The Issue At issue in this proceeding is whether respondent was convicted of conspiracy to possess with intent to distribute at least five kilograms of cocaine and, if so, what disciplinary action, if any, should be taken against his Florida teaching certificate.
Findings Of Fact Respondent, Frederick Dingle Charles, holds teacher's certificate number 264894, issued by the Florida Department of Education, covering the area of substitute teaching. Such certificate is valid through June 30, 1992. During the 1989-90 school year, respondent was employed by the Dade County School Board as a teacher at Homestead Middle School. On or about September 20, 1989, respondent was arrested and charged with conspiracy to possess with intent to distribute at least five kilograms of cocaine in the United States District Court, Southern District of Florida, Case Number 89-627-CR-Aronovitz. On October 15, 1990, he was found guilty of such charge and committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of 121 months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the teaching certificate of respondent, Frederick Dingle Charles, be permanently revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June 1991. 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 13th day of June 1991. Copies furnished: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Frederick D. Charles # 41454-004 Metropolitan Correctional Center 15801 S.W. 137th Avenue Miami, Florida 33177 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent, Donald D. Johnson, holds Florida teaching certificate No. 468965, which is valid through June 30, 1984. On November 15, 1979, the Respondent filed his application for Florida teacher's certificate, upon which he swore that he had not been convicted of a crime. That application was received by the Petitioner on December 10, 1979, and after processing, his teaching certificate was issued to him on December 20, 1979. The Respondent pled guilty to a charge of petit larceny, and adjudication of guilt was withheld on or about March 13, 1977. The Respondent also pled guilty to a charge of driving with an unlawful blood alcohol level and was adjudicated guilty thereof on or about September 5, 1979. The Petitioner established that the Respondent failed to disclose these altercations with the criminal justice system on his application for his Florida teacher's certificate. In fact, he affirmatively swore that he had not been convicted of a crime. The Petitioner, in at least seventeen (17) recent cases, has followed a policy of imposing at least a one-year suspension and sometimes a one-year revocation in cases such as this. The Petitioner also established that its historical policy has been to grant licensure when an applicant has disclosed such criminal violations on his application, but it has consistently revoked, and has been upheld in revoking, certificates for affirmative misrepresentations by applicants on their applications for certificates to the effect that they have had no criminal convictions when such is not the case. There is no question that the Respondent falsified his application and falsely maintained that he had no criminal convictions. There is also no question that his certificate to teach in the State of Florida was initially issued to him by the Petitioner in reliance upon that misrepresentation, which reliance has been proven to be misplaced.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record and the the pleadings and arguments of counsel for the Petitioner, it is, therefore, RECOMMENDED: That the Education Practices Commission enter a final order revoking the Respondent's teaching certificate for a period of one (1) year. DONE and ENTERED this 21st day of June, 1982 at Tallahassee, Florida. P. MICHAEL RUFF 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 23rd day of June, 1982. COPIES FURNISHED: J. David Holder, BERG & HOLDER P.O. Box 1694 Tallahassee, Florida 32302 Donald D. Johnson 5856 Wiltshire Drive Jacksonville, Florida 32216 Donald L. Griesheimer, Executive Director Education Practices Commissioner Department of Education The Knott Building Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner Department of Education The Capitol Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is entitled to the issuance of a teacher certificate despite two convictions for driving under the influence, including one for manslaughter, and the failure to disclose on her application two teenaged offenses--one resulting in a petit theft conviction for shoplifting and one resulting in a dismissed charge for giving false information of an accident.
Findings Of Fact By application dated April 12, 1995, Petitioner applied for an Florida educator’s certificate from Respondent. By Notice of Reasons dated August 7, 1995, Respondent rejected the application. In the Notice of Reasons, Respondent stated that on July 7, 1980, Petitioner pleaded guilty to petit theft in Lee County, for which she was sentenced to six months’ probation and $221.05 in fines and costs; on September 3, 1981, Petitioner pleaded no contest to a charge of giving false information of accident, as to which the court dismissed the charge; on July 16, 1987, Petitioner drove her vehicle while intoxicated and had an accident that killed her passenger, for which she was adjudicated guilty of driving under the influence and manslaughter and sentenced to three years in jail, 12 years’ probation, counseling, 50 hours of community service, limited driving privileges, and $250 in court costs; and Petitioner submitted an application for a Florida educator’s certificate notarized on August 12, 1994, and, in responding to a question as to convictions or no-contest pleas, disclosed the DUI/manslaughter conviction, but not the conviction for petit theft and no contest plea to giving false information of accident. With leave of the administrative law judge, Respondent amended the Notice of Reasons to add the additional reason that, on July 19, 1995, Petitioner operated a motor vehicle while under the influence. On December 13, 1995, she was convicted of her second offense of driving under the influence of alcohol and sentenced to 270 days in jail, a $1000 fine, permanent revocation of her driver’s license, one year’s probation, and $230 in court costs. The Notice of Reasons states that Section 231.17(1)(c)6 requires good moral character of holders of Florida educator’s certificates. Section 231.17(5)(a) authorizes Respondent to deny an application for an educator’s certificate if he possesses evidence that the applicant has committed an act for which the Education Practices Commission would be authorized to revoke the certificate. The Notice of Reasons asserts that Petitioner has been guilty of gross immorality or moral turpitude, in violation of Section 231.28(1)(c); a conviction of a criminal charge, other than a minor traffic violation, in violation of Section 231.28(1)(e); a violation of the Principles of Professional Conduct for the Teaching Profession, as set forth in the Department of Education (DOE) rules; failure to maintain honesty in all of her professional dealings, in violation of Rule 6B-1.006(5)(a); submission of fraudulent information on documents in connection with professional activities, in violation of Rule 6B-1.006(5)(h); and making fraudulent statements or failure to disclose a material fact on her application for a professional position, in violation of Rule 6B-1.006(5)(i). Petitioner admits all of the factual assertions in the Notice of Reasons through the manslaughter conviction for driving under the influence. As to the 1994 application, Petitioner admits the basic facts, but denies that the omissions constituted the submission of fraudulent information. The question to which Petitioner responded asks: Have you ever been convicted, found guilty, or entered a plea of nolo contendere (no contest), or had adjudication withheld in a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation); or are there any criminal charges now pending against you? . . . Failure to answer this question accurately could cause denial of certification. Petitioner also denies all allegations contained in the Notice of Reasons that she acted fraudulently. As to the petit theft, Petitioner was 18 years old at the time and living at her parents’ home, when, in June 1980, she and a friend shoplifted an item at a local department store. Her parents picked her up from the store. Petitioner pleaded guilty to the charge. The court found her guilty and sentenced her to six months’ probation and $221.05 in fines and costs. Petitioner has never been involved in a similar incident. In September 1981, when 19 years old, Petitioner pleaded no contest to the charge of giving false information of accident, and the court dismissed the charge. The record does not disclose any details concerning this charge. When preparing the 1994 application, Petitioner neglected to mention the charges from when she was in her teens because she was preoccupied with the effect of the disclosure of the much more serious matter of the DUI--manslaughter. The conviction for shoplifting and the dismissal of a charge of giving false information of accident, to which Petitioner nonetheless had pleaded guilty, are not material omissions. The failure to include such items, without evidence of some fraudulent intent, does not establish a lack of integrity on Petitioner’s part. As to the driving under the influence/manslaughter conviction, Petitioner does not contest that she was at fault for causing the death of her passenger, who was her best friend, nor that Petitioner was under the influence of alcohol at the time of the accident. Following the accident, Petitioner became involved in education efforts to prevent drunk driving, especially among younger drivers. She spoke to teenagers at various programs around Lee County and tried to increase public awareness of the devastation caused by drinking and driving. She gave up drinking for about five years. Petitioner successfully completed the Florida Teacher Certification Examination on January 22, 1994, and obtained her bachelor of arts from the University of South Florida College of Education on May 2, 1994. She completed her internship at Cape Elementary School in Lee County on May 2, 1994. From August 1994 to November 1995, Petitioner was employed at Gulf Elementary School as a specific learning disabilities (SLD) teacher under principal Martin Mesch. For the 1994-95 school year and two or three months of the 1995-96 school year, Petitioner demonstrated many of the attributes of a successful teacher. She projected a caring presence in the classroom while still maintaining a professional distance that allowed her to maintain order in the challenging setting of an SLD classroom. She volunteered for the Young Writers’ Program and went out of her way to reach out to children from poorer families. She was an active part of the school, where her two children also attended. Mr. Mesch opined that Petitioner’s past problems have not affected her ability to teach and would recommend to the School Board that she return to teach at his school. Aware of the details that contribute to effective teaching, Mr. Mesch immerses himself in the teaching that takes place at his school and appears to be a keen judge of teaching talent. In his opinion, Petitioner is an extraordinary teacher, whose problems, if known to parents and students, would not impair her effectiveness as a teacher. Mr. Mesch, who has served as principal or assistant principal at Gulf Elementary School for 15 years, also understands the community that his school serves. He is aware of local community values, and he emphasizes that good moral character and teacher effectiveness are based on the totality of the circumstances, not on isolated facts. Petitioner’s tenure at Mr. Mesch’s school ended when she resigned in November 1995 to begin serving her sentence due to the second DUI charge. She resigned at Mr. Mesch’s sensible suggestion, in order to spare the school, herself, and her children adverse publicity. She served more than 200 days in jail from December 1995 to July 1996. Petitioner disputes the underlying facts of the 1995 arrest and conviction for the second DUI offense. Although the law enforcement officer at the scene may have confused some of the details of the incident, Petitioner has not shown that she was not driving under the influence of alcohol and has not successfully mitigated the effects of the second conviction. Petitioner admits that she had consumed an alcoholic beverage a couple of hours prior to when she was stopped. Petitioner declined a breathalyzer test without a witness present, claiming that she did not trust the arresting officer or presumably the officer who would have administered the breathalyzer test. If she had not been drinking excessively, Petitioner made a bad choice when she declined to take the breathalyzer test. More likely, she made the bad choice a few minutes earlier when she decided to drive her car after drinking more than the single drink to which she admits. Since the 1995 arrest in July, Petitioner has abstained from the use of alcohol and enrolled in Alcoholics Anonymous. Petitioner has continued with treatment, last having been treated by a therapist with Southwest Florida Addiction Services in December 1996, when she successfully completed its program. Petitioner suffers from the illnesses of alcohol abuse and bipolar disorder, but, provided she continues to receive counseling as needed, these conditions do not impair her effectiveness as a teacher. In his proposed recommended order, Respondent does not seek permanent denial of the application, but asks that the application be denied for a period of ten years. In her proposed recommended order, Petitioner asks for the immediate issuance of her educator’s certificate subject to restrictions, such as random testing, continued counseling, and probation. There is no evidence whatsoever to suggest that Petitioner abused alcohol during the school day. The evidence conflicts as to whether she can ever regain her driving privileges; Petitioner testified that she believes that she can. The evidence does not suggest that Petitioner has lost her effectiveness in the classroom or that she has been guilty of moral turpitude in the omissions from the 1994 application or the two convictions for driving under the influence, including the first one for manslaughter. The main issue in this case is to determine the effect of two convictions for driving under the influence--eight years apart--where the first one resulted in the death of another person. It is difficult to reconcile Petitioner’s expressions of remorse and edification resulting from the first incident with the occurrence of the second incident, even if the second incident were no more than driving after consuming a single drink--though, more likely, it was more than one drink. On the other hand, Mr. Mesch is a strong witness on Petitioner’s behalf. He works daily in the elementary school setting where Petitioner would likely return to work, if she were to receive her educator’s certificate. And Mr. Mesch displays no reservations about returning Petitioner to the classroom. In effect, by not introducing expert testimony to counter Mr. Mesch’s testimony, Respondent relies solely on the inference that two convictions for driving under the influence--with the former conviction also involving manslaughter--ought to suffice to deny Petitioner her certificate for ten years.
Recommendation It is RECOMMENDED that the Department of Education enter a final order granting Petitioner an educator’s certificate, effective one year from the date that the final order becomes final and subject to the following restrictions: Petitioner shall never operate a motor vehicle on the campus of a primary or secondary private or public school in Florida, including in transporting her children to school; Petitioner, in her capacity as a teacher, shall never transport any schoolchildren, except her own children, to or from school or on any school trips; Petitioner shall obtain addiction and behavioral counseling, whenever and for as long as or as frequently determined by the counselor to be needed; and another conviction for driving under the influence shall result in the permanent revocation of her certificate. ENTERED in Tallahassee, Florida, on June 4, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 4, 1997. COPIES FURNISHED: Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 John J. Chamblee, Jr. Law Offices of John J. Chamblee, Jr. 202 Cardy Street Tampa, Florida 33606 Attorney Bruce P. Taylor 501 First Avenue North, Suite 600 St. Petersburg, Florida 33701
The Issue Whether Petitioner's application for a Florida Educator's Certificate should be granted or denied for the reasons set forth in the Notice of Reasons issued by Respondent on December 13, 2010.
Findings Of Fact Based on the evidence presented at hearing, the following Findings of Fact are made: Ms. Cappi Cay Arroyo1/ was born in Boulder, Colorado, on September 16, 1964. On or about August 22, 1986, Ms. Arroyo knowingly and intentionally distributed cocaine to another person, knowing that what was distributed was cocaine or some other prohibited drug. From 1984 until in or about December 1986, she willfully and knowingly entered into an agreement to accomplish the illegal objective of the distribution of cocaine, with the intent to commit the offense of distribution of cocaine. Ms. Arroyo pled guilty pursuant to a plea agreement and was convicted of the offenses of distributing cocaine under 21 U.S.C. § 841(a)(1) and of conspiracy to distribute cocaine under 21 U.S.C. § 846 in the United States District Court for the District of Hawaii. Ms. Arroyo committed acts involving moral turpitude. On January 28, 1988, Ms. Arroyo was sentenced to two years imprisonment with a Special Parole Term of three years, with the execution of the sentence suspended and Ms. Arroyo placed on probation for a period of five years, on the condition that she pay a fine of $500.00 and serve 100 hours of community service. On April 3, 1991, Ms. Arroyo was discharged from probation. Ms. Arroyo later returned to Colorado. She attended Colorado Christian University and received her Bachelor's Degree in Computer Information Systems in 2002. She began working at Grand Junction High School in 2005 as a Library Media Specialist, where she worked until 2010. She received her Master's Degree in Educational Media in 2006 from the University of Northern Colorado. She received an Outstanding Educator for 2007 award given by the Grand Junction Area Chamber of Commerce, and was selected as the Outstanding Teacher by the students of the Class of 2009. The Ethics in Education Act, creating section 1012.315, Florida Statutes, and adding the phrase "as defined by rule of the State Board of Education" to section 1012.795(1)(d), became effective on July 1, 2008. On June 3, 2010, Ms. Arroyo submitted an on-line application for a Florida Educator's Certificate as an Educational Media Specialist. On the application, she provided her social security number and answered "Yes" to a question asking if she had ever been convicted of a criminal offense. She filled in the "Charges" block with the words "Drug Charges" and the "Disposition" block with the word "Probation." By June 9, 2010, the Bureau of Educator's Certification had received the application, the evidence of her bachelor's degree, the grades transcript, and the fee. Ms. Arroyo meets the basic requirements for licensure. She was at least 18 years of age at the time of her application; she submitted an electronically authenticated affidavit that stated she would uphold the principles incorporated in the Constitution of the United States and the Constitution of the State of Florida and that the information provided in her application was true, accurate, and complete; she documented her receipt of a bachelor's degree from an accredited institution and a master's degree; she submitted to background screening; she is of good moral character; she is competent and capable of performing the duties, functions, and responsibilities of an educator; she holds a valid professional standard teaching certificate issued by the State of Colorado, demonstrating her mastery of general knowledge, mastery of subject area knowledge, and mastery of professional preparation and education competence. The Department of Education is the state agency responsible for licensure of instructional personnel for the public schools. On or about July 7, 2010, the Bureau of Educator Certification of the Department of Education issued Ms. Arroyo an Official Statement of Status of Eligibility. This statement advised Ms. Arroyo that she was eligible for a three-year nonrenewable Temporary Certificate upon receipt by the Bureau of: 1) documentation showing verification of employment; 2) a request for issuance of certificate on the appropriate certification form from a Florida public school; and 3) results of her fingerprint processing, noting that if there was a criminal offense, her file would be referred to Professional Practices Services for further review and that issuance of her Temporary Certificate would be contingent on the results of that review. The Statement included some additional requirements for the issuance of a Florida Educator's Certificate valid for five years covering Educational Media Specialist (Prekindergarten- Grade 12). Mr. Troy Sanford, the principal at Horizon Academy at Marion Oaks, a school in the Marion County School District, interviewed Ms. Arroyo for a media specialist position at the school in August of 2010. At the end of that interview, she began to tell Mr. Sanford of her conviction, but he stopped her and told her that it was the Human Resources Department that checked into applicant's backgrounds. When Mr. Sanford later talked to the Human Resources Department, he advised them that he was recommending someone for the position who had indicated she had something in her background, and asked to be told if it would hinder her appointment. The Human Resources Department had further conversations with Mr. Sanford, telling him about a criminal conviction, but stating that because it had occurred over ten years ago, it should not be a limiting factor. Ms. Arroyo was hired at Horizon Academy and worked there during the 2010-2011 and 2011-2012 academic years as a library media specialist. Ms. Arroyo has excellent knowledge of her subject area and exhibits great enthusiasm in encouraging students to become life-long readers. Ms. Arroyo has effectively become a "co-teacher" with many of the classroom teachers and has helped them craft research projects that are meaningful to students. Horizon Academy has a high percentage of minority students, some of whom are underprivileged. Ms. Arroyo has made special efforts to get books into the hands of students who have never read a book before. She has created a culture of reading at Horizon Academy. Her efforts at her school have caused the library circulation to dramatically increase, which has had an effect on the district-wide data. Ms. Arroyo re-arranged the library to accommodate more students. Ms. Arroyo was selected as the Horizon Academy teacher of the year. Ms. Arroyo became a member of the Library of Congress Teaching with Primary Sources Mentor Program, one of only 19 educators from across the United States with such membership. Ms. Arroyo has helped children with lost or overdue books who are not permitted to withdraw books from the library by loaning them her personal books. She has purchased books from the Book Fair and given them to underprivileged students. She has given Christmas gifts to needy children who might otherwise not receive any gifts. When Ms. Arroyo came to Horizon Academy, it was a "C" school, but it is now an "A" school. The principal believes that there was a direct link between Ms. Arroyo's efforts and the improvement of the school. On October 13, 2010, the Department of Education received background check information on Ms. Arroyo from the Federal Bureau of Investigation and the Florida Department of Law Enforcement. On October 19, 2010, Ms. Arroyo's file was referred to the Bureau of Professional Practice Services for consideration of the background information regarding her conviction. On October 22, 2010, Ms. Arroyo was sent a letter from Ms. Ellie Evans, Applicant Investigator of the Bureau, advising Ms. Arroyo that her application had been referred to the Bureau of Professional Practices Services because of her criminal history, and requesting further information regarding Ms. Arroyo's conviction. On November 16, 2010, the Department received from Ms. Arroyo copies of a judgment in her criminal case, United States v. Cappi C. Eminger, Case No. CR87-01061-03, from the United States District Court for the District of Hawaii, dated January 28, 1988, consisting of three pages, and including an Order Terminating Probation Prior to Original Expiration Date in the same case filed April 8, 1991, consisting of one page. On December 13, 2010, Commissioner of Education Eric Smith sent Ms. Arroyo a letter advising her that her application for a Florida Educator's Certificate was denied, attaching a Notice of Reasons, and advising her of her right to a hearing on the intended action. Ms. Arroyo requested a formal hearing. Ms. Arroyo will be unable to pursue a career teaching students in Florida without educator certification. Ms. Arroyo is substantially affected by the intended decision to deny her certification. On or about March 23, 2011, the Bureau issued Ms. Arroyo a second Official Statement of Status of Eligibility. This statement advised Ms. Arroyo that her Colorado Teaching Certificate had been received and that she was eligible for a Florida Educator's Certificate valid for five years upon receipt of clearance to issue the certificate from the Bureau of Professional Practices Services. On or about June 8, 2011, Ms. Arroyo applied to the Florida Office of Executive Clemency for a pardon of her convictions. Ms. Arroyo also applied to the President of the United States for a pardon. On October 28, 2011, the Department received from Petitioner a notice of intent to rely on the default license provision in section 120.60(1), Florida Statutes. Although the charges of statutory violations drafted by Respondent as grounds for the denial of her application could have been crafted with more care, Petitioner was not prejudiced in preparing her defense. Hearing was held on December 6, 2011. At hearing, Petitioner testified that she did not distribute cocaine and that she did not conspire to distribute cocaine, maintaining that her guilty plea was the result of coercion and intimidation by Drug Enforcement Administration (DEA) agents. Her testimony on these points was not credible. She testified that the DEA agents took her vehicle and showed up at her house with guns. She testified that there were 33 charges in the indictment. She testified that she told the DEA agents that it was her ex-boyfriend who had distributed cocaine. She said that the DEA agents told her that she was guilty simply because she was aware of what he did, even if she did not distribute cocaine herself. Petitioner testified that she could not remember whether her attorney advised her about entering into the plea agreement. At another point in her testimony she testified that her attorney did not advise her as to the guilty plea. She was somewhat evasive during cross-examination as to her appearance before the judge when pleading guilty. She later said that she did not remember that appearance at all. She testified she did not remember the judge asking her if she knowingly and intentionally distributed 55.2 grams of cocaine. Petitioner did testify that she believed what the DEA agents had told her and signed a plea agreement that she was guilty of 2 of the 33 charges, based only upon this mistaken belief. Ms. Arroyo's testimony and selective memories about these long-ago events seemed to be shaped more by convenience than candor. Ms. Arroyo failed to prove her guilty plea resulted from threats, coercion, or fraudulent means. Despite the fact that Ms. Arroyo distributed cocaine and conspired to distribute cocaine and her selective memories and lack of credibility concerning those events, she is of good moral character. A few isolated events are not determinative of her character today. Ms. Arroyo's actions since her youthful criminal activity show a consistent pattern of personal accomplishment and public service over a very long period of time, with no evidence of any other criminal activity. Ms. Arroyo has substantially rehabilitated herself. Her receipt of several education awards demonstrates that she is a dedicated and accomplished professional. Testimony at hearing established that Ms. Arroyo exhibits a compassionate and generous attitude toward students, especially the underprivileged. On January 3, 2012, Respondent filed certified copies of records of the United States District Court for the District of Hawaii, including sentencing minutes, the indictment, a superseding indictment, sentencing memorandum, and other documents, requesting their official recognition and admission as a late-filed exhibit. The State Board of Education has not defined the term "gross immorality" by rule, and there was no evidence presented that Ms. Arroyo's behavior met any rule definition of that term.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a Florida Educator's Certificate, without prejudice to her reapplication should she later become eligible. DONE AND ENTERED this 31st day of May, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2012.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Lawrence A. Longenecker formerly held a Florida teaching certificate, and was employed as a science teacher at Madeira Beach Middle School in Pinellas County until January of 1978. In January of 1978, administrative charges were brought against the petitioner by the Professional Practices Council (the predecessor to the Education Practices Commission) for the revocation of his teaching certificate. After a hearing before a Hearing Officer with the Division of Administrative Hearings, it was found that petitioner had made sexual advances toward three female students on four separate occasions during 1977 and that petitioner was thus guilty of personal conduct which seriously reduced his effectiveness as a school board employee. The Hearing Officer recommended, by order dated November 25, 1980, that petitioner's teaching certificate be permanently revoked. Professional Practices Council v. Lawrence Longenecker, DOAH Case No. 80-1276 (November 25, 1980). By Final Order filed on February 2, 1981, the Education Practices Commission adopted the Hearing Officer's Recommended Order and permanently revoked petitioner's teaching certificate. Professional Practices Council v. Lawrence A. Longenecker, Case NO. 80-005-RT (February 2, 1981). No appeal was taken from this Final Order. In approximately March of 1983, petitioner filed an application for a Florida Teaching Certificate, which application was denied by the Department of Education. Its "Notice of Reasons" for denial, filed on June 30, 1983, recited the events which formed the bases for the prior permanent revocation of petitioner's teaching certificate, and concluded that petitioner had failed to demonstrate that he is of good moral character, as required by Section 231.17(1)(e), Florida Statutes, and that petitioner had committed acts for which the Education Practices Commission would be authorized to revoke a teacher's certificate. Petitioner was 28 and 29 years of age during the time of the acts which formed the basis for the prior certificate revocation. He is now 34 years old. Since 1978, he has obtained a Master's degree in personnel administration from the University of South Florida and has been employed in the area of retail management. He fees that he is now more mature and more wise and would like to return to his chosen profession of teaching school. During the pendency of the instant proceeding, petitioner visited Dr. Alfred Fireman for psychiatric counseling and evaluation on three occasions. It was Dr. Fireman's opinion that petitioner is psychologically fit to reenter the teaching profession provided that his behavior is monitored. He concluded that petitioner "was a suitable candidate for a probationary restoration of privileges." The Education Practices Commission has never reinstated a former certificate or issued a new teaching certificate to an individual whose certificate had been previously permanently revoked.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Education Practices Commission enter a Final Order denying petitioner's application for a Florida teaching certificate. DONE AND ENTERED this 9th day of March, 1984. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March 1984. COPIES FURNISHED: Lawrence D. Black, Esquire 152 Eighth Avenue SW Largo, Florida 33540 J. David Holder, Esquire Berg & Holder 128 Salem Court Post Office Box 1694 Tallahassee, Florida 32301 Donald L. Greisheimer Executive Director Education Practices Commission Room 125, Knott Building Tallahassee, Florida 32301
Findings Of Fact Thomas Pelley, the Respondent, holds Florida Teaching Certificate No. 318598, Standard, Rank III, valid through June 30, 1982, covering the area of furniture repair. The Respondent was employed during the 1978-79 school year in the public schools of Orange County at the Westside Adult Center in Winter Garden, Florida, as an instructor in furniture upholstery. The then Florida Professional Practices Council received a report from officials of the Orange County School System indicating that the Respondent had allegedly misappropriated school funds to his personal use. Pursuant to Rule 6A-4.37, Florida Administrative Code, an inquiry was conducted into the matter and a report made to the Professional Practices Council which culminated in the Commissioner of Education finding probable cause to file a proceeding against the Respondent, which probable cause finding was entered on November 5, 1979. The Respondent and his students typically engaged in the repair and re- upholstery of furniture brought in by members of the public at a reduced price as part of the training program in the occupation of re-upholstery. The procedure for payment for this re-upholstery work was that the customers wrote a check after Mr. Pelley wrote a "training order" and then Mr. Pelley was to submit the customer's money to the school bookkeeper in order to requisition material for the re-upholstery work involved. At the conclusion of the job the customer would come to the school office and pay for whatever charges were left for the labor and take custody of the furniture. Mr. Pelley did not comply with that procedure, however, with regard to customers Vicki Teal, Carol Johnson, and Winifred Good. In these instances involving work done for these customers, the Respondent was paid by the customers directly. The Respondent was fully informed of the proper procedure for payment by the customers for upholstery work. Customer Vicki Teal complained on one occasion that a sofa she had left to be re-upholstered had the wrong material installed on it and that Mr. Pelley had refused to replace the materials with those that she had actually ordered. Ms. Good and Ms. Johnson similarly complained about the workmanship on the furniture they had left to be repaired. With all three of these customers, the office personnel at the school discovered that they had no record that the customers had ever ordered work to be done by the Respondent and his students, nor that they had purchased anything, until they came forward with their cancel led checks for the same. Each of the checks was endorsed by Mr. Pelley. The subject checks from these three customers totaled $515.29, the funds represented which were received by the Respondent and never turned over to officials of the school, the bookkeeper of the school nor anyone employed by the Orange County School Board for proper accounting and use. Rather, the Respondent converted all of the monies collected to his own personal use. Witness House, who worked with the Respondent at the same school and who was his superior, has had long experience in the education profession and in teaching and dealing with students. He established that such conduct is not a proper example to students and is sufficiently notorious to bring the Respondent and the education profession into public disgrace and disrespect, especially in view of the several members of the public directly involved and victimized by the Respondent's misdeeds. It should be pointed out that at the times pertinent hereto, the Respondent was in severe financial straits due to medical expenses incurred by his wife being stricken with cancer.
Recommendation Having considered the foregoing findings of fact, conclusions of law, and pleadings and arguments of counsel for the Petitioner, it is, therefore, RECOMMENDED: That Respondent be found guilty of wrongfully converting monies to his own use that rightfully belonged to the Orange County School Board, which conduct constitutes gross immorality or an act involving moral turpitude and seriously reduces the Respondent's effectiveness as an employee of the School Board; and that the Respondent's Teaching Certificate be revoked for one (1) year. 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 th Division of Administrative Hearing this 19th day of March, 1982. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER Post Office Box 1694 Tallahassee, Florida 32302 Mr. Thomas Pelley 149 Silver Star Road Ocoee, Florida 32761 Donald L. Griesheimer Executive Director Education Practices Commission Department of Education 125 Knott Building Tallahassee, Florida 32301
The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(f),(g), and (j), Florida Statutes (2015), and Florida Administrative Code Rule 6A-10.081(3)(a) and (e), as alleged in the Amended Administrative Complaint. If it is found that Respondent has committed any of the statute or rule violations alleged, the penalty that should be imposed must also be determined.
Findings Of Fact Based on the demeanor and credibility of the witnesses, the documentary evidence admitted and the record as a whole, the following findings of fact are found: Respondent holds Florida Educator’s Certificate 823554, covering the area of physical education. His certificate is valid through June 30, 2016. At all times material to the allegations in the Amended Administrative Complaint, Respondent was employed as a physical education (P.E.) teacher at Oakleaf Junior High School (Oakleaf) in the Clay County School District (the District). Mr. Ford also served as a track and field coach in the District and was heavily involved in volunteer activities to encourage youth fitness. In 2008, the Education Practices Commission issued a final order which adopted a settlement stipulation with respect to a prior complaint against Respondent. The settlement stipulation “neither admitted nor denied” the factual allegations in the Administrative Complaint giving rise to the disciplinary proceeding in that case. The Scene Oakleaf is a junior high with sixth through eighth-grade students. During the 2012-2013 school year, there were six P.E. teachers who typically had classes of at least 40 students each class period. These classes made use of the baseball and softball fields, tennis and basketball courts, and the gymnasium for class time. All of the students shared what were described as small girls’ and boys’ locker rooms adjacent to the gymnasium. Students and teachers have approximately ten minutes at the end of each class period to get to their respective locker rooms, change clothes, and get ready to move to the next class period. Usually one male and one female P.E. teacher were assigned to open the gender-specific locker rooms. Until the locker rooms were opened and after students finished dressing, the students congregated in the P.E. building hallway. The space where students waited was cramped at best, and not adequate to accommodate the large numbers of students. During the 2012-2013 school year, students were expected to wait in the hallway near the double doors closest to the P.E. fields for the ringing of the class bell. Students typically stayed as close to the doorway as possible in order to ensure a quick exit. While students were supposed to sit against the wall, they often either stood near the double doors or sat with their legs stretched out into the aisle-way. Traversing the area could be a challenge under the best of circumstances. A typical day could be described as loosely-organized chaos. As described by Bonnie Lawrence, Oakleaf’s physical education department head, “it’s not that the kids are so bad; it’s just that you’ve got a large amount of students that are hot . . . they’re worked up. . . . [A] lot of them are very competitive, so they’re still bringing it into the hallway, and it just . . . is a problem and it still is a problem.” In the first week of April 2013, one of the students attending Oakleaf was a seventh grader named D.O.2/ D.O. was a relatively tall student, described as a big boy between 5’8” to 5’10”. D.O. received exceptional education services for emotional behavioral disorder (EBD). EBD students are placed in EBD special education classrooms because of emotional and/or medical issues that render them unusually disruptive and volatile in a traditional classroom setting. D.O. participated in regular P.E. classes and was assigned to Coach Rountree’s class. D.O. was a difficult student and had been removed from P.E. class the week before spring break because of behavioral issues. D.O. was easily agitated and unpredictable. When angry, he used a lot of profanity and walked very quickly. D.O. had at least three disciplinary referrals processed during the school year for his misbehavior. One P.E. teacher admitted that she had been verbally attacked by him and found him intimidating. Ms. Lawrence stated that while she had never seen D.O. attack another student, she had witnessed him hitting the walls with his fists. Because EBD students can be prone to frequent outbursts and sometimes violent behavior, they are often escorted around campus and directly monitored by a behavioral aide when the students go to lunch, travel to and from bus areas, or participate in any regular education classes. Jessica Strunz was the aide assigned to escort D.O. during the timeframe relevant to this proceeding. Petitioner relies on her testimony almost exclusively concerning what happened with respect to the incident alleged in the Amended Administrative Complaint. April 2, 2013, was the first school day after spring break. D.O. had been removed from P.E. for misbehavior the week before spring break, but on April 3, he was back in the gym. D.O. was assigned to Coach Rountree’s class. Coaches Ford and Rountree observed paint on D.O.’s shoes, consistent with some paint used in recent vandalism of cars in the area. They asked D.O. about the paint, and talked to him about making better decisions, and the consequences that flow from making poor choices. Coach Ford used his own vehicle as an example, and told D.O. if someone were to spraypaint his wife’s truck, there would be damages that would have to be paid, as an illustration of the consequences of bad decisions. He indicated that a perpetrator’s parents would be responsible for those damages as one of those consequences. Ms. Strunz was present during this discussion. The Incident On April 3, 2013, D.O. was again present for P.E. Ms. Strunz escorted D.O. to P.E. but soon after left the area to assist another aide, believing that D.O. was fine with Coach Rountree. Coach Rountree’s class was going to be playing frisbee on the baseball field. However, Coach Rountree would not allow D.O. to be paired with his partner of choice, because they had previously caused disruptions in the class. When Coach Rountree told him he would have to partner with someone else, D.O. became angry and started using profanity and questioning Coach Rountree’s authority. As a result, Coach Rountree told D.O. to take a seat in a chair that was on the baseball infield as a time-out. Instead, D.O. flung the back of the chair over, and Coach Rountree spoke to him in an attempt to calm him down. Eventually, D.O. sat in the chair and Coach Rountree went back to supervising the rest of his class. Sitting in the chair, however, did nothing to calm D.O. Instead, he became angrier, kicked the chair, and started yelling insults and profanity at the other students in the class. He was apparently trying to provoke a reaction from another student by making statements such as, “you’re gay, and your father’s gay,” in addition to the profanity. At some point, he got up and threw the chair down rather than sit on it. Coach Ford was in the area supervising his students, who were split between the basketball and tennis courts. He approached D.O. and told him that he thought D.O. was supposed be sitting in the chair. Eventually, D.O. sat back down, but continued to spew profanities directed at another student in his class. Ms. Strunz returned to the field at this point and found D.O. sitting in the time-out chair. As she put it, D.O. was angry at the world, upset, yelling, and cursing. Rather than approach him directly, Ms. Strunz stayed on the other side of the fence and tried to calm him down by talking to him, but D.O. ignored her. At hearing, Ms. Strunz did not seem overly concerned about the propriety of D.O.’s behavior, saying, “he just does that.” D.O.’s tirade continued, and he stood and threw the chair down the baseline from first base toward home plate. At that point, he left the infield to sit in the bleachers behind home plate. As he passed the gate near the dugout, he reached up and pulled Coach Rountree’s grade book from where it was wedged between the fence sections and threw it up into the air. D.O. then sat down but continued to curse and yell. Coach Ford came back over to speak to D.O., attempting to calm him down and talking to him about making better choices. He also called Coach Rountree on his radio about D.O. moving from the seat where Coach Rountree had directed him to sit. Coach Rountree came over to the area and spoke with both Coach Ford and Ms. Strunz, who told him that D.O. had stood up out of his seat, kicked the chair, and thrown Coach Rountree’s grade book. At this point, D.O. was sitting in the bleachers and for the moment was calmer, so Coach Rountree went back to the rest of the class, believing Ms. Strunz had the situation under control. Ford, likewise, went to direct his class to line up and go in the building. D.O.’s mood fluctuated between calm and anger. It was, at best, unpredictable. After Coach Rountree went back to the rest of his class, D.O. got up from his seat in the bleachers and started walking quickly to the doors of the P.E. building, with Ms. Strunz following behind.3/ D.O. was yelling, cursing, and saying how much he hated the school. Coach Ford followed him in in an attempt to calm him down, continuing to talk to him about the need to make better choices. D.O. was not interested. Instead, as he approached the building, D.O. told Coach Ford to “shut the f**k up,”4/ slammed his hand against the left side of the double doors, and started to swing open the door to the hallway. At this point, Coach Ford reached out and restrained D.O. from behind to prevent him from going into the hallway. Coach Ford put his right arm around D.O.’s chest and used his own left arm to secure D.O.’s left forearm to keep D.O. from swinging it, and pulled D.O. away from the door. D.O. attempted to pull away from Coach Ford, and Coach Ford had to jerk him up slightly so as to keep him from falling off balance and into the eroded area next to the sidewalk. The momentum of keeping both of them out of the eroded area propelled them over to a railing near the walkway, beside an adjacent portable. The entire maneuver by all accounts lasted a matter of seconds. Coach Ford then told D.O. he was going to release him and that D.O. needed to stay calm and stand next to the building. Coach Ford’s purpose in having D.O. stand next to the building was to minimize the interaction between D.O. and the other students in Coach Rountree’s class, who were approaching from the baseball field in order to enter the hallway. D.O. stood next to the building as instructed. D.O. was not injuring himself and was not attacking any other student before attempting to enter the building. He was, however, about to enter a crowded area full of students in an angry and agitated state soon after kicking and throwing a chair and throwing a teacher’s grade book, and while shouting profanities and what could be interpreted as derogatory comments toward other students. Shortly thereafter, Coach Rountree and his students caught up to Coach Ford, and Coach Rountree, Coach Ford, and D.O. stood at the side of the building while Ms. Strunz was standing at the railing by the walkway. Once Coach Rountree caught up to them, Ms. Strunz went inside to coordinate with another aide, and Coach Rountree directed his other students to go inside. When Coach Rountree approached, both Coach Ford and D.O. appeared to be fairly calm. However, as was the case earlier, D.O.’s mood fluctuated between extremely agitated to calm to agitated again, and he started saying he was going to sue the school. Coach Ford continued to try and calm him, but dismissed D.O.’s threat of litigation by saying something to the effect that D.O. did not know what teachers are allowed to do. Ms. Strunz returned and Coach Ford left the area to attend to his students. D.O.’s mood continued to fluctuate, and he made a statement to the effect of, “you’re all screwed, and this place is going down,” and that the school was in big trouble because he was going to sue the school. When Coach Rountree asked him what he meant, D.O. was not listening to him, but kept repeating that they were all screwed. At some point during this tirade, which lasted about five minutes, D.O. noticed that he had a small scrape on his elbow about the size of a nickel, with a small amount of blood. This observation upset him all over again, and he started walking quickly to the administrative offices, with Coach Rountree and Ms. Strunz following behind. D.O. made his way to Assistant Principal Bridget Payne’s office, with Coach Rountree and Ms. Strunz following behind. D.O. told her, “look at what one of your teachers did to me.” He proceeded to show her his arm and to tell her that Coach Ford had put him in a chokehold and threatened to put him in the hospital. Ms. Payne asked him to pull down his shirt, and he did so, showing that there was some redness below the Adam’s apple. Ms. Payne testified that the red area was about half an inch to three quarters of an inch wide, and that she could not see it until he pulled down his shirt. After D.O. finished telling his story to Ms. Payne, Ms. Strunz was asked to confirm it or say anything about it, and she confirmed D.O.’s story. The Aftermath Both Coach Rountree and Ms. Strunz were asked to write statements, and both did so. Only Ms. Strunz’s statement refers to a chokehold. Ms. Payne called D.O.’s mother and informed her of the incident, and D.O.’s mother, in turn, called the police. Ms. Payne then notified Coach Ford that the police were coming but did not talk to him about the incident. Ms. Payne also sent D.O. to Mary Blazek, the school nurse, who examined his arm and neck. She treated the arm with Bactine and a Band-Aid, which she described as “not major first- aid treatment.” Ms. Blazek also observed some redness on D.O.’s neck. She had been told that he was restrained around his neck so she was looking for redness. She did not inquire as to any other reasons that might have caused his neck to be red, and there was no evidence indicating that Ms. Blazek or anyone else observed scratches, welts, or bruising on his neck, or that the redness extended around to either side of his neck. Ms. Blazek filled out an incident report, but not until eight days after the incident when she was asked to do so. Oakleaf’s principal contacted Toni McCabe, the assistant superintendent for the District, and Ms. McCabe began an investigation into the incident. Coach Ford was suspended with pay on April 4, 2013, pending completion of the investigation. Ms. McCabe did not interview D.O. as part of her investigation and did not review his disciplinary referrals other than the one issued to him regarding his behavior the day of the incident. She only spoke to those staff members who were directly involved in the incident and could provide eyewitness testimony. Based upon her investigation, she recommended to the superintendent that Coach Ford be terminated, and although it is not clear when, Coach Ford eventually resigned. Ms. McCabe testified that when she spoke to Coach Ford, he stated that he had used a Safe Crisis Management (SCM) hold, and that a chokehold is not a SCM hold. SCM training is generally provided to administrators and those teachers working in special education. Coach Ford had taken SCM training but was not currently certified. P.E. teachers at Oakleaf had requested SCM training repeatedly, but it was not provided to them. Coach Ford denied stating that he used SCM in dealing with D.O., and denied using a chokehold. Tracey Butler is the Florida Education Association representative who attended both meetings Respondent had with Ms. McCabe regarding the incident with D.O. Ms. Ware, a District employee, took notes of the meetings, as did Ms. Butler. Ms. Butler did not recall Coach Ford ever telling Ms. McCabe that he used a SCM hold. The only mention of the term in her notes was one indicating Ms. McCabe asked if Coach Ford had SCM training. Her review of Ms. Ware’s notes indicated the same question and response, but no indication that Respondent stated he used a SCM hold. The undersigned finds that Coach Ford did not state to Ms. McCabe that he was using a SCM hold. The Criminal Proceedings As noted previously, the Clay County Sheriff’s Office also investigated the incident. The statements taken by Coach Rountree and Ms. Strunz were also provided to the Sheriff’s Office. On April 8, 2013, Coach Ford was arrested for child abuse/simple battery as a result of the incident. On May 6, 2013, he was officially charged with violating section 827.03(1)(b), Florida Statutes.5/ His case was docketed as Case No. 2013-CF-000686. On June 4, 2013, Respondent entered an agreement to go into a pretrial intervention program (PTI). Consistent with the requirements for entry into the program in the Fourth Judicial Circuit, he signed a document entitled “Plea of Guilty and Negotiated Sentence.” The State Attorney in the circuit required that in order to enter into a pretrial diversion program, defendants were required to sign a guilty plea agreement which would not be entered on the docket of the court. Upon successful completion of the requirements of the PTI, the State Attorney’s Office would dismiss the charges. However, if a defendant failed to complete the PTI requirements, the guilty plea would be filed and the defendant would be sentenced based on the guilty plea. The form that Respondent signed states in part: Specific Terms of Negotiated Sentence: My sentence has been negotiated in this case in that I will be: Adjudicated guilty Adjudication of guilt withheld And I will be sentenced to: (Please print) In the blank space provided, the following agreement is hand-written: Post-plea PTI: upon completion of anger management and no contact with the victim, D.O., the state attorney will dismiss charges. If unsuccessful, plea will be an open plea to the court. The entry into the PTI program was discussed in open court, but the evidence did not establish that the trial judge engaged in a traditional colloquy regarding the voluntary nature of the plea, and the document that Respondent signed was not docketed in the court record. On June 6, 2013, a Diversion Referral Notice was sent to the Clerk of Court by the Assistant State Attorney advising that the case was being referred to the Felony Pre-Trial Intervention Program, and that the State would file a final disposition at the time of successful completion. On July 19, 2015, the Director of the PTI program notified the Clerk of Courts that the case had been accepted into the PTI program. On October 10, 2013, the State Attorney’s Office filed a Diversionary Nolle Prosequi dismissing the charges. The Case Summary for Case No. 2013-CF-000686 indicates that the following documents were filed on the criminal docket: a notice to appear; a notice of cash bond; the affidavit for arrest warrant; warrant returned served; arrest and booking report; notice of appearance, waiver of arraignment, not guilty plea and demand for trial; information; state’s discovery exhibit and demand for reciprocal discovery; victim information form; diversionary program referral notice; diversionary program referral (accepted); cash bond release; and diversionary nolle prosequi. The document entitled Plea of Guilty and Negotiated Sentence was not filed on the docket in the criminal proceedings. The Nature of the Restraint Throughout these proceedings, Petitioner has referred to the restraint of D.O. as a chokehold. The unfortunate use of the term originated with D.O.’s comments to Ms. Payne. D.O. did not testify in this case. The only witnesses to the actual incident that testified in these proceedings are Coach Rountree, Coach Ford, and Ms. Strunz. Coach Rountree candidly stated that he did not see the entire incident. He demonstrated what he observed of the interaction between Coach Ford and D.O. His demonstration indicates that Coach Ford had his arm across D.O.’s upper chest. Jessica Strunz was described as being somewhere between three feet and 30 feet away from Coach Ford and D.O. Given the testimony regarding D.O.’s size and pace as he walked toward the gym, the most plausible conclusion is that she was somewhere between 10 and 15 feet behind him.6/ It is Ms. Strunz’s testimony that places Ford’s arm around D.O.’s neck. That testimony is not credited. First, Ms. Strunz is shorter than D.O. and possibly shorter than Coach Ford. If she was behind Coach Ford, who was behind D.O. when he started to go through the door of the gym, it would be difficult, if not impossible, for her to see where Coach Ford’s arm was located in front of D.O. Second, the height difference between Coach Ford and D.O. also weighs in favor of a restraint across the chest, as both Coach Ford and Coach Rountree demonstrated. Third, the redness on D.O.’s neck was reported to be just above his collarbone at the front of his neck. He had to pull down his shirt in order for the red mark to be seen. Had Coach Ford had D.O.’s neck in the crook of his arm, as Ms. Strunz testified, it seems that any redness would have extended to at least one side of his neck, and no one testified that was the case. Moreover, D.O. had been outside on a baseball field on a warm day. He was angry, had been yelling, had kicked a chair, and had thrown a chair in the 30 minutes leading up to this event. There is not clear and convincing evidence that the redness on his neck was caused by the restraint at all. The same can be said for the small scrape on his elbow. The more persuasive testimony indicated, and it is found, that Coach Ford restrained D.O. by placing his arm across the upper chest area. He did so not because D.O. had hurt himself or anyone else at that point, but based upon his concern that should this demonstrably angry young man enter the crowded hallway, the normally chaotic atmosphere with close to 100 waiting students would turn into a dangerous one with a real possibility of injury to D.O., to other students in the hallway, or both. Reasonable Use of Force The District has adopted a definition of the reasonable use of force for teachers, as required by section 1006.11, Florida Statutes. The District’s policy states the following: CLAY COUNTY SCHOOL BOARD POLICY 6GX-10-2.32 2.32 USE OF REASONABLE FORCE As provided by Florida Statute 1006.11, this policy establishes the standards for the use of reasonable force by Clay County school personnel. Such use shall be for the purpose of establishing and maintaining a safe and orderly environment and shall provide guidance to school personnel in dealing with disruptions to that environment. Definition of Terms: The following definitions apply to terms used in this policy: Learning Environment: All events and activities authorized by the School Board requiring an employee to be on duty in/out of the classroom setting. Orderly: Devoid of disruption or violence; peaceful. An orderly environment is one in which learning can take place. Disruption: An interruption of or impediment to the usual course of harmony. Reasonable Force: Appropriate professional conduct including reasonable force as necessary to maintain a safe and orderly learning environment. Safe: Preventing injury or loss of life, a safe environment is one in which persons are protected from injury or threat of injury. School personnel: Employee/individual hired by the School Board. Conditions that may require use of reasonable force: While use of physical force may be needed at times to ensure a safe and orderly learning environment, alternatives to such force should be attempted, time permitting. The use of reasonable force is permitted to protect students from: conditions harmful to learning; conditions harmful to students’ mental health; conditions harmful to students’ physical health; conditions harmful to safety; other conditions which, in the judgment of on-site employee(s), threaten the safety and welfare of students or adults. Guidelines for the determination of “reasonableness” of force: When school personnel employ physical force in order to maintain or restore safety and/or order to a situation, determinants as to the reasonableness of force shall include, but not be limited to: severity of the offense(s); size and physical condition of participant(s); patterns of behavior; potential danger; physical and other; availability of assistance; other circumstances surrounding the offense; and actions taken prior to use of physical force. Other factors: Reasonable force cannot be excessive or cruel or unusual in nature. Physical force being used should cease upon the restoration of a safe and orderly environment. Nothing in this policy should be construed as addressing Clay County School Board polic(ies) on corporal punishment. Use of these guidelines shall provide guidance to school personnel in receiving the limitations on liability specified by Florida Statutes. (Emphasis added). There was testimony that under Clay County’s policy on reasonable force, restraint should be used only in the most extreme cases, such as when a student is going to seriously injure himself or someone else. None of those espousing this view indicated that they had ever had 40 students on a P.E. field or had ever taught P.E. Ms. Payne and Ms. Zimmerman both acknowledged that they had never done so. While such an example is certainly covered by the policy, the plain language of the policy is not that restrictive. Coach Ford testified, and maintained consistently throughout the various inquiries related to this incident, that his concern was for the safety of both D.O. and the other students in the hallway, should D.O. enter this crowded area at the level of crisis he was exhibiting in the period immediately prior to his approach to the door. Every P.E. instructor who testified emphasized that student safety is their primary concern. Here, Coach Ford was concerned about anyone getting run over or injured given D.O.’s clearly agitated state. This concern fits squarely within the policy’s directive to “maintain a safe and orderly learning environment,” including an environment which is “devoid of disruption or violence” and where “persons are protected from injury or threat of injury.”7/ It is found that Coach Ford’s actions fell within the confines of, and was not prohibited by, the District’s policy on the use of reasonable force. The Alleged Threat Ms. Strunz testified that Coach Ford threatened D.O. almost immediately prior to the restraint, saying that if he found paint on his car, he would come look for D.O. and would put him in the hospital; and that D.O. did not know what he was capable of. Coach Ford adamantly denied this allegation. These alleged threats were supposedly made just moments after, according to Ms. Strunz, Coach Ford was telling D.O. he needed to make better choices and was trying to calm him down. That anyone, including Coach Ford, would make such a statement immediately after working repeatedly to calm D.O. and after talking to him about better choices, simply strains credulity. It was not clear where Ms. Strunz was when Coach Ford told D.O. that D.O. was not aware what teachers were allowed to do. It may be that she misinterpreted this statement as a threat. In any event, there is not clear and convincing evidence that Coach Ford made any threat to D.O. Diminished Effectiveness Petitioner presented evidence of news accounts of the incident, in support of the allegation that Respondent’s effectiveness had been reduced, along with the opinion of Ms. McCabe (who believed that Respondent had used a chokehold) to that effect. On the other hand, Bonny Lawrence, the department head for the P.E. department at Oakleaf, testified that she would “absolutely not” have a problem with Coach Ford coming back on her staff. Janet Rowe, the athletic director and a P.E. teacher at Oakleaf, considers Ford to be a highly-effective P.E. coach. Edward “Smitty” Huffman, who has taught physical education for most of his 20 years in education, considers Coach Ford to be one of the better teachers he has ever known. It is found that Petitioner did not establish by clear and convincing evidence that Respondent’s effectiveness as a teacher has been reduced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 28th day of September, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2015.
