware of the reason for the Respondent's behavior towards her. The Respondent began working at the Wilkinson Elementary School during the 1995-1996 school year. Theresa Hand, a teacher of students with varying exceptionalities, is married and has two children. She first met the Respondent during the summer of 1996 when daughters from each family participated in Asolo Theatre ballet classes. The families became friendly. The daughters became, and continue to be, friends. When Ms. Hand began teaching at the Wilkinson Elementary School, the Respondent was employed there as a guidance counselor. The Respondent and Ms. Hand interacted frequently, as he also did with Ms. Hand's teacher's aide. The Respondent became infatuated with Ms. Hand. He told the aide of his feelings. The aide eventually told Ms. Hand of the situation. By that time, even though the Respondent had not directly spoken to her about the infatuation, Ms. Hand was already aware of his feelings. Eventually, the Respondent confessed his feelings to Ms. Hand during a car ride after a "going-away" party for a colleague. Ms. Hand reminded him that she was married, and that "it wouldn't work out." He appeared to accept her statement. Ms. Hand assumed the matter was resolved. Thereafter, the Respondent was transferred to another school. After his transfer, Pat Fink, a teacher at Wilkinson Elementary, ran into the Respondent in a music store. During their conversation, the Respondent told Ms. Fink of his continuing infatuation with Ms. Hand, and admitted he'd discussed his infatuation with Ms. Hand's daughter, who'd been in ballet classes with his own daughter. The next day, Ms. Fink contacted Ms. Hand to advise her of the situation. According to the testimony of Erica Hand, Ms. Hand's daughter, Erica had a new car and went to the school to meet with friends. The Respondent approached her and she offered him a ride in her car. They rode in the car for approximately 15 minutes during which he told her he was "in love" with her mother. She testified she told the Respondent "that was crazy." When she returned home, she told her mother about the Respondent's remarks. She opined that her mother appeared to be aware of the situation. Soon thereafter, Ms. Hand and her husband composed a letter detailing the situation and suggesting that some action was necessary to protect both the Hand family and the Respondent. Mr. Hand signed the letter, dated October 18, 1998, and sent it to school officials. During the 1998-1999 school year, the Respondent taught at Venice High School. Elizabeth Villares was also teaching at Venice High School and was assigned to teach the same classes as those assigned to the Respondent. One Friday, towards the end of October 1998, the Respondent asked to meet with Ms. Villares after school. She agreed to meet with him. During the meeting, he told her he was divorcing his wife and wanted to initiate a relationship with Ms. Villares. He spoke of sexual matters to her in Spanish. He told her he was "passionate" and "virile" and had "a lot to offer." Ms. Villares was very uncomfortable and spoke little during the conversation. Someone eventually entered the room during the conversation to advise her of a phone call. She left to take the call and did not return. The next day, she advised her department chairman of the situation and then made efforts to avoid contact with the Respondent. One of the classes the Respondent was assigned to teach during the fall of 1998 was economics. According to the testimony of students, the Respondent rarely taught economics. Students testified that the Respondent spent much of the class time talking about himself. He gave no tests to the class. He used profanity frequently. The Respondent told the class that he did not "like" them, and that people who were not "liked" in life would "fail." Some students were forced to do "push-ups" as punishment. He refused to permit some students to use the restroom during the 80-minute long class. He criticized students and disparaged their abilities. He used class time to discuss various methods to kill people. He became physically aggressive towards one student, and challenged others. One student testified that the Respondent complained her work was unreadable and would refuse to grade it. She began to type her work, but he still refused to grade it. Other students testified that they got other grades, but did not know how the grades were assigned. The school principal received a steady stream of complaints from students, parents, and other teachers about the Respondent's behavior. On October 6, 1998, the principal met with the Respondent to address numerous concerns regarding the Respondent's behavior. A four-page memorandum dated October 8, 1999, reflects the discussions conducted during the meeting and sets forth the "consensus" plan to address the specific concerns. The consensus plan includes visiting another social studies teacher at another site, sharing lesson plans with administrators, "use other department members to prioritize . . . curriculum," working to "mend . . . fences" with students, and writing discipline referrals for appropriate "behavior consequence." The principal also drafted a "Memorandum of Understanding" dated October 14, 1998, to follow up on the meeting of October 6. The memo identifies further classroom procedures to be followed by the Respondent and states as follows: There will be no profanity in classes or on the campus. The touching or "poking" of students will stop. Shadowboxing will not occur. Unreasonable punishments will not be allowed, i.e., dunce caps, push-ups. Student intimidation must stop, i.e., name calling and ridiculing. On October 13, 1998, after the October 6 conference but before the October 14 memo was drafted, Carl Williams, an aide at Venice High School, was taking the Respondent for a ride around campus in a golf cart. A student, Logan Rodgers, approached the cart and attempted to shake hands or "high five" the Respondent, who was apparently not amused. The Respondent told Mr. Rodgers to "stand at attention." Mr. Rodgers placed his hand on the Respondent's right knee. The Respondent pushed off Mr. Rodger's hand saying "What are you, a fucking faggot? If you touch me again, I'll crush your fucking skull." The student walked away from the situation and reported the incident to the principal. On October 15, 1998, the school principal met with the Respondent to discuss the Logan Rogers incident. The Respondent did not deny that the event had occurred. The Respondent was thereafter relieved of his duties at Venice High School. Teachers are required to maintain grade books. When the Respondent was relieved from teaching at Venice High School, school authorities requested that the Respondent provide his grade book so that students could receive grades for the classes. Although the Respondent provided attendance sheets, he failed to provide a grade book. The lack of a grade book posed a problem for school administrators who had no information by which to assign grades to students who had been taught by the Respondent. Eventually, students received grades based on their performance during the second half of the school year or based on the decision of a "grade challenge" committee process. The Respondent asserts that he left his grade book lying against the doorway to the principal's secretary's office. The assertion is not supported by credible evidence and is rejected. At some point prior to November of 1998, Ms. Fink again ran into the Respondent, this time in a craft supply store. The Respondent explained he'd discovered he had Native American heritage and was buying feathers to create a headdress. He also disclosed that Ms. Hand had filed a complaint against him, and that he was going to sue the School Board. On November 13, 1998, the Respondent arrived at the offices of the School Board, bare-chested, dressed in brown slacks, a beaded vest, numerous necklaces, and an "indian" headband trailing feathers. He walked unchallenged into the office of the startled superintendent. Persons outside the office immediately became concerned about the situation, and began to seek assistance from other School Board administrators. Several School Board employees entered the superintendent's office and, at the superintendent's request, took seats and remained there during the incident. The Respondent's speech during the event was described as rambling. He discussed a variety of topics, including his past experiences, teaching terrorists in Latin America, strip clubs, playing professional football, becoming a filmmaker and receiving his paycheck. He also expressed his concern about his treatment by the school system. He stated that he wanted his contract bought out for the years remaining until he was able to retire. He advised that if the School Board did not respond to his demand, he would go to "the media" with unidentified allegations regarding the school system. Persons in the superintendent's office attempted to end the meeting several times but were unable to stop the Respondent's conversation. Eventually, they prevailed on the Respondent to allow the superintendent to attend another meeting, at which time the Respondent left the office and exited the building. As a result of the incident, the School Board enacted additional security measures to prevent unauthorized entry into the facility. Several days later, the Respondent returned to the School Board offices to retrieve his paycheck. At that time, he met with William Delp, an assistant superintendent, and asked Mr. Delp whether the superintendent had decided to comply with his request to have his contract "bought out." There is no evidence that the School Board agreed to any demand. On November 20, 1998, the Respondent went to Booker High School, again wearing the headdress. He talked to a number of students collected near the school theatre. He described "death moves" he'd learned as a trainer for the Dominican Republic's "special service." He demonstrated some of the moves on the students who were listening to him. He told the assembled students he was working as a "bouncer" at a local bar, and about how he'd broken the gold chain necklace of a customer who spoke back to a security officer at the bar. He also told the students about a recent sexual encounter, stating "I love to fuck; God, I love to fuck." The Respondent does not dispute much of the evidence related to his behavior. According to the testimony of the Respondent, he suffers from bipolar disorder. Other than the testimony of the Respondent, there is no evidence that the Respondent suffers from bipolar disorder. Bipolar disorder can produce a broad range of emotional instability and can result in inappropriate behaviors. The evidence establishes that the behaviors associated with bipolar disorder can be controlled through the continued administration of medication. According to the Respondent's testimony, the Respondent was prescribed such medication in 1997. The Respondent acknowledges that he has been noncompliant with the requirements of his treatment, and that he'd stopped taking the medication. He asserts that the behaviors that form the basis for the proposed termination of employment are the result of his discontinuation of the prescribed medication. There is no credible medical evidence that the specific inappropriate behaviors that form the basis for the proposed termination of the Respondent's employment are directly or indirectly related to bipolar disorder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Sarasota County School Board enter a final order terminating the employment of George H. Lewis. DONE AND ENTERED this 18th day of November, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1999. COPIES FURNISHED: Robert K. Robinson, Esquire Bowman, George, Scheb, Toale & Robinson 22 South Tuttle Avenue, Suite 3 Sarasota, Florida 34237 Charles L. Scalise, Esquire Bogin, Munns & Munns 250 North Orange Avenue, 11th Floor Orlando, Florida 32802 Dr. Thomas H. Gaul, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3331 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
