Recommendation Based on the foregoing, it is RECOMMENDED that the Miami- Dade County School Board enter a final order dismissing all charges against Carlos Legoas, rescinding his suspension, and awarding back pay and benefits. DONE AND ENTERED this 1st day of February, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 1st day of February, 2007. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 John L. Winn, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School District 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394
The Issue Whether Respondent should be terminated from her employment with the Miami-Dade County School District.
Findings Of Fact The Petitioner is responsible for the operation and control of all public schools within the Miami-Dade County School District. As such, it is authorized to employ the personnel necessary to instruct the school district's students. At all times material to this case, Respondent was employed by Petitioner as an annual contract teacher at Miami Springs Middle School. Respondent was born in Africa and received college degrees from the Sorbonne University in Paris, France. Respondent holds a bachelor's degree in American Literature and Civilization, a master of arts degree in English Literature, a master of arts in International Relations, and a doctorate in American Civilization and Third World Literature. Prior to emigrating to the United States in 1989, Respondent had approximately three years of teaching experience. She taught secondary students for one year in England and France, and for an unknown time in the English Department at Cheikh Anta Diop University in West Africa. After coming to the United States, Respondent taught at Michigan State University for one semester, then at Vassar for one year, at Miami-Dade Community College during a two-year span, at Nova University for one semester, at Jones College in 1994, and at the Florida International University in 1995. In these instances, Respondent's teaching experience was limited to college-age students. Additionally, the number of terms or courses taught in the various settings is unknown. Respondent is certified by the Florida Department of Education in language arts. Pursuant to this certification she may teach middle school students. Respondent began her career with Petitioner as a substitute teacher. Respondent was hired for a full-time teaching position at Miami Springs Middle School for the 1996/97 school year. The transition from college-age students to middle school students proved difficult for Respondent. The students' lack of respect, discipline, and interest in education were new to Respondent. During her first year at Miami Springs, Respondent was assigned a "peer teacher." This individual, Caridad Hildago, was to assist Respondent to overcome beginning teacher problems. In this regard, over the course of the year Ms. Hildago gave Respondent numerous suggestions to help her keep students on task, to maintain control, and to promote interaction between teacher and students in the class. Although she received an acceptable evaluation for this first year at Miami Springs, Respondent exhibited problems with student management. Security monitors were sent to Respondent's classroom on more than one occasion. Nevertheless, because she made progress in the first year, Respondent was expected to become an adequate teacher and was retained for the 1997/98 school year. During Respondent's second year at Miami Springs, the 1997/1998 school year, Dr. Senita became the principal. In October 1997, Dr. Senita informally met with Respondent and told her that students had complained that Respondent had pushed them or handled them roughly. Dr. Senita reminded Respondent that such behavior was not appropriate and that she should keep her hands off the students. Teachers employed by the School Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). TADS has been approved by the Florida Department of Education and is incorporated into the labor contract between Petitioner and the United Teachers of Dade (UTD). At all times material to this case, TADS was employed to evaluate Respondent's performance. The same TADS documents are used for all grade levels, subject areas, and all teachers. TADS objectively measures 68 minimal behaviors necessary for teaching. TADS' observers are trained and certified. The observer records deficiencies which are observed during the observation period and provides a prescription (a plan) for performance improvement when needed. During the 1997 legislative session, the Florida Legislature amended Chapter 231, Florida Statutes, effective July 1, 1997, to provide for a 90-calendar-day performance probation for annual and professional service contract teachers who are observed to have unsatisfactory performance. Because the statutory amendment impacted how TADS would be used in the future, Petitioner and the union began collective bargaining to revise performance review procedures. In the midst of these negotiations, on October 1, 1997, Respondent was formally observed in her 4th period creative writing class by Mr. Scriven, assistant principal. She was rated unsatisfactory in classroom management and techniques of instruction. Respondent was unsatisfactory in classroom management because the students were off task throughout the lesson and Respondent did nothing to redirect them. Two students had their heads down and/or slept during the class. By Mr. Scriven's count, ten students never participated. Additionally, Respondent was rated unsatisfactory in techniques of instruction because during sustained silent reading, Respondent continually interrupted the students. Respondent also failed to give instructions prior to beginning the lesson. Respondent did not make adjustments when the students' performance warranted it. When students did not understand the assignment, Respondent did not clarify areas of confusion by giving examples or re-explaining. During the post observation conference with Respondent on October 6, 1997, Mr. Scriven made recommendations to correct the areas of unsatisfactory performance, and provided assistance to help Respondent understand the deficiencies. Suggestions included observing a lesson taught by a fellow teacher and listing the non-verbal techniques used by that teacher to redirect off task learners. Mr. Scriven also directed Respondent to read specific pages from the TADS prescription manual and to complete the activities. Respondent was directed to list areas where she would expect student confusion and to discuss strategies with another teacher to address that confusion. On November 25, 1997, Respondent was formally observed in her 5th period creative writing class by Dr. Senita. Respondent had no lesson plan and her performance was marginal. Normally, the absence of a lesson plan would automatically render the observation unsatisfactory. The union asked Dr. Senita to work with Respondent while the Respondent attempted a transfer. To accommodate this request, Respondent was rated satisfactory. On December 5, 1997, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unsatisfactory in knowledge of subject matter and classroom management. Respondent was rated unsatisfactory in knowledge of subject matter because the sequence of information she presented was illogical and she failed to include important dimensions in her instruction. Respondent was rated unsatisfactory in classroom management because there was too much wasted time with no instruction. Additionally, off-task students were not redirected. One student colored with markers for twenty-five minutes and then began bouncing a ball. Some students participated in a conversation about a sports figure and others talked about a girl's boyfriend. Many students chewed gum. Respondent failed to redirect any of these students. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included observing a lesson taught by a fellow teacher and noting the strategies that teacher used to deal with students who were interacting inappropriately. Respondent was also directed to list three topics and to outline their components to ensure that the sequence would be logical. She was to list the important dimensions of each and state how they would be incorporated into the lesson. She was to estimate the amount of time each activity would take. She was to review her lesson plan with the principal. On December 10, 1997, Dr. Senita held a conference for the record with Respondent to address her unsatisfactory performance, to provide recommendations to improve the specific areas of her unsatisfactory performance, and to discuss her future employment status with the school district. Respondent was placed on a Performance Probation in accordance with Section 231.29(3)(d), Florida Statutes, and was provided assistance to help her correct her deficiencies within the prescribed time frame. Meanwhile, bargaining on the changes to TADS between the School Board and the Union culminated in a Memorandum of Understanding which was executed by the parties on December 9, 1997. On January 20, 1998, Respondent was formally observed in her 5th period creative writing class by Ms. Bell, assistant principal, and was rated unsatisfactory in classroom management and techniques of instruction. Respondent was rated unsatisfactory in classroom management because her instructional activities did not fill the allotted time. Again, there was wasted time. There were instances of prolonged off-task behavior which Respondent did not address. Respondent was unable to keep students quiet. Ms. Bell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance to help Respondent correct her deficiencies. These included having Respondent observe a demonstration lesson in the same class. Ms. Bell also prescribed activities from the TADS prescription manual. On January 28, 1998, pursuant to Respondent's prescription, Ethel Dickens, a reading specialist with Petitioner's language arts department, presented a demonstration lesson utilizing the reciprocal teaching method to teach The Red Badge of Courage in Respondent's class. Respondent was already familiar with the technique of reciprocal teaching because she had learned it in a workshop during the summer of 1997. Prior to the start of the class, Ms. Dickens attempted to meet with Dr. Senita and Respondent. Because Respondent would not meet with Dr. Senita, Ms. Dickens met with Respondent in the teacher's lounge. At the start of the class, Ms. Dickens observed Respondent handling her class for about 15 minutes. The students did not appear to have a routine. Lack of routine constitutes poor classroom management. In contrast, Ms. Dickens began her instruction with class rules. Ms. Dickens introduced the students to unfamiliar vocabulary prior to reading the book. The lesson was very productive. Ms. Dickens had no discipline problems while she taught the class. On March 2, 1998, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unacceptable in preparation and planning and classroom management. Respondent was rated unsatisfactory in preparation and planning because she had no lesson plan. Respondent's class was in the library and Respondent requested that the principal not observe her in the library. Dr. Senita requested Respondent's lesson plan but Respondent refused to give one to her. The lesson plan is a contractual requirement. It guides what goes on in the class for the day. Respondent was required to allow Dr. Senita to review the lesson plan. An administrator has the right to observe any class at any time. Respondent was rated unacceptable in classroom management because she did not start her lesson for twenty-five minutes while she was on the telephone attempting to call different people to have the principal not observe her. Students reported late to class. Some students chewed gum. One student yelled an obscenity and another barked like a dog. Respondent did not correct the misbehavior. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included completing activities from the TADS prescription manual and reading portions of a book entitled Learning to Teach. Respondent was also required to submit her lesson plans on the Friday prior to the week she would teach from them. On March 25, 1998, Dr. Senita formally observed Respondent in her 2nd period creative writing class and rated her unsatisfactory in preparation and planning, classroom management, and techniques of instruction. As this was the confirmatory observation, a prescription was not issued. The lesson was disjointed and did not extend for the allotted time. The students were again off task. As a result of the observation on March 25, 1998, Dr. Senita notified the Superintendent of Schools that Respondent had not satisfactorily corrected her performance deficiencies during the Performance Probation and recommended that Respondent's employment be terminated. The assistance provided to Respondent through her prescriptions was appropriate to remedy her deficiencies. Respondent completed all of her prescriptions. Nevertheless, Respondent continued to fail to plan for and manage her students. Respondent failed to improve her performance such that the students' instructional needs were not met. On April 2, 1998, the Superintendent of Schools timely notified Respondent that he was going to recommend that the School Board terminate her employment contract because she had failed to satisfactorily correct her performance deficiencies during her Performance Probation. On April 15, 1998, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order sustaining the action to terminate Respondent's annual contract. DONE AND ENTERED this 6th day of October, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1998. COPIES FURNISHED: Roger C. Cuevas, Superintendent School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132 Frank T. Brogan, Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade Legal Department 2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated January 16, 2003, and in the Notice of Specific Charges filed February 27, 2003, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002).3 At the times material to this proceeding, Mr. Lefkowitz taught emotionally handicapped and seriously emotionally disturbed students in North Miami Beach High's Bertha Abbess exceptional student education program. He has been employed by the School Board since 1993, and is currently employed under a professional services contract. At the times material to this proceeding, Mr. Lefkowitz and at least one other person were making a music video for a course they were taking at Florida International University. Alvarro Gutierrez was working with Mr. Lefkowitz on the video, and Mr. Gutierrez had chosen the girl who would sing and would choreograph the dances for the video. Mr. Gutierrez did not, however, have any dancers, and Mr. Lefkowitz told Mr. Gutierrez that he knew some girls "from school" who were dancers and that he would ask them if they wanted to dance in the video. J.D. was, at the times material to his proceeding, an 11th-grade student at North Miami Beach High, although she was not a student of Mr. Lefkowitz. Rather, J.D. met Mr. Lefkowitz in a school hallway, while she was selling candy for her French class, and they apparently had several conversations during school hours. In one of these conversations, Mr. Lefkowitz mentioned that he was filming a music video for a college class. J.D. asked if she could be in the video, and Mr. Lefkowitz agreed and asked J.D. if she had any friends who could also dance in the video. J.D. introduced Mr. Lefkowitz to her friend N.F. N.F. was, at the time, an 11th-grade student at North Miami Beach High, but she did not know Mr. Lefkowitz until J.D. introduced them. Mr. Lefkowitz did not know at the time he met her that N.F. was a student at North Miami Beach High. J.D. also introduced Mr. Lefkowitz to Glamour Legros, whom she knew because she and Ms. Legros attended the same church. Prior to introducing Mr. Lefkowitz to Ms. Legros, J.D. had told him on a number of occasions how much Ms. Legros wanted to meet him.4 Ms. Legros and N.F. shared an apartment. Ms. Legros was not a student at the times material to this proceeding, and she was older than N.F. and J.D. J.D., N.F., and Ms. Legros agreed to dance in the music video and went to Mr. Lefkowitz's apartment several times to discuss, rehearse, and shoot the video. Mr. Lefkowitz picked up J.D., N.F., and Ms. Legros and drove them to his apartment on the occasions when they were working on the video. Mr. Lefkowitz also took J.D. and her friends home on these occasions. M.D., J.D.'s brother and a student at North Miami Beach High at the time, went to Mr. Lefkowitz's apartment once, and H.D., another student at North Miami Beach High, was at Mr. Lefkowitz's apartment on at least one occasion, when she danced for the music video. These two students also rode with Mr. Lefkowitz in his car on at least one occasion. In addition to her visits to Mr. Lefkowitz's apartment and her rides in his car, J.D. spoke with Mr. Lefkowitz numerous times on the telephone. When working on the video, J.D. went to Mr. Lefkowitz's apartment with her friends. She was alone with Mr. Lefkowitz once, after her friends left Mr. Lefkowitz's apartment; Mr. Lefkowitz took her home after about an hour. Mr. Gutierrez did not observe Mr. Lefkowitz engage in any improper behavior with J.D. or her friends at Mr. Lefkowitz's apartment during the time they were discussing, rehearsing, and shooting the music video. On April 21, 2003, Ms. Legros called the police and she and N.F. reported that Mr. Lefkowitz had come to their apartment, beat on the door, and threatened them verbally. According to the police incident report, the police were dispatched at 10:09 p.m. and arrived at Ms. Legros's and N.F.'s apartment at 10:12 p.m. Mr. Lefkowitz had outpatient surgery on April 18, 2002. Mr. Lefkowitz's mother was with him at his apartment from April 18 through the morning of April 22, 2002, the day he returned to work. According to Ms. Lefkowitz, Mr. Lefkowitz was in bed, asleep, on the night of April 21, 2002. On April 22, 2002, Raymond Fontana, the principal of North Miami Beach High, received a telephone call from a woman who identified herself to Mr. Fontana's secretary as J.D.'s aunt and who told Mr. Fontana that an exceptional student education teacher named "Neil" was having a relationship with J.D., a student at North Miami Beach High; the caller also reported that the teacher had been involved in an "incident" that had been reported to the police. Ms. Legros was the person who called Mr. Fontana.5 Mr. Fontana called Allyn Bernstein, an assistant principal at North Miami Beach High, into his office and asked her to look into the allegations made by the caller. Dr. Bernstein called Mr. Lefkowitz into her office and, before she could say anything, Mr. Lefkowitz told her that he knew why she had summoned him, that an ex-girlfriend had threatened to make trouble for him because he wouldn't give her money. When Dr. Bernstein questioned Mr. Lefkowitz about his relationship with the student J.D., Mr. Lefkowitz denied knowing her. Dr. Bernstein also called J.D. into her office. In response to Dr. Bernstein's questions, J.D. denied knowing Mr. Lefkowitz. She stated that she did not have a social relationship with any teacher outside of school and that she had never met any staff member outside school. After Dr. Bernstein reported to Mr. Fontana that she believed that there might be "something there,"6 Mr. Fontana reported the matter to the school district personnel, who referred the matter to the Miami-Dade School Police Department, and an investigation was initiated. Once the investigation was initiated, Mr. Lefkowitz was placed on alternate assignment at his home effective May 3, 2002. The investigator, Detective Victor Hernandez, interviewed N.F., Ms. Legros, J.D., H.D., M.D., and Mr. Lefkowitz. During the course of his investigation, Detective Hernandez was told that Mr. Lefkowitz and N.F. had dated and that they had had sexual intercourse. When Detective Hernandez interviewed Mr. Lefkowitz, Mr. Lefkowitz denied that he knew either J.D. or N.F. In a report dated September 2, 2002, Detective Hernandez described his investigation and set forth the substance of the statements given by the witnesses. Detective Hernandez concluded that the charges that Mr. Lefkowitz had violated Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, and School Board Rules 6Gx13-4.109 and 6Gx13-4A-1.21 were substantiated. A Conference-for-the-Record was held on October 2, 2002, with Paul Greenfield, District Director, presiding. Mr. Lefkowitz attended the Conference-for-the-Record, together with the School Board's Director of Region II and Mr. Fontana. Mr. Lefkowitz requested that his attorney be allowed to attend, but this request was denied.7 Mr. Greenfield reviewed Mr. Lefkowitz's history with the Miami-Dade County public school system and presented the results of the investigation. Mr. Lefkowitz denied having met J.D. and N.F. and denied that they were ever in his apartment. After the Conference-for-the-Record, Mr. Fontana recommended to the Superintendent of Region II that Mr. Lefkowitz's employment be terminated. Mr. Lefkowitz lied to Dr. Bernstein, to Detective Hernandez, and to the participants in the Conference-for-the- Record about his relationships with J.D. and N.F. because he knew it was improper for the students to be in his apartment and for him to associate with students outside of school. Mr. Lefkowitz expressed remorse at his behavior and acknowledged that his conduct was not appropriate. J.D. testified that she and Mr. Lefkowitz never dated or had sexual intercourse. Ms. Legros testified that she did not know whether Mr. Lefkowitz and J.D. had had sexual intercourse. She claimed, however, to have observed Mr. Lefkowitz and J.D. at Mr. Lefkowitz's apartment hugging and kissing and acting like "boyfriend and girlfriend to me."8 Ms. Legros has no personal knowledge that Mr. Lefkowitz had sexual relations with N.F., but testified that N.F. told Ms. Legros that she had had a relationship with Mr. Lefkowitz. An 11th-grade student testified at the hearing that he considered Mr. Lefkowitz to be a good teacher, a role model, and a teacher that he would remember after high school. Mr. Fontana testified that he thought Mr. Lefkowitz's effectiveness as a teacher had been impaired because of the "manner in which he dealt with students, having students come to his apartment, dealing with students that are out of the realm of his teaching responsibilities." Mr. Fontana observed that "once you breach that student/teacher relationship and you lose that professionalism I don't think you can ever go back and have the same degree of effectiveness as a teacher."9 In making his decision to recommend that Mr. Lefkowitz be terminated from his employment as a teacher, Mr. Fontana considered Mr. Lefkowitz's employment history with the Miami- Dade County public school system. Mr. Lefkowitz was twice referred for evaluation as to his medical fitness to perform his duties as a teacher and was twice found fit to perform these duties. Mr. Lefkowitz was the subject of three allegations of battery on a student, one in February 1995, one in February 1999, and one in March 1999; the February 1995 charge was substantiated,10 and Mr. Lefkowitz was given a verbal warning; the remaining two charges were unsubstantiated. Finally, in August 1995, Mr. Lefkowitz had an unacceptable annual evaluation, was given a TADS Category VII prescription in the area of Professional Responsibility, and successfully completed the prescription within the specified time. Summary The greater weight of the credible evidence presented by the School Board is insufficient to establish that Mr. Lefkowitz dated either J.D. or N.F. or that Mr. Lefkowitz had sexual intercourse with N.F. The School Board presented no direct evidence establishing that J.D. and Mr. Lefkowitz had a romantic relationship or that N.F. and Mr. Lefkowitz had a sexual relationship. The School Board relied exclusively on Ms. Legros's testimony to establish that these relationships existed,11 and most of her testimony was based on hearsay, not personal knowledge. Ms. Legros had no personal knowledge that N.F. had sexual relations with Mr. Lefkowitz, and the only behavior that Ms. Legros testified that she personally observed was Mr. Lefkowitz and J.D. in Mr. Lefkowitz's apartment hugging and kissing and, in Ms. Legros's estimation, acting like boyfriend and girlfriend. Ms. Legros is found not to be a particularly credible witness, and her uncorroborated testimony is not sufficiently persuasive to establish that Mr. Lefkowitz and J.D. more likely than not were dating or that the hugging and kissing, if she indeed observed such behavior, was sexual in nature. Both J.D. and Mr. Lefkowitz denied having a romantic relationship, but it is difficult to credit fully their testimony, given that both J.D. and Mr. Lefkowitz lied to School Board personnel about knowing one another and that Mr. Lefkowitz lied to School Board personnel about being acquainted with N.F. However, on reflection and after a careful review of the evidence, the testimony of J.D. and Mr. Lefkowitz is credited over that of Ms. Legros. The greater weight of the credible evidence presented by the School Board is not sufficient to establish that Mr. Lefkowitz telephoned N.F. on April 21, 2002, and threatened her or that he went to the apartment shared by Ms. Legros and N.F. on the night of April 21, 2002, and made threats to harm them. Mr. Lefkowitz's mother testified unequivocally that she was with Mr. Lefkowitz from April 19 through the morning of April 22, 2002, and that he was recovering from surgery and sleeping on the night of April 21, 2002. The School Board presented no evidence that Mr. Lefkowitz telephoned N.F. and threatened her, and Ms. Legros was the only witness to testify that Mr. Lefkowitz came to her apartment and made threats. The testimony of Mrs. Lefkowitz is credited over that of Ms. Legros.12 The evidence presented in this case is sufficient to establish that Mr. Lefkowitz failed to exercise the best professional judgment, failed to maintain the highest ethical standards, and used his position as a teacher to his personal advantage by recruiting young women students to perform as dancers in the music video he was filming as part of a college assignment. Mr. Lefkowitz admitted that he had engaged in inappropriate conduct: He had had a personal relationship outside of school with both J.D. and N.F.; J.D. and N.F. danced in a music video he made for a college project; J.D. and N.F. were in his apartment several times; and he drove J.D. and N.F. in his car to and from his apartment. The contents and tone of the written statement Mr. Lefkowitz adopted as his testimony supports an inference that he was on very familiar terms with both J.D. and N.F., and with Ms. Legros as well.13 Mr. Lefkowitz's poor judgment in developing significant social relationships outside of school with two female students at North Miami Beach High and his inappropriate behavior in having these students as guests in his car and in his apartment reflect poorly on him as a teacher employed by the School Board. Mr. Lefkowitz also failed to exercise the best professional judgment and to maintain the highest ethical standards with respect to his dealings with the School Board during the investigation of his conduct. Mr. Lefkowitz lied to Dr. Bernstein and Detective Hernandez and at the October 2, 2002, Conference-for-the-Record when he said he did not know J.D. or N.F., and he admitted at the final hearing that he lied because he knew that he should never have involved these students in making the music video, should never have given these students rides in his car, and should never have invited the students to his apartment. Mr. Lefkowitz's lack of truthfulness reflects poorly on him as a teacher employed by the School Board. The evidence presented by the School Board is also sufficient to establish that Mr. Lefkowitz engaged in one instance of inappropriate behavior involving students M.D. and H.D. Mr. Lefkowitz admitted that, on one occasion, he picked up these two students in his car and drove them to his apartment, where H.D. danced in the music video and M.D. observed Mr. Lefkowitz and cohorts filming the music video. Mr. Lefkowitz did not have repeated out-of-school contacts with these two students, as he did with J.D. and N.F., but his behavior with M.D. and H.D. reflected poorly on him as a teacher employed by the School Board. The evidence presented by the School Board, which consisted only of Mr. Fontana's conclusory and general statements, is not sufficient to establish that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami- Dade County public school system. The evidence presented by the School Board is, however, sufficient to permit an inference that Mr. Lefkowitz's effectiveness as a teacher was impaired. Mr. Lefkowitz encouraged students to develop personal relationships with him and to spend significant amounts of time with him in his apartment. Even though J.D., the young woman with whom he was primarily involved, was not a student in his class, his willingness to become involved with this student and her friends brings his personal and professional judgment into question and necessarily affects the school administration's assessment of his fitness for supervising high school students. It may also be inferred that Mr. Lefkowitz's effectiveness as an employee of the School Board was also impaired because he lied to the principal and assistant principal of his school and to the regional superintendent of the Miami-Dade County public school system about even knowing J.D. By not being truthful with the school system administrators, Mr. Lefkowitz diminished his credibility as a professional educator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order; Finding that Neil D. Lefkowitz is guilty of having committed misconduct in office and of violating School Board Rules 6Gx13-4-1.09 and 6Gx13-4A-1.21; Suspending Mr. Lefkowitz without pay for a period of 24 months, retroactive to the date on which the School Board suspended him from his employment without pay; and Imposing such conditions on Mr. Lefkowitz upon his return to employment as the School Board deems appropriate. DONE AND ENTERED this 31th day of July, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 31th day of July, 2003.
The Issue The issues in this case are (1) whether an education paraprofessional made salacious and vulgar comments to a female student and, if so, (2) whether such conduct gives the district school board just cause to suspend this member of its instructional staff for 30 workdays, without pay.
Findings Of Fact At all times relevant to this case, Respondent Alfredo Regueira ("Regueira") was an employee of Petitioner Miami-Dade County School Board ("School Board"), for which he worked full time as a physical education paraprofessional. At the time of the events giving rise to this proceeding, Regueira was assigned to Miami Senior High School ("Miami High"), where he led exercise and fitness classes in the gymnasium. As of the final hearing, A. M., aged 17, was a senior at Miami High. She had met Regueira in the spring of her sophomore year at the school, in 2005, outside the gym. Thereafter, although never a student of Regueira's, A. M. would chat with "Fred"——as she (and other students) called him——about once or twice per week, on the gymnasium steps, during school hours. As a result of these encounters, A. M. and Regueira developed a friendly relationship. At some point, their relationship became closer than it prudently should have, moving from merely friendly to (the undersigned infers) nearly flirty. A. M. gave Regueira a picture of herself inscribed on the back with an affectionate note addressed to "the prettiest teacher" at Miami High. Regueira, in turn, spoke to A. M. about sexual matters, disclosing "what he did with women" and admitting a proclivity for lesbians. Notwithstanding this flirtatious banter, there is no allegation (nor any evidence) that the relationship between Regueira and A. M. was ever physically or emotionally intimate. As time passed, however, it became increasingly indiscreet and (for Regueira at least) dangerous. At around eight o'clock one morning in late February or early March 2006, A. M. and her friend E. S. went to the gym to buy snacks, which were sold there. Regueira approached the pair and, within earshot of E. S., made some suggestive comments to A. M., inviting her to get into his car for a trip to the beach. Later, when E. S. was farther away, Regueira spoke to A. M. alone, using vulgar language to communicate his desire to have sexual relations with her. In A. M.'s words, "Mr. Fred me dijo en English 'I want to fuck you.'" (Mr. Fred told me in English "I want to fuck you.")1 At lunch that day, while conversing with E. S., A. M. repeated Regueira's coarse comment. A. M. did not, however, report the incident contemporaneously either to her parents, being unsure about how they would react, or to anyone else in authority, for fear that she would be disbelieved. After the incident, A. M. stopped going to the gym because she was afraid and embarrassed. A few weeks later, A. M. disclosed to her homeroom teacher, whom she trusted, what Regueira had said to her. The teacher promptly reported the incident to an assistant principal, triggering an investigation that led ultimately to the School Board's decision to suspend Regueira. Thus had the candle singed the moth.2 That this incident has diminished Regueira's effectiveness in the school system is manifest from a revealing sentence that Regueira himself wrote, in his proposed recommended order: "Since this situation has been made public[,] . . . my peers have lost all respect for me." An employee who no longer commands any respect from his colleagues is unlikely to be as effective as he once was, when his peers held him in higher regard. Ultimate Factual Determinations Regueira's sexually inappropriate comments to A. M. violated several rules and policies that establish standards of conduct for teachers and other instructional personnel, namely, Florida Administrative Code Rule 6B-1.006(3)(e)(prohibiting intentional exposure of student to unnecessary embarrassment or disparagement), Rule 6B-1.006(3)(g)(forbidding sexual harassment of student), Rule 6B-1.006(3)(h)(disallowing the exploitation of a student relationship for personal advantage), School Board Rule 6Gx13-4A-1.21 (banning unseemly conduct); and Board Rule 6Gx13-4-1.09 (proscribing unacceptable relationships or communications with students). Regueira's misconduct, which violated several principles of professional conduct as noted above, also violated Florida Administrative Code Rule 6B-1.001(3)(employee shall strive to achieve and sustain the highest degree of ethical conduct). This ethics code violation, it should be mentioned, is secondary to the previously described misdeeds, inasmuch as sexually inappropriate behavior in the presence of, or directed toward, a student necessarily demonstrates a failure to sustain the "highest degree of ethical conduct." Regueira's violations of the ethics code and the principles of professional conduct were serious and caused his effectiveness in the school system to be impaired. In this regard, Regueira's admission that his colleagues have lost all respect for him was powerful proof that, after the incident, he could no longer be as effective as he previously had been. Based on the above findings, it is determined that Regueira is guilty of the offense of misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order suspending Regueira from his duties as a physical education paraprofessional for a period of 30 workdays. DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2007.
Findings Of Fact Respondent, Moses Green, holds Florida Teaching Certificate No. 232099, Graduate, Rank II. He served as dean of students at Boca Ciega School during the 1976-1977 school year. Thereafter he was reassigned as one of three deans of students at Pinellas Park High School, and he served in this capacity during the 1978-1979 school year. Moses Green has been in the field of education since his graduation from Florida A & M University more than 21 years ago. After teaching several years in South Carolina and Georgia he came to Boca Ciega High School in Pinellas County in 1964 where he started as a teacher. He served as dean of students at Boca Ciega High School from 1974 until 1977 when he was transferred to Pinellas Park High School as a dean of students. In October 1976 enroute from his home to school in a vehicle described both as a van and a motor home, Respondent stopped to give a ride to Jacqueline Blackshear and Stephanie Bellamy, two ninth grade students at Boca Ciega High School. When they entered the van Jackie sat on the housing covering the engine between the two front seats facing the rear of the van and Stephanie sat in the front right-hand passenger's seat. Enroute to school Respondent commented that Jackie was growing up and placed his hand on the inside of Jackie's thigh. At the time, Jackie was enroute to school for cheerleader practice and was wearing shorts. Jackie looked and moved towards Stephanie and Respondent removed his hand. Before arriving at school Respondent again placed his hand on Jackie's thigh and removed it when she moved. Upon arrival at school Respondent told Stephanie to get out as he wanted to talk to Jackie. When Stephanie left the van, Respondent was standing facing Jackie whose back was to the closed door. Respondent grabbed Jackie and attempted to kiss her. She pushed away, opened the door and left the van. When she left the van, Jackie was upset and Stephanie suggested she tell her parent. Near noontime Jackiie went to Gail Weston, a physical education teacher at Boca Ciega High School and told her about the incident in Respondent's van. Stephanie accompanied Jackie on this visit. Ms. Weston described Jackie as nervous and upset. After a few minutes of conversation Ms. Weston realized that it was not something she could handle and she told Jackie and Stephanie that they needed to tell their story at the Dean's office and she took them to Jean Johnson, a dean of students at Boca Ciega High School. There both girls told their story to Ms. Johnson who prepared a statement for them to sign. The story repeated to Ms. Johnson was essentially the same told to Ms. Weston. After typing up their statements, Ms. Johnson told Mr. Demps, the principal. He had the girls brought to him, where the story was again repeated. Demps called Respondent in and confronted him with the story. He also advised his area superintendent and the director of personnel, who investigated the allegations made by these two girls. Demps also arranged for a meeting with Jackie's and Stephanie's parents the following day. Following the investigation, Green, on October 19, 1976 was issued a letter of reprimand (Exhibit 1) for his role in the events that had come to the school's attention regarding the two girls noted above and warned that a recurrence of such conduct would result in dismissal. By letter dated 9 November 1976 Respondent was sent another letter (Exhibit 2) regarding a reported and inappropriate remark made by Green to another female student, which Respondent had denied, and the letter suggested Respondent and the girl take lie detector tests. By letter dated December 29, 1976 (Exhibit 3) the Superintendent of Schools advised Respondent that the results of the polygraph test he had voluntarily taken indicated his answers were deceptive, while the girl's polygraph test indicated her responses were honest. Respondent was placed on probation for the remainder of the 1976-1977 school year and for all of the 1977-1978 school year. Although his principal at Boca Ciega High School, Mr. Demps, considered Respondent's effectiveness at Boca Ciega High School seriously impaired by the notoriety given to the events involving Respondent in 1976, he remained at Boca Ciega High School for the remainder of that school year. For the school year 1977-1978 Respondent was transferred to Pinellas Park High School as dean of students. Upon his transfer to Pinellas Park High School, Demps gave Respondent a good evaluation report. During Respondent's first year at Pinellas Park High School, no incidents were reported to form the basis of any of the charges here considered. This school year 1977-1978 included the probation period set by Exhibit 3. The school year 1978-1979, while Respondent was dean of students at Pinellas Park High School, produced the majority of complaints and testimony at this hearing regarding improper comments made to female students by Respondent, improper contact of a sexual nature with female students by Respondent, and corroboration of this testimony by other witnesses. Ten female students who attended Pinellas Park High School during school year 1978-1979 testified against Respondent regarding incidents between Respondent and these students of a sexual nature. Some of these incidents involved contact or attempted contact such as hugging, kissing or attempting to kiss, touching breasts or attempting to do so, and rubbing the front of his body against students' backsides when passing them when adequate room for passing without contact existed. Several testified to improper comments made to them by Respondent such as "You have a nice set of tits," "I'd like to get in your pants," "You have a nice pair of legs," "Why don't we go to a motel," "You drive an old man crazy," "You have a nice butt and look good in those pants," "One of these days it's going to be you and me," and similar comments regarding female students' anatomy. Much of this testimony was corroborated by other witnesses who overheard the remarks or observed the bodily contact. Additionally, some of the witnesses had complained to their parents or to other faculty members shortly after the incidents. Others first came forward with their complaints when they learned the police were investigating Green's conduct at the school and they became convinced their isolated incidents wouldn't appear unbelievable. Some of these students tolerated and perhaps encouraged the comments to provide them leverage to insure a cover-up for numerous "skips" of classes. Some of these witnesses skipped classes without punishment due to Respondent's position as dean and to whom their infractions were referred. Respondent denied each and every testimonial utterance of misconduct on his part while admitting the situation described by the witnesses, in which the improper actions of Respondent were said to have occurred, were real. During his testimony Respondent referred to school records which would corroborate his testimony, but he made no effort to produce these records or to account for their non-production. Respondent was subjected to three criminal trials on charges stemming from allegations of fact similar to those testified to in these proceedings. He was acquitted on charges alleging battery and false imprisonment and convicted of the offense of attempting to contribute to the delinquency of a minor. Those trials resulted in considerable publicity and the allegations became well-known throughout the Pinellas County School System. Several witnesses testified that Respondent's effectiveness in the Pinellas County School System was totally destroyed by virtue of the notoriety gained by Respondent due to this adverse publicity.
The Issue The issue is whether Petitioner terminated Respondent's annual contract as a teacher for just cause.
Findings Of Fact Petitioner hired Respondent, an inexperienced teacher who had recently graduated from college, and assigned him to teach and serve as an assistant basketball coach at Dixie Hollins High School during the 2000-01 school year. For the 2001-02 school year, Petitioner reassigned Respondent to Tarpon Springs High School, where Respondent assumed the duties of head basketball coach. During both school years, Respondent was on annual contract. Initially, an administrator at Tarpon Springs High School informed Respondent that he would teach American history and economics, which are the subjects that he had taught at Dixie Hollins High School. When Respondent reported for duty at Tarpon Springs High School, administrators did not give him a schedule until a couple of days before classes started. At that time, Respondent learned that, during the first quarter, he was to teach counseling and personal fitness, neither of which he had taught before. He also learned that, the following quarter, he was to teach Freshman Experience, which was a relatively new course, and personal fitness. In the third quarter, he was due to teach earth-space science in place of personal fitness. At least for the first two quarters, Respondent was assigned students in the GOALS program, which is designed for students who have not made substantial academic progress due to social problems. In this program, the students take only four classes per quarter. Each class runs one hour and forty-five minutes, five days weekly. Respondent had difficulties assembling materials for the peer counseling course. Teachers who had previously taught the course were not available. Extensive renovations at the school made it difficult to locate materials for this and other courses. Respondent finally visited a teacher at another school and obtained books, guides, and tests for peer counseling. These materials advised Respondent to help the students learn to settle their disputes peaceably without adult intervention and suggested that the teacher supplement the book with relevant movies dealing with peer pressures, conflict, and social issues. Respondent experienced similar difficulties with the personal fitness course, for which he had books, but no teacher edition or worksheets. However, Respondent's background in athletics presumably prepared him to teach this course. Although Respondent voiced similar complaints about Freshman Experience, he had a quarter to try to obtain materials. Also, no one else at the school had any experience with this course, which the District had abruptly required the high schools to teach. Similar to peer counseling, Freshman Experience is a motivational course that also covers personal and academic issues, as revealed by the titles of the required books, Chicken Soup for the Soul and Ten Steps for How To Manage Time. The seven charges listed in the Preliminary Statement fall into four groups. Charges 1 and 2 are the most serious; they allege that Respondent kissed two students and touched the vaginal area of one of these students. Charges 3 and 4 are also sexual in nature; they allege that Respondent made inappropriate comments to female students about their appearance and inappropriate sexual comments to or in front of students. Charges 5 and 6 pertain to classroom management; they allege that Respondent allowed students to come to his classroom for no legitimate purpose and encouraged students to leave campus to get him food. Charges 7-9 pertain to curriculum, administration, and instruction; they allege that Respondent used noncurriculum-related materials (such as videos), lacked appropriate recordkeeping, and lacked appropriate classroom instruction. Petitioner wisely dropped Charges 6, 8, and 9. No evidence in the record supported these allegations prior to Petitioner's announcement that it was not pursuing these allegations. Charges 5 and 7 require little more analysis. The evidence supports neither of these allegations. Concerning Charge 5, unenrolled students visiting Respondent's classroom included basketball players. While Respondent remained the basketball coach, these players briefly visited the room from time to time to discuss something about the basketball program. Petitioner did not show the extent of these visits or that they were illegitimate. Unenrolled students who were not participating in the basketball program infrequently visited Respondent's classroom. Although the principal testified that one of his assistant principals told him that there was a problem with unenrolled students visiting Respondent's classroom, he added that she rejected his offer to talk to Respondent and said she would handle it. After that conversation between the principal and assistant principal, the principal said the problem was eliminated. Interestingly, though, neither the assistant principal nor anyone else ever talked to Respondent about this issue, which appears not to have loomed large at the time. Concerning Charge 7, Petitioner never proved the rating of any of the films mentioned during the hearing as shown in Petitioner's classroom. Films mentioned during the hearing as shown in one of Respondent's classes include With Honors, Rudy (shown repeatedly), Finding Forrestor, Saving Private Ryan, The Hurricane, [The Mask of] Zorro, and assorted basketball videotapes. The record reflects disagreement among Petitioner's administrators as to the policy concerning the application of the District policy regarding R-rated films. According to the representative of the Office of Professional Standards, The Patriot (apparently an R-rated film) "could" violate this policy, but, according to the principal, who is now handling workforce development in the District office, The Patriot "probably" would not be a problem. Even if The Patriot were a problem, as an R-rated film, it would be so only if Respondent had not obtained permission slips from parents to show this and perhaps other R- rated films. Respondent testified that he did so. Notwithstanding the testimony of one student to the contrary, Petitioner never proved that Respondent failed to obtain permission slips. The issue of the relationship, if any, between the films and the courses fails because Petitioner failed to prove the contents of the films or to prove adequately the prescribed content of the courses, so as to permit a finding that the films were irrelevant to the courses. The broad outlines of peer counseling in particular, at least as established in this record, would appear to accommodate a vast array of films. A sufficient number of students testified in sufficient detail to a broad array of bookwork, class discussion, and other instructional and assessment methods in both peer counseling and Freshman Counseling to overcome whatever proof that Petitioner offered in support of Charge 7. The crux of this case lies in the charges involving sexual improprieties, as alleged in Charges 1-4. The quality of proof was considerably different between Charges 1 and 2, on the one hand, and Charges 3 and 4, on the other hand. Analyzing Charges 3 and 4 first may help explain the findings as to Charges 1 and 2. Concerning Charges 3 and 4, Petitioner proved that Respondent made numerous inappropriate comments to female students, of a sexual nature, that understandably made the students feel uncomfortable. Respondent directed three of these comments and one behavior to T. R., a junior. While walking around the track during the personal fitness class that T. R. was taking from Respondent, he asked her what she thought of a 26-year-old dating an 18-year-old. T. R. was either 18 years old or Respondent implied that the dating would await her 18th birthday; either way, T. R. reasonably believed that Respondent meant her. Although actually 29 or 30 years old at the time, Respondent typically told his students that he was only 26 years old, so T. R. reasonably believed that Respondent meant him. T. R. was so uncomfortable with this question that she mentioned it to a female teacher at the school, Cheryl Marks- Satinoff. Thoughtfully considering the matter, Ms. Marks- Satinoff found that the question was "odd," but not "extremely inappropriate" and "on the fence." Ms. Marks-Satinoff's characterization of the question, in isolation, is fair. In the context of other comments to T. R. and other female students during the relatively short period of two school quarters--little else, if any, of which was Ms. Marks-Satinoff was then aware--the comment acquires its proper characterization. To T. R., Respondent also said, "If I were still in high school, I'd be climbing in your window at night." T. R. was "shocked" by this comment, but her mother or stepmother, when told by T. R. about the comment--again, in isolation--did not attach much importance to it. On another occasion, when a female student asked why T. R.'s grade was better than D. P.'s grade, Respondent replied, "T. R. and I have an agreement." While taking Respondent for personal fitness, T. R. found Respondent staring at her repeatedly. Accordingly, T. R. switched from stretch pants to baggies. T. R.'s testimony is credible. She spoke with adults about two of the comments roughly at the time that they were made. Also, T. R. bore no grudge against Respondent. She said that she did not think twice about the dating comment, although she obviously gave it enough thought to raise it with Ms. Marks- Satinoff. T. R. freely admitted that Respondent made the comment about crawling into her window in a joking manner. She discredited D. P., who is the alleged victim of the most serious sexual incident, discussed below, as a person who always lies, convincingly. T. R. added that D. P. told her once that Respondent "tried" to kiss her and put his hand up her skirt and did not understand why D. P. confided in her initially. T. R. testified that she never heard Respondent do or say anything inappropriate in the personal fitness class that she took with D. P. T. R. testified that Respondent made her and her friends leave if they disturbed his class the few times they got out of their assigned class to visit his office and watch movies. T. R. described another female student, B. H., who testified to several inappropriate comments made by Respondent, as someone who "likes to stir the pot." To A. T., an 18-year-old who graduated from Tarpon Springs High School in June 2002, Respondent alluded to the size of her breasts, in front of the class, and used his hands to frame them. Although done in connection with a warning that A. T. was violating the school dress code due to the revealing nature of her shirt, Respondent delivered this warning in a sexual manner that was obviously unnecessary for the purpose of reminding the student to conform to the dress code. A. T. testified that she liked Respondent as a teacher, but he made her uncomfortable, and he should be more a teacher than a friend. Like T. R., A. T. seemed not to bear any negative feelings toward Respondent, but instead merely seemed to be describing an insensitive incident as it happened. To N. S., a junior at the time, Respondent said, upon learning that she had surgically implanted rods in her back, that he wanted to have sex with her. N. S. testified that she was not bothered by the remark. N. S.'s testimony is credited. She was friendly toward Respondent and had long dated Respondent's teacher assistant. To A. M., Respondent said that she looked pretty and could get any guy she wanted. A. M.'s testimony is credited. She did not have much interaction with Respondent and was not part of any group interested in causing him trouble. She seems simply to have truthfully reported an ill-advised comment that Respondent made to her, although she did not describe her reaction to the comment. To L. D., Respondent said that he had a bracelet of hers that she had lent him and that, whenever he looked at it, it reminded him of her. L. D. felt uncomfortable about this remark. L. D. also testified that Respondent sometimes tried to get the boys to treat the girls with respect, and her testimony is credited. Other witnesses, especially D. P. and B. H., described other comments, but their credibility is poor, and their testimony cannot be credited. The demeanor of two witnesses favorable to Respondent revealed something bordering on exasperation with him, even as they testified that he never said anything sexually inappropriate in class. The demeanor of each witness was consistent with someone who believed that Respondent was only joking around in class, when making sexually charged comments, and had suffered more than enough due to the consequences of lies told by two female students, as described below. In isolation, the comment about having sex with a student with orthopedic rods in her back is sexually offensive, as is the sexual comment and gesture framing a female student's breasts is sexually offensive. The comments about the agreement between T. R. and Respondent, the bracelet reminding Respondent of L. D., and A. M. being able to sufficiently pretty to get any boy are not sexually offensive, in isolation, but, even in isolation, betray a tendency by Respondent to regard certain of his female students as females more than students. With the exception of the comment to A. M., all of the comments, gesture, and behavior, in the aggregate during a relatively short period of time, depict a transformation by Respondent of the relationship between a teacher and several of his students to a more ambiguous relationship, at times resembling the relationship that might exist between these girls and the boys with whom they attended high school. Nearly all of these incidents embarrassed the female students; all of them, except perhaps A. M., reasonably should have been embarrassed by them. Several of these incidents suggest that Respondent regarded these female students as available for him in some role other than that of student--for instance, as females with whom to flirt. Petitioner has proved that Respondent exploited these female students, with the possible exception of A. M., for personal gain. This characterization of these comments, gesture, and behavior is confirmed by Respondent's implausible assertion that all of these students, except N. S., are lying. If confident that the comments, gesture, and behavior were innocuous or at least not improper, Respondent could have gained credibility by admitting these incidents and explaining their innocence. With one exception, Petitioner has not proved that Respondent sexually harassed or discriminated against his female students or these students in particular. The record does not suggest any quid pro quo in the sexual incidents, although the agreement with T. R. approaches the type of proof required. Nor does the record suggest that the sexual commentary, gesturing, or behavior were so pervasive as to create a hostile environment. Two students, N. S., A. M., and L. D., were each the subject of a single comment. One student, A. T., was the subject of a single incident, which consisted of a comment and gesture. On this record, Petitioner failed to prove that Respondent's treatment of these students rose to harassment or discrimination of them or of his female students in general. However, Respondent's treatment of T. R. rose to harassment and sexual discrimination because he made three sexually inappropriate comments and engaged in one sexually inappropriate behavior that caused her to alter her mode of dress. Respondent implicitly asked her to think about dating him--now or later--with the comment about a 26-year-old dating an 18-year-old. Respondent implicitly identified the possibility of their having sex with the comment about climbing in her window. Respondent alluded to the possibility of sex between T. R., a student, and himself, a teacher with the power of the grade, with the comment about her grade resulting from an agreement. And Respondent leered at T. R. sufficiently to cause her to change her workout clothes. In partial mitigation of the sexual comments, gesture, and behavior, but not the harassment or discrimination, no one seems to have provided Respondent with any timely feedback on this manner of interacting with certain female students. The only reports to adults seem to have been of isolated comments. In addition to the two reports noted above, a male student reported inappropriate comments, midway through the first quarter, to the teacher who was head of GOALS. Although the teacher did not describe the inappropriate comments, she said that she talked only to the two female students involved and evidently decided that the matter was not sufficiently important to discuss with Respondent or the administration. As noted above, Ms. Marks-Satinoff learned from T. R. of a borderline inappropriate comment. Sometime later, in January, she spoke briefly with Respondent and advised him to watch inappropriate comments. This marks the only feedback, and it was too late to alter the course of events. However, for the same reason that this lack of feedback does not mitigate at all the harassment and discrimination involving T. R., the value of this mitigation is largely undermined by the fact that the knowledge of the need to refrain from improper personal references to students is not granted only to the most experienced teachers or administrators. Perhaps Respondent was not fully aware that his comments, gesture, and behavior were sexually charged and did not realize the effects of these comments, gesture, and behavior on his students, as some teachers may not be fully aware of their sarcasm and its effect on their students. However, Respondent, as a teacher, remains responsible for determining the effect of his interaction upon his students and ultimately must bear the consequences if he fails to identify the problem. D. P. is the complainant in Charge 1. She was born in September 1984 and was a senior during the 2001-02 school year. Respondent taught her peer counseling during the first quarter and personal fitness during the second quarter. D. P. testified that on Monday, January 14, 2002, she approached Respondent to ask if she could exempt a final exam. She testified that he said to return after lunch. When she did, she testified that they met in his office where he kissed her and moved his hand up her leg until he digitally penetrated her vagina. D. P.'s testimony is unbelievable for several reasons. First, two different students testified that they heard her say that she would get Respondent into trouble. One of the students testified that he heard her say this immediately after an argument D. P. had with Respondent over absences and tardies. D. P. was upset with Respondent because her numerous absences and tardies prevented him from exempting her from the final examination in his class. D. P. did not tell anyone of the alleged incident until immediately after she found that she could not obtain an exam exemption from Respondent. Second, D. P.'s testimony is unusually inconsistent with other statements that she has given. Some inconsistencies are not fatal to credibility, but the number and importance of inconsistencies in her testimony and statements preclude a finding of credibility. Numerous material discrepancies exist between D. P.'s testimony at the hearing and her testimony in a prehearing deposition. Other discrepancies exist between her testimony at the hearing and earlier statements given to law- enforcement officers or made to others. These discrepancies include differences of two hours as to when during the day the incident occurred and one day as to which day on which it occurred. D. P.'s implausible implication is often that the persons taking down her version of events made a mistake. Third, D. P.'s testimony is improbable. First, Respondent was aware of the investigation into his dealings with female students by the morning of January 14. The investigation was already underway by the end of the prior week. For instance, D. P. had given her first statement on January 11. It is unlikely that Respondent would engage in such egregious sexual abuse of a student while he knew that he was under investigation. Second, Respondent's teacher assistant testified that he was in the office during the entire time that the incident supposedly would have taken place, and he never saw D. P. Fourth, D. P. has a poor reputation for honesty among her peers who know her well. D. P. testified that she told several persons about the sexual abuse, but they all denied such conversations. At one point during her testimony, she stated that everyone at school had his or her own opinion concerning rumors as to with which student Respondent was accused of having an improper relationship. As she testified, D. P. seemed clearly to have relished the attention that she had gained by making the charge. S. Y. is the complainant in Charge 2. S. Y. was born in April 1987 and was a sophomore during the 2001-02 school year. She was a student of Respondent. She testified that Respondent taught her Freshman Experience during the third quarter, although she was not a freshman and Respondent did not teach very long into the third quarter before he was terminated, as described below. S. Y. testified that Respondent kissed her one day while they were alone in his office. A number of reasons exist that undermine the credibility of this assertion. First, S. Y.'s testimony is also unusually inconsistent with other statements that she has given. At different times, she has attested that the kiss occurred between Thanksgiving and Christmas, before Thanksgiving, and in January. Second, S. Y.'s timing in reporting the kiss is suspect. First, three times she told investigators nothing about a kiss. Second, she reported the kiss only after she knew that D. P. had accused Respondent of sexual improprieties. S. Y. admitted that emotions were running "sky high" at the time. Unlike D. P., who did not like Respondent, S. Y. liked him, at one time even having a crush on him. S. Y. appeared capable of jealousy regarding her feelings about Respondent, as evidenced by the following facts. Third, S. Y. reported the kiss immediately after he referred her to the office for abruptly interrupting his class and loudly demanding that he tell her who else he was "fucking." Although she denied knowledge that Respondent was having sexual intercourse with any students, including herself, S. Y. admitted that the referral prompted her to report the kiss to an investigator. Fourth, S. Y. engaged in embellishment concerning her relationship with Respondent, as would be consistent with a fantasy attachment to him. Although S. Y. implausibly denied it, she told Ms. Marks-Satinoff that she had been to Respondent's home, which was in a poor section of Clearwater. Respondent's home is not in a poor section of Clearwater. S. Y. also has said that Respondent proposed that she and another girl perform in a porn movie that he would make. The reality is either that she proposed it to Respondent, who told her never to suggest such a thing again, or that a former boyfriend proposed the porn movie--without Respondent's involvement. For the reasons listed above, it is impossible to credit the testimony of D. P. or S. Y. that Respondent sexually abused them. Although the presence of multiple accusations of this type may sometimes be indicative of their reliability, they are more likely due to Respondent's sexual banter and flirtation and repeated failure to maintain appropriate boundaries between the professional and the personal. Both D. P. and S. Y. were doubtlessly aware of Respondent's tendencies in this regard, and, from this sexually charged atmosphere, which Respondent himself had helped create, they struck back at Respondent by making sexual allegations. D. P. chose to strike out at Respondent for not granting her an exemption to which she was not entitled, and S. Y. chose to strike out at Respondent for referring her to the office and not meeting the unrealistic expectations that she and her infatuation on Respondent had generated. Shortly after D. P. and possibly S. Y.'s charges emerged, law enforcement officers arrested Respondent, who remained in jail for nine days. In June 2002, the state attorney's office dropped the charges, although D. P. testified at the hearing that she intended to sue Respondent and Petitioner. Petitioner then terminated Respondent's employment six weeks prior to the end of the term of his annual contract. A proper penalty must reflect the nature of the offense and its impact on the students. Some students who were the subject of improper comments, gesture, and behavior denied embarrassment. Of those admitting to embarrassment, it does not seem to have been traumatizing or even especially painful. Not entirely without reason, some of the students implied that Respondent had already suffered enough, having been fired and served nine days in jail on accusations that were not established on this record. Also, the mitigation discussed above, as to the failure of authority figures to provide Respondent with timely feedback as to the improper comments, gesture, and behavior, but not harassment and discrimination, plays a role in setting the penalty. Petitioner's representative from the Office of Professional Standards testified that Charges 3 and 4 would suffice to warrant dismissal, depending on the frequency of the improper comments. The improper comments warrant, at most, an unpaid suspension of three days, but the harassment and discrimination involving T. R. warrant a more serious penalty. In the absence of the other sexually inappropriate comments and gesture, the harassment and discrimination involving T. R. probably would warrant a long suspension. However, two facts warrant termination. First, the harassment and discrimination involving T. R. are accompanied by the sexually inappropriate comments and gesture involving the other students. Second, still not grasping the requirements of a professional's proper relationship toward his students, Respondent has continued, implausibly, to deny all of the sexually inappropriate comments, except for an admission of a vague version of the comment about the orthopedic rod in N. S.'s back. By branding these students liars when he himself is lying, Respondent makes the case for Petitioner that termination is the proper remedy.
Recommendation It is RECOMMENDED that the Pinellas County School Board enter a final order dismissing Respondent from employment. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline M. Spoto, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942
Findings Of Fact Respondent, Michael B. Smith (Smith), has been continuously employed as a teacher by Petitioner, School Board of Dade County (School Board) since 1977. During the 1985-86 school year, Smith was employed under a continuing contract as a work experience teacher at Miami Norland Senior High School. The Assault and Loan Among the students in Smith's second period work experience class was Colleen Ann Dougherty (Colleen); a 15 year old female and 10th grade student. Colleen had been a student of Smith's since September 1985, and they enjoyed a good student- teacher relationship until the events which gave rise to these proceedings. 1/ On February 10, 1986, Smith asked Colleen to remain after class. Once the other students had left the classroom, and Colleen and he were alone, Smith engaged Colleen in a brief conversation concerning the progress of her outside employment. Gauging the conversation at an end, Colleen picked up her purse and book bag preparatory to moving to her next class, but was distracted when Smith asked her what was in her purse. As Colleen looked into her purse, which was hanging from her right shoulder, Smith placed his left hand on her right hip and his right hand on her left shoulder. When Colleen looked up, Smith pulled her toward him, and kissed her on the lips. Smith's conduct was uninvited and unexpected; Colleen, disconcerted, left the classroom. On February 11, 1986, Smith was covering Colleen's first period class for her regular teacher. After the class had started, Smith asked Colleen into the hall and, exhibiting his divorce papers and a sense of urgency, asked to borrow $50.00 by the end of third period. Colleen informed Smith that she did not know if she could get the money by then since she would need to go to her boy friend's house for the bank book. Thereupon, Smith gave Colleen a pass to visit her friend Jessica to see about transportation. After arranging for transportation with Jessica, Colleen returned to Smith, who was still standing in the hall outside the classroom, and informed him that Jessica and she could get the money. At this time, Smith told Colleen that he liked her and suggested that they meet at school one night so he could repay the money. When Colleen expressed a lack of understanding concerning Smith's comments, he told her to look down and said, "even standing next to you excites me." On looking down, Colleen observed that Smith had an erection. Colleen quickly changed the subject and left with Jessica to get the requested $50.00 from the bank, which she later gave to Smith. Colleen was troubled by what had transpired and was afraid that if she reported the incident the administration would not credit her statements over those of a teacher. However, on Wednesday, February 12, 1986, Colleen told her boss what had transpired between Smith and her, and on the evening of February 12, 1986, she informed her grandmother. On February 13, 1986 Colleen, together with her boss and grandmother, informed the principal of Miami Norland Senior High School concerning the events of February 10-11, 1986. Smith was subsequently suspended from his teaching position, and this administrative proceeding duly followed. In choosing to credit Colleen's recollection of the events of February 10-11, 1986, as opposed to Smith's, I am not unmindful of minor discrepancies in the proof. However, the candor and demeanor of Colleen, coupled with the corroborating proof, compels the conclusion that Smith did commit, without invitation or provocation, the acts set forth in paragraphs 3-5, supra. Smith's conduct was inconsistent with the standards of public conscience and good morals, and was sufficiently notorious to bring himself and his profession into public disgrace or disrespect. Due to the notoriety of his conduct, Smith's service in the community, as well as his effectiveness in the school system, has been severely impaired. The Excessive Absences The proof establishes that Smith was absent from his employment on 26 days during the 1985-86 school year. Five of those days, and possibly six, were for personal reasons, rather than illness. While teachers are generally allowed only 4 personal days each school year, the School Board offered no evidence to rebut the proof that the additional 1-2 days were authorized by Smith's supervisor, or that all time off was duly approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the School Board enter a Final Order sustaining the suspension of Respondent, Michael B. Smith, from his employment, and dismissing Respondent, Michael B. Smith, from his employment with the School Board. DONE AND ENTERED this 21st day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 21st day of November, 1986.
The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Emmamaria Silva, currently holds Florida teaching certificate number 466263, covering the areas of early childhood education and elementary education, which is valid through June 30, 1994. Respondent has been employed as a teacher by the Dade County School District since 1980, and was so employed at all times pertinent to these proceedings. During the 1990-91 school year, respondent was employed as a kindergarten teacher at South Miami Heights Elementary School and taught English for Speakers of Other Languages (ESOL). Such class was designed to immerse the students in the English language through intense visual and auditory stimulation, and demanded of the teacher strong demonstrative or acting skills in addition to sound educational skills. Essentially, a teacher, such as respondent, would "bombard" the students with the English language and through various techniques, including demonstrations, achieve a level of comprehension without resort, if possible, to the children's native language. Necessarily, such a teacher, as respondent, is quite animated and demonstrative during the course of the program, and must evidence a caring and conscientious attitude. Here, petitioner charges that during the 1990-91 school year respondent used inappropriate techniques or physical force to discipline or control her students. With minor exception, the proof fails to demonstrate any significant transgression. First, petitioner charges that respondent "tied up" many students to a chair as punishment. In this regard the proof does demonstrate, with regard to the students Eric Lluis (Eric), Adrian Gonzalez (Adrian), Alexander DuQue (Alexander), Frankie and Yency, that the respondent did, on at least one occasion during the school year, wrap a jump rope around their chest and upper arms, as they were seated in their chair with their arms at their side. The rope was not, however, tied, but wrapped so loosely that it did not significantly restrain them. Such demonstrative act on respondent's part was responsive to those students moving away from their desks or walking around when they should have been seated and paying attention to her instruction. Apart from Adrian "feeling sad" because of his experience, none of the other students expressed any adverse reaction to respondent's action, and none were harmed. Apart form the foregoing, there is no proof that respondent ever "tied up" a student, with one exception. In this regard the proof demonstrates that on one occasion she bound Eric to a chair momentarily in response to his having "tied up" Adrian. According to respondent, she used such technique, and explained her action to Eric, to demonstrate the impropriety of his conduct. In her proposed recommended order respondent concedes, on reflection, that such action was not an appropriate method of discipline. Finally, petitioner charges that at some point during the 1990-91 school year respondent hit Eric and Adrian with her shoe, put soap in the mouths of Eric and Adrian for using "bad words," and put tape on the mouths of some students. The proof offered at hearing regarding these incidents failed, however, to reasonably explicate the circumstances surrounding the incidents, was vague and at times conflicting, and lacked sufficient detail from which a conclusion of impropriety could clearly be drawn. For example, regarding the accusation that respondent hit Eric and Adrian with her shoe, Adrian denies having been hit and no proof was offered regarding the circumstances surrounding the occasion Eric was purportedly hit to show how he was hit, why he was hit, or how hard he was hit. With regard to the accusation that respondent put soap in the mouths of Eric and Adrian for using "bad words," neither of these students was asked about the incident at hearing and the proof offered was less than compelling. Finally, with regard to the accusation that respondent put tape on the mouths of some students, the proof fails to identify such students or to demonstrate when, where, how or why such event occurred. Under such circumstances a conclusion of impropriety cannot clearly be drawn, and respondent's testimony that she never engaged in such punative conduct is credited As a consequence of the Dade County School District's investigation into the matter, respondent has received a letter of reprimand for using inappropriate disciplinary techniques on a student, and counseling regarding inappropriate disciplinary techniques. Apart from the incidents in this case, respondent has received satisfactory performance evaluations, and she continues to teach at South Miami Heights Elementary School without apparent further incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered finding respondent guilty of violating the provisions of Section 231.28(1)(h), Florida Statutes, and Rule 6B- 1.006(3)(a) and (e), Florida Administrative Code, as heretofore found, dismissing all other charges against respondent, and imposing the penalty set forth in paragraph 12, supra. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of April 1993. WILLIAM J. KENDRICK 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 19th day of April 1993.
