The Issue Whether Petitioner has cause to terminate Respondent's employment as a school custodian.
Findings Of Fact At the times pertinent to this proceeding, Respondent was employed by Petitioner as a school custodian. In the fall of 1994, the Respondent was arrested and charged with the offense of theft. The property in question was a Green Machine weed eater that was owned by the Petitioner. Petitioner assigned John Bell, an investigator employed by the Petitioner's police department, to investigate the alleged theft. Respondent admitted to Mr. Bell that he had possession of the piece of equipment, he knew that it was valued at approximately $300.00, but he asserted that he bought the machine for $100.00 cash from an unknown person Respondent said was a school board employee. Respondent did not have a receipt for the purchase or any other evidence to substantiate his explanation as to how he came into possession of the stolen property. In December 1994, Respondent was found guilty of theft following a bench trial in the criminal proceeding. Adjudication of guilt was withheld and he was fined $105.00 in court costs. He was ordered to pay restitution to the School Board in the amount of $160.82 for the cost of its investigation. The School Board has the authority to terminate Respondent's employment for cause. The School Board's Policy 3.27 pertains to suspension and dismissal of employees. If the Superintendent finds probable cause to recommend to the School Board that a member of the non-instructional staff be suspended without pay and subsequently dismissed, the Superintendent is required to notify the employee in writing. The policy also contains provisions for the information that must be included in the notice to the employee. By letter dated February 9, 1995, the Superintendent advised Respondent that cause existed to terminate his employment on the grounds of theft of school property and misconduct in office. On February 21, 1995, the School Board, based on the Superintendent's recommendation, suspended Respondent's employment without pay pending this termination proceeding. The Superintendent and the School Board followed the pertinent policies in suspending the Respondent's employment without pay pending this dismissal proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that terminates Respondent's employment as a school custodian. DONE AND ENTERED this 21st day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1995. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Mr. Noyland Francis 7326 Willow Spring Circle Lantana, Florida 33463 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: On February 5, 1982, respondent was preparing to administer to his students a math test which had begun the day before. While passing out the tests, respondent announced to the class that there was to be no more talking and that anyone who did talk would be sent to the Dean's office. In a voice described as "loud" and "smart-alecky," student John Lindsay said "What?" Respondent told student Lindsay to leave the room. Lindsay replied that he would not leave the room without a referral slip. Respondent told Lindsay he would not give him a referral slip because he could not be trusted with one. On other occasions, respondent had sent Lindsay to the Dean's office with a referral slip and neither Lindsay nor the referral slip reached the office. Lindsay did not leave the room at that time. Respondent was seated at his desk attempting to watch his students who were taking the test and also write passes for other students who were going to another room to study. Lindsay came up to respondent's desk and demanded a pass or a referral slip. Respondent told Lindsay to "get out of my face," meaning to convey that Lindsay was obstructing his vision of the students who were taking the test. Lindsay replied that he did not want to be in respondent's "ugly face anyway." At this point, some students in the class began to laugh. Lindsay apparently returned to a desk located in front of the respondent's desk, and respondent continued to write passes and watch the students who were taking the test. As respondent was writing referrals or passes, student Lindsay came up quickly to respondent's desk with his arm extended to pick up the referral slip. Respondent rolled back in his chair, rose and quickly grabbed for the referral slip on his desk at the same time Lindsay was reaching for it. As respondent did this, his chair slid backward and his desk moved forward. Lindsay moved his head backward and respondent's hand lightly brushed Lindsay's left shoulder with no damage resulting to the student. Lindsay thereafter turned toward the class and laughingly said "did everybody see that now." Respondent reached for a button which calls the Dean's office and Lindsay left the room with another student. The students who witnessed the incident from various positions in the room observed a swinging action with a fisted hand directed toward Lindsay by the respondent, who appeared to be angry at the time. This testimony is not inconsistent with the testimony that respondent was rising from his chair and grabbing for a piece of paper at the same time that student Lindsay was standing in front of his desk and reaching for the same piece of paper. It is the policy at Lakewood Senior High School that when a student is sent to the Dean's office, the teacher is to send a disciplinary referral slip with the student. On occasions, a student is sent first and the referral slip follows. Corporal punishment is to be administered only by the school principal or his designee and only in the presence of another adult. Respondent Ponsell P. Howell is 62 years old and has been a mathematics teacher for over 19 years. He has never been charged with or accused of striking a student. He plans to retire from teaching at the end of this school year.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the charges against respondent of misconduct in office be DISMISSED. Respectfully submitted this 24th day of May, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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, 1982. COPIES FURNISHED: William Borja, Esquire Suite 204 501 South Fort Harrison Clearwater, Florida 33516 Lawrence D. Black, Esquire 152 Eighth Avenue South West Largo, Florida 33540 B. Edwin Johnson, Esquire 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 33518
Findings Of Fact This matter comes on before the undersigned for consideration following an Administrative Complaint brought by Ralph D. Turlington, Commissioner of Education for the State of Florida, against Robert J. Browne, Respondent. No genuine factual issue is in dispute because no communication, including an election of rights or an appearance from the Respondent, has ever been received. Pursuant to the above-cited rule, the matter was required to proceed to hearing before the undersigned for the presentation of a prima facie case by the Petitioner, regarding the establishment of the reputed facts alleged in the Administrative Complaint upon which the Petitioner seeks revocation of the Respondent's Certificate. The Administrative Complaint is dated July 1, 1981. After the Administrative Complaint was filed, various efforts were made to achieve service of the same on the Respondent. The Respondent never responded to the Administrative Complaint. Diligent search and inquiry failed to locate the Respondent, or a means or location whereby he might be served with the Complaint. Attempts to serve him at his last-known forwarding address resulted in the certi- fied mail being returned unclaimed and unforwardable. The undersigned attempted to serve notice of this proceeding itself upon the Respondent at the last known address with the same result. Service by publication of the Administrative Complaint was achieved by the Petitioner. The Respondent holds Florida Teaching Certificate Number 440435, Post Graduate, Rank II, which expires on June 30, 1998, authorizing him to engage in the profession of teaching in the areas of mental retardation, junior college, administration, and supervision. At all times pertinent hereto, he was employed at the Exceptional Student Educational Center in Broward County, Florida, at Eastside Elementary School. The Respondent's position was that of administrator or assistant principal at the school. The Respondent was employed at the school during the summer of 1980. Mrs. Annie Turner was employed at the school as the custodian during that same summer. She worked from the hours of 3:00 p.m. to 7:00 p.m. in the evening. She often took her son Ronnie, who was the youngest of seven children, to the school with her during her working hours. She did this in order for him to assist her in her job duties. On an early visit to the school, Ronnie met the Respondent, Mr. Browne. They met on frequent occasions thereafter, when Ronnie was at the school with his mother and talked of sports and other things of interest to Ronnie, and they ultimately struck up a friendship. Mrs. Turner began noticing that her son would go to a distant bathroom in the school and stay an inordinate period of time. This happened on a number of occasions and she noticed that Mr. Browne would follow her son into the mens' bathroom while she was engaged in cleaning another room nearby in the school. She did not feel anything was amiss until this happened on a regular basis. Finally, on a Thursday evening (she does not remember the date), in the summer of 1980, Mr. Browne and Ronnie entered the bathroom and stayed so long she opened the door to check on her son and observed the Respondent on his knees committing a homosexual act on the person of her son. She was not observed by Mr. Browne. She ultimately informed-the County Superintendent and Mr. Browne was confronted with the subject accusation by his superiors. Sometime thereafter the Respondent resigned his position at the school. Mrs. Turner no longer respects Mr. Browne and would not want one of her children in a school where he was principal or a teacher due to her apprehension regarding their physical and emotional welfare. The testimony of Ronnie Turner corroborates that of his mother, Annie Turner, and in addition, establishes that the homosexual act observed by Mrs. Turner occurred on three (3) other occasions in a substantially similar fashion and location. The occasion when Annie Turner discovered the Respondent committing a homosexual act on her son was the fourth and last of those occasions, all of which occurred during a three-week period during the summer of 1980. Ronnie Turner sougnt on several occasions to avoid association with the Respondent during this time after he became aware of the Respondent's intentions. He would not want to attend a school at which the Respondent was employed and fears that the same fate will befall other children at any school at which the Respondent should be employed. Ronnie Turner was fourteen years of age at the time the pertinent events occurred. After the Respondent resigned from his position with the Broward County School System, there ultimately ensued an Administrative Complaint brought by Ralph Turlington, Commissioner of Education of the State of Florida, seeking revocation of the Respondent's Florida Teacher's Certificate.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence in the record and the pleadings and arguments of counsel for the Petitioner, it is, RECOMMENDED: That the Respondent, Robert J. Browne, have his Teacher's Certificate in and for the State of Florida revoked permanently. DONE AND ENTERED this 19th day of March, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1982. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER 203-B South Monroe Street Post Office Box 1694 Tallahassee, Florida 32302 Mr. Robert J. Browne 1771 Northeast 12th Street Fort Lauderdale, Florida 33304
The Issue The issue in this case is whether Petitioners' application for licensure of a child care facility should be approved or denied.
Findings Of Fact Petitioner, Oakcrest Early Education Center, Inc. (Oakcrest), is a formerly licensed child care facility located at 1606 Northeast 22nd Avenue, Ocala, Florida. Its license was not renewed following an incident on June 7, 2005, to wit: A three-year-old child was left unattended in an Oakcrest vehicle for approximately three hours, resulting in harm to the child. Petitioner, Joanne Jones (Jones), is the owner of Oakcrest. DCF is the state agency responsible for, inter alia, licensing and monitoring child care facilities. Oakcrest has not been licensed as a child care facility since the June 2005 incident. However, the Final Order in DOAH Case No. 05-2616 gave Oakcrest the right to re-apply for a license at any time. Based on that allowance, Jones filed an application for a child care facility license with DCF on June 17, 2007, some two years after the last license application was denied. The basis for denying the latest application was that Jones had done nothing to address the violations precipitating the previous non-renewal of license. At the final hearing in the current case, Jones presented no evidence to convince DCF that prior violations would not be repeated. In fact, Jones candidly admitted that her only reason for seeking a license was so that she could sell the building housing the child care facility for a higher price. Jones admitted she had no intention of operating the child care facility if a license was issued to her. The violations in 2005 were serious. The child who was involved continues to suffer residual effects from the trauma suffered at that time. He has on-going physical and psychological issues directly related to being left in the hot day care van for about three hours.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by DCF denying the application for licensure of a child care facility to Oakcrest and Jones. DONE AND ENTERED this 6th day of November, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2007.
The Issue The issue in this case is whether the Petitioner, the Pinellas County School Board, should suspend the Respondent, Dawn McIntyre, from her employment as a teacher for three days without pay on charges contained in the July 11,1990, letter from the School Superintendent, Scott N. Rose. 1/ The letter charges: (1) that, on one occasion during the 1987-88 school year, the Respondent pushed a teacher aide; (2) that on May 9, 1990, the Respondent struck another teacher aide with a lamp; and (3) that the Respondent also handled two students in a rough, punitive manner during May and June, 1990. The charging letter asserts that the Respondent's alleged conduct constitutes misconduct in office.
Findings Of Fact The Respondent, Dawn McIntyre, has been a teacher at Safety Harbor Elementary School since the 1984-85 school year. Until this year, she taught pre-kindergarten emotionally handicapped children. For the 1990-91 school year, she accepted a smaller class of children with varying exceptionalities. She has an annual professional service contract, not a continuing contract. She is certified to teach early childhood, mental retardation and special learning disabilies. During the 1987-88 school year, the Respondent became involved in a confrontation with an aide at school. The seeds of this confrontation were sown when the aide and the teacher with whom she worked presented flowers to the school principal in appreciation for the efforts of the principal in saving the aide's job, which was in jeopardy of being eliminated for budgetary reasons. Shortly afterwards, in conversation in the teacher's lounge, the Respondent labeled the aide as a "[expletive deleted] brown-nose." This comment was reported to the aide by a participant in the conversation, and the aide was upset by it. She decided to confront the Respondent and explain the circumstances to demonstrate that the label was unfair. When she confronted the Respondent, the Respondent did not give her an opportunity to explain but rather pushed the aide on the shoulder with the palm of her hand and rudely insisted that the label fit. In January, 1990, the Respondent began working with a new aide. Although the new aide was unfamiliar with the work and needed some on-the-job training, the Respondent worked reasonably well with the aide until, in late April or early May, the aide volunteered to help another teacher who did not have an aide and needed assistance. The Respondent objected, taking the position that the Respondent needed all of the aide's available time to help in the Respondent's class. The Respondent told the aide that the aide's volunteering for another teacher would have to be put on her evaluation as an adverse comment. From that point forward, the Respondent began to treat the aide more and more poorly, and the Respondent's working relationship with the aide quickly deteriorated to the point that the aide felt compelled to seek the advice of her union representative on how to handle the situation. While the aide's handling of the situation may have contributed marginally to the deterioration of the working relationship between the two, the breakdown would not have happened without the Respondent's inappropriate behavior. On or about May 9, 1990, the Respondent instructed the aide to take only half of the children's hour rest period for lunch and use the rest to do paperwork in the classroom. After her lunch, the aide began to arrange a place to do the paperwork. The Respondent objected to the way the aide set a desk lamp on the table the aide was going to work at, thinking it threw too much light on where some of the children were sleeping, and she told the aide to move the lamp. When the aide did not move fast enough for the Respondent's liking, the Respondent rushed over to the table in disgust and snatched the lamp off the table before the aide could move it. In the process, she shouldered and elbowed the aide out of the way, knocking her temporarily off balance and accidentally grazing the aide's elbow with the lamp. Greatly upset by the way in which the Respondent handled the situation, together with the cumulative effect of the Respondent's prior inappropriate behavior, the aide immediately left the classroom without saying anything to the Respondent and reported the incident to the administration, in accordance with the advice of her union representative. The aide refused to continue to work with the Respondent and was reassigned. Two of the three other available aides also refused to work with the Respondent. One was the aide whom the Respondent had pushed and called a "[expletive deleted] brown-nose," and she refused to work with the Respondent partly because of the pushing incident. The other had not been involved personally in any unpleasant confrontations with the Respondent but was uncomfortable working with the Respondent in light of the incidents involving others that had been related to her. The third aide was only part-time and was too new to be thrust into the gap, in the opinion of the school principal. The principal had to go to the aides' union to force one of the other aides to work with the Respondent for the rest of the school year. As it turned out, the aide forced to work with the Respondent used sick leave so as to work with the Respondent as little as possible, and aides had to be put in the classroom on a rotating basis. On or about May 10, 1990, while in the process of escorting her class from the lunchroom back to the classroom, the Respondent walked up to one of her more difficult pupils, who had just spent most of the lunch period in "time- out," grasped him around the chin, with her thumb on one cheek and her fingers on the other cheek, applying more pressure than necessary to merely get his attention, and spoke to him sternly. This was done in the presence of the other children in the class and within sight of other children and adults in the lunchroom. On or about June 5, 1990, while again in the lunchroom, the Respondent walked up to another pupil from her class, who was sitting at the "time-out table," and reprimanded him sternly for untruthfully having told her that he had eaten his lunch. As she reprimanded the pupil, she squeezed his ear between her fingers and twisted it as part of the discipline. This, too, was done within sight of the children and adults in the lunchroom. Although perhaps technically corporal punishment in violation of School Board policy, the facts described in Findings 6 and 7, above, can be described as minor, or even marginal, violations. Neither child was injured, and neither complained to any adult that the Respondent had hurt them. (The child involved in the June 5th incident said that his ear hurt a little, but that was only when directly asked by one of the adults who witnessed the incident.) The "punishment" was so minor as to leave question whether it was punishment or just a case of overdoing an effort to get and keep the children's attention. By the time of the final hearing, all of the adult witnesses to these incidents were feuding with the Respondent in some form or fashion, and their testimony describing the incidents could have been slanted by the animosity between them and the Respondent. The Respondent has been and continues to be an effective teacher of pre-kindergarten children with learning disabilities. However, as reflected in the preceding Findings, she unfortunately has been susceptible to improper and unprofessional behavior which has hampered her working relationships with a significant number of her teaching colleagues and has created difficulties for the administration of the school. This has reduced her effectiveness as a teacher. The parties stipulated on the record of the final hearing that, if the charges are proven, a three-day suspension would be the appropriate discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order finding the Respondent guilty of misconduct in office and suspending her for three days without pay. RECOMMENDED this 17th day of December, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1990.
The Issue The issue is whether Nicholas Penn should be administratively assigned to the J. R. E. Lee Opportunity School Program in lieu of expulsion for misconduct at the W. R. Thomas Jr. High School.
Findings Of Fact During the 1987-88 school year Nicholas Penn was an eighth grade student at W. R. Thomas Jr. High School in Dade County, Florida. At the beginning of each year students receive a locally prepared handbook which informs the students of the code of student conduct for the Dade County Public Schools. During social studies classes early in the year the code of student conduct is reviewed. Nicholas Penn cut class on September 8, 1987. He was picked up by the police. When he was picked up he had a knife with him. Charges resulting from possession of that knife were dropped. As a result of truancy, he was seen by the Assistant Principal, Donal Helip, who referred Nicholas to the guidance counselor, Betty Thomas. When Betty Thomas saw Nicholas, he told Thomas that he did not enjoy school, did not have many friends, and felt frustrated at home. After a discussion with his mother, Ms. Alcantara, it was agreed that Nicholas would be put on work assignment around the school. Nicholas was also processed for a psychological referral on or about September 20, 1987, because he did not seem to be performing at his academic potential. On October 22, 1987, Nicholas was involved in a fight at school as a result of which he received a bloody nose and a head injury. As a result of the fight, Nicholas was put on a 2-day suspension. He did not attend school on Friday, October 23, or Monday, October 26. Mr. Helip spoke with him on Tuesday, October 27, when he returned to school. Nicholas told Mr. Helip the incident was closed and there would be no more problems about the fight. The other boy involved told Mr. Helip the same thing. On October 28, a student commented to Mr. Helip that Nicholas had a knife. Mr. Helip had the school security monitor bring Nicholas to his office, where Mr. Helip asked Nicholas to unload his backpack. At the bottom of the backpack was a wooden handled knife with a seven inch blade encased in a homemade, black sheath. Ms. Alcantara was called to the school where she identified the knife as one of the type which she had at home, which were part of a knife set purchased at J. C. Penny's. Nicholas was suspended for 10 days with a recommendation of expulsion. A request for waiver of expulsion and reduction of the penalty to suspension was made because the knife had not been used to threaten anyone else. At the time that Nicholas was withdrawn from W. R. Thomas Jr. High School he had a D in math, an F in shop and in physical education and incomplete grades for his other classes. The explanation offered by Nicholas for having the knife in his bag was that he had not brought it to school. During computer class his backpack was on a table and the students involved in the October 22, fight came up to him and said, "Nick, you got a weapon on you?," and when the class ended he picked up his bag and was going to the next class when the school security monitor asked him to go with him to Mr. Helip's office, who wanted to search his things. They went through his locker and in the backpack found the knife. Nicholas originally said that it was not his, but his mother told Mr. Helip that it was a knife like others she had at home. Of course, her knives did not have a black, homemade sheath like the one found on the knife in the backpack. When she returned home she determined that her knife set was complete. Mrs. Alcantara then informed school officials that she had been mistaken when she identified the knife as one of hers. There was nothing about Nicholas' expression at the time his backpack was searched which gave any indication that he was surprised about the knife found in his bag; in Mr. Helip's view, if the knife had been planted, it should have been closer to the top of the bag. Nicholas maintains that when he arrived home he found a rip in the corner of the backpack which would have allowed someone to plant the knife in the bag. The backpack was never produced at the hearing. The Hearing Officer finds it more probable than not, given all the circumstances, that the knife was not planted and Nicholas brought the knife to school.
Recommendation It is recommended that the assignment of Nicholas Penn at the J. R. E. Lee Opportunity School be maintained. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1988. COPIES FURNISHED: Ms. Rosa Alcantara Frank R. Harder, Esquire 13173 Southwest 11th Lane Circle Suite 2A-3 Miami, Florida 33184 175 Fontaineblau Boulevard Miami, Florida 33172 Madelyn P. Schere, Esquire Dr. Joseph A. Fernandez Assistant Board Attorney Superintendent of Schools 1450 Northeast 2nd Avenue Dade County Public Schools Suite 301 School Board Administration Miami, Florida 33132 Building 1450 Northeast Second Avenue Miami, Florida 33132 The Honorable Betty Castor Sydney H. McKenzie, Esquire Commission of Education General Counsel The Capitol Department of Education Tallahassee, Florida 32399 Knott Building Tallahassee, Florida 32399
