The Issue Whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2003), and Florida Administrative Code Rules 6B-1.006(3)(a), 6B- 1.006(3)(e), and 6B-1.006(5)(d), and, if so, what discipline should be imposed.
Findings Of Fact Respondent holds Florida Educator's Certificate Number 806514. In February 2000, Respondent began teaching at Three Oaks Middle School (Three Oaks) in the Lee County School District. Respondent's contract was renewed for the 2000-2001 and 2001-2002 school years. He taught business education courses and was the advisor for the Future Business Leaders of America (FBLA) club during the 2001-2002 school year. Bob Sneddon had been the advisor for the FBLA club prior to Respondent's becoming employed at Three Oaks. Mr. Sneddon took another position within the school district, but continued with the responsibilities for the FBLA activities during the 2000-2001 school year. Mr. Sneddon could no longer continue working on FBLA activities during the 2001-2002 school year. Respondent assumed the responsibilities of the advisor for the FBLA activities at the beginning of the 2001-2002 school year. His responsibilities included conducting club meetings each Monday night, having fund raisers, taking FBLA students to conferences, and preparing the FBLA students for various competitions. In March 2002, during the school's spring break, Respondent and seven FBLA students went to Orlando for an annual conference and competition. James Rubright, a teacher at Three Oaks, and T.H., a parent, were chaperones for the competition. T.H.'s daughter, S.H., was one of the students attending the competition. Mr. Rubright had assisted with FBLA activities with Mr. Sneddon and had gone to the 2000-2001 competition with Mr. Sneddon and the FBLA students. Mr. Rubright was not an advisor or co-advisor for FBLA activities during the 2001-2002 school year. The evidence established that Linda M. Caprarotta, the principal at Three Oaks, had instructed Mr. Rubright to assist Respondent in getting the students registered for the competition because of time constraints. In that effort, Mr. Rubright had signed as a co-advisor for FBLA activities one time solely for the purpose of getting the students registered for the competition with the state FBLA organization. Mr. Rubright was also asked to attend the FBLA competition as a chaperone, but not as a co-advisor. At the beginning of the trip, Respondent, the students, and the chaperones received $84 per diem for the trip to cover the cost of meals. It was understood by the parents and students that the students would possibly go to Disney World while they were at the conference. After arriving in Orlando for the competition, T.H. became ill and had to be hospitalized. She contacted another parent, J.L., and asked her to come to Orlando to chaperone the female students. K.L., the daughter of J.L., was attending the competition. J.L. went to Orlando to chaperone the female students. When she arrived at the hotel, she, Respondent, and several students went to the hospital to see T.H. They were riding in T.H.'s van, and, on the way to the hospital, Respondent made inappropriate comments to J.L. within the hearing of the students in the van. Such comments included, "How do you keep your marriage spicy?" He also asked her if she had ever been tempted to cheat on her husband during their marriage. J.L. was embarrassed by the questions and tried to redirect the conversation. While J.L. and Respondent were visiting T.H. in the hospital, T.H. told J.L. to take her money to use at Disney World. J.L., not knowing that T.H. was talking about the per diem money that the school had provided and thinking that T.H. was talking about her personal funds, told T.H. that she had her own money and would not need T.H.'s money. When J.L. and Respondent returned to the van, Respondent asked J.L. if he could use T.H.'s money to pay for a ticket for his brother to go to Disney World with the students. J.L. later told Respondent that he could not use the money for his brother. Respondent's brother, Giovanni Troche, lived in the Orlando area and met Respondent and some of the students for breakfast while they were at the conference. Respondent wanted his brother to go to Disney World with them as a chaperone. He told the students that his brother could not go because of lack of funds. One of the students, A.H., decided to take up a collection from the other students to raise money for Giovanni Troche to go to Disney World. K.L. was reluctant to contribute money to the fund raiser. In response, Respondent told the students that if they had a brother or sister there who did not have enough money that he would lend them money. That remark made K.L. feel like she was being selfish if she did not contribute. Feeling obligated to contribute, K.L. donated five dollars for Respondent's brother. Respondent took the student's money to use for his brother. It is inappropriate for a teacher to accept money from students. Giovanni Troche did go with the students to Disney World. The group arrived at Disney World in the late afternoon. Some time during the evening and after a lot of walking, Giovanni Troche, who is a rather large person, developed a rash between his legs. He felt that he could not continue to walk because of the pain caused by the rash. Respondent secured a wheelchair for his brother and pushed him around the theme park. As a result of Respondent's brother being in a wheelchair, some of the students were able to move up to the front of the line for one of the rides. The evidence does not establish that Respondent secured the wheelchair for the purpose of getting ahead of others in the lines for the rides. Most of the students who attended the conference were high school students. On the last night of the conference, the FBLA organization sponsored a dance. Respondent attended the dance as a chaperone. While at the dance, Respondent observed female students kissing one another, female students raising their shirts and "flashing," and couples "dirty dancing." After the dance and on the way back to their hotel rooms, J.L. overheard Respondent make the comment that he had been helping the disc jockey, and there had been a lot of action going on, including raunchy dancing and girls flashing him. J.L. was upset that such comments would be made in the presence of students. The day after the dance, the group left Orlando to return home. The chaperones had taken their personal cars, and the Three Oaks students and Respondent had ridden a charter bus with high school students. The group stopped for lunch. While waiting outside for the bus driver to finish his lunch, K.L. and S.H. overheard Respondent talking to a group of high school males near the school bus. They heard Respondent brag to the high school students that he had helped the disc jockey and that they should have been there because he saw girls kissing other girls, girls were all over him, and girls were flashing him. S.H. went to her mother and told her what Respondent had said. T.H. told S.H. and K.L. to remain with her. K.L. was embarrassed and disgusted by Respondent's comments, and S.H. was shocked by his remarks. After the FBLA group returned home, Ms. Caprarotta received several complaints from parents concerning Respondent's actions on the field trip. An investigation was made, and, as a result, Respondent's teaching contract was not renewed for the 2002-2003 school year. L.A. came to teach at Three Oaks in February 2001. Respondent began to make flirtatious and overly complementary remarks to L.A. Respondent would come uninvited to her classroom and talk about his marital problems and tell her that he wished his wife were more like her and that her boyfriend was lucky to have someone like her. His conversations annoyed her and made her feel uncomfortable. She confided her feelings to a teacher on her team. The team teacher told the assistant principal, who approached L.A. about the situation. L.A. told the assistant principal that she would take care of the situation. Respondent's unwanted attentions continued into the fall of 2001. He e-mailed L.A. on a particular day and told her that she was good looking and that she should wear skirts. She e-mailed Respondent that she did not think that his e-mail was appropriate and that she did not want him sending her anymore e- mails. The situation finally came to a head one day when L.A. and Respondent were in the copy room. L.A. told Respondent that he made her uncomfortable with his compliments and that she was involved with someone. She also told him that his conduct was not appropriate and that she wanted him to keep his distance. L.A. was made uncomfortable by Respondent's actions toward her. Additionally, Respondent was teaching her son in a business class, and she did not feel that it was appropriate for her son's teacher to engage in such conversations with her. After their confrontation in the copy room, Respondent and L.A. avoided each other. After about a month of avoidance, L.A. asked Respondent if the situation could be "water under the bridge" and could they just be friends and co-workers. They shook hands, and Respondent did not make any further inappropriate comments to her. In January 2002, J.C. began working as a teacher at Three Oaks. By February 2002, Respondent began having conversations with her. At first, the discussions consisted of talk about school and the students and would take place while she was taking her students to be picked up by their parents. The conversations eventually included discussions about Respondent's unhappy marriage and J.C.'s separation from a previous spouse. Respondent, however, began to shift the conversations to a sexual nature. One day outside his classroom, Respondent asked J.C., "What's your favorite position?" Prior to this question, J.C. had not discussed her sex life with Respondent. His comment made her feel uncomfortable, and she told him, "I'm not going there." The next morning after his sexual comment, J.C. saw Respondent and went her way without talking to him. Just prior to lunch that day, Respondent sent an e-mail to her which stated, "Did I say something wrong?" She ran into Respondent after the morning e-mail, and he inquired whether she had gotten his e-mail. She replied that she had, and a discussion ensued. Later that afternoon, J.C. received another e-mail from Respondent which stated: I liked the conversation this morning. It was nice talking to you again. The advice you gave me was very interesting. I've been thinking about it. It's just too bad that you had somebody with the same problems in their relationship as me and you don't Qualify. I wish you did. A couple of weeks later, Respondent sent another e-mail which stated, "I'm still waiting for that e-mail. So just let me know when if ever. Take care." On another occasion, Respondent came to J.C.'s classroom, interrupted her work, and asked her, "Have you ever done it with a Hispanic guy?" Respondent called J.C. one day on his way home using his cell telephone while J.C. was still at school. J.C. told him that she was the wrong person to talk to because she was very happy in her current relationship. After the telephone call, J.C. tried to ignore Respondent, but Respondent would make comments in passing such as "Did you think about it?" or "Have you changed your mind?" or "Are you still happy?" J.C. stopped taking her students to be picked up by their parents in order to avoid meeting Respondent. J.C. tried to make it clear to Respondent that she was not interested in him, but the more she tried to brush him off, the harder he pursued her. She confided to Mr. Rubright that Respondent had been acting inappropriately toward her. Mr. Rubright told her that she needed to advise the administration at Three Oaks about the incidents. The day after her conversation with Mr. Rubright, J.C. did discuss her concerns about Respondent with Clayton Simmons, assistant principal at Three Oaks. Respondent's actions on the FBLA trip and with his female colleagues reduced his effectiveness as a teacher at Three Oaks. Some parents, including T.H. and J.L. were unhappy with his conduct; teachers at Three Oaks, including Mr. Rubright, L.A., and J.C., did not want to work with Respondent again; and some administrators at Three Oaks, including Ms. Caprarotta, Mr. Carson, and Mr. Simmons, did not want to work with Respondent again. J.L., who was a teacher at Three Oaks, did not want to work with Respondent at any school in the school district. After Respondent's employment at Three Oaks ended, he began working at Richmond Milburn Academy in Lee County. He has received satisfactory performance evaluations, and no complaints have been made against him concerning inappropriate comments. Respondent no longer discusses his personal problems with female colleagues.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2003), and Florida Administrative Code Rules 6B-1.006(3)(a), 6B- 1.006(3)(e), and 6B-1.006(5)(d); suspending his Florida Educator's Certificate for one year; upon employment in any public or private position requiring an educator's certificate, placing him on probation for three years on such terms as the Education Practices Commission deems advisable; and requiring Respondent to take a three-hour college level course in women's issues. DONE AND ENTERED this 5th day of August, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 5th day of August, 2004. COPIES FURNISHED: Nina Ashenafi, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Kelly B. Holbrook, Esquire Maria Ramos, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Post Office Box 3310 Tampa, Florida 33602-3310 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent's teaching certificate should be disciplined.
Findings Of Fact At all times material here Respondent was, and continues to be, an employee of the Hernando County School Board (HCSB) as a member of the instructional staff. Respondent is employed under a "professional service contract." The origin of these proceedings occurred on December 5, 1996, when Respondent was arrested for allegedly engaging in inappropriate sexual conduct with a male, minor student. Apart from the allegations raised in this case, Respondent has been a satisfactory and effective employee of HCSB. Respondent began working for HCSB in 1989 at Powell Middle School as a science teacher with regular classroom duties. He eventually became the technology resource coordinator at Powell Middle School. As such, he no longer had regular classroom duties. Throughout his teaching career, Respondent frequently tutored and mentored students who needed help. Even without regular classroom duties Respondent continued to help students. Such help continues today. In fact, Respondent is known and respected by peers and parents for the mentoring and tutoring he gives to students and the success he has had with troubled students. Beginning in January 1995, Respondent served as director of an after-school program at Powell Middle School. HCSB and the local YMCA sponsored and funded the after-school program until sometime in the Spring of 1996 when the program was discontinued. Respondent was in large part responsible for the successful creation, organization, and operation of the after-school program. The after-school program began immediately after each school day and continued until 5:00 p.m. The program was staffed by Powell Middle School staff and other adults who taught different classes. Some of the after-school activities, like swimming lessons, took place on the premises of the YMCA. The after-school program participants enrolled in the off-campus activities rode a school bus from the school to the various activities in remote locations. Respondent directed the after-school program initially from his classroom in the science building of Powell Middle School and, subsequently, from a room used as a computer lab, adjacent to his former classroom. A number of school administrators and teachers were constantly walking in and out of the areas where Respondent worked each day because supplies for the after-school program were stored in the computer lab storage rooms. After school, teachers frequently visited Respondent's work station unannounced. Janitors and work details were on the school premises until 11:00 p.m. Bathrooms and a refrigerator for staff were located near Respondent's work station. Respondent's classroom in the science building had large windows along the outside wall. There were windows between the computer room and Respondent's classroom. There were windows between the computer room and another classroom in the same building. The only area which had any possibility of privacy was a walk-in storage closet in the computer room. The doors to the science classrooms, the computer room, and closet were never locked. During the summers, Respondent spent his time working at Camp Sangamon, a camp in Vermont for boys of all ages. He began working at the camp in 1980 as a regular counselor. Later he served as head of the activity trip program. Respondent worked as the camp's assistant director for about eight years. In the Summer of 1995, Respondent lived in a cabin with older boys who were counselors-in-training (CITs). However, he spent almost all of his time in the administrative office taking care of paperwork, planning activities, and supervising programs. He never went to his cabin in the middle of the day unless he was specifically looking for a CIT. Respondent's cabin was on a main trail through the camp in close proximity to other cabins and a basketball court. People were constantly walking by the cabin, especially in the middle of the day during a free activity period. The cabin did not have a lock on its door. It had large windows with no screens, which were usually propped open with a stick. The panels that formed the walls of the cabin were separated by approximately one inch. The spaces between the panels left the interior of the cabin visible during the day. As assistant director, Respondent could arrange for Florida boys to attend the camp at a reduced rate. Over the years, he made these arrangements for several boys. Respondent met C.B., a seventh grade student at Powell Middle School, in 1995. C.B. was a very troubled young man. He regularly skipped school, lied, and ran away from home. His home life included physical and mental abuse. His relationship with his parents was poor. His grades were very poor and he was on a track for dropping out of school. In 1995, C.B. was not one of Respondent's regular students. He was a participant in the after-school program. Initially, C.B.'s stepmother called Respondent to check on C.B.'s attendance in the after-school program. The stepmother and Respondent discussed C.B.'s problems, including his attempts to run away from home. During subsequent conversations, Respondent offered C.B. a scholarship to attend Camp Sangamon for three weeks in the summer of 1995. C.B.'s family was pleased that he would have an opportunity to go to camp. They accepted Respondent's offer and made final arrangements for C.B. to attend camp for three weeks at a reduced rate. When C.B. arrived at camp in 1995, he announced that he was going to stay at camp all summer. Despite his initial positive attitude, C.B. had trouble adjusting to camp life. He had problems interacting with other campers. He sometimes would curl up into a fetal position and cry uncontrollably. Respondent often helped C.B. get through these episodes. With help from his counselors and encouragement from Respondent, C.B. stayed at camp for eight weeks. Gradually, Respondent learned of C.B.’s troubled home life and felt sympathy for him and wanted to help. During the summer of 1995, Respondent assisted C.B. with the completion of a science project. C.B. had to complete the project in order to be promoted to the eighth grade. Respondent's cabin was always open with CITs coming and going. There was no reasonable expectation of privacy in the cabin at any time. C.B.'s testimony that, at Respondent's request, he masturbated Respondent's penis in the cabin during a free activity period just before lunch is not credited since C.B.’s multitude of statements regarding multiple alleged incidents of sexual activity between Respondent and himself were highly inconsistent and consisted of changeable details which showed the implausibility, if not impossibility, of such activity occurring. In fact, all of C.B.’s allegations suffer from this infirmity. After returning from summer camp, C.B. went boating with Respondent and several other people. The group enjoyed snorkeling and water skiing. However, C.B. and Respondent were never alone on a boat. C.B. was in the eighth grade at Powell Middle School in the Fall of 1995. Even though he was not in one of Respondent's classes, C.B. often received passes from his teachers to visit Respondent's classroom during the regular school day. C.B. participated in the after-school program activities both on- and off-campus. There was some indication that C.B. was not permitted to go home after school unless someone was present at the home. Respondent regularly drove C.B. home following the close of the after-school program. Respondent worked one-on-one with C.B. to improve his grades. Respondent also worked one-on-one with other students during the same time period. He set up a program for C.B. that required C.B. to obtain the signatures of his teachers on an attendance and work form. Two to three times a week, Respondent visited C.B.'s home to tutor C.B. C.B. also was tutored by Jen O’Connor during the after-school program. C.B.'s grades improved markedly and he made the honor roll during the first grading period of his 8th grade year. Respondent encouraged C.B. to set high school graduation as a goal which would cause C.B. to be the first in his family to remain in school and graduate. C.B. testified that during the after-school hours of the 1995-96 school year, he twice complied with Respondent's request to masturbate Respondent's penis on school grounds, either in the science classroom or the adjoining computer/storage room. This testimony is contrary to the greater weight of the evidence and again lacks credibility. On October 20, 1995, Respondent took C.B. to Disney World as a reward for his academic success during the first grading period. The Disney trip was an incentive for good progress which had been agreed to earlier that year by C.B.’s parents. Respondent and C.B. traveled in Respondent's pickup truck and shared the expenses of the trip. C.B. left with enough money to buy a one-day pass to one of the three Disney parks. Respondent and C.B. arrived at the Disney World parking lot before the amusement park opened. They parked in front of the ticket booth around 9:00 or 9:30 a.m. Other cars were also arriving. Parking attendants and people waiting to enter the entertainment area were in close proximity to Respondent's vehicle at all times. Disney was running a special promotion for Florida residents. For a small increase in the price, a Florida resident could purchase a pass to all three Disney parks for a year. Respondent wished to go to all three parks but could not do so unless C.B. was able to take advantage of the Disney promotion. Respondent and C.B. paid their entrance fee for all three parks with Respondent providing the difference in price. They entered one of the theme parks as soon as it opened for business. The evidence did not show that there was anything inappropriate about the ticket upgrade or Respondent making up the difference in price. The purchase of the pass was in no way harmful to C.B. With so many people around, there was no privacy or expectation of such in Respondent's truck. C.B.'s testimony that he masturbated Respondent's penis in the Disney World parking lot is not credited. During the 1995-96 school year, Respondent arranged for C.B. to attend a counseling session with a guidance counselor at Powell Middle School. Respondent made the appointment because he suspected that C.B. was the victim of abuse at home. On February 5, 1996, C.B. and his father had an argument. The father lost his temper and punched C.B. in the face and ear. C.B. did not go to school the next day. The school resource officer noticed bruises on C.B.'s face the following week at school. He reported his observations to an investigator from the Department of Children and Family Services. C.B.'s father admitted to the investigator that he hit C.B. in the face. The authorities took no legal action against C.B.'s father. At the end of his eighth grade year, C.B. was promoted to ninth grade and would be attending Springstead West High School. At the time, both C.B. and his parents expressed great appreciation over the help Respondent had given to C.B. That summer C.B., with the permission of his parents, again attended camp at a reduced rate. He went to Vermont early so that he could earn money working at camp before it opened. During his stay at the camp, Respondent "fronted" C.B. the money to buy a portable CD player, CDs, and some articles of clothing with the understanding that C.B. would repay Respondent later from the funds C.B. had in his camp account. In fact, C.B. did repay Respondent for these items. Additionally, Respondent permitted C.B. to use his credit card to order and purchase items from a catalog over the telephone. Again C.B. paid Respondent back. There was no evidence that these purchases were improper or harmed C.B. Mrs. Peady O'Connor, one of Respondent's friends, also went to camp in the summer of 1996 to work in the kitchen. C.B. stayed at camp all summer, returning home with Respondent and Mrs. O'Connor on August 16, 1996. There was no evidence the scholarships to camp Respondent provided during any of the summers at question here were improper. If anything, the scholarships benefited C.B. and the other boys who received them. Immediately upon his return to Florida, Respondent began having trouble with his truck. He took it to the shop on Saturday, August 17, 1996. He spent the rest of the day with a friend, Jackie Agard. Respondent did not go boating that weekend. School started on August 19, 1996, for the 1996-97 school year. Respondent returned to work at Powell Middle School as the technology resource coordinator. C.B. attended ninth grade at Springstead West High School. C.B. would occasionally contact Respondent for help. On Tuesday, August 20, 1996, Respondent leased a new sport utility vehicle. It did not have a pre-installed trailer hitch necessary for towing Respondent’s boat. The next Saturday, August 24, 1996, Respondent spent the day with friends from out-of-town. He did not go boating that weekend. On August 29, 1996, Respondent purchased a trailer hitch. He intended to install the hitch personally. That same day, Respondent and Chuck Wall, a scuba diving instructor, met with C.B. and his parents. The purpose of the visit was to sign C.B. up for scuba diving lessons. Respondent agreed to pay for the lessons as he had for those of other young people. Again, no evidence demonstrated that such lessons or the payment for scuba lessons were inappropriate or in any way harmful to C.B. On Saturday, August 31, 1996, Respondent took some of his friends to dinner and a movie in his new vehicle. He did not go boating that weekend. Respondent's boat was parked at the home of his parents all summer while Respondent was in Vermont. It was still there when Respondent installed the trailer hitch on his new vehicle on Labor Day, September 2, 1996. On September 3, 1996, Respondent took C.B. to his first scuba diving lesson. After the lesson, Respondent, C.B., and Mr. Wall took Respondent's boat to a marina at Crystal River. After launching Respondent's boat, Chuck Wall had difficulty getting the boat to run because it had not been used for such a long time. Respondent left his boat at the marina for the rest of the fall boating season. The greater weight of the evidence indicates that C.B. and Respondent never went boating alone. There was no inappropriate sexual conduct between C.B. and Respondent on Respondent's boat. On Saturday, September 7, 1996, Respondent took a group of students to Disney World. The trip was a reward for the students' involvement with a video yearbook project sponsored by Respondent. C.B. did not participate in the activity. The next Saturday, C.B.'s scuba diving lesson was cancelled. C.B. did not go boating with Respondent or have a scuba lesson that weekend because he was on restrictions at home. Respondent was invited to and attended C.B.’s stepmother’s birthday party on September 17, 1996. On or about September 18, 1996, C.B.'s parents became aware that C.B. was responsible for long distance phone calls to a girl that C.B. met at camp. The calls totaled about $300.00. Initially, C.B. had hidden the bill from his parents. C.B.’s stepmother discovered the bill. After a confrontation with his parents over the telephone bill, C.B. ran away from home. For the next few days, C.B. was living with friends. There was no evidence that Respondent knew where C.B. was staying or that once he discovered his whereabouts that Respondent withheld that information from anyone. Respondent was eventually asked to help locate C.B. On September 21, 1996, Respondent went to C.B.'s home. C.B.’s father asked Respondent what he thought should happen with C.B. regarding living at home. Respondent suggested that C.B.'s parents let C.B. live with the O'Connor family for a short period of time. He also suggested that C.B. receive counseling and agreed to arrange for the therapy. Mr. and Mrs. O'Connor and their son and daughter were close friends of Respondent. They are good, decent people. The son, Sean O'Connor, was away at college. The daughter, Jennifer or Jen, still lived at home. C.B.'s parents agreed to let C.B. live with the O’Connors on a trial basis provided that C.B. remain on restrictions within the O'Connor home for a period of time and pay back the telephone charges he had incurred. The O'Connors did not live within the Springstead West High School District. C.B. did not want to talk to his parents. Therefore, Respondent and the O'Connors worked together to provide C.B. with transportation to and from school. Further the parents did not provide C.B. any money for lunch while he was at the O’Connors. Again it was up to both Respondent and the O’Connors to provide C.B. with lunch money. C.B.’s parents were aware of the need for transportation and lunch money but did not offer to provide or provide any of these needs while C.B. was at the O’Connors. In fact, C.B.’s parents did not attempt to visit C.B., communicate with C.B., or be otherwise interested in C.B.'s well-being during his month long stay at the O’Connors. Respondent also purchased C.B. a beeper to facilitate communication between C.B. and Mrs. O'Connor. All of these provisions were reasonable for C.B. There was no evidence which showed these items were improper gifts on the part of Respondent or could reasonably be anticipated to cause harm to C.B. On the contrary, these "gifts" were beneficial, if not necessary, to C.B. After moving in with the O'Connors, C.B. was allowed to attend a football game. He did not meet Mrs. O'Connor after the game as he had been instructed. The police found C.B. and turned him over to C.B.'s stepmother. As soon as he got to the gate of his parent's property, C.B. got out of his stepmother's car and ran away again. The police eventually found C.B. at the home of his stepbrother's girlfriend on October 2, 1996. C.B.'s parents told the police to release C.B. to Respondent's custody. Respondent took C.B. back to live with the O'Connors. October 7, 1996, was an early release day at school. Respondent, C.B., and another student left from school to look for a lost anchor. Later that evening, Respondent dropped off C.B. at the O'Connors' residence then proceeded to take the other student home. October 8, 1996, was a hurricane day for the school district. Mrs. O'Connor was at home all day. Respondent and C.B. were never alone in the O'Connors' home. There is no persuasive evidence that Respondent ever performed anal intercourse upon C.B. at the O'Connors' home or at Powell Middle School in the storage closet of the computer room. During the time that C.B. lived with the O'Connors, Respondent arranged for C.B. to attend two counseling sessions with a school psychologist. On October 23, 1996, there was an ESE staffing meeting at Springstead West High School regarding C.B. The meeting was related to C.B.'s special education program. At some point prior to the meeting, the assistant principal was asked to investigate the fact that C.B. was living at the O'Connors and attending a school outside the zone in which the O'Connors lived. Normally, the principal would not be at a staffing meeting. He did not participate in any decision regarding C.B.'s education. Both Respondent and Mrs. O'Connor were invited to attend the meeting by C.B.'s stepmother. All three people attended the meeting along with appropriate education staff. The meeting grew heated over the issue of out-of- district attendance with Respondent becoming exacerbated with the principal and calling him a "liar" and addressing the principal forcefully while getting up out of his chair. The principal became verbally forceful with Respondent. Eventually, both calmed down. Forcefully stating a position is not coercion and the evidence did not show that either Respondent’s or the principal's behavior was either coercive or oppressive, especially since the principal later was instructed by the Superintendent to apologize to Respondent for his behavior during the meeting. During the meeting, C.B.'s stepmother decided it was time for C.B. to return home. She was prepared to take C.B. home that night after the meeting. She asked Respondent to leave her son alone. However, apparently her words were spoken out of exasperation since C.B., who was at the school, left with Respondent and Mrs. O’Connor at the conclusion of the meeting with C.B.'s mother's consent. C.B. had an appointment with a therapist that evening. C.B.'s father would pick C.B. up at the O'Connors the following day. On Thursday, October 24, 1996, C.B.'s father went to the O'Connors to pick up C.B. and move him back home. When the father arrived at the O'Connors' home, C.B. attempted to have a heart-to-heart talk with his father. C.B. wanted to know why his father always sided with his stepmother against him. He also told his father that he did not want to return home. His father told C.B. that he was coming home and that he could either come home the easy way or the hard way. When the father insisted that C.B. return home, C.B. went down the hall and ran out into the backyard of the O'Connors' home. C.B.'s father went out the front door and around the corner of the O'Connors' house. C.B.'s father caught up with C.B., grabbed him from behind, pulled him to the ground, straddled him and, while holding C.B. on the ground with a knee in C.B.'s pelvic area, repeatedly punched C.B. in the face with a closed fist and an overhead strike. C.B.'s father picked his son up by the collar and drug him over to a metal fence. C.B. was trying to push his father’s hands away. His father grabbed C.B. by the neck and slammed his head into the metal fence approximately three times. He struck C.B. about three more times in the face with a closed fist. At that point, a witness to the struggle grabbed C.B.'s father from behind in a half nelson and pulled him off of C.B. Once the father had released his grip and stepped back, the witness let go of C.B.'s father. During the first part of the struggle, C.B.'s father was calling his son a "fucking asshole" and "dirty little bastard." C.B. was yelling that he wanted to kill himself, wanted to get this over with, and hated himself. The father's response was that he could help his son end his life, that he had a gun back at the house, and "you know, we can get this on right now, let's kill you, let's get it over with." Almost immediately after being pulled off, C.B.'s father attacked his son again, grabbed him by the collar and struck him several more times in the face with a closed fist and slammed his head into the ground several times. The witness grabbed C.B.'s father again and tried to pull him off. C.B.'s father did not want to disengage and resisted the witnesses' efforts. The witnesses forced C.B.'s arms off his son and held him. At some point during the struggle, Mrs. O'Connor had come into the backyard. C.B. grabbed Mrs. O'Connor around the ankles and would not let go. C.B. was crying saying he wanted to die and "stop it, stop it, please." Mrs. O'Connor was yelling at C.B.'s father to stop. C.B.'s father still had C.B. by the belt loop and the neck. He had one knee in C.B.'s back. He was grinding C.B.'s head into the ground. The witnesses was forcing C.B.'s father's arms off C.B. Mrs. O'Connor told her daughter, Jen, to call the police. At that point, C.B.'s father let go of C.B. and ceased his attack. All of the blows which the father hit his son with were full force punches. C.B. was bloodied and bruised by his father. Photographs taken show extensive bruising on C.B.'s face. Incredibly both C.B. and his stepmother deny the physical effects of the struggle that night. C.B.'s father was arrested and taken to jail. The next day, C.B.'s stepmother filed a police report alleging that Respondent had sexually abused C.B. After his father was arrested, C.B. spent one night with his stepbrother. His stepmother told him not to attend school the next day. She wanted C.B. to go with her to talk to the authorities and to get C.B.'s father out of jail. Despite these instructions, C.B. rode to school with Jen O'Connor. When C.B.'s stepmother discovered that he was at school, she went to pick him up. When she arrived at school, C.B. refused to go home with or meet with her alone. Because he would not meet with his stepmother alone, he met with her in the presence of the school resource officer. Because C.B. refused to go home, C.B. was taken to a youth shelter in Pasco County, known as the Run-Away Prevention (RAP) house. C.B. ran away from the shelter that night at about 1:00 or 2:00 a.m. C.B. turned to the only adults he knew who could safely contact for help. C.B. called the O'Connors from a pay phone at a mini market in Pasco County. Respondent was at the O'Connors at the time. Both Respondent and Mrs. O'Connor went to pick up C.B. Respondent drove because Mrs. O'Connor did not drive. They picked C.B. up at the mini market in Pasco County. Both discussed with C.B. where he could go. Because of the incident with C.B.'s father, C.B. could not return to the O'Connors' house. Respondent suggested that he return home. However, C.B. rejected that suggestion, saying he would immediately run away again. Additionally, Respondent and Mrs. O'Connor very reasonably believed it would not be physically safe for C.B. to return home. All decided that C.B. would go to the home of another teacher. When they arrived at the teacher's home, some discussion occurred about C.B.'s predicament. There was some discussion about emancipation, but the discussion was purely theoretical. C.B. was given the number for the Domestic Violence Hotline so that he could call and report his father and perhaps obtain some protective services from the state. Neither the teacher nor her roommate, who was also a teacher, reported C.B. to the police or advised his parents of his whereabouts. They did not so report because they reasonably feared for his safety. This was the last time that Respondent had any material contact with C.B. The next day C.B. left the teacher's house and stayed with a friend that he generally stayed with when he ran away. The friend was known to his parents and the friend' house was within a mile of C.B.'s home. Interestingly, C.B. continued to sporadically attend school while on runaway status until he was prevented from riding the bus to school by a bus driver. During the time C.B. was on runaway status, no one asked Respondent if he knew where C.B. was or if he could guess where he might be. Moreover, under these facts, Respondent did not have the duty to report any such information about C.B. On October 29, 1996, and November 6, 1996, a deputy sheriff interviewed C.B. about the allegations raised by his stepmother. On both occasions, C.B. denied that Respondent had ever engaged in or attempted to engage in inappropriate conduct with him. On November 8, 1996, a sheriff's detective, Detective Baxley, and a worker from the Department of Children and Family Services each questioned C.B. C.B. again denied ever having any sexual contact with Respondent. In November 1996, C.B. returned to live with his parents. On November 13, 1996, the day that C.B.'s father made his first court appearance, with some direction on what needed to be said to the state attorney from Detective Baxley, C.B. told the state attorney, in the presence of both parents, that he did not want to press charges against his father and that the "fight" was his fault. The charges were subsequently dropped. On November 18, 1996, Detective Baxley and Detective Cameron interrogated C.B. Towards the end of the interview, C.B. accused Respondent of having inappropriate sexual contact with him on two occasions. C.B. alleged that he had masturbated Respondent's penis in Respondent's cabin at camp in the summer of 1996.1 C.B. also alleged that he had masturbated Respondent's penis on Respondent's boat in Crystal River sometime in the early Fall of 1996, within weeks of the beginning of school. The detectives had C.B. call Respondent. They taped the conversation without Respondent's knowledge. C.B. told Respondent that the police had given him a polygraph when in fact they had used a computer voice stress analyzer. Respondent told C.B. he had nothing to worry about as long as he told the truth. The police interrogated C.B. again on November 27, 1996. During this interview, C.B. accused Respondent of inappropriate sexual conduct involving masturbation of Respondent's penis in Respondent's science classroom or the computer room at Powell Middle School during after-school hours of the 1995-96 school year. Respondent was arrested on or about December 5, 1996. In January of 1997, C.B. alleged for the first time that he masturbated Respondent's penis in the parking lot at Disney World on October 20, 1995. On March 27, 1997, C.B. accused Respondent of having anal sex with him at the O'Connor residence during a "hurricane day" in October of 1996. On April 16, 1997, C.B. accused Respondent of having anal sex with him in the walk-in closet of the computer/storage room at Powell Middle School on two occasions in September or October of 1996. None of these various accusations were credible. Finally, there was no credible evidence that Respondent interfered with the relationship between C.B. and his parents in a manner which could reasonably be foreseen to harm C.B. Moreover, there is nothing in the statutes or rules of DOE which, absent harm, purports to make interference with a parent's custody or ignoring a parent's wishes a violation of those rules subject to discipline. Respondent met A.P., a sixth grade student at Powell Middle School, in 1995 as a participant in the after-school program. A.P. was a very out-going person, who demanded attention. He was also known for lying, especially when seeking attention. At times, Respondent, as director of the after-school program, had to discipline A.P. A.P. did not find Respondent to be strong, mean, violent, or scary. He never heard Respondent swear, tell dirty jokes, talk dirty, or threaten anyone. During his sixth grade year, A.P. would routinely visit Respondent's classroom during the school day even though Respondent was not one of his teachers. A.P. often visited Respondent during the after-school program. Respondent frequently gave A.P. a ride home after the after-school program. Respondent offered A.P. a scholarship to attend Camp Sangamon in the Summer of 1995. With the consent of his parents, A.P. attended camp at a reduced rate for three weeks that summer. In the Fall of 1995, A.P. was in the seventh grade. He was in a science class taught by Respondent. He continued to attend the after-school program. Respondent worked on computers during the times that A.P. and other students visited in the computer room. There is no persuasive evidence that pornographic pictures of nude males on the Internet ever appeared on the computer monitors while Respondent was operating a computer in A.P.'s presence. In January of 1996, A.P. continued to visit Respondent in Respondent's classroom or in the computer room after school. Respondent did not at any time ask A.P. to touch Respondent in a sexually inappropriate manner. Respondent never masturbated A.P.'s penis on school property. Respondent developed a plan for A.P. to work and earn money so that he could attend camp during the Summer of 1996. A.P. did not follow through with the plan. Consequently, he did not attend camp for the second time. In the Fall of 1996, A.P. entered the eighth grade at Powell Middle School. A.P. continued to visit Respondent in the computer room after school up until the police arrested Respondent. Just before Respondent's arrest, Detective Baxley interviewed several of Respondent's students. One of those students was A.P. Of his own accord, Detective Baxley went to A.P.'s home to interview him. During the interview, A.P. told the detective that Respondent had shown him pornographic pictures from the Internet in the school's computer room. A.P. also claimed that, on one occasion, A.P. declined Respondent's request for A.P. to touch Respondent's penis. On another occasion, Respondent allegedly masturbated A.P.'s penis. According to A.P., the latter two incidents took place in the computer room. At one point, A.P. also admitted to a teacher and a guidance counselor that he had lied about these incidents. Again the greater weight of the evidence shows that Respondent did not engage in any sexual activities with A.P. or engage in any improper behavior or relationship with A.P. Respondent never harmed A.P. in any way. J.K. was another student attending the after-school program at Powell Middle School. He went to school with both C.B. and A.P. He also attended Camp Sagamon during the summer for at least one summer. While at camp, J.K. testified that one time Respondent, while sitting on the porch of his cabin, asked him about what he thought about two men being together. However, J.K. does not remember what the specific words were. J.K. did not particularly respond and left. Nothing was said about anybody having sex. The statement did not have a sexual connotation. Clearly, no violation of the statutes and rules is supported by such a vague, out-of-context statement. J.K. also recalled one incident when Respondent accidentally bumped into J.K. while he was in the storage room. The incident occurred when J.K. came out from behind the door to the storage room while Respondent was entering. The back of Respondent's hand brushed J.K.'s groin area. Respondent was startled by the encounter, jumped back and said excuse me to J.K. Again, nothing in this incident even remotely supports a violation of statute or rules. Finally, J.K. testified about Respondent teasing him about not skinny-dipping while at summer camp. The episode occurred while J.K. and Respondent were on Respondent's boat with a group of other people. None of the others overheard the conversation or were in a position to overhear the conversation. There is nothing in the episode which suggests that the teasing was overbearing or disparaging. Again, no violation of the rules or statutes was shown.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Education enter a final order finding Respondent not guilty of any violations alleged in the Administrative Complaint and dismissing the Administrative Complaint. Jurisdiction is reserved over the issue of attorney fees should the parties not be able to agree on such. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 24th day of June, 2002.
The Issue At issue herein is whether or not the Respondent School Board of Dade County's reassignment of the Petitioner based on an alleged pattern of disruptive behavior in the educational program should be sustained.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. During September, 1978, Victor John Cecchi was transferred from Miami Springs Junior High School to the Jan Mann Opportunity School North. Charles W. Bales, the principal of Miami Springs Junior High School appeared at the hearing and testified that the Petitioner was transferred based on an extensive pattern of "disruptive behavior in the educational program which deprived other students in the program of the full benefits of the educational system." According to principal Bales, the transfer to the Jan Mann Opportunity School North is one where the Opportunity School provides a more controlled atmosphere, smaller classes, more direct supervision which enables a "problem child" to get the benefits of the Dade County educational program. It is eventually the goal of the Opportunity School to reintegrate the "problem child" back into the regular school system so that he is mainstreamed back into the full academic process. During the period October 4, 1977 through the assignment in September of 1978, Petitioner had been referred to the principal's office 35 times for referrals due to disruptive behavior. Principal Bales testified in detail respecting the various incidences by the Petitioner wherein he had been involved in an extended pattern of disrupting classes, leaving the school campus without permission, engaging in altercations with other students and destroying the personal property of others. During these incidences, petitioner was at times returned to the school campus by truant officers and officers from the Miami Springs Police Department While the Petitioner, through his father, does not dispute the fact that he was referred to the principal`s office based on a pattern of disruptive behavior, Petitioner requested that his son be reconsidered for reassignment back in the normal school program at Miami Springs Junior High School. In this regard, testimony reveals that the Petitioner has attended the Jan Mann Opportunity School for a total of only three days since his reassignment to the center. Testimony reveals further that the school system through its Opportunity School affords "problem or disruptive students" opportunity to reacclimate themselves through the process by attending the Opportunity School which provides a different setting. For example, the classroom setting is very individualistic and the number of students range from eight to twelve. Special vocational programs are offered and the pupil to counselor ratio is greater in the Opportunity School. For these reasons, and based on the fact that the Respondent has afforded Petitioner numerous occasions within which he was allowed to correct his disruptive pattern while attending the Miami Springs Junior High School, I shall recommend that the Respondent's reassignment of him to the Jan Mann Opportunity School be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the petition filed herein be dismissed. DONE and ORDERED this 27th day of August, 1979, in Tallahassee, Florida. COPIES FURNISHED: Richard Cecchi 331 Swallow Drive Apartment 17 Miami Springs, Florida 33166 Michael J. Neimand, Esquire Dade County School Board Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33013 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1979.
The Issue The basic issue in this case is whether there exists "just cause" within the meaning of Section 231.36(1)(a), Florida Statutes, to terminate the professional services contract between the School Board of Gadsden County, Florida, and John C. Buckley. The School Board seeks such a termination on the basis of allegations that John C. Buckley engaged in various forms of inappropriate conduct during the course of a science fair trip. Briefly summarized, the allegations are that John C. Buckley (a) permitted students to smoke cigarettes, (b) purchased alcoholic beverages in the presence of a student, (c) consumed alcoholic beverages in the presence of students, (d) provided alcoholic beverages to students and permitted them to consume such beverages, and (e) inappropriately touched one or more female students. At the hearing, the parties presented the testimony of several witnesses, including the testimony of Respondent. Following the hearing, a transcript of the proceedings was filed and all parties thereafter filed timely proposed recommended orders. The parties' proposed recommended orders have been carefully considered during the formulation of this recommended order. All findings of fact prepared by the parties are specifically addressed in the appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the evidence received at the hearing and the admissions of the Respondent, I make the following findings of fact: At all times material, the Respondent, John C. Buckley, was employed as a science teacher at the James A. Shanks High School in Gadsden County, Florida. At all times material, the Respondent was employed under a professional service contract as defined in Section 231.36(3)(a), Florida Statutes (1987). The Respondent accompanied a group of Gadsden County high school students to Jacksonville to attend a science fair on April 13, 1988, through April 16, 1988. There were three other adults present during the trip; Oscar Rogers, a school bus driver employed by the Gadsden County School Board, Cynthia B. Clark, a science teacher from Carter Parramore Middle School, and Betty Williams, a chaperon. On the way to Jacksonville, the following three female students rode with the Respondent in his personal car: Ginger Godwin (10th grade), Twanna Scott (12th grade), and Yvonne Dunson (12th grade). The other students and adults rode in a school bus. During the drive to Jacksonville, two of the students in Respondent's car were smoking cigarettes. The Respondent knew these two students intended to smoke in his car and he did not prohibit either student from smoking in his car. During the evening of April 13, 1988, the Respondent drove in his car to a liquor store in Jacksonville, where he purchased some beer, some bottled wine coolers, and a small bottle of bourbon. Twanna Scott, a student, rode in Respondent's car to and from the liquor store, but she did not get out of the car when the Respondent went into the liquor store. During the evening of April 13, 1988, the Respondent consumed several beers, probably three or four. Some of the Respondent's consumption of beer took place in the presence of some of the students, specifically at a time when the students and the adults on the trip were eating pizza for their evening meal. The Respondent did not, on April 13, 1988, or any other time, provide any alcoholic beverages to any of the students, nor did he permit any of the students to consume alcohol. Later, on the evening of April 13, 1988, the Respondent entered the motel room in which Ginger Godwin, Twanna Scott, Yvonne Dunson, and Precious Anderson were staying. At the time the Respondent entered the room, Godwin, Scott, and Dunson, and several other people were also in the room. During the time the Respondent was in the room a door that connected to the next room was open. The next room was the room in which Cynthia B. Clark, a teacher, was staying with two other female students. While the Respondent was in the room, Twanna Scott complained of a stiff back and the Respondent sat on the edge of the bed and gave Twanna Scott a brief back rub. At the time of the back rub, the only other people in the room were Ginger Godwin and Yvonne Dunson. Following the back rub, the Respondent left the room. The Respondent did not touch any part of Twanna Scott's body other than her back. The Respondent did not touch either of the other female students who were in the room. On the evening of April 14, 1988, while the Respondent was away from the motel with some of the students, Ginger Godwin, Twanna Scott, and Yvonne Dunson told Cynthia B. Clark, one of the teachers, that they wanted to spend some time watching television in the motel room of some insurance salesmen they had recently met at the motel. Mrs. Clark agreed to let them do so, subject to some ground rules which included: the door to the salesmen's motel room had to remain open, the curtains had to remain open, and the girls had to check with Mrs. Clark every 30 minutes or so. At about 9:45 p.m. during the evening of April 14, 1988, Mrs. Clark walked by the salesmen's room and observed Ginger Godwin drinking a beer. Mrs. Clark told Ginger Godwin that she did not approve of such conduct and Ginger Godwin acted indifferent to the disapproval. Mrs. Clark told the girls that they needed to be back in their own rooms by 10:30 p.m. Sometime between 10:30 and 10:45 p.m., Mrs. Clark returned to the salesmen's room and tried to get the three girls to return to their own room. They essentially ignored her and remained in the salesmen's room. The Respondent returned to the motel sometime shortly after 11:00 p.m., at which time Mrs. Clark told him about the three girls in the insurance salesmen's room. Mrs. Clark and the Respondent then went to the salesmen's room and the Respondent told the girls they had to return to their own room. After some argument, the three girls eventually complied. Later in the evening the salesmen were down tapping on the window of the girls' motel room and the girls were talking to the salesmen through an open window. When this was brought to the Respondent's attention, he went to the girls' room, told them they should go to bed and tried to get the salesmen to leave. The three girls and the insurance salesmen all rebuffed the Respondent's efforts, and the Respondent ultimately had to call the motel security guard. At about that time, Ginger Godwin got into a heated argument with the Respondent, during the course of which there was some yelling and shouting back and forth. Apparently there were further heated arguments the next day about the salesmen. At some point in the arguments, Ginger Godwin threatened to retaliate against the Respondent as a result of his interference with the relationship between the three girls and the insurance salesmen. The threats made to the Respondent included statements such as, "I know how to get you," "I'm going to take care of your job Monday," and "I'll get even with you and I'll take care of you Monday when I get back." Upon returning home, Ginger Godwin, Yvonne Dunson, and Twanna Scott reported to school authorities that the Respondent had engaged in improper conduct during the science fair trip. They accused the Respondent of, among other things, improper sexual touching of Dunson and Scott. The allegations of improper sexual touching were false. School rules prohibit the use of tobacco substances at school campuses, activities, or field trips. School rules prohibit the consumption of alcoholic beverages on School Board premises, at school activities, and on school field trips. School rules prohibit the consumption of alcoholic beverages by teachers in the presence of students, during school field trips. When supervising field trips, teachers have 24-hour supervisory responsibility over the students on the field trip. The Respondent had been previously warned to curtail his smoking in front of students by Janey DuPont, an Administrator employed by the Petitioner. Respondent had also been specifically warned by Janey DuPont not to consume alcoholic beverages in the presence of students. The Respondent knew or should have known that he was not supposed to be drinking alcoholic beverages in the presence of students under his supervision.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the administrative charges against the Respondent Buckley be dismissed and that the Respondent be reinstated as a professional service contract teacher with full back pay. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1988. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1988. APPENDIX TO RECOMMENDED ORDER The following are my specific rulings on all findings of fact proposed by the parties to this case. Findings proposed by Petitioner: Paragraph 1: Accepted Paragraphs 2 and 3: Rejected as unnecessary recitation of procedural details. (Findings have been made incorporating the substance of the conduct admitted by the Respondent.) Paragraphs 4 and 5: Rejected as unnecessary. Paragraphs 6, 7, 8, 9, and 10: Accepted. Paragraph 11: Rejected as irrelevant to the issues in this case. Paragraphs 12, 13, 14, 15, 16, and 17; Accepted. Paragraphs 18 and 19: Rejected as subordinate and unnecessary details. Paragraphs 20, 21, 22, and 23: Accepted, with some unnecessary details omitted. Paragraphs 24, 25, 26, 27, and 28: Rejected as subordinate and unnecessary details. Covered in preliminary statement. Paragraph 29: Accepted. Paragraphs 30 and 31: Rejected because there is no clear and convincing evidence that any inappropriate touching of female students occurred on this occasion and, absent any inappropriate touching, the proposed details are subordinate and unnecessary. Specifically, there is no persuasive evidence that the Respondent made several attempts to bite Twanna Scott on her ear. Ms. Scott's testimony to that effort is unconvincing. The Respondent's denial is accepted. Paragraphs 32, 33, 34, and 35: Rejected as not supported by credible evidence. I reject as unworthy of belief the testimony that the Respondent provided alcoholic beverages to three students. I accept the Respondent's denial that he provided alcoholic beverages to any student. Paragraph 36: Rejected as irrelevant because the Respondent has not been charged with this conduct and, in any event, there is no evidence that Respondent consumed sufficient alcohol to impair his ability to drive safely. Paragraph 37: First fourteen words rejected as contrary to the greater weight of the evidence; I have rejected the testimony that Respondent provided alcoholic beverages to any students. Next seven words rejected as irrelevant and unnecessary because there has been no showing that the Respondent consumed sufficient alcoholic beverages to impair his judgment. The remainder of this paragraph is accepted. Paragraph 38: First sentence rejected as vague and inaccurate; the subject student was wearing a robe and was on the bed watching television. Second sentence accepted in substance with a few clarifying details. Paragraphs 39, 40, and 41: Rejected as contrary to the greater weight of the evidence. In view of all the circumstances, the Respondent's denials and the Respondent's version of what occurred is more believable than the testimony of Yvonne Dunson, Twanna Scott, and Ginger Godwin. Yvonne Dunson, Twanna Scott, and Ginger Godwin are not credible witnesses. Paragraph 42: Rejected as inaccurate; the girls made a report when they returned, but it was a false report. Findings proposed by the Respondent Paragraphs 1, 2, 3, 4, 5, and 6: Accepted in substance. Paragraphs 7 and 8: Rejected as constituting summaries of testimony rather than proposed findings of fact. Further, the subject matter of these paragraphs is irrelevant because in the hand holding in the car is not the "inappropriate" touching with which the Respondent has been charged. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraphs 11, 12, 13, and 14: I have not made any findings on the subject matter addressed by these paragraphs because there is no clear and convincing evidence that any inappropriate touching of female students occurred on this occasion and, absent any inappropriate touching, the proposed details are subordinate and unnecessary. Paragraph 15: Rejected as subordinate and unnecessary details. Paragraph 16: First sentence accepted. Second sentence rejected as irrelevant. Paragraphs 17 and 18: Rejected as constituting summaries of testimony rather than proposed findings of fact. On this subject, I have found that the greater weight of the evidence is consistent with the Respondent's denial. Paragraph 19: Accepted in substance. Paragraphs 20, 21, and 22: Rejected as constituting summaries of testimony rather than proposed findings of fact. (The summarized testimony has not been credited.) Paragraph 23: First sentence accepted. Second sentence rejected as not supported by persuasive evidence; I seriously doubt that Ginger Godwin told the other two girls anything about any "incidents" on Wednesday night. I believe the three girls (Ginger Godwin, Twanna Scott, and Yvonne Dunson) fabricated their stories at a later date. Paragraph 24: Rejected as constituting a summary of testimony rather than proposed findings of fact. I have, however, made findings of fact consistent with the Respondent's version of this incident. Paragraph 25: Accepted in substance. Paragraph 26: Rejected as subordinate and unnecessary details. Paragraphs 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, and 37: Accepted in substance. COPIES FURNISHED TO: CLAUDE B. ARRINGTON, ESQUIRE RUDEN, BARNETT, MCCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A. 101 NORTH MONROE STREET MONROE-PARK TOWER, SUITE 1010 TALLAHASSEE, FLORIDA 32301 PHILIP J. PADOVANO, ESQUIRE POST OFFICE BOX 873 TALLAHASSEE, FLORIDA 32302 ROBERT H. BRYANT SUPERINTENDENT OF SCHOOLS SCHOOL BOARD OF GADSDEN COUNTY POST OFFICE BOX 818 QUINCY, FLORIDA 32351
The Issue Whether Respondent, Stephen Lauster (Mr. Lauster or Respondent), violated section 1012.795(1)(g) and (j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1. and (2)(a)5.; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Respondent is a teacher in the School District and has been since 1990. He holds Florida Educator’s Certificate 664969, covering the areas of educational leadership and music, which is valid through June 30, 2021. The Commissioner is the head of the state agency, the Florida Department of Education. The Commissioner is responsible for investigating and prosecuting misconduct allegations against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. During the period relevant to the allegations in the Amended Administrative Complaint, Respondent was employed as a music teacher at the Middle School in the School District. Respondent’s annual professional evaluations for the relevant periods show scores considered “effective” and “highly effective.” Despite this, Respondent has an extensive disciplinary history with the School District, which is set forth below. On or about March 17, 2006, Respondent received a letter of reprimand from his then-principal, Frank Zencuch. On or about March 27, 2009, Respondent received a warning of unsatisfactory behavior from Principal Zencuch. On or about April 2, 2009, Respondent submitted a rebuttal to the March 27, 2009, written warning. On or about May 13, 2009, a Grievance Procedure Level II hearing was held to determine whether the letter of reprimand should be removed from Respondent’s personnel file. The grievance was denied by a School District representative and the letter of reprimand remained in Respondent’s file. On or about December 12, 2013, Respondent’s then-principal, Margaret Jackson, completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about February 7, 2014, Principal Jackson completed a conference summary regarding Respondent, concerning insubordination. On or about April 24, 2014, Principal Jackson completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about March 30, 2018, Principal Jackson completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about April 5, 2018, Respondent submitted a rebuttal to the March 30, 2018, conference summary. The Bus Incident on May 28, 2018 On May 28, 2018, Respondent was on his way home from school and was driving behind a school bus, which had left the Middle School ahead of him. Respondent was driving a large sports utility vehicle which allowed him to see into the rear window of the bus he followed. Respondent noticed students on the bus leaving their seats and moving around. Respondent contacted the School District’s transportation center to report the actions of the students on the bus. Respondent testified that after making his complaint to the transportation center, he saw no change in the actions of the students on the bus, who continued to leave their seats. Respondent continued to follow the bus until it made its first stop in a private gated community. Student M.O. lived in the gated community and got off at this stop to go home. At the time of the incident, M.O. was eleven years old. Her mother, K.O., waited in the community parking lot to pick M.O. up from school. When the bus stopped, Respondent pulled his car alongside the bus, exited his vehicle, and hurriedly approached the bus. M.O. disembarked the bus and walked towards her mother’s car. Respondent stood in front of the opened door of the bus and began to yell at the bus driver. Respondent then beckoned M.O. back to the bus. Respondent angrily yelled at M.O., telling her that the next day, “you come to the band room straight to the band office. If I have to come and find you it’ll be worse than what you are going to already get.” Seeing this transpire, K.O. approached Respondent to inquire about what was happening and why he was yelling at her daughter. K.O. asked Respondent who he was. Respondent told K.O. that the bus and M.O. were “in violation” and that M.O. was required to report to him in the morning. Respondent then continued to yell at the bus driver. He demanded the driver send another student to him—a student he claimed he witnessed standing in the bus’s aisles while it was being driven. K.O. touched Respondent’s arm from behind, to gain his attention. Respondent yelled at K.O. that she should not touch him. They engaged in a verbal exchange that was transcribed by a court reporter during K.O.’s. deposition: Respondent: Get your hands off me. Don’t ever touch me. I am doing what I’m supposed to do. K.O.: (Unintelligible.) Respondent: Lady, it’s fixing to get a lot worse. K.O.: What did you say to me? Respondent: I said, “Lady, it’s going to get worse.” Respondent scolded the bus driver for what he considered to be the driver’s inaction. He threatened all of the students on the bus with a “referral.” K.O. remained at the bus stop until the bus left. M.O. was upset and embarrassed by the incident. She did not know Respondent personally; she only knew that he was the school’s band director. The other students witnessed Respondent yelling at M.O. and K.O., which added to M.O.’s embarrassment. Later that evening, when K.O. arrived at home, she emailed Edward Laudise, the assistant principal of the Middle School, regarding the incident. The next day, Respondent reported to the Middle School, where he was told by Principal Jackson that he was not allowed to have any contact with M.O. On or about July 31, 2018, the School District’s Director of Human Resources recommended that Respondent be terminated based on the bus incident. The School District’s Superintendent joined in the recommendation for termination. However, on or about August 21, 2018, the School District suspended Respondent for a period of five days, without pay, instead. Thereafter, Respondent was the subject of several other disciplinary actions, unrelated to the bus incident. On or about August 27, 2018, Principal Jackson completed a conference summary regarding Respondent’s language/conduct toward students, co-workers, and parents, and his poor attendance and tardiness. On or about May 7, 2019, Principal Jackson held a meeting with Respondent to discuss allegations that Respondent told students, among other things, that “they would be the first generation of young people to die before their parents,” and that they “sound like they have stage 4 cancer.” On or about May 28, 2019, Respondent received a letter of reprimand and recommendation for a four-day suspension from the School District Director of Human Resources. On or about May 29, 2019, Respondent received a letter of reprimand and four-day suspension from the School District Superintendent. In September 2019, Respondent entered into a settlement agreement with the School District, through which the four-day suspension was reduced to two days. The P.E. Incident on January 30, 2020 A.H. and L.H. are students who attend the Middle School. On the date of the hearing, which was held approximately six months after the incident, A.H. and L.H. were 13 years old. On or about January 30, 2020, A.H. and L.H. were participating in physical education (PE) class. Melea Morgan was the PE teacher. A.H. and L.H. left PE class to go to the restroom. There is conflicting testimony as to the amount of time A.H. and L.H. spent in the bathroom, but the amount of time is irrelevant. After leaving the restroom, the students walked towards a water fountain. Respondent contacted Ms. Morgan to let her know that A.H. and L.H. were in the bathroom for a long time. He asked if she approved of him going to get them and Ms. Morgan agreed. Respondent approached A.H. and L.H. as they walked towards the water fountain. Respondent admonished A.H. and L.H. for being in the bathroom for an extended amount of time. He told them that they should be participating more in PE class and that he would be referring them to in-school suspension (ISS). Both A.H. and L.H. distinctly and explicitly recalled the events that took place that day. A.H. credibly testified about her interactions with Respondent, stating: And then Mr. Lauster – and then I started telling Mr. Lauster, so we will participate more, can we please not go to ISS. And he said, well, you’re on the soccer team, you shouldn’t be hanging out with a loser. She’s a do-nothing. You can’t -- you shouldn’t be hanging. And then I was just, like, we will participate more and I’m sorry. He was like, I expect more from you because you’re on the soccer team. And I was just -- and L said nothing. And I was just, I will do more. And then he just kept calling L a loser. A.H. distinctly recalled that Respondent referred to L.H. as a “do- nothing” and a “loser.” L.H.’s testimony was the same. She recalled that Respondent referred to her as both a “loser” and a “do-nothing” and that he asked A.H. why she was hanging out with “this loser,” referring to L.H. Respondent threatened to send A.H. and L.H. to ISS, but then told them he would give them another chance. The School District initiated an investigation into the matter. On or about March 6, 2020, Respondent received a letter of termination from the School District’s Superintendent. On or about April 22, 2020, Respondent entered into a settlement agreement with the School District. Pursuant to the terms of the settlement agreement, the School District did not terminate Respondent. Rather, the settlement agreement operated as a “last chance agreement,” which provided for an automatic termination should any future infractions occur. Respondent was neither apologetic nor remorseful for how he handled A.H. and L.H. Instead, in testimony that was wholly unconvincing, he maintained that he did not call L.H. a “do-nothing” or a “loser,” but, rather, that he told the students that they “made a loser decision” and “chose to be do-nothings in the bathroom.” At only 12 or 13 years old at the time of the incident, L.H. was impressionable. By all accounts, she is a very shy girl. L.H.’s mother testified that L.H. struggles with anxiety and that in the past she has felt like she is a loser and does not have friends. She was “shook up” by Respondent’s comments. Similarly, Respondent was unremorseful and unapologetic about his actions during the bus incident. Respondent attempted to justify his behavior towards M.O., her mother, and the bus driver. He testified that he needed to stop the bus because he saw inappropriate activity on the bus that could have been dangerous to everyone onboard. Respondent is correct that the students on the bus were engaging in inappropriate behavior—they were getting in and out of their seats, walking in the aisles, and playfully fighting with each other. However, Respondent handled it poorly. Principal Jackson testified that the appropriate reaction would have been for Respondent to contact the School District’s transportation department (which he did) and then report the inappropriate behavior to school administration the next day. He should not have approached the bus or condemned the students or the bus driver. Respondent was clearly angry when he spoke to M.O. He lost his composure. Worse still, he directed his anger to K.O. Ultimate Findings of Fact The undersigned finds that Petitioner proved by clear and convincing evidence that Respondent inappropriately yelled at and intimidated M.O. who had changed seats on the bus while it was moving. Respondent also became confrontational with M.O.’s mother and threatened the remaining students on the bus with referrals, regardless of whether they were misbehaving or not. Petitioner also proved by clear and convincing evidence that Respondent told L.H., in front of A.H., that she was a “loser” and a “do nothing.” The undersigned finds that based on the findings of fact above, Respondent’s conduct during the bus incident and the PE incident have been proven by clear and convincing evidence and that Respondent, through his actions, violated the statutes and rules as alleged in the Amended Administrative Complaint. None of the other factual allegations contained in the Amended Administrative Complaint were proven by clear and convincing evidence.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission finding that Respondent, Stephen Lauster, violated section 1012.795(1)(j) by violating rule 6A-10.081(2)(a)1. and (2)(a)5.; and as sanctions for such violations, suspending his educator’s certificate for one year from the date of the Final Order. DONE AND ENTERED this 3rd day of November, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 3rd day of November, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Lisa M. Forbess, Interim Executive Director Department of Education Education Practices Commission Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Pursuant to Section 120.57(3)(f), Florida Statutes, the issue is whether Respondent's proposed rescission of an award of a design-build contract to Petitioner for the construction of additions to two high schools was contrary to the Respondent's governing statutes, rules or policies or contrary to the specifications of Respondent's request for qualifications.
Findings Of Fact On March 30, 2004, Respondent issued a Request for Qualifications (RFQ) for design-build firms to design and construct additions at Southwest Miami Senior High School and Miami Killian Senior High School. The RFQ invites parties to submit proposals, if they are interested in performing the design and construction of three-story additions at each school (the subject projects). Respondent had used the design-build approach for school construction for the past seven to ten years. In this process, the contractor assumes the responsibility for most of the project, as well as, of course, the project construction. For the subject projects, Respondent entered into a contract with a Design Criteria Professional (DCP) to represent Respondent, as the owner, in certain aspects of the construction project. The DCP for these projects is Santos/Raimundez Architects, P.A. The contract between Respondent and the DCP states that Respondent has selected the DCP based, in part, on its designation of specialists, including Fraga Engineers for the mechanical and electrical work. The contract provides that any such specialists that are subconsultants to, rather than employees of, the DCP will enter into subcontracts with the DCP, but not Respondent. The DCP and its designated specialists form the DCP Team, which performs various tasks in connection with each project. These tasks include site investigations to determine project feasibility, the production of project-specific Phase I or schematic drawings from the master specifications that Respondent maintains for school construction, and the issuance of a building permit for the schematic design. Once the contractor commences construction, the DCP Team visits the site to protect Respondent, as the owner, from deviations from the approved design. The DCP Team also approves draws based on the percentage of work completed and change orders, as appropriate. The DCP Team performs about 10-15 percent of the overall design for a project. For the subject projects, the DCP Team spent seven months in performing its responsibilities prior to Respondent's selection of a contractor. The only involvement of Fraga Engineers with the subject projects is for the mechanical and electrical work noted above, as well as plumbing and fire-suppression work of a similar nature for which the DCP also contracted. For the subject projects, Petitioner retained Silva Architects as its architect and primary team member, and Silva Architects entered into a subcontract with Louis Aguirre for the mechanical, electrical, plumbing, and fire-suppression design and construction. The principal of Silva Architects and the principal of Fraga Engineers are, respectively, husband and wife. There is no indication in this record of any improper communications between Mr. Silva and Ms. Fraga concerning the contents of the RFQ or the Phase I drawings, as prepared by Respondent, or the contents of the proposal, as prepared by Petitioner. However, at the time of this solicitation, Fraga Engineers was serving as the engineering firm on at least two of Petitioner's projects, although her firm probably was under contract with Silva Architects, not Petitioner. Except for the following provision, the RFQ does not address potential conflicts between an offeror and Respondent. RFQ Paragraph I.H provides: Any proposer desiring to participate in this process must not have as part of its team an A/E [architectural/engineering] firm presently under contract with the Board for a specific project for which the proposer, or any member thereof, is performing as the general contractor. The Board considers this a conflict of interest and such proposals will not be eligible for award under this RFQ. Petitioner and Intervenor submitted timely proposals to Respondent. Among several offerors submitting proposals, Petitioner submitted the lowest bid, at $17,536,000, followed closely by Intervenor's second-lowest bid, at $17,556,000. Finding Petitioner's proposal acceptable in all respects, Respondent's School Board awarded the contract to Petitioner at its meeting of June 16, 2004. On the same day, Intervenor filed a notice of protest, followed by a timely formal written protest. The formal written protest, which is in the form of an undated letter from Intervenor's counsel to Respondent and Respondent's counsel, states that Intervenor was not allowed to bid on projects where its architect/engineer was on Respondent's DCP Team for another project. The formal written protest argues that Ms. Fraga, or her company, is part of Petitioner's team on other pending projects while she, or her company, is part of Respondent's DCP Team. Respondent conducted an informal conference with Intervenor and later with Petitioner in an attempt to resolve the matter. Failing in that effort, Respondent's counsel issued a letter, dated August 25, 2004, in which he recommended that Respondent's School Board rescind the proposed award to Petitioner. In his letter, Respondent's counsel reasoned that the spousal relationship between Petitioner's architect and the engineering firm under contract with Respondent's architect "would create a continuing and unavoidable conflict of interest that will inure to the benefit of either of these parties in violation of the General Requirements of the Bid, or at a minimum, could create a perceived or potential conflict of interest." In his letter, Respondent's counsel stated that "we disagree" with the recommended order entered in SBR Joint Venture v. Miami-Dade County School Board, DOAH Case No. 03-1102BID (August 1, 2003), in which the Administrative Law Judge concluded, among other things, that a bidding contractor's team did not include subcontractors under contract with the contractor's architect, rather than directly with the contractor. Unless the pronoun refers to the legal counsel's office or a committee formed to resolve the bid dispute, the "we" in the letter of Respondent's counsel is unclear because Respondent's School Board entered a final order on August 20, 2003--one year and five days before the letter of Respondent's counsel--adopting the recommended order. Another confusing part of counsel's letter is an explanatory footnote, in which Respondent's counsel unsuccessfully distinguishes the present case, in which Silva Architects is directly under contract with Petitioner, from SBR Joint Venture, in which the third-tier subcontractor was under contract with the general contractor's architect, not the general contractor. (In SBR Joint Venture, as in the present case, the so-called "third tier" subcontractor has a contract with the "second tier" architect, but not the "first tier" contractor.) The question in this case is not whether the second-tier Silva Architects is part of Petitioner's team-- clearly, it is. A major question in this case is whether Fraga Engineers is part of Petitioner's team--clearly, it is not, unless Ms. Fraga and Mr. Silva are interchangeable due to their marriage or her company's third-tier participation in other projects of Petitioner is attributed to the subject projects. In any event, before Respondent's School Board could take up its counsel's recommendation, Petitioner protested the recommendation, and this case ensued.
Recommendation It is RECOMMENDED that Respondent enter a final order awarding the contract to Petitioner. DONE AND ENTERED this 14th day of December, 2004, in Tallahassee, Leon County, Florida. S 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 14th day of December, 2004. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Ira Libanoff Ferencik Libanoff Brandt Bustamante and Williams, P.A. 150 South Pine Island Road, Suite 400 Fort Lauderdale, Florida 33324 Luis M. Garcia Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 J. Alfredo de Armas Alvarez, Armas & Borron, P.A. 3211 Ponce De Leon Boulevard, Suite 302 Coral Gables, Florida 33134
The Issue Whether Petitioner, Orange County School Board (School Board), established "just cause" to terminate Respondent's employment as a teacher.
Findings Of Fact The School Board is responsible for the operation, control and supervision of free public schools in Orange County, Florida. The School Board's responsibilities include the hiring and termination of school personnel. In December 2012, Ginchereau was teaching mathematics at Maitland Middle School. He has been a teacher in the Orange County Public School District for approximately 14 years, and holds a professional services contract with the School Board. Ginchereau's employment is governed by the Collective Bargaining Agreement between the School Board and the local teacher's union, the Orange County Education Association, Inc. Pursuant to Article XII section (A)(2), the Collective Bargaining Agreement, a teacher may only be discharged for "just cause." The School Board has a specific policy concerning the private use of internet and social networking, Management Directive A-9, Employee Use of Technology.2/ Management Directive A-9 informs School Board employees that they should not engage in social media with Orange County Public School students, unless the student is their child or the social media contact is related to “class, athletic or extracurricular activity,” and that employees are to access the School District’s technology resources and databases “for assigned responsibilities.” Orange Cnty. Pub. Sch. Dist. Mgmt. Directive A-9, §§ 2(e)(i), (ii) and 3. On the morning of December 13, 2012, Ginchereau opened his Facebook page, and read a general post from Elaina J., a former student that Ginchereau had taught at Avalon Middle School during the 2010-2011 school year.3/ Based on the general age of middle school students in eighth grade as 13 or 14 years old, it is reasonable to conclude that at the time of this incident, Elaina J. was either 15 or 16 years old in December 2012. Ginchereau’s unrebutted testimony is that he accepted a friend request from Eliana J., at a time when he knew she was no longer a student in the Orange County Public School system. The School Board failed to introduce competent evidence showing that on December 13, 2012, that Eliana J. was an Orange County Public School District student.4/ The Facebook exchange between by Elaina J. and Ginchereau is the following: E.J.: Good morning, woke up in a good mood. Who's going to be the first to ruin it? G.: Not me! E.J.: Never you!!! You always made my mornings G: Awww! Thank you! Mrs. Melodie Robelo still talk about you often. Hope you are doing well. E.J.: Awh I miss you two so much, ill come visit soon ? hope you both are doing well also G: Cool ....but you should know we aren't at Avalon anymore. We both moved to Maitland Middle. E.J.: Is that far from Avalon? G.: Not too bad . . . you can google it . . . 1901 Choctaw Trail Maitland 32751 E.J.: Okay I promise ill come see you soon! The only evidence showing when these postings occurred is from Ginchereau. Ginchereau testified that he initially responded to Eliana J.'s post in the morning before school started, and later between his first and second period classes. Beside the text exchange between Ginchereau and Eliana J. are the "thumbnail" photographs from Elaina J.'s and Ginchereau's Facebook pages. These small photographs are present to the left of the message in order to show who is writing the message. Ginchereau's thumbnail photograph shows a photograph of him with an eighth grade football team that he coaches. Eliana J's thumbnail photograph shows a picture of her and a friend in bikinis. Ginchereau's first two classes on December 13, 2012, were Algebra I Honor classes. At the conclusion of the first class, the bell rang and the students had approximately four minutes to go to their next class. Between the first and second class periods, Ginchereau opened his Facebook page in order to post a message to Elaina J., for the purpose of providing her the address of Maitland Middle School. Ginchereau's explanation that he went on his Facebook page in order to provide Elaina J. with information so that she could "volunteer" in his classroom is not credible. The text exchange between Ginchereau and Eliana J. does not mention any student "volunteer" activity. Rather, Ginchereau was providing Eliana J. his and another teacher’s work location in order to facilitate a visit. Unknown to Ginchereau, when he opened his Facebook page, the screen from the computer was projected onto the classroom's smartboard, and visible to the students inside the classroom, including the thumbnail photographs. Some of the students entering the classroom remarked that they did not know that Ginchereau had a Facebook page. In response, Ginchereau quickly closed the Facebook page and placed school work on the smartboard. Ginchereau, thinking the incident was behind him, moved to the classroom door to monitor the hallway. While standing in the hallway, Ginchereau heard one of the students state that Ginchereau had a Facebook page with the picture of a "nude girl." Realizing that such a claim would be toxic, Ginchereau quickly disputed the statement. Further, he decided to show exactly what was displayed on the smartboard in order to dispel any ill-founded rumor before it left the classroom. Ginchereau signed onto his Facebook account and went to Eliana J.'s Facebook page. However, instead of showing the Facebook messaging with the thumbnail photographs, Ginchereau went to Eliana J.'s Facebook page and scrolled on the photographs to find the correct photograph. Some of the photographs showed Eliana J. wearing short "shorts," clothing exposing her midriff, and lying on a bed. As he scrolled through approximately four to six photographs, one of the 13-year-old boys, in a manner consistent with an immature adolescent boy, hooted and went to the smartboard pretending to touch the girl in the photograph. As he attempted to find the correct photograph, Ginchereau told the boy to sit down, and then remarked, while at his desk, "if [the boy] liked this photograph, then he will love the next one." Finally, Ginchereau identified the correct photograph with two young girls in bikinis projected onto the smartboard, but unlike a thumbnail, the photograph now filled the smartboard. While the photograph dispelled the notion that the girl was nude, Ginchereau heard one of the students state that "if she dressed like the girl, her mother would call her a slut." As these events escalated, Ginchereau made the decision to have a "teachable moment." According to Ginchereau, he stated: Look, you don’t know this girl and I just heard, you know, comments like “slut” and “whore” coming out of your mouths. You guys don’t know the history of this girl, you don’t know about her taking care of her brother when her mom had surgery. Ginchereau then informed the students that it was important to be careful about the photographs that one posts on social media sites. He cautioned the students that employers or college admission people could make incorrect judgments about them based on the photographs. Further, Ginchereau talked about dress code and why it was important, even though students sometimes disagreed with it. In order to demonstrate his upholding of the dress code, Ginchereau referenced that the girl in the photograph had once attempted to volunteer as an assistant in his class, but had shown up in the class wearing a white shirt that was clinging to her body, after being caught in a rain storm. Ginchereau sent the former student home because her clothing did not meet the middle school dress code. Finally, during his "teachable moment," Ginchereau stated that the student pictured on the board had been a poor student in his class, but still considered him a favorite teacher. This regrettable turn of events occurred approximately for the first three to five minutes of the algebra class. Because Ginchereau's discussion occurred while students were transitioning into the class, some of the students did not hear the full discussion. After closing the Facebook page, Ginchereau taught the class without further incident. After the class, Ginchereau decided to inform the principal of the school, Mr. Ronald Maxwell (Principal Maxwell), about the Facebook incident. Ginchereau called Principal Maxwell's office, but was told that he was not available. Later in the day, Ginchereau attempted to call or see Principal Maxwell again, but was again told that he was not available. The next day, on December 14, 2012, Ginchereau sent Principal Maxwell an e-mail that outlined what had occurred in the class the day before. Ginchereau sent the e-mail before he learned about any parent complaint concerning the Facebook incident. That same day, Principal Maxwell received a parent complaint concerning the Facebook incident, and he directed Dr. Paul Wilhite (Dr. Wilhite), the assistant principal, to take students' statements about what had occurred on December 13, 2012, in Ginchereau's class. Dr. Wilhite collected 19 student statements concerning what occurred in the classroom. The statements ranged from students who did not see anything to students describing how Ginchereau stated that if his daughter dressed like the one in the photograph “he would kill her.” Some of the students indicated that they found the photographs displayed in the classroom "inappropriate" and they felt "uncomfortable" about the pictures and discussion while others did not care. Ginchereau met with Principal Maxwell and Dr. Wilhite and provided an explanation that was consistent with his earlier e-mail. Further, Ginchereau provided Principal Maxwell with a copy of the Facebook exchange and showed him the photographs shown in the classroom. At all times, Ginchereau was cooperative and accepting responsibility for his error. Ginchereau’s social media messaging with Eliana J. violated Management Directive A-9 by using the school’s internet for personal use, rather than his assigned responsibilities. Ginchereau's showing of the photographs from Eliana J.'s Facebook page was inappropriate within the context of a middle school classroom and showed poor judgment. Ginchereau's "teachable moment" showed poor judgment and exacerbated his mistake of accessing Facebook between the class changes. Ginchereau has been a teacher with the Orange County Public School District since 1999. He holds certificates in teaching mathematics, language arts, and special education students. Further, it is undisputed that Ginchereau has no prior disciplinary history in his teaching career.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board established “just cause” to discipline Mr. Ginchereau’s employment as a teacher. The undersigned recommends that Ginchereau’s suspension without pay be upheld to date; and that he be returned to his professional services contract, and given remedial education on the proper use of the School District’s technology. DONE AND ENTERED this 31st day of October, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2013.
The Issue The issue presented herein concerns the Respondent's through the person of his parents appeal of the School Board's assignment (of Respondent) to Youth Opportunity School South - an alternative school placement.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. By letter dated November 8, 1983, Petitioner, the School Board of Dade County, Florida, advised the Respondent, Carlos Alberto Giralt, an eighth grade student attending Glades Junior High School, that he was being administratively assigned to the opportunity school program based on his "disruption of the educational process in the regular school program and failure to adjust to the regular school program." Carlos Alberto Giralt, date of birth December 6, 1969, was assigned to Glades Junior High School as an eighth grader during the 1983-84 school year. During October of 1983, Carlos' brother was involved in a physical altercation with another student and Carlos came to his brother's aid by using a stick to physically strike the other student involved in the altercation. Initially, Carlos was given a ten-day suspension and thereafter the suspension was changed to the administrative assignment to the alternative school placement which is the subject of this appeal. 1/ Carlos' father, Salvador Giralt, was summoned to Glades Junior High School and advised of the incident involving Carlos and the other student in the physical altercation. Mr. Giralt was advised of the policy procedures in effect at Glades and was assured that Respondent would be given the least severe penalty, which was the ten-day suspension originally referred to herein. The Giralts are very concerned parents and have voiced the concern by complaining of Respondent's assignment to the Petitioner's area office. In keeping with this concern, the Giralts have requested that their son, Carlos, be reassigned to his original community school, Glades Junior High School. Respondent does not have a history of repeated defiant conduct as relates to School Board authority. According to Petitioner's Assistant Principal at Glades Junior High, Gerald R. Skinner, Respondent was last disciplined approximately two years ago. No showing was made herein that Carlos was either disruptive of the educational process or has failed to adjust to the regular school program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the School Board of Dade County enter a Final Order transferring the Respondent to Glades Junior High School or other appropriate regular school program. RECOMMENDED this 24th day of May, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1984.
The Issue This proceeding concerns the Respondent's rejection of all bids for construction of its new middle school "FF". Petitioner has challenged that intended action, arguing that it was arbitrary and capricious and contrary to the law. The parties disagree as to the basis for the intended action. Initially the School Board considered rejecting all bids for failure to meet MBE/WBE goals, and Petitioner protested. Later, the Respondent determined that significant revisions to the construction documents were required, and the bids were all rejected on that basis. Petitioner protested again, but contends that the original basis for intended action is still at issue. For reasons set forth in the following recommended order, the MBE/WBE goal issue is moot. The central issue for determination, therefore, is whether Respondent properly rejected all bids based on its determination that substantial changes are required, and Petitioner's motion to consolidate its two protests is DENIED.
Findings Of Fact Petitioner, Mark C. Arnold Construction Co., (Arnold), is a commercial general contracting firm located in Orange County, Florida, but well-experienced in building public facilities throughout the state. Arnold currently is engaged in constructing school "EE" for Respondent, Orange County School Board (School Board, or Board). In January 1992, the school board promulgated an advertisement for bid soliciting bids for the construction of a new school project known as Middle School "FF". The advertisement for bid was published five (5) times in the Orlando Sentinel on January 7, 14 and 28 and on February 4 and 1, 1992. The board also compiled a project manual which among other things contained a copy of the advertisement for bid and instructions to bidders which governed the bidding process. The advertisement for bid reserved the school board's "right to reject any or all bids and to waive any informality or irregularity in any bid received". (Joint Exhibits 1 and 2) The instructions to bidders also reserved the school board's "right to reject any and all bids when such rejection is in the interest of the school board of Orange County, Florida...". (Joint Exhibit 5) The project manual also contained a bid form to be used by bidders. In it the bidder agrees "that the Owner reserves the right to reject this bid, or to waive informalities in any bid,...". Such language was contained in the bid submitted by Arnold. (Joint Exhibits 7 and 9) By addendum dated February 5, 1992 the school board amended and replaced Section A-12 of its project manual and instructions to bidders. Such amendment, among other things, established goals for minority/womens business enterprise (MBE/WBE) subcontractor and supplier participation in the project, and it required any bidder who failed to attain the goals to demonstrate a good faith effort to do so; otherwise, the bid of such bidder would be rejected. (Joint Exhibit 8) Arnold's bid showed that Arnold had no MBE/WBE subcontractor or supplier participation. (Joint Exhibit 9) Arnold's bid was the lowest of eleven bids received by the school board. Arnold's bid was in the amount of $10,977,000.00. The next lowest bid was in the amount of $11,075,000.00. After bids were opened, Arnold promptly contacted the MBE/WBE manager of the school board, and was advised by her to try to obtain MBE/WBE participation to meet the goals; within several days after bid opening Arnold was able to get a total of about 13.5% MBE/WBE subcontractor/supplier participation. Contrary to the MBE/WBE manager's instruction, the addendum to the project manual and bid instructions proscribed any effort after bid opening to attain the MBE/WBE goals and to thereby make a bid responsive. In spite of Arnold's attempt to demonstrate to the MBE/WBE manager that it had made a good faith effort to attain the goals prior to bid opening, the MBE/WBE Manager determined that no sufficient good faith effort was shown by Arnold. On March 5, 1992 the school board furnished to Arnold a written notice of its intended decision to reject all bids because of the failure of all contractors (bidders) to attain the MBE/WBE goals and/or to show compliance with the good faith effort requirement of the contract documents. (Joint Exhibit 11) On March 10, 1992 Arnold and its attorney attended a meeting of the school board for the purpose of appealing the MBE/WBE manager's decision that Arnold had not demonstrated a good faith effort to meet the goals. Mark C. Arnold spoke at length to the school board itemizing actions which Arnold contended showed its requisite good faith effort to solicit MBE/WBE participation. Arnold's attorney also made a presentation at the meeting. By a 6 to 1 vote, the board initially sustained the findings of the MBE/WBE manager that a good faith effort was not shown by Arnold, and rejected all bids because of the failure of all contractors (bidders) to meet the minority participation goal and/or to show compliance with the good faith effort requirements of the contract documents. (Joint Exhibits 12 and 15) Following a work session after its initial meeting on March 10, the board convened again in regular session on March 10, at which time it unanimously voted to reconsider its earlier action of rejecting all bids, and it voted to postpone action of the award of a contract for the construction of Middle School "FF". The effect of that action was to rescind its earlier action rejecting all bids and determining that Arnold had not shown a good faith effort to solicit MBE/WBE participation; and also to postpone action on the entire matter to a future time. (Joint Exhibit 13). On March 20, Arnold filed Formal Protest directed to the board's March 5th Notice of Intended Decision and directed to the March 10 action rejecting Arnold's bid. During or about the first week in April, engineers for the school board met with the school board's attorney, William M. Rowland, Jr., to inform him that significant revisions needed to be made in the site work and sewer plant plans for the Middle School "FF" project. The engineers recommended that because of the need to make such revisions all bids for the project should be rejected and the project should be rebid after the plans were revised. As a result of the early April meeting with the engineers, the board's attorney prepared and delivered a memorandum dated April 7th advising the school board of its engineers' recommendations. The attorney also submitted a resolution which, if adopted, would serve to reject all bids and require a rebidding of the project. (Joint Exhibit 16) On April 10th the school board furnished to Arnold an amended notice of intended decision, which by its express terms replaced, amended and superseded its prior notice of intended decision dated March 5th, and notified Arnold of its intent to reject all bids on the project because of the need to make significant revisions in the construction documents. (Joint Exhibit 17) Said amended notice rendered moot the March 20 formal protest filed by Arnold. At its meeting held on April 14th, the board considered the April 7th memorandum from its attorney. At that meeting, the board heard from its staff engineer, Chuck Greif, who pointed out the revisions needed to the site plans for the Project. (Joint Exhibit 20, pages 59-62, 77-78) Mark Arnold also spoke, contending that the site revisions could be handled by change orders if Arnold's bid were accepted. (Joint Exhibit 20, pages 76-77) Bob Gallardo, the school board Director of Facilities and Planning, advised of problems encountered in the site work and of the need to make significant revisions in the site plans. (Joint Exhibit 20, pages 87-92) As the geotechnical engineer on the job, Charles Cunningham stressed the significance of the site plan changes. (Joint Exhibit 20, pages 96-97) Derek Burke, engineer on the project, confirmed that major redesign needs to be done. (Joint Exhibit 20, page 64) Attorney Rowland advised that the prior intended decision to reject all bids because of failure of all bidders to comply with the MBE/WBE requirements of the bid documents, was moot and no longer before the board for action, and that the only resolution before the board for action was the resolution to reject all bids because of the need to make significant site plan revisions for the project. (Joint Exhibit 20, pages 72-76) The school board unanimously adopted that resolution. (Joint Exhibit 20, pages 97-99; Joint Exhibit 18) On April 23rd Arnold timely filed the written formal protest which is the subject of these proceedings. At the time of the meeting held by on April 14th, there was a need to make significant changes in the site work and sewer plant for the Middle School "FF" project. Such changes formed a valid and legitimate reason for the board to reject all bids. Even at the time of this administrative hearing, some details regarding the site work still needed to be worked out. For example, an outfall is needed for the percolation pond underdrain but it was not included in the project design. The site work and sewer plant changes and revisions could have been handled by change orders between Arnold and the school board, had the board accepted Arnold's bid, since any changes in a project can be accomplished by change orders; however, revising the nature and quantity of construction work by change orders involves the potential for excessive cost to the project owner and change orders always require agreement between the parties. Prudence dictates that when it is known that changes must be made, the bid advertisement should include those changes up front to remove the uncertainty of costs and to put all bidders on equal footing. There has been no showing of any illegality, fraud, oppression or misconduct in the actions of the school board in rejecting all bids on the Middle School "FF" Project and in opting to seek new bids for the project. There has been no showing in these proceedings that the school board's rejection of all bids had the purpose or effect of defeating the object and integrity of competitive bidding.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered dismissing the bid protests by Petitioner. DONE AND RECOMMENDED this 10th day of July, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charles Evans Davis, Esquire 170 East Washington Street Orlando, FL 32801 MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1992. William M. Rowland, Jr., Esquire 1786 North Mills Avenue Orlando, FL 32803 Dr. James L. Schott, Superintendent Orange County School Board P.O. Box 271 Orlando, FL 32802
