Findings Of Fact Respondent Robert L. Collins has been employed by the School Board of Dade County, Florida as a teacher for the last twenty-four years and is on continuing contract. For approximately the last seven of those years, Respondent has been teaching Industrial Arts at Miami Killian Senior High School. Between late September 1983, and November 23, 1983, Jonathan Wright was a student in Respondent's Plastics class. On November 23, 1983, Wright came into Respondent's Plastics class wearing a hat, which is against school rules. Respondent directed Wright to remove his hat which he did. Later in that same class Respondent saw Wright sitting by the engraver again wearing that hat. Respondent removed the hat from Wright's head and advised Wright that if he put the hat on another time Respondent would send him to the principal's office. At approximately 5 minutes before the end of the class period, Respondent instructed the students that it was time to clean up the shop area. Wright and some of the other students began gathering at the door. Respondent motioned to those students to come back into the classroom and away from the door, which some of them did. Wright, however, did not. Respondent then specifically directed Wright to get away from the door. Instead of obeying, Wright put up a hand and a foot in a karate type posture but clearly in a playful manner. As a normal reaction in the context of the situation, Respondent did likewise. Respondent then turned back toward the class at which time Wright grabbed him by the legs and pulled him down to the floor. Respondent and Wright were rolling around on the floor in a small alcove area, and Respondent was unable to get loose from Wright's grip. Respondent was afraid that he, Wright, or the other students might be severely injured in the small alcove by the door or on some of the machinery located in the Plastics shop classroom. Unable to free himself, Respondent bit Wright on the back. Wright released Respondent and got up off the floor. After the bell rang, Wright left the classroom. Wright was transferred to the Plastics class of teacher Gerald Krotenberg where he remained for the rest of the school year. On several occasions Krotenberg was required to admonish Wright because Wright often resorted to "horse play" with other students. On occasion Wright would come into the classroom and would "bear hug" the girls, "jostle" the boys, and be disruptive so that Krotenberg could not take attendance or conduct the class. Although Krotenberg followed his normal technique of chastising the student in public, and then chastising the student in private, those techniques did not work and Krotenberg was required to exclude Wright from class on probably two occasions, for two days each, due to Wright's inappropriate behavior with other students. During the two months that Wright was in Respondent's class, Wright had come up behind Respondent on one or two occasions and lightly put his arms around Respondent in the nature of a bear hug. Respondent counseled Wright that that was not appropriate behavior. The only touching of Wright that was initiated by Respondent himself occurred in the form of Respondent placing his hand on Wright's shoulder while discussing a project being worked on at the moment or perhaps a light slap on the back in the nature of encouragement or praise for a job well done. Not all teachers, however, agree that it is appropriate to occasionally give a student an encouraging pat on the back. Although Wright had on one or two occasions given Respondent a playful hug and although Respondent had on several occasions given Wright an encouraging pat on the back or touch on his shoulder, no physical combat ever occurred between them. Although Wright often engaged in "horse play" with other students, no "horse play" occurred between Wright and Respondent. None of Respondent's annual evaluations during the years he has been teaching in the Dade County public School, including the annual evaluation for the the 1983-1984 school year, indicates that Respondent has had any problems with either maintaining good discipline in his classes or that Respondent is anything other than acceptable in the area of classroom management.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered reversing Respondent's suspension, reinstating him if necessary, and reimbursing him for back pay-if he was suspended without pay. DONE and RECOMMENDED this 3rd day of July, 1985 at Tallahassee, Florida. LINDA M. RIGOT, 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 3rd day of July, 1985. COPIES FURNISHED: Thomas H. Robertson, Esquire 111 SW Third Street Third Floor Miami, Florida 33130 Michael D. Ray, Esquire 7630 Biscayne Boulevard Suite 202 Miami, Florida 33138 Phyllis 0. Douglas Assistant Board Attorney Dade County Public Schools 1410 N.E. Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent School Board of Dade County 1410 NE Second Avenue Miami, Florida 33132
The Issue The issue is whether Respondent violated specified Miami- Dade County School Board rules, giving Petitioner just cause to suspend Respondent for five work days without pay.
Findings Of Fact The Parties Petitioner is a school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, pursuant to article IX, section 4(b) of the Florida Constitution, and section 1012.23, Florida Statutes.1/ Respondent is a 27-year teacher employed by the Miami- Dade County Public Schools ("M-DCPS"). For the first 24 years of his career, Respondent taught adult vocational classes. For the past three years, Respondent has taught at Miami Lakes Educational Center ("Miami Lakes"). He is a television production teacher, teaching students entry-level television production skills to prepare them for careers in the television industry. Background of this Proceeding At all times material, Respondent's employment was governed by the collective bargaining agreement between M-DCPS and the United Teachers of Dade, Petitioner's rules and policies, and Florida law. This matter had its genesis in late 2010, when two or three female students complained to Miami Lakes Assistant Principal Michael Tandlich that they felt uncomfortable in Respondent's classroom, specifically because Respondent touched them. In response to the complaints, Mr. Tandlich took written statements from approximately ten students in Respondent's class.2/ He took the statements to the Miami Lakes principal. As a result, the school initiated an investigation of Respondent's actions regarding the students in his class. Once the investigation was complete, the matter was referred to Petitioner's Office of Professional Standards ("OPS") for a comprehensive review of all information related to the matter. On March 1, 2011, Milagros Hernandez, District Director for OPS, sent Respondent a letter stating that as a result of the investigation, "[t]he initial investigative findings indicate that Probable Cause has been established for the allegation of violation of School Board Rule 6Gx13-4.109, Employee Student Relationships. Probable cause is defined as '[b]ased upon an evaluation of the evidence, it is more likely than not the alleged act occurred.'" On March 8, 2011, OPS conducted a Conference-for-the- Record ("CFR"). Respondent and Ms. Hernandez were among the attendees. The CFR is a fact-finding conference held to discuss the incident and to afford the subject of the investigation the opportunity to tell his or her side of the story. Following the CFR, OPS sent a letter to Respondent, dated May 4, 2011, advising him that OPS recommended that he "be suspended without pay for 5 workdays for violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4A-1.213, Code of Ethics " On May 11, 2011, Petitioner suspended Respondent for five work days without pay for alleged violation of the above- stated rules.3/ Incidents Giving Rise to Alleged Violations A.S. is a female student in Respondent's television production class. She is in her junior year of high school at Miami Lakes. A.S. testified that Respondent touched her on the shoulders on more than one occasion, the touching made her feel uncomfortable, and she told him to stop. On one occasion when Respondent touched her on the shoulders, A.S. yelled at Respondent, "Stop touching me, you pedophile!" or something to that effect. She testified that Respondent did not touch her on any part of her body other than her shoulders, and has stopped touching her. Testimony was elicited from A.S. and another student, J.G., establishing that A.S. is overly-dramatic, blows things out of proportion, and acts out in class in order to be the center of attention. The evidence also established that A.S. may have some animus toward Respondent because he is much stricter and has set much higher academic and behavioral standards than did his predecessor, and does not tolerate A.S's disruptive behavior in class. J.C. is a female student in Respondent's class, and is A.S.'s friend. She is in her junior year of high school at Miami Lakes. J.C. testified that Respondent sometimes touched her on the shoulders, and that once, Respondent touched her dress at about mid-thigh level. The touching made her uncomfortable, but she never asked him to stop. Respondent did not touch her on any other part of her body. She acknowledged that Respondent's conduct likely was meant as complimentary and encouraging. J.C. testified that Respondent had made the class much more demanding than had his predecessor, and that her classmates and friends had discussed their unhappiness with the change. She acknowledged that around that time, some students went to the assistant principal and complained that Respondent was touching students and making them feel uncomfortable. J.G. is a male student in Respondent's class. J.G. testified that Respondent is a very strict teacher and that his class is very demanding "in a good way." J.G. testified that Respondent is very respectful of his students and encourages them during class, verbally and by patting them on the back or touching them on the shoulders. He treats male and female students the same in that regard. J.G. has never seen Respondent touch any of his students, male or female, in an inappropriate manner. J.G. stated that Respondent is a very professional teacher. Respondent also presented the testimony of Dr. Angela Thomas Dupree, Vice Principal at Lindsay Hopkins Technical Education Center. Before assuming her current position, Dr. Dupree served at Miami Lakes for 12 years as an assistant principal and a vice principal. For approximately ten of her 12 years at Miami Lakes, she worked with Respondent as his direct supervisor and observed Respondent interacting with his students. She testified that he was very knowledgeable and always engaged in the classroom, and that he treated students with respect and dignity. She never observed, and was not aware of, any instances in which Respondent did not honor the integrity and retain the respect of his students. During her time in working with Respondent, he always conducted himself in a manner that reflected credit on him and on the school system. Respondent testified on his own behalf. Respondent's goal in teaching the television production class is to prepare his students to enter the workforce in the television production industry. His classes are structured according to the grade level of the students in the class. For his higher level classes (i.e., junior and senior classes), students are given assignments for the day, then move into different areas to work on their specific assignments. Respondent supervises the students by walking back and forth between the work areas to make sure everyone is on task. One studio is very small, so it is not unusual for Respondent to walk up behind students when they are working and to touch them as he is showing them how to perform a task or use the computer. Respondent also encourages his students, verbally, by patting them on the back or touching their shoulders, and by giving them "high five." Respondent testified that in one of his college communication courses, there was discussion about the importance of "breaking the shield" that each person has, in order to enhance interpersonal communication. Respondent noted that is often why people shake hands. Respondent testified that he tries to "break the shield" with his students, in part by touching them, in order to more effectively communicate with them. Touching always has been a part of the way Respondent teaches and conducts his class, until this incident. Respondent testified that he did touch A.S. on her shoulders. On the day on which A.S. called Respondent a "pedophile," A.S. had been doing her homework for another class while in Respondent's class, and Respondent had asked her to stop. She ignored Respondent's request. Respondent was lecturing and walking around the studio, and the students' chairs and desks were arranged in the middle of the studio. As Respondent was walking around the studio, he observed A.S. continuing to do her homework despite being asked to stop. He walked up behind her and put his hands on her shoulders to get her to stop. A.S. jumped up and yelled at him. Respondent testified that he touched A.S. on her shoulders, and, on another occasion, may have touched her hair, but that he did not touch her on any other part of her body. Respondent recalled touching J.C.'s dress. On the day in question, the students were wearing professional clothing, rather than their usual uniforms, as part of a "dressing for success" program being conducted at the school. Respondent was sitting down and J.C. was standing next to him. He touched the skirt of her dress and complimented her on her appearance. Respondent testified that he only meant to compliment her, and that she did not appear to be uncomfortable. Respondent testified that he never has inappropriately touched students, and that when he has touched students, it has never been with intent to do anything wrong. He acknowledged that he understands the difference between touching adult students and minor students while encouraging them in their class work. Assistant Principal Michael Tandlich testified that Petitioner's policy is to prohibit the touching of students in any way; however, Mr. Tandlich was unable to identify any such policy or provision in Petitioner's rules. He also testified that he and the teachers at Miami Lakes routinely touch students——which he acknowledged would constitute widespread violation of such a policy, if one existed. Finally, he testified that he considers touching of students other than a handshake to be inappropriate——contradicting his previous testimony that there is an absolute prohibition on touching students. Mr. Tandlich testified that teachers are informed, in the first meeting with school administration personnel at the beginning of the school year, regarding Petitioner's policies. However, Respondent credibly testified that he never was told that all touching of students is prohibited.4/ IV. Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213 Petitioner's rule 6Gx13-4A-1.21, "Responsibilities and Duties," provides in pertinent part: I. Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a matter that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive or profane language in the workplace is expressly prohibited. Petitioner's rule 6Gx-4A-1.213, "Code of Ethics," provides in pertinent part:
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 rescinding the suspension of Respondent from his employment for five days without pay, and paying Respondent’s back salary for the five-day period for which he was suspended. DONE AND ENTERED this 28th day of November 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 28th day of November, 2011.
Findings Of Fact The Respondent, Lawrence Brennan, holds Florida teaching certificate number 250648, issued by the State Department of Education. The Respondent is certified in the area of English and his certificate is valid through June 30, 1988. The Respondent is a tenured teacher in the Duval County School System in which he has taught since September 8, 1969. The Respondent has taught at Paxon Junior High School since 1984-84, and has taught compensatory education in Paxon Junior High School during school years 1984-85 and 1985-86. Compensatory education is a special program for children with low test scores. Many of the students also have disciplinary problems. The Respondent received satisfactory evaluations for the last three full years of his employment, to include his years at Paxon. The Respondent was removed from the classroom and Paxon Junior High School following the altercation with a student on February 27, 1986, which gave rise to these charges. The Respondent is currently assigned to one of the media centers of the Department of Education in Duval County. The Respondent was informed in writing of the various requirements and responsibilities of teachers in the Duval County School System. Bresha Woods was a student of the Respondent's in November 1985. Ms. Woods had received six to eight referrals to the Principal's office through November 1985 for disrupting class and for not performing assigned duties. Subsequent to the incident described here, Woods was suspended and transferred to the Darnell Cookman Alternative School in March of the 1985-86 school year. On November 7, 1985, the Respondent told Woods to take her things and to go to the Principal's office for not doing her work and disrupting class. Woods delayed, slowly gathering her books, purse and other belongings. The Respondent approached Woods from the rear as she was at her desk, grasped her by the shoulders, pulled her to her feet alongside the desk, turned her toward the door of the classroom and told her to go to the school office. Woods' statement that she was "marked up" is not credible and the fact that she visited a physician on March 29, 1987, is not relevant because of the passage of time. No report of the physician's findings was offered. Woods' report to Atkinson that Respondent had choked her was contrary to Woods' sworn testimony. Atkinson accepted Woods' version of events as opposed to the explanation of Respondent. See T 179, 180. In January 1986, Delilah Elliott, a new student at Paxon, was late for class and cut across a grassy area between the wings of the classroom building which was closed to walking students. Between classes the Respondent was performing monitoring duties outside the classroom as do many of the teachers and staff and observed Ms. Elliott crossing the prohibited area. The Respondent called for Elliott to stop. Although Elliott heard the Respondent call for her to stop, she ignored him, attempting to go to her next class. The Respondent approached her, grabbed her by the shoulders to restrain her, and pushed her toward the sidewalk. She attempted to walk around him and continue on to her class. Elliott refused to tell the Respondent her name. The Respondent herded Elliott to the Principal's office, sometimes pushing her in the back when she stopped walking. Ms. Atkinson, the Assistant Principal in charge of disciplining girls, having seen the incident, followed the Respondent to the office. Atkinson told the Respondent not to be so physical with the children. The Respondent advised Atkinson that he knew what the rules were. Atkinson advised the Respondent that she would take care of the problem, and that he should return to class. Atkinson took no action against Elliott because, according to Atkinson, walking on the grass was not a referral offense. As the Respondent exited the office, Atkinson heard the Respondent say to Elliott, "You little tramp." The Respondent was frequently in physical contact with students in his class. Craig Monasco and Frank Lane were students in the Respondent's class. The Respondent grabbed their buttocks on several occasions when they were leaning over getting books. This practice, called "scooping" by the students, was a form of horse play engaged in by the students. The students were embarrassed by this. On other occasions, the Respondent pulled students out of their seats in the process of disciplining them within the classroom. Leopolean Spikes was a 13 year old black student in the Respondent's 7th grade comp. ed. English class. Spikes had a history of disruptive behavior in class and had been sent to the Principal's office several times during the school year. On February 26, 1986, Spikes was disruptive in class and the Respondent escorted him to the Principal's office. On this occasion, Spikes had refused to accept the referral, and Spikes said he was going to have his father come out and talk with the Respondent. The Respondent added Spikes' additional comments to the referral regarding Spikes' behavior and escorted Spikes to the Principal's office. Upon re-entering the class, the Respondent stated to the class that had Spikes hit him, the Respondent would have knocked him through the wall. The Principal gave Spikes an in-school suspension for his conduct of February 26, 1986. However, based upon the general school policy, a child with the number of referrals that Spikes had had would have been subject to general suspension. On February 27, 1986, Spikes reported to the Respondent's first period comp. ed. class. Spikes exhibited additional disruptive behavior during the class period of approximately 50 minutes in length. During this time, the Respondent warned Spikes on several occasions that he was going to refer him again if his behavior did not change. Shortly before the class was over, Spikes' continued disruptive conduct caused the Respondent to write a referral of Spikes to the Principal. The Respondent told Spikes to go to the Principal's office. Spikes delayed in getting his personal effects together to go to the Principal's office, and the Respondent went over to Spikes and told him to hurry up and leave the class. Spikes told the Respondent that he would not go to the Principal's office. At this point, a conflict exists in testimony regarding what occurred next. The one non-involved adult observer, Ms. Morkin, the co-teacher, stated that she observed six "acts" to the incident: (1) Spikes stood around reading the referral and not doing anything; (2) Respondent guided Spikes to the door by the shoulder; (3) Spikes ran around her desk to his own desk by the windows and wall; (4) Books were thrown in the direction of her desk from the vicinity of Spikes' desk; and (5) A struggle ensued between Spikes and Respondent, which came to an end with the Respondent kneeling next to Spikes and restraining Spikes on the floor. The various student witnesses had more dramatic versions of the incident, but one can trace the activity by its location. Their versions began with: (1) Spikes refused to go and told Respondent that he was not going to the office at or around Spikes' desk; (2) Spikes or Respondent threw books; (3) Spikes and Respondent fought in the area of the desk; (4) Spikes threatened Respondent with a desk; (5) Spikes and Respondent fought in the area of the wall and Spikes' head hit against the wall; and (6) The fight ended with Respondent pinning Spikes to the floor. The following findings are based upon a most credible evidence and testimony presented: The Respondent was standing in the aisle alongside Spikes' desk and between Spikes' desk and the front of the room where Ms. Morkin's desk was located. Spikes, when confronted by the Respondent and told to hurry, told Respondent he refused to go, and threw his books at Respondent, who was standing between Spikes and Morkin. Spikes adopted a combative stance and the Respondent grabbed Spikes' arms, fearing that Spikes was going to strike him. Spikes began to struggle and both Spikes and the Respondent fell to the floor. Respondent let go of Spikes and regained his feet and Spikes pulled himself to his feet using the back of a school desk which he raised in front of him and advanced toward the Respondent saying, "I'm going to hit you with this desk. See T-70. The Respondent pushed the desk out of the way, grabbed the writing portion of the desk, then grabbed Spikes and a second struggle ensued, during which Spikes hit the Respondent, who grabbed Spikes in a bear hug. Spikes and the Respondent were by the windowed wall of the classroom, and the Respondent attempted to pin Spikes against the windowed wall to stop his struggling and prevent Spikes from hitting him. In doing so, Spikes' head was banged against the window once. Spikes continued to hit the Respondent all this time. The Respondent and Spikes again fell to the floor where Spikes ceased fighting after Respondent pinned him down. After the struggle ceased, Ms. Morkin left to seek assistance as the Respondent requested. After he was at the office, a knot came up on Spikes' head. Spikes parents were called and they took Spikes to the emergency room where he underwent a complete examination, to include X-rays of his head. This examination revealed no abnormal findings except tenderness and swelling in the left occipital area of the head. Subsequent medical problems which Spikes has suffered were related to an injury to the right occipital area. No evidence of such an injury was revealed in the examination or reported by Spikes. See Petitioner's Exhibit The Respondent is approximately 6' tall and weighs approximately 200 pounds. Spikes is approximately 4'6" tall and weighs 72 pounds. Mr. Randolph and Ms. Atkinson, the persons in charge of disciplining children at the school, gave their opinions concerning the appropriateness of the Respondent's actions. In their opinion, the Respondent's actions were inappropriate. The record reflects that both Atkinson and Randolph had failed to apply the requisite disciplinary standards to students by taking action to remove them from the school system permanently, based upon continued disciplinary problems. Atkinson, who observed the Elliott incident, described the Respondent as "striking the student" and was of the opinion that a person who touches another person with their hand is striking the person. Mr. Larry Paulk, Assistant Superintendent for Administrative Affairs for the Duval County Schools, interviewed the Respondent after the altercation. To Paulk, the Respondent appeared hostile and was sarcastic in his dealings and approach to students. Paulk offered his opinion that the Respondent's conduct regarding discipline and leadership was inappropriate. The Respondent has attended psychiatric counseling for the past year to deal with his hostility and to improve his effectiveness as a teacher. There is no evidence of the Respondent receiving progressive discipline for prior acts involving physical contact with students, although he received several written reprimands for inappropriate conduct towards students to include physical conduct, language, and attitude. Mr. Randolph, the principal in charge of boys, advised that the school's solution for the removal of an unwilling child from class was to call the Principal. The Principal would come to the room and ask the student to come out of the classroom and, if the student refused, the Principal would then call a uniformed policeman who would arrest the child for trespassing. In Randolph's experience they had never had to take the final step of calling for a uniformed policeman.
The Issue The issues are whether Mr. Verdiner should be dismissed from employment as a continuing contract teacher with the Dade County School Board for immorality, misconduct in office, and gross insubordination and whether his certificate as a Florida teacher should be revoked.
Findings Of Fact Yves Verdiner holds teaching certificate number 464217 issued by the Department of Education. He held that certificate at all times pertinent to the complaints filed against him. Mr. Verdiner is employed by the School Board of Dade County as a continuing contract teacher. He was an industrial arts classroom teacher at Thomas Jefferson Junior High School during the summer of 1983 and during the 1985-1986 school year. The principal at Thomas Jefferson Junior High School was Mr. Eric Parker. The summer of 1983 During the 1983 summer school session, Milagros Jimenez, a seventh grade female student, was assigned to Mr. Verdiner's class. Miss Jimenez was designated a class foreman, which meant that she was responsible for distributing wood supplies. This brought her into more frequent contact with Mr. Verdiner than other students. One day, while talking with Miss Jimenez, Mr. Verdiner used both hands to lift up her blouse and expose her bra. He also made a sexual reference to her, saying that he wanted to "jack off." A few days later, Mr. Verdiner patted Miss Jimenez on the buttocks. On another occasion Miss Jimenez climbed onto Mr. Verdiner's desk to reach some wood on a shelf above his desk. Mr. Verdiner held Miss Jimenez's leg to steady her with his hands on one ankle. When she jumped down from the desk, Mr. Verdiner left his hand in contact with her leg until it reached her vaginal area. During the 1983 summer session, Sonia Pattee was assigned to Mr. Verdiner's class. In the woodshop there is a small tool shed, of a type that is often located in a home backyard. While Miss Pattee was in the shed, Mr. Verdiner entered it, closed the door and hugged Miss Pattee. On another occasion, when Miss Pattee was sitting on one of the desks in the shop class, Mr. Verdiner put his hand on her buttocks while she was moving herself from the desk. On more than one occasion, Mr. Verdiner solicited Miss Pattee to have sex with him in his van. During the 1983 school year, Mr. Verdiner would often use improper language in addressing students during class, using such words as "shit" and "damn" and saying such things as "what the fuck is wrong with you?" or "are you fucking stupid?" After an investigation was made into the allegations of touching students and using improper language, a conference for the record was held with school administrators. Mr. Verdiner was specifically instructed both by his principal and by the district administrator of the Office of Professional Standards for the Dade County Schools that he was not to make physical contact with or touch students, and that he was not to use vulgar or profane words in the classroom. The 1985-86 School Year Mr. Verdiner taught woodshop at Thomas Jefferson Junior High School during the 1985-1986 school year. Catina Pierre-Louis was a student in his class. She was in seventh grade and approximately 13 years old. In December 1985, while in Mr. Verdiner's class, Miss Pierre-Louis received permission to leave the classroom to go to the water fountain outside in the hallway. As she leaned over to drink from the fountain, Mr. Verdiner put his arms around her and rubbed her vaginal area with both of his hands. Miss Pierre-Louis pushed him away by pushing her elbows backwards. Miss Pierre-Louis felt ashamed about what had happened and was afraid to tell her mother and the teachers and principal at school. Three or four days later, Miss Pierre-Louis was standing against one of the tables in the shop class when Mr. Verdiner came behind her and placed his hands on her buttocks and squeezed them. Miss Pierre-Louis reported the incident to her counselor, Miss Mapp and shortly thereafter was transferred out of Mr. Verdiner's class. While in Mr. Verdiner's class, Miss Pierre-Louis often heard Mr. Verdiner using profanity or vulgar language, saying things as "shut the fuck up." During the 1985-86 school year Stephanie Williams was a student in Mr. Verdiner's woodshop class. Mr. Verdiner would rub or pat her back, ostensibly to congratulate her. Mr. Verdiner engaged in this sort of physical touching only with female students, not with any of the male students in the class. While teaching, Mr. Verdiner would use words such as "fuck," "shit," and "damn" commonly during his classes. The Hearing Officer accepts the testimony of the principal at Thomas Jefferson Junior High School that there was awareness among other teachers, students and parents of Mr. Verdiner's conduct which has seriously impaired his effectiveness as a teacher. The Hearing Officer also accepts the testimony of Dr. Gray that Mr. Verdiner's touching of his female students, and his use of indecent language constitutes immorality or acts of moral turpitude, conduct which seriously reduced his effectiveness as a teacher.
Recommendation With respect to Case No. 86-2277, it is recommended that a final order be issued by the School Board of Dade County dismissing Mr. Verdiner as a continuing contract teacher, and with respect to Case No. 88-0598, it is recommended that the teaching certificate held by Mr. Verdiner be permanently revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1988. APPENDIX The following are my rulings of the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985) Rulings on the proposed findings of fact made in the Amended Proposed Recommended Order of the School Board of Dade County: Covered in Procedural background. Covered in Procedural background. Rejected as unnecessary. Covered in findings of fact 8, 9, 10, and 11. Covered in findings of fact 3-7. Covered in finding of fact 12. Covered in finding of fact 12. Covered in findings of fact 13-16. Covered in finding of fact 18. Rejected as unnecessary. Covered in finding of fact 19. Covered in finding of fact 20. Rulings on Proposed findings of fact of the Commission of Education: Covered in finding of fact 1. Covered in finding of fact 2. Covered in the Procedural background. Rejected as not constituting a finding of fact. Covered in finding of fact 3. Covered in finding of fact 4. Covered in finding of fact 5. Covered in finding of fact 6. Covered in finding of fact 7. Covered in finding of fact 11. Covered in finding of fact 8. Covered in finding of fact 8. Covered in finding of fact 9. Covered in finding of fact 11. Covered in finding of fact 10. Covered in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 14. Covered in finding of fact 15. Covered in finding of fact 17. Rejected as inconsistent with the Hearing Officer's evaluation of the evidence. Rejected as unnecessary. Covered in findings of fact 11, 16, and 17. 24-25.Covered in finding of fact 20. Rulings on proposed findings of fact by Mr. Verdiner: Rejected as unnecessary. Rejected as unnecessary. 3a. Rejected because the Hearing Officer accepts the testimony of Catina Pierre-Louis. 3b. Rejected because the Hearing Officer accepts the testimony of Sonia Pattee. 3c. Rejected because the Hearing Officer accepts the testimony of Milagros Jimenez. 4. Rejected because contrary testimony made in findings of fact 11, 16, and 18 has been credited. COPIES FURNISHED: Frank Harder, Esquire 175 Fontainebleau Boulevard Suite 2A-3 Miami, Florida 33172 Craig Wilson, Esquire 215 5th Street Suite 302 West Palm Beach, Florida 33401 William DuFresne, Esquire 2929 S.W. 3rd Avenue Suite 100 Miami, Florida 33129 Dr. Joseph Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 The Honorable Betty Castor The Capitol Tallahassee, Florida 32399 Karen Barr Wilde, Executive Director Education Practices Commission Room 418, Knott Building Tallahassee, Florida 32399 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street Room 3 Tallahassee, Florida 32399
Findings Of Fact On October 29, 1984, Bruce E. Beneby, Respondent, was on the instructional staff at Dixie Hollings Senior High School as band instructor. Dennis Hale, a detective in the Pinellas County Sheriff's Department, went to Dixie Hollings Senior High School around 5:00 p.m., October 29, 1984, to pick up his son after band practice and to ask Respondent why he had thrown Hale's son's textbook in the garbage. Upon his arrival at the school in the vicinity of the bandroom, Hale observed Beneby running around the building with his shirt off. One of the milling students told Hale that Beneby was about to fight a student. When Hale arrived at the scene he observed Beneby holding a pair of scissors in a threatening manner toward the student, Ellis Tedrick. Tedrick had a six-foot length of drain pipe. Neither struck the other. Hale told both to stop but was not obeyed until he produced his sheriff's badge. Earlier, after band practice, Tedrick asked Beneby why he had thrown some of the girls off the Re Belle squad. He and Beneby got into an argument and Beneby picked up a band stand with which he threatened Tedrick. Other witnesses testified regarding Beneby's aggressiveness on other occasions. Testimony respecting Beneby having a gun in his briefcase to protect himself from the parents of students in his class is disregarded. No charge of this nature was made against Respondent as reason for his dismissal. No evidence was presented by any witness that observed Respondent destroy or throw away school property such as textbooks.
Findings Of Fact At all times material to this proceeding, Petitioner was a duly constituted school board. At all times material to this proceeding, Respondent was employed by Petitioner as a continuing contract teacher. Respondent was assigned as a math teacher to Miami Senior High School, one of the schools in the school District of Dade County, Florida. On March 20, 1989, Respondent and J.R., a 14 year old male who was one of Respondent's math students, entered into a discussion in Respondent's classroom regarding two musical keyboards that Respondent was trying to sell. J.R. Was interested in purchasing a musical keyboard and had been told by Respondent that he had at his home two musical keyboards that he wanted to sell. J.R. wanted to inspect the two keyboards to determine whether he might be interested in purchasing one of them, but he wanted to wait until the weekend to look at the keyboards so that his father could accompany him when he went to Respondent's house. Respondent had other commitments and advised the student on March 21, 1989, that he would have to look at the keyboards that afternoon. On March 21, 1989, Respondent drove J.R. to Respondent's home for the stated purpose of allowing J.R. to examine the two keyboards. No one else was present at Respondent's home. Respondent showed J.R. the keyboards and quoted J.R. a price for each. When J.R. inquired as to terms of payment, Respondent asked J.R. if he wanted to watch a video with him and stated that he wanted to watch a video so that he could think. Respondent then led J.R. into a darkened bedroom that had, in addition to video equipment, only a chair and a bed. Respondent lay down on the bed and J.R. sat in the chair. Respondent then asked J.R. if he talked a lot or whether he could keep a secret. After J.R. said he did not talk a lot, Respondent showed J.R. a pornographic movie that depicted nudity and sexual intercourse. While watching the movie, Respondent told J.R. that he had seen with a "hard on" during his math class. Respondent then asked J.R. if he had ever measured the size of his penis. When J.R. replied in the negative, Respondent told him that he should. Respondent then asked J.R. whether he "jerked off" often. J.R. replied in the negative and left the room because he was uncomfortable being with Respondent under those circumstances. During the course of the foregoing conversation, Respondent was lying on a bed in this darkened bedroom watching the pornographic movie with this 14 year old student. Respondent then drove J.R. to J.R.'s home after he asked to leave. J.R. immediately reported the incident to his parents when he returned to his home. J.R.'s parents notified the police that evening and reported the incident to the appropriate school officials the next day. This incident caused notoriety which has impaired Respondent's effectiveness as a teacher. Respondent testified that nothing inappropriate occurred when J.R. inspected the keyboards at his home on March 21, 1989. Respondent testified that he and J.R. drove to his house after school so that J.R. could inspect the keyboards, that while at the house he and J.R. drank a soft drink, looked at the keyboards, and discussed watching a video of a popular movie. Respondent contended that he drove J.R. to J.R.'s home and that nothing else occurred. Respondent denied that he showed J.R. a pornographic video or that he engaged in sexually explicit conversations with J.R. Respondent contended that J.R. fabricated part of his testimony and offered two motives for J.R. to lie. First, Respondent contended that J.R. may have seen this situation as a means to get one of the keyboards from Respondent without having to pay for it. Respondent did not explain how J.R. expected to accomplish this. Second, Respondent contended that J.R. may have fabricated the story to avoid getting into trouble with his parents because they did not know J.R.'s whereabouts during the time he was at Respondent's house on March 21, 1989. These proffered motives as to why J.R. would lie lack credibility and are rejected. J.R. is a good student who had no motive to fabricate his testimony as to the events that occurred at Respondent's house. Respondent's version of the events of March 21, 1989, insofar as that version conflicts with J.R.'s testimony, lacks credibility and is rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Jimmie D. Harris guilty of immorality and of misconduct in office, which affirms the suspension of Jimmie D. Harris without pay, and which terminates the continuing contract of Jimmie D. Harris. DONE AND ORDERED this 23rd day of March, 1990, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jimmie D. Harris 13336 S.W. 112 Place Miami, Florida 33176 Frank R. Harder, Esquire Suite 100 - Twin Oaks Building 2780 Galloway Road Miami, Florida 33165 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools 1444 Biscayne Boulevard Suite 215 Miami, Florida 33132 APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-3691 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 3-5 of the Recommended Order. The proposed findings of fact in paragraph 4-6 are rejected as being subordinate to the findings made and to the conclusions reached. There is no paragraph numbered in Petitioner's post-hearing submittal. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 2 are rejected as being subordinate to the findings made. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 3 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 4 are rejected as being subordinate to the findings made. The remaining proposed findings of fact in paragraph 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 5 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 6 are rejected as being unclear and as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 7-9 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are rejected as being conclusion of law.
The Issue The issue is whether just cause exists for Petitioner to suspend Respondent from his teaching position without pay for 15 days and to terminate his employment as a teacher.
Findings Of Fact The Parties Petitioner, Palm Beach County School Board, is charged with the duty to operate, control, and supervise free public schools within the School District of Palm Beach County ("District"), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes. Respondent has been employed by Petitioner as a teacher with Petitioner since 2008. During the timeframe relevant to this proceeding,5/ Respondent was employed as a teacher at Forest Hill High School ("Forest Hill"). He taught the Theatre I, II, III, and Theatre I IB classes (collectively, the "drama classes") and the Speech and Debate classes, and was the faculty sponsor for the school's drama club. Respondent has not previously been subject to discipline by Petitioner, and the evidence shows that he consistently received high performance evaluations and was a popular teacher with the students at Forest Hill. Administrative Charges On or about April 6, 2016, Petitioner took action to suspend Respondent for 15 days without pay and to terminate his employment as a teacher. Respondent timely challenged Petitioner's action by requesting an administrative hearing pursuant to sections 120.569 and 120.57(1). The factual bases for the administrative charges against Respondent are set forth in paragraph 10 of the Petition, which constitutes the administrative charging document in this proceeding. Paragraph 10 alleges: "[o]n or about May 14, 2015, it was reported that Respondent interacted inappropriately and made inappropriate comments to students in his drama class." The Petition does not identify the time frame in which the conduct referenced in paragraph 10 is alleged to have occurred, nor does it specifically describe the conduct in which Respondent is alleged to have engaged that would violate the rules and policies cited in the Petition. Based on the facts alleged in paragraph 10 of the Petition, Petitioner has charged Respondent with violating the following: Florida Administrative Code Rules 6A-5.056(2), 6A- 10.080(2), and 6A-10.081(3); School Board Policy 0.01(2), (3), and (6); School Board Policy 1.013(1); School Board Policy 3.02(4)(a), (b), (d), (e) and (5)(a); School Board Policy 3.27; and School Board Policy 5.81(10)(c).6/ If proved, the alleged violations of these rules and policies would constitute just cause under section 1012.33 to suspend Petitioner and terminate his employment as a teacher. Events Giving Rise to This Proceeding In March 2015, R.H., a student at Forest Hill, reported to Shawn McCall, a teacher at Forest Hill, that Respondent had engaged in what McCall characterized as "inappropriate" behavior with respect to another student, S.G. R.H. also relayed to McCall that S.G. had told her that Respondent was having a sexual relationship with another student, C.W. According to McCall, R.H. was emotionally distraught as she relayed this information to McCall. However, the evidence shows that R.H. did not have any personal knowledge regarding any of the matters she reported to McCall; rather, she relayed to him what she had been told by S.G. R.H. did not testify at the final hearing. McCall did not have personal knowledge of any of the matters that R.H. relayed to him. McCall reported the information he had received from R.H. to Dr. Mary Stratos, the principal of Forest Hill. Thereafter, Stratos spoke with R.H., who relayed to her that Respondent "may have been inappropriately touching" S.G. Pursuant to protocol, Stratos contacted the Palm Beach County School Police Department ("School Police"), which conducted an investigation of the matters relayed by R.H. The School Police interviewed students and teachers who witnessed, or may have witnessed, matters germane to the investigation. Stratos did not have personal knowledge of any of the matters about which R.H. told her.7/ As a result of the School Police investigation, Petitioner took action to suspend Respondent without pay for 15 days and to terminate his employment as a teacher. Evidence Regarding Factual Allegations in Petition As discussed above, the Petition does not provide any detail or specificity regarding the type or nature of the "inappropriate" interactions in which Respondent allegedly engaged, or the "inappropriate comments" Respondent allegedly made, with respect to the students in his drama class. From the evidence presented at the final hearing, the undersigned gleans8/ that Petitioner has charged Respondent with making sexually-suggestive comments and jokes to, and making verbal sexual advances toward, students in his classes and in drama club; making physical sexual advances toward three students9/; and having a sexual relationship with one10/ of those students.11/ Student S.G. S.G., a former student in Respondent's drama classes, testified at the final hearing. S.G. was a student in Respondent's drama classes in the 2013-14 school year, when he was a junior, and the 2014-15 school year, when he was a senior. S.G. also was a member of the drama club for all of his junior year and part of his senior year. S.G. testified that Respondent engaged in verbal and physical sexual advances toward him during both years in which he was a student in Respondent's classes and was a member of the drama club. Specifically, S.G. testified that during both years, Respondent would constantly ask him how large his penis was in front of the entire class, loudly enough for others to hear. He also testified that Respondent would comment on his appearance openly in class, telling him that he looked "cute," and that Respondent would frequently look at him in a sexually-suggestive manner while biting his lower lip and sticking out his tongue. S.G. also testified that during both years, during drama class and in drama club rehearsals, Respondent often would get very close to his face, sniff his neck, and try to kiss him. On cross-examination, S.G. characterized the frequency of Respondent's attempts to kiss him and sniff his neck as occurring "daily" or "every other day, at least." Also on cross- examination, S.G. asserted that Respondent's behavior was open and obvious "to everyone," including to persons passing in the hallway when Respondent engaged in such conduct while standing in the doorway of his classroom. S.G. also testified that during his junior year, Respondent sniffed his neck and bit his nipple as he and another student were moving a platform from center stage following a drama club rehearsal. According to S.G., the other student moving the platform was the only witness (other than Respondent) to the incident. That student did not testify at the final hearing. Additionally, S.G. testified that during his senior year, Respondent "cupped" his genitals on one occasion12/ as he held the auditorium door for female drama club students, and that after this incident, he quit participating in the drama club. S.G. testified that he heard Respondent frequently make sexual comments to students R.C. and C.W. in drama class and during drama club rehearsals, and he often saw Respondent try to kiss students R.C. and C.W. S.G. testified that Respondent engaged in this conduct frequently, in front of everyone in drama class and during drama club rehearsals. S.G. also testified that he heard Respondent and C.W. exchange sexual jokes, engage in sexually explicit discussions, and call each other "pet" names "all the time." Additionally, S.G. testified that one day, he saw Respondent and C.W. come to a pep rally "together" and sit together, and also that they were "just together constantly." On these bases, he surmised that Respondent and C.W. were engaged in a sexual relationship. S.G. testified that he did not report Respondent's conduct to anyone because he was embarrassed and thought that no one would believe him because Respondent was a popular teacher. He also testified that he was concerned that if he reported Respondent's conduct, school authorities would find out that he was attending Forest Hill instead of the school (Wellington) for which his actual place of residence was zoned. When asked why he chose to take a second year of Respondent's drama class after Respondent purportedly had engaged in the conduct that he claimed, S.G. testified that he took the drama course in his senior year because it was an easy class in which you could get an A just for attending, that Respondent was a very lax teacher who let students play on their phones, and that some of his friends were in the class. On or about March 5, 2015, S.G. told R.H. that Respondent had made verbal and physical sexual advances toward him and that Respondent was engaged in a sexual relationship with C.W. As discussed above, R.H. relayed this information to McCall, who relayed it to Stratos. Shortly thereafter, the investigation leading to this proceeding was initiated. Student R.C. As previously discussed, student R.C.'s deposition was admitted into evidence when R.C. did not appear to testify at the final hearing despite having been subpoenaed by Petitioner.13/ R.C. was a student in Respondent's drama class in his freshman and sophomore years and was a member of the drama club. R.C. initially testified that he had heard Respondent make "homosexual jokes," but then clarified that Respondent would, on occasion, compliment students, saying things like "you look nice today." R.C. testified that he had heard Respondent and C.W. engaged in "homosexual jabber," but was unable to recall anything specific that he had heard Respondent and C.W. say to each other that constituted "homosexual jabber." R.C. testified that S.G. had told him, in passing, that Respondent engaged in "homosexual jokes" with him and that S.G. was upset about it; however, R.C. testified that S.G. was mostly upset because Respondent gave preference to C.W. in assigning roles in the drama club plays. R.C. testified that S.G. felt that Respondent treated him unfairly by not giving him a more prominent role in a play being produced by the drama club, and that S.G. would become upset if Respondent corrected him on stage during rehearsals. R.C. also testified that S.G. told him that Respondent had tried to kiss him (S.G.), but that again, it was in passing, and that S.G. mainly vented about how he was upset about learning lines in drama class. R.C. testified that once during class, he had gone to Respondent with a personal issue, and that after Respondent listened and talked with him, Respondent tried to kiss him. However, R.C. subsequently clarified that Respondent had actually blown a kiss in a theatrical manner in R.C.'s direction as he went back to his seat. R.C. stated that he had never had a problem with Respondent and that he liked him as a teacher. Student C. W. C.W. was a student in Respondent's drama class in his junior and senior years of high school, and also served as Respondent's teacher's aide in his senior year. He also was a member of the drama club in his junior and senior years. In high school, C.W. aspired to be an actor. He is majoring in theater in college. While in high school, Respondent functioned as C.W.'s mentor and would coach him on acting techniques after school, either in his classroom or in the auditorium. C.W. credibly testified that Respondent did not charge him for the tutoring, and that he never paid Respondent for tutoring. C.W. credibly testified that his relationship with Respondent was strictly professional and related to acting. C.W. credibly testified that he and Respondent did not have a personal relationship; that neither had visited each other's house; that they did not date; that Respondent had not made any sexual advances toward him or tried to kiss him; and that Respondent had never done anything to make him feel uncomfortable. C.W. also credibly testified that he and Respondent did not engage in sexual discussions and did not call each other pet names. C.W. confirmed that he had talked to Respondent at a school pep rally. Specifically, C.W. arrived at the pep rally separately and sought Respondent out, because, as C.W. put it, "I'd rather spend my time talking to him, if I could, about acting or something whenever I could instead of just watching a pep rally." C.W. testified that he stood, not sat, next to Respondent during the pep rally. C.W. credibly testified that during his time as a student and teacher's aide in Respondent's classes and during drama club rehearsals, he never heard Respondent make inappropriate comments toward, engage in sexual discussions with, make verbal sexual advances toward, or otherwise engage in inappropriate conduct directed toward S.G., R.C., or any other students. He also never saw Respondent sniff any student's neck or embrace any student. C.W. also credibly testified that during Respondent's classes, students were required to be engaged in school work related to theater and were not allowed to use their phones. To that point, C.W. noted that Respondent often would confiscate phones if the use of them was "getting out of hand." C.W. also credibly testified that Respondent did not curse or participate in sexual joke-telling or banter, that he would not tolerate students making sexual jokes or cursing in his class, and that he would threaten discipline if they engaged in such conduct. Student I.D. I.D. was a student in Respondent's classes in her sophomore, junior, and senior years of high school, and she also served as Respondent's teacher's aide. She also was a member of the drama club. In her junior year, she was in drama class with S.G., who also was a junior that year. I.D. credibly testified that she had never seen Respondent act inappropriately toward S.G. She never saw Respondent try to kiss S.G. or get close to his face, nor did she ever see Respondent make overtures to any students in his class or in the drama club. She also testified, credibly, that she never saw any conduct by Respondent directed toward C.W. that suggested a personal relationship between Respondent and C.W. Student V.A. V.A. was a student in Respondent's classes. She took four classes from him while attending Forest Hill. During her junior and senior years, she took drama classes from Respondent. During both years, S.G. also was a student in those classes. V.A. credibly testified that she sat close enough to S.G. and Respondent to hear conversations between them, and that she never heard Respondent ask about S.G.'s penis size. She never saw Respondent try to kiss S.G., embrace him or smell his neck, or otherwise engage in any inappropriate conduct toward him, and she never saw Respondent make any sexual advances toward any other students, including R.C. and C.W., in the classroom. Likewise, she never saw Respondent make sexual advances or otherwise engage in inappropriate conduct, or make inappropriate comments, directed toward S.G., R.C., C.W., or any other students in the drama club. V.A. was friends with C.W. She credibly testified that she often was present when C.W. and Respondent were together and that she never heard them call each other pet names. Through her friendship with C.W. and her frequent interactions with Respondent and C.W., she did not believe that Respondent was any closer to C.W. than he was to other students in the class. V.A. also credibly testified that while in Respondent's classes, students always were engaged in classwork, were not allowed to sit around and play on their phones, and, in fact, were not permitted to have their phones out during Respondent's classes. Respondent Respondent credibly testified that he did not have a sexual interest in S.G. or C.W. He also credibly testified that he never tried to kiss S.G., R.C., or C.W. He credibly denied having ever groped S.G., and he also credibly denied having bitten S.G. He denied having ever embraced any students or having smelled their necks. Respondent credibly testified that he did not make sexual comments toward S.G., and he credibly denied having asked or joked about the size of S.G.'s penis or that of any other student. Respondent tutored C.W. in theater after school, and he credibly testified that he was not paid for it. He also credibly testified that he did not call C.W. by pet names, and he credibly denied having anything other than a teacher-student academic mentoring relationship with C.W. Clear and Convincing Evidentiary Standard As discussed in greater detail below, the clear and convincing evidentiary standard applies to this proceeding. This burden requires that: [T]he evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. In re Davey, 645 So. 2d 398, 404 (Fla. 1994). Findings Regarding Alleged Sexual Comments, Jokes, and Verbal Sexual Advances Toward Students Petitioner has not shown, by clear and convincing evidence, that Respondent made sexual comments to, engaged in sexual jokes with, or made verbal sexual advances toward students in his drama classes or in the drama club. S.G.'s testimony that Respondent constantly asked him how large his penis was and also made similar comments to R.C. and S.G.——frequently, loudly, and openly in class, where others could hear——during both years in which he was a student in Respondent's drama class, was not credible. Not only did no other witness corroborate S.G.'s testimony, but the testimony of C.W., I.D., and V.A. flatly contradicted it. Those witnesses——who were students in Respondent's class, and, thus, in a position to hear and see any "constant," loud comments of a sexual nature——credibly and persuasively testified that they never heard Respondent make sexual comments, tell sexual jokes, or make verbal sexual advances to any members of the class, including S.G. Had Respondent made these comments——particularly in the loud, frequent, open, and obvious manner to which S.G. testified——it is highly likely that these students would have heard them; yet all consistently and credibly denied having ever heard them. Although R.C. initially testified that he heard Respondent make "homosexual" comments, he subsequently clarified that Respondent simply occasionally complimented students on their appearance. Additionally, although R.C. claimed to have heard Respondent and C.W. engage in "homosexual jabber," he was unable to specifically articulate anything that either Respondent or C.W. said that was, or could be considered, sexual or "homosexual" in nature. Additionally, Respondent credibly and persuasively denied having made sexual comments to, engaged in sexual jokes with, or engaged in verbal sexual advances toward S.G. or any other student in his class or in the drama club. The undersigned finds the testimony of C.W., I.D., V.A., and Respondent on these allegations credible and persuasive, while finding S.G.'s testimony incredible and unpersuasive. Further, R.C.'s testimony regarding hearing Respondent make "homosexual jokes" and engage in "homosexual jabber" was not precise, explicit, or distinctly remembered; rather, it was equivocal and non-specific. In sum, the evidence does not clearly and convincingly establish that Respondent made sexual comments or jokes to, or made verbal sexual advances toward, the students in his drama classes and in the drama club. Findings Regarding Alleged Physical Sexual Advances toward Students The undersigned also finds incredible and unpersuasive S.G.'s testimony that Respondent would get close to his face, sniff his neck, and try to kiss him, and that Respondent engaged in similar conduct toward C.W. and R.C. S.G. testified that Respondent directed this conduct toward him openly and obviously to everyone, on an almost daily basis. However, C.W., I.D., and V.A.——all of whom were in the drama class, drama club, or both, so were in a position to observe any such behavior——all unequivocally testified that they had never observed Respondent engage in any of those actions toward S.G. or any other students. Again, had Respondent engaged in this conduct——particularly in the loud, frequent, open, and obvious manner to which S.G. testified——it is highly likely that these students would have seen that conduct; yet, all persuasively and credibly testified that they never saw Respondent engage in such conduct. S.G. also testified that on one occasion, Respondent bit him on the nipple, and that one other student (who did not testify at the final hearing) witnessed it. Respondent credibly denied having engaged in this behavior. The undersigned does not find S.G.'s testimony on this point credible or persuasive. To the contrary, the undersigned finds it far more likely that, had Respondent engaged in such behavior, S.G. would have told his mother, school authorities, or other students——and, most important——would not have voluntarily taken another drama class from Respondent the following year.14/ Furthermore, the undersigned finds Respondent's testimony that he did not bite S.G.'s nipple credible and persuasive. S.G. also testified at the hearing that on one occasion during his senior year, Respondent had purposely groped his genitals. However, in his sworn statement made during the School Police investigation, S.G. stated that Respondent had "constantly" tried to kiss him and grab him in his "private area," and that Respondent had grabbed his genitals on more than one occasion——the latest occasion as recently as a week before S.G. was interviewed as part of the investigation. S.G.'s hearing testimony is patently inconsistent with his sworn statement on a material detail——i.e., the frequency with which he claims Respondent grabbed or attempted to grab his genitals. This inconsistency bears directly on S.G.'s credibility as a witness. Due to this obvious inconsistency on a key detail——one which cannot credibly be explained to mistake or lapse of memory——S.G.'s testimony that Respondent grabbed his genitals is deemed incredible and unpersuasive. Further, the undersigned finds credible and persuasive Respondent's testimony that he did not ever grab S.G.'s genitals. Although R.C. initially testified that Respondent tried to kiss him, he subsequently clarified that Respondent had, in fact, blown a "theatrical kiss" toward him as he returned to his seat after they had engaged in a discussion. This testimony does not clearly and convincingly establish that Respondent made a sexual advance toward R.C. In sum, the evidence does not clearly and convincingly establish that Respondent made physical sexual advances toward S.G., R.C., C.W., or any other students in his drama class or in the drama club. Findings Regarding Alleged Sexual Relationship with Student The credible, persuasive evidence does not show that Respondent engaged in a sexual relationship with C.W. S.G.'s testimony that he heard Respondent and C.W. engage in sexually explicit discussions, exchange sexual jokes, and call each other pet names "all the time" was directly contradicted by the credible, persuasive testimony of C.W. and Respondent, both of whom denied engaging in such conduct. Furthermore, I.D. and V.A.——both of whom were in Respondent's classes and in the drama club, so were often around both Respondent and C.W.——persuasively and credibly testified that they never heard Respondent and C.W. engage in sexually explicit discussions, exchange sexual jokes, call each other pet names, or otherwise engage in inappropriate verbal or physical conduct toward each other. Additionally, as previously discussed, although R.C. claimed to have heard Respondent and C.W. engage in "homosexual jabber," he was not able to specifically articulate anything that Respondent or C.W. said to each other that was, or could be considered, sexual or "homosexual" in nature. The fact that Respondent and C.W. stood (or even sat) next to each other and talked to each other during a school pep rally——and that, consequently, S.G. and R.C. perceived them as a "couple"——is of no probative value in proving the existence of a sexual relationship between Respondent and C.W.15/ Indeed, the undersigned finds completely credible and persuasive C.W.'s testimony that he had gone to the pep rally separately, and found Respondent and stood by him specifically to talk to him about acting instead of watching the pep rally. Respondent and C.W. both credibly and persuasively denied being involved in a sexual relationship, engaging in sexual jokes with each other, or calling each other pet names. The evidence does not clearly and convincingly establish that Respondent engaged in a sexual relationship with C.W. Findings of Ultimate Fact It is well-established in Florida law that whether charged conduct constitutes a deviation from a standard of conduct established by rule or statute is a question of fact to be decided by the trier of fact, considering the testimony and evidence in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). See also McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); MacMillan v. Nassau Cnty. Sch. Bd., 629 So. 2d 226 (Fla. 1st DCA 1993). Accordingly, whether alleged conduct violates the laws, rules, and policies set forth in the charging document is a factual, not legal, determination. For the reasons addressed in detail above, the competent substantial evidence in the record does not clearly and convincingly establish that Respondent engaged in any of the conduct with which he was charged in the Petition. Therefore, the undersigned finds, as a matter of ultimate fact, that Respondent did not violate the following rules and policies, as charged in the Petition: Florida Administrative Code Rules 6A-5.056(2), 6A-10.080(2), and 6A- 10.081(3); School Board Policy 0.01(2), (3), (4) and (6); School Board Policy 1.013(1); School Board Policy 3.02(4)(a), (b), (d), (e) and (5)(a); and School Board Policy 5.81(10)(c).16/ Accordingly, the undersigned finds, as a matter of ultimate fact, that Petitioner did not show, by clear and convincing evidence, that there is just cause, as defined in section 1012.33(1)(a), to suspend Respondent without pay and terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order dismissing the charges against Respondent, reinstating his employment as a teacher, and awarding him back pay to the date on which he was first suspended without pay. DONE AND ENTERED this 24th day of April, 2017, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 24th day of April, 2017.
Findings Of Fact Introduction At all times relevant hereto, respondent, Lawrence J. Ferrara, was an instructional employee of petitioner, School Board of Palm Beach County, Florida (School Board or petitioner). When the relevant events herein occurred, Ferrara was a classroom teacher under a continuing contract assigned to John I. Leonard High School (JIL) in Lake Worth, Florida. He has been employed as a classroom teacher with petitioner since August 16, 1965 and received his continuing contract of employment in June, 1969. He holds teaching certificate number 150262 issued by the State Department of Education and is certified in the areas of American Government and social studies for grade levels 7 through 12. Respondent received a bachelor of education degree from the University of Miami. His first assignment with petitioner was in school year 1965-66 at Lantana Junior High School. He remained there through school year 1967-68. At the end of that year, Ferrara was placed on a fourth year annual probationary contract because he had insufficient control of his classes. He transferred to John F. Kennedy High School for school year 1968-69, and received a continuing contract of employment at the end of that school year. Respondent then transferred to Boynton Beach Junior High School for the 1969-70 school year. Ferrara desired to teach at the high school level because he preferred to teach students having greater maturity and interest in learning. He secured an assignment to JIL in September, 1970, where he remained until his suspension in 1986. Ferrara was initially assigned to the social studies department teaching American History to the eleventh grade. He remained in that position until the fall of 1981. During this period of time, Ferrara's evaluations showed steady improvement in his performance, and Ferrara characterized the 1980-81 school year as the happiest and most enjoyable year in his teaching career. In fact, he referred only two students to the dean for disciplinary reasons during the entire year, and both were referred during the final week of school. Prior to the 1981-82 school year, Ferrara had a reputation as a good teacher, and his relationship with other faculty members was favorable. JIL sits on a forty acre campus in Lake Worth, Florida. During the relevant years the school had a student enrollment ranging in size from 2,200 to 2,850 students. Most recently its faculty numbered approximately 145. The principal is the chief administrator at JIL. In dealing with employees, the principal follows guidelines set out in the collective bargaining agreement with the Classroom Teachers Association (CTA), School Board policy, administrator's directives and the JIL Teacher and Student Handbooks. There are several assistant principals, including deans, who have been given authority to counsel with and reprimand employees. Among other things they are responsible for discipline of students. There are also guidance counselors who may counsel with other staff members and students as the need arises. The principal designates department chairmen who have authority to reprimand or evaluate teachers, and to recommend course assignments within the department. In the case at bar, Ferrara was assigned to the social studies department, which had approximately sixteen teachers. Its chairman was responsible for reviewing lesson plans of all teachers to insure that curriculum objectives were being met. This action is mandated by the School Board. At JIL lesson plans were required to be prepared one week in advance. In addition, faculty were required to prepare emergency lesson plans to be used by substitute teachers if the regular teacher was absent. Finally, the department head issued textbooks to each teacher who was obligated to turn in the books (or monies from the student) at the end of the semester or school year. According to the CTA-School Board contract introduced into evidence as petitioner's exhibit 9, and which is applicable to Ferrara's employment, Subsection A1. of Article II provides that "teachers are expected to serve on school committees, self-evaluation and accreditation committees, attend meetings and workshops . . . such service (to be) on a voluntary basis . . " Subsection A2. provides that "employees shall assume reasonable responsibility for the safe return of all school property." Subsection F4. of the same Article requires employees to "assume the responsibility for taking a positive approach to discipline and to maintain constructive classroom control." Subsection B1. of Article III prescribes a duty day for faculty at JIL of seven and one-half consecutive hours per day. Subsection B2. requires that an employee obtain approval from the principal to leave the school premises for personal reasons during the defined duty hours. Subsection E4. of the same Article provides that "the teacher shall be responsible for the preparation of daily lesson plans to be made available to the substitute in the absence of the teacher. Such plans shall be made in advance at all times." The School Board has also promulgated various "local" rules which pertain to suspension and dismissal of employees, as well as the rehabilitation process to be following once a teacher is cited for deficiencies. They apply to Ferrara's employment. School Year 1981-82 In the spring of 1981, Ferrara heard rumors that he was being reassigned the following school year from exclusively teaching eleventh graders to teaching ninth grade American Government classes as well. At the same time he learned that the teacher of an advanced history class was leaving JIL at the end of the school term. Ferrara approached the social studies de- partment head, Catherine Thornton, concerning the vacancy but was told the vacant slot had been promised to a new teacher named Martin. Ferrara then met with the JIL principal, Dr. Munroe, in June, 1981 and asked that his teaching assignment not be changed. During that meeting he criticized Munroe's selection of athletic coaches to teach in the social studies department. Ferrara considered the department as a dumping ground for coaches and other unqualified teachers. Ferrara's request was turned down and he was reassigned to teach three periods of ninth grade American Government classes and two periods of eleventh grade American History the following year. Moreover, JIL was on double sessions at that time, and Ferrara was switched from the early session (6:45 a.m. to 2:15 p.m.) to what he considered to be the less desirable second session that ran from 9:45 a.m. to 5:15 p.m. He was also required to teach during the last three periods of the second session. Ferrara was extremely displeased, and felt that he was being treated as the new teacher who was typically given the lower grade assignment and the afternoon shift. In an effort to get the new assignment changed, Ferrara met with the department head and later with Dr. Munroe. After having no success, he met with the area superintendent and finally the school superintendent. Their advice was to take the assignment, be evaluated and then see what happens. Ferrara thereafter approached five of the seven members of the school board seeking their assistance in overriding the reassignment decision. This too was unsuccessful. At one of the meetings in Dr. Munroe's office on September 4, one administrator said that if Ferrara was unhappy with the new assignment then maybe he should quit. By this time Ferrara had engaged the services of an attorney, and after he and his attorney were unsuccessful in persuading the administration to change the assignment, he instructed the attorney to file a civil rights action in federal court. This was done on July 29, 1982. The lawsuit sought, among other things, the reassignment of Ferrara to his former teaching assignment in the eleventh grade. That suit has remained pending since then, and at time of final hearing, was on rehearing of an order of the Eleventh Circuit Court of Appeals which affirmed the trial court's earlier dis- missal of the action. Charles L. Thornton (no relation to the department chairman) replaced Dr. Munce as principal at JIL in October, 1981. He had previously served as dean of boys at JIL in 1970-71 and recalled that he frequently visited Ferrara's eleventh grade class that year because Ferrara was having a "hard time" with his students. Before he left JIL in September, 1971, Thornton told the then principal of JIL that they had "problems" with Ferrara because of his inability to control his students. This was borne out by Ferrara's 1970-71 evaluation which cited Ferrara for deficiencies in no less than five areas, most of which were attributable to the fact that Ferrara was then an inexperienced high school teacher. When Thornton returned to JIL in October, 1981, he learned that Ferrara had hired an attorney to challenge the school's decision to reassign Ferrara to the ninth grade classroom. Even so, when Ferrara approached Thornton about changing his assignment, Thornton told Ferrara that no teacher assignments would be made mid-stream in the semester, but he would "revisit" the matter at the end of the semester. His denial was confirmed in a written memorandum to Ferrara. He also told Ferrara the change was not to be considered a demotion and that he would keep the same title, salary and number of work hours. At the end of the first semester, Thornton did not change respondent's course assignment because it would have disrupted the master schedule and he had some concern about respondent's performance. Unquestionably, ninth grade students are less mature and more difficult to control from a disciplinary standpoint than other students, but the subject matter of their coursework is easier than the subjects taught to higher grade levels. Although Ferrara considered his new assignment as being the most undesirable of all assignments in the social studies department, other teachers stated that it made no difference to them as to which group of students they were assigned to teach. During the batter part of the first semester, Ferrara was absent due to illness on several occasions. In the second semester he took a leave of absence for the entire semester due to illness apparently brought on by job stress. According to Ferrara, teachers assigned to the first session, which he preferred, were allowed to leave the school around 2:15 p.m. each day. Ferrara's classroom faced the parking lot and he could see them through his windows departing the school while he was required to remain there teaching until 5:15 p.m. He also acknowledged having "problems" with students during the last three periods of each day, and when coupled with the aggravation of seeing his colleagues leaving early, it induced a physical ailment which led to his taking the lengthy sick leave. During his second semester absence, Ferrara prepared no regular or emergency lesson plans for his substitute, although he was responsible for doing so for the entire year. His substitute contacted him for assistance, but Ferrara declined to offer any, saying it was the substitute's responsibility to do the work. It is noteworthy that Ferrara's substitute had some disciplinary problems when she took over his class, but after receiving assistance from the deans, she had only "minor" problems the remainder of the semester. Thornton prepared an annual evaluation of Ferrara in June, 1982, and gave him an overall rating of satisfactory. However, he found Ferrara deficient in the following areas: discipline of students, attending required extracurricular activities, teaching in a manner in which all students in the class could comprehend and relating in a more positive manner with his peers. Other than Ferrara's use of "various methods and materials," Thornton made no comments concerning Ferrara's areas of strength. The first deficiency was based upon Ferrara's inability to control the classroom environment. More specifically, Ferrara referred more students to the dean than any other classroom teacher at JIL, and for what appeared to be minor infractions. These included talking out of turn, squeaking a chair, going to the pencil sharpener without permission and leaving one's desk without permission. On some occasions Ferrara would refer entire groups of students. In all, Ferrara's referrals constituted around 25 percent of all referrals made by the 145 JIL faculty members. The dean of students was asked by Ferrara on at least three occasions to visit his classroom because his class was out of control. The dean observed that Ferrara had very little control over his students, managed the class "poorly," and concluded that very little learning was taking place. The dean discussed with Ferrara how to handle minor classroom infractions and advised Ferrara to review the JIL Handbook provisions regarding discipline. However, Ferrara was not responsive to these suggestions. Ferrara was also criticized because his students had difficulty in understanding "his approach to teaching." This was apparent from the fact that Ferrara had an extremely high rate of failure for his students. Ferrara himself conceded that his teaching performance began deteriorating in the 1981-82 school year and never again reached the level of performance achieved by him prior to that year. The evaluation noted that Ferrara did "not have an effective relationship with associates." This was confirmed through testimony that after his reassignment became effective, Ferrara would not speak to most of the members of the department, and no longer socialized with staff at the department's workroom. Even Ferrara acknowledged that after September, 1981 he became "reserved," did not talk to colleagues arid appeared unhappy and upset. Thornton required mandatory attendance by faculty at only two school functions each year: open house when parents, students and faculty met at the school, and graduation. Ferrara attended neither saying graduation was "too sentimental" and that he was always ill whenever open houses were held. Ferrara was given a copy of the above evaluation by Thornton, reviewed it and signed it on June 8, 1982. However, he told Thornton he disagreed with the contents of the evaluation. At their meeting, Thornton acknowledged to Ferrara that he had sufficient knowledge of the subject matter, and found Ferrara to be well-versed in his subjects. School Year 1982-83 Because of problems with Ferrara in 1981-82, the department chairman recommended that Ferrara be assigned to teach five ninth grade American Government classes in school year 1982-82. This recommendation was approved by the assistant principal for curriculum who draws up the semester schedule, and later by Thornton. While teaching a class in November 1982, respondent caught a student, K. B., mimicking him in class, grabbed the student by his arm and escorted him to his seat. He did so with such force that it left bruise marks on the student's arm. Ferrara was counseled by Thornton following this incident. In January, 1982, respondent gave a student an F in her coursework for disciplinary reasons. This is contrary to school board policy and resulted in the issuance of a memorandum by Thornton to Ferrara on January 21, 1983. Various former students of Ferrara during the 1982-83 school year testified concerning their impression of his teaching style and manner. Their comments included statements that he "wasn't normal" and was "different" from other teachers. It was established that he would not answer questions from many students, either ignoring them or telling them the answer was in the textbook. He called them "stupid," "immature" and "jackasses" on a number of occasions, that he `hated" teaching them, and told them he should be teaching a higher grade level but was being punished by the administration. It was further established that Ferrara frequently yelled in class, and that his efforts to discipline students were unsuccessful. After awhile, some students would make deliberate efforts to provoke Ferrara by beginning coughing, spells or squeaking their chairs, knowing that his efforts at discipline were merely a "show" and that they need not obey him. Ferrara would also frequently discuss in class his lawsuit against the school board without relating it to the subject matter. His most common teaching technique was to give students a reading assignment from the textbook and have the students answer the review questions at the end of the chapter. Only occasionally did he give a lecture. Most students indicated they did not learn a great deal in his class, and found the instruction boring. It was established that cheating frequently occurred when tests were given, and answer sheets were passed around while Ferrara was in the room. Many believed he was punishing them by keeping the windows shut and the air-conditioner turned off on hot days. Indeed, on one day in late April, Thornton went to Ferrara's class and found it extremely "hot" with the air-conditioner off and the windows closed. Ferrara was teaching the class wearing a sweater. Thornton ordered that the windows be opened to avoid having a student pass out from the heat. Ferrara justified his actions by contending the air-conditioner was frequently inoperative and that the windows often times stuck. This was disputed by the building maintenance chief. He also stated that he kept the windows closed because of traffic noises emanating from a nearby street. However, he conceded that he kept the students in a hot room on at least one occasion as punishment. Because of complaints made by parents and students to Thornton during the first semester, a conference was called by Thornton with respondent on January 28, 1983. At that time he gave Ferrara written notice that his behavior was "inappropriate," and that he must regain control of his classroom. On April 20, 1983, Thornton had a conference with Ferrara concerning an allegation that he had called a student an "ass." After Ferrara admitted this was true, Thornton told him not to call students such names again, that it would not be tolerated and that he should refer to the teacher's Code of Ethics which proscribed such conduct. On May 23, 1983, Thornton found two of Ferrara's students wandering in the hallway without a hall pass. They had been told to leave Ferrara's class, and that he did not care where they went. During the school year, Ferrara continued to disregard the requirement to complete lesson plans. On occasions when Ferrara was absent, the substitutes found no regular or emergency lesson plans available. Instead, the substitutes had to write their own plans and give assignments, without having any idea when Ferrara would return. The assignments completed by the students for the substitute teacher were thrown in the waste basket when Ferrara returned because he found them ungraded. However, substitute teachers do not normally grade papers. During the school year the dean of students continued to receive numerous discipline referrals from respondent. The reasons for referral were generally minor, which indicated Ferrara did not have proper control of his classes. In contrast, his substitute teachers did not experience this type of problem when they substituted for Ferrara. Some of the referred students were those who had no other disciplinary problems with other teachers. On some occasions, entire groups were once again referred to the dean. In short, there was no improvement in respondent's classroom management from the prior year. At the same time, the guidance counselors continued to receive numerous requests from students to transfer out of his classes. At the end of school year 1982-83, the department chairman wrote Thornton a memorandum which listed by teacher the number of textbooks missing or not returned to the teacher. Ferrara had sixty-three textbooks missing, which was far in excess of other department staff. In addition, although he returned twenty-three of forty-eight new textbooks assigned to him at the beginning of the semester for one course, seventeen were so defaced with obscenities that they were unusable. Ferrara did not deny that he lost the textbooks, but stated that some books were smaller than normal classroom size, and could be easily carried out of class in a concealed fashion by a student. He feared that if he began searching students, he would suffer possible repercussions from doing so. Despite these losses, Ferrara refused assistance from the area director of secondary education in creating a system of inventory and control for textbooks. In his annual evaluation prepared on May 26, 1983, Ferrara was cited for deficiencies in the following areas: teaching techniques, classroom environment, teacher attitudes and professional standards and work habits. In addition, Thornton attached to the evaluation a typed sheet containing specific recommendations for improvement in each of the four areas. The sheet noted that Thornton was "willing to provide (Ferrara) whatever assistance necessary in each of the . . . cited areas." Thornton also noted that Ferrara has strength in the areas of knowledge and understanding of the subject matter, appearance, educational qualifications and in adherence to the defined duty day. Thornton and Ferrara held several meetings concerning the annual evaluation. Each deficiency was discussed, and Thornton made suggestions on how to improve in those areas. However, Ferrara was not receptive to these suggestions, and complained of unfair treatment in his course assignments. He also repeatedly discussed his lawsuit. He continued to maintain he was better suited to teach the eleventh grade even though he was certified to teach both the ninth and eleventh grades. Thornton advised Ferrara he was responsible to his students no matter what other problems he believed he had, and that he should work to improve his performance. School Year 1983-84 In school year 1983-84, Ferrara's teaching assignment did not change. In fact, unlike the prior two years, Ferrara did not request a change in his teaching assignment. He also did not request a transfer to another school although these were procedures for doing so. 1/ Ferrara's failure to control his classroom continued into the new school year. During the year the assistant principal (dean) in charge of discipline visited Ferrara's classroom at least ten to fifteen times after Ferrara requested his assistance in regaining control of the classroom. On his visits the dean found a "hostile" atmosphere, and verbal exchanges taking place between Ferrara and his students. He concluded that no learning could take place in this atmosphere. The dean noted that no other regular teacher or substitute had such classroom management problems. Ferrara's referrals to the dean represented a larger number than all other faculty members combined. The dean also observed Ferrara telling his students that he did not like teaching immature ninth graders. Similar observations were made by another JIL dean. Ferrara was counseled by the dean who told him that students felt Ferrara did not like them, and that his discipline techniques were unfair. Testimony by Ferrara's students confirmed that his teaching style did not change. He continued to call them names such as "stupid" and "immature" and told them he did not enjoy teaching ninth graders. His lawsuit was also a frequent subject of class discussion. The students also complained that Ferrara refused to open the windows on hot days when the air-conditioning was inoperative because of outside noise. The latter complaint was noteworthy since Thornton had previously given written instructions to Ferrara on September 16 and 26, 1983 concerning complaints about Ferrara keeping the room too hot. During the year, a parent requested that she and her daughter meet with Ferrara and a school counselor concerning a problem the daughter was having in Ferrara's class. At the conference, Ferrara dwelled primarily on his lawsuit against the school board and did not seem concerned with the real purpose of the conference. This prompted a complaint by the parent against Ferrara. Students continued to request transfers out of Ferrara's classroom at an increasing rate. Although two guidance counselors advised Ferrara of these complaints, they observed no change in his behavior. Based upon student and parent complaints about a high failure rate, Ferrara was instructed by Thornton in October, 1983 to furnish each student with a mid-marking report (progress reports) advising them they were not performing to expectations. This report would alert students and parents that a student was in danger of failing. Although such reports are required by school board policy, Ferrara frequently did not prepare these reports. In fact, he advised Thornton he felt they were unnecessary and would not prepare them unless Thornton allowed teachers to complete them during class time. There were thirty-six weeks during school year 1983-84. All teachers were required to prepare lesson plans for each of those weeks, and to turn them in prior to the beginning of each school week. The plans were then filed, and in the event a teacher was absent, the substitute teacher would use the plans and instruct the class without a break in continuity. Ferrara was absent for three weeks in the spring of 1984. However, he left no regular or emergency lesson plans for his substitute. During his absence, the substitute had no disciplinary problems. When he unexpectedly returned to class after this absence, the students booed him, and then, according to the substitute, the "entire class went out of control." Ferrara thereafter required his students to repeat the work previously done for the substitute. Ferrara continued to ignore repeated requests by the department chairman to make lesson plans available. These requests were in the form of memoranda to all department personnel on August 25, October 5, November 17 and December 7, 1983 and January 17, 1984. As of February, 1984 he had turned in only three weeks' plans for the preceding twenty-week period. The department chairman wrote him a memorandum on February 10 requesting that such plans be filed. Even so, in June, 1984 the department chairman reviewed the lesson plans filed by department staff for the prior year. She found that Ferrara had completed plans for only five of the thirty-six weeks during the just completed school year. Of those completed most were generally unsatisfactory. Ferrara did not deny this, but pointed to the fact that two or three other department teachers were also continually tardy in filing their plans. This was confirmed by the department chairman. Ferrara began to come to work late and leave early during the school year although he was warned several times to adhere to the defined duty days. He also had the second highest rate of textbook losses for the social studies department. Because of Ferrara's continuing performance problems, Thornton placed Ferrara on a remedial program known as the Notice, Explanation, Assistance and Time (NEAT) procedure effective April 25, 1984. This procedure is designed to provide assistance to teachers having performance problems. Basically, it provides the teacher with an explanation of any deficiencies, assistance and guidance in the cited areas, and an "adequate" period of time in which to correct them. Its main purpose is to salvage an employee's career. In his letter, Thornton told Ferrara he was being placed on the NEAT procedure because of deficiencies in the following areas: inability to use acceptable teaching techniques; inability to maintain a positive classroom environment; inability to establish and maintain a professional and effective working relationship with parents, students and colleagues; and failure to submit proper records, including, but not limited to, progress reports and lesson plans, as required by the school center, the School Board and state law. Ferrara was given until October 16, 1984 to "fully correct these deficiencies." The two met in a conference May 4, 1984 to discuss the procedure and Ferrara's responsibility to correct the deficiencies by the established date. It was pointed out to Ferrara that he would be given time off to visit other personnel while seeking assistance, and that three individuals on the county staff were available for consultation on his noted deficiencies. Ferrara viewed the NEAT procedure as a "charade" and a way for the School Board to fire him. Although he admitted he resented being placed on NEAT, Ferrara stated he respected the system and did not intend to ignore it because he knew that to do so would give grounds to the Board to dismiss him. On May 30, 1984, Thornton prepared an annual evaluation reflecting the same deficiencies as were used to place Ferrara on the NEAT procedure. It also noted that Ferrara's areas of strength were his educational qualifications and his use of good oral and written language. Ferrara was given a copy of the evaluation and, although he disagreed with its contents, signed it on May 30, 1984. School Year 1984-85 On August 21, 1984, Ferrara met with Thornton and the assistant principal and discussed various types of assistance that were available to him which had not yet been provided. Ferrara told Thornton he was not interested in any assistance and walked out of Thornton's office. On October 22, 1984, Thornton advised Ferrara by letter that the following deficiencies required corrective action: continued failure to submit timely lesson plans; continued inability to establish positive rapport with staff, parents and students; continued failure to maintain a positive classroom atmosphere; and a continued deficiency in his teaching techniques. Ferrara was also told that there had been "some improvement in (his) performance," and that Thornton believed he was "making an effort to improve (his) performance, and because of this, the time for correcting his deficiencies under the NEAT procedure was being extended until the end of the school year. During the school year Ferrara's classroom management problems continued. For example, one guidance counselor observed that most of the students visiting her were students in Ferrara's classes. In fact, over half of the students she gave counseling to desired to transfer out of Ferrara's class and sought her assistance in doing so. The dean of students observed that some 35 percent to 40 percent of total disciplinary referrals by all teachers came from Ferrara, including six students at one time. This dean found most of the referrals unnecessary, and ones that could have been handled by Ferrara. In addition, she was called to Ferrara's classroom about four times each semester to calm down the class. It was established that the students deliberately "egged" Ferrara on, particularly when he made personal comments about them. Other credible testimony established that Ferrara's class was out of control on many occasions, and that this disruption affected the amount of learning that took place in the classroom. One dean suggested to Ferrara that he observe other teachers so that he might improve his classroom performance. In teacher-parent conferences, Ferrara preferred to discuss his personal problems with the school board administration rather than the problems that the student was experiencing. In other instances, Ferrara would not respond to requests by parents to contact them. On September 19, 1984, at Thornton's request, the area administrator, H. W. Berryman, visited Ferrara's classroom to observe and monitor Ferrara. This was the only teacher observation that Berryman had performed as an area administrator. On that particular day Ferrara needed some ten minutes to get the class started. Berryman noted that during Ferrara's lecture, only a few students were attentive, and that most were note-passing, carrying on conversations and creating mild disruptions which Ferrara failed to stop. However, Berryman complemented Ferrara on his knowledge of the subject matter and said his overall delivery was reasonably good. He suggested Ferrara take less time to "start-up the class, and to take steps to insure that his class was more attentive during the lecture. On October 4, 1984, Ferrara was observed by another administrator, Dr. Mona Jensen, for the purpose of assessing his teacher performance. This was also done at Thornton's request. Jensen is a consultant certified by the Florida Performance Measurement System (FPMS) and a trainer of other administrators in the use of FPMS. The FPMS utilizes a form for evaluating teacher performance by recording the types of effective and ineffective behaviors observed in four areas: management of student conduct, instructional organization, presentation of subject matter and communication skills. Dr. Jensen monitored Ferrara in these four areas and provided Thornton and Ferrara with a copy of her written report. Among other things, she observed a negative interaction between Ferrara and his students, and that there was a lack of positive reinforcement on the part of Ferrara. Some of his comments were caustic in nature, and he never smiled in class. Like Berryman, she observed students talking to one another and not participating in the activity. She recommended that improvements be made in all areas which her report addressed. On October 29, 1984, Ferrara was observed by Lois Biddix, who is also a FPMS certified state trainer. Biddix used the same type of form as did Jensen in evaluating Ferrara. On her visit, Biddix observed students talking to one another, and participating in activities unrelated to the lesson. She described the class as sedentary and lethargic, with students suffering from boredom and frustration. She attributed this to Ferrara's lack of enthusiasm and failure to introduce new content into the lesson. These observations were consistent with those made by Berryman and Jensen, and her recommendations for improvement were in the same areas as those of Jensen. Dr. Jensen returned to Ferrara's class for a second observation on January 31, 1985. While Ferrara spoke clearly and directly on that day, and had good communicative skills, Dr. Jensen found most students did not participate in the discussion. She also found a lack of positive reinforcement on the part of Ferrara. During the lecture, Ferrara demonstrated anger at a remark made by a student, and told the student that if she wanted a confrontation, he would gladly accept her challenge. Dr. Jensen's evaluation and notes were given to Ferrara after the visit. The recommendations for improvement were basically the same as those proposed by her in October, 1984. A number of Ferrara's 1984-85 students testified at final hearing. Their testimony painted a picture of continued class management problems. For example, it was confirmed that groups of students would collectively begin coughing at one time or squeaking their chairs in harmony to antagonize Ferrara or test his mettle. It was also confirmed that he continued to call freshmen "stupid" and "immature," that he told his students he hated teaching ninth graders and that the school administration was wrong in making him teach that level of students. He also discussed his pending lawsuit during class hours and referred to the school administration in a negative manner. On at least one occasion he discussed the qualifications or lack thereof of another department teacher. It was further pointed out that Ferrara refused to give credit for assignments given by his substitute teacher. There were complaints that Ferrara punished the students for talking by making them sit in a hot classroom without opening the windows or running the air-conditioning. There was also a "lot" of cheating during class even though Ferrara was present in the room. The general consensus of most students was that the class was boring, and that they did not learn a great deal in this type of environment. Ferrara was required to spend 7 1/2 hours each day on campus. 2/ During the year, he did not always arrive at school on a punctual basis or spend the required number of duty hours at school. On April 11, 1985, the department head wrote Thornton a memorandum criticizing Ferrara for his repeated tardiness, and leaving before 2:15 p.m. After Thornton notified Ferrara about this complaint, there was an improvement on his part. During the second semester of the school year, a guidance counselor, Elizabeth Konen, approached Ferrara and told him that the parents of one of his students desired a parent-teacher conference to discuss their child. Ferrara told Konen he did not have time to meet with parents. Konen found this to be the usual response of Ferrara whenever such a request was made. On another occasion, he wrote a note to Konen stating he had no time to meet with parents, but after Thornton intervened and ordered a conference, Ferrara attended. In December 1984, Thornton requested that Ferrara produce proof that he gave his students progress reports as required by Board policy. Ferrara could produce only two such reports, although he claimed four others had also been given reports. This was after Ferrara had been previously criticized on October 21, 1984 for the same deficiency. On January 8, 1985, Thornton again gave written notice to Ferrara that he give timely progress reports to all students who were failing or working below expectation. Even after this second warning, a student, S. Z., complained to Konen in February, 1985 that she had not been given a progress report by Ferrara. This was brought to Thornton's attention in a letter written by S. Z.'s mother. On March 25, 1985, Thornton wrote respondent a letter outlining his continued areas of "serious deficiencies," and his lack of improvement in those areas since being placed on the NEAT procedure. He was warned that unless there was "significant improvement," Thornton would have no choice except to recommend he be terminated. Ferrara was urged to implement the suggestions outlined in the letter, and was told that "any reasonable assistance" requested by him would be given. Despite receiving numerous criticisms for failing to turn in lesson plans, respondent did not turn in any lesson plans during the entire school year 1984-85. However, he did turn in a complete set of plans at the end of the year, but they did not indicate what part of the unified curriculum objectives had been met. On June 10, 1985, Ferrara was given his annual evaluation for the school year. It noted numerous continued deficiencies in three broad areas: classroom environment, teacher attitudes and professional standards and work habits. The only noted areas of strength were knowledge of the subject matter and use of proper grammar and written language. In his meeting with Thornton, Ferrara was told, among other things, that he should not make unprofessional remarks to his students, that he must adhere to defined duty days, that he must file lesson plans and progress reports on a timely basis, and his attitude with peers should improve. School Year 1985-86 Despite Ferrara's failure to correct all deficiencies by the end of school year 1984-85, Thornton made a decision to give Ferrara one last chance to rehabilitate himself under the NEAT procedure. On August 19, 1985 Thornton advised Ferrara by letter that the NEAT procedure was being extended until November 1, 1985 and that he must correct all deficiencies by that date. This gave, Ferrara a total of sixteen academic months under the remedial program. The letter also stated that if the deficiencies were not corrected by November 1, Thornton would make a recommendation to the Superintendent of Schools concerning Ferrara's employment status. Respondent had been criticized for giving an unusually high rate of failing grades to his students during prior years. It was established that his failure rate was substantially higher than for other teachers in school years 1981-82 and 1982-83. For example, his failure rates in 1981-82 and 1982-83 were 24 percent and 33 percent, respectively. In 1983-84, it was a little more in line (18 percent) with that of the other teachers to whom he was compared. After the first semester of school year 1985-86 had ended, Thornton reviewed Ferrara's grades and found the failure rate had been substantially reduced. Indeed, it was then slightly over 10 percent, thereby supporting Ferrara's contention that he had improved in this cited area of deficiency. On November 18, 1985, a thirty minute evaluation of Ferrara's class was conducted by Sandra Cowne, an assistant principal at JIL. Among other things, Cowne found that Ferrara still had no up-to-date lesson plan book. She noted that Ferrara was in need of improvement in four areas of performance. All other areas indicated satisfactory performance. On December 2, 1985, D:. Jensen visited Ferrara's classroom to monitor and evaluate his performance. The purpose of the visit was to determine if Ferrara had implemented the recommendations for improving instruction previously made after her earlier visits. Dr. Jensen asked to meet with Ferrara just prior to the hour of observation but he refused saying he didn't want to discuss anything. She then asked for his lesson plan and was given a plan that was too brief and had insufficient detail. During the actual observation, she found that Ferrara had not added any positive teaching behaviors to his technique although she had suggested this to him after her earlier observations. According to Dr. Jensen, Ferrara's main deficiency was that he failed to provide motivational or positive reinforcement to his students. She concluded that Ferrara was an ineffective teacher, ranking below average due to his lack of positive behaviors. A copy of her evaluation and notes was given to respondent. H. W. Berryman made a second visit to Ferrara's classroom on December 10, 1985 for a repeat evaluation. Berryman initially noted that Ferrara had heeded his prior advice from September, 1984, and had speeded up the start-up time for beginning his instruction. However, Berryman continued to be concerned with the lack of involvement by a large majority of the students in the classroom. Although he found that Ferrara had "in-depth content knowledge" of the subject matter, he concluded that Ferrara had "serious negative attitudinal problems in reacting to all of the students assigned to his classes." Several of Ferrara's students testified about their experiences in Ferrara's classroom during the first semester. They confirmed that respondent's teaching techniques had not changed from prior years. For example, it was established that the usual disruptions occurred during his class, such as students sleeping, passing notes, talking and generally being inattentive. Ferrara again called his freshmen students "immature" and "childish," and told them that he had been demoted to the freshman class because the school board could not fire him. It was pointed out that once he told the students that they were immature, Ferrara would lose control over the class. There were continuing complaints that the classroom was too hot, and that Ferrara told the students if they were unhappy about the room temperature to complain to the administration. On one occasion, he refused to move his classroom to an adjacent empty room even though a student had vomited on the floor and the stench remained after the area was cleaned. It was also established that Ferrara continued to talk in class about his pending lawsuit and the problems he was having with the school administration. During the first semester, Ferrara continued to send large numbers of students to the dean for minor infractions. He also sent as many as six at a time. Ferrara was now disciplining his students before referral by making them write repetitious sentences. However, this is considered to be an inappropriate form of discipline. This form of discipline prompted complaints from both students and parents to the administration. It was confirmed through testimony of an assistant principal that respondent's classroom control had not improved over a three- year period. This observation was concurred in by various guidance counselors who received visits from Ferrara's students. During the first semester of the school year, there was no improvement in respondent's professional relationship with his peers. He refused to speak to most colleagues, and openly expressed his disdain for the department chairman. When respondent was in the department workroom, the atmosphere was hostile and uncomfortable. Similarly, like in other years Ferrara did not attend open house. He also failed to provide adequate lesson plans as previously ordered on a number of occasions. At the end of the first semester, Thornton concluded that sixteen academic months was a sufficient time to allow Ferrara to correct his deficiencies. Finding that respondent was "damaging" his students, that no improvement in Ferrara's performance or attitude had occurred, that he was making no contribution to the school program, and that he was still besieged with student and parent complaints, Thornton concluded that disciplinary action was justified. Thornton did acknowledge that Ferrara had improved in the areas of adhering to duty hours, issuing progress reports, taking roll call and reducing the number of failures. Even so, he concluded that this was insufficient to satisfy his overall teaching performance deficiencies. Moreover, he found that Ferrara's effectiveness as a teacher had been impaired. Thornton accordingly recommended that Ferrara be terminated. Ferrara's suspension without pay became effective on February 19, 1986 and he has remained in that status since that time. Respondent's Case Ferrara traced all of his problems to what he perceived to be an uncalled for demotion to the ninth grade classroom in school year 1981-82. He felt it to be unjust, and an action which ignored the seniority he had attained over the years. He acknowledged that once the reassignment occurred he became demoralized and bitter and was never the same teacher again. Ferrara did not deny that he called students names. He also conceded that he had problems maintaining classroom discipline, but suggested he was being paid to teach, not to discipline. Ferrara further admitted he yelled at students, and sent a great many to the dean's office, but blamed much of this on a small group of students who always instigated trouble in his classroom. Ferrara asserted his classroom discipline would actually improve at times during this period, but that each time Thornton sent a note criticizing him, he became demoralized and would again lapse into his prior ways. Although Ferrara considered the NEAT procedure a means by which petitioner could fire him, he contended he attempted to correct his deficiencies. However, it was Ferrara's contention that only through reassignment to the eleventh grade could he actually improve and correct his deficiencies. He believes Thornton to be biased since Thornton is a defendant in Ferrara's lawsuit. However, independent administrators confirmed that the deficiencies cited in Thornton's memoranda were real, and that Ferrara had made no visible effort to correct most of them. Moreover, contrary to his assertions, Ferrara was accorded adequate notice, sufficient means and ample time to correct his cited deficiencies. In this regard, the School Board satisfied all regulations pertaining to the rehabilitation and dismissal of an employee. Ferrara also pointed out that Thornton prepared a special file called the "Larry Ferrara Drawer" in November, 1982 so that Ferrara's actions and performance could be documented. However, Ferrara's teaching performance was in issue by this time, and Thornton was simply conforming with various state, local and union requirements that potential disciplinary action have a well-defined paper trail. Ferrara did not deny he missed all graduations and open houses from 1981 through 1985. He justified his absence from graduation ceremonies on the ground they were too "sentimental," and stated he was always ill whenever open houses were scheduled. Ferrara denied that students were punished by keeping the room hot. He blamed the heat on an often inoperative and inadequate window air- conditioning unit in his classroom, and windows that were difficult to open. This was denied by the school maintenance chief. Various students corroborated Ferrara's claim that the air-conditioner did not always work, but it is found that Ferrara sometimes punished his students in this manner. Ferrara attempted to repudiate the testimony of former students who testified for petitioner at final hearing by offering favorable testimony of other former students. However, the latter testimony either pertained to time periods too remote to be relevant to this proceeding, or was discredited by more persuasive and credible testimony from petitioner's witnesses. Ferrara contended he prepared all required lesson plans but waited until the end of the school year to turn them in. However, even it this were true, this was contrary to school policy since such plans were required to be turned in the week before they were to be used. Ferrara suggested that most of his difficulties were caused by his creating "waves" at JIL. As noted above, he believed Thornton and the administration were biased against him because he had sued them, and because he had publicly criticized various school policies and individuals in the news media. But it was never established that such animosity existed, or if it did, that it played a role in the dismissal process. Finally, Ferrara professed a sincere desire to continue in the teaching profession, albeit at a more mature grade level. He does not wish to be terminated after a twenty-one year career. He desires to be reinstated at JIL and allowed to teach the eleventh grade as he did during the years 1970- 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of incompetency (inefficiency), misconduct in office, gross insubordination and willful neglect of duties as set forth in the Conclusions of Law, and that he be dismissed as-an employee of the Palm Beach County School Board. DONE and 0RDERED this 11th day of August, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1986.
Findings Of Fact During the 1993/1994 school year, the Respondent, Alan Davis, was in his 12th year teaching eighth grade science at Meadowlawn Middle School in St. Petersburg, Florida. He is on a professional services contract. He has a good record and reputation as science teacher at the school and no prior disciplinary problems (or even accusations against him.) The Respondent's classroom was located on the east wall of the school building, at the intersection of two interior hallways to the north and west of the classroom. There is a classroom door to the outside to the east, and the entire east wall of the classroom consists of windows looking across a walkway directly onto portable special education classrooms. There are vertical blinds that can be drawn across the windows and closed. The blinds usually are drawn but not closed. There is a classroom door to the hallway to the west of the classroom. Immediately across the intersecting hallway to the north of the classroom is the door to the teachers' lounge. Immediately past the intersecting hallway to the north is the door to the office of the school resource officer. Immediately past the resource officer's office, only approximately 25 feet from the door to the Respondent's classroom, is a suite of offices belonging to the school principal and other school administration personnel. Kim Wilder was an eighth grader at Meadowlawn during the 1993/1994 school year. She was in the Respondent's fourth period science class. Through about half of the year, she enjoyed a good record and reputation as a pupil of the school. Her grades were A's and B's, and she was not a disciplinary problem. However, several people noticed a change in her behavior in the middle of the school year. Her relationship with her parents deteriorated somewhat, and she sometimes displayed an attitude of not caring about family or school. The beginning of these changes in Kim roughly coincided with her friendship with a boy named Gilbert, who was a poor student, both in academics (he had to repeat grades) and in conduct. Gilbert also later began to spread rumors that he and Kim allegedly were sexually active. Such rumors came to the attention of interested and concerned teachers, one of whom alerted Kim's parents. Kim's parents became convinced that Gilbert was a bad influence on Kim and that she would be better off not seeing him. They refused to allow him to visit at their home, and they insisted that she stop seeing him. This created a conflict between Kim and her family. In the course of conversations with some girl friends approximately the end of March or beginning of April, 1994, Kim disclosed that she had been sexually assaulted by the Respondent. Initially, she told one of her friends only that the Respondent had "felt on" and "kissed" her. She told others additional details. But the first three friends she told did not recall any allegation that the Respondent performed oral sex on Kim. In later retellings, Kim added that allegation. In one later retelling, she added the allegation that the Respondent felt her breasts. Kim forbade her friends to tell anyone about her allegations. But one of her friends disclosed the allegations, and school authorities were informed on or about April 8, 1994. When Kim learned that the school authorities were investigating her allegations, she was very upset and angry at the friend who disclosed her confidences. When the school authorities confronted Kim, she maintained that her allegations were true, and the school authorities brought her home from school. Kim's parents were not home but her sister-in-law, who lived next door, was home and spoke with Kim. Based on the sister-in-law's testimony, it does not appear that Kim's statement to her was very detailed. Although Kim and her parents reported that they generally have an open and communicative relationship, Kim refused to discuss the allegations with them when they came home from work. Instead, she referred her parents to her sister-in-law. Through at least August 26, 1994, Kim had not discussed the details of her allegations with her parents. (They have, however, read statements she has written concerning the allegations.) Law enforcement interviewed Kim at her home on April 8, 1994, and memorialized the interview in a written statement. On June 21, 1994, Kim wrote an account of the alleged assault by the Respondent. Kim also recounted the entirety of the alleged assault twice during testimony at final hearing, once on direct and again on cross; parts were repeated once more on redirect. All of these statements are replete with rich detail, making them seem real. However, with one noteworthy exception, the consistent precision with which the details are repeated seems unnatural and could give the impression of being recited from a memorized script. Before her fourth period science class on Friday, December 10, 1993, the Respondent told her that her mother had telephoned the Respondent earlier that morning to inquire about the C on her report card for the second grading period (after getting an A for the first grading period) and that the Respondent had told Kim's her mother that Kim was missing seven assignments. The Respondent told Kim that she could get the assignments, together with the book she needed to do them, after school. (The required book would not be available until after school because the Respondent's classes shared the use of the same books during class.) Meanwhile, in the detailed versions of her allegations, Kim stated that she was jokingly bantering with a friend and the Respondent about whose "man" the Respondent was, as they did from time to time. She stated that, on this occasion, the Respondent informed them that he was "a dirty old man." She stated that she and her friend did not take the Respondent's statement seriously. Kim stated that, after school ended at about 3:50 p.m. on Friday, December 10, 1993, she went to the Respondent's class room to get the make-up assignments. She testified that she would have arrived at approximately 4 p.m. She said the Respondent was straightening desks and that she helped him finish before sitting in one of the desks. She stated that he then asked her if she had come by to see if he really was a "dirty old man." She made an off-hand comment to the effect, "I guess," or "whatever." He then walked to the classroom door and shut it. Several of the witnesses, including her friends and her sister-in-law, testified that, when Kim first told them what happened, she said that the Respondent locked the classroom door. The report of the law enforcement interview on April 8, 1994, also indicated that Kim told law enforcement that the Respondent locked the door. In fact, the classroom door does not lock from the inside. In her June 21, 1994, statement and in her testimony at final hearing, Kim stated that she thought the Respondent locked the door. Kim alleged that, after shutting (and, in the early versions, locking) the door, the Respondent put a poster with a monkey on it over the window portion of the door and dragged an easel with a flip chart in front of the door, apparently to block access to the classroom or, at least, to serve as an alarm to give him some time to react in the event someone tried to enter the classroom. There was indeed a poster of a monkey (or chimpanzee) on display in the Respondent's classroom that year, and there also was an easel in the classroom that would have been at the Respondent's disposal. But, in fact, the classroom door opens into the hallway, not into the classroom, and the placement of the easel in front of the door would not have been very effective. It is possible that it was the Respondent, not Kim, who overlooked the manner in which the door opened. But, even if the classroom door had been locked or blocked, the Respondent's classroom was adjacent to another science classroom, and there is a door between the two classrooms that does not lock. Ordinarily, it would not be uncommon for the Respondent's fellow science teacher, as well as a few students, to be in the adjacent classroom from 3:50 p.m. until as late as 4:05 p.m. In addition, administration personnel in the suite containing the principal's office and the other administration offices generally are occupied until 4:30 p.m., or later, even on a Friday. Custodians also circulated through the building after school (although they generally did not clean the Respondent's classroom until later.) Fortuitously, it has been possible to deduce, from some of the details provided in Kim's allegations, the precise day on which the alleged assault occurred--Friday, December 10, 1993. It so happens that Friday, December 10, 1993, was the last day of the school science fair. There were approximately 200 projects on display in the school gymnasium, which was just down the hall from the Respondent's classroom. Entrants in the fair were required to dismantle and remove their projects after school that day. As a result, although both students and teachers generally leave the school building promptly on Fridays, and fewer after school activities usually are planned for Fridays, more than the normal number of students would have been in the hallway during the time immediately after the end of school on that particular Friday. In addition, the Respondent's fellow science teacher in the connecting classroom adjacent to the Respondent's had arranged with a handful of his students to allow them to dismantle their projects earlier in the day and store them in his classroom. These students would have been in the connecting adjacent classroom between approximately 3:50 and 4:05 p.m. picking up their science projects. Kim alleged that, after securing the classroom door, the Respondent returned to her and asked whether she thought he was a "dirty old man." She stated that, when she answered, "no, I think you are a nice guy," he suggested, "maybe you should go now," and went over to remove the easel and open the door. But, she alleged, when she insisted that she had to stay in order to get her assignments, he again went to the door and repeated the steps he had just taken to secure the door. This time, when he returned to her, he backed her into a corner of the classroom, using gentle pressure on the shoulders, and (in each telling, "putting his arm around her neck") began kissing her. Kim stated that she did not resist the Respondent or call for help because the Respondent was not being violent, and she was afraid that he would become violent if she was not compliant, so she kissed him back. She alleged that he proceeded to lift her ankle-length "peach and black floral print skirt" (which she was wearing with a "black, long sleeve V-neck shirt"), remove her panties (and, in each telling, she stepped out of the panties "with [her] right foot" while he held her panties) and insert his finger into her vagina. She alleged that he pressed down on her shoulders until she was in a squatting position, lay on his back on the floor and positioned his head under her, and initiated oral sex. After this, he allegedly stood her up, and resumed kissing her, while unbuckling his belt and unzipping his pants. She alleged that he took her hand and placed it on his penis. She alleged that, when he removed his hand from hers, she removed her hand from his penis. When she allegedly thwarted his attempt to have intercourse with her, he allegedly turned her around to face the wall, bent her over (somehow, towards the walls she was facing), again pulled up her skirt, and (as best she could tell) again attempted intercourse, this time from the rear (she alleged that she "felt something hard against her vagina"). Then, she alleged, she detected movement from behind her and assumed that he was masturbating and ejaculating because, when she turned around after the movement stopped, he was wiping something off the floor with a yellow towel. (A yellow cloth, from which a piece had been torn or cut, was found in one of the closets in the Respondent's classroom during the School Board's investigation of the allegations. But it was not proven that the cloth which the Respondent allegedly used to clean the floor on the afternoon of Friday, December 10, 1993, had come from the cloth found in the closet in the Respondent's classroom.) Kim alleged that the Respondent apologized to her for what he did and begged her both never to come back to his classroom alone after school and not to tell anyone. She alleged that the Respondent made reference to a teacher who was being disciplined for sexual misconduct with a student 20 years ago and stated that he always would be afraid that she would disclose what he had done. (In fact, such a story had been reported in the local newspapers on December 8, 1993.) Kim alleged that she promised the Respondent she would not tell anyone. According to Kim, after the incident, which lasted a total of 20-30 minutes, she and the Respondent calmly and amicably left the school together. They allegedly exited through the classroom door into the hallway to the west of the classroom, crossed the intersecting hallway, immediately down which is located the door to the teachers' lounge, and continued walking down the hallway. Immediately past the intersecting hallway, they would have had to pass both the office of the school resource officer and the suite of offices belonging to the school principal and other school administration personnel. A little further down the hallway, they would have passed between the school cafeteria and the school gymnasium (the site of the science fair). Just past the cafeteria and gymnasium, they would have come to the door leading to the parking lot. Kim stated that no one saw them and that they did not see anyone on their way out of the building. Kim alleged that, before she left the building to walk home, she watched the Respondent walk across the parking lot and get in his pickup truck. The Respondent testified that, after learning the date on which it was deduced that the assault allegedly occurred, he realized that it would have been impossible for Kim to have witnessed him getting into his pickup truck on the day in question. He testified that he was having mechanical problems with the truck that week and was driving his wife's car across the bay bridge to work after dropping her off at her place of employment in Tampa, where they lived, while his truck was being repaired. He produced a cancelled check and was able to secure a computer printout from the bill he paid for the repairs when he picked the truck up the next day, Saturday, December 11, 1993. Kim also testified that the Respondent left the "monkey poster" on the door covering the window when they left the classroom. But the custodian who cleaned the Respondent's classroom each evening did not recall ever seeing the "monkey poster" anywhere but on the wall. The Respondent denied engaging in any of the alleged inappropriate behavior. He was able to reconstruct that he had bus duty on Friday, December 10, 1993, and would not have returned to his classroom until 4 p.m. He recalled that there was an unusual amount of activity in the hallways, especially for a Friday, but that probably was attributable to the school science fair. He recalled that, as he approached his classroom, he noticed several students in the adjacent connecting classroom with his fellow science teacher. He thinks he saw Kim there, too. In any event, Kim followed him into his classroom shortly after he unlocked it, opened the door and turned on the lights. He remembered that she helped him straighten desks and that he sat at a desk with her to go over the assignments. He did not recall whether he or she actually wrote the assignments down. He then gave her the book she needed, and she left. He testified that the entire process took approximately five minutes and that the door to the classroom never was closed during that time. Kim alleged that, although she never completed the missing assignments, the Respondent raised her grade from a C to a B. The Respondent testified that Kim completed four of the seven missing assignments. The Respondent normally would not either keep the make-up assignments nor, to prevent other students from copying them, return them to the student. Kim alleged that the Respondent gave her special privileges, like library passes, after the assault. But it was not proven that the Respondent gave more privileges to Kim after the alleged incident than before, or that he gave her privileges that he did not also give to other good students like Kim. Kim alleged that the Respondent often complimented her appearance. The Respondent admitted to affirmatively answering occasional direct questions from Kim as to whether she was pretty. He also recalled occasions when he told Kim and other female students that they were "pretty enough already" and did not need to (and should not) comb their hair and apply makeup in class. Kim alleged that, on one occasion, the Respondent commented that a low-cut blouse she was wearing was distracting. The Respondent recalled once reprimanding Kim for wearing a blouse that was revealing and in violation of school dress code. He admitted that he may have told her that it could be distracting to other students. The Respondent admitted to making an inappropriate comment to or about Kim on one occasion. The school assembled in the gymnasium one day for the introduction of a fund-raising campaign that featured a "money machine." The money machine consisted of a transparent booth with dollar bills inside. As part of the fund-raising campaign, students would be allowed to enter the booth while fans blowing air through holes in the floor of the booth blew the dollars bills off the floor and around inside the booth. The student inside had a limited period of time to grab as many dollar bills as possible. When volunteers were requested to demonstrate the "money machine," Kim thought better of it since she was wearing a skirt. The next day, in the Respondent's class, the Respondent asked Kim why she hadn't volunteered. When she answered that she was wearing a skirt and was concerned that air in the booth would have lifted her skirt, the Respondent commented aloud to the class, "that would have been interesting," or words to that effect. The Respondent was trying to be funny but admitted that the comment was not appropriate. It is noteworthy that, when the Respondent was told that Gilbert was spreading rumors to the effect that he and Kim had an intimate sexual relationship, the Respondent warned Kim to take appropriate steps to protect her reputation. It was revealed during the course of the investigation into Kim's allegations against the Respondent that Kim also has made allegations that, during the summer of 1993, she was forcibly raped at two in the morning, in the bathroom of a restaurant, by a 24-year old male acquaintance. Although Kim's mother thought she remembered Kim returning home upset after the alleged incident, she also testified that she may have learned about it after the allegations against the Respondent surfaced--long after the alleged rape. (Kim's mother, who has been terminally ill and on several medications for some time, seemed confused on this point.) Regardless when Kim revealed the alleged rape, both she and her mother agreed that Kim asked her mother not to tell anyone because Kim could "handle it" by herself. Kim did not receive any treatment or counseling for the alleged rape. Kim also did not mention the alleged rape to law enforcement during the investigation into the allegations against the Respondent. Although it is possible that the alleged rape or the Respondent's alleged sexual assault actually happened, both seem improbable. Yet, it is troubling that no obvious motivation for Kim to fabricate the allegations against the Respondent appears from the evidence. It is possible that she was seeking attention. It is possible that her mother's medical condition could have played a role in motivating such action. On the other hand, it could have had something to do with the relationship between Kim and Gilbert. Maybe she was upset with the Respondent for his role, minor as it was, in turning her parents against Gilbert. Maybe she was trying to deflect her parents' attention away from the bad influence that Gilbert might have represented by trying to make the point that acquaintances or even teachers could pose a worse threat. Maybe the alleged rape and the allegations against the Respondent arose from apprehension about how to explain feared consequences of sexual activity with Gilbert, as irrational as it might seem. Maybe there are other possible explanations in the nature of mental or emotional instability. Perhaps the most likely explanation is that Kim was simply making up a story to impress her girl friends and found herself committed to the story when one of them disobeyed Kim's command not to tell anyone. One can only speculate as to what the actual motivation could have been.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges and reinstating the Respondent with back pay. RECOMMENDED this 1st day of March, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-8. Accepted and incorporated. Rejected as not proven. Accepted and incorporated. First sentence, accepted and incorporated; the rest is rejected as not proven. Accepted and incorporated. 13.-29. Rejected as not proven. Accepted and incorporated. Rejected as not proven that she "volunteered." (She decided not to volunteer.) Rejected as not proven that he told Kim (privately, as opposed to as part of the class). Otherwise, accepted and incorporated. 32.-33. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13.-17. Accepted and incorporated to the extent not subordinate or unnecessary or argument. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301-4th Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638 J. Howard Hinesley Superintendent Pinellas County School System Post Office Box 4688 Clearwater, Florida 34618-4688
The Issue Did Respondent, Cynthia Bradford, commit the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent is a white, female employed by Petitioner as an exceptional student education (ESE) annual contract teacher. She taught students with learning and/or emotional disabilities at Meadowbrook Middle School. The students that testified, D.C., N.B., and P.S., are all exceptional education students with mental handicaps, learning disabilities, and/or emotional disabilities. These students are African-American, which is the predominate race of the Meadowbrook Middle School population. ESE students with mental handicaps, learning disabilities, and/or emotional disabilities require a greater period of time and more intensive instruction to acquire knowledge and skills taught in the school curriculum. Students with these problems have difficulty processing emotion, which impacts on their ability to function socially and academically in an educational setting. These students are taught in a “self-contained” classroom environment with a lower teacher-to-student ratio and more individualized instruction time each school day. They remain within Respondent’s classroom the greater part of each school day, leaving only for special classes. These students have a diminished cognitive capacity for abstract thought processing and have difficulty grasping, intellectually and comfortably, the concepts described in the book noted hereinbelow. Some of these students would be at high risk for working with concepts articulated in the book. Meadowbrook Middle School has a Reading Achievement and Progress course, referred to as the “RAP” program. RAP instruction is provided school-wide in every class each day during the sixth period. While the primary focus of RAP is to promote reading proficiency, it is also used to instruct students on character development. This is done with the teacher reading aloud to the class and engaging the student in pertinent discussion about character with reference to the topics discussed in the particular book. All teachers at Meadowbrook Middle School, including Respondent, received training on the implementation of the RAP program before the start of the school year and throughout the school year. Respondent participated in the RAP pre-planning and staff development meetings each of the three years that she taught at Meadowbrook Middle School. In connection with RAP training, Respondent received a “R.A.P. Curriculum and Instruction Guide” to provide classroom assistance and resource information for teachers implementing the RAP program. In addition to containing a list of 140 recommended books, the curriculum guide provided teachers with the following guidance on the selection of reading materials: Choose a quality book – this may seem like an obvious thing to do but it is one that many teachers failed to do. A poor book cannot be made better, no matter how well the reader reads it, so choose a book that: Has significant literary value; Is developmentally appropriate for the target age level students; and/or Affords instructional opportunities (e.g., you can use it to teach a specific concept or skill) . . . While there is a list of recommended books, there is no "approved" reading list. A teacher has the latitude to select any book he or she deems appropriate. The Meadowbrook Middle School library has class sets of books for teachers to check out for RAP. Class sets are just that: forty novels--one for each student--so that each student can read his or her own copy of the book along with the teacher and the rest of the class. Meadowbrook Middle School has a literary coach who is available to assist teachers in the selection of books or other aspects of implementation of the RAP program. Respondent selected a book titled Dumb As Me to read to her ESE students during RAP. This book was not on the recommended book list or available in the school library. She believed the book would capture the interest of her students and present a negative example to stimulate character development discussions. She chose the book because it reflects African- American inter-city culture, similar to the Bluford series which is available in the school library. She did not consult with the literary coach or any other Meadowbrook Middle School educational professional in the selection of the book. Dumb As Me, is fiction about a married, African- American male who lives a self-described “pimp” and “player” lifestyle. The book describes in graphic detail sexual behavior including cunnilingus, masturbation, fellatio, sadism, and sexual intercourse. The book is filled with profanity, including "shit," "fuck," "motherfucker," and such words as "ass," "pussy," "cock," and "dick" as descriptions of the human sexual organs. If Respondent's students had uncensored access to the book, it would be harmful to them. Most of the time the book was locked in a cabinet in the classroom. Through unfortunate circumstance, Respondent's students, or some of them, gained access to the book and read it. When Respondent read the book in class, she sometimes edited the book substituting "F-word" for "fuck," for example. On other occasions, she read the plain text of the novel, including depictions of graphic sexual activity and profanity. As a practical matter, the students are aware of most of the profanity contained in the book. When the same profanity is used by students in class, Respondent attempts to discuss the particular word, "bitch" for example, and explain why it is an inappropriate term. An adult teacher's aid assigned to Respondent's classroom was present when Respondent read part of the novel to her students. She left the classroom after Respondent read a sexually explicit portion of the book about the protagonist engaging in cunnilingus with his mistress. This adult teacher's aid reported Respondent's having read the particular book to the school principal. As a result of this report, the principal obtained and read portions of the book. Another administrative employee undertook an investigation that involved interviewing several of Respondent's students. The investigation confirmed that Respondent had read sexually explicit and profanity-laced portions of the novel to her students. Respondent appears to be a sensitive and concerned teacher; however, the error in judgment demonstrated by her selection of Dumb As Me to be read to learning disabled, emotionally and mentally handicapped children raises question of her competence to teach children. Reading the book, as she did, with its graphic depiction of sexual activity and profanity, exposed Respondent's students to conditions harmful to their social, emotional, and academic development. During the investigation and subsequent activities, Respondent misstated the extent that she had read sexually explicit and profanity-laced portions of the book to her students. Respondent's effectiveness as a teacher was diminished by her selection of the particular book and reading sexually explicit and profanity-laced sections of the book to her students.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent's "misconduct in office" constitutes “just cause” under Section 1012.33, Florida Statutes (2005), to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2006. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
