The Issue The issue presented for decision in this case is whether Petitioner, the School Board of Lee County (the "School Board"), has just cause to dismiss Respondent, a teacher at Cypress Lake High School ("Cypress Lake"), for setting his car on fire on school property.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Since August 1995, Respondent has been employed as a high school classroom teacher by the Lee County School District, teaching Spanish at Cypress Lake. He worked for the school district continuously until April 20, 1999, when he was suspended with pay and benefits. Throughout his active employment with the school district, Respondent’s performance evaluations and assessments showed that he met or exceeded all performance criteria. Respondent has not been subjected to discipline prior to this case. William Geddes, the principal of Cypress Lake, hired Respondent and had known him for five years. He testified that Respondent was a very effective Spanish teacher. He testified that Respondent got along well with students and staff and greatly improved the school’s Spanish club. Jacki Gruhn is the assistant principal for administration at Cypress Lake. She has known Respondent professionally for five years and described him as a very good teacher, doing exciting things in the classroom. She said Respondent was popular with students and fellow teachers. Ms. Gruhn called Respondent "fair" and "upright." Donald Koedyker is the sites maintenance person at Cypress Lakes. He begins work at about 6 a.m., Monday through Friday. He testified that he uses a golf cart to get around the campus during the day. On April 19, 1999, Mr. Koedyker arrived at the Cypress Lake campus at around 5:45 a.m. He opened the storage shed and got his golf cart and a trash barrel. He testified that he picks up trash on the school grounds first thing in the morning. Mr. Koedyker stated that he was running late that morning because there was a flat tire on his golf cart. He either pumped the tire or took the other golf cart, then began his rounds. As Mr. Koedyker drove his golf cart past a building toward the parking lot, he saw a flicker of light. After he rounded the corner of the building, he could see Respondent’s car burning. The car was parked in a handicapped space near the front of the main school building. Mr. Koedyker estimated the distance to be about 30 feet from the car to the building entrance. Mr. Koedyker drove to the cafeteria and pounded on the door. Carol Cote, the lunchroom manager, answered the door. Mr. Koedyker told her to call 911, then he headed back to the burning car. Mr. Koedyker saw Respondent coming through a wrought iron gate from the courtyard to the back of the cafeteria parking lot. Respondent was walking in no apparent hurry. Mr. Koedyker did not notice whether Respondent was carrying anything. Mr. Koedyker yelled to Respondent that his car was on fire. Respondent climbed onto the golf cart and rode to the parking lot with Mr. Koedyker. Mr. Koedyker testified that Respondent told him that he couldn’t believe his car was burning. He described Respondent as being "in shock." They stopped the golf cart about 30 to 40 yards from the car. Mr. Koedyker testified that the fire appeared to be burning more intensely than when he first saw it. Shortly thereafter, a fire truck arrived and they watched the firemen attempt to put out the fire for about 25 minutes. Mr. Koedyker testified that the flames were intense enough that he could feel the heat from where he stopped the golf cart, some 30 or more yards away. Mr. Koedyker testified that he saw no damage to the main building at the time of the fire, but the next day he saw that the asphalt was singed where the car had been parked. Mr. Koedyker estimated that five or six teachers were at work at the time he discovered the fire, which he estimated to be at about 6:10 a.m. The custodian who opens the school building was also there. By the time the fire was put out, nearly all the staff and faculty were at school. Mr. Koedyker estimated that the fire department arrived at about 6:20 a.m., and that the fire was out by 7 a.m. Mr. Koedyker testified that he saw no students at the time of the fire, though some students regularly arrive early to run track. Mr. Koedyker testified that the school building is usually open by 6:05 a.m. He was not aware of any school policy prohibiting students from entering the school until a time certain. Mr. Koedyker testified that Respondent regularly arrives early at school. He described Respondent as one of about four "early bird" teachers. Mr. Koedyker stated that Respondent arrives about the same time as he does. Mr. Koedyker stated that Respondent was not parked in his usual spot that day. Respondent walks with a cane, and has a handicapped parking sticker, but usually does not park in the handicapped space. Respondent is one of two staff people at Cypress Lake with handicapped parking stickers. Mr. Koedyker recollected that Respondent stated he was told to park there on the morning of April 19, 1999. Construction was still going on in the main building. The actual construction was finished, but punch list items and cleanup were still under way. Mr. Koedyker testified that Respondent was aware of his morning routine, and that his routine made it likely that he might discover the person setting the car on fire. Mr. Geddes has been the principal of Cypress Lake for over a year and has worked at the school for 24 years. Mr. Geddes testified that the official work day for teachers runs from 7:00 a.m. until 2:30 p.m., and that they report to work from 6:30 to 6:45 a.m. He testified that he prefers to keep students out of the building until 7 a.m. On April 19, 1999, Mr. Geddes arrived on the campus at 6:23 a.m. He recalled the precise time because he checked his watch as he drove onto Panther Lane, the main road into the school. As he drove in, Mr. Geddes saw a fire truck pull out of Panther Lane. As he drove the 200 feet from the entrance to the front of the campus, Mr. Geddes saw several police and fire department cars, and yellow tape cordoning off the burned vehicle. He saw no flames coming from the car. Mr. Geddes’ testimony has the fire already out at about 6:25 a.m., roughly the same time Mr. Koedyker testified the fire truck first arrived. This variance in the testimony is noted, but has no real bearing on the relevant facts of the case. In any event, Mr. Geddes’ testimony on this point is credited due to his more precise recollection. Mr. Koedyker testified that he was estimating the times. Mr. Geddes spoke to a police officer, who told him that a student may have set the car on fire. Mr. Koedyker told Mr. Geddes that the car belonged to Respondent. Mr. Geddes commenced looking for Respondent. He called for Respondent over the school loudspeaker system. He waited ten to fifteen minutes, but received no response. Mr. Geddes then went back to the parking lot, but did not see Respondent there. He saw the that the police and fire department were still investigating the scene, and that they had pulled a one gallon container of liquid from the vehicle. Mr. Geddes stated that the officers told him they were going to bring in arson investigators, but there was nothing for him to do and he should simply go about the business of running the school. Mr. Geddes testified that the fire did not delay the start of school. Mr. Geddes testified that Respondent’s car was parked about 50 feet from the entrance of the main building, in the parking space closest to the school. Cypress Lake has a circular drive, with a student drop- off area near the school. School buses drop off students about 200-250 feet from the school entrance. The students exit the buses and walk up a covered walkway to the entrance. Mr. Geddes estimated that the burned car was parked about 200 feet from the bus drop-off point, but only 30 feet from the nearest point on the walkway. Mr. Geddes returned to his office at about 6:45 a.m. and again called for Respondent over the school loudspeaker system. At about 7:10 a.m., Respondent came to Mr. Geddes’ office. He told Mr. Geddes that he had not heard the call on the loudspeaker, but had been told that Mr. Geddes was looking for him. Mr. Geddes testified that he never found out what Respondent was doing during the period between the first loudspeaker call and his arrival at the office. Mr. Geddes testified that Respondent was a smoker, and that teachers are not supposed to smoke on the campus. Mr. Geddes conceded that Respondent may have been smoking a cigarette at the shed where the golf carts were stored, but stated that the loudspeaker can be heard at the shed because he had fielded complaints about it from the residents of the suburb behind that area. Respondent told Mr. Geddes that he left his car unlocked as he came into the school to copy some papers for a class, and that a student apparently "torched" his vehicle while he was in the building. Respondent said he could think of no one who would set his car on fire, and said nothing to implicate himself. Respondent told Mr. Geddes that he was unhurt, but "pretty shook up." Mr. Geddes told Respondent that he would see that Respondent’s classes were covered, and that Respondent should concentrate on taking care of this matter. Respondent left the office and went outside to work with the fire and police investigators. Mr. Geddes contacted the district office to inform them of the matter. At around 9:30 a.m., Mr. Geddes received a phone call from the Lee County Sheriff’s Office telling him that they were taking Respondent to the district substation for further investigation. Some time between 11:30 a.m. and noon, the Sheriff’s Office called Mr. Geddes to tell him they were arresting Respondent and charging him with arson. Respondent was to be transported to the Lee County Jail. Shortly thereafter, Respondent called Mr. Geddes and asked him to bring his briefcase, keys, and cellular phone down to the police station. Mr. Geddes told Respondent that he would bring the items to the jail after school, and asked Respondent if his wife knew what had happened. Respondent said she didn’t, and accepted Mr. Geddes’ offer to call her. Mr. Geddes called Respondent’s wife, informed her of the events of that morning, and told her that he was going to try to see Respondent at 3:00 p.m. Respondent’s wife said she would try to meet Mr. Geddes at the jail. Mr. Geddes tried to deliver the briefcase to Respondent, but the police would not allow him to see Respondent because Respondent had not yet been arraigned. The police told Mr. Geddes that only Respondent’s lawyer could speak with Respondent prior to arraignment. Mr. Geddes testified that he waited for Respondent’s wife at the police station until about 4:15 p.m., but she never appeared. Mr. Geddes testified that Respondent told him during their telephone conversation that he was sorry for what he had done. Respondent sounded as if he was choking back tears. Mr. Geddes testified that he did not take this statement as an admission that Respondent had set the fire. Mr. Geddes testified that in the immediate aftermath of the fire, teachers on the Cypress Lake campus were concerned about students setting fires. The Lee County Sheriff’s Office told Mr. Geddes that Respondent had admitted setting the fire. The officers also told him they had found burns on Respondent’s body. Mr. Geddes attended the predetermination hearing concerning Respondent’s employment status. Also present were Gail Williams, a secretary; and Respondent and his counsel. Respondent’s counsel advised Respondent to make no statements pending resolution of the criminal charges. After the meeting, Mr. Geddes recommended that Respondent not return to Cypress Lake, believing that it was in no one’s best interests to have him on the campus. Mr. Geddes testified that there was shock on the campus when it was learned that Respondent had been charged with arson, but also relief that the perpetrator apparently was not a student. Mr. Geddes testified that the incident undermined Respondent’s effectiveness on campus. Mr. Geddes testified that the area where Respondent’s car was parked on April 19 was generally more visible than the area where Respondent usually parked. He testified that there were less obvious places on campus to set a car on fire. Daniel Leffin is a battalion chief with the Iona MacGregor Fire District and an officer with the Lee County Sheriff’s Office. On the morning of April 19, 1999, Mr. Leffin was on duty at the fire department. His unit was dispatched to Cypress Lake shortly after 6:00 a.m. Mr. Leffin testified that, as shift commander, he separately drove a car to the scene, arriving two minutes after the call. The fire truck followed immediately behind him. Mr. Leffin estimated they arrived at the school at about 6:15 a.m. He testified that five to seven people, including Respondent, were in the parking lot as they arrived. Respondent was sitting on Mr. Koedyker’s golf cart. The firemen found a Toyota 4Runner "fairly well involved" in a passenger compartment fire. The fire had broken out the windows, and flames were shooting about two feet over the top of the car. Mr. Leffin testified that the car could have blown up, but that explosions are not something the firemen ordinarily worry about. Explosions are very rare, usually caused by ruptures in the gas tank. Mr. Leffin stated that he has seen only two car explosions in 19 years of work, and both of those involved crashes. Mr. Leffin testified that the fire was hard to extinguish. He stated that water is usually sufficient for car fires, but in this case foam had to be used. Foam is usually used on fuel fires. Mr. Leffin stated that it took about five to ten minutes to put out the fire. After the fire was extinguished, Mr. Leffin surveyed the car in an effort to discover how the fire started. He found fuel containers under the floor boards of the passenger seat and the rear left seat. At that point, he did not remove the containers. Mr. Leffin testified that it was apparent that the fire had been started intentionally, and he called in the police and the State Fire Marshall. The scene was cordoned off with yellow tape for a radius of 20 feet. Mr. Leffin estimated that the vehicle was parked about 30 feet from the walkway, and was about 50-75 feet away from the main building. While waiting for the police to arrive, Mr. Leffin spoke to Respondent, who told him he didn’t know what happened. Respondent told Mr. Leffin that he had gone into the building to make copies, and was told by Mr. Koedyker that his car was on fire. Mr. Leffin asked Respondent whether anybody was "mad" at him. Respondent said he could not think of anyone. Mr. Leffin testified that the conversation was limited after this point, because he had begun to suspect that Respondent set the fire. Also arousing Mr. Leffin’s suspicions was the fact that, when Respondent went to view the burned vehicle, he walked straight to the left back window and looked in where one of the fuel containers had been. Mr. Leffin had mentioned the fuel containers to Respondent, but had not told him their location in the car. Mr. Leffin waited for Philip Roman of the State Fire Marshall’s office to arrive before questioning Respondent any further. In Mr. Roman’s presence, Mr. Leffin removed one of the fuel containers from the car and set it aside. The odor and color of the liquid in the container indicated it was "some sort of accelerant." Philip Roman was the arresting officer, though Mr. Leffin sat in on the interview at the district substation. During the interview, Mr. Roman noted singed hair on Respondent’s right upper hand and palm. He also noted what appeared to be heat blisters on Respondent’s pant legs. Mr. Leffin testified that Respondent appeared "indifferent" at the outset of the interview, sitting and listening without any outward display of emotion. Later, Respondent appeared to be on the verge of breaking down, holding back tears. Mr. Roman read Respondent his Miranda rights and had Respondent sign a "Miranda Warning" form. Respondent wrote "No" next to the question, "Having these rights in mind, do you wish to talk to us now?" Mr. Leffin testified that there was a period during which Respondent wanted to talk to them, but then changed his mind. Still later, Respondent agreed to talk to Mr. Roman alone. After that discussion, Mr. Roman taped a statement by Respondent. Mr. Leffin testified that Respondent confessed to Mr. Roman that he had gotten the fuel containers out of a recycling bin, filled them with gas at a Hess station on the way to school, and set the car on fire. Respondent did not tell them why he did it. Respondent was charged with second degree arson. At the hearing, Respondent produced an Order Granting Defendant’s Motion to Suppress, entered by Circuit Judge Isaac Anderson, Jr. in the criminal case against Respondent. Judge Anderson found that Mr. Roman "used pressure designed to embarrass, intimidate and to ultimately get the Defendant to confess," and that these actions justified suppression of Respondent’s confession. Gail D. Williams is the director of personnel services for the Lee County School District. Among her duties are disciplinary and internal investigations. In this case, her supervisor received the complaint and initiated the investigation. Ms. Williams then chaired the predetermination conference for Respondent on July 26, 1999. After the conference, the Superintendent recommended moving forward with Respondent’s termination. His reasoning was that Respondent’s actions jeopardized the safety of students and staff at Cypress Lake. The Superintendent notified Respondent of his recommendation by letter dated August 10, 1999. Ms. Williams could not say whether Respondent ever admitted to school district personnel that he set the fire. On advice of counsel, Respondent said nothing at the predetermination conference. Ms. Williams stated that Respondent’s actions constituted violations of Rules 6B-1.006(3), 6B-1.006(5)(a), 6B-1.001(2), and 6B-1.001(3), Florida Administrative Code. Andrew W. Baker has been a teacher and basketball coach at Cypress Lake for three years. He knows Respondent as a co-worker, and as a volunteer ticket taker at basketball games. On the morning of April 19, 1999, Mr. Baker arrived at school at 5:50 a.m. He opened his classroom, then walked to the main office at 6:00 a.m. to sign in. Mr. Baker said good morning to Respondent in the office. He noticed nothing unusual in Respondent’s behavior. Mr. Baker then walked to the main entrance of the building to get a morning newspaper and walked back to his classroom to read the newspaper. He did not see a fire in the parking lot at that time. He testified that the lot adjacent to the main entrance is the best lit parking lot on the campus. Mr. Baker testified that he saw Respondent again about 20 minutes later. Mr. Baker was sitting in his classroom, reading the paper, and drinking coffee when Respondent knocked and came in. Respondent told Mr. Baker, "Somebody blew up my truck." Respondent wondered aloud, "Why would a kid do this to me?" Mr. Baker testified that Respondent was crying. Mr. Baker testified that on a typical day, there are five or six teachers and other employees at the school at 6 a.m., including Mr. Koedyker. Mr. Baker testified that he did not hear any sirens, because his classroom is "clear in the back of the school." Mr. Baker testified that he heard some students discussing the incident later. He described their state of mind as encompassing confusion, surprise, and shock. Mr. Baker also heard students discussing Respondent’s arrest. Some of the students told him they had seen Respondent being handcuffed. Mr. Baker testified that he did not know if the handcuffing actually occurred. Mr. Baker testified that no one questioned him about the incident. Jacki Gruhn is the assistant principal for administration at Cypress Lake. She has worked at Cypress Lake for eight years. She has known Respondent professionally for five years, and described him as a very good teacher. On April 19, 1999, Ms. Gruhn came in late to school, at about 8:30 a.m. She was told about the fire when she called in to the office to say she would be late. The person on the phone told her there was some "excitement" at the school, that someone had set Respondent’s car on fire and that there was gasoline in the car. When she arrived at school, Ms. Gruhn heard more about the incident from teachers. Ms. Gruhn testified that the teachers were scared, and were asking her about security in the parking lot. Some of the early arriving teachers asked Ms. Gruhn if they should wait until 7 a.m. to come to school henceforth. After she arrived at the school, Ms. Gruhn talked to Respondent. Ms. Gruhn described Respondent as very upset, crying off and on. Respondent told her that someone had started a fire in his car, and Mr. Koedyker had come running to tell him it was on fire. Ms. Gruhn discussed the matter with the deans at the school. They wondered who was the likely candidate to have come in early to the school and burned Respondent’s car. None of them was privy to what the investigators at the scene were thinking. Ms. Gruhn recalled that on the next day, Mr. Geddes told her confidentially that Respondent had set the fire.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order finding that Respondent committed misconduct in office as defined in Rule 6B-4.009(3), Florida Administrative Code, and ordering that Respondent be dismissed from employment with the Lee County School Board. DONE AND ENTERED this 28th day of March, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 28th day of March, 2000. COPIES FURNISHED: Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Keith B. Martin, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Dr. Bruce Harter, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3916
The Issue The issue in this case is whether Petitioner, Polk County School Board ("School Board"), had just cause to terminate Respondent, Blanca R. Ortiz' ("Respondent"), employment as a teacher.
Findings Of Fact At all times relevant to this proceeding, Respondent was employed by the School Board as a teacher at Lakeland High School, where she taught spanish. Respondent currently holds a professional services contract pursuant to Section 1012.33, Florida Statutes (2007).1 On February 6, 2008, Chelsey Etgen, a Lakeland High School student in Respondent's fourth-period class, left her packback in Respondent's classroom during the lunch period. The backpack contained Ms. Etgen's iPod Touch ("iPod"). When Ms. Etgen returned to the classroom from lunch, an unidentified male student, who was sitting near her, handed her (Etgen) a graph and a calculator and asked if those were her items. Ms. Etgen recognized both the graph and calculator as items that belonged to her and that had been in the same "pocket" of her backpack as her iPod. Ms. Etgen immediately checked her backpack and, upon doing so, discovered that her iPod was missing. Immediately after Ms. Etgen discovered that her iPod was missing, she notified Respondent. Respondent had the students in the class empty their pockets, but the iPod was not found. Respondent then instructed Ms. Etgen to notify appropriate school officials that the iPod had been taken from her backpack. On February 7, 2008, Ms. Etgen reported to the school resource officer ("resource officer" or "officer") that the iPod was missing from her backpack. Ms. Etgen's iPod was black with a silver face/screen. About a week after Ms. Etgen reported that her iPod was stolen, Respondent asked Ben Brown and another student in Respondent's third-period Spanish I class if they could unlock her iPod. Respondent told Mr. Brown and the other student that her daughter had taken the iPod to school and tried the password so many times that it (the iPod) had "locked up." Mr. Brown and several other students attempted to "unlock" the computer, but were unsuccessful in doing so. Almost two weeks after Ms. Etgen's iPod was reported as missing, Ms. Etgen told Mr. Brown that she thought Respondent had her (Etgen's) iPod. The two students then arranged for Mr. Brown to check the serial number on the iPod that Respondent stated was hers with the serial number of Ms. Etgen's stolen iPod. Mr. Brown agreed to get the serial number off the iPod. As a security measure, Mr. Brown told Ms. Etgen that after he obtained the serial number from the iPod, he would e-mail half of the serial number to her and indicated that she should provide the other half of the serial number to him. On or about February 20, 2008, and after the conversation described in paragraph 8, Mr. Brown went to Respondent's third-period class. The iPod, which Mr. Brown had been trying to "unlock" for Respondent, was still in Respondent's classroom. That day, Mr. Brown was able to hold and look at the iPod and to obtain the serial number of the iPod. Ms. Etgen obtained the serial number of her stolen iPod from the box in which the iPod had come. On February 20, 2008, Mr. Brown and Ms. Etgen exchanged a series of text messages in which each of them provided parts of the serial number of the iPod that was in Respondent's classroom. After doing so, Mr. Brown and Ms. Etgen confirmed that the serial number of the iPod that Respondent had said was hers matched the serial number of Ms. Etgen's stolen iPod. The iPod from which Mr. Brown obtained the serial number discussed above, looked identical to the one that he had been trying to "unlock" for Respondent. After confirming that the iPod in Respondent's classroom matched her iPod serial number, Ms. Etgen told school officials that she believed Respondent had her (Etgen's) iPod. Ms. Etgen also delivered to resource officers, Stacy Pough and Steve Sherman, the box for her iPod that had the serial number which Ms. Etgen believed matched the iPod in the possession of Respondent. On February 20, 2008, soon after receiving information from Ms. Etgen about the matching iPod serial numbers, Officers Pough and Sherman went to Respondent's classroom to ask her about the missing/stolen iPod. Upon entering the classroom, the officers approached Respondent and Officer Sherman asked Respondent about Ms. Etgen's missing iPod and asked if she had the iPod. In response, Respondent told the officers that she did not have the iPod. The resource officers then left the classroom and went into the hall and reported what they had been told to Lakeland High School administrators, Mr. Thomas, then principal, and Tracie Collins, then assistant principal of curriculum. When the resource officers made the initial contact with Respondent, Lakeland High School students, Tyler Qualls and Barbara Duckstein, were among the students in Respondent's classroom. Both Mr. Qualls and Ms. Duckstein overheard the conversation between the resource officers and Respondent described in paragraph 14. Although Respondent told the officers that her iPod was at home, both Mr. Qualls and Ms. Duckstein had seen Respondent with an iPod earlier that day. In fact, that same day and before the officers came to Respondent's classroom, Respondent had asked Ms. Duckstein to see if she could unlock Respondent's iPod. Ms. Duckstein then attempted to "unlock" what she believed to be Respondent's iPod,2 but was unsuccessful in doing so. Soon after the resource officers left Respondent's classroom, Ms. Duckstein left the classroom and told the officers that Respondent had an iPod in the classroom. After Officers Pough and Stewart completed their initial interview with Respondent and left her classroom, Mr. Quall observed Respondent remove the iPod from her desk drawer and put it in her black tote bag. After the resource officers' initial interview with Respondent, the students in Respondent's classroom were released early for lunch. Ms. Collins told Respondent that a student had "something" missing and asked her if the officers could come in and look around the classroom. Respondent agreed to allow the officers to search the classroom. Ms. Collins then authorized the resource officers to search Respondent's classroom. During the search, Ms. Collins observed Respondent move a stack of papers and folders from her desk into a bag. The manner in which Respondent moved the items made Ms. Collins suspicious, so she asked Officer Pough if he had looked in the bag. Officer Pough told Ms. Collins that he thought he had, but would look again. While looking through the bag, Officer Pough found the iPod that belonged to Ms. Etgen. At the hearing, Respondent testified that she did not take Ms. Etgen's iPod and that she did not know how the iPod got in her tote bag. Respondent also testified that she had received an iPod for Christmas and that she had asked the students to "unlock" the iPod that she believed was hers. Respondent's testimony implied that her iPod was identical to Ms. Etgen's iPod and that this may have been a source of confusion as to which iPod she had asked the students to "unlock." However, Respondent provided no evidence to support her claim that she had an iPod.3 In attempting to explain how Ms. Etgen's iPod came into her possession, Respondent then testified that on February 20, 2008, she confiscated several electronic devices, including an iPod, from students who were using them in class and placed the items on her desk. Respondent testified that at the end of the class, the students were allowed to come and retrieve the items, but apparently one unidentified student did not retrieve the iPod, but left it on Respondent's desk. Respondent suggested that perhaps it was that unidentified student who brought Ms. Etgen's iPod into Respondent's classroom on August 20, 2008.4 Respondent's testimony was confusing, vague, and unpersuasive. Ms. Collins, now principal of Lakeland High School, testified that the success of a teacher is tied to his or her credibility (character and integrity) with the students. The evidence supports the allegation that Respondent stole a student's iPod. Moreover, the evidence established that the incident occurred at school and that students at the school, as well as administrators, knew about the incident. Given the foregoing, Respondent is no longer an effective teacher. As a result of the subject incident on or about November 5, 2008, Respondent was convicted of petit theft in a criminal proceeding in Polk County, Florida.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order dismissing Respondent, Blanca Ortiz, from her position as a teacher. DONE AND ENTERED this 31st day of December, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 December, 2008.
The Issue Petitioner's charge of discrimination alleges that the Orange County School Board discriminated against her on account of her age and race when the school board dismissed her in July 1994. Although the school board told her that she was dismissed because she did not have a college degree, allegedly another (white) employee without a degree was not dismissed. Petitioner alleges that, in violation of policy, the school board did not assist her to find another position and that since her dismissal younger employees were hired in positions in which she could have worked. The issue in this case is whether Petitioner was discriminated against, as alleged, and if so, what relief is appropriate.
Findings Of Fact Petitioner Ada J. Sims is an African-American female born October 28, 1934. She resides in Orlando, Orange County, Florida. During the 1993/94 school year, Ms. Sims was employed as an occupational specialist by the Orange County School Board (OCSB). She was assigned to Cypress Creek High School. Ms. Sims worked for the OCSB for 26 years; the first 4 or 5 were in clerical positions, and the last 22 years were as an occupational specialist at various schools. Ms. Sims does not have a college degree. Sometime during the 1993/94 school year, Ms. Sims was offered and accepted an early retirement opportunity. She expressed her intent to retire effective December 1994. The last day of school was the end of May 1994. At that time Ms. Sims understood that she still had a job at Cypress Creek High School for the beginning of the 1994/95 school year. Sometime during the early summer in 1994, the superintendent of schools and the OCSB realized the need to reduce instructional positions in order to keep expenditures within an available budget. The certification area, "occupational specialist," was identified for the reduction in force. On or about July 19, 1994, Cypress Creek assistant principal Cathy Thompson spoke to Ms. Sims by telephone to inform her that she was no longer employed and that she should call the personnel department for further information. Ms. Sims was upset and called the personnel office. She also visited the office, wrote letters to the school board chairperson and superintendent, and contacted the Classroom Teacher Association. Ms. Sims felt that people were evasive and non-responsive. No one helped her find other employment. Sometime between August and December 1994, Ms. Sims began receiving her retirement benefits. Since then, she has been employed only part-time: briefly for a newspaper and now with Haitian Social Services. In her complaint of discrimination, Ms. Sims is claiming $15,000 in lost wages and $5,000 for "pain and suffering." Mary Bailey is employed by the OCSB Division of Human Resources. A former classroom teacher and principal, she has worked for the OCSB for 33 years. Ms. Bailey was the supervisor for the reduction in force which eliminated Ms. Sims' position. There were approximately 12-15 occupational specialist positions in the OCSB in May 1994. All but 2 or 3 were eliminated. In determining which positions were eliminated the incumbent's job history was reviewed to determine seniority. White and African-American employees were laid off. The only employees retained were those with college degrees who could obtain a teaching certificate and be placed in a regular instructional position. Ms. Sims, without a college degree, did not qualify for this placement. There was no consideration of age or race; the regular OCSB policy and collective bargaining agreement procedures were applied. No one offered Ms. Sims a clerical position or other non-instructional position; she was told she could apply for another position on her own. Elaine Manfriede, the white employee who Ms. Sims claims was retained, found a clerical position on her own. Ms. Manfriede's occupational specialist position was eliminated.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter its final order dismissing Ada J. Sims' charge of discrimination and Petition for Relief. DONE AND ENTERED this 12th day of October, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 12th day of October, 1998. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303 Ronald Blocker Orange County School Board Post Office Box 271 Orlando, Florida 32802 Ada Sims 1601 Crooms Avenue Orlando, Florida 32805 Frank C. Kruppenbacker, Esquire Post Office Box 3471 Orlando, Florida 32801-3471 Dr. Donald Shaw, Orange County Superintendent of Schools Post Office Box 271 445 West Amelia Street Orlando, Florida 33802-0271
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record complied herein, the following relevant facts are found. By letter dated October 1, 1980, Respondent, David K. Witherspoon, and his parents were advised by the Pinellas County Superintendent of Schools, Gus Sakkis, that he was being suspended from the public schools of Pinellas County for the remainder of the 1980/81 and 1981/82 school years based on an allegation that Respondent committed a battery while on school grounds on September 19, 1980, following a high school football game. (Joint Exhibit 1) Respondent is scheduled to graduate from high school at the end of the 1981/82 school year. Following the expulsion, Respondent has been assigned and is attending an evening alternative education school program sponsored by the Pinellas County School System. According to testimony, that a system provides two hours of instruction each week day evening. Respondent appealed the Superintendent's expulsion and the parties stipulated that the Division of Administrative Hearings has jurisdiction to resolve this controversy. According to the Code of Student Conduct, students are expected to conduct themselves at all times in a manner that "shall [not] infringe on the rights of others. A battery, according to the Code of Student Conduct, is the unlawful, intentional touching . . . or force to another person, done in a rude, insolent and angry manner shall subject a student to disciplinary action which may include suspension or expulsion from school." Paragraph 3(a)2, Code of Student Conduct. The material allegations of this controversy are that following the football game at Gibbs Senior High School (Gibbs) on September 19, 1980, Respondent while in the company of four other black males struck Anthony Scott Taylor, a seventeen year old senior at Gibbs, his mother and his fiancee in the school's parking lot. Anthony Taylor charged that Respondent kicked him across his eye; struck him with his fist, bruising his nose and caused his eye to bleed. Taylor has know Respondent for more than two years and has had no prior run-ins or altercations with Respondent. Taylor alleges that approximately 20 or more black students encircled him during the altercation with Respondent. Taylor, while on his knees in a slouched position when he was allegedly hit an kicked by Respondent, glanced up to identify Respondent. Taylor admitted that he was preoccupied with ensuring that his fiancee and mother could leave the parking area without difficulty. He also commented that blood was streaming from his right eye from the blow he received. Ann Taylor, Anthony Taylor's mother, was also struck by a black male as she was leaving the September 19, 1980, football game at Gibbs. Mrs. Taylor testified that her son was knocked down he (Anthony) told one of the black males "that's my mother you knocked down." Mrs. Taylor testified that she was unable to identify any of the students involved in the altercation and noted that her son was dazed when he left the area where the fight occurred. Lori Bush, Respondent's fiancee, also accompanied the Taylors following the football game. Ms. Bush also could not identify any of the students involved in the altercation with them. Ms. Bush and Anthony Taylor's mother picked him up and carried him to their car. Ms. Bush did not recall having seen Respondent prior to the hearing in this cause. Paula Sitzelberger, a detective with the St. Petersburg Police Department investigated the subject incident which occurred at Gibbs on September 19, 1980. Detective Sitzelberger spoke to Respondent at school on September 23, 1980, and after questioning him, reported that Respondent denied striking Anthony Taylor following the game. Detective Sitzelberger noted that Respondent admitted to having shoved another white male whose identity is unknown in another area of the parking lot after the white male allegedly pulled or struck Respondent. Detective Sitzelberger was unable to locate any independent witnesses to the subject incident. Jerry Young, a witness called on behalf of Respondent, recalled the numerous fights which occurred following the September 19, 1980, football game at Gibbs. Young followed Respondent throughout the school ground area and denied that Respondent had any involvement in the subject incident. He corroborated Respondent's testimony to the effect that Respondent's hand was injured in another incident in another area of the school's parking area after Respondent was first enmeshed in an altercation with another white male. Respondent related the incident following the September 19, 1980, football game at Gibbs. Respondent has been attending evening sessions at Mirror Lake Adult High School since his expulsion from the regular public schools of Pinellas County. According to Respondent, Tony Taylor was struck by a group of other blacks and Respondent denied any involvement on his part in that incident. Respondent surmised that Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor repeatedly shout that he knew him, left the area with companion Young although he got involved in another altercation with another white male which resulted in an injury to his hand. Respondent first became aware of his alleged involvement in the Anthony Taylor incident the following Monday when he was questioned by Dean Jones and Detective Sitzelberger. 2/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent be reinstated in the Pinellas County School System; that the suspension be revoked and that the student be permitted to make up the school work missed as provided in Chapter 4(b)1(h) of the Code of Student Conduct adopted by the Pinellas County School System. RECOMMENDED this 14th day of January, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1981.
The Issue The issue in the case is whether the Respondent completed the applicable probationary period while employed as a teacher with the Polk County School System.
Findings Of Fact The Respondent was employed as an eighth grade teacher at Boone Middle School from the beginning of the 1998-1999 school year until October 6, 1998. The Boone Middle School principal and an assigned peer teacher observed the Respondent’s teaching techniques. The observers had certain concerns related to the Respondent’s methods, and on October 2, 1998, the principal met with the Petitioner to discuss the concerns. A second conference was scheduled for October 6, 1998. When the Petitioner arrived at the conference, she announced that she was resigning her employment. At the time of the resignation, the Respondent was asked to submit a written resignation. Although the written resignation was never received, on October 12, 1998, the Respondent turned in her grade book and other documents. By statute, a teacher employed under an "initial annual contract" must complete a 97-work day probationary period, during which time the employment may be terminated without cause and the teacher may resign without being in breach of the employment contract. The Respondent was employed at Boone Middle School for 47 days. She did not complete the probationary period. The Respondent asserts that she did not resign from Boone Middle School, but transferred from Boone Middle School to Cypress Lake Middle School. The evidence fails to establish that a transfer took place. Polk County School Board policy requires that the principals of the employing schools approve teacher transfers. There is no evidence that either the Boone Middle School or the Cypress Lake Middle School principals approved of an official transfer between the schools. There is no evidence that the Boone Middle School principal was aware of the Respondent’s intention to leave until October 6, 1998, when the Respondent announced her resignation from employment. At the hearing, the Boone principal testified that, given the difficulty in hiring math teachers, she would not have approved a transfer in the middle of the school term. The Respondent asserts that she took October 7, 1998, as pre-approved leave time. There is no credible evidence that October 7, 1998, was approved for the Respondent as a personal leave day by any appropriate authority. She had resigned her employment from Boone Middle School, and had not begun her employment at Crystal Lake Middle School. It is unclear as to which employer would have approved a request for leave. The Respondent began employment at Crystal Lake Middle School on October 8, 1998. The Petitioner worked at Crystal Lake until February 12, 1999. After the first grading period was completed, Crystal Lake administrators were concerned about the number of failing grades the Respondent had assigned to her students. Crystal Lake administrators met with the Respondent and asked that she reconsider the grading scale. On February 1, 1999, the Respondent submitted her resignation to Crystal Lake administrators. The Respondent was employed at Crystal Lake Middle School for 82 days. She did not complete the probationary period. Following her resignation from Crystal Lake, she occasionally worked as a substitute teacher. The Respondent was employed at Bartow High School at the beginning of the 1999-2000 school year. She taught nutrition and wellness courses. She was assigned a peer teacher. After classes began, the Bartow High School principal began to receive complaints from students, parents, and others regarding the Respondent’s teaching performance. Based upon the complaints, the principal terminated the Respondent’s employment effective September 28, 1999. The Respondent was employed at Bartow High School for 42 days. She did not complete the probationary period. The Respondent asserts that her employment at Bartow High School was as a "re-appointee" not under an "initial contract," that the probationary period is inapplicable, and that she may not be terminated without cause. The Respondent testified that an employee of the Polk County School Board personnel department told her upon her employment at Bartow High School that she would be considered a "re-appointee." The Respondent was unable to specifically identify which employee allegedly provided the information; however, employees of the personnel office testified that they did not recall speaking to the Respondent about this issue, but further testified that Respondent’s recollection is contrary to school board policy. The employees testified that a teacher, once resigned, who later returns to employment, is treated as a "new" employee and receives an "initial" annual contract. The board policy was further confirmed by the testimony of the Petitioner’s director of employee relations. The Respondent asserts that she was not in fact treated as a new teacher, in that she was not required to complete a new employment application and was not asked to provide fingerprints or medical documents which are required of a new hire. The personnel department employees testified that generally it is not necessary for a person in the Respondent’s position to resubmit such materials when those already on file are of recent vintage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Polk County enter a Final Order terminating the employment of Rita Clarkson. DONE AND ENTERED this 25th day of April, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 25th day of April, 2000. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831-4620 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Mr. Glenn Reynolds School Board of Polk County 1915 South Floral Avenue Bartow, Florida 33830-0391 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact I. Respondent has worked as a custodian at Lake Worth High School since January, 1980. During the 1983-84 school year, he was assigned to work the 3:00 p.m. 11:30 p.m. shift. His duties included cleaning the top floors of the administration building, the old gymnasium, and the fieldhouse. His immediate supervisor was Edward Jerkins, Head Custodian at Lake Worth High School. Sometime in April, 1983, Mr. Jerkins received information that respondent and another custodian, Sam Kelly, were allegedly using marijuana while at work. Mr. Jerkins decided to investigate. On May 26, 1983, at approximately 9:45 p.m. -from the upper level of the administration building which overlooks the old gym area -Mr. Jerkins saw Sam Kelly enter the gym. Mr. Kelly was not assigned to work in this area, and it was not yet break time. Mr. Jerkins then saw respondent, who was sweeping the sidewalk outside of the old gym, enter the gym several minutes later. Mr. Jerkins waited for approximately one half hour, then proceeded to the old gym. On his way to the gym, he noticed that no one else was in the area. The doors to the gym were locked. He unlocked the doors with his key and entered the gym. He observed respondent and Sam Kelly sitting in the bleachers, and detected a strong odor of marijuana. Smoke was visible. Mr. Jerkins accused both men of smoking marijuana. The next day, he reported the incident to David D. Cant1ey, Principal of Lake Worth High School. After receiving Mr. Jerkins' report, Mr. Cantley warned both men that if they were found using marijuana on the school campus he would recommend to the Superintendent that their employment be terminated. II. On August 10, 1983, Kurt W. Auwaerter, Detective for the Lake Worth Police Department, was assigned to road patrol duties on the midnight 8:00 a.m. shift. He patrolled the southwest section of Lake Worth which includes the Lake Worth High School campus. On this date, Detective Auwaerter made his first routine check at Lake Worth High School at approximately 12:30 a.m. He dr9ve his police car to the rear of the school where the cafeteria was located. At that point he observed an unidentified man standing by a car. Since no one else was in the area and it was late at night, Detective Auwaerter became suspicious. He approached the man and asked for identification. The man produced a Florida drivers license, which indicated that he was the respondent. During this exchange, respondent was standing next to the door on the driver's side of the car. The detective, while speaking to respondent, looked into respondent's car with his flashlight. In plain view on the front seat of the car was a tray which held a cigarette "rolling" paper containing a brownish-green vegetable material. The detective recognized this material as marijuana. In addition, when the detective reached into the front seat of the car, he found a small manila envelope containing more of the same substance. He then arrested respondent for possession f marijuana, and transported him to the Lake Worth Police Station. The detective weighed the substance believed to be marijuana and determined that it weighed less than 20 grams. The substance was field tested and the test showed that it was, in fact, marijuana. 1/ On August 29, 1983, W. Paul LaChance, a schools board investigator, met with respondent and Principal Cantley. Because respondent spoke and understood little English, Carmen Chereza, an Hispanic native and substitute teacher at Lake Worth High School, was asked to interpret. Ms. Chereza translated Mr. LaChance's questions into Spanish and directed them to respondent. When he answered the questions, she repeated his answer in Spanish. If he agreed that it was correct, she translated it into English for Mr. LaChance and Principal Cantley. Respondent indicated that, sometime after midnight on August 10, 1983, he left work at Lake Worth High School. He approached his vehicle in the school parking lot and saw a small bag on the ground containing what he thought was marijuana. He picked it up and hid it in his car -intending to use it later. A few minutes later, Detective Auwaerter arrested him for possession of marijuana and took him to the Lake Worth Police Department. Respondent is familiar with marijuana and testified, at hearing, that he believed the substance in the bag to be marijuana. If a student is caught in possession of illicit drugs on school grounds, disciplinary action is taken. This rule should apply, with equal firmness, to employees of the school system. Due to the prior warning he received in May, 1983, respondent understood that if he was caught with marijuana on the school campus he would be recommended for termination.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be terminated from his employment for misconduct in office. DONE and ENTERED this percent percentay of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 day of May, 1984.
The Issue Whether there is just cause to suspend Respondent, George Young (Respondent), as alleged in the letter of the superintendent of schools dated June 9, 2008.
Findings Of Fact Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Indian River County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff. At all times material to the allegations of this case, Respondent, George Young, was an employee of the School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach at Sebastian River High School and served as head baseball coach for the varsity team. For purposes of this case, all acts or omissions complained of were in connection with Respondent’s responsibilities as a baseball coach. By way of background, the allegations of this case evolved from an underlying incident that must be disclosed in order to put the proper perspective on Respondent’s role and responsibility in connection with the allegations. During March of 2008, Respondent scheduled his team to participate in a baseball tournament held in Broward County, Florida. The tournament location and schedule made it convenient for the team to remain near the site for one night of the tournament. This was not the first over-night venture for Respondent and the teams he coached. Prior to tournaments it was Respondent’s policy to instruct the team that they were representatives of the school. Respondent encouraged the students to refrain from horseplay, roughhousing, or misbehavior that could discredit them or the school. In short, the team members were to conduct themselves as gentlemen. Nevertheless, some of the students did engage in poor conduct. More specifically, several of the players began to wrestle in one of the hotel rooms. Some unspecified number of the players turned on their teammate, H.C. Without Respondent’s knowledge or consent, the players wrestled H.C. (the victim) to a bed, pulled down his pants, and placed a plastic soda bottle at or near his rectum. It is unknown whether the bottle actually penetrated the victim, but the fact that an assault was perpetrated by the student players is certain. After the assault, the victim escaped the room and fled to another hotel room. Several team players observed the victim to be quite upset. Moreover, at least one player believed that the student was so upset he was crying. Word spread among some of the players that something bad had happened to the victim. The details of the assault were not general knowledge. At least two adults who accompanied the team on the trip were also made aware that something untoward had occurred to the victim. At least one of the parents told Respondent that night that something had occurred. No specifics of the incident were disclosed to Respondent. He knew, however, that wrestling had occurred and that someone was upset. Respondent made no effort to personally discover what had happened to the victim that night. Presumably, he chalked it up as adolescent roughhousing. The next morning Respondent called a team meeting before the team left the hotel. It was his custom to speak to the team before checkout but on this morning he had the additional task of attempting to find out what had occurred the night before. Not surprisingly, no one disclosed the full details of the assault. From the hotel the team went on to a meal and played in the tournament. Respondent did not pursue further inquiry into the assault. Respondent did not question anyone individually regarding the events. Approximately one week later the victim's parents heard about the assault. A parent telephoned them to share information that something had occurred on the tournament trip. They were stunned and surprised to learn of the incident. They questioned their sons (both of whom were on the tournament trip) and decided something needed to be done to punish the students who committed the assault. To that end, they went to Respondent's home and asked him about the incident. Respondent was surprised to learn of the details of the assault and represented that something would be done to appropriately discipline the perpetrators of the deed. The weight of the credible evidence supports the finding that on the night of the parents' visit to Respondent's home, Respondent knew that the victim had been wrestled to the bed, had had his pants pulled down exposing his buttocks, and that a bottle may have been involved at or near the student's rectum. The bottle portion of the assault was stated as a possibility as the victim's parents at that time had not confirmed whether or not the bottle was used or merely threatened. Nevertheless, when Respondent reported the incident the next day to the athletic director, the possibility of a bottle being involved in the assault was omitted. Since Respondent did not disclose the full details of the assault, including the fact that a bottle may have been involved, to the athletic director, the punishment initially to be administered to the student perpetrators did not satisfy the victim's parents when they learned what would be imposed. Instead, they demanded that more harsh consequences befall the students who were involved in the assault. Their report of the incident conflicted with Respondent's story to the athletic director. It soon became clear that while the parents may have been willing to spare their son the embarrassment of the bottle portion of the story when they believed the penalty imposed against his attackers would be great, they were not going to let the perpetrators skate by on the penalty initially chosen. Thus Respondent's willingness to leave out the bottle portion of the assault became critical to the matter. In fact, the omission of the bottle portion of the incident became the key allegation against Respondent. The superintendent's letter setting forth the allegation against Respondent stated, in part: On April 8, 2008, you told Athletic Director, Michael Stutzke, that an incident occurred during an out of town baseball tournament that involved wrestling with someone's pants being pulled down. When you made that statement you knew that was not the complete story, because the night before, you met with a student's parents who told you their son's (the victim) pants were taken down and a bottle put near his rectum during the course of this incident. This is the same incident you described to Mr. Stutzke as mere wrestling and someone's pants pulled down. The credible weight of the evidence supports the finding that Respondent knew he had not given Mr. Stutzke the complete story of the incident. Although Respondent at that time may not have known for a fact that a bottle was used in the commission of the assault, he knew that the rumor of the bottle's use was in question. An investigation of the matter would have proved or disproved the bottle portion of the story. Respondent did not, however, reveal that portion of the allegations to school authorities. Although Respondent may have entertained the misguided notion that he was protecting the victim from embarrassment by not disclosing the full details of the assault, his failure to make school officials aware of the incident and the potential allegation of the bottle demonstrates a failure to fully and honestly conduct himself professionally. Respondent has enjoyed a long, successful, and popular run as a baseball coach in the district. At the end of the day, however, responsibility for the safety and well-being of his team rested with him. That job is unrelated to the success of the team or their desire to play in tournaments. Moreover, school authorities must be able to rely on a coach's veracity to completely and accurately report any incident that may occur during a school-sanctioned event. The stipulated facts of the parties provided: On March 31, 2008, George Young was the head coach for the Sebastian River High School Varsity Baseball team. On March 31, 2008, the Sebastian River High School Varsity Baseball team attended a baseball game in Plantation, Florida. Kevin Browning, Director of Human Resources, investigated allegations of an incident that occurred on March 31, 2008 involving the baseball team. Browning released his Report and Recommendation on June 26, 2008. Young was given a three day suspension, which is the subject of the appeal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a Final Order sustaining the suspension of Respondent and denying his claim for salary reimbursement. DONE AND ENTERED this 29th day of July, 2009, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2009. COPIES FURNISHED: Mark Wilensky, Esquire Dubiner & Wilensky, P.A. 515 North Flagler Drive, Suite 325 West Palm Beach, Florida 33401-4349 Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Harry J. La Cava, Ed.D Superintendent Indian River County School Board 1900 25th Street Vero Beach, Florida 32960-3150
The Issue The issue in this case is whether the school Board of Pinellas County (Petitioner) should dismiss its employee, Clarence Davis (Respondent), from continuing contract for misconduct in office and gross insubordination based upon matters alleged in the Superintendent's letters of March 13 and April 24, 1989.
Findings Of Fact Respondent holds a teaching certificate from the State of Florida, and has been employed by continuing contract with the Petitioner since April 21, 1971. In 1986, he was assigned to Azalea Middle School, where he has since been employed. The parties stipulated that during a prior assignment at Riviera Middle School, the principal of that school had warned Respondent to refrain from aggressively touching students. During April, 1986, Dr. Scott N. Rose, Superintendent of the Pinellas County school system, removed Respondent from a counseling assignment at Pinellas Park Middle school, and transferred him to Azalea Park Middle school as a physical education teacher. The Superintendent issued a warning at the time of this transfer that he would recommend a suspension without pay or termination if Respondent's future actions at Azalea Middle school constituted insubordination. During the 1987-1988 school year, Respondent was assigned to a guidance counselor position at Azalea Middle School, but he again had to be removed by the Superintendent. He was warned again that future problems would result in a suspension without pay or a termination. John Leanes became principal of Azalea Middle School in January, 1988, and in October, 1988, he warned Respondent to avoid touching students. In December, 1988, senior administrative officials and representatives of the Petitioner met with the Respondent, and warned him not to touch students. They told him that if he could not meet the standards and expectations of the Petitioner for teachers in the Pinellas County school system, he would be recommended for termination of his continuing contract. The Code of Student Conduct in effect in the Pinellas County school system at all times material hereto provides, in part, that: No form of physical punishment, other that paddling with a paddle is authorized. Corporal punishment may be used only after careful consideration of the facts by the principal, or designee. In no case shall such punishment be degrading or unduly severe in nature. Around the time of the winter holiday during the 1988-1989 school year, Respondent became involved in an incident with a twelve year old female student named M.S. The student was not feeling well, and did not dress out for physical education class. She was lying down in the bleachers. Respondent yelled at M.S. to come down from the bleachers when he observed her talking to other students at the top of the bleachers. When she complied and approached him, he appeared to the student to be very angry, and threatening. He yelled at her so closely that saliva from his mouth struck her in the face. After yelling at her, he pushed M.S. with both hands, throwing her back onto the bleachers. This incident caused the student, M.S., to be frightened and intimidated by the Respondent. Other students observed the incident, and confirmed the testimony of M.S. at hearing. Respondent's actions in this incident reasonably caused M.S. to feel embarrassment, fear, and the threat of physical punishment. On or about March 7, 1989, Respondent yelled at a male student, J.S., and pushed him in the chest with his finger while yelling at him. It appeared to the student that Respondent was trying to provoke him into a physical confrontation. Respondent testified that he was trying to protect another student, K.W., whom he felt was being bullied by J.S. However, K.W. testified that J.S. was not bullying him on this day, and that he and J.S. are friends. Other students witnessed the incident, which reasonably caused the student, J.S., embarrassment, and fear. It is alleged that on March 8, 1989, Respondent also grabbed a student, R.L., by the shoulders, shook him, and yelled at him. R.L. is classified as an emotionally handicapped student, who has been suspended. Students who testified characterized R.L. as someone who talks alot, says bad things about, and fights with, other students, and is generally a trouble maker. Based upon his demeanor at hearing, as well as the testimony of other students about his character, it is found that the testimony of R.L. is not credible. It is reasonable to infer that R.L. heard about the incident the day before with J.S. and the Respondent, and fabricated his allegations to gain attention. Based upon the testimony of Dr. Scott N. Rose and John Leanes, who were accepted as experts in education, as well as the testimony of Stephen Crosby, director of personnel services for Petitioner, incidents such as those between the Respondent and M.S. and J.S. diminish a teacher's effectiveness by creating an improper role model, teaching students that violence is a way to resolve disputes, frightening students, and causing them to be afraid of school and teachers. This creates a negative educational atmosphere, and could potentially increase the school system's liability. In November and December, 1988, the Respondent was suspended without pay on two occasions based upon allegations similar to the ones at issue in this case. The period of these suspensions was three and five days, respectively. The Respondent requested an administrative hearing concerning these suspensions, and following that hearing, Hearing Officer Don W. Davis issued a Recommended Order on April 21, 1989, in DOAH Cases Numbered 88-5720 and 89-0344, recommending that the proposed suspensions be dismissed. A Final Order in this prior case has not yet been entered by the Petitioner.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order dismissing Respondent from continuing contract with the Pinellas County school system. DONE AND ENTERED this 14th day of June, 1989 in Tallahassee, Florida. DONALD D. CONN 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 14th day of June, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1546 Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding 1. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 4. Rejected as irrelevant. 7-8. Adopted in Finding 11. 9-12. Adopted in Finding 5. Rejected as not a finding of fact but a conclusion of law. Adopted in Finding 6. 15-19. Adopted in Finding 7. 20-24. Adopted in Finding 8. 25-28. Rejected and adopted in part in Finding 9. Adopted in Finding 10. Rejected as not based on competent substantial evidence. The Respondent did not file specific Proposed Findings of Fact, but incorporated argument in a proposed recommended order. Therefore, it is not possible to address specific findings of fact on behalf of the Respondent. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Lawrence D. Black, Esquire 152 Eighth Avenue, Southwest Largo, Florida 34640 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Respondent's state teaching certificate should be suspended or revoked pursuant to Chapter 231, , Florida Statutes, asset forth in Petition, dated May 21, 1979. This is an administrative proceeding whereby the Petitioner seeks to take adverse action concerning the teaching certificate of the Respondent based on two counts of misconduct arising from the teacher/pupil relationship. The first count alleges that the Respondent had sexual intercourse with a seventh grade student on one or more occasions during the 1972 school year. The other alleges that during the 1978 school year, the Respondent kissed a female student on the lips on one or more occasion. The Petitioner herein was filed pursuant to directions of the State Commissioner of Education who, on May 18, 1979, found probable cause to justify disciplinary action under the provisions of Section 231.28, Florida Statutes. Respondent requested an administrative hearing by his answer to the Petition, dated June 20, 1979.
Findings Of Fact Respondent holds Florida Teaching Certificate No. 157255, Graduate, Rank II, valid through June 30, 1989, covering the areas of English elementary education, and junior college. He received a Maser's Degree in education from South Carolina State College in 1969, and obtained Florida teaching certification in August, 1969. At the time of the incidents alleged in the Petitioner, Respondent was employed as a teacher in the public schools of Orange County. (Testimony of Respondent, case pleadings) During the 1971-72 school year, Respondent was a sixth grade teacher at the Grand Avenue Elementary School, Orlando, Florida. At some undisclosed time subsequent to the end of the school year, an Information was filed against Respondent by the State Attorney, Ninth Judicial Circuit of Florida, as a result of allegations that he had engaged in sexual intercourse with one of his twelve- year-old female students in 1972. The case was thereafter nolle prossed by the State Attorney for insufficient evidence. (Testimony of Nagel, Bailey) The alleged victim, Harriett Moten, testified at the hearing that on a number of occasions during the period January or February through May, 1972, while a twelve-year-old student in Respondent's sixth grade class, Respondent had sexual intercourse with her in a storage area behind the stage of the school auditorium. She testified that such incidents occurred approximately twice a week at about 11:00 A.M. during a class period. At those times, Respondent allegedly sent her out of class on an errand, such as obtaining film, and then joined her in the backstage area. She stated that these encounters would consume approximately 20 or 25 minutes by the time she returned to class, and the Respondent came back to class a short time later. Although music classes were conducted in the auditorium practically every day of the school week during the times in question, Moten testified that she never saw the auditorium in use or heard music while she was behind the stage. She stated that she submitted to Respondent's advances because she was afraid of him. She further testified that on one occasion Respondent had brought another female student to the rear of the stage who observed his activities with her. The deposition testimony of another former student, Thomas Grier, was admitted in evidence wherein he testified that he had once observed Respondent lying on top of the student who supposedly had once witnessed Respondent and Moten behind the stage. This incident also allegedly took place behind the auditorium after a music class. He further testified that he had observed Respondent enter the classroom on a number of occasions with one or the other of the tow female students. The witness was deposed at Zephyrhills Corrections Institute, Zephyrhills, Florida, where he was incarcerated for possession of a firearm. It was his third conviction of a felony. Harriet Moten testified that she gave birth to a child in January 1973. Although her blood type and that of Respondent is 0, she was informed by an Assistant State Attorney that her child's blood type was A. She had been a failing student during her sixth grade year and had been paddled a number of times by Respondent for disciplinary reasons. She informed her mother of Respondent's actions in the summer of 1972 when she experienced irregular menstrual periods and was found to be pregnant after her mother took her to a physician. She had not informed her mother earlier concerning the matter because they did not get along with each other. She claimed that she had not had sexual relations with anyone other than Respondent. Respondent denied the allegations at the hearing and said that, although the student had been one of his "problem children" whom he had to discipline on occasion, she had appeared to like him and was the only student who had brought him a Christmas present in 1971. From the foregoing, it is considered that the improbable and uncorroborated testimony of Harriet Moten, when viewed against Respondent's unequivocal denial of the allegations, is insufficient upon which to predicate a finding that Respondent had sexual intercourse with the student, as alleged in the complaint. The deposition testimony of Grier which, in part, supports the allegations, is not deemed credible. (Testimony of Moten, Grier (deposition, Petitioner's Exhibit 3), Respondent, Petitioner's Exhibit 5, Respondent's Exhibits 1, 2, 5). During the 1978-79 school year, Respondent taught sixth grade at the Cypress Park Elementary School, Orlando, Florida. On November 20, 1978, one of his students, Patricia Foster, accompanied by another member of her class, Lola Ortega, reported to the school principal that in the preceding October, Respondent had kissed her in the classroom during a-recess period when no one else was present. Lola told the principal that she had opened the classroom door at the time and observed the incident. The principal reported the matter to a school board Area Administrator who interviewed the two girls on the following day. Patricia told this official that Respondent had kissed her twice on the lips during the recess period and that, after the first kiss, he had said he "didn't mean it." Patricia said that on the second occasion, she looked up and saw Lola open the door and then close it. She further stated that she had not told her parents of the incident because her stepfather would have become angry, and that she had not told the principal earlier because she didn't want to get Respondent in trouble. Lola told the Area Administrator that she had opened the door to the classroom and observed Respondent stoop over and kiss Patty on the lips, at which time she closed the door and returned to the playground. At the hearing, Patricia testified that Lola had opened the door when Respondent kissed her the first time. Lola testified that at the time she opened the classroom door, Respondent had his back toward her and that she only saw him bend over the desk. She conceded that she had not seen Respondent actually kiss Patricia and denied that she had told anyone that she had. However, upon further inquiry, she admitted telling the principal that she had seen Respondent kiss the student and could not explain why she had done so. Patricia later told one of her classmates at a "slumber party" about the incident. That girl, Michelle Cridelle, testified that she thought Patricia had told her Respondent had kissed her twice on different days. Respondent had disciplinary problems with Lola during the previous school year and at the beginning of the 1978-79 school year. Also, on a prior occasion, she and another female student had fabricated a letter purportedly written by a male student to them containing coarse language which she admitted was designed to get the boy in trouble when it was delivered to her father. In another instance, Patricia and Lola had been untruthful in telling Patricia's mother where they had been on one occasion. Lola had been a frequent disciplinary problem for the school principal who considered her to be a leader and catalyst in creating problems at school. Respondent testified that, on the day of the alleged kissing incident, another student was in the classroom with Patricia during the recess period, and that he had simply gone to her desk and colored some leaves on a box. He denied kissing her on this or any other occasion. The school principal is of the opinion that Respondent is a very truthful individual. It is considered that the improbable, contradictory, and uncorroborated testimony of Patricia concerning the alleged kissing incident, coupled with Respondent's denial of the same, is insufficient upon which to base a finding that Respondent committed the acts alleged in the Petition. (Testimony of Foster, Richardson, Ortega, Cridelle, Cossairt, Taylor, Brady, Respondent, Petitioner's Exhibit 1). Respondent was relieved of his duties as a classroom teacher by the Superintendent of Orange County Public Schools on November 28, 1978, and reassigned to an Assistant Superintendent's office to perform administrative duties pending investigation of the 1978 allegations by Petitioner. He had been supervised by the principal of the Cypress Park Elementary School for a period of six years. The principal testified that the other teachers respected him, but that he should not be working with children due to his abrasive personality with students. During the three year period 1976-78, Respondent's performance evaluations were uniformly "Satisfactory," except in those areas reflecting his relations with students and parents, and in his support of "state laws and county policies." It was noted in the 1977 and 1978 evaluations that improvement was needed in those areas. Narrative comments of the evaluations further indicated his lack of rapport with students and parents, lack of support of corporal punishment practices, and his ridicule of students. One fellow teacher at Cypress Park Elementary School submitted a letter to Petitioner in January, 1978, stating that Respondent had always conducted himself properly with students and parents on the occasions when she had observed him at the school and during school functions. (Testimony of Cossairt, Petitioner's Exhibit 2, Respondent's Exhibit 3, supplemented by Respondent's Exhibit 4).
Recommendation That the charges against Respondent Isadore Smith be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of February, 1980. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 Edward R. Kirkland, Esquire 126 East Jefferson Street Orlando, Florida 32801 Professional Practices Council 319 West Madison Street - Room 1 Tallahassee, Florida 32301
Findings Of Fact The Parties. Petitioner, Frank T. Brogan, as Commissioner of Education, is authorized to file and prosecute formal complaints against persons holding teaching certificates in the State of Florida. Respondent, Lee Christine Gaul, is certified to teach in Florida. Ms. Gaul holds Florida Educator's Certificate 716132. The certificate authorizes Ms. Gaul to teach in the area of history and is valid through June 30, 1997. Ms. Gaul's Employment as a Teacher. Ms. Gaul is currently employed as a teacher at Belle Vue Middle School (hereinafter referred to as "Belle Vue"), in Tallahassee, Leon County, Florida. Laura Hassler, Ph.D., is the principal of Belle Vue. Ms. Gaul has been employed continuously as a teacher at Belle Vue since 1993. Ms. Gaul is responsible for some of the most difficult and troubled students at Belle Vue. Ms. Gaul's students are all students that have been unable to function in other classes. None of the students which Ms. Gaul is responsible for in her position as a teacher at Belle Vue were involved in any way in the incident which is the subject of this proceeding. Leon Crew Boosters, Inc.. Leon Crew Boosters, Inc. (hereinafter referred to as "Leon Crew"), is a not-for-profit corporation. Leon Crew is exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code. Leon Crew was created in 1992. As a corporation, Leon Crew operates through its board of directors, officers and committees. The purpose of Leon Crew is to provide an opportunity for high school students to participate in the sport of rowing or "crewing". To date, only students at Leon High School have participated in Leon Crew. The Board of Directors has considered allowing students from other schools to participate in Leon Crew. To date, however, students from other schools have not been allowed to participate so that the crews could participate in state high school championships. Approximately 80 to 100 students participate in Leon Crew activities. Several boats are manned by several crews. Leon Crew provides all equipment needed for crew members. Leon Crew owns all boats, trailers and other equipment utilized by crews. All funding for Leon Crew comes from its supporters and members. Leon Crew receives no public funding from any source, including Leon High School or the Leon County School Board. Leon Crew and the crews are not members of, or directly regulated by, the entity that regulates publicly funded high school sports programs in Florida, the Florida High School Activities Association. Coaches for the crews are interviewed and hired by Leon Crew. Coaches need not be certified to teach. Leon Crew is responsible for the payment of any salary paid to coaches. Leon High School officials do not participate in the process of hiring or firing coaches. Nor does Leon High School contribute to the salary of any coach. Although Leon Crew does not practice on the grounds of Leon High School (there is no water available), they are allowed to utilize Leon High School facilities. Leon Crew members are featured in the Leon High School student yearbook. Leon Crew teams are allowed to use the name "Leon" and to participate as "school" crews at state championships. Although Leon Crew is a separate corporation over which Leon High School has no legal authority, the relationship of Leon Crew and Leon High School requires mutual agreement of Marvin Henderson, the principal of Leon High School, and the Board of Directors of Leon Crew to continue operating in the manner they have been operating. Without mutual agreement and cooperation, Mr. Henderson could limit Leon Crew's association with Leon High School. For example, Mr. Henderson could eliminate Leon Crew from the yearbook, prohibit use of school facilities, not allow the use of the school's name and not authorize students to travel to regattas. On the other hand, without Mr. Henderson's cooperation, Leon Crew could disassociate itself from Leon High School. Ms. Gaul's Association with Leon Crew. In 1992, Ms. Gaul was interviewed and hired by Leon Crew as the coach of the men's and women's crew teams. She initially served without pay as a volunteer coach. Ms. Gaul was the first coach hired by Leon Crew. Ms. Gaul, who was living in Jacksonville, Florida when hired, moved to Tallahassee. She worked at a stock brokerage firm until her employment at Belle Vue. At not time has Ms. Gaul been employed by Leon High School. Nor has she been associated with Leon High School except through Leon Crew. Ms. Gaul is not evaluated as a teacher or coach by Leon High School. Ms. Gaul did not answer directly to Mr. Henderson. Mr. Henderson's authority over Ms. Gaul was not based upon a teacher-principal relationship. It was based upon the cooperative association of Leon High School and Leon Crew. As coach, Ms. Gaul has established rules of behavior which crew members are required to follow in order to continue to participate in Leon Crew. Ms. Gaul has imposed discipline to members of crews that have violated those rules. The Sunday, May 22, 1994 Incident. At the end of the crew season and the state championships in the Spring of 1994, a few of the better boat crews traveled to Atlanta, Georgia to participate in a crewing event known as the "Southeast Regionals". One of the students who attended the Southeast Regionals, T. C., planned to have a party at her home upon the return to Tallahassee of the students that had travelled to Atlanta. The party was to be held upon the students' return on Saturday evening, May 21, 1994 and Sunday morning, May 22, 1994. T. C. had obtained permission from her parents for the party. T. C.'s parents were not to be home during the party. An adult house sitter was to be at the home, however. T. C. had invited some of the crew members who participated in the Southeast Regionals to attend the party. At some time on Saturday, May 21, 1994, before leaving Atlanta, T. C. and some of the other crew members invited Ms. Gaul to attend the party. Ms. Gaul agreed. The crew members returned from Atlanta on Saturday evening, May 22, 1994, in several vans. Those crew members that attended the party drove directly to T. C.'s house. Ms. Gaul was in the last van to arrive at the party. Ms. Gaul arrived at approximately 2:00 a.m., Sunday, May 22, 1994. Most of the individuals attending the party were already at T. C.'s house. There were approximately 20 to 25 people in attendance at the party, some of whom were crew members and students at Leon High School. T. C.'s older brother, D. C., and some of his friends were also in attendance. D. C. and his friends were not associated with Leon Crew. The evidence failed to prove the ages of most of the participants. D.C. and his friends and the members of the crew in attendance were, however, high school students. Most of the crew members in attendance were juniors and seniors in high school. T. C., however, was 14 years of age at the time of the party. The party was not a school or Leon Crew official function. Ms. Gaul did not have supervisory authority over all of the students in attendance at the party. Some of the Leon Crew members in attendance had completed their participation in Leon Crew. Ms. Gaul could, however, have attempted to control the activities of the Leon Crew members who were not graduating. She had established strict rules for all crew members concerning the behavior of crew members and the consumption of alcohol and tobacco. On one trip, two students were caught shoplifting. They were immediately sent home by Ms. Gaul. The adult house sitter was also present and Robbie Drew, the mother of a crew member, was also present in the house. Beer and liquor was available at the party before and after the crew members arrived. It had been planned from the beginning by at least some of the participants of the party that beer and liquor would be available. Some, but not all, students in attendance at the party, including some crew members, consumed beer and liquor both before and after Ms. Gaul arrived. The evidence failed to prove how much beer and liquor was consumed or the number of students or crew members that consumed beer and/or liquor. Upon arriving at T. C.'s home, Ms. Gaul confirmed with the adult house sitter that T. C.'s parents had authorized the party. At some point after her arrival, Ms. Gaul noticed that some students, including crew members, were consuming beer and liquor. Ms. Gaul did not make any effort to prevent the students from drinking. Nor did she leave the party. It had been arranged by some of the students for additional beer to be brought to the party. Those plans fell through, however, sometime after Ms. Gaul arrived. Some of the students began taking up a collection of money to go purchase more beer. Some of the students believed that they would have been able to obtain additional beer that evening. Ms. Gaul overheard two of the students discussing their plan to go purchase more beer. Ms. Gaul was concerned about the students leaving the house to purchase beer because the house at which the party was held was a considerable distance from the nearest store, the road to the nearest store was dark and winding and she knew some of the students had been drinking. Ms. Gaul had doubts as to whether she could stop the students from going to purchase more beer. Therefore, rather than attempt to stop them, Ms. Gaul decided that she would drive to the store and purchase the beer herself. This decision was made at least in part because she believed that the students had the means to purchase the beer regardless of what she did. Because of her concern over students leaving the house who had been drinking, Ms. Gaul got the students to agree that no one would leave the party that evening if she went and purchased the beer for them. Ms. Gaul drove to a store to purchase the beer. J.E.G., a female crew member, and L.A.G., another female crew member, accompanied Ms. Gaul. Ms. Gaul purchased one and one-half to two cases of beer, which she brought back to the party. Some, but not all, of the participants at the party consumed the beer. For the first time that evening, Ms. Gaul also consumed at least one can of beer after returning from the store. Ms. Gaul spent most of the time in a room away from where the students were located. Students did, however, walk through the room where Ms. Gaul was located and where she consumed beer. Ms. Gaul felt a need to "keep a lid on the party" and to ensure that none of the participants left T. C.'s house until morning because she did not want anyone who had been drinking to drive. Throughout the evening, the participants at the party were well- behaved. At no time did the party get too loud or otherwise get out of hand. Ms. Gaul's presence at the party contributed to this fact. No one, including Ms. Gaul, left T. C.'s house until after daybreak, Sunday morning. Ms. Gaul's Actions Immediately After the Incident. After daybreak, Ms. Gaul began to reflect on her actions during the party. She realized that she had made an error in judgement by purchasing beer for the participants of the party, especially the crew members, for letting crew members drink alcohol and for drinking in their presence. On Monday morning, May 23, 1994, Ms. Gaul arranged to meet with the members of the crew teams that had attended the party at T. C.'s. She met with them at Leon High School immediately before classes began that morning. Ms. Gaul told the students that what she had done, purchasing the beer, allowing them to drink beer, and drinking in their presence had been wrong. Ms. Gaul told them that she did not want them to get the wrong message: [w]hile they were young, they might not see that what I had done was wrong. They might have gone so far to think that it was cool, but it was not. That I had done them a huge disservice. And whether they figured it out then or later, that I had hurt them, and that I was sorry. Transcript, Page 166, Lines 12-17. Approximately one and one-half weeks later, on June 3, 1994, Ms. Gaul reported the incident of May 22, 1994, to her supervisor at Belle Vue, Dr. Hassler. Ms. Gaul submitted her resignation as a teacher at Belle Vue to Dr. Hassler. Dr. Hassler, who had a child on a Leon Crew team at the time, decided to not accept the resignation at that time so that the incident could be investigated further. The incident was reported to Marvin Henderson, the principal of Leon High School, by Dr. Hassler. Ms. Gaul met with Mr. Henderson and admitted her errors in judgement. Ms. Gaul also reported the incident to the Board of Directors of Leon Crew at a regularly scheduled meeting on June 6, 1994. Ms. Gaul offered her resignation as crew coach at that meeting. Ms. Gaul admitted that she had made a mistake, took responsibility for her actions and apologized for her conduct. Sanctions Imposed on Ms. Gaul. Dr. Hassler ultimately declined to accept the resignation offered by Ms. Gaul. On or about September 14, 1994, Dr. Hassler did, however, issue a letter of reprimand to Ms. Gaul. Dr. Hassler cited the attendance by Ms. Gaul at the party where alcohol was consumed by Ms. Gaul and minor-students and Ms. Gaul's purchase of beer for consumption by minors as the reason for the reprimand. Initially, after being informed of the incident on June 6, 1994, the Leon Crew Board of Directors accepted Ms. Gaul's resignation. They did so without further investigation. In August of 1994, after further investigation and consideration of all of the events and circumstance surrounding the incident, the Board of Directors of Leon Crew reinstated Ms. Gaul as coach. On or about September 29, 1994, Mr. Henderson issued a letter of reprimand to Ms. Gaul. Mr. Henderson discussed the discipline outlined in the letter with the Board of Directors of Leon Crew. The Board of Directors concurred with Mr. Henderson's decision. The letter of reprimand from Mr. Henderson restricted Ms. Gaul's activities as coach of Leon Crew during the 1994-1995 school year, including the following: Because of the severe nature of this incident, the following consequences are imposed: (1) Probation for a period of seven months; it is understood that during this period, you are to have no contact with members of the team for socialization purposes. (2) A sixty day suspension; (during the first thirty days, you are permitted to work with team members as long as you are accompanied by at least one other Crew coach. During the second thirty days, no contact with Crew Team members shall be permitted.) This arrangement is allowed because of your value to the Crew Team's workout schedule and in the interest of safety. (3) At the end of the school year, an assessment of your position with Crew will be made to determine your continued involvement with Leon High School and the Leon Crew Team. The discipline imposed on Ms. Gaul through Mr. Henderson's letter of September 29, 1994, was modified on or about October 31, 1994. In particular, Ms. Gaul was allowed to associate with crew members through November 21, 1994 and then the thirty day period of disassociation was to begin. This modification was suggested by Leon Boosters in the interest of crew members. Ms. Gaul did not contest any of the actions taken by Dr. Hassler, Mr. Henderson or the Board of Directors of Leon Crew. She accepted the discipline proposed by all of them. Ms. Gaul completed the suspension and the probation period imposed on her. The Impact of the Incident on Ms. Gaul's Ability to Teach. Two of Ms. Gaul's fellow teachers and her principal, Dr. Hassler, uniformly testified that Ms. Gaul has evidenced exemplary ability as a teacher. According to Dr. Hassler, Ms. Gaul is an extremely important and valuable member of the teaching staff of Belle Vue and contributes greatly to the welfare of her students. Dr. Hassler described Ms. Gaul as "one of the most outstanding teachers I have ever had the opportunity to work with." Transcript, Page 53, Lines 8 and 9. The evidence in this case failed to prove that the incident of May 22, 1994, has impaired in anyway Ms. Gaul's ability to carry out her responsibilities as a teacher. In fact, the incident has matured Ms. Gaul and improved her ability as a teacher. Since the incident, she has continued to carry out her duties at Belle Vue in an exemplary fashion. She has been evaluated once since the incident and received a very high evaluation from Dr. Hassler. The evidence also failed to prove that the incident has had any negative impact on participants of Leon Crew. Again, the incident matured Ms. Gaul and improved her ability to act as one of the coaches of Leon Crew. Ms. Gaul has continued to function as a coach of Leon Crew in an effective manner and without any impairment. All the students who participated in crew after the incident and the parents of students who are participating in crew who testified in the hearing of this case spoke highly of Ms. Gaul and her ability to effectively act as a coach. The incident of May 22, 1994 was an isolated incident of failing to exercise good judgement on Ms. Gaul's part. The parents of students involved in Leon Crew who testified at the hearing of this matter and all other witnesses who testified indicated their belief that Ms. Gaul is of high moral character, an outstanding role model and an excellent teacher. The evidence also failed to prove that Ms. Gaul's conduct was sufficiently notorious to bring her or the educational profession into public disgrace or disrespect. Only those immediately involved in the incident, her immediate supervisors (her principal, Leon High School's principal and Leon Crew's Board of Directors) and two teachers at Belle Vue were aware of the incident. The incident was not, however, known among the parents and the general teacher population at Belle Vue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission dismissing the portion of the Administrative Complaint charging Lee Christine Gaul with a violation of Section 231.28(1)(c), Florida Statutes. It is further RECOMMENDED that the Education Practices Commission find Lee Christine Gaul to have violated Section 231.28(1)(i), Florida Statutes. It is further RECOMMENDED that Lee Christine Gaul be placed on probation for a period of two (2) years and that she be issued a letter of reprimand. As a condition of her probation, Ms. Gaul should be required to attend appropriate courses dealing with the harm of alcohol on minors. DONE AND ENTERED this 26th day of February, 1996, in Tallahassee Florida. LARRY J. SARTIN, 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 26th day of February, 1996. APPENDIX Case Number 95-4047 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact 1 Accepted in 2. 2 Accepted in 8, 10, 15 and 17. 3 Accepted in 12. 4 Accepted in 22. 5 Accepted in 5. 6 Accepted in 36 and hereby accepted. 7 See 27. 8 Accepted in 31-32. 9 Accepted in 33. Accepted in 37. Accepted in 34-35. Accepted in 38. Accepted in 38 and 41. The evidence failed to prove what a "Jello shooter" is. Accepted in 42-44. 15 See 36 and 44-46. Accepted in 47-48. Accepted in 45 and 49. Accepted in 52 and hereby accepted. The testimony concerning whether the competency applies to students in teh classroom and out involves and conclusion of law and is rejected as such. Accepted in 53. Accepted in 4 and 55. Accepted in 54. Accepted in 55. Accepted in 57. Accepted in 60. Accepted in 58. The last sentence is irrelevant and ignores Dr. Hassler's explanation of why she made the statement. 26-27 See 21. The last sentence is not supported by the weight of the evidence. 28 Accepted in 61. 29 Accepted in 62. 30 Accepted in 63. 31 Accepted in 39, 41, 45 and 47-48. 32 Accepted in 41. 33 See 26, 36 and 45. 34-35 Argument. Hereby accepted. Not supported by the weight of the evidence. Accepted in 41. The last two sentences are not supported by the weight of the evidence. Accepted in 65-71. While Ms. Gaul has admitted a lapse in judgement, the evidence failed to prove that she lacks an "indispensable necessity for her to be entrusted with the education of young people." Not supported by the weight of the evidence. Ms. Gaul's Proposed Findings of Fact Accepted in 8-10. Accepted in 15. Accepted in 17. Accepted in 22 and hereby accepted. Accepted in 14. See 18. Accepted in 16. Accepted in 11-12. Accepted in 22-23. Accepted in 4-5 and 24. Accepted in 24 and hereby accepted. Accepted in See 21. 13 See 27-51. Accepted in 27. Accepted in 28. Accepted in 29. Accepted in 31 and 37. Accepted in 34 and 37. Accepted in 33. Accepted in 40. Accepted in 37. Accepted in 41. Accepted in 39. Accepted in 28 and hereby accepted. Accepted in 13. Accepted in 42-43. 27-28 Accepted in 44-45. 29-30 Accepted in 45. 31 Accepted in 48. 32-33 Accepted in 47. 34-35 Accepted in 50. 36-37 Hereby accepted. Accepted in 43. Accepted in 52. See 53. Hereby accepted. Accepted in 57. Accepted in 57 and 59. Hereby accepted. Accepted in 54. Accepted in 55. Accepted in 60. Accepted in 61-63. Hereby accepted. Accepted in 71. Accepted in 26 and 36. Accepted in 65-71. Accepted in 5-6. Accepted in 65-71. See 72. 56-59 Accepted in 65-71. 60-61 Hereby accepted. COPIES FURNISHED: Ronald G. Stowers, Esquire Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Davisson F. Dunlap, Esquire Post Office Box 10095 Tallahassee, Florida 32302-2095 Karen Barr Wilde, Executive Director Education Practices Commission 325 West Gaines Street Room 224-C Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
