The Issue Whether Respondent engaged in the conduct alleged in the Statement of Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:5 The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in St. Lucie County, Florida, (including, among others, Parkway Elementary School, Woodland Academy, Westwood High School, Centennial High School, and Port St. Lucie High School) and for otherwise providing public instruction to school-aged children in the county. Among the School Board's instructional programs is its Hospitalized/Homebound Services Program (Program), which serves "students who are hospitalized [in St. Lucie County] or [otherwise] not able to come to school for at least three weeks." Instructional services are provided to students in the Program in out-of-school settings within the jurisdictional boundaries of St. Lucie County: at the hospital (if the student is hospitalized6) or at the student's home (if the student is homebound). These services are furnished through certified teachers who go to where the students are confined to provide them with instruction. "[M]ost [but not all] of the teachers . . . providing services in [the Program] are teachers who teach during the course of the [regular school] day . . . at [the School Board's] schools." In addition to receiving their regular salaries, these teachers are compensated at an hourly rate of $17.00 per hour for the time that they spend with the hospitalized or homebound students to whom they are assigned. They are also paid at that same rate ($17.00 per hour) for the time that they spend engaging in hospitalized/homebound "pre-planning" (up to a maximum of one hour per student assignment) and hospitalized/homebound "post-planning" (up to a maximum of one hour per student assignment). During "pre-planning," the hospitalized/homebound teacher (H/H teacher) engages in the preparations necessary for providing instructional services to the hospitalized or homebound student. These preparations include meeting with the guidance counselor and teachers at the student's home school to determine what instruction the student will be receiving and to ascertain the role, if any, the home school will play in the instructional process. "[O]btaining [needed] books and materials and creating [any necessary] lesson plans" are among the other things that an H/H teacher is expected to take care of during his or her "pre-planning" time. "Post-planning" time is for the H/H teacher to complete the "dismissal process," which involves turning in paperwork and "meet[ing] with the secretary in the [P]rogram." In addition to the compensation they receive for the actual contact they have with their assigned students and for their "pre-planning" and "post-planning" time, H/H teachers also get paid ($8.50, or one half of their hourly rate) "for their inconvenience" each time they make a scheduled visit to a student's home to provide instruction and no one is there (which happens infrequently). H/H teachers are to "reinitiate services" following such a student "no show" only "after contact ha[s] been made with the home to be certain that the student w[ill] be present." To get paid, H/H teachers must submit completed Hospitalized/Homebound Service Logs (H/H Service Logs) for each assigned student, documenting the dates and times they spent with the student, as well as their "pre-planning" and "post- planning" time and any student "no shows." On each occasion that they visit with a student, H/H teachers must enter on the H/H Service Log for that student the date and the starting and ending times of the visit7 and obtain (on the "Parent Signature" line next to these entries) the signature of the student's parent or other responsible adult present (as verification that the visit was made as indicated by the teacher). Because "pre-planning," "post-planning," and student "no shows" do not involve actual student contact, there is no requirement that (nor reason for) the H/H teacher to obtain the signature of the student's parent or the parent's surrogate to verify that the teacher's entries on the H/H Service Log of "pre-planning" and "post-planning" time and student "no shows" are accurate. H/H teachers are not compensated for the time that they spend traveling in connection with the discharge of their duties, but they are reimbursed for such travel, on a per trip basis, for their mileage in excess of ten miles. To receive such reimbursement, they must submit a completed Monthly Travel and Request for Reimbursement Form reflecting the dates of travel and, for each trip, "from where to where" they traveled, the trip's purpose, and the total number of miles traveled. The foregoing Program policies are of a long-standing nature and were in effect at all times material to the instant case. H/H teachers report to a Program Specialist, who oversees "the day-to-day operations of the Program." Billy Tomlinson was the Program Specialist from 1989 to 1994. Mr. Tomlinson's successor was Bennet Buckles, Jr., who remained in the position until the beginning of the 1999-2000 school year, when Brenda Washington became the Program Specialist. Ms. Washington was the Program Specialist during the 1999-2000 and 2000-2001 school years. Ms. Washington was replaced by Talecia Jones. Karen Clover is the current Program Specialist. Immediately above the Program Specialist in the chain of command is the School Board's Director of Exceptional Student Education,8 whose immediate supervisor is the School Board's Executive Director of Student Services. The Director of Exceptional Student Education and the Executive Director of Student Services are administrators who have the authority to establish and modify Program policies. Sandra Akre is now, and has been since approximately 1998, the School Board's Director of Exceptional Student Education. Barbara Slaga is now, and has been since 1992, the School Board's Executive Director of Student Services. It is expected that any questions that an H/H teacher has regarding the Program will first be directed to the Program Specialist; however, H/H teachers are free to consult with Ms. Akre and Ms. Slaga, particularly if the teachers are told something by the Program Specialist that "seem[s] to be in conflict with past practice or what they have done before."9 The Program Specialist is a not an administrator, but rather is a "teacher on special assignment" responsible for seeing to it that Program policies are followed. The Program Specialist lacks the authority to permit an H/H teacher to receive compensation for more than one hour of "pre-planning" time per student (the maximum allowed under Program policy), even where "extraordinary circumstances" exist. Such a deviation from Program policy must be approved by an administrator. Among the duties of the Program Specialist is to train H/H teachers. A prerequisite to becoming and remaining an H/H teacher is participating in an annual training session conducted by the Program Specialist. This required training is "typically . . . provided at the beginning of the [school] year" and is "extensive." Each training session lasts "two to two-an-a-half hours [and] all the [Program] procedures and the rules" are covered, including the long-standing Program policies regarding H/H teacher compensation and reimbursement discussed above.10 The Program Specialist uses a training manual to facilitate training. The contents of the manual for H/H teachers are reviewed during training. A copy of the manual is given to each H/H teacher to keep and "use . . . as a reference." Training at the beginning of the 1999-2000 school year was jointly conducted by Ms. Washington, the new Program Specialist, and Mr. Buckles, her predecessor. The following school year, Ms. Washington conducted the training herself, using a new training manual that she had put together (2000-01 Manual or Manual). The 2000-01 Manual contained "more detail" on some subjects than the version it replaced. The following "Hospitalized/Homebound Procedures" were set forth in the 2000-01 Manual: Upon admission to the Hospitalized/Homebound Program, the referral form is generated from the Doctor and submitted to the Homebound office where it will be processed. A staffing will be held to determine eligibility for the program. As prescribed by rule 6A-6.03020(3) the IEP will be developed on an informal basis unless they are enrolled in ESE. If enrolled in ESE, then a school based staffing MUST take place. At this point a teacher will be assigned to provide the educational program. The assignment of the teacher will be determined by the ESE office. The number of hours for the student will be determined on an individual basis. The teacher is responsible for developing the Individual Education Plan as outlined in the flow chart. Our responsibility is for the delivery of subjects that are required in the educational program NOT necessarily the elective subjects. Elective instruction should be correlated between the school and homebound teacher. Elective subjects that are required for graduation will be given consideration.* (*This does not mean that we will not provide instruction in elective subjects.) The guidance counselor must be an active participant in determination of the subjects to be covered. All Hospital[ized]/Homebound teachers must use the Hospital[ized]/Homebound Conference Form. It is the responsibility of all homebound teachers to meet with all of a student's classroom teachers and document how information will be transferred. After the conference a copy must be forwarded to the principal of the school. NEVER leave the school without obtaining a signature on the form from either the guidance counselor or principal. During the conference stress the fact that grades will improve because of one-on- one instruction. If they do not improve someone is not doing something correct[ly]. . . . 12. Assignments are to be returned on a weekly basis with communication reports going to the school along with a copy of the communication report forwarded to the Hospital[ized]/Homebound office. The "Hospital[ized]/Homebound Staff Responsibilities" section of the 2000-01 Manual provided as follows: Upon admission to the Hospital Homebound Program, each student will be assigned to a teacher. The teacher is responsible for: -Attend inservice and workshops as required. -Attend staffings at ESE office or home school as assigned. -Setting up appointments with guidance counselors, teachers and parents. -Completing necessary paperwork, including writing short-term objectives. Contacting home schools to determine courses/concerns as necessary. Act as liaison between subject area teachers and parents when needed; if a concern arises for a student in a particular class or subject area, the subject area teacher should first contact the parent. If the issue is not resolved, the Homebound teacher should be contacted for input. The specialist should be notified following the resolution by the subject area [teacher] and Homebound teacher. -Preparing and maintaining grade sheets. -Scheduling instructional time periods. -Keeping accurate attendance records. -Delivering and returning materials, textbooks, units, or tests. -Filling out FTE individual student schedules for FTE count. -Maintaining papers for school/parents to be mailed. -Administering state, local, and teacher developed test/assessments. -Completing Hospital[ized]/Homebound grade sheets. Conferring with student, parents, and school guidance counselors on course changes or adaptations. -Providing information to other subject area teachers about a student's medical problem, limitations, and education background. However, if student is in a hospital, all information is confidential. -Maintaining accurate weekly schedules and travel logs. Completing weekly Communications logs between Hospital[ized]/Homebound and regular education teacher. -In order for a teacher to claim pay for 1 (one) hour of pre-planning, it will be necessary to submit to us the Homebound Conference Form which shows actual attendance at school based meeting. -In order for a teacher to obtain pay for 1 (one) hour of post-planning, it will be necessary to sign off on Homebound dismissal with Janet Cooper. At the dismissal time, all paperwork must be submitted and at the close-out staffing it will be disseminated to the appropriate school. You have 24 hours after dismissal to have all paperwork turned in to the ESE Homebound Office. You must call and make an appointment with Janet Cooper. The "Guidelines [for] Hospitalized/Homebound Teachers" section of the 2000-01 Manual provided as follows: Welcome to the Hospitalized/Homebound Program of St. Lucie County. Your interest and willingness to help are appreciated, and we feel sure that you will enjoy the work you do with our students. You probably have many questions concerning this program, and we hope that these few guidelines will be of some help. Call the school counselor to schedule a meeting. Call the student's home and inform the parent/guardian of the meeting with the guidance counselor. It is best if the parent can meet with both of you. If they cannot, however, you can make an appointment with the parent to review the plan. Remind the parent or guardian that a responsible adult must be present at all times while you are in the home. This may be a relative or neighbor if the parents are unable to be there. It is recommended that an average of 3-5 hours per week be spent with elementary students, 4-8 hours per week with middle school students and 7-12 hours per week with high school students, but some situations may require more or less time. (Flexibility is the name of the game in this program.) In your initial conversation with the parent, you may find out whether the student has books and/or assignments and what he/she needs from school. Each time you visit the student, ask the adult who is there to sign your contracted teacher log. If the student is in the hospital, ask a nurse to sign it for you. Please follow the payroll schedule to assure proper payment for your services. You will be paid for actual student contact hours. Mileage is included in your stipend for the first ten (10) miles traveled on any visit to the student residence or place of instruction. We will try to assign students within a reasonable distance from your home. Please work with the students on regular school days, not on holidays or weekends. The School Board considers only those school days according to the official school calendar as appropriate teaching days. When you accept a student, you will be given a packet containing all forms and information that you will need. There will always be questions so please feel free to call. Our number at the ESE office is . . . . The 2000-01 Manual also contained the following "Hospitalized/Homebound Program Procedures for Completing Travel Forms": The following procedures have been established for completing travel forms: Contracted teachers are required to submit the travel form that coincides with the time sheet. Accounting has requested this requirement. Stipend teachers' travel can be accumulated and then submitted after the form is completed for the month. In the column "From Where - To Where" write from where you are leaving (ex: School Name or your home), then write the student's address (not name), next, where you returned to (ex: School Name or your home). You may write "home" because your address appears at the bottom of the form. As noted on the form "indicate clearly if round trip." You may submit trips to the student's school to pick up homework, meetings, etc. for the student. Indicate the mileage from point of departure to the destination, then point of return. In the column "Purpose" write the reason for the trip, such as tutor homebound student. If other than tutoring, please indicate the reason. When calculating mileage the following steps are necessary: Enter the total miles from your point of departure to the student's home then to your point of return. Write on the form under "Miles" the total miles for this round trip. Then, write the subtraction of 10 miles from the total. This will be the figure allowed for reimbursement. You must write round trip total per trip minus 10 miles for each day. If this is not indicated on your form that you subtracted 10 miles for each trip, then we will subtract 10 from the daily totals to calculate your reimbursement. At the bottom of the form, write the date you completed the form, your social security number, print your name and address, and be sure to sign. This form cannot be submitted without your signature and will be returned to you if omitted. If you have any question, please call Janet for further assistance at . . . . In addition, the 2000-01 Manual included copies of the following forms, among others: the Hospitalized/Homebound Conference Form, the Hospitalized/Homebound Program Record Weekly Communication Record, the H/H Service Log, and the Monthly Travel and Request for Reimbursement Form. On the top of the Hospitalized/Homebound Conference Form in the Manual was the following statement: The Hospital[ized]/Homebound Program is coordinating the education services for the student listed. To maintain parity with the quality education provided by the classroom teacher, the program will require a copy of course syllabi, appropriate textbooks, weekly assignments and evaluations. *If the Hospital[ized]/Homebound teacher is responsible for grading assignment and evaluations an answer key is required. The Guidance Department must determine if the existing course schedule is appropriate for Hospital[ized]/Homebound instruction. Appropriate modifications to course offering or content must be determined prior to plan implementation. The form had spaces for the student's name, address, school, grade, guidance counselor, and H/H teacher, the "date of meeting," the "subjects to be taught" by the H/H teacher, the signatures of the "classroom teachers" who would otherwise be teaching the student those subjects, and the signatures of the guidance counselor and the H/H teacher. There were also spaces to indicate, for each subject, whether assignments and examinations would be "transferred" by "PONY," the student's parent, or the H/H teacher and whether these assignments and examinations would be graded by the classroom teacher or the H/H teacher. The Hospitalized/Homebound Program Weekly Communication Record in the Manual had spaces for the H/H teacher to indicate the student's "academic average for the week by subject." The H/H Service Log in the Manual indicated on its face that it was a "record of hospitalized/homebound teacher services." It had spaces for the H/H teacher to indicate the "[d]ays(s) and time(s) of the week [the] student [in question] was served." In all caps and boldface type on the log was the reminder, "Parent/Guardian signature required daily," and there were spaces on the log for such signatures. The log also contained the following certification to be signed and dated by the H/H teacher: "I hereby certify that the above services were provided by me as indicated." Underneath the signature line for the H/H teacher were signature lines for the Program Specialist and the "administrator [giving] approval." The Monthly Travel and Request for Reimbursement Form in the Manual had four columns with the following headings, reading from left to right: "Date of Travel," "From Where - To Where (Indicate clearly if round trip)," "Purpose," and "Miles." On the bottom left hand corner of the form was the following "Note": Miles to and from school centers must agree with approved school mileage chart. Each date of travel must be reported separately. Respondent was among the H/H teachers who were trained and supervised by Ms. Washington during the 2000-01 school year.11 This was not the first year that she had taught in the Program.12 At all times that she served as an H/H teacher, Respondent was also under contract with the School Board to provide school-based instruction during the regular school day. Although she has been employed by the School Board since approximately 1981, she has not been a teacher for this entire period of time. From the commencement of her employment with the School Board until the 1994-95 school year, she held various noninstructional positions. During the 1994-95 school year, Respondent graduated from Nova Southeastern University with a degree in exceptional education. She obtained, and still holds, Florida certification in the areas of emotionally handicapped and severely emotionally disturbed. It has only been since the 1994-95 school year, when she taught a varying exceptionalities class at Parkway Elementary School, that Respondent has worked as a teacher for the School Board. At the beginning of the 2000-01 school year, Respondent taught at Westwood High School. In or around September 20, 2000, she was transferred to Woodland Academy, where she remained for the rest of the school year. Respondent returned to Westwood High School the next school year. S. S. is one of the students served by the Program. She is a sixteen-year-old girl who has Cystic Fibrosis. Because of her illness, S. S. "runs infections quite a bit" and often needs to be hospitalized for ten days to two weeks or more at a time. As a result, "she doesn't get much time home." J. S. is S. S.'s mother. J. S. "work[s] a tremendously demanding job" with long hours that often prevents her from being home before evening. Sometime after the beginning of the 2000-01 school year, in or around late September or early October of 2000, Respondent (who had already undergone the required annual training for H/H teachers) was assigned by Ms. Washington to be S. S.'s H/H teacher. The assignment continued until the end of the school year. During the 2000-01 school year, S. S. was a ninth grade student taking, among other subjects, English, algebra, biology and global studies. Her home school that year was Centennial High School. S. S. was hospitalized at St. Mary's Medical Center in West Palm Beach, Florida, on seven different occasions during the 2000-01 school year. The shortest of these hospital stays was ten days. The longest was 19 days. Before each of these hospitalizations, J. S. gave the School Board notice (by telephoning either Respondent or the School Board's Exceptional Student Education office) that S. S. would be going into the hospital. At no time during the 2000-01 school year did S. S. have access to a functioning computer (either at the hospital or at home) that she used for schoolwork.13 The School Board provided S. S. with a computer that Respondent tried to set up in S. S.'s home, but the computer "never worked." During the period that Respondent was S. S.'s H/H teacher (and S. S. was at home and not hospitalized), Respondent did not visit S. S. every school day; rather, she visited once or twice a week. J. S. was present for only a "few" of these visits. She was under the impression that she did not need to be there when Respondent visited inasmuch as S. S. had "hit high school age." The longest Respondent ever stayed with S. S. during a visit was one and half to two hours. There were only one or two visits of this length. They occurred "at the beginning" when Respondent was attempting to set up the computer in S. S.'s home. The other visits were "short" and, for the most part, involved Respondent "just dropping off work" for S. S. When S. S. completed the work that Respondent had dropped off for her, she gave it to her mother or her sister to give to Respondent. Respondent provided S. S. with no instruction during her visits with S. S. except for "a little bit" of instruction in algebra.14 Respondent submitted completed H/H Service Logs (using the form contained in the Manual) on which she knowingly made false representations, with the intent to defraud the School Board,15 concerning the "services [she] provided" S. S. She did so to obtain compensation to which she knew she was not entitled.16 On many of the occasions that Respondent claimed, on the logs, she had been with S. S. providing "services," she, in fact, had not provided the "services" claimed. Respondent made these false claims knowing that they were not true and anticipating that the School Board would rely upon them in determining the amount of pay she would receive. J. S. was an unwitting participant in Respondent's scheme. J. S. signed H/H Service Logs presented to her by Respondent after being told by Respondent that Respondent "had been coming" to visit S. S. when J. S. was not home and that J. S. needed to sign the logs to indicate that such visits had been made. J. S. took Respondent at her word about these alleged visits and followed Respondent's directions. Some of the H/H Service Logs that Respondent gave J. S. to sign had the dates and times of these alleged unsupervised visits already filled in. Others did not. The evidentiary record contains twelve H/H Service Logs (collectively covering the period from September 25, 2000 to May 25, 2001) that Respondent filled out and turned in during the time that she was S. S.'s H/H teacher. On each, Respondent "certif[ied]" (by her signature) that she had "served" S. S. on the dates and times indicated thereon. There is a signature purporting to be that of J. S. on the "Parent Signature" line to the right of each date of "service[]" entered on each log.17 With one exception (the log covering the period from April 23, 2001, to May 11, 2001), each log also bears what purports to be Ms. Washington's signature on the "Program Specialist" signature line directly underneath Respondent's "certif[ication]." On the first log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from September 25, 2000, to October 13, 2000: Monday, September 25, 2000, for an hour, from 8:30 to 9:3018; Tuesday, September 26, 2000, for two hours, from 7:30 to 9:30; Wednesday, September 27, 2000, for one hour, from 8:30 to 9:30; Thursday, September 28, 2000, for one hour, from 8:30 to 9:30; Friday, September 29, 2000, for three hours, from 6:30 to 9:30; Monday October 2, 2000, for two hours, from 9:00 to 11:00; Tuesday, October 3, 2000, for two hours, from 9:00 to 11:00; Wednesday, October 4, 2000, for two hours, from 9:00 to 11:00; Thursday, October 5, 2000, for three hours, from 8:00 to 11:00; Friday, October 6, 2000, for three hours, from 5:30 to 8:30; Tuesday, October 10, 2000, for three hours, from 6:00 to 9:00; Wednesday, October 11, 2000, for three hours, from 6:00 to 9:00; and Thursday, October 12, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that October 9, 2000, was Yom Kippur and that October 13, 2000, was an "inservice day." On the second log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from October 16, 2000, to November 3, 2000: Monday, October 16, 2000, for one hour, from 6:00 to 7:00; Tuesday, October 17, 2000, for two hours, from 6:00 to 8:00; Wednesday, October 18, 2000, for two hours, from 6:00 to 8:00; Thursday, October 19, 2000, for two hours, from 6:00 to 8:00; Friday, October, 20, 2000, for one hour, from 6:00 to 7:00; Tuesday, October 24, 2000, for two hours, from 6:00 to 8:00; Wednesday, October 25, 2000, for two hours, from 6:00 to 8:00; Thursday, October 26, 2000, for two hours, from 6:00 to 8:00; Friday, October 27, 2000, for two hours, from 6:00 to 8:00; Monday, October 30, 2000, for one hour, from 6:00 to 7:00; Tuesday, October 31, 2000, for two hours, from 6:00 to 8:00; Wednesday, November 1, 2000, for two hours from 6:00 to 8:00; Thursday, November 2, 2000, for two hours, from 6:00 to 8:00; and Friday, November 3, 2000, for one hour, from 6:00 to 7:00. On the third log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from November 6, 2000, to November 24, 2000: Monday, November 6, 2000, for three hours, from 6:00 to 9:00; and Tuesday, November 7, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days during the period. On the fourth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from November 27, 2000, to December 15, 2000: Wednesday, November 29, 2000, for three hours, from 6:00 to 9:00; Thursday, November 30, 2000, for three hours, from 6:00 to 9:00; Friday, December 1, 2000, for three hours, from 6:00 to 9:00; and Monday, December 4, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days during the period. On the fifth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from January 3, 2001, to January 12, 2001: Wednesday, January 3, 2001, for two hours, from 6:00 to 8:00; Thursday, January 4, 2001, for two hours, from 6:00 to 8:00; Friday, January 5, 2001, for two hours, from 6:00 to 8:00; Monday, January 8, 2001, for two and a half hours, from 6:00 to 8:30; Tuesday, January 9, 2001, for two and a half hours, from 6:00 to 8:30; Wednesday, January 10, 2001, for two and a half hours, from 6:00 to 8:30; Thursday, January 11, 2001, for two and a half hours, from 6:00 to 8:30; and Friday, January 12, 2001, for two hours, from 6:00 to 8:00. On the sixth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from January 15, 2001, to February 2, 2001: Tuesday, January 16, 2001, for two hours, from 3:00 to 5:00; Wednesday, January 17, 2001, for two hours, from 3:00 to 5:00; Thursday, January 18, 2001, for two hours, from 3:00 to 5:00; Monday, January 22, 2001, for two hours, from 3:00 to 5:00; Tuesday, January 23, 2001, for two hours, from 3:00 to 5:00; Wednesday, January 24, 2001, for two hours, from 3:00 to 5:00; Thursday, January 25, 2001, for two hours, from 3:00 to 5:00; Friday, January 26, 2001, for two hours, from 3:00 to 5:00; Monday, January 29, 2001, for two hours, from 3:00 to 5:00; Tuesday, January 30, 2001, for two hours, from 3:00 to 5:00; and Wednesday, January 31, 2001, for two hours, from 3:00 to 5:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days (February 1 and 2, 2001) during the period. On the seventh log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from February 5, 2001, to February 16, 2001: Wednesday, February 7, 2001, for three and half hours, from 3:00 to 6:30; Thursday, February 8, 2001, for three and half hours, from 3:00 to 6:30; Friday, February 9, 2001, for four hours, from 3:00 to 7:00; Monday February 12, 2001, for one hour, from 3:00 to 4:00; Tuesday, February 13, 2001, for three and half hours, from 3:00 to 6:30; Wednesday, February 14, 2001, for three and half hours, from 3:00 to 6:30; Thursday, February 15, 2001, for three and half hours, from 3:00 to 6:30; and February 16, 2001, for a half hour, from 3:00 to 3:30. It was noted on the log that S. S. was in the hospital on the remaining regular school days (February 5 and 6, 2001) during the period. On the eighth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from February 19, 2001, to March 2, 2001: Monday, February 19, 2001, for two hours, from 3:00 to 5:00; Tuesday, February 20, 2001, for two hours, from 3:00 to 5:00; Wednesday, February 21, 2001, for two hours, from 3:00 to 5:00; Thursday, February 22, 2001, for two hours, from 3:00 to 5:00; Friday, February 23, 2001, for one hour, from 3:00 to 4:00; Monday, February 26, 2001, for two hours, from 3:00 to 5:00; Tuesday, February 27, 2001, for two hours, from 3:00 to 5:00; Wednesday, February 28, 2001, for two hours, from 3:00 to 5:00; Thursday, March 1, 2001, for two hours, from 3:00 to 5:00; and Friday, March 2, 2001, for one hour, from 3:00 to 4:00. On the ninth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from March 5, 2001, to March 16, 2001: Monday, March 5, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, March 6, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, March 7, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, March 8, 2001, for an hour and a half, from 3:00 to 4:30; and Friday, March 9, 2001, for an hour, from 3:00 to 4:00. It was noted on the log that S. S. was not provided any "services" the week of March 12, 2001, and that she was "hospitalized" for the last three days of that week. On the tenth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from April 2, 2001, to April 20, 2001: Monday, April 2, 2001, for two hours, from 3:00 to 5:00; Tuesday, April 3, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, April 4, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, April 5, 2001, for an hour and a half, from 3:00 to 4:30; Friday, April 6, 2001, for two hours, from 3:00 to 5:00; Monday, April 16, 2001, for two and a half hours, from 2:30 to 5:00; Tuesday, April 17, 2001, for two hours, from 2:30 to 4:30; Wednesday, April 18, 2001, for two hours, from 2:30 to 4:30; Thursday, April 19, 2001, for two hours, from 2:30 to 4:30; and Friday, April 20, 2001, for two and a half hours, from 2:30 to 5:00. It was noted on the log that the week of April 9, 2001, was "spring break." On the eleventh log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from April 23, 2001, to May 11, 2001: Monday, April 23, 2001, for two hours, from 3:00 to 5:00; Tuesday, April 24, 2001, for two hours, from 3:00 to 5:00; Wednesday, April 25, 2001, for two hours, from 3:00 to 5:00; Thursday, April 26, 2001, for two hours, from 3:00 to 5:00; Friday, April 27, 2001, for two hours, from 3:00 to 5:00; Monday, April 30, 2001, for two hours, from 3:00 to 5:00; Tuesday, May 1, 2001, for two hours, from 3:00 to 5:00; Monday, May 7, 2001, for two hours, from 3:00 to 5:00; Tuesday, May 8, 2001, for two hours, from 3:00 to 5:00; Wednesday, May 9, 2001, for two hours, from 3:00 to 5:00; Thursday, May 10, 2001, for two hours, from 3:00 to 5:00; and Friday, May 11, 2001, for two hours, from 3:00 to 5:00. It was noted on the log that S. S. was "hospitalized" on the remaining regular school days (May 2, 3, and 4, 2001) during the period. On the twelfth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from May 14, 2001, to May 25, 2001: Monday, May 14, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, May 15, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, May 16, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, May 17, 2001, for an hour and a half, from 3:00 to 4:30; Friday, May 18, 2001, for an hour and a half, from 3:00 to 4:30; Monday, May 21, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, May 22, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, May 23, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, May 24, 2001, for an hour and a half, from 3:00 to 4:30; and Friday, May 25, 2001, for an hour and a half, from 3:00 to 4:30. On an area of the log where there were no printed words or lines was the following notation: "One hour planning." No date or times were given, nor was there any signature next to this notation.19 The evidentiary record also contains four Monthly Travel and Request for Reimbursement Forms (Travel Reimbursement Forms) that Respondent filled out and turned in during the time that she was S. S.'s H/H teacher.20 The first of these Travel Reimbursement Forms covered the period from September 25, 2000, to October 13, 2000, the same period covered by the first service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back (a round trip of 33.5 miles) on each of the days that, according to the first service log, she "served" S. S.21 No other travel was reflected on the form. The second of these Travel Reimbursement Forms covered the period from January 15, 2001, to February 9, 2001. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the sixth service log, she represented she "served" S. S. She further claimed, on this Travel Reimbursement Form, that she made the same round trip on February 7, 8, and 9, 2001 (days that, on the seventh service log, she represented she "served" S. S). No other travel was reflected on the form. The third of these Travel Reimbursement Forms covered the period from February 19, 2001, to March 2, 2001, the same period covered by the eighth service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the eighth service log, she represented she "served" S. S. No other travel was reflected on the form. The fourth and last of these Travel Reimbursement Forms covered the period from March 5, 2001, to March 16, 2001, the same period covered by the ninth service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the ninth service log, she represented she "served" S. S. No other travel was reflected on the form. The evidentiary record also contains one H/H Service Log on which Ms. Washington "certif[ied]" that she "served" S. S. (as S. S.'s H/H teacher) on September 18, 2000, for four hours, from 5:00 to 9:0022; September 20, 2000, for four hours, from 5:00 to 9:00; September 22, 2000, for four hours, from 5:00 to 9:00; September 24, 2000,23 for four hours, from 5:00 to 9:00; September 25, 2000, for four hours, from 5:00 to 9:00; and September 26, 2000, for four hours, from 5:00 to 9:00.24 There is no "Parent Signature" to the right of either the September 18, 21, 24, or 26, 2000, entry. There is a signature purporting to be that of J. S. on the "Parent Signature" line to the right of each of the other alleged dates of "service[]." There is a notation on the log (together with an arrow) indicating that S. S. was "[r]e-assigned [to] Celestine Baker" on the Thursday of the school week beginning Monday, September 25, 2000 (that is, on September 28, 2000).25 The administrator who signed the log was someone other than Ms. Slaga or Ms. Akre. It was not until after the end of the school year that it "c[a]me to [Ms. Slaga's] attention that Ms. Washington had some service logs[26] related to [S. S.]." Ms. Slaga found it "very unusual to see" an H/H Service Log submitted by a Program Specialist. At the suggestion of Susan Ranew, the School Board's Director of Personnel, Ms. Slaga visited J. S. and showed her the service logs in question. J. S. told Ms. Slaga, after examining the logs, that "no services" were provided on some of the alleged dates of "service[]," including dates on which S. S. "was in the hospital in West Palm Beach." J. S. added that not all of the signatures on the "Parent Signature" lines on the logs were hers. When Ms. Slaga returned from her visit with J. S., she "pulled out all of [S. S.'s] logs," including those submitted by Respondent, and reviewed them. Ms. Slaga noticed that "some of the dates that were on [Respondent's] log were the same dates that Ms. Washington had [claimed] that she [had] provided services to [S. S.]."27 These were dates on which, according to what J. S. "had already shared" with Ms. Slaga, S. S. "was in the hospital in West Palm [Beach]." After obtaining information from St. Mary's Medical Center concerning S. S.'s hospitalizations, Ms. Slaga re- examined the service logs and confirmed "that there were days of service indicated by both Ms. Washington and [Respondent] that [S. S] had been in the hospital." Ms. Slaga "turned the information over to the [School Board's] Personnel [Office]." Russell Anderson, the School Board's Assistant Superintendent for Human Resources, after consulting with the School Board's Superintendent of Schools, called in the law firm of Richeson and Associates to engage in "formal fact finding." During the "formal fact finding," Respondent was provided the opportunity to give "a statement of her side of the story." Through her attorney, she declined to give such a statement.28 At some point in time, Respondent telephoned S. S. and told S. S., if S. S. "were contacted by the School [Board] regarding [Respondent's] services," to lie and say that Respondent "came every day."29 Ms. Washington, unlike Respondent, did give a statement, which "was eventually turned into an affidavit." In her affidavit (which was received into evidence as Respondent's Exhibit 3, over the School Board's objection), after discussing the Program and procedures relating to the completion and approval of H/H Service Logs and Travel Reimbursement Forms, Ms. Washington went on to describe those "activities . . . related to [S. S.'s] involvement in the hospitalized/homebound program" in which she claimed she engaged on the dates of "service[]" indicated on her "service logs for the time periods of 8/22/00-8/30/00; 8/31/00-9/13/00; and 9/18/00-9/27/00." Some of the "activities" she described did not involve "actual student contact," such as "visiting different locations in St. Lucie and Martin Counties . . . in attempts to acquire a needed adapter for [an] Apple laptop computer so that [she] could provide the laptop to S. S." and attending "meetings at Port St. Lucie High School [S. S.'s home school at the time] concerning providing hospitalized/homebound services to [S. S.]." Ms. Washington further stated that, "[o]n 8/30/00, [she] went the [S. S.'s] home and installed a desktop computer and password" and that "[t]his desktop computer had the computer program 'Plato' installed on it so that [S. S.] could utilize computerized instruction." Ms. Washington added that, "since [she] had Plato installed on [her] laptop, [she] was able to monitor [S. S.] while [S. S.] worked on the desktop computer." Ms. Washington went on to claim that she did such "monitor[ing]" on the following dates: August 31, 2000; September 2, 2000; September 6, 2000; September 7, 2000; September 8, 2000; September 11, 2000; September 12, 2000; September 13, 2000; September 18, 2000; September 20, 2000; September 22, 2000; September 24, 2000; September 25, 2000; and September 26, 2000. These representations were false. There was no "computerized instruction." There was no "monitoring." Indeed, there was not even a "desktop computer" set up in S. S.'s home. These were all things that Ms. Washington had made up.30 Having described in the preceding portions of her affidavit the non-"actual student contact" activities in which she claimed to have engaged on the dates of "service[]" reported on the service logs she submitted, Ms. Washington made the following self-serving statements in paragraphs 21, 22 and 23 of the affidavit:31 I wrote the training manual for teachers in relation to the ESE Hospitalized/Homebound Program. Although page 9 of this training manual (#6) states "you will be paid for actual student contact hours" this does not prevent a hospitalized/homebound teacher or program specialist from submitting time on their service log for any activity related to a student in the hospitalized/homebound program. The Training Manual does not address all possible scenarios and is only intended to be a guide for teachers. The reference on page 9 of this training manual, which states "you will be paid for actual student contact hours" refers only to teachers/program specialists being reimbursed for mileage. I believe that it is proper for a teacher or program specialist to record on their service log any time that the teacher or program specialist spends performing any activity related to a student in the hospitalized/homebound program if that activity is performed outside the teacher's or program specialist's normal workday. Page 8 of this training manual provides that in order for teachers and program specialists to claim payment for 1 hour of pre-planning, actual attendance at a school based meeting[] is required. However, I believe that a teacher or program specialist is allowed to perform this pre-planning at [his or her] home, and that any time that the teacher or program specialist spends performing any activity at a school (outside [his or her] normal work hours) in relation to a student in the hospitalized/homebound program may be recorded on the service log. I performed the pre-planning for [S. S.] while I was in my office, during normal working hours. By mid-October of 2001, Ms. Washington had been suspended from her Program Specialist position and Ms. Jones had been assigned to take her place. While Ms. Jones was "in training," Mr. Tomlinson was asked to review and sign the completed H/H Service Logs submitted by the H/H teachers. Among the completed service logs Mr. Tomlinson reviewed was one submitted by Respondent, on which Respondent "certif[ied]" (by her signature) that she "served" J. A., a hospitalized/homebound student to whom she had been assigned, on the following dates and times during the period from October 1, 2001, to October 16, 2001: Monday, October 1, 2001, for two hours, from 3:15 to 5:15; Tuesday, October 2, 2001, for two and a half hours, from 3:15 to 5:45; Wednesday, October 3, 2001, for two and a half hours, from 3:15 to 5:45; Thursday, October 4, 2001, for two and a half hours, from 3:15 to 5:45; Friday, October 5, 2001, for two and a half hours, from 3:15 to 5:45; Monday, October 8, 2001, for two and a half hours, from 3:15 to 5:45; Tuesday, October 9, 2001, for two and a half hours, from 3:15 to 5:45; Wednesday, October 10, 2001, for two and a half hours, from 3:15 to 5:45; Thursday, October 11, 2001, for two and a half hours, from 3:15 to 5:45; Friday, October 12, 2001, for two hours, from 3:15 to 5:15; Monday, October 15, 2001, for two hours, from 3:15 to 5:15; and Tuesday, October 16, 2001, for two and a half hours, from 3:15 to 5:45. When Mr. Tomlinson received the log, there was a signature purporting to be that of J. A.'s mother on the "Parent Signature" line to the right of each date of "service[]" entered on the log.32 These signatures were forgeries (as evidenced by the misspelling, in each case, of J. A.'s mother's last name33). They had been placed on the log by Respondent, who did so because she knew that there needed to be a signature on the "Parent Signature" line next to each date of "service[]" in order for her to get paid for the hours of "service[]" she reported having provided on that date.34 Respondent was subsequently, like Ms. Washington, suspended without pay and recommended for termination. No showing has been made that, in being suspended without pay and recommended for termination, Respondent was treated differently and less favorably than any similarly situated teacher suspected by the School Board of having deceptively falsified documents for his or her own personal gain;35 nor has it been shown that she has been targeted for prosecution for any invidious or unlawful reason, such as her race.36
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a professional service contract teacher with the School Board for having engaged in the deceptive and fraudulent conduct described above. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 31st day of December, 2002.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner qualifies, pursuant to Section 212.08(7)(o)2.d., Florida Statutes, for a consumer's Certificate of Exemption as a state, district, or other governing or administrative office, the function of which is to assist or regulate the customary activities of educational organizations or members.
Findings Of Fact The Petitioner is a "not for profit" corporation that, for all relevant periods of time, has held an exemption from federal income tax as an educational institution pursuant to Section 501(c)(3) of the federal Internal Revenue Code. The purpose of the Society, the Petitioner, is to further the practice of the teaching of photography and to insure high standards in photographic education in the educational institutions in this country and in Florida, particularly post- secondary educational institutions. The Society has been provided facilities at the Daytona Beach Community College, including office space, telephones and facsimile lines. The community college provides publication and marketing services to the Society. There is no formal affiliation between the Society and any higher educational institutions. The community college provides these services to the Society in return for the prestige associated with its being home to the Society. The Society is not accredited as an educational institution in its own right. It is an educational organization consisting primarily of university, college and secondary school educators as members. Its purpose is to advance the field of photographic education and to assist its members in their collective interests and concerns as educators. The Society also assists colleges, universities, and other organizations in achieving their educational mission in terms of education in the field of photography. It therefore functions as an administrative office, " . . the function of which is to assist or regulate the customary activities of educational organizations and members." The Society's national office assists the customary activities of the regional organizations under its umbrella through management of their data bases in support of their regional publications and conferences. The dominant function of those conferences is to promote educational standards in photography and related fields. They are typically attended by graduate students and educators in the field of photographic education. Moreover, the Society's national office examines and approves regional budget funding proposals and disburses funds to regional organizations that are in accord with its national by-laws and policies, so as to provide appropriate control and regulation with regard to its educational mission. The treasurer of the Society for photographic education requires uniform accounting procedures for each of the regional treasury accounts. The Society is thus an umbrella organization for eight regional societies located throughout the country. The Society provides money to these regional organizations and the regions are required to prepare and submit financial statements to the Society. These regional societies operate pursuant to the national by-laws and their officers serve at the pleasure of the national organization. Annual national conferences are held as are regional conferences by the regional societies. Participants at these conferences are offered seminar level courses and workshops in different areas of photography, such as digital imaging. There is also typically a trade show at these conferences where corporations demonstrate new products in the field of photography. Most of the persons attending these conferences are either graduate students or faculty members of various educational institutions. While the Society does not provide educational credit to attend these, the programs at these conferences are educational in nature, designed to further the education of the attendees in the aspects of the field of photographic education. The Society does not regularly provide educational curricula to other organizations.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Department of Revenue enter a Final Order granting the consumer Certificate of Exemption applied for by the Petitioner. DONE AND ENTERED this 7th day of July, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 7th day of July, 1998. COPIES FURNISHED: Kevin O'Donnell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 James J. Murphy, Executive Director Society for Photographic Education Post Office Box 2811 Daytona Beach, Florida 32120-2811 Linda Lettera, Esquire Department of Revenue 204 Carson Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue in this case is whether Respondents have discriminated against Petitioners based on Petitioners' national origin.
Findings Of Fact On August 28, 2009, Ms. Greene was a loan officer employed by CenterState Home Loans, LLC. The office where Ms. Greene worked was located inside CenterState Bank, N.A., located at 6930 Gall Boulevard in Zephyrhills, Florida. The office is separate from CenterState Banks, Inc. There is signage on a glass wall of her office stating, "CenterState Home Loans, LLC." Ms. Greene is paid by CenterState Home Loans, LLC. She is paid by commission. Thus, there is no incentive not to complete loan applications. CenterState Home Loans, LLC, is a separate corporation from CenterState Banks, Inc., and CenterState Bank, N.A. Both CenterState Banks, Inc., and CenterState Bank, N.A. are interest holders in CenterState Home Loans, LLC, but are not the managing members of CenterState Home Loans, LLC. Platinum Home Mortgage Corporation is the managing member of CenterState Home Loans, LLC. As the managing member, Platinum Home Mortgage manages the quality control and integrity of CenterState Home Loans, LLC. CenterState Home Loans, LLC, is not authorized to do Federal Housing Association (FHA) loans. Any FHA loans originated by CenterState Home Loans, LLC, are assigned to Platinum Home Mortgage. On August 28, 2009, Petitioners, Mr. Velez's mother, and Petitioners' young daughter came to Ms. Greene's office to discuss the possibility of obtaining a loan through CenterState Home Loans, LLC, and a loan through the Pasco County Home Buyers Program. The purpose of the Pasco County Home Buyers Program is to aid qualified home buyers in purchasing their primary residences. Initially, Petitioners were interesting in applying for an FHA loan. Prior to the meeting, Mr. Velez had telephoned Ms. Greene and asked what types of information would need to be submitted. Ms. Greene stated that he would need W-2 forms, paystubs, bank statements, and anything that showed proof of any assets or debts. Petitioners brought some of the documentation to the meeting. At the meeting, Petitioners supplied information to Ms. Greene, who typed the information into her computer using loan software entitled "Loan Soft." The information was placed on a Uniform Residential Application, which is called a Form 1003. No property was identified on the Form 1003 because Petitioners did not have a sales contract for a specific piece of property. They indicated that the property they wanted to purchase would be approximately $140,000. Mr. Velez told Ms. Greene that he was anticipating a 50 percent loan from Pasco County Home Buyers Program, which would leave approximately $70,000 to be financed plus closing costs. When Ms. Greene input the information into the computer program, it automatically calculated the approximate closing costs. The interest used to do the calculations was based on the interest rate on August 28, 2009, and was not a guaranteed rate. With Petitioners' permission, Ms. Greene pulled a credit report on each of them during the meeting on August 28, 2009. The credit report showed that there were some debts in collection and that there was an outstanding judgment against Ms. Guerrero. Additionally, based on CenterState Home Loan, LLC, guidelines, the credit scores did not qualify Petitioners for a second mortgage, which included a Pasco County Home Buyers Program loan. On August 28, 2009, Ms. Greene needed additional asset information from the Petitioners and requested that they provide her with information concerning checking, savings, or money market accounts for at least a two-month period. Mr. Velez did present a bank statement at the meeting, which showed a current balance of less than $200. Ms. Greene told Petitioners that the debts in collection and the outstanding judgment needed to be resolved. Additionally, Ms. Guerrero was an authorized signer on some of her mother's credit cards, and a statement would have to be provided that Ms. Guerrero was not responsible for the debts associated with those credit cards. The software program that Ms. Greene used automatically completes a page in the application titled, "Pre- Approval Cover Sheet and Check List." The program put "completed" by a number of items which had not been completed, such as the Form 1003 and current asset statements. Petitioners had supplied some pay stubs and some bank statements at the August 28, 2009, meeting. The Form 1003 did not indicate that Petitioners had been pre-approved for a loan. The meeting ran near to the time CenterState Home Loans, LLC, was closing and could not be completed before closing time. Ms. Greene printed out a copy of the Form 1003, with the information that had been completed, and gave it to Petitioners. Petitioners were to complete, sign, and return the Form 1003 to Ms. Greene. Additionally, Petitioners were to provide evidence that the debts had been paid and the judgment satisfied, along with evidence of current assets. Because the application was not completed and additional information was needed, Ms. Greene could not fully analyze the application. Sometime after the August 28, 2009, meeting, Ms. Greene reviewed the information that had been supplied to her by Petitioners and discussed the information with Mr. Velez on the telephone. Mr. Velez wanted to schedule a meeting to discuss the application. She advised him that, based on the credit scores and the limited funds in his bank account, he could not qualify for a loan with a second lien by the Pasco County Home Buyers Program. Thus, there would be no need to meet. Mr. Velez told her that he wanted to continue with the process. Petitioners set about paying off the debts in collection and satisfying the judgment against Ms. Guerrero. Mr. Velez had received a disability settlement and placed some money in a bank account. Petitioners did not supply updated information to Ms. Greene. Sometime in October or November 2009, Mr. Velez called Ms. Greene and requested that she send a realtor a pre-approval letter. Ms. Greene replied that she could not do that because she did not have the supporting documents to be able to give a pre-approval letter. Mr. Velez became very angry and demanded the documents he had previously provided at the August 28, 2009, meeting. Ms. Greene had only copies of the documents that he provided, but she placed them in an envelope and left them for Mr. Velez to pick up. Petitioners stated in Form 1003 that their ethnicity was Hispanic or Latino. Mr. Velez stated at the final hearing: My basis for my racial discrimination was the fact that she [Ms. Greene] denied us the opportunity to turn in updated information when stated that she would allow us to do so. Ms. Greene never stated that she would not take additional information because Petitioners were Hispanic. She has processed loans for other Hispanics which involved the Pasco County Home Buyers Program, and she has closed loans for other minorities. Ms. Greene never discussed Petitioners national origin with them. She did not base any decision regarding their loan application on their national origin. After Petitioners were advised by Ms. Greene that they would not qualify for a loan involving the Pasco County Home Buyers Program, they applied for loans at two other lending institutions and were turned down on the basis of too many inquiries or insufficient credit scores. They finally received a loan from Manhattan Mortgage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Petitioners' Petition for Relief. DONE AND ENTERED this 3rd day of December, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2010.
Recommendation It is recommended that a final order be entered fining Henry Haywood $1,500 for these violations of Section 289.129(1)(m), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of September, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1988. COPIES FURNISHED: Michael Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Mr. Henry L. Haywood 611 Northeast 39th Street Pompano Beach, Florida 33064 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Courtesy copy to: Mr. Steve Deinma AAA Insulation 1900 Australian Avenue Rivera Beach, Florida 33404
The Issue The issue for consideration in this case is whether the Pinellas County School Board can cancel Respondents' Professional Service Contracts and terminate their employment due to their failure to meet certification requirements.
Findings Of Fact At all times pertinent to the issues herein the Pinellas County School Board, (Board), was the agency responsible for the provision of public education from preschool through primary and secondary schooling to vocational and adult technical courses in Pinellas County. Respondent Edwards has taught agricultural subjects including horticultural service, animal service and small and large animal services, among other courses she has taught at Tarpon Springs High School since July, 1990. Respondent Corbin, Edwards' brother, has taught at Countryside High School since 1989 in the fields of horticulture, small and large animal service, and practical skills agriculture for grades 9 - 12. Neither Respondent Edwards or Respondent Corbin has a Bachelor's degree in agriculture or in any other field. Edwards has an Associate of Science degree in veterinary technology and has taken courses in agricultural education for certification at the University of Florida as well as 20 credit hours at the University of South Florida in a course in technical vocational training programs she was required to take. She was certified by the State Department of Education in horticultural science and agricultural production in 1992. Respondent Corbin has between 30 and 40 college credit hours. About 2 years after starting work, when he finished the beginning teacher program and the required technical vocational training courses, he was certified by the state to teach horticulture and agricultural production. This allowed him to teach students in grades 9 - 12, and at the adult technical/vocational level. According to Dr. Brown, the Assistant Superintendent for Personnel, sometime prior to March, 1995 it was reported to him that the School Board had two teachers in the agricultural program who were not properly certified. These teachers are the Respondents herein. By state law, the Respondents are not properly certified at the 9 - 12 grade level, but they can teach at the vocational/technical level. Under the provisions of Department of Education Rule 6A-4.054, teachers must hold a bachelor's degree in agriculture or a master's degree with an undergraduate major in agriculture in order to be certified to teach that subject at the 9 - 12 grade level. Neither Respondent has that qualification. When Dr. Brown found out about the problem, he consulted with his staff and then informed the Superintendent of the situation. Dr. Brown also contacted the State Board of Education to see if these Respondents could stay in their current positions. The response received from the State Board of Education indicated the teachers could be considered "out of field" teachers, in accordance with Rule 6A-1.0503, F.A.C., but would need to take a minimum of 6 semester hours of college credit each year to obtain a bachelor's degree in agriculture. After receiving that information, Dr. Brown met with both Respondents and advised them of the situation and what they had to do. At that time the indication he received from them was that they would not consider going to school for 6 credits each year because, as they indicated, this was not their fault. According to Dr. Brown, neither Respondent had taken the required courses this year, and it is his position that though they may be retained as teachers, they cannot be offered a Personal Services Contract unless they do. All that would be available to them would be a year to year appointment. It is quite evident that the 1989 change to the certification rule which creates the problem in this case, that of requiring a teacher in the field of agriculture to have a degree in that area, was not widely publicized, and even high ranking members of the Board staff in Pinellas County were not actively aware of its existence for several years after it was promulgated. Of the two Respondents, Mr. Corbin was hired prior to 1989, and Respondent Edwards was hired after 1989. Both were offered and received Personal Service Contracts after the rule was changed and, in fact, notwithstanding the Board's letter of March 13, 1995, indicating the intention to remove the Personal Service Contract of each, by letter dated in April, 1995, each Respondent was advised of the issuance of a Personal Service Contract for the 1995-1996 school year. This creates a problem for the Board in that, under Florida law, if a program is not properly staffed with properly certified instructors, the state funding for that program can be reduced, and this could, in this case, amount to a substantial amount of money lost to the Board. Dr. Brown considers both Respondents to be excellent teachers whom the Board would like to keep, and he would like to see them participate in the program which would allow them to remain as certified teachers by taking the 6 credit continuing education courses per year. This would be difficult for both Respondents, however. First, the courses to be taken must be approved by the Board as leading to a degree in the teacher's area of expertise. In this regard, Dr. Brown does not know if any of the courses that would qualify for the Respondents are available within a 100 mile radius of Pinellas County. By the same token, he also does not know if the Board would provide financial or time help to the Respondents in the event the courses were available. Another possibility would be for the Respondents to take courses at the University of Florida on Friday nights and Saturdays over a period of time, or during the summer. In that regard, however, Respondent Edwards' inquiry of the University clearly indicates it is not easy to get the required courses at the time when they are needed and Respondents are available. Someone trying to work toward a degree on such a part time basis could take an unreasonably extended period of time to get all the core and prerequisite courses to those which lead toward the degree in the specialty. Notwithstanding this, Dr. Ross is not aware of any instance where the Board has ever waived the requirement for courses because courses were not available locally. The current situation came as a great surprise, specifically to Mr. Corbin. In March, 1992, he was called in by his Vice-Principal, Mr. Moore, and told he was unqualified to teach horticulture. At that same time, however, he was advised as to what he had to do to come up to certification standards, and he took the required courses. As he understood it, that was all that was necessary. With the courses he took at this point, and all the TVT courses he had taken previously, he believed he was in good standing to receive his Personal Services Contract which, in fact, he did receive in April, 1994. However, he first learned of the instant crisis on March 13, 1995 by a copy of a letter to his Principal from Dr. Brown advising that Mr. Corbin's Personal Service Contract was being cancelled. There was no explanation and no reason given then, and Mr. Corbin got no answer to his questions as to the reason for this action. As a result, he sought the assistance of the union. Approximately 7 to 10 days after receipt of the letter, Mr. Corbin was advised by Dr. Brown that his only alternative, if he wanted to continue teaching at Countryside, was to take the courses that would be required for an "out of field" teacher. At this point, Mr. Corbin inquired about the availability of courses and found that a Bachelor's degree in Agricultural Science is available only at the University of Florida. There are no courses offered locally that would help him. He did not, however, check with the University of Florida to see what the availability of the courses was there. Mr. Corbin works from 6:45 AM to 3:00 PM each day at school. He also has a personal lawn maintenance business and he does a lot of extra volunteer work for the school helping out at school fairs, banquets and other similar functions. He has taught summer school off and on. He claims that if he had been aware of the change in the requirements in 1990 when they first went into effect, he would have chosen another career instead of staying with agriculture. He asserts he might well have gone on to get his undergraduate degree and a law degree, but at this time it is too late for that. Mr. Corbin realizes that if he wishes to continue his Personal Service Contract he must take the required courses as an "out of field" teacher. Otherwise he would be no more than an "appointee" to his position on a year to year basis. This would be a very tenuous and stressful position to be in. Such a person serves at the pleasure of the Principal, and Mr. Corbin does not want to be in that situation. However, even though he checked on the local availability of courses and found there were none to help him, he did not check what courses were available at the University of Florida, and he asserts at this time that if any were available he could take during the summers, he would do this. Ms. Edwards first learned of the certification problem when she was advised by an official at the School Board that in order to teach animal science for grades 9 - 12 she had to take a course at Seminole Education Center. She was also told that she would be teaching "out of field", and in order to continue with a Personal Services Contract "out of field" she had to take the additional 6 credit hours per year. She was not aware of the implementation of the 1989 rule change which requires the bachelor's degree. Had she known at any time up until March, 1995 when she first learned of it, she claims she probably would have worked toward a Bachelor of Science degree so she could teach in veterinary technology. The requirements for this would be 120 more hours which she could get only at the University of Florida. The credit hours she earned working toward her Associate degree will not transfer. After Ms. Edwards received the March 13, 1995 letter, she inquired and found she could not get the 6 credit hours she needed for this year before the end of the school year. The advisor at the University of Florida gave her a list of courses she could possibly take locally, but she was given no guarantee they would be transferable toward a degree program. Ms. Edwards is currently enrolled in a 3 hour math course but does not know if it will go toward certification. She contends Dr. Brown did not tell her anything about teaching without a contract, but she would not agree to doing that as an appointee. She feels it would be tenuous and she wants the security of a contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Pinellas County School Board terminate the professional services contracts of the Respondents, Deborah Edwards and Richard Corbin. RECOMMENDED this 24th day of July, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 24th day of July, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 16. Accepted and incorporated herein. 17. & 18. Accepted but not relevant to any issue herein. Accepted and incorporated herein. Irrelevant to any issue herein as a Finding of Fact. FOR THE RESPONDENTS: 1. - 16. Accepted and incorporated herein. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County Schools P.O. Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Marguerite Longoria Robinson, Esquire Kelly & McKee, P.A. 1718 East 7th Avenue Suite 301 P.O. Box 75638 Tampa, Florida 33675-0638 J. Howard Hinesley, Ed.D. Superintendent of Schools Pinellas County 301 Fourth Street S.W. P.O. Box 2942 Largo, Florida 34649-2942
The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner should be awarded a doctor of education degree by Florida State University. Petitioner contends that he properly completed the requirements for the degree, that a valid offer of the degree was made to him, that he accepted the offer, and that the degree was then wrongfully withheld. The university contends that Petitioner did not meet the requirements for the degree and that no valid, enforceable offer of it was made to Petitioner.
Findings Of Fact In 1976, Petitioner was admitted into the doctoral program in biology at Florida State University. He applied to transfer to the science education program and was admitted to the doctoral program in science education within the College of Education at Florida State University on June 24, 1977. He was pursuing a doctor of philosophy (Ph.D.) degree. Among the requirements that Petitioner needed to meet in order to receive the degree were successful completion of a diagnostic examination, completion of thirty-six resident hours of course work, course work in the field of statistics, a preliminary examination, approval of a prospectus for a doctoral dissertation, and presentation of an acceptable dissertation and a successful dissertation defense. Following his admission into the Ph.D. program in science education, a supervisory committee was established for the Petitioner, and a major professor was appointed. It was the major professor's and supervisory committee's function to monitor Petitioner's progress and ultimately to make a recommendation as to whether petitioner should be awarded a degree. By November 7, 1980, Petitioner had completed all of the requirements for a Ph.D. degree except for the presentation of his dissertation and the dissertation defense. These were scheduled to be conducted by the supervisory committee on November 7, 1980. Petitioner had been advised by at least two members of the committee that he might not be ready to present and defend his dissertation. Petitioner felt that he was. On November 7, 1980, Petitioner met with his supervisory committee and presented and defended his dissertation. After his presentation, Petitioner left the room, and the committee evaluated the dissertation and defense. The committee unanimously concluded that the dissertation and defense were inadequate. The dissertation was not marginally inadequate. It was grossly below standards. The committee unanimously and appropriately concluded that the dissertation and defense were not acceptable, and that Petitioner had not met the requirements for a Ph.D. degree. Petitioner's major professor felt that the Petitioner had devoted considerable time, energy, and hard work to the degree program. He was concerned that the effort not be totally wasted. He requested that the committee consider accepting the dissertation as adequate for the award of a doctor of education (Ed.D.) degree or a "master's specialist" degree, and that the committee recommend that Petitioner be awarded one of those degrees or that he be allowed to continue working toward a Ph.D. degree. None of the members of the supervisory committee had had experience with the Ed.D. degree. They all considered it an inferior degree and felt that awarding it to Petitioner would constitute something of a "consolation prize." In fact, an Ed.D. degree from Florida State University is not intended to be an inferior degree. Its focus is somewhat different, but the requirements for obtaining the degree are basically the same. The committee was mistaken in considering the offer of such a degree to Petitioner. Indeed, the requirements for an Ed.D. degree being similar, and in some cases identical to those for the Ph.D. degree, Petitioner had not qualified for the award of an Ed.D. degree. After the committee adjourned its proceedings on November 7, Petitioner's major professor discussed the committee's actions with Petitioner. He told Petitioner that pending proper approval, Petitioner would have the options of continuing to work toward a Ph.D. degree, or receiving an Ed.D. or master's specialist degree. It appears that the major professor was overly sensitive about the Petitioner's feelings, and he may not have bluntly advised Petitioner that he failed his dissertation, presentation, and defense. Petitioner considered his options and told his major professor that if it was possible, he would be amenable to accepting an Ed.D. degree. The major professor contacted administrative officials and was advised that the award of an Ed.D. degree would be possible. The major professor advised the Petitioner of that and told him that pending approval from the department chairman who had charge of the science education program, Petitioner could receive the Ed.D. degree. The major professor also advised Petitioner that some revisions would need to be made in the dissertation and that the title page would need to be retyped in order to reflect that it was being submitted in support of an Ed.D. degree. Petitioner complied with the direction to retype the first page, but made only minor revisions in the dissertation. Members of the supervisory committee signed off on the dissertation as being acceptable in support of an Ed.D. degree. The matter was submitted to the department chairman. The department chairman read the dissertation and concluded that it was grossly inadequate. He determined that he would not authorize the award of an Ed.D. degree because Petitioner would need to be properly accepted into an Ed.D. program before he could be awarded such a degree, and additionally because he considered the dissertation inadequate to support an Ed.D. degree. This action was communicated to the supervisory committee. The committee met again and determined that since the Ed.D. degree could not be awarded, that Petitioner should be given failing grades for the dissertation, presentation, and defense. Prior to the department chairman's review of the dissertation, Petitioner had paid his fees and was anticipating being awarded an Ed.D. degree. Since it was not approved by the department chairman, the degree was not awarded. Thereafter, the Petitioner opted not to apply to have his work considered in support of an Ed.D. degree or master's specialist degree. He continued working toward a Ph.D. degree for approximately six months. Ultimately, he decided to drop out of the program, and he initiated this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by Florida State University denying Petitioner's application for award of an Ed.D. degree and dismissing the Petition for Administrative Hearing. RECOMMENDED this 24th day of January, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983. COPIES FURNISHED: John D. Carlson, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Patricia A. Draper, Esquire Charles S. Ruberg, Esquire Florida State University Suite 311, Hecht House Tallahassee, Florida 32306 Dr. Bernard F. Sliger President Florida State University 211 Westcott Tallahassee, Florida 32306
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Albert Forrest Taylor holds Florida teacher's certificate number 356846, issued on December 16, 1983, covering the areas of drafting and administrative supervision, and the evidence so showed. Petitioner's Exhibit No. 1. As the parties also stipulated, respondent was at all times pertinent employed as a teacher of drafting and welding at Florida School for the Deaf and Blind in St. Augustine. He began in that job in the fall of 1979 and continued until his dismissal in January of 1985. Throughout the time Forrest Taylor taught at the Florida School for the Deaf and Blind, the school's administration, in particular Raymond Butler, then supervisor in the vocational education program for the deaf, received numerous complaints from numerous students, male and female, about Mr. Taylor's "physically touching and punching, and squeezing, and coming into physical contact with" (T.91) students. Two or three times a week female students complained "about Mr. Taylor's attitude towards them; how he looked at them." (T.62). His students usually complained "about his manhandling them, or pushing them, or twisting their arm, or things of that nature" (T.95), although they also complained about his sleeping in class and his "[t]alking to them all the time," (T.92) instead of communicating with them in sign language. In general, he had no "rapport with the students." (T.92) He ordinarily taught high school students, but he began the 1984-1985 school year also teaching drafting to younger students, including six or seven mainly eighth graders, during the period that began at one o'clock in the afternoon. Nubia Argenal, who testified she was in the seventh grade at the time, was in the class, as were Sandra, Michele and Scotty Alford. Together in another of Mr. Taylor's drafting classes that year were Kim Benefield, John Sharpton, Theresa Smith and perhaps eight more students. (T.47) ALFORD On January 18, 1985, Scott Alford finished his assignment, about halfway through respondent's one o'clock class. Respondent Taylor was at another student's desk at the time. With papers in one hand and a ruled T- square in the other, Scott left his seat and began hitting an air-conditioning vent with the T-square, which made a loud noise. He "was sort of bored, didn't have anything to do, so ... [he] was tapping the air- conditioning." Petitioner's Exhibit No. 2, pp. 21-22. He persisted even after Mr. Taylor told him to stop and came over to him. With playful intention, Scott hit his teacher with his fist, striking his arm just below the shoulder, "what we used to call a frog," petitioner's Exhibit No. 2, p. 32, although it was just [a] light punch." Id., p. 33. Unamused, Mr. Taylor grabbed Scott by the throat and pushed him backward against some shelves. When he got loose, Scott made for the classroom door, and Mr. Taylor sent him to Brad Thompson's office. Scott recounted events in Brad Thompson's office, where Mr. Thompson, the school's coordinator of vocational services, noticed red marks on both sides of Scott's neck. After he had spoken to Scott, Mr. Thompson left to speak to Mr. Taylor, who admitted "that he did grab Scott ... [but said] that he did it in self defense ... (T.60) In the course of this conversation, certain rules were mentioned, and Mr. Taylor replied "that the rules were full of shit." (T.60) Afterwards, Mr. Thompson went into Mr. Butler's office and brought Mr. Butler into his office where Scott had been waiting. According to Mr. Butler, Scott was very upset, although he was not crying. He "was flushed in the face and [his] hair was tousled ..." (T.83), and had "red welt-type finger marks on his neck ... at least two on one side and one on the other side." Id. He admitted hitting his teacher, but indicated that this type of horseplay was common, with Mr. Taylor frequently doing the hitting. Mr. Butler telephoned Danny Hutto, Assistant Principal, who asked that the matter be investigated further. By the time other students had been interviewed, the school day, a Friday, was over. After school on Monday, Messrs. Taylor, Thompson, Butler and Hutto gathered in Mr. Hutto's office to discuss the incident. Arrogant and profane, Mr. Taylor denied touching Scott Alford's neck, saying "he more or less grabbed him on the shoulder." (T.86) Whether the confrontation one of Scott's classmates, Nubia Argenal, adverted to when she testified that respondent "tried to strangle Scotty," Petitioner's Exhibit No. 4, p. 4, is the same as the imbroglio of January 18, 1985, is not clear from the evidence. SHARPTON John Sharpton, who was born December 11, 1969, (T.46) was in another of Mr. Taylor's drafting classes in 1984 and early 1985. On one occasion, Mr. Taylor grabbed John's throat, too, "or in there." (T.51) "It was a little bit red and then went away ... [with] some ice on it." (T.52) John would not voluntarily take another class from respondent for fear Mr. Taylor would hit him again. (T.52) BENEFIELD Kim Benefield erased something she had written on a piece of paper while in Mr. Taylor's drafting class one day in the fall of 1984 or January of 1985. Bits of the pink eraser (T.34) rubbed off by the erasure (T.23) fell into her lap. When she began brushing them off her dress, Mr. Taylor joined in. He touched her dress and she felt his touch "around the knee." (T.23) Kim said, "No, I will do it myself." (T.35) "Don't touch me, because it makes me feel weird." (T.22) "But he stayed just a little bit more. And he [his hand] went down ... [her] leg." (T. 35-36). On another occasion, a day after a night on which Kim had painted her fingernails, Mr. Taylor, whose son was visiting the class that day, summoned her to where he stood with his son, took her hand, and showed it to his son. (T. 23, 24) Kim found this embarrassing. On still another occasion, Mr. Taylor stood behind Kim and placed his hand on her shoulder, then in the general area of her armpit. She feared further forward movement of his hand, and, thinking "he tried to . . touch [her] breast, ... [she] put [her] arms down," (T.24) to prevent it. At the time, she was talking to a student who sat next to her, and Mr. Taylor "sort of got in between" (T.24) the two students. In a separate incident, after class one day, Kim started to leave even though Mr. Taylor was speaking to her, telling her he was going to give her detention hall. He grabbed her arm hard enough to leave three marks. (T.28-29) Kim, who was born on December 13, 1968 (T.21), would be afraid to return to a class respondent taught. SMITH One day in this same drafting class, Kim thought she saw Mr. Taylor look down the dress of another student, Theresa Smith. (T.26) John Sharpton recalled seven or eight times that respondent "flirted" with Theresa Smith, including one occasion on which he touched her just below her breast. MICHELLE Respondent once poked the end of a T-square "to Michelle's breast ... and said, `You have dirt inside your blouse ...'" Petitioner's Exhibit No. 4, p. 10. ARGENAL From time to time, respondent asked Nubia Argenal, "What is inside your blouse?" Petitioner's Exhibit No. 4, p. 29. He also asked this question of Nubia's classmate Sandra. He said to Nubia, "I like you. You're pretty. You have a pretty body. You're a pretty girl." Mr. Taylor once placed a T-square against Nubia so that it touched her breast, although his hand came in contact only with her chest at a point above her bosom. Petitioner's Exhibit No. 4, p. 66. At least once, Mr. Taylor stood behind Nubia, who was seated at a drafting table, and massaged her shoulders, until her protests dissuaded him. Petitioner's Exhibit No. 4, pp. 55- 56. On one occasion, when she was leaning on her table, he shook the table, with the result that her breasts moved. Petitioner's Exhibit No. 4, pp. 52-55. Other times he took her hands and shook her arms with the same result. Petitioner's Exhibit No. 4, pp. 48-51. On these occasions, respondent laughed. HUGHES Jill Hughes was a junior at the Florida School for the Deaf and Blind during the 1984-1985 school year. She took drafting from Mr. Taylor, but not in either of the classes made up of junior high students. Mr. Taylor rubbed her back on several occasions. Standing behind her in class, "he kind of did his hand, lightly, over the center of . . . [her] back. Petitioner's Exhibit No. 3, p. 23. Ms. Hughes explained: He was walking around the class, and he would walk over to me. Sometimes, when I asked him for help he would walk over to me and put his hand on my shoulder, and I thought at first, the first time that he touched me, I thought nothing was wrong, because I thought it was nice. And then after that, when he started moving his hand, I thought it was funny. So I didn't say anything. And then afterwards I asked for help [with schoolwork], when I was through with that, and then again I asked for help [with schoolwork], and the same thing, he moved his hand and my other friend, he did the same thing to her, touched her, the same way. And I began to notice, and I heard stories and so that was when I told him, "If you touch me again, if you touch me again, I'll tell my mother." Petitioner's Exhibit No. 3, p. 21. On cross-examination, in response to the question, "Isn't it possible that Mr. Taylor was just being fatherly, paternal?", Jill answered, "I don't know." (T.24) Further cross-examination elicited the following: Q. Wasn't it possible that he was merely trying to be supportive? A. It didn't seem that way to me, not the way he touched me. Petitioner's Exhibit No. 3, p. 31. Over a period of "[m]aybe two months," Petitioner's Exhibit No. 3, p. 9, Mr. Taylor complimented her on her legs (great, beautiful, nice), hair (pretty, beautiful blonde), eyes (beautiful), make-up (pretty) and muscles (good). Petitioner's Exhibit No. 3, pp. 7, 9, 17, 18. EFFECTIVENESS REDUCED Respondent's "actions were totally inappropriate. Because of his actions, ... he lost his effectiveness, as far as the students were concerned." (T.114) The students ... were fearful of him. And the students particularly did not want to be in his classroom. (T.114). The assistant principal at the Florida School for the Deaf "would not recommend that he teach anywhere in the State of Florida, or anywhere, period." (T.114) It is not a question of his technique in teaching deaf children (T.95-99). It is more a question of "inborn qualities, personal qualities that a person has, feeling[s] toward other people." (T.99)
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes (2011), and Florida Administrative Code Rule 6A- 10.081(3)(a) and (e), with respect to her treatment of students in her sixth-grade class and if so, what penalty should be imposed.
Findings Of Fact Based upon the demeanor of the witnesses, the documentary evidence presented, and the record as a whole, the following facts are found: Respondent, Donna Faber-Soukey, is a licensed educator in the State of Florida, who holds Florida Educator Certificate 840010, covering the areas of elementary education and prekindergarten primary education, valid through June 30, 2015. Respondent has also obtained certification in the areas of K-12 health and K-12 physical education in the State of New York, and has a master’s degree in health administration. Respondent began teaching at Old Kings Elementary School (Old Kings) in the Flagler County School District in approximately 2004. Through the spring of 2010, she taught kindergarten and/or first grade, and received highly effective, exemplary, or very effective (depending on the rating tool) evaluation ratings each school year. In August 2010, Respondent’s husband suffered a significant health emergency that required her absence from school. As a result of events that are not the subject of these proceedings, Respondent did not teach at Old Kings for the 2010- 2011 school year, but returned in the fall of 2011. During this time, there were many issues in Respondent’s life that were causing extra stress for her, including the significant illnesses of several close family members, as well as her own diagnosis for depression. Nancy Willis was the new principal at Old Kings in the fall of 2011. While it was her first year at Old Kings, she had many years of experience as a principal. At the beginning of the 2011-2012 school year, she needed a sixth-grade inclusion teacher and understood that Respondent had taught upper grades before. She needed a veteran teacher, so placed Respondent in the sixth-grade inclusion classroom. Respondent was not comfortable with this placement and made her concerns known to Ms. Willis. Despite her request to be assigned to a first-grade or kindergarten class, she remained assigned to the sixth-grade class. Respondent found the class to be difficult to control, and admitted at hearing that she was “not on her game.” As noted above, there were other events taking place in Respondent’s life that effected Respondent professionally. However, any reference to other issues that were present is supplied only for context or for mitigation purposes. This Recommended Order deals only with those factual issues specifically alleged in the Amended Administrative Complaint. At the beginning of the school year, Respondent outlined the classroom rules and procedures that she expected the children to follow in her classroom. Students admitted at hearing that those rules were reasonable. One of the established rules was that when students came into the room, they were supposed to get the materials they would need for class out of their backpacks and were to place their backpacks in cubbies in the back of the room. This rule was important to Respondent, because she considered it to be essential for maintaining a safe environment in the classroom. However, it was common for students in the class to ignore this rule, and leave their backpacks on the floor next to their desks. Respondent would remind students of the need to place the backpacks in their assigned cubbies, but to no avail. At some point, Respondent started taking the backpacks found on the floor and placing them outside the classroom. While she testified that she simply put them outside the door, several students testified credibly that she would sometimes toss the backpacks, without regard for what may be inside them. Specifically, Respondent tossed both M.B. and J.A.’s backpacks outside of the classroom. There was testimony that J.A.’s glasses were inside his backpack and were broken as a result of the backpack being tossed, but J.A. did not testify. While other students saw Respondent toss the backpack, the testimony regarding the broken glasses was based upon J.A. telling other students that his glasses were broken, as opposed to the students who testified seeing the broken glasses themselves. Moreover, the Amended Administrative Complaint makes no mention of Respondent being responsible for breaking J.A.’s glasses. It must be noted, however, that the term “toss” conjures up different visuals for different people. According to Merriam Webster, the term means to throw with a quick, light motion; to move or lift something quickly or suddenly; or to move back and forth or up and down. www.merriam- webster.com/dictionary/toss. There is nothing in the definition that would attach a violent intent to the action, and it is possible for a person to “toss” a backpack with no intention of damaging the backpack or its contents. It is found that Respondent tossed the backpacks outside with no intention of damaging them or their contents, but did so in a careless fashion and did not take any measures to insure that nothing was in fact damaged when she did so. Some students testified that having students’ backpacks handled this way made them feel Respondent had no respect for their personal belongings. Their testimony in this regard is accepted. The students in Respondent’s classes were a challenging group. Some who testified admitted at hearing that they were not the best behaved. For example, one admitted that he enjoyed being referred to as the class clown, and another admitted that she had an “attitude problem.” There were also indications of significant bullying and conflict between students, and referrals to the office and refocus forms were issued frequently. Some students did not respect Respondent as a sixth-grade teacher and acted accordingly. Respondent had difficulty controlling the students in her class, and was exceedingly frustrated by their behavior. Simply put, teaching in a sixth-grade inclusion class was far different from the kindergarten/first-grade environment to which Respondent was accustomed. On at least two occasions, her frustration was such that she authored and provided documents for students to sign, which contained information about the behavior of other students in her classroom. For example, on December 14, 2011, there was an incident in her classroom involving student Z.M. The details related to the incident are not important, but the incident resulted in a referral for Z.M. Respondent wrote her account of the incident, comprising two pages. She asked two students who were present at the time of the incident to sign the second page of the document as witnesses. Respondent admitted authoring the document and asking the two students, H.W. and L.L., to sign it. She explained that she prepared the narrative for the benefit of the administrator who would receive the referral, and asked for the students to sign it so that the administrator would know which students had witnessed the incident. Respondent testified that she only showed the students the second page, which had a little more than one paragraph of text and a place for their signatures. H.W. did not testify, and L.L. recognized her signature on the narrative but did not recall signing it. Respondent’s testimony that she only showed the students the second page is accepted. However, it makes little difference. The second page stated: [s]uspension, today’s events and his current failing academic standing as a retention in 6th grade. I have tried to keep this child in my classroom since he is a repeater and will be going to seventh grade next year. He could easily have been written up and referred weekly. I have tried to develop a relationship with him to support and encourage him. His behavior is however, a detriment to the class as a whole. At this point, he will no longer be extended any leniency for inappropriate behavior. The line for the first signature is less than one inch from the typed text. It does not matter whether the two students signing the document were shown the first page: there is significant derogatory information about both Z.M.’s behaviors and academic issues on the page that the two students signed. The fact that page two of the document does not mention Z.M. by name is also irrelevant, given that the students were asked to sign the narrative soon after the incident where Z.M. was clearly a participant. On or about December 19, 2011, Respondent prepared a second narrative regarding problematic behaviors in her classroom. The narrative also stated that the students signing it have never witnessed Ms. Soukey use physical force to get the boys in her class to behave. She asked several students in the classroom to sign the document, and admits doing so. This narrative is signed by students R.R., S.R., S.P., N.S., C.G., G.D., and B.B. Only one of these students testified at hearing, and that student’s testimony does not reference the narrative. Respondent admitted preparing the narrative, stating that upon the advice of counsel, she was documenting those things that were happening in her classroom because she felt that she was being set up for a constructive termination. This narrative does not reference Z.M. Preparing the documents for her personal use is one thing. Having students sign the documents regarding the behavior of their classmates is another matter altogether. It was inappropriate to ask students in the classroom to sign a document detailing the misbehavior of other students in their class. Respondent must have been aware that a student had accused her of using physical force against him, in light of her including a denial of such behavior in the December 19 narrative. However, the evidence presented at hearing did not rise to the level of clear and convincing evidence that she, in fact, inappropriately grabbed, pushed or hit students in her class. There were students who testified that Respondent pushed them in order to get them moving to their seats. Some students described Respondent’s actions as placing her hands on a student’s shoulders to propel them forward toward the student’s seat. It is found that she did in fact place her hands on students to nudge them along to their seats. Beyond that, however, the students’ testimony was vague at best. The students often did not indicate who was pushed, pulled, or hit, and little or no date or time-frame was identified.3/ On the other hand, several students testified that they never saw Respondent punch, slap, or push anyone, or pull their hair. Z.M., one of the most credible students who testified, admitted his role in a fight that occurred in the classroom, and admitted that he enjoyed being considered the class clown. However, he did not recall Respondent ever punching, slapping, or grabbing a student by the hair. When asked if she ever grabbed anyone by the shirt and pulled them, he answered, “not really in an aggressive way, no.” One student, K.J., testified that Respondent deliberately stepped on his toes in class. K.J. is a tall student who could not sit comfortably at his desk with his feet under the desk, because to do so caused his knees to hit the underside of the desk. As a result, he often had his feet in the aisle in front of him. K.J. sat on the front row, and Respondent told him repeatedly to keep his feet out of the aisle. K.J. testified that Respondent stepped on his toes at least twice. He testified that he would ask her to get off of his feet and she would not respond, acting like she did not hear him, and then would ask him to put his feet under the desk. He was not aware that custodians had come to the classroom to alter his desk so that he could sit more comfortably. K.J. admitted it was possible that Respondent asked him to keep his feet under his desk for safety reasons, but believed that she stepped on his toes deliberately. However, on the totality of the record presented, while the evidence is compelling that Respondent did in fact step on K.J.’s toes, the evidence leaves more than one equally plausible alternative in terms of Respondent’s intentions. She could have deliberately stepped on K.J.’s toes to make a point to him about keeping them under his desk, or she could have stepped on them accidentally because they were admittedly in an aisle that should have been clear. Testimony was fairly uniform that the classroom was noisy. She could have heard his request that she move off of his toes and ignored it, or she could have not heard it. Given that either interpretation is plausible, the evidence is not clear and convincing that stepping on Respondent’s toes was intentional. There was no dispute that the classes Respondent taught that year were unruly and that she was frustrated with the students in her care. There was a lot of yelling, and little effective discipline. There was discussion among the students about the desire of some them to have a different teacher, and at some point in February 2012, students in Respondent’s classes were asked to go to the office and make statements about things they observed in the classroom. Ms. Willis testified that the students were asked to write a statement if there was anything that had happened in Respondent’s class. The statements were far from uniform. It is clear from reading some of the statements that the students are reacting to an inquiry concerning inappropriate touching, and responding that yes, she did touch students, or no, she did not. Whether the question that framed the responses came from Ms. Willis or from the students themselves is not clear: however, there was testimony that the students circulated a petition to try to get her fired, and that they discussed among themselves what they were going to write in their statements. Even with such discussion, there is not enough concrete detail about the alleged events to deem them credible.4/ In addition, there were several adults who came in and out of Respondent’s classroom and spent significant time there during this period. Among those adults were Ms. Christensen, Ms. King, Ms. Hammack, and Ms. Bentz. All who testified talked about the noisy, unruly atmosphere of the classroom, and there was agreement that Respondent appeared frustrated. However, none testified to ever seeing her inappropriately touch a student. Ms. Christensen did not testify. She was a paraprofessional in Respondent’s classroom. There are written statements by Ms. Christensen about various matters occurring in the classroom, in which she states that she had not witnessed Ms. Soukey physically handle a student by hitting, slapping, or punching them.5/ Ms. Hammack was also a paraprofessional who worked in Respondent’s classroom, generally every day. She identified her statement that she had never seen Respondent use physical force to force a student to comply, and testified credibly that she never saw Respondent punch or kick a student, or grab them by the hair, and that she would have seen it if it had occurred. Similarly, Ms. King was a special education teacher who worked in Respondent’s classroom approximately twice a week, in the mornings. She testified credibly that while there was not much control in the classroom, she never saw Respondent be physically inappropriate with a student. Finally, Jan Bentz was a veteran teacher who worked as a substitute at Old Kings. In January 2012, she was asked to work in Respondent’s classroom to provide classroom management support while Respondent taught. When Respondent was eventually removed from the classroom, Ms. Bentz took her place. She, like the other adults who spent time in Respondent’s classroom, testified that she never saw Respondent use excessive force with a student. More importantly, Ms. Bentz testified that the students told her about things that had happened in the classroom previously that she did not in fact witness. She gave the student’s stories little credence because she considered it to be hearsay. When asked on cross-examination about what she was told, she stated that what the students told her was mostly about thrown backpacks: “I don’t know that any actual hand-on-kid type thing happened, and I don’t recall being told about anything like that.” Surely, reporting that a teacher used excessive use of force would have been as important, if not more so, than relating instances where backpacks were tossed outside. Respondent readily admitted that she was not well- suited to teach in a sixth-grade inclusion class, and that because of the many issues going on in her life, she was not doing her best work. However, she also testified, credibly, that while she was exhausted, frustrated, and sometimes angry while working with these students, she did not touch them inappropriately. While it is found that she did guide students to their seats by placing her hands on their shoulders, and sometimes applied pressure to get them to sit in their seats; and that she stepped on K.J.’s toes, it is found that she did not take either action with the intention of harming any child in her care. Respondent clearly did not have control of the sixth- grade classroom and it was a mistake to place her there, especially given the concerns she had expressed when given the assignment. The many serious complications in her personal life, including the serious illness of her husband, mother, and father, and her own debilitating depression, certainly affected her ability to perform her job as she wanted to. Her actions in creating narratives and having them signed by students was misguided and meant as a way of documenting things happening in her classroom. However, it was inappropriate to involve the students in her classroom in her attempt to create any kind of record, whether personal or professional.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated section 1012.795(1)(j) and rule 6A-10.081(3)(a) and (e). It is further recommended Respondent be reprimanded; that she be placed on probation for a period of one year; and that as part of her probation, she be required to attend courses as determined by the Commission, in the areas of ethics and stress management. DONE AND ENTERED this 15th day of January, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2016.
