The Issue The issue is whether, in violation of Section 231.36(1)(a) and (6), Florida Statutes, Respondent committed misconduct in office when he pawned a school laptop computer and, if so, what discipline should be imposed.
Findings Of Fact Respondent is 33 years old. His father has served Petitioner as a principal, and his mother has served Petitioner as a primary specialist; combined, Respondent's parents have 64 years' service in Petitioner's school system. Respondent attended high school locally, where he achieved prominence as a football player, and continued his football career in college. Petitioner hired Respondent in an instructional position on July 1, 1992, shortly after he obtained his bachelor's degree. Respondent began work as a pool substitute. At the time, he was also pursuing a master's degree in guidance. When a guidance job became available, Petitioner hired Respondent as a guidance counselor. After four years as a guidance counselor, Respondent became an assistant principal in March 2001 at a middle school. Three assistant principals help the principal at this middle school. Respondent's duties include supervision of discipline, safety, and maintenance of the school. On July 19, 2001, Respondent's principal assigned to Respondent an Apple G-4 Titanium laptop computer. Respondent understood that he was to use the computer for school-related job duties, such as staff development and classroom use. On August 25, 2001, Respondent took the computer to Richie's Pawn Shop in Tamarac to pawn the computer. Respondent disclosed to the pawn shop owner that the computer was owned by Petitioner, not Respondent. However, the pawn shop owner, who had known Respondent nearly 20 years earlier, when he had purchased items from the shop, nevertheless allowed Respondent to pawn the computer. Respondent signed a document that represented that he owned the computer. Pursuant to the agreement, the pawn shop owner gave Respondent $350. The agreement provided that Respondent could redeem the computer at anytime during the next 30 days by repaying the $350 plus a finance charge of $52.50. According to the agreement, at the conclusion of the first 30 days, Respondent could redeem the computer at anytime during the next 30 days by repaying the $350 plus a finance charge of $105. After 60 days, Respondent would lose the right to redeem the computer. Respondent used the money for expenses on a trip that he was taking that weekend to retrieve his four-year-old daughter, who was visiting Respondent's parents in Ocala. The following Monday, August 27, Respondent was back at work as an assistant principal. Respondent did not return to the pawn shop to redeem the computer for a little over two weeks. On September 12, Respondent returned to the pawn shop and attempted to redeem the computer. The prior day, though, a Broward County Sheriff's Officer, on a routine check of the pawn shop, had run the registration number of the computer that Respondent had pawned and learned that it was the property of Petitioner. The officer had informed one of Petitioner's investigators of the presence of the computer in the pawn shop. One of the law enforcement officers then ordered the pawn shop owner to hold the computer and not allow anyone to remove it. Pursuant to the order that he had received, the pawn shop owner informed one of Petitioner's investigators when Respondent tried to redeem the computer. Contrary to the allegation of the Administrative Complaint, Respondent went to the pawn shop to redeem the computer not knowing that Petitioner or law enforcement had discovered the wrongful pawning. Petitioner recovered the computer, undamaged. Petitioner's investigator correctly concluded that Respondent had not attempted or intended to deprive Petitioner of the computer permanently. He also correctly concluded that Respondent had not intended to deprive Petitioner permanently of the computer. Among the witnesses attesting to Respondent's value as an employee of Petitioner was Petitioner's Executive Director of Professional Standards and Special Investigation Unit. The Executive Director has served Petitioner for 28 years, including four years as a principal. While a principal, the Executive Director hired Respondent and found him a valuable employee. When the Professional Standards Committee recommended termination of Respondent, the Executive Director suggested to the Superintendent that he recommend a ten-day suspension and three-year demotion, which the Superintendent adopted as his recommendation to the School Board. Other witnesses with considerable knowledge of Petitioner testified to his enthusiasm, talent, energy, and competence as an employee of Petitioner. In particular, Respondent's principal, who has served Petitioner for 33 years, testified that Respondent showed considerable initiative and exceeded all expectations. Although unaware of the reason for Respondent's absence, the students and parents all missed Respondent. The principal testified that even the teachers were unaware of the reason for Respondent's absence. Describing Respondent as a "tremendous asset" to the school system, the principal testified that the incident did not diminish Respondent's effectiveness as an employee of Petitioner. The temporary loss of possession of the computer did not prevent Respondent from completing any of his work assignments, nor did it deprive anyone else from the use of a computer, as the school has dozens of extra computers. Respondent has not previously received discipline as an employee of Petitioner. Petitioner's Employee Disciplinary Guidelines provides in part: DISCIPLINARY GUIDELINES It is the intent of the School Board to treat all employees on a fair and equitable basis in the administration of disciplinary measures. Discipline is a corrective rather than a punitive measure. In dealing with deficiencies in employee work performance or conduct, progressive discipline shall be administered, except in situations where immediate steps must be taken to ensure student/staff safety. Progressive discipline may include, but is not limited to: informal discussion, oral warning, written warning, written reprimand, enrollment in professional skills enhancement programs, suspension without pay, demotion, change in contract status or termination of employment. There are certain categories of misconduct, however, which are so offensive as to render an employee no longer employable. The only appropriate disciplinary measure in these cases (See Section II, Category A) is the termination of the employment relationship with the Broward County School System (F.S., 231.28) The severity of the misconduct in each case, together with relevant circumstances (III (c)), will determine what step in the range of progressive discipline is followed. A more severe discipline measure will be used when it is in the best interest of the students of the community we serve. It is the intent that employees who have similar deficiencies in work performance or misconduct, will be treated similarly and compliant with the principle of just cause. * * * DISCIPLINARY ACTION (CATEGORY A) OFFENSE PENALTY Inappropriate sexual Dismissal conduct including, but not limited to, sexual battery, possession or sale of pornography involving minors, sexual relations with a student or the attempt thereof Sale/distribution of a Dismissal controlled substance Reckless display, Dismissal threatening with guns or weapons on School Board property or at School Board events (CATEGORY B) OFFENSE PENALTY (a) Committing a Suspension/Dismissal criminal act--felony * * * Unlawful possession, Suspension/Dismissal use or being under the influence of a controlled substance Driving Under the Suspension/Dismissal Influence under the scope of employment * * * (i) Possession of guns or Reprimand/Dismissal weapons on School Board property * * * (m) Any violation of The Reprimand/Dismissal Code of Ethics of the Education Profession in the State of Florida--State Board of Education, Administrative Rule 6B-1.001 * * * Misappropriation of Suspension/Dismissal Funds Insubordination, Reprimand/Dismissal which is defined as a continuing or intentional failure to obey a direct order, reasonable in nature and given by and with proper authority Unauthorized use of Reprimand/Dismissal School Board property * * * Section III of the Employee Disciplinary Guidelines reserves to the Superintendent and School Board considerable discretion in imposing discipline, including termination, for any just cause. This section identifies a wide range of aggravating or mitigating factors, including the severity of the offense, degree of student involvement, impact on the school and community, number of repetitions of the offense, length of time since the misconduct, employment history, actual damage, deterrent effect of discipline, actual knowledge of the employee about the misconduct, related misconduct by the employee, pecuniary benefit by the employee, mental or physical harm to persons in school or community, length of employment, employee's evaluation, and employee's adherence to self-reporting policy. Although the actions of Respondent in this case may also constitute misuse of institutional privileges, they are best defined as misconduct in office. The record fails to establish that these actions rise to the level of immorality. The unlawful pawning of a school computer reduces an employee's effectiveness as an employee of the school system, even if, as here, few administrators, teachers, students, or parents know of the misconduct. Unlawfully pawning a school computer is a betrayal of trust that, once detected, is necessarily known by at least some superiors of Respondent, and their knowledge of this misconduct reduces the trust they can place in Respondent and must be able to place in each employee, especially administrators. Numerous mitigating factors apply in this case. The offense is not especially severe, especially given Respondent's intent to redeem the computer prior to the maturity date of the pawn. Nothing in the record suggests that Respondent or any other of Petitioner's employees was prevented or impeded from performing his or her duties due to the pawning of the computer for less than three weeks. The incident does not involve students. It is an isolated incident, and Respondent has not previously been the subject of discipline during his ten-year tenure with Petitioner. Respondent has been an outstanding employee. Another mitigating factor is Respondent's relative youth. Obviously, aggravating factors are that the incident involves pecuniary gain on Respondent's part, although a relatively modest amount, and Respondent did not self-report. Another aggravating factor is the deterrent effect of discipline in this case. Petitioner is justifiably concerned with safeguarding its computers. Obviously, the most applicable provision from the disciplinary guidelines is unauthorized use of school property, for which the penalty ranges from reprimand to dismissal. In some respects, the pawning of the computer is a minor instance of the unauthorized use of school property because Respondent was without the computer for less than three weeks, did not need the computer during that time to perform his school work, did not consume the property or shorten its useful life during its unauthorized use, and never intended to permanently deprive Petitioner of the computer. Also, others at his school did not go without computers while Respondent's computer was in the pawn shop. In one respect, the pawning of the computer is a serious instance of the unauthorized use of school property because it is an expensive asset of the school. The disciplinary guidelines also require the imposition of progressive discipline. The range for the unauthorized use of school property is reprimand to dismissal. Petitioner has imposed demotion and suspension, which more closely approach dismissal than reprimand. Petitioner's selection of discipline in this case is driven mostly by a desire to achieve deterrence and fairness. Petitioner must discourage its many employees from pawning school computers and other expensive, portable electronic equipment, even in situations, as here, where they do not intend to deprive Petitioner permanently of the asset. Deterrence is a listed aggravating factor, and, given the potential for a problem with this kind of behavior, deterrence is the most important aggravating factor. The fairness issue is more problematic for Petitioner. Petitioner is commendably trying to treat Respondent as it has treated two other, nonadministrative employees who were caught misusing computers. In one case, an employee broke into a secure area, stole a computer, and pawned it. In the other case, an employee with authorized possession of a computer pawned it, possibly with the intent of permanently depriving Petitioner of its property. Otherwise, the facts concerning aggravating and mitigating factors in these two cases are not developed in this record. The three cases are the same in that employees pawned school computers, but, based on this record, the resemblances end there. Respondent is a relatively young person, who admittedly exercised poor judgment, but his employment record with Petitioner has been outstanding and this misconduct constitutes an isolated incident. An important part of this case is the testimony of experienced, mature coworkers and superiors, who are informed about the incident and have known Respondent for many years. Supporting Respondent in his effort at least to reduce the punishment, these employees provide a balanced view of the competing factors in finding the appropriate discipline. They weigh the importance of deterring employees from misusing expensive school equipment against the importance of, as provided by Petitioner's disciplinary guidelines, treating discipline not as punitive, but as corrective--in recognition of the fallibility of the human element and its preeminence among Petitioner's assets. The Administrative Complaint seeks a 10-day suspension and demotion under one factual misunderstanding--that Respondent did not redeem the computer until after he knew that Petitioner had uncovered the misconduct. Under all of the circumstances, including Petitioner's use of progressive, corrective discipline, the most serious discipline authorized by the disciplinary guidelines is a 10-day suspension without pay.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order finding Respondent guilty of misconduct in office and imposing a ten-day suspension without pay. DONE AND ENTERED this 2nd day of July, 2002, 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 2nd day of July, 2002. COPIES FURNISHED: Dr. Franklin L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Carmen Rodriguez, Esquire Carmen Rodriguez, P.A. 9245 Southwest 157th Street, Suite 209 Miami, Florida 33157 David T. Alvarez, Esquire Alvarez & Martinez, L.L.P. One East Broward Boulevard, Suite 604 Fort Lauderdale, Florida 33301
The Issue Whether Petitioner, Levita Parker, was subject to a discriminatory practice by Respondent, Orange County Public Schools (Orange County), in violation of the sections 760.10 and 112.3187, Florida Statutes1/; and, if so, what remedy is appropriate.
Findings Of Fact Petitioner is a female, who, at all times relevant to the discrimination allegation was (and is currently) employed by the Orange County Public Schools. Petitioner has been employed by Orange County for approximately 18 years. She is under contract as a “classroom teacher,” however she has been working as a behavioral specialist for the last 11 years. Petitioner is certified to teach Exceptional Student Education (ESE), Business Education and Education Leadership. Petitioner, along with the school principal and others, attended a “brain storming meeting” on October 5, 2016.4/ During that meeting, options were discussed on how to address the August 2016 resignation and departure of an ESE teacher. Many options were discussed, and later the assistant principal sent Petitioner an email directing her to assume responsibility for two classes on the following Monday. Petitioner refused to teach the two classes. In November 2016, Petitioner was presented with a “Directive.” In part, the directive provides: Under certain circumstances it becomes necessary to provide written clarification or guidance regarding the expectations of the district. Such letters are referred to as directives, and are not disciplinary in nature. (Emphasis added). Petitioner did not lose any pay for her failure to teach the two classes. For school years 2015-2016 and 2016-2017, Petitioner received “effective” or “highly effective” evaluations. Petitioner failed to identify the alleged protective whistleblowing action in which she participated. Petitioner failed to identify a causal connection between whatever the alleged protected activity was and the alleged adverse employment action. Petitioner failed to present any credible evidence that Respondent discriminated against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner. DONE AND ENTERED this 31st day of July, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 31st day of July, 2017.
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 2nd day of March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue Whether the District has proven, by a preponderance of the evidence, that there was just cause to dismiss Thomas Brown, consistent with the provisions of the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941), as amended, and Chapter 120, Florida Statutes.
Findings Of Fact The Respondent, Thomas Brown, was a teacher of instructional music in the Duval County School District (District). As part of the instructional personnel with the District, Brown was subject to be evaluated on an annual basis pursuant to the teacher assessment system. The purpose for evaluating teachers is to make certain that instruction is occurring in the classroom and that students are learning the required subject matter. The evaluation process also makes certain that student safety in the classroom is taken into consideration by the instructional personnel (teachers). The District uses the teacher assessment system to evaluate all of its teachers regardless of the subject matter they instruct. From the 1999-2000 and the 2000-2001 academic school years, Brown was a teacher at Andrew Jackson High School where Jack Shanklin (Shanklin) is principal. Shanklin has evaluated teachers annually since he became a principal 22 years ago. He uses the classroom observation instrument within the teacher assessment system to evaluate all of his teachers. At the beginning of the 2000-2001 academic year, Shanklin; Ms. Pierce, assistant principal; Dennis Hester, professional development cadre member; and Mr. Dudley took part in creating a success plan for Brown. A success plan is a course of action designed to prevent an at-risk teacher from getting an unsatisfactory annual evaluation by engendering professional improvement. Shanklin discussed the success plan with Brown before it was implemented. Brown did not have any objections to the plan. Shanklin evaluated Brown for the 2000-2001 academic school year during March of 2001. He based his evaluation results on the observations and written reprimands that he had issued to Brown throughout the 2000-2001 year. During the year, Shanklin observed Brown's classes. In preparation for a classroom visit, he reviewed Brown's lesson plans for October 18, 2000. Lesson plans describe the daily plan for instruction of the students on a particular day. Shanklin had previously directed Brown to turn in his lesson plans on a weekly basis in order to monitor Brown's progress because of his departure from planned lessons. Shanklin attempted to observe Brown in his classroom on October 18, 2000; however, neither the class nor the teacher was present in Brown's classroom. Shanklin later found Brown and the class with the choral class in the auditorium; but Brown had failed to amend his lesson plans to include the choral visit, although he had adequate time to do. He had presented none of the lesson plan that had he filed. Shanklin returned on October 19, 2000, to observe Brown's classroom ten minutes after class has begun. As he entered the classroom, two students ran out the back door. When questioned, Brown had no knowledge of their identity. Shanklin witnessed students harassing other students without correction from Brown while he was addressing the needs of only five of his 35 students. While Brown spoke with the small group, the other students were doing whatever they wanted. There were no class assignments being conducted by the other students. Shanklin later identified one of the students who had been harassing other students as John Fields. Shanklin removed Fields from class because his behavior was so menacing. Brown should have prohibited and corrected the student misconduct, which he failed to do. Shanklin gave Brown a written reprimand by letter dated October 30, 2000. Shanklin also observed Brown on December 4, 2000, during a previously announced observation. Brown did not begin class with an appropriate review of recent material or outline of the day's lesson. Student misconduct again was uncorrected by Brown. Students were moving around and talking during instruction by Brown without correction. This class was not a band class, but a music appreciation class, and there was no need for student movement during instruction. After this observation, Shanklin reviewed his observations with Brown in January of 2001. Following the January discussion, Shanklin observed Brown again later that month, at a previously announced observation. He also discussed that visit with Brown. Shanklin also had Dennis Hester, a professional cadre member, observe Brown's classroom instruction. As part of Hester's responsibilities to improve "less than satisfactory" teachers, Hester reviewed and approved the success plan developed for Brown. Pursuant to that plan, Hester assisted Brown with both formal and informal observations and conferences through 2000 and 2001. After multiple informal conferences in January, Hester began formal observations in February. Hester utilized a number of tools to accurately document the classroom instruction by Brown. Domain One Instrument is a tool in the Florida Performance Measurement System which identifies a teacher's ability to plan lessons. The Domain Two Instrument is a classroom management tool used in the Florida Performance Measurement System (FPMS) to assess how a classroom is run. Hester was trained to evaluate teachers by using both tools and has done so with over 30 teachers in Duval County. Hester also used a conference planning guide which is a list of behaviors observed indicating areas to be worked on, and the Clinical Educator Training (CET) anecdotal instrument to clarify the events of a classroom observation in detail. Hester observed Brown's class on February 1, 2001, and saw a number of students off-tasks, and one child sleeping. Hester observed Brown tell the sleeping child to "wake up, no slobbering on the desk . . ." Brown should have taken positive steps to keep the student awake, and should not have accused him of "slobbering on the desk." Hester discussed these deficiencies with Brown towards the end of February. Hester was due to have all of his evaluations completed on March 15, 2001. Although the Domain One, on planning lessons, was due from Brown to Hester on January 18, 2001 for a February 27, 2001, class observation, Hester did not receive it until March 7, 2001. Thereafter, Hester faxed his commentary of the Domain One to the school for Brown to review as the remaining time permitted. Although Hester did not specifically provide Shanklin with his observation notes for review, the principal reviewed the cadre's notes which outlined the similar misconduct and classroom mismanagement Shanklin witnessed himself. Shanklin's evaluation was also made with the consideration of an incident at the May graduation of 1999/2000 academic school year. Brown's band refused to perform after Brown instructed them to do so. It was later discovered that those students who refused to perform were academically ineligible to be in the class. In prior years, Brown had allowed ineligible students to perform in the school band against the school's rules and regulations, and had been told to stop permitting this. On March 15, 2001, Shanklin gave Brown an unsatisfactory annual evaluation. In evaluating Brown as unsatisfactory for Competency No. 1, Shanklin considered his own observations of Brown's failing to follow his established lesson plans. Brown's failure to manage his classroom and correct student misbehavior supports Shanklin' unsatisfactory evaluation under Competency No. 3. Because of a lack of academic climate due to classroom mismanagement and unorganized instruction, Shanklin deemed Brown to have been unsatisfactory in Competency No. 4. In addition, regarding Competency No. 4, Brown allowed students to eat in his classroom which was critiqued by Shanklin in a letter to Brown dated December 6, 2000. In evaluating Brown unsatisfactory under Competency No. 5, Shanklin considered Brown's failure to provide sufficient evidence that any real grades could be disseminated to Brown's students as there were no rubrics or student work visible for assessments. Finally, Shanklin gave Brown an unsatisfactory evaluation on Competency No. 9 because Brown never demonstrated any type of diversified lesson designed to maintain the attention of the students; which was needed as evidenced by the repeated observation of students sleeping in his class. Following the 1999/2001 academic school year, Brown was transferred to Jefferson Davis Middle School where Bob Powell was principal. Powell created an initial success plan for Brown when he first arrived in the beginning of the year. After formally observing Brown, Powell created a second success plan dated October 29, 2001, which was discussed and agreed to by Brown. The plan was designed for Brown to implement the components for his own benefit. Throughout the year, Powell observed Brown's classroom instruction. On November 20, 2001, Powell formally observed Brown's instruction. Thereafter, Powell also observed Brown on two more occasions on January 10 and 18 of 2002. During his observations, Powell witnessed students talking during "warm-ups," whose attention Brown failed to get. Powell observed that Brown failed to provide praise to his successful students which is needed at the middle school age. Powell noted problems Brown had with communicating with band parents. Powell was concerned that a band parent reported that Brown had threatened to fail and throw her child out of band practice which Brown had no authority to do. In addition, band parents also complained that Brown placed their names as chaperones on a field trip, without their permission. When this was revealed, the trip had to be cancelled. Following the formal conferences with Brown, Powell discussed his observations with Brown. Brown admitted to Powell that other District personnel were telling him the same things Powell was mentioning. Notwithstanding the counseling, Brown was unable to constructively adapt. Powell also requested Patricia Ann Butterboldt to observe Brown during his instruction at Jefferson Davis Middle School. Butterboldt is responsible for supervising and overseeing the curriculum of music teachers throughout the District. During the 2001/2002 academic school year, Butterboldt observed Brown with an intermediate class on two occasions. On November 1, 2001, Butterboldt observed that Brown failed to follow his own instructional classroom schedule. In addition, Brown utilized students to instruct other students in complex musical exercises for which students had no ability to adequately conduct the drill. Butterboldt also witnessed Brown's students consistently off task. On January 23, 2002, observation, Butterboldt again observed inappropriate classroom instruction and management, to include Brown's failure to correct the class for ridiculing a student. Butterboldt noted that even if students forget their instruments, the teacher is responsible to provide instruction to that student. Following both Butterboldt's observations, Powell was provided copies of her observation's reports. Sue Martin, professional cadre member, was requested by Powell to provide feedback on Brown's instruction. Her report was introduced as Exhibit 29. During the same academic school year, Mrs. Saffer, vice-principal observed Brown pursuant to Powell's request. Saffer also utilized the classroom observation instrument during her observation of Brown. Saffer observed that Brown failed to properly correct the behavior of non-responsive students. Although critical, Saffer also complemented Brown on his positive action; however, after reviewing Brown's grade book for the day of her observation, Saffer was surprised that the students were awarded grades without any means of evaluation Saffer could decipher. Afterwards, Saffer met with Brown weekly regarding his grade book. In addition to the grade book, Saffer also discussed with Brown her observations (formal and informal) of his instructional conduct throughout the school year. Although Saffer did not evaluate Brown, she did provide her observations to Powell for his evaluation. In addition to school assistance and counsel, Powell provided Brown with many opportunities for professional training. Brown attended at least two training sessions to Powell's knowledge. However, Powell learned that Brown rejected a training conference in Jacksonville offered to him by Butterboldt because he said the presenters of the conference were "racists." On January 30, 2002, Powell provided Brown with a notice warning him of an unsatisfactory annual evaluation. Powell based his notice of a possible unsatisfactory evaluation on all of the observations and notations he made and had been provided to him. Thereafter, Powell observed another instruction by Brown in February of 2002. However, Powell never witnessed Brown perform pursuant to the schedule attached to a letter drafted by Brown which allegedly addressed Powell's concerns. Powell eventually prepared Brown's annual evaluation for the year which reflected Powell's assessment of Brown's unsatisfactory performance demonstrated throughout the academic year. John Williams is the director of professional standards for the District who was responsible for generating the termination letter once he received the second unsatisfactory evaluation. After reviewing all of the notices and evaluations, Williams not only determined that the manner in which both principals utilized the teacher assessment system was appropriate, but that Brown's performance required that the District initiate Brown's termination from employment.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Respondent, Thomas Brown, be dismissed from employment. DONE AND ENTERED this 11th day of March, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 March, 2003. COPIES FURNISHED: Derrel Q. Chatmon, Esquire Duval County School Board 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 John C. Fryer, Jr., Superintendent Duval County Schools 1701 Prudential Drive Jacksonville, Florida 32207-8182
The Issue Whether Respondent committed any of the offenses alleged in the Amended Administrative Complaint dated March 26, 2014, and, if so, what is the appropriate disciplinary penalty?
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates accused of violating section 1012.795, Florida Statutes, and related rules. Respondent Erin S. Scheumeister holds Professional Educator’s Certificate 982133. Valid through June 30, 2015, the certificate covers the areas of Elementary Education, English for Speakers of Other Languages, Exceptional Student Education, and Autism Spectrum Disorders. At all times material to this proceeding, the St. Lucie County School District (District) employed Ms. Scheumeister as an Exceptional Student Education teacher at Samuel S. Gaines Academy K-8 (“Samuel Gaines” or “Gaines Academy”). During the 2012-2013 school year, a typical school day in Ms. Scheumeister’s class ended with a science or social studies lesson which would be presented jointly with the class of Ms. Madelina. Ms. Madelina was another Exceptional Student Education teacher at Gaines Academy, and she and Ms. Scheumeister would co-teach the class. For the science lesson, Ms. Madelina would bring her class to Ms. Scheumeister’s classroom. Ms. Madelina’s self-care aide, Jane Alice Waite, assisted with the joint science lesson. During the 2012-2013 school year, two support staff members, a behavior tech and a paraprofessional, were assigned to Ms. Scheumeister’s class. Ms. Scheumeister is charged with violations that flow from an incident that occurred during a joint science class on Friday, March 8, 2013. The joint science class was conducted, as was customary, at the end of the school day but in Ms. Madelina’s absence because she was absent from school the entire day. In her place was Amy Crossland, a frequent substitute teacher at Gaines Academy. Ms. Crossland also substituted on occasion for Ms. Scheumeister when she was absent and had filled in for Ms. Scheumeister’s paraprofessional aide on more than one occasion so that she was familiar both with Ms. Scheumeister’s class and Ms. Madelina’s class and the arrangement for joint science or social studies classes at the end of the day. As Ms. Crossland put it at the hearing, “It [Ms. Scheumeister’s class] was a challenging classroom, so they [the Administration] would put me in there frequently because they knew I [could] do it.” Hr’g Tr. 11. One of the students in Ms. Scheumeister’s class was R.W., a nine-year-old male student with Autism Spectrum Disorder and Language Impairments. Described by Ms. Crossland as “a sweet kid but . . . a handful,” Hr’g Tr. 12, R.W. exhibited aggressive behavior on a regular, if not daily, basis. Ms. Scheumeister summed this behavior up as follows: He would hit, kick, punch staff, students, knock over desks, fall on the floor, roll around on the floor, knock over furniture. He would do self-injurious behavior such as pinching himself on the arm or he would run over into the kitchen and hit his head on . . . the counter where we have to block him from hurting himself. Hr’g Tr. 102. R.W.’s aggressive behavior was triggered when his routine was disrupted or he became upset. Whenever the trigger occurred, R.W.’s behavior became aggressive quickly. An example of R.W.’s aggressive behavior involved a sink in an island in the kitchen that is either adjoining the classroom or part of the classroom. The sink had a faucet that could be rotated away from a position above the sink into a position above the floor. In moments of acting out, R.W. would swivel the faucet and turn the water on so that water would pour onto the floor. Over the course of the several times that Ms. Crossland was present in Ms. Scheumeister’s class, she saw R.W. turn the faucet on above the floor. Ms. Scheumeister’s response usually consisted of attempts to redirect R.W. to appropriate behavior. By the time of the incident on March 8, 2013, R.W. had swiveled the faucet and turned it on to spill water onto the floor more than once that day. These spills occurred during the joint science class in the presence of students from the two classes of Mses. Scheumeister and Madelina. Immediately after the first time, R.W. ran from the sink and dropped to the floor, which was common behavior for R.W. when he did not get his way or was disciplined. Ms. Scheumeister “raised her voice a little bit,” Hr’g Tr. 13, and her facial expression indicated that her patience with R.W. was wearing thin. Ms. Crossland attributed Ms. Scheumeister’s less-than calm reaction to R.W.’s misbehavior, plus the added stress of the joint science lesson with so many students present in the classroom at once. Ms. Scheumeister did not do anything to R.W. physically the first time he ran the water onto the classroom floor on March 8, 2013. Her reaction became physical, however, when R.W. did it again. Ms. Scheumeister grabbed R.W.’s shoulders with both of her hands. With R.W. kicking and screaming, Ms. Scheumeister sat him on the floor. Ms. Scheumeister pushed and pulled R.W. through the water in what witnesses described as a mopping action. His shirt and shorts became wet. Ms. Scheumeister followed this physical discipline with words to R.W. with the effect that if he thought it was funny to spill water on the floor, she thought it would be funny for him to have to explain to his parents why his clothes were wet. Jane Alice Waite, a paraprofessional aide assigned to Ms. Madelina’s class, observed Ms. Scheumeister push and pull R.W. through the water on the classroom floor. Ms. Waite’s response was immediate. She gathered Ms. Madelina’s students, left Ms. Scheumeister’s classroom with them, and returned the students to Ms. Madelina’s classroom. Ms. Waite did not want her students to remain in the presence of Ms. Scheumeister’s actions with R.W. for fear that they would be upset or become over-excited, a tendency of autistic students. Ms. Waite appreciates that maintaining order in a classroom of autistic students can be a task that is “overwhelming.” Hr’g Tr. 46. Nonetheless, Ms. Waite found Ms. Scheumeister’s method of discipline of R.W. to amount to a loss of control and to be unjustifiable and inappropriate. Morgan Kelly was the behavior tech in Ms. Scheumeister’s classroom the day of the incident. Ms. Kelly confirmed the testimony of Mses. Crossland and Waite. She saw Ms. Scheumeister “proceed with the mopping action dragging [R.W.] back and forth across the water.” Hr’g Tr. 53. Ms. Kelly’s immediate reaction was to offer to change R.W.’s clothing. Ms. Scheumeister reiterated that R.W. could go home wet and his parents can wonder why. R.W. responded to the comment by again turning on the faucet and running water onto the floor. Ms. Scheumeister grabbed R.W. and dragged him through the water again and then instructed Ms. Kelly to put R.W. on the bus wet without a change in clothing. R.W. rode the bus home in wet clothing. The incident with R.W. was not the first time Ms. Kelly had observed Ms. Scheumeister act inappropriately with the autistic students in her classroom. On one occasion, Ms. Scheumeister disparaged her students for their inability to answer questions about a topic at kindergarten level that she had just read to them. On other occasions, Ms. Scheumeister said to some of her students that she intended to “choke them out.” Ms. Scheumeister also on more than one occasion pulled a student’s tee shirt over the back of the chair in which they were sitting so that the student could not get up. Ms. Kelly reported the incident with R.W. to Carolyn Wilkins, the principal of Gaines Academy at approximately 5:30 p.m. on the evening of March 8, 2013, a few hours after it occurred. Ms. Crossland also reported the matter. Rather than to the principal, Ms. Crossland submitted the report to the Exceptional Student Education Department chairperson. In the investigation that ensued, Mses. Kelly, Crossland, and Waite provided written statements. Ms. Waite’s view of the incident with R.W. differed from Ms. Crossland’s in one respect. Ms. Waite was “not sure” how R.W. ended up in the water. But her statement was consistent with the other two statements in that Ms. Waite wrote that Ms. Scheumeister “pulled him in the water two or three time[s] and stated she was not going to change him and he was going home wet and he got on the bus wet.” Pet’r’s Ex. 4. In the wake of the report from Ms. Kelly, Ms. Wilkins called the assistant superintendent of Human Resources. The assistant superintendent directed Principal Wilkins to call the Department of Children and Families and the school resource officer. Ms. Wilkins did so. She followed up the reports with a call to Ms. Scheumeister. In the conversation with Ms. Scheumeister, the principal informed her of the allegations, and ordered Ms. Scheumeister to report to the District office on the following Monday. The District followed its procedures dictated by reports of a teacher’s inappropriate conduct with a student. The District commenced an investigation, and Ms. Scheumeister was transferred to the District office on what the District refers to as a “temporary duty assignment,” Hr’g Tr. 81, or “TDA.” See Pet’r’s Ex. 7. In keeping with standard procedure, the District hand-delivered to Ms. Scheumeister a copy of a written document entitled “Notice of Investigation and TDA” dated March 11, 2013, the Monday after the incident with R.W. In May 2013, Principal Wilkins sent a letter dated May 29, 2013, to Ms. Scheumeister. It informed her that Principal Wilkins had decided not to recommend Ms. Scheumeister for reappointment for the 2013-2014 school year. An Administrative Complaint was executed on November 7, 2013. On March 26, 2014, Petitioner moved to amend the Administrative Complaint. The motion was granted following Respondent’s notice of withdrawal of her opposition to the amendment. A section of the Amended Administrative Complaint entitled “MATERIAL ALLEGATIONS” contains three paragraphs, numbered 3, 4, and 5. Paragraph 3 alleges: Respondent twice grabbed R.W., a 9-year-old student diagnosed with Autism Spectrum Disorder and Language Impairment, and dragged him across the floor in an attempt to mop up a puddle of water that R.W. had spilled. During this, Respondent stated to the student, “You think it is funny to flood the room? Well, I think its funny your clothes are wet.” When another school personnel offered to change R.W.’s clothes, Respondent refused to allow it and commented she wanted R.W. to go home with wet clothes. Paragraph 4 alleges: Respondent made inappropriate comments or actions to her nine (9) students, who are diagnosed with Autism, including but not limited to, “I’m going to choke you out”; “That’s a kindergarten book and you (students) are not as smart as kindergarteners”; “It’s ok his (student’s) pants are too tight, he shouldn’t reproduce,”; putting student’s over their chairs to prevent them from getting out of their chair and yelling at students. Amended Administrative Complaint, executed March 26, 2014, EPC Case No. 123-2596. Paragraph 5 alleges that following an investigation, Ms. Scheumeister’s “employment contract was non- renewed for the 2013-2014 school year.” On the basis of the material allegations, the Amended Administrative Complaint charged Ms. Scheumeister as follows: STATUTE VIOLATIONS COUNT 1: The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education. COUNT 2: The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board. COUNT 3: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. RULE VIOLATIONS COUNT 4: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety. COUNT 5: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. Ms. Scheumeister requested a formal hearing before DOAH on an Election of Rights form in which she disputed all allegations of the Administrative Complaint. On March 10, 2014, the Office of Professional Practices Services filed the case with the EPC, and the EPC announced in a letter dated March 11, 2014, that it would forward the case to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be revoked for a period of not less than five years and that an appropriate fine be levied for each count. If Respondent, when eligible, reapplies for an educator’s certificate and receives one, a condition of the certificate should be probation for a period of five years with additional conditions appropriate to the facts of this case to be set by the Education Practices Commission. DONE AND ENTERED this 8th day of September, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 8th day of September, 2014. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 (eServed) Lois S. Tepper, Interim 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) Carol R. Buxton, Esquire Florida Education Association 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316 (eServed)
The Issue Whether Patrick M. Hill, Respondent, is guilty of immorality and misconduct in office as more specifically alleged in letters of April 6, 1990 and May 18, 1990.
Findings Of Fact At all times relevant hereto, Patrick M. Hill held a professional services contract with the Polk County School Board as a remediation teacher at Lakeland High School. He also served as wrestling coach and cross country coach at Lakeland High School. During the spring break of the 1989-90 school year, Respondent told some students they could earn some extra money if they helped him paint his house. Erik Greatens, an 18 1/2 year old senior, agreed to help, and he, with a 25 year old man, John, and Respondent, worked all day painting. Around noon that day when all were hot and thirsty, Respondent told them there was beer in his refrigerator. Both Erik and John accepted the offer. Erik had one beer. When they stopped painting around 5 p.m., Respondent told them he would order pizza if they wanted to return later. Erik accepted and went home to shower and change clothes. He returned around 6:30 p.m. and shared pizza with Respondent. Erik testified that he had only the one beer that day at Respondent's home and that his father permitted him to drink an occasional glass of wine at home. He did not drink beer or any other alcoholic beverage while at Respondent's home that evening. Around 8:30 p.m., Erik left Respondent's residence and went to the Publix parking lot to meet some friends. At the parking lot that evening with his friends, Erik consumed 11 or 12 cans of beer before driving the four or five blocks to his home. When he arrived, his mother was up and considered her son was inebriated and that he had received the beer at Respondent's home. At the time, Erik told her he had only the one beer at Respondent's home, but, from his condition, the mother was sure he had drunk more than one beer. The following day, Mrs. Greatens called the Superintendent's office to complain about Respondent providing Erik with beer. Based upon that complaint, Respondent was suspended from his position as teacher at Lakeland High School. The professional Practices Council of the State Department of Education was notified of the charge so they could institute an investigation to determine if Respondent's state certificate should be disciplined. To date, no charges have been brought by the Department of Education. Subsequently, Petitioner learned that Respondent had pleaded guilty in New Jersey to a charge of contributing to the delinquency of a minor in 1973. A copy of this court record was admitted into evidence as Exhibit 3. In 1973, Respondent was a tenured teacher in the school district of the Township of Pemberton, Burlington County, New Jersey. Charges were preferred against Respondent by the Board of Education, and an administrative hearing was held to determine if the charges and circumstances surrounding the charges warranted dismissal of Respondent from his position as a tenured teacher. Following that hearing, the hearing examiner submitted a report recommending the charge and evidence insufficient to warrant a dismissal or reduction in salary. The Commissioner of Education adopted the finding and recommendation of the hearing examiner. In the instant proceedings, Respondent testified to the facts regarding the 1973 incident. That testimony is essentially the same as found by the hearing examiner in 1973 reported in Exhibit 4 as follows: The testimony offered by the Superintendent of Schools and respondent's building principal was that respondent is a good teacher, as evidenced by his past evaluations, and his record has been unblemished since his employ- ment by the Board. This matter has been brought to the attention of the Commissioner solely because of an incident which occurred on March 8, 1972, and that incident alone is the basis for the Board's action. On the evening of March 8, 1972, respondent was returning to his home after working late at his school on some extra curricular project. The record shows that Respondent was very active in the school community, and that he coached sports activities, served on the executive board of the local P.T.A., and served as President of the Pemberton Township Police Athletic League, in addition to his regular teaching duties. Respondent testified that it was a rainy night. On his way home, he picked up a hitchhiker who told him that he had a job in north Jersey and was on his way to visit his father in the Tuckerton area (approxi- mately thirty miles away). Because of the late hour and the poor weather conditions, Respondent offered the hitchhiker a place to spend the night in his home and told him he would drop him off at the inter- section of Routes #9 and #37 the next morning on his way to school. The hitchhiker accepted the offer and spent the night in respondent's home. Respondent testified that he also offered the use of his telephone so the hitchhiker could call his father, but that he refused saying that he was not expected anyway. He testified fur- ther that nothing untoward happened that night and that he dropped the hitchhiker off at the named intersection the follow- ing morning on his way to school. Respon- dent did not know that the hitchhiker was a minor; neither his appearance, nor his conversation about holding a job in north Jersey, nor having a drink and avoiding the police, lead (sic.)Respondent to conclude that the hitchhiker was a minor. (Tr. 19-22) None of this testimony is refuted by the Board, nor were any witnesses pre- sented by the Board to give any other version about what allegedly occurred on the evening of March 8, 1972. The Board, however, grounds its action against Respondent on his subsequent arrest by the police and his later indictment by the Grand Jury of Ocean County. A change of plea to that indictment reads in pertinent part as follows: (P-1) The State moved under Rule 3:74 to amend the third count of the indictment to read `did contribute to the delinquency of a minor by permitting him to remain overnight without parental consent'. The Court so ordered. Patrick Hill sworn. (sic.) As a result of plea bargaining, the Defendant retracted his former plea of Not Guilty and entered a plea of Guilty to the amended third (3rd) count of [the Indictment). * * * In the hearing examiner's judgment, it would be wrong to speculate why Patrick Hill made the plea (P-1) rather than pursue some other defense of the original charges made against him. He testified that he made the change of plea because he did allow the youth to stay in his home overnight. Suffice it to say that he was represented by counsel and the record must now speak for itself. Respondent entered a plea of guilty (P-1) which the Commissioner must con- sider in making his determination. N.J.S.A. 2A:96-4 reads as follows: A parent, legal guardian or person having the legal custody or control of a child, who by any continued negligence or willful act, encourages, causes or con- tributes to the child's delinquency, or any other person who by any wilful act encourages, causes or contributes to a child's delinquency, is guilty of a misdemeanor. The hearing examiner found that the unrefuted testimony of respondent, and the absence of any proof of conduct unbecoming a teacher by the Board, leads to the conclusion that the only fact before the Commissioner is that respondent knowingly permitted a minor to remain in his home overnight without the consent of the minor's parents. Respondent testified without contradiction that he was told by his attorney that the conviction would be expunged and he could forget it. Accordingly, Respondent concluded, albeit erroneously, that he never would need to reveal this record. Respondent moved to Florida and was employed as a junior high school teacher at St. Joseph's School, Lakeland, Florida, from 1979 to 1986 when he was employed by the Polk County School Board to teach at Lakeland High School. While at St. Joseph's, Respondent continued his extracurricular activities similar to those in New Jersey coaching children in wrestling and track, and he was involved in national and statewide wrestling programs for children. When he started teaching at Lakeland High School, Respondent continued his coaching activities and his work with children. He has been involved with helping troubled adolescents at the Polk Correctional Institute, served on the Governor's Council on Health, Physical Education and sports, was awarded man of the year honors for the AAU Wrestling Division, took a group of young wrestlers to Germany two years ago (1988) in a cultural exchange program and coordinated a return visit of German youth wrestlers to Florida in 1989. Respondent has excellent rapport with his students and with the student's parents. The letters admitted into evidence in Exhibit 5 extolling the virtues of Respondent as a teacher, coach and individual are not the pro forma, perfunctory letters of recommendation usually presented, but clearly indicate heartfelt esteem, appreciation and admiration. Respondent has had no prior disciplinary actions brought against him while teaching in Florida schools.
Recommendation Considering the reputation of Respondent, his rapport with students and peers, the time he has devoted to developing children into responsible adults and the conclusions that the acts complained of do not constitute immorality but are minor infractions coming under the definition of misconduct in office, it is recommended that Patrick M. Hill be found guilty of misconduct in office and suspended without pay for four months. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Post Office Box 391 Bartow, FL 33830 Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, FL 33806 John A. Stewart Superintendent of Schools Post Office Box 391 Bartow, FL 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
The Issue Whether Respondent's employment as a teacher by the Duval County School Board should be terminated for the reasons specified in the Notice of Termination of Employment Contract and Immediate Suspension without Pay dated March 27, 2013.
Findings Of Fact The Duval County School Board (School Board) is charged with the responsibility to operate, control, and supervise all free public schools within the School District of Duval County, Florida. Ms. Beverly L. Howard has been employed by the Duval County School Board as a classroom teacher for over 32 years. She went to Paxton Senior High School and then to Florida A & M University, graduating with a bachelor of science degree in elementary education. The School Board seeks to terminate Ms. Howard’s employment. Her substantial interests are affected by this intended action. Ms. Howard has a history of past misconduct and disciplinary action. While teaching at Hyde Grove Elementary School in 1992, Ms. Howard received three memoranda from Principal Theresa Stahlman concerning her interactions with parents and students and her teaching performance. Among other comments, Ms. Stahlman noted that Ms. Howard needed significant improvement to “show sensitivity to student needs by maintaining a positive school environment.” Ms. Stahlman testified that Ms. Howard exhibited a “very loud punitive behavior management style” and that she wanted to help Ms. Howard improve. A note at the end of one memorandum indicates that Ms. Howard had said that she did not need cadre assistance and that she would request assistance if she needed it. A note on another memorandum indicates that Ms. Howard refused to sign it. Ms. Howard testified at hearing that the things Ms. Stahlman wrote in the three memoranda were lies. Ms. Howard said that Ms. Stahlman was a racist and was prejudiced. Ms. Stahlman gave Ms. Howard an unsatisfactory evaluation. The next year, Ms. Howard got an option to go to another school. On March 8, 1995, a conference was held between Ms. Howard, a parent of one of her students, and Principal Debbie Sapp. The student had alleged that Ms. Howard had pushed her down. Principle Sapp noted in a memorandum that Ms. Howard “vehemently denied this, in an extremely rude and unprofessional manner” and said that she would never put her hands on a student. Principal Sapp advised Ms. Howard that being argumentative and defensive with parents was unacceptable and only made bad situations worse. On March 10, 1995, Principal Sapp was making morning classroom checks when she overheard Ms. Howard repeatedly yell at a student, “Get out of my classroom.” Ms. Howard’s final comment was “Get out before I throw you out.” Principal Sapp then entered the classroom and saw a student standing at her desk, about to leave. Ms. Howard said that the student had been misbehaving all morning. Principal Sapp told the students that she did not expect teachers to yell at them or threaten them and admonished them to behave. In a memorandum to Ms. Howard, Principal Sapp wrote that Ms. Howard needed to work on controlling her temper, noted that Ms. Howard’s classroom was frequently in disarray, and stated that yelling at students and threatening them was inappropriate behavior that only made things worse. Ms. Howard testified at hearing that when Ms. Sapp came down the hall and heard a teacher yelling, Ms. Sapp never came face-to-face with her, and that it could have been the voice of another teacher which Ms. Sapp heard. On May 27, 2003, the Office of Professional Standards investigated a complaint from a student’s parent that Ms. Howard had grabbed the student by the arm, choked him, and caused him to vomit. The student said that Ms. Howard dug her fingernails into his arm when he got up to retrieve a paper that another boy had taken from his desk. He said that her nails were hurting him, so he began hitting Ms. Howard. He then said that she put her hand around his throat and made him choke. He said he felt sick and threw up. Ms. Howard denied the accusation. She stated that the student was in a fight with a female student in her class and that she separated them. She said she asked the female student to sit down and attempted to gain control of the male student. Ms. Howard showed the investigator a scratch on her thumb that she said was made by the student. She stated that after she assisted the student to his desk he began gagging and attempting to vomit. She said that only saliva came up and she asked him to go to the bathroom to clean himself up. The investigation was closed as “unable to prove or disprove.” The Office of Professional Standards investigated allegations of unprofessional conduct against Ms. Howard on April 28, 2004. The mother of student T.J. had left a message with Ms. Howard to call her to talk about scratches on T.J.’s arm. Ms. Howard called the mother at her workplace, University of Florida Jacksonville Physicians. The mother asked Ms. Howard if she knew where the scratches came from, and Ms. Howard said they came from an incident in the library. The mother could then hear Ms. Howard asking T.J. and another girl in her class about what had happened. The other girl said that T.J. had done things to cause the incident. Ms. Howard immediately relayed to the mother that the incident had been T.J.’s fault. The mother became upset, realizing that Ms. Howard had not been present and yet was completely accepting the other girl’s version of what had happened. The mother then told Ms. Howard that this was not right and that she would go to see the principal. Ms. Howard told the mother that she could talk to whomever she wanted to, and then put the phone down as if intending to disconnect the call, but the mother could still hear what was going on in the classroom. Ms. Howard said, “Class, isn’t T.J. a nasty little girl?” The class responded, “Yes, ma’am.” The mother heard Ms. Howard say, “Class, don’t I send home paperwork?” The children responded, “Yes, ma’am.” The mother could hear T.J. trying to ask Ms. Howard a question, and Ms. Howard saying, “Go sit your behind down.” At this point the mother became angry that Ms. Howard was verbally abusing her child in front of the other children. She asked her “lead” at her workplace to continue to monitor the call. She immediately left, and drove directly to the school to talk to the principal, Ms. Blackshear. The investigator received statements from the mother’s lead and several co-workers which contained additional statements Ms. Howard made to the students. Ms. Howard said: [T.J.] get out of my face, you can go home and tell your mama all of those lies. Yeah, she is probably going to want to have a conference with Ms. Blackshear. Go ahead and get out of my face with your nasty disrespectful face. Ms. [T.J.] sit down, I have already told your mama that you will be retained in the second grade. You want to be all that, well I can be more. The investigator determined that the phone number shown on the workplace caller ID feature was the number of Ms. Howard’s cell phone. When interviewed by the Office of Professional Standards, Ms. Howard denied making the above comments regarding T.J. She stated that T.J. had been a problem all year and that the student’s mother “got an attitude” with her. Ms. Howard did admit she placed a “shelter kid,” who was a juvenile inmate, outside of her classroom without supervision “for a few minutes.” She stated that everyone in the school knew it was a bad class, but she was being blamed. Ms. Howard testified at hearing that the lead and co-workers of T.J.’s mother were lying when they made statements about her interactions with the students in her classroom. She said she put the phone in her purse, and the purse in her desk drawer, and that no one could have heard any conversations in the classroom. Student T.J. was then reassigned from Ms. Howard’s class. At hearing, T.J. testified that when she was in Ms. Howard’s third-grade class, she “got her card flipped to pink” on a daily basis (this color indicating the worst conduct). She admitted that she deserved this sometimes, but not all the time. She testified that she remembered that Ms. Howard used to pinch her arm when she was “in trouble.” T.J. remembered that Ms. Howard called her names, saying she was nasty, disrespectful, and in need of home training, in front of the other students. She testified that she had problems in Ms. Howard’s class because she needed to go to the bathroom frequently and Ms. Howard would only let her go once a day. She would sometimes wet her pants. She then would have to wait until she was allowed to go to the office to call her mother to get clean clothing. On May 17, 2004, the Duval County School Board administered discipline to Ms. Howard for her interactions with her class as reported by T.J.’s mother and her co-workers. She was issued a written reprimand, suspended for five days without pay, and required to attend an anger management session. Ms. Howard was informed that she had been given the opportunity of constructive discipline instead of a reduction of pay or dismissal to afford her progressive discipline, and that any further improper conduct on Ms. Howard’s part would subject her to more severe disciplinary action. The written reprimand set forth Florida Administrative Code Rule 6B-1.006(3)(a) in its entirety, with its requirement that she “make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.” Ms. Howard signed a Receipt and Acknowledgement that she received a copy of the reprimand. On September 6, 2012, shortly after the start of the 2012-2013 school year, Louis Sheffield Elementary School held an open-house night. Ms. Lindsey Connor, assistant principle at the school, credibly testified to Ms. Howard’s response to a parent’s assertion that Ms. Howard had refused to allow her son, T.S., to go to the bathroom and that he had wet his pants in her class. Ms. Howard said to the mother of T.S., “What seems to be the problem?” in a harsh tone. After some discussion, Ms. Howard said something to the effect of: “Your son is a liar. He lies. He doesn’t need to be in my classroom anymore.” Ms. Howard denied that she ever told the mother of T.S. that her child was a liar. She stated that that would have been unprofessional. Ms. Howard testified that Ms. Connor’s statement that this had happened was a lie and that Ms. Connor was always taking the parents’ side. Ms. Howard testified that she never prevented a child from going to the bathroom and that T.S. just wet himself. Ms. Conner received numerous complaints about Ms. Howard from parents of Ms. Howard’s kindergarten students. Ms. Connor received six requests from parents to remove their children from Ms. Howard’s class. Ms. Connor testified that this was an unusually high number of requests and that she was concerned. J.F. was a student in Ms. Howard’s kindergarten class who exhibited behavioral problems. She would do acrobatic flips in the classroom and would tie her shoelaces to the chairs. She appeared to be hyper-active and would fall out of her chair when she was at her seat. J.F. would go all around Ms. Howard’s classroom and did not listen to Ms. Howard. She would back-talk Ms. Howard and showed her no respect. J.F. was frightened of Ms. Howard and often cried. Ms. Howard testified that she wanted to get specialized treatment or placement for J.F. but that the parents would not agree. In response to a complaint from the parents of J.F., Ms. Connor asked Ms. Howard to prepare a chart on which stickers could be placed to document J.F.’s progress in school. Ms. Connor asked Ms. Howard to bring the chart to a meeting to discuss how to help J.F. advance. Ms. Howard did not bring anything to the meeting and said nothing about how she might be able to help J.F. The mother of W.B. testified that her son was in Ms. Howard’s kindergarten class and that he loved Ms. Howard as a teacher. On one occasion in Ms. Howard’s classroom, W.B.’s mother observed Ms. Howard pull J.F. by the arm over to her when J.F. had gotten into trouble. The mother stated that J.F. appeared scared and she would not have liked Ms. Howard to do that to her child. In response to a call from the parent of C.B., a student in Ms. Howard’s class, Ms. Connor suspected that Ms. Howard may have hit one or more of her kindergarten students with a book. In a discussion with the Professional Standards office, Ms. Connor was told that she should investigate, advise the teacher, and contact the Department of Children and Families. Ms. Conner conducted interviews with students assigned to Ms. Howard’s class in the presence of a witness and took notes as to what the students told her. She testified that she brought the students into her office individually, that they didn’t know beforehand what she was going to talk to them about, and that they had no opportunity to collaborate or coordinate their statements. After conducting interviews with the children, Ms. Connor advised Ms. Howard of an allegation that Ms. Howard struck J.F. on multiple occasions with a book. Ms. Howard responded that she would not provide a written statement because she had never hit a student. Ms. Connor notified the Department of Children and Families. The report and testimony of the child protective investigator indicated that J.F was open, happy, and smiling during the “non-threatening” portions of the interview, but the investigator testified that when asked about Ms. Howard’s class, J.F. became nervous, chewed on the ends of her clothes, began to fidget, and asked if Ms. Howard was going to know what J.F. was saying. The investigator interviewed several students in the class. The report indicated that J.F. was free of suspicious marks or bruises. When the investigator interviewed Ms. Howard, she denied ever hitting J.F. with a book or slamming her down in her seat when J.F. was misbehaving. Ms. Howard indicated that she was close to retirement and would not hit a child. Student J.F. testified at hearing that she did not like Ms. Howard as her kindergarten teacher because Ms. Howard “did not want to be nice to me.” She testified that Ms. Howard “hurt me.” She testified that Ms. Howard “hit me on the leg with a book.” She testified that Ms. Howard hit her with the book because Ms. Howard had told her to get down on the carpet. She held up five fingers when asked how many times Ms. Howard had hit her. During cross-examination, she testified that she had been hit five times in succession on a single occasion. On redirect, she testified that she had been hit on five separate days. Student K.D., aged six, testified that J.F. did bad things in Ms. Howard’s class. He testified that J.F. put her head in her shirt. He testified that the class would sit on the carpet every day for a little while. He testified that sometimes J.F. would stay on the carpet when she was supposed to go to her seat. He said that J.F. got spanked on her back by Ms. Howard with a book. He testified that Ms. Howard hit her on more than one day, and when asked how many days, said “sixteen.” He did not know how he knew it was 16 days. He later testified that Ms. Howard hit her “sixteen times every day.” The father of student J.C.M. testified that he transferred J.C.M. from a Montessori school to Louis Sheffield Elementary because his wife was going to have another baby and that school was closer to their home, which would mean a shorter drive for her. The first day that J.C.M. went to Ms. Howard’s class was February 11, 2013. The parents immediately began receiving “agenda notes” from Ms. Howard saying that J.C.M. was not behaving well. The father testified that J.C.M. did not want to go back to Ms. Howard’s class the next few days and would cry when they dropped him off. The father testified that since J.C.M. had never been a discipline problem and had done well at his prior school, he sent a note in after the second day to schedule a conference with Ms. Howard. The father testified that on the second or third day, J.C.M. came home complaining that his arm hurt, but when questioned as to what had happened, J.C.M. gave different stories. First he said a lady had grabbed his arm in the classroom. When asked “What lady?” J.C.M. said that it was a friend, another student. Later, he said that the injury had happened on the playground. Still later, he said that the injury was caused by his grandfather. The father was confused by these different answers. When the parents received no response to the request to meet with Ms. Howard, the parents went to the school and met with Ms. Connor, who advised them that Ms. Howard was no longer in the classroom, but she did not tell them why. Since J.C.M. now had a new teacher, his parents did not ask that he be moved to another class. Student J.C.M., aged six, testified that he had been moved into Louis Sheffield Elementary in the middle of the school year and only had Ms. Howard as his teacher for a few days. J.C.M. testified that on one of those days, “I was in the door and then I -- I didn’t kicked it. I didn’t kicked it, I touched it with my feet.” He testified that Ms. Howard grabbed him and put him by her desk or table and that his “arm hurted for a little bit –- a little bit long.” He testified that he saw Ms. Howard hit J.F. on the head with a book because she was not writing when she was supposed to be writing. He testified that on a later day Ms. Howard also hit him on the head with a book when he was on the rug, but he forgot if he was supposed to be on the rug or not. Ms. Howard testified at hearing that she never put her hands on any of the students. She did not know why the children would say that she had, except that they had been coerced to say it. She testified that she had been under a doctor’s care and that she had had back surgery and that her medical condition affected her ability to lift or throw items. She testified she could not bend over or lift heavy objects because it probably would have torn her sutures. She testified that she had been under a doctor’s care since January 30 and that it took her until February 14, the day she was reassigned, to recover. She testified that not only was it not in her character to hit a child, she was physically incapable of doing so at the time. The testimony of Ms. Connor that the kindergarten children had no opportunity to coordinate their statements and that they did not even know in advance why she wanted to talk to them is credited. Ms. Connor’s notes as to what each child told her supplement and corroborate the testimony of the children later at hearing. Although the direct testimony as to Ms. Howard’s actions all came from these young children, they were capable of observing and recollecting what happened in their kindergarten class and capable of relating those facts at hearing. Their responses to questions at hearing showed that the children had a moral sense of the obligation to tell the truth. There was no objection from Respondent as to the children’s competency, and they were competent to testify. These young children’s accounts of events were sufficiently credible and corroborative to prove that Respondent struck J.F. with a book on multiple occasions. There was credible testimony that J.F. was struck on her legs with a book when she would not get down on the carpet as she was supposed to, was struck on her back with a book when she would not get up off of the carpet as she was supposed to, and was struck on the head with a book when she would not write as she was supposed to. These physical contacts took place in front of other students. While the exact number of times she was struck was not clear, the testimony that it was deliberately done and was constantly repeated is credited. Ms. Sonita Young is the chief human resource officer of Duval County Schools. She reviewed Ms. Howard’s personnel file in making her recommendation to the Superintendent that Ms. Howard be suspended without pay pending termination. Ms. Howard’s employment record, including both performance issues and disciplinary issues, was considered in determining the appropriate recommendation to be made to the Superintendent and ultimately to the Board. A Notice of Termination of Employment Contract and Immediate Suspension without Pay from her position as a kindergarten teacher at Louis Sheffield Elementary was presented to Ms. Howard on March 27, 2013. The Notice alleged that Respondent had violated certain provisions of the Code of Ethics, contained in Florida Administrative Code Rule 6A-10.080, and a Principle of Professional Conduct for the Education Profession in Florida, contained in rule 6A-10.081. Ms. Howard challenged the grounds for her termination and sought a hearing before an administrative law judge with the Division of Administrative Hearings. The rules cited above were adopted by the State Board of Education and relate to the public schools or the public school system. Rule 6A-10.081 was renumbered, but is substantively identical to the rule cited to Ms. Howard earlier in her May 17, 2004, Written Reprimand. Ms. Howard was well aware of her responsibility to protect students from conditions harmful to learning or to students’ mental or physical health or safety, because she had previously been disciplined for failing to do so. Ms. Howard’s actions in striking J.F. with a book failed to protect her students from conditions harmful to their mental and physical health and safety in violation of rule 6A- 10.081. Ms. Howard’s constantly repeated actions in striking J.F. constitute persistent violation of the rule and are cause to terminate her employment as a teacher. Ms. Howard’s deliberate actions in striking J.F. constitute willful refusal to obey the rule and are cause to terminate her employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Duval County School Board enter a final order terminating the employment of Beverly L. Howard. DONE AND ENTERED this 15th day of October, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 15th day of October, 2013.
The Issue The issue in this case is whether a veteran teacher should be dismissed for having drawn and displayed a kitchen knife while quieting a noisy class.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. As of the final hearing, Respondent Lynn Deering ("Deering") had been a teacher for about 34 years. She holds a certificate to teach in Florida. During the 2004-05 school year, Deering was employed as a science teacher at Marjory Stoneman Douglas High School, which is a public school in Broward County. For reasons that will soon be apparent, it is pertinent to note that Deering contracted polio at a young age and as an adult has suffered from post-polio syndrome. As a result of these illnesses, Deering's upper-body is weak, the range of motion of her upper extremities is limited, and she has little grip strength in her right hand, which is dominant. Since 1985, Deering has been confined to a wheelchair.1 The incident giving rise to this case occurred on March 2, 2005. When the bell rang that day to start Deering's sixth period anatomy and physiology class, the students were excited and talkative. As was her practice, Deering raised her hand to signal that she was ready to begin teaching; this gesture usually quieted the class. This time, however, the students continued to talk, and the classroom was noisy——too noisy for Deering to be heard. So Deering, who was sitting (in her wheelchair) in front of a demonstration table located at the head of the classroom, hitched up her right shoulder, reached back behind her body, and grabbed a utensil from the top of the table. She then used the utensil to tap on a glass beaker——which was filled with water and flowers——to get the students' attention. The "utensil" in question happened to be a knife. It was a chef's knife,2 bearing the Chefmate™ brand on its blade. Measured from butt to point, the knife was approximately 10 and one-half inches long. From heel to point, the blade was roughly five and three-quarters inches in length; it was no wider than about three-quarters of an inch from edge to spine. The knife was in Deering's classroom at the time because she had been using it to slice flowers and potatoes for demonstrations in her biology class.3 Upon hearing the distinctive "tap, tap, tap" of blade on beaker, most of the students stopped talking. Some in the back of the room, however, perhaps being out of earshot, continued to converse. Two were especially oblivious. Presently, Deering wheeled over to their lab table, still holding the knife in her right hand, between her thumb and fingers. When she reached the students' table, Deering turned the knife over in her hand, so that the point was down and the edge faced away from the students (toward Deering herself). Deering leaned over the table, in front of the where the two students were sitting, raised the knife an inch or two above a couple of sheets of paper that were lying on the tabletop, and, loosening her grip, let gravity pull the knife down between her fingers.4 Driven by the knife's own weight, the point punched through the papers, leaving small slits in them, and scratched the surface of the tabletop. Now gripping the knife's handle more tightly (for had she let go the knife would have fallen), Deering said, "Hello!"——which she pronounced "Heh-LOW!"——"Do I have your attention?" She did. The students stopped talking. Some were startled or frightened; others were amused or nonplussed. None, however, reacted as one might when facing a genuine threat of harm, e.g. by screaming or fleeing. As she returned to the front of the classroom, Deering joked, "Don't mess with a postmenopausal woman . . . with a knife!" This was meant to be humorous and was not uttered in a threatening tone of voice. Following this incident, Deering taught her lesson as usual, and the class unfolded in routine fashion. Her use of the knife, in other words, produced no discernible immediate fallout. At least a few students, however, were sufficiently upset by Deering's conduct to report the matter to the administration, and they did.5 The students' report not only set in motion an internal investigation, but also prompted the administration to call the police. Somehow, as well, the incident rapidly made its way into the local news. At least one local TV station aired a brief, 35-second story on the incident, which was short on facts, long on sensationalism, and notably unbalanced, in that Deering's side was not shown. The undersigned cannot comment on the contents or accuracy of other media reports, for they are not in evidence. In due course, the Broward County Sheriff's Office commenced an investigation that brought forth a criminal charge against Deering, who found herself accused of having improperly exhibited a dangerous weapon. The crime of improper exhibition, which is a misdemeanor, is defined in Section 790.10, Florida Statutes, as follows: If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self- defense, the person so offending shall be guilty of a misdemeanor of the first degree[.] Deering ultimately pleaded no contest to the criminal charge and was sentenced by the county court to three months' probation and a $30 fine. Meantime, the School Board decided that Deering should be fired, voting at its regular meeting on August 2, 2005, to accept the superintendent's recommendation that she be suspended without pay pending termination of employment. Following her suspension, Deering accepted a teaching position at the Upper Room Christian Academy, where she was working as a science and math teacher at the time of the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Deering without pay pending dismissal and (b) awarding Deering the back salary, plus benefits, that accrued during the administrative proceedings, together with interest thereon at the statutory rate. DONE AND ENTERED this 31st day of July, 2006, 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 31st day of July, 2006.
The Issue Whether Respondent’s alleged conduct is a violation of Pinellas County School Board Policy 8.25 and/or Section 231.36, Florida Statutes, and is just cause for his dismissal as a teacher in the Pinellas County School District.
Findings Of Fact Respondent, Reginald K. Reese, is a teacher certified by the State of Florida, holding a professional service contract with Petitioner, the Pinellas County School Board (School Board). Respondent was employed as a substitute teacher by the School Board in August 1988. Respondent was hired as a full- time teacher in the Pinellas County School System in August 1989, and has been a teacher in the district since that time. At all times relevant to this proceeding, he was employed as a teacher at Riviera Middle School. Throughout his tenure with the School Board, Respondent's teaching career has been exemplary and he has consistently received good evaluations. It is undisputed that Respondent is held in high regard and considered an excellent teacher by many parents of children he has taught and by his colleagues and administrators with whom he has worked. Respondent is viewed by his former principal and current assistant principals as an excellent educator. His co-workers view him as an excellent teacher, the epitome of quality, a wonderful teacher, top-notch, one of the best, innovative, creative, compassionate with children, an inspiration to students, and one of the teachers students come back to the school to see. Two parents whose children were taught by Respondent several years ago believe that Respondent's work and effort as a teacher had turned their children around and made them responsible, productive adult members of society. Prior to the recommended disciplinary action which is the subject of this proceeding, Respondent has never been the subject of disciplinary action by the School Board or any of its administrators. On Wednesday, November 10, 1999, at about 1:00 p.m., Respondent parked his vehicle at the entrance of the south trail near the mangrove area in the vicinity of 4th Street and 115th Avenue in St. Petersburg, Florida. Respondent then exited his vehicle and entered the south trail of the mangrove area. It is undisputed that while in the mangrove area, Respondent engaged in a sexual activity, specifically oral sex and masturbation, with two other adults. The contact between Respondent and the other individuals was consensual and involved adults who were strangers to each other. This sexual activity was observed by Corporal Ward of the Pinellas County Sheriff’s Office. The mangrove area in which the incident occurred was not clearly visible from the street. However, the area is considered a public place and is next to a busy four-lane road. Moreover, within that vicinity, people engage in recreational activities, including sunbathing, fishing, and boating. After the sexual activity had concluded, Respondent was arrested at the scene of the incident described in paragraph 7 by an officer with the Pinellas County Sheriff’s Office who had observed the acts. As a result of the incident, Respondent was charged with committing an unnatural and lascivious act and exposure of sexual organs. Respondent pled nolo contendere to exposure of sexual organs and an Order Withholding Adjudication of Guilt was entered on December 30, 1999. Further, an Order Withholding Adjudication of Guilt on a Plea of Nolo Contendere to the charge of unnatural and lascivious act was entered on December 30, 1999. An Order to Seal Criminal History Record was entered on January 4, 2001. On the advice of counsel, Respondent did not report his arrest, the charges filed against him, or the orders entered resolving the criminal matters to School Board officials at or near the time they occurred. Respondent reported his arrest in a letter dated June 10, 2001, to the School Board’s Office of Professional Standards, when he applied for renewal of his teaching certificate. Upon receipt of the June 10, 2001, notification of Respondent’s arrest, the School Board investigated the matter. Following the investigation, on July 18, 2001, Respondent was notified in a certified letter that Dr. J. Howard Hinesley, Superintendent of Pinellas County Schools, would be recommending to the School Board that Respondent be dismissed from employment. The basis of the recommendation of dismissal is that the conduct engaged in by Respondent on November 10, 1999, violated Pinellas County School Board Policy 8.25 and the Code of Ethics and the Principles of Conduct of the Education Profession in Florida. It was alleged that these violations constitute just cause for Respondent's dismissal pursuant to Section 231.36, Florida Statutes. Dr. Hinesley's recommendation of dismissal is based on several factors. First, Dr. Hinesley believes that the conduct engaged in by Respondent on November 10, 1999, was immoral in that it took place in a public area. Second, Dr. Hinesley believes that dismissal of Respondent is warranted because Respondent's actions were inappropriate and embarrassed the school system and the school. Finally, Dr. Hinesley believes that the conduct engaged in by Respondent was inappropriate and impaired his effectiveness as a teacher in the Pinellas County School District. Information regarding the subject incident has not been widely disseminated because the record was sealed by court- order. However, all of the witnesses testifying in support of Respondent were advised of the details of the incident. In light of this knowledge, teachers who have worked with Respondent, a former administrator who supervised Respondent, former students of Respondent, parents of Respondent's former students, and community members supported Respondent. While admitting that Respondent made a mistake or had a lapse in judgment, they believe that his exemplary teaching record and dedication to students and to the profession will allow him to overcome the challenges that may arise if and when the incident becomes public. Many of them also believe that his service to the Pinellas County School District community will not be impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order that dismisses Respondent from his position as a teacher with the Pinellas County School District. DONE AND ENTERED this 2nd day of January, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 2nd day of January, 2002. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline Spoto Bircher, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Honorable Charlie Crist Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 Fourth Street, Southwest Largo, Florida 33770-3536 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
