Findings Of Fact Based upon my observation of the witnesses, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Richard A. Cohan, was employed by the Dade County School Board as a classroom teacher continuously from the time of his initial hiring in August 1970 until November 19, 1986, when he was suspended by Petitioner. During Respondent's employment with the Dade County School Board, he has taught at Shenendoah Junior High School, Booker T. Washington Junior High School, Kinloch Park Junior High School, Kensington Park Elementary School and Miami Edison Senior High School. Respondent was employed as a continuing contract teacher at Miami Edison Senior High School at all times relevant to the alleged misconduct herein. 1984-85 School Year Respondent's performance as a classroom teacher was satisfactory until the 1984-85 school year when he was absent 41 days from school. Frederick Sturgeon, Principal of Miami Edison Senior High School, made a notation concerning the absences on the Respondent's 1984/85 annual evaluation. 1985-86 School Year The Respondent's absenteeism continued into the 1985-86 school year. On November 5, 1985, Sturgeon held a conference for the record with Respondent because he had been absent 27.5 days since the beginning of the school year. Sturgeon was also concerned because Respondent failed to follow established school procedures when reporting his absences. During the 1985-86 school year, teachers who anticipated an absence were required to call a specific telephone number at the school and leave a taped message. The school secretary could check the messages during the night and arrange for any needed substitutes. The Respondent, however, usually called the school on the morning of the day he was absent. Thus, the school would have very little time in which to secure a substitute teacher who was specifically suited to teach the subject matter of the Respondent's classes. At the November 5, 1985 conference, Respondent was given specific instructions by Sturgeon to: Report any future absences to Assistant Principal Weiner personally and to discontinue calling the tape recording machine to report absences; Ensure that weekly lesson plans were available so that a substitute teacher would be able to continue with the lesson for that day; and Have on file with the school three days of "emergency lesson plans" dealing with general academic skills. On February 28, 1986, Sturgeon held another conference with the Respondent. The Respondent had been absent 5 times since the November 5, 1985 conference. On three of the days, Respondent did not call to report his intended absence. Sturgeon reiterated the same directives given Respondent during the November 5, 1985 conference. As of April 24, 1986, Respondent had been absent 58.5 days since the beginning of the school year. Because Respondent's absence pattern made it difficult to schedule a face to face conference, Sturgeon wrote a letter to Respondent expressing his concern over the high number of absences and the fact that from March 18, 1986 through April 24, 1986, there were 26 days during which the Respondent had not furnished lesson plans for his classes. Sturgeon again reiterated the directives of the November 5, 1985 conference. On May 12, 1986, a conference for the record was held with Respondent at the school board's Office of Professional Standards. Present at the conference were Assistant Principal Weiner, the Respondent, Dr. Gil (a coordinator in the office), and a union representative. The conference was held to discuss Respondent's performance assessment and future employment with the school board. The Respondent indicated his absences during the year were due to his grandmother's illness, the fact that he was not functioning well and the fact that he was taking medication for an upper respiratory illness. At the May 12, 1986 conference, the Respondent was directed to call Ms. Weinter directly to report any absences and to return his grade book to the school by May 13, 1986. Dr. Gil also determined that Respondent should be evaluated by a physician and an appointment was scheduled for the Respondent with Dr. Roger Rousseau, a psychiatrist. The Respondent first saw Dr. Rousseau on May 15, 1986. On May 20, 1986, the Respondent had still not furnished the grade book to the school. Ms. Weiner directed Respondent, by way of a memorandum, to produce the grade book as previously requested. On May 30, 1986, Sturgeon completed an annual evaluation in reference to Respondent's teaching performance. Respondent was rated "unacceptable" in the category of professional responsibility. On June 4, 1986, Sturgeon discussed with Respondent his most recent absences (May 29th to June 3rd) and the fact that he had not called Ms. Weiner to report them, had not provided lesson plans for two of the days and had still not provided the grade book to the school. The Respondent stated that he would comply with the directives in the future and provide his grade book to the school. Respondent was absent from June 6, 1986 until June 19, 1986. By letter dated June 11, 1986, Sturgeon requested that Respondent provide final examinations for his students and again directed that Respondent furnish the school with his grade book. On June 19, 1986, Sturgeon held a conference with the Respondent. The Respondent had not provided final examinations for his classes (one of the other teachers had to prepare the final exams), had not produced the grade book and had not provided lesson plans for use during his absences. The Respondent indicated to Sturgeon that on occasions, he attempted to contact Ms. Weiner but was unable to get through to her and at other times he forgot to contact her. The Respondent also informed Sturgeon that he was having a personal problem that he could not share with the school, and that the personal problem was having such an effect on him that he didn't feel that he could comply with the directives. On July 17, 1987, a conference was held at the school board's Office of Professional Standards, between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to review Respondent's performance over the previous school year. In Sturgeon's opinion, the Respondent's students had not been graded properly during nearly the entire year, final exams had to be administered which did not adequately assess the students' progress and the students had not reached the course objectives. At this time, the Respondent was a little more specific about the problem that he had mentioned to Sturgeon earlier and stated that he was having a mental problem and that he had experienced a series of traumatic experiences which had affected his ability to attend school. At the conclusion of the July 17, 1987 conference Sturgeon decided to recommend a short term of suspension, a medical examination and a period of controlled monitoring during the next school year. The recommendation was approved by the school board and Respondent was suspended for ten work days beginning the 1986-87 school year and was placed on probation for a 45 day monitoring period. The Respondent did not contest the suspension. 1986-87 School Year The Respondent returned to work from his suspension on September 16, 1987. Classes for the new school year had already commenced. Prior to returning to work, Respondent had gone to school and was given a teacher handbook in biology by Ms. Weiner. Respondent prepared lesson plans and tests based on the teacher handbook he had been given. When Respondent returned to school, he was given a new teacher handbook for biology. Respondent had to re-do all of his lesson plans and tests. In addition, he discovered that none of his classes had been issued textbooks. Respondent also received a folder filled with five classes worth of work for the proceeding 15 days which was assigned by the substitute teacher. On September 29, 1986, Ms. Weiner conducted an observation of Respondent's class. Respondent was rated "acceptable" in five categories but "unacceptable" in the area of assessment techniques. This rating was based on the fact that there was no work done by the students contained in the student folders, his grade book contained only one entry grade per student for only one week and students were allowed to grade other students' essay-type examinations. Weiner gave Respondent a prescription for improving his deficiencies which included the directive that he conduct at least two formal assessments of student progress per week and maintain student folders to keep evaluative items. During October 1986, the Respondent was absent 15 days. Most of the absences were due to a severe intestinal flu which Respondent contracted. The Respondent failed to report his absences directly to Ms. Weiner as previously directed. On some occasions, the Respondent attempted to call Ms. Weiner, but could not get through to her on the telephone. When Respondent was unable to contact Ms. Weiner he would sometimes call the answer phone and leave a recorded message. On October 27, 1986, a conference for the record was held at the Office of Professional Standards between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to discuss Ms. Weiner's observation of Respondent, his continued failure to contact Ms. Weiner directly regarding absences and his failure to file emergency plans. On November 3, 1986, Sturgeon conducted an observation of the Respondent's classroom. Sturgeon rated the Respondent "unacceptable" in the area of assessment techniques. This unacceptable rating was based on the fact that Respondent did not have any student folders and had not assigned any homework. School policy required that teachers assigns homework at least twice a week. Respondent was also rated unacceptable in the area of professional responsibility. On November 14, 1986, Ms. Weiner conducted an observation of Respondent's class and rated him "unacceptable" in the area of assessment techniques. The Respondent had no student folders, did not conduct at least two formative assessments of the students per week and there were no summative assessments of the student's progress. The Respondent admitted that he did not have formal folders and that his evaluation techniques were deficient. The Respondent stated that he was unable to employ the student assessment procedures recommended given by Ms. Weiner during the first few months of the 1986-87 school year because he was in the process of "catching up" after his return from suspension and was unable to do all of those things in such a short period of time. In addition, Respondent was hindered in his attempt to catch up because he was unable to have a lot of needed items copied because at times the machines were broken and at other times teachers with current items requiring reproduction were given priority. On November 19, 1986, Petitioner suspended Respondent from his position at Miami Edison Senior High School. Beginning in the 1984-85 school year and continuing through to the 1986-87 school year, Respondent suffered from a dysthymiac disorder referred to as neurotic depression. Respondent's condition was first diagnosed by Dr. Roger Rousseau, a psychiatrist, on May 15, 1986. At the insistence of Dr. Gil, Respondent went to Dr. Rousseau's office for an examination. Dr. Rousseau was chosen from a list provided to Respondent by Dr. Gil. Dr. Gil personally made the appointment for Respondent to see Dr. Rousseau. Respondent at first did not realize or believe that he was suffering from a mental illness and initially resisted the treatment provided by Dr. Rousseau. However, Dr. Rousseau was able to establish a psychotherapeutic relationship with the Respondent after a short period of time. After the doctor-patient relationship was established, Respondent decided to continue seeing Dr. Rousseau and kept weekly appointments from June, 1986 until November, 1986. Respondent was treated with individual psychotherapy and antidepressant medication. In November of 1986, Respondent stopped seeing D. Rousseau because Respondent moved to Atlanta, Georgia, shortly after being suspended. Neurotic depression is a serious mental illness of a cyclical nature which may be physically disabling while the afflicted person is in a pathological state of depression. The symptoms of a neurotic depression include extreme sadness, apathy, lack of motivation, inability to concentrate, psychomotor retardation, insomnia and loss of appetite. Respondent's periods of pathological depression were characterized by feelings of helplessness, hopelessness and an apathy toward outside activities, including his employment. During Respondent's depressive states he would isolate himself at home, withdraw from all social contact, neglect his nutrition and hygiene and suffer insomnia. At times, Respondent would be unaware of the passage of time and would have crying spells. In his depressive condition, sometimes Respondent knew what he was required to do, such as calling in to report an absence, but because of his despair and dejected mood, was unable to motivate himself to do anything. Respondent's apathy and inability to attend to his necessary duties was a direct result of his neurotic depression. Due to the depressive symptomatology, a neurotically depressed person might fail to perform required duties for a number of reasons. As a result of an inability to concentrate, the depressed person may be unable to receive and assimilate instructions. The depressed person having a desire to complete a required duty may lack the physical capacity to perform because mentally he or she feels unable to do so. Further, because of an unconscious, passive- aggressive need for punishment, a depressed person may neglect to perform a required duty. The Respondent was examined by Dr. Albert Jaslow, a psychiatrist, on September 15, 1986 at the request of Dr. Gil of the Office of Professional Standards. Dr. Jaslow confirmed that Respondent was suffering from a mental illness and found that Respondent had made progress with his treatments from Dr. Rousseau. Dr. Jaslow noted that Respondent had reached a state of "relative adjustment" and had begun to realize that it would be necessary for him to be involved in a psychotherapeutic relationship in order to control the negative behavioral aspects of his periods of depression. Dr. Rousseau believes that Respondent responded well to treatment after an initial period of resistance and lack of insight (which is a part of the depressive symptomatology). Dr. Rousseau feels that the Respondent was getting better during the course of therapy but will need to continue taking his medication and receiving psychotherapy in order to fully complete the recovery process and control any recurring symptoms of depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: Respondent be dismissed from employment; however, said dismissal shall be held in abeyance for 2 years from the date of the Final Order contingent on the following: Respondent's present suspension shall remain in effect until the commencement of the 1987-88 school year when Respondent shall return to work; Respondent shall continued treatment with Dr. Rosseau or another qualified psychiatrist of his choice; Respondent shall maintain acceptable performance evaluation reports during the school year, overall acceptable annual evaluations and be recommended for employment by his school principal at the end of the 1987-88 and 1988-89 school years. The Office of Professional Standards, Dade County Board, shall monitor the Respondent's progress and fulfillment of the terms of the Final Order. If the Office of Professional Standards provides information by letter or motion to the school board that the Respondent has failed to meet any of the terms of this Order, the school board shall, if satisfied that the information is correct, immediately effectuate Respondent's dismissal by majority vote. If Respondent meets the requirements of the Final Order, the dismissal shall be remitted without further action. DONE and ORDERED this 28th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4805 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Addressed in Procedural Background section. Addressed in Procedural Background section. (No finding of fact 3) Addressed in Procedural Background section. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Findings of Fact 9, 10 and 11. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Rejected as unnecessary and/or subordinate. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 24. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 6. Adopted in substance in Findings of Fact 8-21. Adopted in substance in Finding of Fact 9. Adopted in substance in Findings of Fact 9 and 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 29. Rejected as subordinate and/or unnecessary. Addressed in Procedural Background section. Adopted in substance in Finding of Fact 31. Addressed in Conclusions of Law section. COPIES FURNISHED: Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 William duFresne, Esquire 2950 Southwest 27th Avenue Suite 310 Coconut Grove, Florida 331133 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33136 Dr. Patrick Gray Division of Professional Standards Dade County Public Schools 1550 North Miami Avenue - Suite 100 Miami, Florida 33136 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1550 North Miami Avenue Miami, Florida 33136
The Issue The issue to be determined in this case is whether Respondent violated section 1012.795(1)(f), (g), and (j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(2)(a)1., 5., and 8., and, 6A- 10.081(2)(b)1., and 3., as alleged in the Amended Administrative Complaint. If it is found that Respondent has committed any of the statute or rule violations alleged, the penalty that should be imposed must also be determined.
Findings Of Fact Based on the demeanor and credibility of the witnesses, the documentary evidence admitted, and the record as a whole, the following facts are found: Respondent held Florida Educator's Certificate Number 1294936, covering the areas of English, English for Speakers of Other Languages (ESOL), and Reading, which was valid through June 30, 2020. At all times material to the allegations in the Amended Administrative Complaint, Respondent was employed as a Reading Teacher at Don Estridge High Tech Middle School ("Don Estridge") in the Palm Beach County School District. C.V.'s Relevant Background During the 2017-2018 school year, C.V. was an eighth-grade student at Don Estridge. Respondent was his intensive reading teacher. Intensive reading is a remedial course for students who are reading below grade level. Prior to working with Respondent, C.V.'s grades were below average. He received D's and F's in school. In 2016, C.V.'s mother, Renee Horn, married C.V.'s stepfather, Charles Horn. Prior to that marriage, C.V. was an only child living alone with his mother from the time he was two years old. C.V.'s stepfather also had children from a previous relationship. At the time C.V. met Respondent, his parents observed that he was having a difficult time adjusting to their newly- blended family. C.V.'s parents allowed him to spend time with his biological father. However, in their parental judgment, they believed that it was in C.V.'s best interest to limit visitation with his biological father. C.V.'s parents observed that C.V. displayed signs of non-characteristic fragility and volatility while he was under the instruction of Respondent, which concerned them. C.V.'s parents believed that the demonstrated emotional changes in C.V. were related to his friendship with Respondent and his resistance to the parents' desire to draw more boundaries with respect to that friendship. C.V. did not testify. Therefore, the source, or sources, of the behavioral issues observed by his parents and other adults around him were not conclusively established. Respondent's Relevant Background Respondent viewed herself as a teacher who was relatable to her students. She was an enthusiastic and energetic educator who enjoyed taking the time to help students whom she described as having previously slipped through the cracks. Respondent regularly provided extra help to students who requested it. Her door was open to any of her students who desired additional assistance with their school work. She regularly provided academic help to students during her lunch break. Tutoring C.V. first began receiving extra help with his school work from Respondent during his lunch period. In addition to C.V., Respondent regularly had between five and 15 other students in her classroom during the seventh-grade lunch period. This was also the time allotted to Respondent for her own lunch break. There was also a group varying between five and ten students whom she allowed to come to her classroom to work while she was teaching another class. Additionally, C.V. came to Respondent for help with his work in the mornings before school started. After C.V. began spending extra time working with Respondent, his grades improved. C.V.'s parents were aware of the correlation between the help from Respondent and the improvement in C.V.'s academic performance. In December of 2017, C.V.'s mother contacted Respondent and asked her to tutor C.V. outside of school on a private basis in exchange for payment. Respondent communicated with C.V.'s mother through email and text messages. Respondent authorized C.V.'s mother to give Respondent's cell phone number to C.V. so that he could communicate with her directly for educational purposes while the mother was at work. There was no evidence of the content of any text messages between Respondent and C.V. C.V. rode the school bus as his mode of transportation to return home after school. He was unable to stay after school for tutoring and still take the bus to get home. Although it was common for teachers to tutor students at a public library located near Don Estridge, Respondent found that when doing so, she often had to wait with students after tutoring sessions at the library for parents to arrive to provide transportation. This sometimes interfered with Respondent's ability to pick up her own children from preschool on time. For that reason, Respondent tutored C.V. after school at his home. She ensured that others were present at the home during tutoring sessions. Respondent also continued helping C.V. at school outside of his scheduled time in her class on an unpaid basis. With the consent of C.V.'s mother, Respondent transported C.V. from the school to his home either after helping him at school or when she was going to his home to tutor him. There was one occasion when Respondent drove C.V. to school for which it was unclear whether the parents gave her permission to do so. Believing that C.V. had developed an unhealthy attachment to Respondent, C.V.'s parents desired to limit his interaction with her. However, they did not terminate the tutoring sessions. Additionally, C.V.'s mother initiated contact between Respondent and C.V. on matters unrelated to academics amid the parents' efforts to create boundaries in the relationship. C.V.'s Time Spent in Respondent's Classroom In order to come to her classroom during their designated lunch periods, students were required to have a pass signed by Respondent. Those students who came to Respondent's classroom during lunch regularly reused the same pass to eliminate the need for her to create a new pass each time. C.V., along with other students, had such a pass issued by Respondent. Several witnesses testified that C.V. had a sticker on the back of his student identification card, which they characterized as a permanent pass placed there by Respondent, enabling C.V. to visit her classroom at any time. However, the provenance and meaning of the sticker were never conclusively established. On several occasions, C.V. left his elective music class to do work from other classes in Respondent's classroom. He did so with the coordinated permission of Respondent and the music teacher. Respondent believed that it was reasonable for C.V. to do so because her classroom provided a quieter environment for his studies and he was ahead in the music class because of his existing background in piano. When C.V.'s parents learned how much time C.V. was spending in Respondent's classroom during the school day, they thought that it was excessive. Church Attendance and Sharing Religious Beliefs Respondent served as an unpaid worship leader and co-runner of the children's ministry at a church where her father was the pastor. Neither she, nor any other person, served in a role designated to recruit members to the church. Respondent did not receive any incentive from the church to bring in new members. Respondent played music of various genres in her classroom. Sometimes she played Christian music. Respondent wore a cross necklace to school. When asked, she was open with students about the general fact that she was a Christian and that she attended church. Witnesses observed flyers with information about Respondent's father's church on her desk. It was not established that any students received, or even saw, the flyers. Some of Respondent's students have attended her father's church. When a student expressed interest in the church, Respondent did not give the student information about the church without express permission from a parent. With the permission of his parents, C.V. attended Respondent's father's church on several occasions. His parents attended the church with him on one occasion. Also, with the permission of his parents, C.V. was transported to and from church by Respondent or her husband and spent time with Respondent's family at her home after church. At some point, C.V. told some of his classmates that he attended Respondent's church. The nature of C.V.'s comments to his classmates about attending church with Respondent remains unclear. The evidence did not establish that Respondent directed him to do so. Admittedly out of frustration, Respondent posted a Psalm on the door outside of her classroom before leaving Don Estridge on her last day. She had contemplated handing the Psalm to Principal Capitano, but chose to place it on the door instead. A teacher observed the Psalm on the door, and an assistant principal removed it. Overnight Visits On one occasion, C.V. spent the night at Respondent's home with her family while his mother was out of town on a business trip. Having the impression that C.V. was unhappy at the prospect of going on the trip, Respondent and C.V.'s mother arranged for C.V. to stay with Respondent and her family for the weekend. C.V. spent the night at Respondent's home on a second occasion, which was also coordinated between Respondent and C.V.'s mother. C.V. expressed that he wanted to live with Respondent and that he knew more about her than her husband. Exchanging Gifts C.V.'s mother gave Respondent a number of gifts during the time when she was C.V.'s teacher. As a Christmas gift, C.V.'s mother gave Respondent a $100 gift card and two lipsticks. Later, she gave Respondent dresses for her daughters. Finally, for Valentine's Day, she gave Respondent a stuffed animal and a thermal water bottle. Respondent considered the series of gifts to be very generous. C.V.'s birthday was in February. Respondent wanted to reciprocate the generosity of C.V.'s mother by buying C.V. clothes for his birthday. Respondent sought permission from C.V.'s mother to purchase him clothing, which his mother declined. Believing that C.V.'s mother declined the gifts out of social politeness, Respondent ultimately bought him clothing for his birthday. Virginity Conversation One day during class, some of Respondent's students were discussing the topic of virginity among themselves. Respondent was not a party to the conversation until C.V. asked her at what age she thought kids should lose their virginity. Respondent believed that this was an age-appropriate topic for her 12- and 13-year old students to be curious about, but she declined to answer the question. She then told C.V. that it was not an appropriate question for her and that he should ask his mother instead. Although numerous witnesses testified to what they thought Respondent said to her students about virginity, Respondent is the only witness who was present during the conversation. Her testimony on the subject was credible. Principal Capitano testified that if a student brings up the topic of virginity to a teacher, the teacher should respond by saying that it is not an appropriate conversation to have. Meeting with the Guidance Counselor and Aftermath On March 12, 2018, Respondent became concerned that C.V. was exhibiting behavior that caused her to fear that he was considering harming himself. Although she did not believe that C.V. wanted to go, Respondent escorted him to see one of the school's guidance counselors, Kristen Saffici. Respondent took this action because she believed it was her obligation to do so based on C.V.'s behavior, which she considered potentially self-injurious. Counselor Saffici and Principal Capitano agreed that bringing C.V. to a guidance counselor was the appropriate course of action for Respondent under the circumstances. Respondent remained in the meeting with Counselor Saffici and C.V. Respondent told Counselor Saffici about her impressions of the problems C.V. was having. Over the course of explaining the background of what she believed to be C.V.'s problems, Respondent stated that she "loved him like a son." Counselor Saffici thought that the statement was inappropriate. From Respondent's perspective, saying that she loved C.V. like a son was a device she regularly employed with students to offset, or soften, a concurrent critical statement. During the meeting, Counselor Saffici observed that C.V. appeared withdrawn and sullen. He had his backpack on the table with his head down on the backpack and did not make eye contact. Respondent consoled C.V. by rubbing his head. Counselor Saffici believed that Respondent's behavior toward C.V. was not appropriate. Counselor Saffici, however, did not perceive the behavior to be sexual in nature. Based on her observations, Counselor Saffici believed that Respondent had no mal intent. It was her opinion that Respondent had C.V.'s best interest at heart. Following the meeting with Counselor Saffici, the school resource officer, Gary Chapman, interviewed C.V. independently to determine whether C.V. was a threat to himself or others. Officer Chapman concluded that C.V. was not considering self-harm at that time. Based on the interview, Officer Chapman's understanding was that C.V.'s emotional distress was related to his desire to see his biological father more often. C.V.'s parents met with Principal Capitano, Counselor Saffici, and Officer Chapman. Having determined that there was no reason to suspect a sexual relationship between Respondent and C.V., Officer Chapman closed his investigation. Principal Capitano told Respondent not to have further contact with C.V. The next day, C.V. came, unexpectedly, to Respondent's classroom to see her. Respondent spoke to him, but tried to get him to leave without alarming him or being rude. After C.V. left, Respondent immediately advised Principal Capitano and Counselor Saffici that he came to her classroom, and Respondent sought their guidance on what to do. Feeling that she did not have clear direction on what to do if C.V. came back, Respondent posted a Psalm on her door and left Don Estridge after her first-period class. In a letter dated March 16, 2018, Principal Capitano recommended Respondent's termination as a probationary employee at Don Estridge, effective March 27, 2018. The letter did not specify a reason for Respondent's termination, but stated: "Probationary Contract Employees may be dismissed without cause or may resign without breach of contract." Principal Capitano, however, testified that she recommended Respondent's termination because she believed that Respondent had violated the Code of Ethics. Specifically, Principal Capitano thought that Respondent put herself in a position where her relationship with a student was causing him duress. Following the events of March 12, 2018, C.V.'s parents arranged for C.V. to talk to a therapist. Thereafter, they observed improvements in his behavior. The content of the discussions C.V. had with his therapist was not conclusively established. Overall Nature of C.V. and Respondent's Relationship C.V.'s parents believed that C.V. saw Respondent as a girlfriend. However, they never thought that Respondent considered the relationship romantic or that anything sexual occurred. Some of Respondent's colleagues thought that her relationship with C.V. was uncomfortable or lacked appropriate boundaries. C.V.'s mother, viewed Respondent as a positive role model. In encouraging Respondent's relationship with C.V. in some respects, while attempting to establish more boundaries in others, C.V.'s parents were trying to balance the dramatic improvement in C.V.'s grades with what they believed to be C.V.'s unhealthy attachment to Respondent. Respondent believed that C.V. was very bright, but not applying himself in school. It was her desire to help him fulfill his potential. On a social level, she thought that he was a polite young man who shared hobbies with her husband and interacted well with her daughters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order dismissing the Amended Administrative Complaint and all charges contained therein. DONE AND ENTERED this 15th day of January, 2021, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER 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, 2021. COPIES FURNISHED: Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 (eServed) Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 (eServed) Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Dwon Ballard attended North Miami Junior High School from September 1983, to January 1984, and from May 1984, until his reassignment on November 29, 1984. During these times, Dwon Ballard was involved in eight incidents of disruptive or rebellious behavior, including cutting class, truancy, leaving school ground without permission, defiance to a substitute teacher, fighting, and returning to school while on suspension. The final incidents which resulted in reassignment involved a fight on November 1, 1984, which resulted in a five day suspension and a fight on November 19, 1984, during which Dwon Ballard struck another student in the face without warning or provocation. This last incident resulted in a ten day suspension and a decision to reassign Dwon Ballard to the Miami Douglas McArthur Senior High School-North. Reasonable attempts were made to assist Dwon Ballard in resolving his problems. These attempts included counseling with Dwon Ballard and conferences with Ballard's mother and the students involved. The other students involved were initially disciplined, but were not reassigned to the opportunity school. The other students involved were responsible for the first fight in that they attacked Ballard. During the intervening time, they continually threatened Ballard, called him names, harassed and otherwise antagonized him. It is however admitted that Ballard made the first physical contact in the second fight. A review of Ballard's report card while attending Miami Douglas McArthur Senior High School-North shows that he has passing grades in all subjects. Prior to reassignment, Ballard was receiving a satisfactory mark in some subjects at North Miami Junior High School.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Dade County enter a final order assigning Dwon Ballard to Miami Douglas McArthur Senior High School-North. DONE and ENTERED this 4th day of March, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 4th day of March, 1985. COPIES FURNISHED: Mitchell Horwich, Esquire 7900 N.W. 27th Avenue 149 West Plaza, Suite 210 Northside Shopping Plaza Miami, Florida 33147-4796 Mark A. Valentine, Esquire Assistant Board Attorney Dade County School Board 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Based on my obersvation of the witnesses and their demeanor while testifying, the arguments of counsel, and the briefs which were filed post- hearing, the following relevant facts are found. Ernest B. Brown is the holder of Post-Graduate Rank II Florida Teaching Certificate No. 167290, covering administration and supervision, elementary education and junior college which by its term is valid until June 30, 1985. Ernest Brown, Respondent, has been employed in the public schools of Pinellas County as fifth grade teacher at Gulf Beaches Elementary School since August, 1975, and was on continuing contract during the 1976-77 school year. He resigned effective May 31, 1977 after inquiries were raised concerning his personal conduct with a female fifth grade student (Michelle Stewart). Thereafter the Department of Education received a report from the Pinellas County School officials on or about June 1, 1977 indicating that Respondent had been charged with lewd and lascivious acts in the presence of a female child under the age of 14 and handling and fondling a female child under the age of 14 years. Pursuant thereto and following an inquiry by the staff of the Professional Practices Council, on July 18, 1977, said Council issued a report to the Executive Committee of the Professional Practices Council whereupon the Executive Committee recommended that the Commissioner of Education find that probable cause exist to believe that Respondent is guilty of acts which provide grounds for the revocation of his Florida teaching certificate. By letter dated July 27, 1977, the Commissioner found probable cause and directed the filing of the instant petition herein. Michelle Stewart, eleven years old and presently a fifth grade student at Gulf Beaches Elementary School, was a student of Respondent while she completed here third grade instruction. Ms. Stewart was approximately three weeks late reporting for classes during her third grade school year. After being in school for approximately two weeks, she sought assistance from Respondent regarding problems she was having with her math. At that time, there were approximately three or four other students also seeking assistance from the Respondent. Respondent asked Michelle to sit in a chair behind his desk where she waited until the other students had received their assistance. According to Ms. Stewart, Respondent asked to touch her pants in the crotch section. Ms. Steward was shocked but did not protest when the Respondent touched her in the seat of her pants for approximately one minute. On another occasion, Respondent was invited to attend a birthday party given at Michelle's house by her. Respondent was reluctant to attend inasmuch as he did not have a gift to give her. He reluctantly agreed to attend based on the enticement of Ms. Stewart, her mother, and several other students who attended the party. When persuaded to attend the party, Respondent agreed only to come if Ms. Stewarts mother permitted him to take Ms. Stewart shopping for some clothing within the next few days. As best as can be determined from the record, it appears that the birthday party was during the early part of May, 1977. Within a few days, Respondent arranged to take Ms. Stewart shopping by obtaining permission from her mother. However, as the facts were later brought out, it appears that Respondent obtained permission from Ms. Stewart's mother by telling her that he wanted Ms. Stewart to assist him in arranging some books on his book shelves, and Ms. Stewarts mother agreed with the condition that Ms. Stewart be brought back home before six oclock. Ms. Stewart testified that she was picked up by Respondent and taken to his home where they were alone. Immediately after entering Respondents house, he asked here if she was hungry and whether or not she would like to fix herself a sandwich and watched TV for a few minutes. Thereafter Respondent took some pictures of here with his Polaroid camera. Respondent later offered her some clothing and brought them out telling her that she could try the dresses on in his presence. Ms. Stewart undressed in Respondent's presence and when she finished trying on her dresses that he had purchased, Respondent went to the bathroom and undressed, entering his living room area with only his shirt on. During this time Ms. Stewart was undressed and Respondent asked her to lie down on the floor where he had placed a towel and had relocated an electric fan positioned so that it would blow down on them. She testified that he laid on top of her for approximately ten minutes stroking and kissing her. After this incident was over (approximately ten minutes) Respondent pleaded with Ms. Stewart to refrain from telling anyone about the incident to which she agreed. However she testified that she did tell some of her friends about the incident. Ms. Stewart testified that during the next school year she opted to be in another teacher's classroom and Respondent rebelled by talking to her and here mother in an attempt to get her to change her mind. She refused to do so because she wanted to be in the class with a neighbor and her boyfriend. During the school year Ms. Stewart recalled that she and approximately two other students were taken to several extracurricular activities by Respondent after school hours, including the circus, lipizian stallions, and Holiday on Ice. Detective William Creekbaum presently employed as a real estate salesman, was formerly employed as a detective with the St. Petersburg Police Department was assigned to investigate complaints regarding incidents that the Respondent had allegedly been engaged with several minor students including Michelle Stewart. Detective Creekbaum was assigned to investigate the case on or about May 19, 1977 at which time, and during the course of his investigation, he interviewed approximately ten minor female students. On May 31, 1977, he decided that he should contact the Respondent and make certain inquiries of him, which he did at the school. He visited the school and asked the Respondent to come with him down to the police station for some questions. The Respondent drove his car down to police headquarters and a statement was given to Detective Creekbaum. Prior therto, Respondnent was apprised of his rights per Miranda. Detective Creekbaum explained to Respondent the necessity of his being truthful during his investigation, although he stressed the fact that he made no promises that the matter would be handled internally". He testified, and the statements bear out the fact that the Respondent was, in fact, advised that the investigation was criminal in nature. Initially, during the interview, Respondent denied the material allegations of the charges that he had fondled Michelle Stewart, however, upon repeated questioning by Detective Creekbaum, Respondent admitted that he had fondled Michelle Steward as charged. Although Respondent's position on this admission is that he only told Detective Creekbaum that he had fondled Michelle Stewart because he "thought that was what he wanted to hear and further he was led to believe that nothing would come of it". After the admissions by Respondent, Detective Creekbaum advised Respondent that he was under arrest where he was taken to the booking section of the police department. Immediately thereafter, Douglas McBriarty, an employee of the personnel department for the Pinellas County school system and charged with resolving teacher problems, visited Respondent at the jail where Respondent also admitted to the charge of fondling Michelle Stewart. Dr. McBriarty advised Respondent that it would be the Board's recommendation to immediately suspend him pending a decision on the merits and further action by the board to seek revocation of his (Respondent's) teaching certificate by the Professional Practices Council. Respondent asked if he had any options whereupon Dr. McBriarty told him that he could resign. At that point, the Respondent resigned effective May 31, 1977. The Respondent took the stand and testified that he was misled by Detective Creekbaum into thinking that nothing would come of the incident and that while he denied initially fondling Ms. Stewart, he only changed his story to an admission because he was of the opinion that that was what Detective Creekbaum wanted. He also testified that he was of the opinion that nothing would come of the incident as related by Detective Creekbaum. 1/ Without question, the Respondent enjoys a good reputation in the community and by his fellow peers at the school. He is regarded as a very good instructor who goes over and above his call of duty with respect to his classroom duties. Witnesses Nancy H. Akins and Catherine Smith, both instuctors in the Pinellas County school system, testified of their familiarity with the Respondents professional life and both gave him high marks. As stated, the Respondent denied the material allegations of the charging allegations in this case. Presently he is project director for the Tampa sickle cell disease project. In addition to denying the allegations of the complaint herein he testified that he was "set up" by Detective Creekbaum. He voiced his opinion that he felt that if he were cooperative and stated what Detective Creekbaum wanted him to say that he would go free. The undersigned has examined the record to see whether or not any misrepresentations or other statements were made to prompt Respondent to admit to the fondling of Michelle Stewart and the record is barren in this regard. Based thereon, I shall recommend that the allegations contained in the petition filed herein be sustained.
Recommendation Based on the foregoing Findings and Conclusions, it is hereby RECOMMENDED that the teaching certificate of Respondent, Ernest B. Brown, be suspended for a period of two years. ENTERED this 20th day of September, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent.
Findings Of Fact Petitioner first employed Respondent, as a custodian, in late 1991. Respondent's first job was as a substitute custodian, which was a temporary assignment offering few benefits. Petitioner assigned Respondent to Sarasota High School. The substitute position is also known as a non-appointed position. On February 1, 1994, Petitioner changed Respondent's status from non-appointed to appointed. Respondent successfully completed the six-month probationary period. Two years later, Petitioner transferred Respondent from Sarasota High School to the Oak Park School. This transfer resulted from the settlement of a grievance proceeding concerning a matter unrelated to the issues in this case. At the end of the 1996-97 school year, Petitioner transferred Respondent to Sarasota High School. By this time, Respondent had sufficient seniority to be able to bid for a job at a school of his choosing, and Respondent desired to work at Sarasota High School. Respondent began to experience serious job-related problems during the 1997-98 school year. He did a poor job cleaning the classrooms and other assigned areas. His supervisor estimated that Respondent would complete about 60 percent of his assignment. Frequently, Respondent was a "no call, no show," meaning that he neither appeared for work when scheduled nor called in advance of his nonappearance. On at least one occasion in December 1997, Respondent left work early, without permission, so that his supervisor had to have another custodian finish Respondent's job. From the 1997-98 school year until Respondent's departure from employment with Petitioner, he was repeatedly late, absent, or early in departing. On the many occasions on which Respondent was a "no call, no show," Petitioner was required to assign Respondent's work to another custodian working the same shift. This custodian would have to complete his or her own work and Respondent's work in the same shift. This repeated situation undermined the morale of Respondent's coworkers, who resented the extra work for which they received no additional compensation and their inability to do a good job, in the available time, on their assignment and Respondent's assignment. By letter dated April 16, 1998, Petitioner suspended Respondent for one day without pay due to his insubordination. After receiving this discipline, Respondent continued to require reminders from Petitioner about Petitioner's policies for requesting leave and documenting sick leave. Respondent's repeated failure to comply with these policies constituted insubordination. In January 1999, another custodian was serving as acting head custodian during the night shift that Respondent worked. A vendor representative visited the high school to examine some equipment. When the acting head custodian asked Respondent to show the representative a piece of equipment normally used by Respondent, Respondent refused. Angry at the persistence of the acting head custodian in repeating the request, Respondent then attacked the acting head custodian, grasping the man's neck so hard as to leave marks. Respondent was again disciplined for his insubordination. By letter dated March 17, 1999, Petitioner suspended Respondent for three days without pay. On March 3, 1999, Petitioner transferred Respondent from Sarasota High School to "Regional," which refers to an area encompassing several schools. During the summer of 1999, Respondent worked at the Sarasota County Technical Institute. On July 13, 1999, the senior head custodian could not find Respondent, who had already displayed the same work habits and attendance problems that had characterized his earlier employment with Petitioner. When the head custodian finally found Respondent, the head custodian accused Respondent of shirking his work. The record does not permit a finding as to whether Respondent was really performing his work. However, about an hour after giving Respondent a new assignment of cleaning some windows, the senior head custodian checked up on Respondent. Finding him productively at work, the senior head custodian complimented Respondent by saying, "Good job." Respondent replied, "You don't know who you are messing with." Respondent left the job early, without permission. The next day, Respondent called the regional manager for the Facilities Department, who is the supervisor of the senior head custodians. He warned her that if she sent him back to Sarasota County Technical Institute, he might do something bad to the senior head custodian. The regional manager immediately reassigned Respondent so that he could work at Riverview High School. After initially proposing to terminate Respondent, by letter dated August 18, 1999, Petitioner suspended Respondent for one day with pay for insubordination. As the 1999-00 school year proceeded, Respondent continued his pattern of "no call, no show," tardy appearances, and early departures. For example, from October 11, 1999, through March 24, 2000, Respondent was "no call, no show" on 11 occasions. The other custodians increasingly resented Respondent's unreliability because they had to perform Respondent's work without additional pay. Evidently learning of the dissatisfaction of one custodian, Respondent angrily confronted her by getting in her face, shaking his finger at her, and warning her that if she did not have anything good to say, she should not say anything at all. Despite the exhortations of his supervisors and coworkers, Respondent continued to disregard Petitioner's attendance and notification policies. Finally, on March 24, 2000, Respondent showed up with 15 minutes left in the eight-hour shift that he had specifically requested the night before and explained that he had had car trouble. He did not offer an explanation for why he had failed to call his supervisors and Petitioner's district office to notify them of this claimed problem. This incident effectively ended Respondent's employment with Petitioner. By letter dated June 19, 2000, Petitioner terminated Respondent's employment, effective July 12, 2000, due to insubordination. During his employment with Petitioner, Respondent repeatedly disregarded Respondent's policies regarding notification and documentation of leave, repeatedly disregarded the reasonable requests of his supervisors that he comply with these policies, repeatedly ignored the reasonable requests of his supervisors to perform specific assignments in a competent manner, and repeatedly abused coworkers, to the point of grasping one by the throat. In context, these behaviors by Respondent constituted gross insubordination.
Recommendation It is RECOMMENDED that the Sarasota County School Board enter a final order terminating Respondent's employment with the school board effective July 12, 2000. DONE AND ENTERED this 18th day of September, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2000. COPIES FURNISHED: Dr. David Bennett, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231 Honorable Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Charles D. Bailey, III Bowman George 22 South Tuttle Avenue, Suite 3 Sarasota, Florida 34237 Wayne Goff 107 20th Street West Palmetto, Florida 34221
The Issue Whether Respondent, Stephen Lauster (Mr. Lauster or Respondent), violated section 1012.795(1)(g) and (j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1. and (2)(a)5.; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Respondent is a teacher in the School District and has been since 1990. He holds Florida Educator’s Certificate 664969, covering the areas of educational leadership and music, which is valid through June 30, 2021. The Commissioner is the head of the state agency, the Florida Department of Education. The Commissioner is responsible for investigating and prosecuting misconduct allegations against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. During the period relevant to the allegations in the Amended Administrative Complaint, Respondent was employed as a music teacher at the Middle School in the School District. Respondent’s annual professional evaluations for the relevant periods show scores considered “effective” and “highly effective.” Despite this, Respondent has an extensive disciplinary history with the School District, which is set forth below. On or about March 17, 2006, Respondent received a letter of reprimand from his then-principal, Frank Zencuch. On or about March 27, 2009, Respondent received a warning of unsatisfactory behavior from Principal Zencuch. On or about April 2, 2009, Respondent submitted a rebuttal to the March 27, 2009, written warning. On or about May 13, 2009, a Grievance Procedure Level II hearing was held to determine whether the letter of reprimand should be removed from Respondent’s personnel file. The grievance was denied by a School District representative and the letter of reprimand remained in Respondent’s file. On or about December 12, 2013, Respondent’s then-principal, Margaret Jackson, completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about February 7, 2014, Principal Jackson completed a conference summary regarding Respondent, concerning insubordination. On or about April 24, 2014, Principal Jackson completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about March 30, 2018, Principal Jackson completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about April 5, 2018, Respondent submitted a rebuttal to the March 30, 2018, conference summary. The Bus Incident on May 28, 2018 On May 28, 2018, Respondent was on his way home from school and was driving behind a school bus, which had left the Middle School ahead of him. Respondent was driving a large sports utility vehicle which allowed him to see into the rear window of the bus he followed. Respondent noticed students on the bus leaving their seats and moving around. Respondent contacted the School District’s transportation center to report the actions of the students on the bus. Respondent testified that after making his complaint to the transportation center, he saw no change in the actions of the students on the bus, who continued to leave their seats. Respondent continued to follow the bus until it made its first stop in a private gated community. Student M.O. lived in the gated community and got off at this stop to go home. At the time of the incident, M.O. was eleven years old. Her mother, K.O., waited in the community parking lot to pick M.O. up from school. When the bus stopped, Respondent pulled his car alongside the bus, exited his vehicle, and hurriedly approached the bus. M.O. disembarked the bus and walked towards her mother’s car. Respondent stood in front of the opened door of the bus and began to yell at the bus driver. Respondent then beckoned M.O. back to the bus. Respondent angrily yelled at M.O., telling her that the next day, “you come to the band room straight to the band office. If I have to come and find you it’ll be worse than what you are going to already get.” Seeing this transpire, K.O. approached Respondent to inquire about what was happening and why he was yelling at her daughter. K.O. asked Respondent who he was. Respondent told K.O. that the bus and M.O. were “in violation” and that M.O. was required to report to him in the morning. Respondent then continued to yell at the bus driver. He demanded the driver send another student to him—a student he claimed he witnessed standing in the bus’s aisles while it was being driven. K.O. touched Respondent’s arm from behind, to gain his attention. Respondent yelled at K.O. that she should not touch him. They engaged in a verbal exchange that was transcribed by a court reporter during K.O.’s. deposition: Respondent: Get your hands off me. Don’t ever touch me. I am doing what I’m supposed to do. K.O.: (Unintelligible.) Respondent: Lady, it’s fixing to get a lot worse. K.O.: What did you say to me? Respondent: I said, “Lady, it’s going to get worse.” Respondent scolded the bus driver for what he considered to be the driver’s inaction. He threatened all of the students on the bus with a “referral.” K.O. remained at the bus stop until the bus left. M.O. was upset and embarrassed by the incident. She did not know Respondent personally; she only knew that he was the school’s band director. The other students witnessed Respondent yelling at M.O. and K.O., which added to M.O.’s embarrassment. Later that evening, when K.O. arrived at home, she emailed Edward Laudise, the assistant principal of the Middle School, regarding the incident. The next day, Respondent reported to the Middle School, where he was told by Principal Jackson that he was not allowed to have any contact with M.O. On or about July 31, 2018, the School District’s Director of Human Resources recommended that Respondent be terminated based on the bus incident. The School District’s Superintendent joined in the recommendation for termination. However, on or about August 21, 2018, the School District suspended Respondent for a period of five days, without pay, instead. Thereafter, Respondent was the subject of several other disciplinary actions, unrelated to the bus incident. On or about August 27, 2018, Principal Jackson completed a conference summary regarding Respondent’s language/conduct toward students, co-workers, and parents, and his poor attendance and tardiness. On or about May 7, 2019, Principal Jackson held a meeting with Respondent to discuss allegations that Respondent told students, among other things, that “they would be the first generation of young people to die before their parents,” and that they “sound like they have stage 4 cancer.” On or about May 28, 2019, Respondent received a letter of reprimand and recommendation for a four-day suspension from the School District Director of Human Resources. On or about May 29, 2019, Respondent received a letter of reprimand and four-day suspension from the School District Superintendent. In September 2019, Respondent entered into a settlement agreement with the School District, through which the four-day suspension was reduced to two days. The P.E. Incident on January 30, 2020 A.H. and L.H. are students who attend the Middle School. On the date of the hearing, which was held approximately six months after the incident, A.H. and L.H. were 13 years old. On or about January 30, 2020, A.H. and L.H. were participating in physical education (PE) class. Melea Morgan was the PE teacher. A.H. and L.H. left PE class to go to the restroom. There is conflicting testimony as to the amount of time A.H. and L.H. spent in the bathroom, but the amount of time is irrelevant. After leaving the restroom, the students walked towards a water fountain. Respondent contacted Ms. Morgan to let her know that A.H. and L.H. were in the bathroom for a long time. He asked if she approved of him going to get them and Ms. Morgan agreed. Respondent approached A.H. and L.H. as they walked towards the water fountain. Respondent admonished A.H. and L.H. for being in the bathroom for an extended amount of time. He told them that they should be participating more in PE class and that he would be referring them to in-school suspension (ISS). Both A.H. and L.H. distinctly and explicitly recalled the events that took place that day. A.H. credibly testified about her interactions with Respondent, stating: And then Mr. Lauster – and then I started telling Mr. Lauster, so we will participate more, can we please not go to ISS. And he said, well, you’re on the soccer team, you shouldn’t be hanging out with a loser. She’s a do-nothing. You can’t -- you shouldn’t be hanging. And then I was just, like, we will participate more and I’m sorry. He was like, I expect more from you because you’re on the soccer team. And I was just -- and L said nothing. And I was just, I will do more. And then he just kept calling L a loser. A.H. distinctly recalled that Respondent referred to L.H. as a “do- nothing” and a “loser.” L.H.’s testimony was the same. She recalled that Respondent referred to her as both a “loser” and a “do-nothing” and that he asked A.H. why she was hanging out with “this loser,” referring to L.H. Respondent threatened to send A.H. and L.H. to ISS, but then told them he would give them another chance. The School District initiated an investigation into the matter. On or about March 6, 2020, Respondent received a letter of termination from the School District’s Superintendent. On or about April 22, 2020, Respondent entered into a settlement agreement with the School District. Pursuant to the terms of the settlement agreement, the School District did not terminate Respondent. Rather, the settlement agreement operated as a “last chance agreement,” which provided for an automatic termination should any future infractions occur. Respondent was neither apologetic nor remorseful for how he handled A.H. and L.H. Instead, in testimony that was wholly unconvincing, he maintained that he did not call L.H. a “do-nothing” or a “loser,” but, rather, that he told the students that they “made a loser decision” and “chose to be do-nothings in the bathroom.” At only 12 or 13 years old at the time of the incident, L.H. was impressionable. By all accounts, she is a very shy girl. L.H.’s mother testified that L.H. struggles with anxiety and that in the past she has felt like she is a loser and does not have friends. She was “shook up” by Respondent’s comments. Similarly, Respondent was unremorseful and unapologetic about his actions during the bus incident. Respondent attempted to justify his behavior towards M.O., her mother, and the bus driver. He testified that he needed to stop the bus because he saw inappropriate activity on the bus that could have been dangerous to everyone onboard. Respondent is correct that the students on the bus were engaging in inappropriate behavior—they were getting in and out of their seats, walking in the aisles, and playfully fighting with each other. However, Respondent handled it poorly. Principal Jackson testified that the appropriate reaction would have been for Respondent to contact the School District’s transportation department (which he did) and then report the inappropriate behavior to school administration the next day. He should not have approached the bus or condemned the students or the bus driver. Respondent was clearly angry when he spoke to M.O. He lost his composure. Worse still, he directed his anger to K.O. Ultimate Findings of Fact The undersigned finds that Petitioner proved by clear and convincing evidence that Respondent inappropriately yelled at and intimidated M.O. who had changed seats on the bus while it was moving. Respondent also became confrontational with M.O.’s mother and threatened the remaining students on the bus with referrals, regardless of whether they were misbehaving or not. Petitioner also proved by clear and convincing evidence that Respondent told L.H., in front of A.H., that she was a “loser” and a “do nothing.” The undersigned finds that based on the findings of fact above, Respondent’s conduct during the bus incident and the PE incident have been proven by clear and convincing evidence and that Respondent, through his actions, violated the statutes and rules as alleged in the Amended Administrative Complaint. None of the other factual allegations contained in the Amended Administrative Complaint were proven by clear and convincing evidence.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission finding that Respondent, Stephen Lauster, violated section 1012.795(1)(j) by violating rule 6A-10.081(2)(a)1. and (2)(a)5.; and as sanctions for such violations, suspending his educator’s certificate for one year from the date of the Final Order. DONE AND ENTERED this 3rd day of November, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 November, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Lisa M. Forbess, Interim Executive Director Department of Education Education Practices Commission Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact At all times material hereto, Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract. At all times material hereto, Respondent has been assigned to Miami Southridge Senior High School where he taught advanced mathematics courses, such as trigonometry, calculus, and math analysis. At the request of a friend, on November 7, 1986, Respondent sent approximately two ounces of cocaine to his friend via United Parcel Service. He was subsequently indicted in the United States District Court for the Eastern District of Michigan. The indictment contained two counts alleging that Respondent was guilty of having committed a felony. The case was subsequently transferred to the United States District Court for the Southern District of Florida. Respondent pled guilty to Count 1 of that indictment and not guilty to Count 2. He was adjudicated guilty of Count 1, use of a communication facility for the commission of a felony in violation of Title 21, U.S.C., Section 843(b). Count 2 was dismissed. On August 8, 1990, he was sentenced to two years of probation, residency in a community treatment center with a work-release program for a period of three months, a fine in the amount of $1,000, and court costs in the amount of $50.00. The School Board of Dade County has demonstrated its concern for the problems created by drug abuse in the community. As a result of this concern, the School Board has established a drug-free work place policy, curricula for students, a trust counselor program, and an employee assistance program, all designed to combat drug abuse. Dismissal from employment is not an automatic consequence of a teacher's involvement with illegal drugs. Nor does a conviction of a felony automatically require that a teacher be terminated. Circumstances are taken into consideration. Teachers who use drugs are referred to the employee assistance program for help in overcoming their drug use. Teachers who attend the employee assistance program are not necessarily discharged from employment even though notoriety may have surrounded their drug usage. There is no allegation or evidence that Respondent has ever used illegal drugs. Similarly, there is no evidence or allegation that Respondent had any involvement with illegal drugs other than the occasion on which he mailed cocaine to his friend. Annual evaluations are performed on every teacher in the Dade County Public Schools. A teacher is rated either acceptable or unacceptable. Respondent has always been given an acceptable rating. On Respondent's 1984- 1985 annual evaluation, the principal of Miami Southridge Senior High School added the following comment: "Michael is a super teacher. Has outstanding relationships with students and peers. Contributes greatly to the school. Great!". On Respondent's 1985-1986 annual evaluation, his principal added the following comment: "Cooperative, positive and supportive. Encourages students to excel. Very competitive." On Respondent's 1986-1987 annual evaluation, which covered the time period when Respondent transmitted the cocaine to his friend, his principal wrote the following comment: "An outstanding teacher. Concerned and devoted." On Respondent's 1987-1988 annual evaluation, his principal wrote: "Displays confidence and poise in the classroom. Very devoted and conscientious." On Respondent's annual evaluation for 1988-1989 his principal wrote: "A very concerned and caring instructor. Contributes greatly to the overall operation of the school." Former students of Respondent testified in this proceeding. Some were his students subsequent to the date that he committed his criminal act. Respondent has inspired those students to study math, has helped them to learn to the extent that they receive "As" in their college math courses, and has taught them a love for math such that they are currently majoring in math on their way to becoming math teachers. Some of these students did poorly in math before having Respondent as a math teacher. These students have recommended to others that they take math from Respondent and hope that Respondent will still be available to teach math to their children. The principal at Miami Southridge Senior High School and the math department chairperson have no objection to Respondent being returned to that school to continue teaching math classes. The math department chairperson describes Respondent as a teacher who is excellent with children, far above the norm. She recognizes Respondent as having an unusual ability "to get difficult information across to the students" and have them enjoy it. No notoriety attached to Respondent's criminal act which occurred in November of 1986. He continued to teach until September 28, 1990, when Petitioner removed him from the classroom. All notoriety concerning Respondent's criminal act was caused by the Petitioner itself. Respondent's attorney advised Respondent's principal of the criminal conviction, and Respondent's principal then notified other employees of the Dade County Public Schools. As a result of the principal's notification, Respondent was removed from the classroom, at which time other School Board employees became aware of the problem. Thereafter, Petitioner determined to suspend Respondent and initiate dismissal proceedings, which determination then caused additional notoriety. Petitioner admits that any notoriety at the school site was not caused by Respondent's criminal act but rather was due to Respondent's removal from his classroom assignment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: finding that Respondent has been convicted of a crime involving moral turpitude; suspending Respondent without pay effective at the close of business on October 24, 1990, and continuing through the end of the 1990-1991 school year; and reinstating Respondent as a classroom teacher effective at the beginning of the 1991-1992 school year. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of March, 1991. LINDA M. RIGOT 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 12th day of March, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 2-7, and 13 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 1, 8, 9, 12, and 14 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, recitation of the testimony, or argument of counsel. Petitioner's proposed finding of fact numbered 10 has been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed finding of fact numbered 11 has been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Honorable Betty Castor Commission of Education The Capitol Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire School Board of Dade County, Florida 1450 Northeast Second Avenue, Suite 301 Miami, Florida 33132 Jesse J. McCrary, Jr., Esquire 2800 Biscayne Boulevard, Suite 800 Miami, Florida 33137-4198 Octavio J. Visiedo, Superintendent Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated January 16, 2003, and in the Notice of Specific Charges filed February 27, 2003, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002).3 At the times material to this proceeding, Mr. Lefkowitz taught emotionally handicapped and seriously emotionally disturbed students in North Miami Beach High's Bertha Abbess exceptional student education program. He has been employed by the School Board since 1993, and is currently employed under a professional services contract. At the times material to this proceeding, Mr. Lefkowitz and at least one other person were making a music video for a course they were taking at Florida International University. Alvarro Gutierrez was working with Mr. Lefkowitz on the video, and Mr. Gutierrez had chosen the girl who would sing and would choreograph the dances for the video. Mr. Gutierrez did not, however, have any dancers, and Mr. Lefkowitz told Mr. Gutierrez that he knew some girls "from school" who were dancers and that he would ask them if they wanted to dance in the video. J.D. was, at the times material to his proceeding, an 11th-grade student at North Miami Beach High, although she was not a student of Mr. Lefkowitz. Rather, J.D. met Mr. Lefkowitz in a school hallway, while she was selling candy for her French class, and they apparently had several conversations during school hours. In one of these conversations, Mr. Lefkowitz mentioned that he was filming a music video for a college class. J.D. asked if she could be in the video, and Mr. Lefkowitz agreed and asked J.D. if she had any friends who could also dance in the video. J.D. introduced Mr. Lefkowitz to her friend N.F. N.F. was, at the time, an 11th-grade student at North Miami Beach High, but she did not know Mr. Lefkowitz until J.D. introduced them. Mr. Lefkowitz did not know at the time he met her that N.F. was a student at North Miami Beach High. J.D. also introduced Mr. Lefkowitz to Glamour Legros, whom she knew because she and Ms. Legros attended the same church. Prior to introducing Mr. Lefkowitz to Ms. Legros, J.D. had told him on a number of occasions how much Ms. Legros wanted to meet him.4 Ms. Legros and N.F. shared an apartment. Ms. Legros was not a student at the times material to this proceeding, and she was older than N.F. and J.D. J.D., N.F., and Ms. Legros agreed to dance in the music video and went to Mr. Lefkowitz's apartment several times to discuss, rehearse, and shoot the video. Mr. Lefkowitz picked up J.D., N.F., and Ms. Legros and drove them to his apartment on the occasions when they were working on the video. Mr. Lefkowitz also took J.D. and her friends home on these occasions. M.D., J.D.'s brother and a student at North Miami Beach High at the time, went to Mr. Lefkowitz's apartment once, and H.D., another student at North Miami Beach High, was at Mr. Lefkowitz's apartment on at least one occasion, when she danced for the music video. These two students also rode with Mr. Lefkowitz in his car on at least one occasion. In addition to her visits to Mr. Lefkowitz's apartment and her rides in his car, J.D. spoke with Mr. Lefkowitz numerous times on the telephone. When working on the video, J.D. went to Mr. Lefkowitz's apartment with her friends. She was alone with Mr. Lefkowitz once, after her friends left Mr. Lefkowitz's apartment; Mr. Lefkowitz took her home after about an hour. Mr. Gutierrez did not observe Mr. Lefkowitz engage in any improper behavior with J.D. or her friends at Mr. Lefkowitz's apartment during the time they were discussing, rehearsing, and shooting the music video. On April 21, 2003, Ms. Legros called the police and she and N.F. reported that Mr. Lefkowitz had come to their apartment, beat on the door, and threatened them verbally. According to the police incident report, the police were dispatched at 10:09 p.m. and arrived at Ms. Legros's and N.F.'s apartment at 10:12 p.m. Mr. Lefkowitz had outpatient surgery on April 18, 2002. Mr. Lefkowitz's mother was with him at his apartment from April 18 through the morning of April 22, 2002, the day he returned to work. According to Ms. Lefkowitz, Mr. Lefkowitz was in bed, asleep, on the night of April 21, 2002. On April 22, 2002, Raymond Fontana, the principal of North Miami Beach High, received a telephone call from a woman who identified herself to Mr. Fontana's secretary as J.D.'s aunt and who told Mr. Fontana that an exceptional student education teacher named "Neil" was having a relationship with J.D., a student at North Miami Beach High; the caller also reported that the teacher had been involved in an "incident" that had been reported to the police. Ms. Legros was the person who called Mr. Fontana.5 Mr. Fontana called Allyn Bernstein, an assistant principal at North Miami Beach High, into his office and asked her to look into the allegations made by the caller. Dr. Bernstein called Mr. Lefkowitz into her office and, before she could say anything, Mr. Lefkowitz told her that he knew why she had summoned him, that an ex-girlfriend had threatened to make trouble for him because he wouldn't give her money. When Dr. Bernstein questioned Mr. Lefkowitz about his relationship with the student J.D., Mr. Lefkowitz denied knowing her. Dr. Bernstein also called J.D. into her office. In response to Dr. Bernstein's questions, J.D. denied knowing Mr. Lefkowitz. She stated that she did not have a social relationship with any teacher outside of school and that she had never met any staff member outside school. After Dr. Bernstein reported to Mr. Fontana that she believed that there might be "something there,"6 Mr. Fontana reported the matter to the school district personnel, who referred the matter to the Miami-Dade School Police Department, and an investigation was initiated. Once the investigation was initiated, Mr. Lefkowitz was placed on alternate assignment at his home effective May 3, 2002. The investigator, Detective Victor Hernandez, interviewed N.F., Ms. Legros, J.D., H.D., M.D., and Mr. Lefkowitz. During the course of his investigation, Detective Hernandez was told that Mr. Lefkowitz and N.F. had dated and that they had had sexual intercourse. When Detective Hernandez interviewed Mr. Lefkowitz, Mr. Lefkowitz denied that he knew either J.D. or N.F. In a report dated September 2, 2002, Detective Hernandez described his investigation and set forth the substance of the statements given by the witnesses. Detective Hernandez concluded that the charges that Mr. Lefkowitz had violated Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, and School Board Rules 6Gx13-4.109 and 6Gx13-4A-1.21 were substantiated. A Conference-for-the-Record was held on October 2, 2002, with Paul Greenfield, District Director, presiding. Mr. Lefkowitz attended the Conference-for-the-Record, together with the School Board's Director of Region II and Mr. Fontana. Mr. Lefkowitz requested that his attorney be allowed to attend, but this request was denied.7 Mr. Greenfield reviewed Mr. Lefkowitz's history with the Miami-Dade County public school system and presented the results of the investigation. Mr. Lefkowitz denied having met J.D. and N.F. and denied that they were ever in his apartment. After the Conference-for-the-Record, Mr. Fontana recommended to the Superintendent of Region II that Mr. Lefkowitz's employment be terminated. Mr. Lefkowitz lied to Dr. Bernstein, to Detective Hernandez, and to the participants in the Conference-for-the- Record about his relationships with J.D. and N.F. because he knew it was improper for the students to be in his apartment and for him to associate with students outside of school. Mr. Lefkowitz expressed remorse at his behavior and acknowledged that his conduct was not appropriate. J.D. testified that she and Mr. Lefkowitz never dated or had sexual intercourse. Ms. Legros testified that she did not know whether Mr. Lefkowitz and J.D. had had sexual intercourse. She claimed, however, to have observed Mr. Lefkowitz and J.D. at Mr. Lefkowitz's apartment hugging and kissing and acting like "boyfriend and girlfriend to me."8 Ms. Legros has no personal knowledge that Mr. Lefkowitz had sexual relations with N.F., but testified that N.F. told Ms. Legros that she had had a relationship with Mr. Lefkowitz. An 11th-grade student testified at the hearing that he considered Mr. Lefkowitz to be a good teacher, a role model, and a teacher that he would remember after high school. Mr. Fontana testified that he thought Mr. Lefkowitz's effectiveness as a teacher had been impaired because of the "manner in which he dealt with students, having students come to his apartment, dealing with students that are out of the realm of his teaching responsibilities." Mr. Fontana observed that "once you breach that student/teacher relationship and you lose that professionalism I don't think you can ever go back and have the same degree of effectiveness as a teacher."9 In making his decision to recommend that Mr. Lefkowitz be terminated from his employment as a teacher, Mr. Fontana considered Mr. Lefkowitz's employment history with the Miami- Dade County public school system. Mr. Lefkowitz was twice referred for evaluation as to his medical fitness to perform his duties as a teacher and was twice found fit to perform these duties. Mr. Lefkowitz was the subject of three allegations of battery on a student, one in February 1995, one in February 1999, and one in March 1999; the February 1995 charge was substantiated,10 and Mr. Lefkowitz was given a verbal warning; the remaining two charges were unsubstantiated. Finally, in August 1995, Mr. Lefkowitz had an unacceptable annual evaluation, was given a TADS Category VII prescription in the area of Professional Responsibility, and successfully completed the prescription within the specified time. Summary The greater weight of the credible evidence presented by the School Board is insufficient to establish that Mr. Lefkowitz dated either J.D. or N.F. or that Mr. Lefkowitz had sexual intercourse with N.F. The School Board presented no direct evidence establishing that J.D. and Mr. Lefkowitz had a romantic relationship or that N.F. and Mr. Lefkowitz had a sexual relationship. The School Board relied exclusively on Ms. Legros's testimony to establish that these relationships existed,11 and most of her testimony was based on hearsay, not personal knowledge. Ms. Legros had no personal knowledge that N.F. had sexual relations with Mr. Lefkowitz, and the only behavior that Ms. Legros testified that she personally observed was Mr. Lefkowitz and J.D. in Mr. Lefkowitz's apartment hugging and kissing and, in Ms. Legros's estimation, acting like boyfriend and girlfriend. Ms. Legros is found not to be a particularly credible witness, and her uncorroborated testimony is not sufficiently persuasive to establish that Mr. Lefkowitz and J.D. more likely than not were dating or that the hugging and kissing, if she indeed observed such behavior, was sexual in nature. Both J.D. and Mr. Lefkowitz denied having a romantic relationship, but it is difficult to credit fully their testimony, given that both J.D. and Mr. Lefkowitz lied to School Board personnel about knowing one another and that Mr. Lefkowitz lied to School Board personnel about being acquainted with N.F. However, on reflection and after a careful review of the evidence, the testimony of J.D. and Mr. Lefkowitz is credited over that of Ms. Legros. The greater weight of the credible evidence presented by the School Board is not sufficient to establish that Mr. Lefkowitz telephoned N.F. on April 21, 2002, and threatened her or that he went to the apartment shared by Ms. Legros and N.F. on the night of April 21, 2002, and made threats to harm them. Mr. Lefkowitz's mother testified unequivocally that she was with Mr. Lefkowitz from April 19 through the morning of April 22, 2002, and that he was recovering from surgery and sleeping on the night of April 21, 2002. The School Board presented no evidence that Mr. Lefkowitz telephoned N.F. and threatened her, and Ms. Legros was the only witness to testify that Mr. Lefkowitz came to her apartment and made threats. The testimony of Mrs. Lefkowitz is credited over that of Ms. Legros.12 The evidence presented in this case is sufficient to establish that Mr. Lefkowitz failed to exercise the best professional judgment, failed to maintain the highest ethical standards, and used his position as a teacher to his personal advantage by recruiting young women students to perform as dancers in the music video he was filming as part of a college assignment. Mr. Lefkowitz admitted that he had engaged in inappropriate conduct: He had had a personal relationship outside of school with both J.D. and N.F.; J.D. and N.F. danced in a music video he made for a college project; J.D. and N.F. were in his apartment several times; and he drove J.D. and N.F. in his car to and from his apartment. The contents and tone of the written statement Mr. Lefkowitz adopted as his testimony supports an inference that he was on very familiar terms with both J.D. and N.F., and with Ms. Legros as well.13 Mr. Lefkowitz's poor judgment in developing significant social relationships outside of school with two female students at North Miami Beach High and his inappropriate behavior in having these students as guests in his car and in his apartment reflect poorly on him as a teacher employed by the School Board. Mr. Lefkowitz also failed to exercise the best professional judgment and to maintain the highest ethical standards with respect to his dealings with the School Board during the investigation of his conduct. Mr. Lefkowitz lied to Dr. Bernstein and Detective Hernandez and at the October 2, 2002, Conference-for-the-Record when he said he did not know J.D. or N.F., and he admitted at the final hearing that he lied because he knew that he should never have involved these students in making the music video, should never have given these students rides in his car, and should never have invited the students to his apartment. Mr. Lefkowitz's lack of truthfulness reflects poorly on him as a teacher employed by the School Board. The evidence presented by the School Board is also sufficient to establish that Mr. Lefkowitz engaged in one instance of inappropriate behavior involving students M.D. and H.D. Mr. Lefkowitz admitted that, on one occasion, he picked up these two students in his car and drove them to his apartment, where H.D. danced in the music video and M.D. observed Mr. Lefkowitz and cohorts filming the music video. Mr. Lefkowitz did not have repeated out-of-school contacts with these two students, as he did with J.D. and N.F., but his behavior with M.D. and H.D. reflected poorly on him as a teacher employed by the School Board. The evidence presented by the School Board, which consisted only of Mr. Fontana's conclusory and general statements, is not sufficient to establish that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami- Dade County public school system. The evidence presented by the School Board is, however, sufficient to permit an inference that Mr. Lefkowitz's effectiveness as a teacher was impaired. Mr. Lefkowitz encouraged students to develop personal relationships with him and to spend significant amounts of time with him in his apartment. Even though J.D., the young woman with whom he was primarily involved, was not a student in his class, his willingness to become involved with this student and her friends brings his personal and professional judgment into question and necessarily affects the school administration's assessment of his fitness for supervising high school students. It may also be inferred that Mr. Lefkowitz's effectiveness as an employee of the School Board was also impaired because he lied to the principal and assistant principal of his school and to the regional superintendent of the Miami-Dade County public school system about even knowing J.D. By not being truthful with the school system administrators, Mr. Lefkowitz diminished his credibility as a professional educator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order; Finding that Neil D. Lefkowitz is guilty of having committed misconduct in office and of violating School Board Rules 6Gx13-4-1.09 and 6Gx13-4A-1.21; Suspending Mr. Lefkowitz without pay for a period of 24 months, retroactive to the date on which the School Board suspended him from his employment without pay; and Imposing such conditions on Mr. Lefkowitz upon his return to employment as the School Board deems appropriate. DONE AND ENTERED this 31th day of July, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31th day of July, 2003.
Findings Of Fact At all times material, Respondent Michael Eric Pose, age fifteen, was a student at West Miami Junior High School (West Miami) in Dade County, Florida. Respondent's academic performance during the 1986-1987 school year was very poor. He received the grade of "F" in every class. His grades for conduct were also mostly "Fs." In addition, he received the lowest grade for effort (3). Respondent's poor academic performance, lack of effort, and unacceptable conduct resulted in his rot being promoted to the next grade. During the first three marking periods of the 1986-1987 school year, Respondent was enrolled in Louise Johnson's math class, where he was marked absent about 58 times and late 12 times. When Respondent did attend classes he would come without materials and refused to do work when materials were provided by his teacher. He failed to complete 99 percent of his homework assignments and refused 95 percent of the time to perform any class work. On at least two occasions, Respondent was caught sleeping in class by Ms. Johnson. The grades he received in that class for academic performance, effort and conduct were "F- 3-F" (scholarship-effort-conduct). Ms. Harriet Wade, physical education teacher, also had Respondent as a student during the 1986-87 school year. In that class, he was absent 60 times and late 8 times. He refused to wear his gym clothing to the physical education class, refused to participate in games or perform exercises, and frequently engaged in activities which disrupted the class, such as talking to other students and wandering over to talk to other groups. He earned "F-3-F". Ms. Wade's normal form of discipline is to assign detentions and/or the running of laps. Respondent refused to serve either punishment on each occasion it was assigned. Respondent's mother offered as an excuse for Respondent's failure to meet the physical education requirements that he had dislocated his hip when he was four years old. However, she also stated that the surgery was deemed successful and it is clear that the proper medical excuses or records were never submitted to school personnel. There is no competent medical opinion that Michael is presently disabled from normal sports or participation in other school activities. In the same school year, Respondent was also a student of Ms. Tania Martinez-Cruz, English teacher. He was absent from her class 64 times and late 6 times. He refused to do classwork 98 percent of the time and never turned in any homework assignments. After it became apparent that Respondent would not bring materials to class, Ms. Martinez-Cruz kept materials in her classroom for him so that he would have no excuse to avoid working in her class. This method failed. Moreover, during the times he did attend class, Respondent spent 90 percent of the class period sleeping, even though she placed him in the front of the class and required him to participate in classwork as much as possible. Student Case Management Referral Forms (SCMRFs) generally reserved for serious behavior problems, were issued on Respondent's behavior by Ms. Johnson, Ms. Wade, and Ms. Martinez-Cruz due to his lack of interest in school, poor behavior, absences, and tardies. In addition, Respondent received five other SCMRFs from different teachers and/or administrators, all of whom complained of his disinterest in school and unacceptable behavior. One such complaint involved breaking in to a teacher's automobile. Because Respondent was frequently engaged in conflicts of a disruptive nature, he was suspended five times during the 1986-87 school year. Mr. Sotolongo, Assistant Principal, had numerous conversations with Respondent's mother regarding his excessive absences, poor behavior and lack of progress. However, to date the mother has not been able to improve Respondent's interest in school. After numerous attempts at counseling the mother and Respondent, a child study team report was made and conference thereon was held. This report and conference resulted in the administrative assignment of Respondent to J.R.E. Lee Opportunity School. The opinions of the Assistant Principal and the other teachers and administrators who had conferences regarding Respondent was that the more structured environment of an opportunity school would be better for him, as opposed to permitting him to remain in the regular school program where he was making no progress.
