The Issue At issue is whether Respondent should be disciplined in accordance with the State of Florida, Education Practices Commission Administrative Complaint in Case No. 923182-C.
Findings Of Fact Respondent holds Florida's teaching certificate 546809. That certificate covers the areas of Bible, History, Sociology and Social Sciences. It is valid through June 30, 1995. At all times relevant to the inquiry Respondent was employed as a teacher at Fletcher High School in the Duval County School District, Duval County, Florida. During the school year 1992-93, first semester, in the first period class, Respondent taught economics to Josielynn Magalindan Espara. The course which Ms. Espara took was in her ninth grade. In one lecture, Respondent, by resort to the economic's text book that was used to instruct the class, made reference to the cost of raising a child. He referred to the fact that the cost was $180,000. Respondent then asked Ms. Espara, who was pregnant at that time, "Do you have $200,000. in the bank, Josielynn?" Respondent's remarks were not intended to embarrass or disparage Ms. Espara and did not embarrass or disparage her. Ms. Espara said at the time the comment did hurt her feelings. The comment caused her to cry. Ms. Espara's feelings were influenced by her already being upset on that morning. She describes it as having been a "bad morning" with her parents on the date that Respondent made his comments. Ms. Espara indicates that she possibly took the comments by the Respondent "the wrong way". At the time of the hearing Ms. Espara indicated that the comments that had been made in the past no longer bothered her. In the school year 1992-93 Respondent also taught a fifth period economics class for ninth grade students. In class discussion, a class member Courtney Mayes made a remark about killing animals. Respondent then joked "oh yeah, I like running over animals." The student, Courtney Mayes, was flirtatious and disruptive in Respondent's fifth period economic class. On one occasion she was walking around the classroom and Respondent repeatedly told her to go to her seat. She refused and continued to talk to her friends in the classroom. Respondent told Ms. Mayes that if she did not sit down that he was going to spank her. By placing his arm around Ms. Mayes' waist Respondent bent her over and lightly tapped her on, as she describes it, her "rear end" through her clothing. The reaction by Ms. Mayes to Respondent's act was, "I just was standing there, and you know, just stood there talking to him. I didn't think anything of it." On another occasion while in the fifth period class, Ms. Mayes overheard the Respondent comment about a cola that he was drinking being "flat". Ms. Mayes insisted that these remarks were directed to her and her appearance. Ms. Mayes said, "why are you talking about me like that?" Respondent replied that he was talking about the cola. He said, "I was talking about the Coke because I just took a drink and its very flat, because it was warm." Ms. Mayes continued to state, "yes, you were talking about me." Notwithstanding Ms. Mayes' misperception of Respondent's meaning in using the term "flat" directed to his cola and not to her person, Ms. Mayes in describing her feelings about Respondent's remarks, testified, "I didn't think anything of it." In summary, Respondent did not intend any affront to Ms. Mayes and, although Ms. Mayes misunderstood the meaning of Respondent's remarks, she took no affront in the meaning she attributed to Respondent's comments. On another occasion when Ms. Mayes was in Respondent's fifth period class in the school year 1992-93 he remarked to her, "your legs are ugly." Ms. Mayes considered that Respondent was joking with her and his remarks did not embarrass her. On another occasion while Ms. Mayes was in Respondent's fifth period class in the school year 1992-93, he commented that her attire was too revealing. Ms. Mayes did not consider her dress to be so. In this conversation Respondent told Ms. Mayes to put a sweater over her dress. During the 1992-93 school year in the fifth period economics class, male and female students were discussing the subject of abortion among themselves. Respondent gave a pro-life abortion pamphlet to Ms. Mayes and another female student, Karin Lyles. Respondent told the students to read over the pamphlet and see how they felt then. The discussion about abortion was not presented to the entire class. Ms. Mayes did not read her pamphlet that Respondent gave her. Ms. Mayes did not consider Respondent's comments about abortion to be inappropriate. At times relevant to the inquiry Respondent did not assign seating to students in a discriminatory manner by placing students whom he favored near him and placing students that he disagreed with on the other side of the room. As a result of complaints made about Respondent's conduct with students, he was arrested, but it was not shown that Respondent was charged with any criminal law violation following the arrest. Dr. Larry J. Paulk was the principal at Fletcher High School during times relevant to the inquiry. He continues in that post. Dr. Paulk was accepted as an expert entitled to state an opinion concerning an educator's loss of effectiveness as a teacher based upon certain alleged inappropriate conduct. Dr. Paulk's opinion that Respondent lost his effectiveness by his conduct directed to the students, as described in the facts found in previous paragraphs, is not accepted. Dr. Paulk established that Respondent violated school board policy by discussing abortion and allowing his students to discuss abortion.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Final Order be entered which finds Respondent in violation of Count 4 and absolves Respondent of any violation of Counts 1, 2, 3, 5, 7, 8 and 9, and suspends Respondent's teaching certificate for a period of 30 days. DONE and ENTERED this 18th day of October, 1994, in Tallahassee, Florida. CHARLES C. ADAMS 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 18th day of October, 1994. APPENDIX The following discussion is given concerning the proposed findings of fact: Petitioner's Facts: Paragraphs 1 and 2 are subordinate to facts found. Paragraphs 3 through 25 are rejected. While it is acknowledged that Respondent was familiar with De Anne Ray and Joscelyn Annette Sweat, who were his students, when considering all the evidence it is not accepted that Respondent committed the acts attributable to him within the proposed findings of facts set forth in these paragraphs. Paragraph 26 is subordinate to facts found as is the first sentence to Paragraph 27. Concerning the second sentence to Paragraph 27, while it is acknowledged that Respondent's remarks directed to Ms. Espara were made in the context of Ms. Espara's feelings about her pregnancy, Ms. Espara's perception concerning those remarks are not seen as being a criticism by Respondent that Ms. Espara was a failure and a quitter. Paragraph 28 is subordinate to facts found with the exception that the proposed finding that the remarks from Respondent to Ms. Espara embarrassed Ms. Espara is rejected. Concerning Paragraph 29, the administrative complaint at Paragraph 9 refers to alleged misconduct by the Respondent through inappropriate and offensive comments in the classroom in the presence of students to include disparaging statements about teenage parents and abortions. While it is accepted that Respondent told the class not to speak of pregnancy in his class, the context of those remarks did not correspond with the alleged prohibited conduct described in Paragraph 9. Rather, his remarks about pregnancy comported with school board policy which prohibited the discussion of pregnancy in the classroom setting. Paragraph 30 is contrary to facts found. Paragraphs 31 and 32 are subordinate to facts found. Paragraph 33 is contrary to facts found. Paragraphs 34 through 36 are subordinate to facts found. Paragraph 37 is not relevant to the resolution of the dispute when examined in the context of the alleged violations of law set forth in the administrative complaint. Paragraph 38 is not supported by the record in that Petitioner's Exhibit No. 3 was denied admission. Paragraph 39 is contrary to facts found. COPIES FURNISHED: Gary Baker, Esquire 301A Law Exchange Building 24 North Market Street Jacksonville, FL 32202 Robert J. Boyd, Esquire Suite G 2121 Killearney Way Tallahassee, FL 32308 Karen Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Jerry Moore, Program Director Professional Practices Commission 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
Findings Of Fact At all times material hereto, Respondent has been a licensed teacher in the state of Florida, having been issued Florida Teacher's Certificate No. 415935 by the Department of Education. In October, 1985, Respondent was a guidance counselor at the Larkdale Elementary School in Broward County, Florida. On October 30, 1985, T B. was eleven years old and a fifth-grade student at Larkdale Elementary School. On that date, while returning from the bathroom to her classroom T. B. encountered Respondent in the hallway. Respondent asked T. B. to accompany him to his office for the ostensible purpose of performing some filing. Upon arriving at Respondent's office, Respondent requested that T. B. fill up a candy jar. While T. B. was bending over getting candy out of the bottom of the filing cabinet, Respondent placed his hands around her waist. Respondent then lifted up so that she was standing in front of Respondent. Respondent placed his hand under her dress, then placed his hands inside her dress and fondled her breast. T. B. began crying and asked Respondent's permission to return to her classroom. At the time, Respondent was T. B.'s guidance counselor, and she talked to him about "everything." In February, 1986, Respondent was still employed as a counselor at Larkdale Elementary School. In February, 1986, K. C. was twelve years old and a fifth-grade student at Larkdale. In February, 1986, K. C. and two other students were standing in a hallway outside a classroom when they were approached by Respondent. Respondent placed his arms around K. C. and began talking to her. He then placed his hand on K. C.'s left breast. K. C. slapped Respondent's hand and told Respondent she was going to inform her teacher of what had occurred. On March 7, 1986 the Broward County Sheriff's Office filed a Probable Cause Affidavit against Respondent. The Probable Cause Affidavit alleged that on October 30, 1985, Respondent had committed a lewd and lascivious assault on T. B., a child under the age of 16, contrary to section 800.04(1), Florida Statutes. The Probable Cause Affidavit alleged: The victim was doing secretarial work for the Defendant, and was sitting on the floor in the Defendant's office sorting papers. The Defendant came up behind the victim, and put both his arms around her sliding one of his hands inside her shirt, and began to fondle her breast, the victim had forcibly [sic] get away from the Defendant. Respondent was arrested and charged with lewd and lascivious assault upon T. B. Subsequent to the filing of the Probable Cause Affidavit, the State Attorney's Office for the Seventeenth Judicial Circuit filed a one-count criminal information against Respondent (Case No. 86-4538CF) which charged Respondent with committing a lewd and lascivious assault on a child (T. B.), in violation of section 800.04(1), Florida Statutes. The State Attorney's Office for the Seventeenth Judicial Circuit also filed a one-count criminal information against Respondent (Case No. 86-4539CF) which charged Respondent with simple battery on a child K. C., in violation of section 784.03, Florida Statutes. On June 5, 1986, Respondent entered a plea of guilty to the violation of section 800.04(1), Florida Statutes, a second degree felony, as alleged in the information filed by the State Attorney's Office in the matter of State of Florida v. James R. Feldman, Case No. 86-4538CF. Adjudication was withheld. On June 5, 1986, Respondent entered a plea of guilty to, and was adjudicated guilty of, a violation of section 784.03, Florida Statutes, a first degree misdemeanor, as alleged in the information filed by the State Attorney's Office in the matter of State of Florida v. James R. Feldman, Case No. 4539CF. Jacquelyn Box (f/k/a Jacquelyn Moore) was the Principal of Larkdale Elementary School during the 1985-86 school year. With regard to T. B., Ms. Box received a report from a teacher that Respondent had been touching the student inappropriately. She discussed the matter with the student and informed the student's mother. Ms. Box also reported the incident to the school system's Internal Affairs Department. With regard to K. C., Ms. Box became aware of the incident after the student's mother confronted Respondent. Upon being informed of the incident by her daughter, the student's mother came to the school to confront Respondent. During the confrontation, the student's mother struck Respondent. Upon being notified of the confrontation, Ms. Box contacted the Police Department and the school system's Internal Affairs Department. Both the staff and the students of Larkdale Elementary School were aware of the sexual improprieties committed by Respondent with regard to each of the female students. Certain students discussed the allegations with the Principal. Approximately 40-50% of the 4th and 5th grade students were aware of the allegations. The Principal was contacted by the parents of students in that school who were concerned about the incidents. Students and staff must have trust and confidence in a guidance counselor for the counselor to be effective. At times, a guidance counselor has to engage in one-on-one counseling with a student. One of the areas a guidance counselor works in with the students is human sexuality. A guidance counselor cannot be effective if the students do not trust him. The disclosure of the foregoing incidents had a negative impact upon Respondent's effectiveness as a teacher, substantially reducing that effectiveness. The students did not trust Respondent following the disclosure and would not trust Respondent if he returned to the school as a guidance counselor. Respondent's actions in fondling the two female students and the subsequent disclosure of Respondent's actions rendered Respondent totally ineffective as a guidance counselor. Respondent's actions in conjunction with the disclosure destroyed the bond of trust necessary for a guidance counselor to be effective.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Respondent's teaching certificate. DONE and RECOMMENDED this 12th day of April, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 12th day of April, 1988. APPENDIX TO RECOMMENDED ORDER D0AH Case No. 87-3908 Petitioner's proposed finding of fact numbered 20 has been rejected as not being supported by the evidence in this cause. The remainder of Petitioner's proposed findings of fact have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact are in the form of a letter with unnumbered paragraphs. For purposes of specific rulings herein, each paragraph has been numbered consecutively. Only Respondent's paragraph numbered 7 has been adopted in substance in this Recommended Order. Respondent's paragraphs numbered 1, 47 6, 8-13, and 15-17 have been rejected as not constituting findings of fact bud rather as consisting primarily of argument. Respondent's paragraphs numbered 2, 3, 5 and 14 have been rejected as being contrary to the credible evidence in this cause. COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Chris H. Bentley, Esquire 2544 Blairstone Pines Drive Tallahassee, Florida 32301 James R. Feldmann 6210 Northwest 26th Court Sunrise, Florida 33313 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County School Board, (Board), was responsible for operating the public schools in Pinellas County, Florida. Respondent, Susan E. Brown, was employed as a plant operator at the 16th Street Middle School in St. Petersburg, a school operated by the Board. She had a son enrolled in Lynch Elementary School, operated by the Board. On or about November 9, 1995, Respondent's son, V.B., was sent home at the end of the regular school day with a referral slip, signed by Ms. Proper, the principal, which reflected that the child had used inappropriate language to a female student in the class that day. The language was, "Suck my dick." The alleged incident was discussed in a class meeting and the matter was referred to the principal as the result of a recommendation by the class. The referral slip was not enclosed in an envelope. The child's teacher had had prior conferences with Respondent regarding her child's academics and behavior. Mrs. Brown was very much upset by this referral, not only from the standpoint that such language was attributed to her son, but also because the referral slip was not enclosed in an envelope. As a result, early the next day, November 10, 1995, she arrived in the office at Lynch Elementary where she was met by Ms. Lemos, the data preparation clerk, at the front counter. Respondent loudly demanded to speak with the principal. When informed by Ms. Lemos that the principal was in an awards ceremony at the time but would be back shortly and would see her upon her return, Respondent nonetheless insisted on seeing the principal immediately. She also demanded to speak with the teacher involved. She was upset about the referral slip a teacher has written regarding her son. When informed that the offending teacher was in class and could not be interrupted at the time, Respondent said, "I'll interrupt her," and left the office, heading for the classroom. Ms. Lemos immediately used the intercom system to forewarn the teacher and also immediately called the intervention specialist. Ms. Robinson, the teacher in question, heard Ms. Lemos' warning over the intercom system and within a few seconds, Respondent burst into the classroom, waived a sheet of paper, later determined to be the offending referral sheet, in her face and said, "I don't want this shit again", along with other obscene words including the word, "fucking." Ms. Robinson asked Respondent to leave the classroom, but she refused. Respondent asked for "that ass-hole, Jonathan." Jonathan is another child in the class who, Respondent believed, is the one who made the offensive comment attributed to her son. Respondent's actions were upsetting the children. Some were screaming and others were crying. Ms. Robinson claims that even Respondent's son called for her to stop, but she did not. Respondent stated to the teacher, "If I have to come back, I'll kick someone's ass." Ms. Robinson continued to try to get the Respondent to leave the room and managed to get herself and Respondent out of the room and into the hall. At this point, Ms. Robinson tried to go back into the classroom and close the door with Respondent out in the hall, but Respondent forestalled this, slapping Ms. Robinson's hands away from the door. At one point in the altercation, apparently in the classroom or nearby but in sight of some of the children, Respondent pushed Ms. Robinson away from the door, using both hands to the teacher's upper arms or torso. As a result of the Respondent's actions, Ms. Robinson was emotionally and mentally affected. She was afraid for her life at the time of the incident because the Respondent appeared very angry and was physical with her. The teacher's professional and family life has been affected by this assault. She was afraid to go back into the classroom and missed several days work because of it. She did not seek psychological counselling or a physician and she has now returned to the classroom, but this incident has affected her teaching and she still has trouble sleeping at times. Based on what happened, Ms. Robinson would not want to work in the same school with the Respondent. The altercation involving the Respondent and Ms. Robinson was heard by another third grade teacher, Ms. McLaughlin, who had come to the third grade pod of four classrooms to get another student. As she walked toward the pod she heard someone using profanity, including the words, "Shit. How dare you write this?" After going into her own classroom to get the student she wanted, Ms. McLaughlin came out to see Ms. Robinson pinned with her back to the open door facing away from the classroom, and a parent, identified as the Respondent, up close to her face. She saw Respondent, who was very loud, push Ms. Robinson with both hands Ms. McLaughlin did not hear Ms. Robinson say anything but noted she was trying to close the classroom door. As Ms. McLaughlin watched, the intervention specialist, Ms. Mills came up and took control. Ms. Mills went to the room as a result of the request by Ms. Lemos. As she approached the pod, she heard loud yelling and saw Ms. Robinson with her back to the door and Respondent yelling at her, facing her. Ms. Mills yelled at the Respondent directing her to return to the office. At this point, Respondent turned toward her and yelled that some "shit had been written on [her] baby's paper." She wanted to talk with the principal and, according to Ms. Mills, threatened to "mess them all up." As the two women were walking toward the office, Respondent also allegedly called the staff "fucking crackers", and when advised by Ms. Mills to keep her voice down because children were present, said she didn't care. Ms. Mills claims some children were present as they went toward the office. As Ms. Mills and Respondent arrived at the school office the Respondent was still yelling. Ms. Mills directed her to leave the campus but she refused and continued to demand to see the principal. At this point, Ms. Mills advised the office staff to call the police. Upon the arrival of the principal, Ms. Mills left the office and returned to the classroom where she found the children frightened and upset. When the principal, Ms. Proper, arrived at the front office she told the Respondent to go into her private office because she was yelling so loud. Ms. Proper could hear Respondent from down the hall. When Proper got the Respondent into her office, she asked what was wrong and in response, Respondent waived the referral slip. Ms. Proper took it and looked at it and this had the effect of calming the Respondent down somewhat. However, when Ms. Proper explained why the referral had been written, Respondent exploded again and Ms. Proper told her to leave the campus. Before she could do so, the police arrived. According to Ms. Proper, Respondent's actions upset the awards ceremony, a teacher was made upset and required a substitute, the office staff was upset, and she had to spend several hours with the police. In addition, at least one parent has called the school and expressed concern about the incident. This was the parent to whose daughter the obscene comment was allegedly made by V.B., Respondent's son. At the time of the incident neither Ms. Proper nor anyone else involved knew that the Respondent worked for the school system. Respondent did not identify herself as a school employee nor was she wearing any kind of uniform which identified her as a Board employee. All of the children who testified at the hearing, whether for the Board or for the Respondent, indicated they had, to some degree or another seen and heard the incident. There is no doubt that Respondent physically battered Ms. Robinson at the doorway to the classroom. Whether she intended to injure her is doubtful, however. Respondent clearly used profanity in front of the children, but it is equally clear she did not address the profanity toward them. By the same token, it does not appear that Respondent threatened the children in any way. Though she denies having done so, it is found she did refer to one child, Jonathan, as an ass-hole, but she did not direct that comment to him directly. Respondent has worked as a plant operator, (janitor), for the school system for four years, starting at the 16th Street Middle School only shortly before the incident in issue. Her hours are from four in the afternoon to midnight. She has one child, V.B., who attended Lynch Elementary at the time in issue. Respondent recalls that on November 9, 1995, V.B. came home from school with a referral which was not in an envelope nor was it folded over. When she saw it she was upset over the way it was written. She felt that her son's alleged language could have been more discreetly put and she also felt the slip should have been put in an envelope for transmittal. The referral did not require her to come to school, but she went anyway to see why the slip had been written and transmitted as it was. She also wanted to know why she wasn't called about it. Consequently, on the morning of November 11, 1995 she went to the school office and spoke with the lady at the front desk. Respondent admits to using the word "shit" to describe the referral but denies she cursed anyone in the office. When she asked to speak with the principal she was told that she was in a ceremony and to come back later. Nonetheless, Respondent insisted on speaking with the principal but cannot recall what she said next. She remembers having the impression that the office staff did not want to see the referral, so she decided to go to her son's classroom to speak with the teacher about it. Respondent claims the office staff did not tell her not to go to the classroom. When she got there she asked the teacher why she sent the referral home without it being in a sealed envelope. When the teacher merely shrugged in reply, Respondent repeated the question and admits to again using the word, "shit". With that the teacher asked her to leave the classroom and she claims she started to do so with the teacher behind her. Respondent admits to using the word "shit" a third time but denies calling the teacher a bitch, and most specifically, she denies having cursed at any of the students. It has been found that she did not curse at the student. As she and the teacher were departing the classroom, Respondent indicates she again asked the teacher, in a voice louder than normal, why she had sent the referral home as she did. In doing so, she admits to holding the referral up in front of the teacher's face and claims that the teacher then pushed her hand out of the way. The teacher allegedly pulled on the door to close it and told Respondent to leave. Respondent claims she then turned away and pushed the door but denies having ever come into contact with the teacher. The overwhelming weight of the evidence indicates, however, that she pushed the teacher at least once, and it is so found. Respondent also admits to having used the word "shit" in front of the second lady who came to the room in a query about the referral. It was this individual, Ms. Mills, with whom Respondent walked back to the office. However, she denies having threatened her or stating that she or anyone else would be "messed up", and further denies having referred to Ms. Mills or anyone else as a "fucking cracker." She also denies having used the word "shit" with the principal, though it is clear she did. She claims, however, that the principal neither asked her to come into the private office nor gave her a reason for the referral. This is irrelevant, however. Respondent admits she was on her way back to the classroom from the office a second time but before she could do so, the police arrived and she talked with them. Respondent did not think she was frightening the children by her actions, but it is clear she was. She did not intend to do so. All she wanted was an answer to her question. She admits she was angry when she went to the office and when she went to the classroom. She admits to entering the classroom without knocking or without an invitation because the door was open even though the class was in session. However, she justifies her conduct as a result of having been upset. Respondent's work supervisor has never heard Respondent use profanity to her co-workers, to teachers or to students while on the job or otherwise. He has never received a complaint about her behavior from either students or teachers. He has heard other employees use profanity from time to time, but never in a direct confrontation with each other or in front of students or teachers. Mr. Morris has never disciplined any of his workers for using curse words but would do so for inappropriate conduct. He is aware of the Board's sexual harassment rule, but other than this is unaware of any Board rule which prohibits the use of curse words. Based on his limited experience with the Respondent, he has no concern over her working in an environment where she might come into contact with middle school students or teachers. When he hired her he knew of no record of prior discipline regarding the Respondent and apparently there is none. He agrees it is important not to use profanity around students and that students should feel safe in the school setting. In that regard, if he were to know that an employee did what Respondent is alleged to have done, he would feel that person should not be employed as a plant operator. James M. Barker, an administrator with the Board's Office of Professional Standards, investigated the allegations against the Respondent and concluded that they were accurate and constituted various violations of Board Policy 6Gx52-5.31 which outlines in writing offenses and penalty ranges for employee misconduct. He interviewed the teachers involved but not the students, and when he interviewed the Respondent, she denied all of the allegations. She admitted she was upset by the comments contained on the referral slip but denied either touching a teacher or using threatening language. Notwithstanding, Mr. Barker's investigation indicated to him that Respondent had improperly harassed a student, used inappropriate or disparaging remarks to students, improperly interacted with colleagues, and committed misconduct in office, all in violation of Subsections (l), (n), (p) and (v) of the policy. The aforementioned sections list not only the conduct which is considered actionable, but also suggests a penalty range for the imposition of discipline when misconduct is found to exist. In each case, the suggested penalty ranges from either a caution or a reprimand to dismissal. Section 3 of the same policy outlines aggravating or mitigating factors which may be considered when determining the appropriate penalty. In this case, Mr. Barker recommended dismissal of the respondent because he could find no factors in mitigation but did find aggravation in the severity of the offenses committed, the involvement of students, the potential for damage to the public and the actual emotional damage imposed upon Ms. Robinson and the students. Even though the Board's policy and general practice is to impose discipline progressively, here he recommended dismissal immediately because of Respondent's comments before students and her aggression toward Ms. Robinson. Mr. Barker is aware that Respondent has been employed by the Board for only a relatively short time and that she was not employed at the school where her misconduct occurred. He is also aware that Ms. Robinson did not seek medical of psychological help as a result of her contact with Respondent but does not know if any member of the public was involved. He considers Ms. Robinson and the staff at Lynch to be coworkers of the Respondent even though they are not employed at the same school and they did not know Respondent was a Board employee at the time of the incident. This is an overly broad interpretation. Mr. Barker's recommendation was based on his determination that the Board does not consider it appropriate for any employee of a public or private school to act as Respondent did in this instance. Teachers should not have to fear assault in class and students should not have to be exposed to conduct like that alleged here.
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 affirming the temporary suspension of Respondent with pay and her termination from employment with the Board as of December 14, 1995. DONE and ENTERED this 29th day of May, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-6148 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. & 2. Accepted and incorporated herein. 3. - 14. Accepted and incorporated herein. Accepted and incorporated herein, except for the allegation that the Respondent pointed her finger at the students. - 33. Accepted and incorporated herein. 34. & 35. Accepted but not probative of any fact in issue. Respondent's Proposed Findings of Fact. 1. - 6. Accepted and incorporated herein. 7. & 8. Accepted Rejected as contra to the weight of the evidence. Rejected as contra to the weight of the evidence. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County Schools 301 4th Street, Southwest Post Office Box 2942 Largo, Florida 34649-2942 Lydia S. Castle, Esquire Gulfcoast Legal Services, Incorporated 641 First Street South St. Petersburg, Florida 33701 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 4th Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida Michael H. Olenick General Counsel 32399-0400 The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact Respondent, Milton Aaron Wetherington, holds Florida teacher's certificate number 035136 issued by the State Department of Education covering the areas of physical education, history and administration/supervision. The certificate is valid through June 30, 1991. This proceeding involves an administrative complaint filed against Wetherington by petitioner, Ralph D. Turlington, as Commissioner of Education. The complaint stems from various complaints lodged with the Volusia County School Board by several students and parents who alleged that Wetherington engaged or attempted to engage in improper relationships of a romantic nature with female high school students assigned to his classes. The filing of the administrative complaint precipitated the instant action. Wetherington, who is 57 years old, has been a teacher for some twenty seven years, the last seventeen in the Volusia County school system. From 1975 until 1984 Wetherington was a teacher at Spruce Creek School in Port Orange, Florida. Because of the pending disciplinary proceeding, he was reassigned to a non-instructional position as an assistant manager of purchasing and property for school year 1984-85. However, after the charges came to light in early 1984, Wetherington was allowed to continue as a teacher for the remainder of the school year, and was a chaperone on the senior class trip to Walt Disney World. In his twenty seven years of teaching, he has had no prior disciplinary action taken against him. In school year 1983-84 Wetherington taught a political systems course to first semester seniors. Two of his students were Lisa and Tammy, both seventeen years of age at the time, and the best of friends. Seven of the specific charges in the complaint involve respondent's relationship with Lisa, and to a lesser extent, Tammy. Lisa lived at home with her mother and step father for a part of her senior year. Because of problems with her stepfather, who beat her, she moved out at the end of January, 1984, to live with a girlfriend. She was involved with drugs, including cocaine and marijuana, and was experiencing financial problems. Lisa needed a social studies course to graduate, and transferred into Wetherington's class about two weeks after the semester started. She had not met or known Wetherington prior to that time. Wetherington immediately took a special interest in Lisa, and selected her to assist him during office hours with grading papers and the like. Lisa spotted an opportunity to take advantage of the situation, and began cultivating the relationship in an assiduous manner. Her testimony reveals she had two goals in mind: to obtain money from Wetherington and to get a good grade without studying. She also saw the opportunity to get her friend Tammy a good grade since she had access to Wetherington's grade book. The relationship was non-sexual, and all parties agree that Wetherington made no sexual advances or demands upon Lisa. One evening during the fall of 1983, Wetherington asked Lisa if she and Tammy wanted to get a pizza after a football game. Lisa agreed and Wetherington gave her $20 to purchase the food. The three met briefly in separate cars at a local Pizza Hut, but after the girls saw other students there, they all drove in Wetherington's car to the Breakers Restaurant and Lounge, an establishment in New Smyrna Beach. They arrived around 12:45 a.m. or so, and after being seated in a booth next to the stage on which a band was playing, they placed an order for pizza. Because of the lateness of the hour, the waitress informed there the kitchen had closed. They then departed the premises and returned to Daytona Beach where all went their separate ways. The two girls claimed Wetherington purchased them an alcoholic drink at the Breakers, but a member of the band, who happened to be a teaching colleague of Wetherington disputed this and observed the three had no drinks during their five to seven minute stay at the restaurant. His testimony is deemed to be more credible and it is found respondent did not "purchase alcoholic beverages for both students" as alleged in the administrative complaint. At some point in the first semester, Wetherington gave Lisa a key to his house in Holly Hill where he lives alone. According to respondent, he did so since he wanted Lisa to have a place to go in the event she suffered a beating from her stepfather. Lisa visited his house approximately five times in the company of a girlfriend when Wetherington was home, and an undisclosed number of times when he was not at home. One of Wetherington's sons lives at Bunnell, and visited his father regularly. The son kept a stash of marijuana at the house which the son used when he visited. Wetherington acknowledged that this was true, but maintained he did not know where it was hidden at the time. Indeed, he claimed he never used drugs himself, and objected to their use by other persons. Wetherington gave Lisa instructions to use the key only when she had problems with her stepfather, but Lisa ignored these instructions. While at Wetherington's home, she used both alcohol and marijuana on at least one occasion in his presence. The alcohol (wine) was taken from Wetherington's refrigerator while the marijuana was either brought onto the premises by Lisa, or came from the son's hidden stash. 1/ There is no credible evidence that Wetherington himself used "marijuana and alcohol at his residence with female students" as charged in the complaint. During the school year, Wetherington gave Lisa a friendship ring valued at $12, some $500 in cash, between $400 and $500 worth of clothes, and lent her an Amoco gasoline credit card for gasoline purchases to get her to and from the part-time job she held. Lisa charged some $120 worth of gasoline on the card as well as $247 in auto repairs. With her mother's consent, and after clearing it with the school principal, he also paid Lisa's mother $500 for the equity in Lisa's car, transferred the title to his own name, and financed it with a Miami bank. Lisa got to use the car with the understanding that she would pay him $125 a month, which was Wetherington's obligation on the bank note. Wetherington considered all this to be a "loan," and kept a book detailing the total amount advanced to Lisa. As a part of the social studies course, Wetherington required each student to prepare a term paper. Wetherington gave fourteen students, including Lisa and Tammy, copies of term papers written in the prior year with instructions to use them as a "format" or "guideline" in preparing their own. Lisa and Tammy simply changed the title page, and turned the papers back in as if they were their own. They each received a grade of 25, which was the highest grade in the class. Lisa claimed she simply did what Wetherington told her to do, and Tammy corroborated this claim. Although Wetherington was negligent in failing to detect that the papers turned in by Lisa and Tammy were identical to those previously given them to be used as a "formats" the evidence does not support a finding that Wetherington gave them the papers for the purpose of evading any academic requirements. The final charge concerning Lisa and Tammy is that Wetherington "[o]n at least one occasion kissed and hugged a female student." This charge apparently stems from Wetherington kissing Lisa on the cheek one day and giving her a paternal hug. Wetherington does not deny this, but contends it was not romantic in nature but done in a fatherly way. Wendy was a seventeen year old senior at Spruce Creek High School in school year 1983-94. She is the source of some four separate charges against respondent in the administrative complaint. Wetherington approached her at the beginning of the year and asked if she wanted to be his teacher's aide. She said yes, and he accordingly rearranged her schedule so that she worked in his office or classroom during first period as an aide, and was a student in his social studies class the following period. During the first nine weeks, Wetherington gave Wendy two rings, one for her birthday and the other to simply keep till the end of the school year. He also gave her $230 in cash over this period of time. He kept a log detailing each amount of money given to her, and considered the payments to be a loan. While working in Wetherington's classroom one day, Wendy walked by Wetherington who pulled her onto his lap and began rubbing her upper thigh. He also approached her one day in his office and put his arms around her waist and pulled her towards him. After she told him, "I don't want this," he released her. She then pulled away and claimed she immediately reported the incident to the principal. The principal could not recall such a conversation. The next day Wetherington apologized to her in his office, but he then turned off the lights in the room and began hugging her. She pushed him away and ran out of the room. Although Wendy again claimed that she immediately reported the incident to the school principal, the principal could not recall such a meeting. In any event, Wendy went to her parents, disclosed the various incidents and gave them the two rings given to her by Wetherington. The parents were understandably irate, and went to the principal demanding that Wendy be transferred out of Wetherington's class. A meeting was held by the principal, with Wetherington and the two parents in attendance. At the meeting Wetherington simply acknowledged that he admired Wendy very much, that she was a good student, and that the cash given to her ($230) was a loan for car payments and voice lessons because he trusted her. However, Wendy does not own a car, and her another paid for all voice lessons. Moreover, her father is a physician who has provided well for his family. The mother then wrote Wetherington a check for $230 to repay the "loan." Wendy was also transferred out of respondent's class. Wendy acknowledged that she "took advantage" of Wetherington, and characterized their relationship as simply a friendship. In a note written to him in a school yearbook at the end of the year, she apologized for "putting (him) through hell" and wished she "could erase it all." Wetherington denied any romantic involvement with Wendy, and acknowledged only that he had kissed her twice on the cheek, once at a football game and another time outside his house. He attributes Wendy's story to emotional problems she was experiencing that fall caused by her relationship with a married man. Wetherington portrayed himself as a teacher genuinely interested in his students. He estimated he has given financial aid in the form of loans and gifts to students over the years in excess of $10,000. Because he has raised seven children of his own, he vigorously denied having any illicit or sinister purpose in his dealings with Lisa and Wendy. Instead, he contended he was merely helping them overcome personal and financial problems so that they would be better persons after graduation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found GUILTY of violating Rules 6B- 1.06(3)(a) and (e), and Subsection 231.28(1)(c), as set out more specifically in the Conclusions of Law portion of this order. All other charges should be DISMISSED. It is further RECOMMENDED that respondent be placed on probation for three years and that he be retained by the school board during his probationary period only as a non- instructional employee. DONE and ENTERED this 22nd day of January, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of January, 1985.
Findings Of Fact Respondent currently holds Florida teaching certificate number 576645, which covers the areas of elementary education and mathematics. Respondent's certificate is valid through June 30, 1992. During the 1990-91 school year, Respondent was employed as a third grade teacher at Markham Elementary School in the Broward County School District. 1/ On an undetermined date during the 1990-91 school year, Respondent hit, M.R., a female student, with a wooden ruler that was twelve inches long and one inch wide. Respondent's action was in response to M.R.'s behavior of talking in class without permission. M.R. was hit on the palm of her hand with the ruler in front of the class. M.R. was embarrassed by the incident, but she did not cry. On another occasion, M.R. was talking in class. There was a dispute in the testimony as to whether M.R. was using profanity. Respondent testified that M.R. was using profanity, while M.R. denied using profanity. Respondent took M.R. to the bathroom at the rear of the classroom, told M.R. to place soap on her hands, and made M.R. wash her mouth out with soap. 2/ During the 1990-91 school year, Respondent hit K.S., a female student, on the palm of the hand with the twelve inch wooden ruler. This discipline occurred at the door to the bathroom at the rear of Respondent's classroom. K.S. became upset and began to cry. Another student saw K.S. crying. On one occasion, while talking to K.S. in the bathroom, Respondent told K.S. to pretend to cry to make the other students believe that she had been punished. Respondent had not administer corporal punishment to K.S. on that occasion, but Respondent wanted the other students to believe that they would be punished if Respondent took them to the bathroom. The Respondent hit K.C., a male student, on the palm of the hand with a wooden ruler, and on the buttocks with a small board. On one occasion the Respondent took K.C. into the bathroom and hit him with a ruler. The Respondent threatened on other occasions to hit K.C. with a ruler. The Respondent threatened to hit L.S., a female student with a ruler. L.S. witnessed the Respondent hitting other students on the hand with a ruler. The Respondent hit V.D., a female student, on the palm of the hand with a ruler. V.D. cried after being hit with the ruler. The Respondent hit K.C., a female student, on the palm of the hand and buttocks with a ruler. The Respondent hit K.C. in the bathroom and in the classroom. The Respondent hit S.T. 3/, a female student, on the palm of the hand with a wooden ruler, causing S.T. to cry. The Respondent hit or tapped T.B., a male student, on the hand with a ruler. The Respondent's conduct in hitting the students with a ruler was not done in self-defense, but as a disciplinary measure that was intended to both punish and intimidate the students. At hearing, the Respondent offered a composite exhibit of permission forms, purporting to demonstrate parental permission to use corporal punishment against K.S., T.B., K.C. (female student) and D.R. (a student who did not testify). Respondent did not offer any permission forms from the parents of M.R., S.T., K.C. (male student), or V.D., although the evidence established that Respondent struck these students with a ruler. Regardless of parental permission, the discipline administered by Respondent violated district policy, which forbids corporal punishment of any kind. After an investigation into allegations that the Respondent had struck students, students were called to the school office to be interviewed. The Respondent discussed the pending investigation with her class. Several students recalled that on the day that they were to be interviewed she told them she might go to jail if students told the investigators that she had hit them. None of the students testified that Respondent told them, as a group, to lie to the investigators. In fact each of the students testified that the Respondent told the class to tell the truth. There was a conflict in the evidence as to whether Respondent told S.T. and V.D. individually not to reveal that she had hit them, or to say that she had hit them fewer times than she actually had. This conflict is resolved by finding that Respondent's denial that she told either S.T. or V.D. to lie is more credible than the testimony to the contrary from S.T. and V.D. Therefore, it is found that Petitioner failed to establish that Respondent told her students to lie about her discipline practices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which adopts the findings of facts and conclusions of law contained herein, which provides that a letter of reprimand be issued Respondent by the Education Practices Commission, and which places Respondent's certification on probation for a period of two years. It is further recommended that the terms and conditions of probation be identical to those recommended by Petitioner in its post-hearing submittal. RECOMMENDED in Tallahassee, Leon County, Florida, this 19th day of May, 1992. CLAUDE B. ARRINGTON 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 19th day of May, 1992.
The Issue The issues are whether Respondent is guilty of the alleged misconduct and, if so, whether such misconduct constitutes just cause for Respondent's termination, pursuant to section 1012.33(6)(a), Florida Statutes.
Findings Of Fact Introduction Respondent has been teaching for 30 years. At all material times, she has held a professional service contract, pursuant to section 1012.33, Florida Statutes. For the past 13 years, Respondent has taught at Northport K-8 School. She taught at this school until she was suspended without pay, pending termination, for the incidents of March 20, 2013, which are the subject of this case. During second period on March 20, 2013, Respondent was teaching a seventh-grade class. One of the students, R. W., misbehaved. Respondent cautioned him to sit down and be quiet. Instead of doing so, R. W. asked her, "How do you know that I'm the only one talking?" Respondent again instructed him to be quiet, to which the student replied, "I wish I could cuss a teacher out right now." Respondent did not reply. Several nearby students heard this exchange and nothing more of significance. After the bell rang, R. W. proceeded to his next class, which was taught by Sandra Tyndale-Harvey, whose classroom is in the same hallway as Respondent's classroom. During the three-or four-minute interval between second and third periods, Respondent visited another teacher, Kalyn Nova, whose classroom is between the classrooms of Respondent and Ms. Tyndale-Harvey. "Inappropriate Language" and Three Alleged Failures to Act Respondent told Ms. Nova about the incident involving R. W. during the previous period. Although she was speaking in a whisper, she was upset and was overheard by D. S., an eighth-grade student in Ms. Nova's third-period class. According to D. S., he overheard Respondent tell Ms. Nova that R. W. had said to her: "If you don't shut the 'F' up, I'm going to beat the shit out of you," or words very close to that effect, including the abbreviated swear word, the unabbreviated swear word, and the threat of violence. Ms. Nova and Respondent recalled the statement differently from D. S., but similar to each other. Ms. Nova testified that Respondent stated that R. W. had said, "If you don't stop talking to me, I'm going to beat the shit out of you." Respondent testified that R. W. had said, "If you say my name one more time, I'm going to slap the shit out of you," implying that this was what Respondent told Ms. Nova that R. W. had said. The differences in language among all three statements are immaterial. All three versions capture a threat to physically beat Respondent and a hair-trigger precondition to the beating: failing to stop speaking or saying R. W.'s name one more time. All three versions also use the word, "shit." Respondent's use of this vulgarity was not inappropriate for three reasons. First, Respondent was merely recounting what she understood that R. W. had said to her. Based on this record, Respondent was wrong; R. W. never said anything like this to her. But Respondent is not charged with fabricating this statement. Although R. W. did not say it, Petitioner has failed to prove that Respondent intentionally misquoted the statement, such that her use of "shit" in Ms. Nova's classroom might have been inappropriate. It is at least as likely that Respondent misunderstood R. W. to have threatened Respondent using the word, "shit." Second, Respondent was visibly upset when she recounted what she had thought R. W. had said to her. And third, despite the fact that she was upset, Respondent took a reasonable precaution--i.e., whispering--to avoid being overheard by other students, even though she was unsuccessful in this effort. Perhaps because she was upset, Respondent's speech was loud enough for a nearby student to overhear it. After recounting R. W.'s statement to Ms. Nova, Respondent walked over to D. S. and M. B., who were seated next to D. S. D. S. knew Respondent because he had taken a class from her the previous school year. Respondent asked D. S. if he would talk to R. W. because he and R. W. were friends and see what was going on with him. The incident during second period was not the sole reason that Respondent might have wondered what was going on with R. W., whose behavior and academic performance had been deteriorating recently. By this time, the bell had rung, and Respondent was walking toward the classroom door to return to her classroom. D. S. and M. B. asked Ms. Nova if they could go to the restroom. Ms. Nova said that they could, so D. S. and M. B. exited the classroom directly behind Respondent, who held open the classroom door for them. Hallway camcorders recorded much of what followed. The camcorders of main interest are identified in the video as Cameras 5 and 6. Located in close proximity to each other, these cameras display opposite ends of the same hallway. Thus, a person walking toward one camera will eventually walk off the bottom of the frame, only to appear at the bottom of the frame of the other camera. A small portion of the hallway, directly beneath both cameras, is not covered by either camera, so a person would not instantly appear in the frame of the other camera as soon as she left the frame of the first camera. The video is timestamped to thousandths of a second, and, at least at the level of seconds, the times for the two cameras are closely synchronized. If the cameras are out of sync at all, it is by no more than a couple of seconds. The video from Camera 6 reveals that Respondent held open the door for D. S., who passed through the door immediately ahead of Respondent. Respondent released the door, but, before it had swung closed, M. B. passed through the door a few steps behind D. S. Both boys walked in the direction of Ms. Tyndale-Harvey's classroom. Rather than proceed in the opposite direction, toward her occupied classroom, Respondent stopped in the middle of the hallway and then followed the two boys for about six seconds, as they approached and stopped at the door of Ms. Tyndale-Harvey's classroom. Both boys looked directly at Respondent, who, for two to three seconds, might have talked to the boys, but it is impossible to know for sure because her back was to the camera. Respondent suggests that she counseled the boys not to run in the hallway, but clearly they were not running. Also, considering that third period had already begun, it is unlikely that, even if two eighth-grade boys were running down the hall, Respondent would so diligently supervise them, even to the extent of following them down the hall for six seconds in the opposite direction of her classroom, and completely ignore the needs of the classroom of her students awaiting her arrival. It appears, then, that Respondent said something to the boys, and it had nothing to do with not running in the hallway. Just before the boys entered Ms. Tyndale-Harvey's classroom, Respondent turned around and started to walk up the hall toward her classroom. Seven seconds after entering Ms. Tyndale-Harvey's classroom, D. S. and M. B. reentered the hallway with R. W. By this time, Respondent was out of range of Camera 6, but she was within range of Camera 5. The video from Camera 5 reveals that Respondent did not immediately enter her classroom. Instead, for about ten seconds, Respondent stared down the hall in the direction of Ms. Tyndale- Harvey's classroom. Based on the timestamps on the two videos, Respondent saw D. S. and M. B. leave the classroom with R. W., and she saw the boys walk R. W. across the hall, where one of the eighth-grade boys opened the door of another classroom, which was occupied at the time. At this point, Respondent entered her classroom, so she did not see what followed in the hallway. The circumstances under which R. W. left Ms. Tyndale- Harvey's classroom are difficult to establish. D. S. testified that he asked to talk to R. W., but he did not say whom he asked. R. W. testified that two boys--D. S. and A. S.--entered Ms. Tyndale-Harvey's classroom and asked the teacher if they could take R. W. because Respondent needed to talk to him. An especially reliable student witness, S. W., testified that she heard the boys tell R. W. that Respondent needed him, and he thus left the classroom with them. Ms. Tyndale-Harvey testified that, by the time that she took attendance toward the beginning of third period, R. W. was not in her classroom. When she asked if anyone knew where he was, several of the students said that he was talking to Respondent. The hallway was clear when the boys and R. W. left Ms. Tyndale-Harvey's classroom, so third period had started, but it is possible that the teacher had not yet taken attendance by the time that R. W. had left. Given the statements of the other students and presence of D. S. and M. B. in the classroom for a total of only seven seconds, it is more likely than not that they persuaded R. W. to join them in the hall without informing or asking Ms. Tyndale-Harvey. The video from Camera 6 reveals that no one left the second classroom to join D. S., M. B., and R. W. in the hall. The three boys went down the hall, still within range of Camera 6, but no longer being observed by Respondent. D. S. or M. B. ducked into a third classroom, from which, in short order, four students joined them in the hall. Up to this point, R. W. was being escorted, but did not appear restrained. While standing in the hall at the door of the third classroom, R. W. stood by himself, only two or three steps from his classroom, but making no attempt to reenter his classroom. However, almost immediately after the four boys joined D. W. and M. B. in the hallway, several of the boys physically confronted R. W., who tried to escape up the hall. One of the boys grabbed him after only a couple of steps and R. W. stumbled. Now surrounded by five or six boys, R. W. kneeled on the floor as the boys grabbed at and pushed him. One of the boys removed his cloth belt and swatted at R. W.'s lower torso seven times, as three of the other boys held R. W. against the wall. The evidentiary record does not establish that R. W. suffered any physical injuries as a result of this incident, whose intensity is impossible to describe. The boys are relatively far from Camera 6, and any views of R. W. are intermittent due to the movement of him and the other boys during the incident. Clearly, though, whatever level of intensity that the incident attained, tapered off considerably after about 30 seconds. About one minute after the start of the incident, the media specialist, who has worked at the school in her present position and as a teacher for 28 years, entered the hallway and walked right by the boys. She gave them a look, but noted nothing out of order--besides, one hopes, the presence of six students loitering in the hall in the middle of third period. The media specialist continued walking up the hall. The students followed her five or six steps behind. At this point, two students were holding R. W., possibly by his backpack, which had remained in place during the hallway incident. As these three boys approach Camera 6--and thus were clearly depicted right in front of the lens--the boys' grasp of R. W. is light, and R. W. is smiling. The other four boys are trailing the first three and are talking in pairs, paying no attention to R. W. Based on the foregoing, Petitioner proved that Respondent was aware that D. S. and M. B. left Ms. Nova's classroom and headed toward R. W.'s classroom, departed Ms. Tyndale-Harvey's classroom with R. W., and walked across the hall with R. W. and opened the door of another, occupied classroom. Petitioner also proved, of course, that Respondent never intervened with the boys during these actions. Petitioner proved that Respondent had just asked one of the boys to talk to R. W. before he left the classroom to visit Ms. Tyndale-Harvey's classroom. Even in a preponderance case, it is impossible to infer that Respondent knew or reasonably should have known that D. S.'s walking to and into Ms. Tyndale-Harvey's classroom meant that he was going to act on her request. But this is a reasonable inference as soon as D. S. emerged from the classroom with R. W., especially given the proximity in time between Respondent's request and D. S.'s action in retrieving R. W. from class. Seeing D. S. and M. B. walking R. W. across the hall and open the door of another occupied classroom establishes the inference that Respondent knew or reasonably should have known that the boys were not merely going to talk to R. W. about what might be wrong. D. S. and M. B., as well as all of the other eighth-grade boys, were much larger than R. W., so D. S. and M. B. did not need allies in order to talk to R. W. safely. More likely, the presence of allies was at least for intimidation, or worse. The Petition alleges a duty to act based on Respondent's having just heard one or both of the students ask if they could confront R. W. The evidentiary record does not establish such a request. However, Petitioner's opening statement predicates the duty to act on Respondent's instruction to one of the boys to talk to R. W. (Tr. 15) As discussed in the Conclusions of Law, the point here is that Respondent has established a specific basis for notice and a heightened duty to act on Respondent's part, and basis alleged in the Petition--D. S.'s asking Respondent if he may confront R. W.--is close in time and content to the proved basis-- asking D. S. to talk to R. W. Interlude The media specialist who had passed the boys in the hall was headed to Respondent's classroom to schedule an author visit. The media specialist entered the classroom and, four or five seconds later, so did the six students and R. W. The media specialist remained in Respondent's classroom for a little over one minute. About 20 seconds after she left the room, so did the six students and R. W. The boys urged R. W. to apologize to Respondent. He did so once, but laughingly. Urged by the boys to apologize again, R. W. did so, the second time more sincerely. Respondent thanked R. W. for the apology, but said that she was still going to have to write a referral. Respondent said nothing else to R. W. The boys escorted R. W. down the hall, past his classroom, and into an adjoining hall, where they walked him into a restroom. From the video, it appears that one of the boys locked the door behind them. The boys remained in the restroom for less than one minute. R. W. then walked out of the restroom. About 15 minutes after the boys had left Respondent's classroom, the Dean's clerk went by the classroom and informed Respondent that R. W. had told her that he had been "jumped in the boys' bathroom" by six boys. The clerk added that R. W. had told her that the boys had attacked him on Respondent's instruction. The clerk told Respondent that she was taking R. W. to the front office so he could tell administrators what had happened. Three Alleged Instances of Student Witness Tampering Within three minutes after the clerk and Respondent parted, the six eighth-grade students involved in the hallway incident (plus another student who does not appear to have been involved) entered Respondent's classroom. They met with Respondent in a separate planning room that was in the back of the classroom. Respondent testified that she asked what had happened, and the boys told her about the incident in the hall--with one boy saying that he had removed his belt, but he had hit the floor with it. Respondent testified that they would have to tell the Dean what they had done. About five minutes after entering Respondent's classroom, the six students left it. On this record, it is impossible to find that that Respondent said anything more to the boys. It is thus impossible to find that Respondent tried to influence or interfere with these students in terms of what they would tell school investigators. The second alleged instance of interfering with student witnesses involves Respondent's third-period class, which witnessed the eighth-grade students' production of R. W. before Respondent. One student from this class, D. D., testified that, after Respondent had finished meeting with the boys in the planning room, she asked the class what would R. W. have looked like if he had been beaten up, and the class responded with suggestions. Although this student testified that R. W. did not look as if he had been beaten up, he did not testify that Respondent ever followed up with the obvious question of whether W. looked as if he had been beaten up to the students. Another student from this class, M. C., testified, but was not asked what Respondent had said to the class after talking to the boys in the planning room. The only other student from this class called as a witness, V. S., was also not asked about any comments that Respondent made to the class after talking to the boys in the planning room. It appears that, at hearing, Petitioner decided not to press the second alleged instance of interference with student witnesses. Any implication by Respondent that R. W. did not look beaten up while he was in her classroom was no more an attempt to influence the students than a statement asking them to remember when R. W. was in the classroom: both statements were true. Petitioner thus failed to prove any attempt by Respondent to influence student witnesses on these first two alleged occasions. However, at lunch on the day of the incident, Respondent visited some of her second-period students in the cafeteria. Five students concerning this incident were called as witnesses: W., C. T., K. H., L. J., and J. R. All of them were in R. W.'s second- and third-period classes. S. W. was an especially impressive witness. She also appeared to be quite fond of Respondent. S. W. testified that Respondent approached her and some friends while they were eating and asked if R. W. had said that he had been hurt, and S. W. replied that he had not. Respondent also asked if S. W. or her friends had heard R. W. say during second period, "If she opens her mouth one more time, I'm going to beat the shit out of her." Neither S. W. nor her friends could recall that; S. W. recalled that R. W. had said only, "Sometimes I wish I could curse out a teacher." C. T. was at lunch when Respondent approached him and asked if he and his friends remembered when R. W. had said, "If this bitch won't shut up, I'm going to knock her on the floor." Neither C. T. nor his friends recalled this statement. C. T. testified that R. W. said in second period, "I wish I could cuss out a teacher right now." K. H. testified that Respondent approached him at lunch and asked if he had heard R. W. say that "he wished he could knock that bitch the fuck out." K. H. replied that he not heard any such statement. K. H. testified that R. W. said that he had wished he could cuss out teachers, or words to that effect. L. J. testified that he did not recall anything, except that Respondent approached him during lunch and asked if R. W. had said "anything about he was going to beat the shit out of me." J. R. testified only that Respondent approached him at lunch and asked if he recalled that R. W. had used a curse word at her in class. Petitioner has proved that Respondent asked leading questions to each of these five students. Although the leading questions framed what Respondent apparently had understood R. W. to have said, not a single witness recalled any such statement from R. W. Under the circumstances, including the fact that Respondent had no role in conducting an investigation of her acts and omissions, the leading questions constituted improper influencing of student witnesses. Despite what Respondent understood R. W. to have said, the leading questions suggested to these student witnesses that R. W.'s statement was physically threatening, when it was not, and used one or more swear words, when it did not.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the above-cited violations of the Principles of Professional Conduct and School Board policy and terminating her employment. DONE AND ENTERED this 12th day of February, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 12th day of February, 2014. COPIES FURNISHED: Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC Suite 103 1300 Corporate Center Way Wellington, Florida 33414-8594 Leslie Jennings Beuttell, Esquire Richeson and Coke, P.A. Post Office Box 4048 Fort Pierce, Florida 34948 Dena Foman, Esquire McLaughlin and Stern, LLP Suite 1530 525 Okeechobee Boulevard West Palm Beach, Florida 33401 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael Lannon, Superintendent St. Lucie County School Board 4204 Okeechobee Road Ft. Pierce, Florida 34947-5414
The Issue The issue for consideration in this matter is whether Respondent should be suspended without pay for five days from employment with the School Board because of the matters alleged in the charging letter issued herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for the provision of public instruction from pre-kindergarten through secondary and adult education in Polk County, Florida, and operated Haines City High School in Haines City. Respondent had been employed at HCHS for eight years and in the last two years prior to the incidents in issue, taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. In January, 1994, Respondent was administered a verbal reprimand as a result of reports that she has been consuming alcohol in the presence of her students at an out of town conference. A part of the basis for that reprimand was her reported comments to students to the effect that her predecessor as DCT instructor had advised her not to let Black students into the program because they caused trouble. These comments by Respondent were communicated to Black students who were upset by them. At some point during the 1993-1994 school year, Respondent reportedly overheard a student, Alisha Tanner, (now, Forsythe), in a discussion with another student regarding her breakup with her boyfriend. Respondent is alleged to have stated to Ms. Tanner that, "...if you have a vibrator, you won't need a boyfriend." Both Ms. Tanner and another female student who allegedly heard the statement, claim to have been shocked and embarrassed by hearing a teacher make such a statement, and a third student, Delana Muncy, indicated Ms. Tanner was crying as a result of the comment made to her. Evidence was also presented to indicate that about the same time, Respondent was overheard by several other students to have asked a male student, Jonathan Bradley, if he masturbated. Respondent does not deny using the term, "vibrator" to the female student. Her version of the conversation is somewhat different than those of the students, however. Respondent admits that she overheard the two girls discussing one's breakup with her boyfriend and that she joined the conversation. She, however, indicates that she did so to remind them of the dangers of reckless sexual behavior and suggested that the young lady find other ways, including the use of a vibrator, to satisfy her sexual needs. Respondent denies, however, the use of the word "masturbate" to Bradley. Only two of the students in or near the conversation recall Respondent making such a comment. Notwithstanding these comments were alleged to have been made during the early or middle part of the school year, no mention of them was made by any of the students to Respondent, her immediate supervisor, parents, school administration, or Board personnel until late in the school year, just shortly before graduation. At that time, a group of the students allegedly involved met for lunch at Pizza Hut off campus and in the course of their conversation, Respondent's alleged indiscretions surfaced. Prior to leaving campus, some of these students who now testify against Respondent passed a list of complaints against her around and, though denied, there is at least some indication the students were trying to get Respondent fired. Some of the students refused to sign the list. It was only several months after the inappropriate comments were allegedly made that the first official complaint was made. Other information presented at hearing indicates that during the school year several of the students involved in the reporting of this incident became dissatisfied with Respondent's conduct of her class. Respondent was alleged by students to have used such words in class as "shit", "hell", and "pissed off", and is reported to have commented, on a hot day, "I've got sweat running down between my breasts and the crack of my ass." No specific incident was presented to explain or elaborate on this. In addition, Respondent allowed a class discussion on marketing to inappropriately discuss the sale of condoms as a demonstrative example. In this case, she allowed any student who was offended by the discussion to leave the room, but this was not a satisfactory solution, as the students' excusal served only to focus unwelcome attention on the excused students. More specifically, Respondent was alleged to have become upset with student Bradley because, contra to the instructions she had given him about picking up the DCT jerseys from the printer, he disobeyed her instructions and picked them up without her permission. Respondent chastised Bradley for this. It is entirely possible the allegations against Respondent are the result of her disciplining of Mr. Bradley, thereby antagonizing him and his clique. Another allegation made against the Respondent by the Principal is her reported permission to several of her students to grade, average and record student grades, which allowed them access to her grade book. The HCHS teacher handbook, of which Respondent had previously been given a copy, specifically prohibits teachers from making grade books available to students and proscribes allowing students to record grades. Both the principal, Mr. Partain, and the Board's Director of Employee Relations indicated, without specific examples being provided, that Respondent's sexually inappropriate comments and her failure to abide by Board rules have impaired her effectiveness as a teacher in the school system. In general, her misconduct diminished her stature as a role model for her students, and her failure to obey Board rules compromised her ability to enforce discipline, but not to the degree that her effectiveness as a teacher was destroyed. Prior to the initiation of this action, the only disciplinary action taken against Respondent since she started working for the Board in 1988 was the verbal warning, (reduced to a letter), in January, 1994 regarding the drinking in front of students at conference and the untoward reference to Blacks. Other than that, her personnel record, commencing with the teacher evaluation done during the 1988-1989 school year, reflects positive comments and no criticism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova be reprimanded for improperly allowing students to grade the papers of other students, to average grades, and to have access to her grade book. RECOMMENDED this 6th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-4483 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. & 4. Accepted and incorporated herein. First two sentences accepted. Conclusions as to misconduct rejected. Accepted that a comment was made by Respondent to a student which included a reference to a vibrator. Exact wording as alleged not proven. Not proven. Accepted that condoms were discussed, but it is not established that the suggestion to use condoms as an example came from Respondent or that she agreed to the discussion other than reluctantly. In any event, this discussion was not listed as a basis for discipline. Not proven and not a listed basis for discipline. & 11. Accepted and incorporated herein. 12. Accepted as a restatement of the witnesses' testimony. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein with the exception of the last sentence which is not proven. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. First two sentences accepted. Third sentence a non proven conclusion. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U.S. 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
