Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Lawrence A. Longenecker formerly held a Florida teaching certificate, and was employed as a science teacher at Madeira Beach Middle School in Pinellas County until January of 1978. In January of 1978, administrative charges were brought against the petitioner by the Professional Practices Council (the predecessor to the Education Practices Commission) for the revocation of his teaching certificate. After a hearing before a Hearing Officer with the Division of Administrative Hearings, it was found that petitioner had made sexual advances toward three female students on four separate occasions during 1977 and that petitioner was thus guilty of personal conduct which seriously reduced his effectiveness as a school board employee. The Hearing Officer recommended, by order dated November 25, 1980, that petitioner's teaching certificate be permanently revoked. Professional Practices Council v. Lawrence Longenecker, DOAH Case No. 80-1276 (November 25, 1980). By Final Order filed on February 2, 1981, the Education Practices Commission adopted the Hearing Officer's Recommended Order and permanently revoked petitioner's teaching certificate. Professional Practices Council v. Lawrence A. Longenecker, Case NO. 80-005-RT (February 2, 1981). No appeal was taken from this Final Order. In approximately March of 1983, petitioner filed an application for a Florida Teaching Certificate, which application was denied by the Department of Education. Its "Notice of Reasons" for denial, filed on June 30, 1983, recited the events which formed the bases for the prior permanent revocation of petitioner's teaching certificate, and concluded that petitioner had failed to demonstrate that he is of good moral character, as required by Section 231.17(1)(e), Florida Statutes, and that petitioner had committed acts for which the Education Practices Commission would be authorized to revoke a teacher's certificate. Petitioner was 28 and 29 years of age during the time of the acts which formed the basis for the prior certificate revocation. He is now 34 years old. Since 1978, he has obtained a Master's degree in personnel administration from the University of South Florida and has been employed in the area of retail management. He fees that he is now more mature and more wise and would like to return to his chosen profession of teaching school. During the pendency of the instant proceeding, petitioner visited Dr. Alfred Fireman for psychiatric counseling and evaluation on three occasions. It was Dr. Fireman's opinion that petitioner is psychologically fit to reenter the teaching profession provided that his behavior is monitored. He concluded that petitioner "was a suitable candidate for a probationary restoration of privileges." The Education Practices Commission has never reinstated a former certificate or issued a new teaching certificate to an individual whose certificate had been previously permanently revoked.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Education Practices Commission enter a Final Order denying petitioner's application for a Florida teaching certificate. DONE AND ENTERED this 9th day of March, 1984. DIANE D. TREMOR 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 9th day of March 1984. COPIES FURNISHED: Lawrence D. Black, Esquire 152 Eighth Avenue SW Largo, Florida 33540 J. David Holder, Esquire Berg & Holder 128 Salem Court Post Office Box 1694 Tallahassee, Florida 32301 Donald L. Greisheimer Executive Director Education Practices Commission Room 125, Knott Building Tallahassee, Florida 32301
The Issue The issue is whether Petitioner, the Duval County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled "Notice of Termination of Employment Contract and Immediate Suspension Without Pay" (the "Notice") from Superintendent of Schools Nikolai P. Vitti to Respondent dated June 28, 2013.
Findings Of Fact Respondent Dennis Hester has been employed by the School Board as a teacher since 1994. He is covered by the Collective Bargaining Agreement ("CBA") between Duval Teachers United and the School Board for 2008-2011. At the time of the events at issue in this proceeding, Mr. Hester was assigned to Fletcher High School as instructional coach and professional development facilitator (“PDF”). ESOL certification requirements At the final hearing, the School Board conceded that the allegation regarding unprofessional behavior would not, standing alone, constitute grounds for terminating Mr. Hester’s employment. The chief allegation against Mr. Hester is that he repeatedly gave School Board employees credit for English for Speakers of Other Languages (“ESOL”) courses for which they performed no work and/or did not attend. Therefore, it is necessary at the outset to explain the School Board’s ESOL requirements for teachers and Mr. Hester’s role in teaching and accounting for credits in ESOL courses. In August 1990, Judge James Lawrence King of the United States District Court for the Southern District of Florida entered a consent decree to oversee implementation of a settlement agreement between the Florida State Board of Education and a coalition of plaintiff organizations that included the League of United Latin American Citizens, ASPIRA of Florida, the Farmworkers’ Association of Central Florida, the Florida State Conference of NAACP Branches, the Haitian Refugee Center, the Spanish American League Against Discrimination, the American Hispanic Educators’ Association of Dade, and the Haitian Educators’ Association.3/ Relevant to this proceeding, Section IV of the settlement agreement required teachers of “English language learners” or “ELL students”4/ to obtain an ESOL endorsement and complete between 60 and 300 hours5/ of in-service training in each of the five following subject areas: Methods of teaching English to speakers of other languages; ESOL curriculum and materials development; Cross-cultural communication and understanding; Applied linguistics; and Testing and evaluation of ESOL. See Fla. Admin. Code. R. 6A-4.0244 (specialization requirements for the ESOL endorsement) and 6A-6.0907 (in-service requirements). Not every teacher is required to obtain the ESOL certification. Only when an ELL student is assigned to a teacher’s class is the teacher required to obtain ESOL certification. Karen Patterson, the School Board’s ESOL specialist during the period relevant to this proceeding, testified that she knew of one teacher who taught in Duval County for nearly 40 years before being “flagged” as “out of field” for having an ELL student in her class and no ESOL credits on her record. The School Board’s policy is to terminate the employment of teachers who are flagged for ESOL and who do not timely obtain the required ESOL in-service training. Approximately 750 to 800 teachers are flagged out of field for ESOL each school year and must come into compliance with the ESOL requirement by June 30 of the school year in which they are flagged. As noted above, a teacher must obtain between 60 and 300 in-service credits, depending on the subject matter taught. Reading and language arts teachers are required to complete 300 credits of in-service ESOL training; math and science teachers need only 60 credits. The State allows teachers to “bank” their ESOL credits and apply them toward the requirements for recertifying their Florida Educator’s Certificates. Section 1003.56(3)(a), Florida Statutes, requires each district school board to submit to the Department of Education for review and approval a plan for providing ESOL instruction to ELL students. Paragraph (f) of the same section requires the district school board to provide qualified teachers for ESOL instruction. The School Board’s approved District Plan sets forth the standards for obtaining the ESOL endorsement, stating that the “expectation is that any teacher who obtains the ESOL Endorsement will acquire the appropriate strategies to teach English language learners.” The District Plan refers to the ESOL endorsement as an “Add-on-Program” because the endorsement can be added to any Florida Educator’s Certificate requiring a bachelor’s degree or higher. The District Plan states as follows, in relevant part: The standards to be addressed in each course will be stated and updated in the district’s master in-service plan for the Add-on- Certification Program for ESOL. Each component has been developed in accordance with the requirements for the Master Plan for In-service Education components. Participants must complete and demonstrate competency of 80% of the course objectives in order to receive credit for the component. Participants must participate in the following clinical activities in the ESOL Add-on-Program for the ESOL endorsement: Submit a portfolio of ELL student work with analysis of student growth Develop appropriate formal and alternative methods of assessment for ELLs Develop lesson plans using effective teaching methodologies in planning and delivering instruction to meet the needs of ELLs Complete a culture sketch and mini- ethnography on an ELL to identify language proficiency and cultural influences on learning Use knowledge of culture and learning styles to plan and evaluate instructional outcomes Evaluate, modify and employ appropriate instructional materials for ELLs at all proficiency levels Evaluate instructional programs in ESOL based on current standards Reflect on and analyze current trends in ESOL Select and develop appropriate ESOL content according to ELL students’ level of proficiency Identify and implement strategies for using school, community and home resources Analyze ELL Case Studies View and discuss pd360.com segments for each course (See Appendix)6/ The District Plan sets forth the following under the heading “Completion Requirements”: The participant will satisfactorily complete all the appropriate courses needed for the endorsement. The successful completion of each required course will document that the participant has attained the competencies and skills addressed in and specific to the course. In order to complete a course successfully, a participant must: Complete a Pre/Post test or other valid measure to show at least 80% competency of the course objectives Complete all individual and group activities at a professional level of quality that demonstrates knowledge of the Florida Teacher Standards for ESOL Endorsement Complete all written assignments at a level that demonstrates competency of Domains 1-5 of the Florida Teacher Standards for ESOL Endorsement7/ Program Completion The participant must master 80% of the course objectives in order to complete the in-service component satisfactorily. In order to add the ESOL endorsement the participant must complete all five state approved ESOL in-service courses or the equivalent. The participant must complete all individual projects and assignments at the level of quality as stated in the objectives. The instructor will follow the criteria established for satisfactory completion. Upon completion of the required courses work, the Professional Development Director will certify the program completion. Competency Demonstration The participant must demonstrate successful completions of all competencies as outlined in the district master in- service components for each ESOL class included in the add-on endorsement program for the Florida Teacher Standards for ESOL Endorsement. The District Plan sets forth the following as a section under the heading, “Management”: Attendance requirement for in-service points Attendance is mandatory. All of the classes have a specific number of hours and participants must attend the required number of hours. Absences must be made up with the instructor or the ESOL Specialist. Excessive absences will result in the participant not satisfactorily completing the class. The Director and ESOL Specialist for Professional Development will determine what will happen with a participant in the event of an extreme emergency or serious illness causing excessive absentees [sic]. During the period relevant to this case, Brenda Wims was the Director of Professional Development. She was responsible for all in-service programs in the School District, including the ESOL program. As the ESOL specialist, Ms. Patterson worked directly beneath Ms. Wims in the hierarchy. Then there were 20 to 25 ESOL facilitators such as Mr. Hester, who delivered the in-service training for ESOL professional development.8/ Ms. Patterson testified that there was always a crunch at the end of the school year to obtain ESOL credits and that the bulk of the training pushed up against the June 30 deadline. Teachers came to her office as late as June 27 desperately seeking ESOL credits. Some teachers hadn’t even realized they were out of field for ESOL until near the deadline and they approached Ms. Patterson in a panic. Ms. Patterson testified that the Professional Development staff of the District did whatever was legitimately possible to ensure that teachers flagged for ESOL obtained the credits they needed to keep their jobs. Given the number of teachers caught by the ESOL requirement every year, Ms. Patterson had an enormous task to schedule sufficient ESOL courses for all of them. As the end of the school year approached and the desperate push for ESOL classes began, Professional Development would schedule additional courses and would shorten courses. The standard ESOL training program consisted of five separate courses, each covering one of the five “domains,” i.e., methods of teaching English to speakers of other languages; ESOL curriculum and materials development; cross-cultural communication and understanding; applied linguistics; and testing and evaluation of ESOL. Each course was worth 60 points. Those teachers needing 300 points were required to take all five classes. In recognition that there is some subject matter overlap among the ESOL courses, the District decided to implement a “hybrid” ESOL course as part of its effort to quickly move more teachers through the training. The facilitator of this course would offer all five class titles and the teachers taking the course would choose the title they needed. During the first half of each class session, the facilitator would teach the whole class the materials common to all ESOL courses. During the second half, the facilitator would offer differentiated instruction for each course title. Ms. Patterson testified that the typical ESOL class took ten to twelve weeks but that the hybrid class was shortened to six weeks. Ms. Patterson further testified that other “emergency” ESOL courses were shortened to six weeks. She was asked what “emergency” means and responded, “That means that we needed to offer more courses, so we added more that were not hybrid as well.” Section 1012.56(8), Florida Statutes, provides for a “cohesive competency-based professional development certification and education competency program” through which persons with bachelor’s degrees in majors other than education may become certificated teachers. This program is popularly called “alternative certification.” Ms. Patterson testified that the alternative certification coordinator approached Ms. Wims about adding an ESOL component so that new teachers entering the profession by way of alternative certification would satisfy the ESOL requirement without adding to the backlog of teachers needing separate ESOL certification. The District added an ESOL component to the alternative certification program. Another way of obtaining ESOL credit was through independent study. Foreign travel by a teacher could be counted as independent study if certain criteria were met, basically a certification that the teacher had been out of the country for five or more days and the filling out of an independent study form.9/ Teachers who were unable to attend ESOL classes due to professional or familial conflicts could seek permission to complete independent studies by performing the course work on their own time. Ms. Patterson stated that when she was a PDF teaching ESOL she conducted between 20 and 40 independent studies per year. After becoming the District’s ESOL specialist, she oversaw roughly 20 independent studies per year conducted by the trainers. Ms. Patterson testified that as a PDF she would record a teacher’s participation in an independent study course by marking him “present” at an ESOL class that she or another facilitator was teaching. This was strictly an administrative method of tracking the student, not a statement that the independent study teacher was physically present at the class to which his name had been attached. Ms. Patterson stated that she continued to follow this procedure after she became the ESOL specialist for the entire district. Teachers could also obtain credit for ESOL courses they took in college. This credit was not automatically attached to a teacher’s record but required submission of a written request and an official transcript. A similar credit was available to teachers who obtained in-service ESOL credit during employment in another Florida school district. Finally, a teacher could obtain ESOL certification by passing an examination.10/ At the hearing, Mr. Hester contended that there was an “alternative delivery” method by which teachers could obtain ESOL credits at the discretion of the PDF by demonstrating their ESOL knowledge and skills. The School Board denied that this was ever an option for obtaining ESOL credit. Mr. Hester’s qualifications and experience In 1998, after four years as a classroom teacher in Duval County, Mr. Hester became a PDF working with the District’s Professional Development Cadre, which mentored novice and “needs assistance” teachers and implemented the District’s master plan for in-service education.11/ During his time in Cadre, Mr. Hester estimated that he trained between 3,000 and 4,000 new teachers through the District’s Mentoring and Induction for Novice Teachers (“MINT”) program. He trained teachers who had majored in education as well as alternative certification teachers. Mr. Hester was chosen to redesign the alternative certification to include the ESOL component. After Mr. Hester completed the redesign in 2010, teachers finishing the alternative certification program would receive 120 master plan points for ESOL, in the areas of testing and evaluation and cross cultural communication. In addition to training teachers in the alternative certification program, Mr. Hester became a trainer of trainers in the program. In 1998, Mr. Hester became state certified in the Florida Performance Measurement System, which qualified him to train administrators on how to observe and evaluate teachers. In 1999, he also became state certified in Clinical Educator Training, which further refined his training in the observation and evaluation of classroom teachers and helped him to develop strategies to improve the teachers’ performance. Mr. Hester was also a trainer in Clinical Educator Training, another observational tool used informally to coach teachers. In 2003, Mr. Hester was chosen to receive two weeks of intensive training in the America’s Choice program, a method for implementing standards-based education. Mr. Hester described the standards-based program as founded on the principle that all students can learn the same information and reach a uniform standard of achievement but that some students take longer and need more assistance to reach the goal. The “critical attribute” of standards-based education is differentiated instruction, whereby faster learners may move at their own pace while the lower achieving students receive remedial support from the teacher. Mr. Hester’s specialized training led to his appointment as a District standards coach from 2003-2007. As standards coach, Mr. Hester held workshops, coordinated breakout sessions on early release days, and created pamphlets setting forth pre-planning activities, among other duties. Former Fletcher principal Dane Gilbert described standards coach as an especially tough position in terms of “ruffling feathers” among the teaching staff. From 1998 through 2009, Mr. Hester served as an adjunct professor in the College of Education and Human Services at the University of North Florida. He taught several courses that included ESOL instruction. Mr. Hester testified that this college level teaching experience was one reason the District brought him into the ESOL program as a trainer. In addition to his redesign of the alternative certification program, Mr. Hester was also the author of the hybrid ESOL course. For a time he was the only PDF teaching the hybrid course because he was one of the few trainers in the District qualified to train teachers in all five ESOL subject areas. Mr. Hester testified that his development and teaching of the ESOL course gave him a reputation as the “trainer of last resort” for the School District. This reputation was enhanced by his willingness to work through holidays to assist desperate teachers in completing their ESOL requirements. From 2007 until his termination, Mr. Hester served as Fletcher High School’s PDF and instructional coach. As such he helped generate the school improvement plan, part of which involved coordination of Professional Learning Communities (“PLCs”). PLCs are a facilitated collaborative effort among teachers to improve instruction, including the preparation of lesson plans and development of teaching strategies. The 28 or so PLCs at Fletcher were organized according to academic subject or administrative duty such as “guidance” or “leadership.” As Fletcher’s PDF, Mr. Hester was also involved in the adoption of the requirement that teachers develop “lesson design notebooks.” These notebooks were more complex than simple lesson plans in order to enable the teachers to document everything happening in the classroom in terms of standards based education and the “Florida Educator Accomplished Practices” found in Florida Administrative Code rule 6A-5.065. The lesson design notebooks were used for evaluative purposes by the school administration. Mr. Hester attended the various PLC meetings and assisted the PLCs with teaching issues. Each PLC at Fletcher had a PLC binder placed in the front office. The documents generated at PLC meetings would be routed to Mr. Hester for his review and for retention in the binders. As the PDF, Mr. Hester was assigned to work with low performing “needs assistance” teachers to improve their performance. Mr. Hester was also the Advanced International Certificate of Education (“AICE”) program coordinator. AICE is a diploma program created by Cambridge University. As program coordinator, Mr. Hester worked closely with top students and their teachers. Mr. Hester was also Fletcher’s main data analyst as regards student and teacher performance. ESOL endorsements Of the two allegations that the School Board pursued at the hearing, the more serious was that Mr. Hester “repeatedly provided ESOL endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes.” The School Board asserted that Mr. Hester falsified ESOL documents by marking independent study participants “present” in classes they did not physically attend. Mr. Hester did not dispute that he accounted for the work performed by his independent study students by marking them present on attendance sheets for ESOL classes that Mr. Hester or another PDF was teaching. He testified that this was the method by which the District instructed him to account for his independent study students and was the method he had used since 1998. Mr. Hester’s testimony was corroborated by that of Ms. Patterson, who testified that she used the same method of recording the participation of teachers who were taking ESOL courses via independent study. See Finding of Fact 20, supra. Class rosters produced at the hearing confirmed that Ms. Patterson used this method. Ms. Patterson testified that this method of accounting for independent study was in place when she began teaching ESOL and was used throughout her years of teaching ESOL.12/ Both Mr. Hester and Ms. Patterson credibly testified that they had no intent to falsify District records. They were simply employing the record keeping method they had learned from other District personnel. The School Board has failed to demonstrate that Mr. Hester falsified ESOL documents merely by recording independent study participants present in classes they did not physically attend. The genuine controversy surrounds the assertion by several Fletcher High School teachers that Mr. Hester gave them credit for ESOL courses for which they had performed no work at all. Some of these teachers testified that they were unaware Mr. Hester had given them ESOL credits and only learned of receiving the credits during the course of the School Board’s investigation of Mr. Hester.13/ Mr. Hester contends that he never gave anyone credit for doing nothing. He claims that each of these teachers, in one way or another, earned independent study credit within the scope of discretion allowed him by the District until January 23, 2013. On that date, Ms. Patterson sent Mr. Hester an email titled “ESOL Independent Study other than ESOL Foreign Travel.” The body of the email was blank but it contained the following attachment: ESOL Independent Study other than ESOL Foreign Travel This is decided on a case by case basis and must be approved by Brenda A. Wims Director [sic] of Certificated/Non-certificated personnel for Professional Development and Kella Grant, Supervisor of Certification. All assignments must be submitted to the trainer who will then submit the completed work to Karen L. Patterson, ESOL Specialist for Professional Development. The request must meet the following Criteria: Classes are not open for Registration and termination is within a short period of time Death/illness of family member Illness that requires treatment or hospitalization of participant Cross content conflicts (Reading/ESOL) Participant assigned Summer School during the Summer course offerings and realizes after the fact that they have not satisfied their out of field status and a replacement is not available and this situation is verified by a Human Resources Administrator/Principal You must be able to complete the assigned task and meet with the ESOL Specialist for Professional Development, Diversity Specialist for Professional Development or Brenda A. Wims Brenda A. Wims, Director Karen L. Patterson, ESOL Specialist Mr. Hester testified that when he received this email, he understood it as an instruction to change the way he was handling independent studies. He was taken aback by the change, but thenceforth conformed his actions to the new instructions. The School Board denies that the scope of discretion granted to PDFs to award independent study credit was ever as broad as Mr. Hester claims and that the January 23, 2013, email was simply a restatement of longstanding District practice of which Mr. Hester was well aware. However, Ms. Patterson conceded that the purpose of the email was to clarify the policy to all the District’s trainers because some of them may have understood they could do things differently. Ms. Patterson’s testimony is that she “probably” sent the email to all of the District’s trainers, or “probably” provided it to them at a meeting. However, the record evidence shows Mr. Hester as the only recipient of the email, and shows that he received it at about the same time as the District received the anonymous letter that set in motion the investigation of Mr. Hester. As noted in Finding of Fact 23, supra, Mr. Hester claimed authority to award independent study ESOL credit via an “alternative delivery method” or “differentiated instruction.” The alternative delivery method involved Mr. Hester’s assessment of the teacher’s overall competence and his determination that the teacher had ESOL competency and had satisfied the ESOL course requirements despite not sitting for the ESOL classes. The School Board denied that any PDF was, or ever would be, given such broad discretion to award ESOL credit without completing any coursework. Mr. Hester testified that when he began teaching ESOL in 2008, he would go to Ms. Patterson for approval of ESOL independent study projects. Ms. Patterson at length told Mr. Hester and several other trainers that they were aware of the criteria for independent study established by Ms. Wims: the teacher must either have extraordinary family obligations or school duties that prevent her from taking the evening ESOL classes offered by the District. Mr. Hester testified that Ms. Patterson told him that she trusted him to make the call on an independent study project. Ms. Patterson told him that the teachers must meet the expectations of the ESOL course. As the subsequent findings indicate, Mr. Hester believed that in this conversation Ms. Patterson had authorized him to award ESOL credits to teachers who had demonstrated proficiency in the subject matter of the ESOL courses, even where the teachers did not actually perform any course work. This was the source of Mr. Hester’s “alternative delivery” method of obtaining ESOL credit disclaimed by the School Board. Ms. Patterson testified that she did not have the authority to authorize independent study projects, let alone delegate such authority to Mr. Hester. She conceded that she was the trainers’ conduit to Ms. Wims and that she may have relayed Ms. Wims approval of independent study projects to Mr. Hester in a way that gave him the impression that it was Ms. Patterson granting the approval. However, Ms. Patterson denied saying anything that would make Mr. Hester reasonably believe he could award ESOL credit to a School Board employee simply for being a good teacher. Supporting the testimony of Ms. Patterson and undercutting that of Mr. Hester is the fact that Mr. Hester did seek permission, via a June 10, 2011, email to Ms. Patterson, to complete an independent study with seven teachers who were making multicultural presentations at pre-planning. Mr. Hester claimed that Ms. Patterson gave him permission to do the independent study, though Ms. Patterson testified that she could not recall whether Ms. Wims approved. Mr. Hester testified that he asked permission to perform this independent study because it fell outside the scope of the criteria established by Ms. Wims, i.e., extraordinary family obligations or school duties. The School Board reasonably asks: if Mr. Hester admits that he needed to ask permission to conduct an independent study outside the scope of normal parameters, how can he claim the unilateral authority to award ESOL credit for “independent studies” involving no ESOL coursework whatever? The question points to a logical disconnect that Mr. Hester never adequately explained. Even if the undersigned is persuaded that Mr. Hester honestly believed he had the authority to award ESOL credit to “phenomenal” teachers on their personal and professional merits alone, there remain the questions of whether that belief was reasonable, what impact his unreasonably held belief had on the integrity of the District’s ESOL certification program, and whether Mr. Hester’s effectiveness as a teacher in the District has been irredeemably damaged. Other evidentiary elements support Mr. Hester’s version of both Ms. Patterson’s power to authorize independent study projects and the flexibility of the District’s policy of always requiring ESOL coursework for ESOL certification. An email chain in December 2011 involves Mr. Hester’s proposed independent study project for a teacher named Matthew Tracy. In one of the emails, dated December 7, 2011, and addressed to Mr. Tracy, Ms. Patterson, and the District’s Supervisor of Certification, Kella Grant, Mr. Hester wrote: “With Karen Patterson’s permission, I can work with Mr. Tracy and do an ‘independent study’ with the 2 classes in question and do it with him over the break.” The subsequent emails in the chain establish that Mr. Tracy received permission to complete the independent study with Mr. Hester. Ms. Wims is not named in or copied on any of the emails in the chain. Ms. Patterson testified that she conveyed the request to Ms. Wims and then conveyed Ms. Wims’ approval of the project to Mr. Tracy, but no written evidence of any involvement by Ms. Wims was provided at the hearing. Ms. Patterson did not explain why she failed to correct Mr. Hester’s statement that he was seeking “Karen Patterson’s permission,” or why Ms. Grant’s subsequent email appears to accept at face value that Ms. Patterson is indeed the person from whom Mr. Tracy should obtain permission for his independent study project. As to the strictness of the ESOL classwork policy, Mr. Hester pointed out that there was precedent for independent study projects outside of that parameter. In an email dated July 23, 2011, a teacher named Dayle Timmons wrote to Ms. Patterson as follows: I have recently been tagged for ESOL classes. I have 3 years before retirement and have been teaching ESE for 40 years. I figured I would retire before I got tagged—- after all these years. Anyway, as I have been thinking about taking the classes I have been wondering if there is a better way to use my time . . . . As you may know, Chets Creek [Elementary School] has opened a tutoring service at Portside, the 1000 home trailer park that is part of the Chets school zone. Teachers volunteer their time for one day a week for two hours to tutor. There are also other things going on through an agrrement [sic] between Portside[,] the school and Beach United Methodist church. Teacher [sic] also volunteer with Second Harvest once a month to deliver food, some are part of the Rising Tide which is a Sunday School that meets on Saturdays, etc. There’s a lot going on over there and certainly has given teachers that are involved an insight into the children that we serve that has never been possilbe [sic] before. We identified that community because it is where most of our lowest quartile, ESE and behavior problems live. It is also where most of our second language kids live. I am wondering if instead of taking a course, it would be possible to count the tutoring and service as a practicum instead. I’m thinking reading some text and identifying some specific strategies for second language students might be part of the course with data on how the strategy worked or anecdotal notes or something along those lines. As I was thinking about my own need and doing an independent study, I wondered about the bigger Chets community—- many of whom were not able to volunteer last year because they were already committed to taking an ESOL course. Do you think there is a possibility that we could work something out? Ms. Patterson testified that the District’s Professional Development office approved giving the Chets Creek teachers ESOL credit for the tutoring activities they were already performing. Eventually eight to ten teachers at Chets Creek were able to obtain credit for all five ESOL courses. Ms. Patterson conceded that this project did not meet the usual criteria for an independent study, but justified the credits because the teachers were teaching reading and math using ESOL manuals and strategies. When pressed, she allowed that a teacher in any classroom could deploy the same ESOL strategies as those used by the Chets Creek teachers. Christine Andrews has been a teacher at Fletcher since 2002. She teaches AP statistics and AP calculus. On March 16, 2012, Ms. Andrews and several other teachers received an email from Mr. Hester stating, “Please see me ASAP regarding your out of field status.”14/ Ms. Andrews immediately responded with an inquiry as to how she was out of field, to which Mr. Hester just as quickly responded, “ESOL.” Ms. Andrews was puzzled because she believed that her undergraduate program at the University of North Florida had included an ESOL component sufficient to satisfy the 60-hour requirement for a high school math teacher. Mr. Hester, who taught as an adjunct professor at UNF, testified that students at the university had been given the impression that their ESOL classes automatically gave them ESOL credit upon entering the profession and that they were often upset to learn this was not the case. Mr. Hester stated that it is up to the teacher to bring her college transcripts to the District ESOL office to obtain approval. The course Ms. Andrews took at UNF was titled “Teaching Diverse Populations.” Mr. Hester testified that UNF ran into trouble by telling students that this course satisfied ESOL requirements for all school districts in the state. In fact, UNF had not cleared the course with the Duval County School Board. Mr. Hester stated that there was a period of about three years, coinciding with Ms. Andrews’ attendance at UNF, when students wrongly believed that they would receive automatic credit for this course. Ms. Patterson confirmed that ESOL credit for college courses was not automatic. She stated that teachers are required to submit their college transcripts and seek credit from the District. Later on March 16, 2012, Ms. Andrews sent Mr. Hester an email stating that she had spoken to Natosha Earst-Bailey in the District’s Certification department. Ms. Earst-Bailey told Ms. Andrews that her 60 ESOL hours were showing on the computer and she should not have been flagged as out of field. Ms. Earst-Bailey suggested that Ms. Andrews provide her transcript to Mr. Hester so that the records at the school level would jibe with those of the district, as well as provide a copy to Ms. Patterson at Professional Development. Ms. Andrews did not provide her transcript to the school. It was left to Mr. Hester to press the issue of obtaining credit for her college work. In May 2012, Mr. Hester followed up on Ms. Andrews’ claim that she should already have the required ESOL credits and should not be considered out of field. On May 1, he sent emails to Ms. Earst-Bailey and Ms. Patterson requesting a review of Ms. Andrews’ UNF credits for possible ESOL credits. In his email to Ms. Earst-Bailey, Mr. Hester stated, “Also, I attached her points and she has 60 for Cross-cultural and has the paperwork for 60 hours earned at UNF.” On May 2, Ms. Patterson notified Mr. Hester that Ms. Andrews had been approved for the required credits. For purposes of this case, the credits claimed for the UNF class were uncontroversial. However, the School Board’s investigation of Mr. Hester raised the question of whether Ms. Andrews should have received “60 [points] for Cross-cultural” as claimed by Mr. Hester, because it appeared that Ms. Andrews had never taken a Cross-Cultural ESOL course. At the hearing, Ms. Andrews was shown the attendance sheet for a Cross-Cultural ESOL class that Mr. Hester taught from July through September 2011. The chart indicates that Ms. Andrews was present for every one of the twelve class sessions. Ms. Andrews testified that she did not attend any of the class sessions. Given the District’s method of tracking independent study students, it would not be unusual for a teacher’s name to appear on a class roster although the teacher was not physically present for the class. The problem for Mr. Hester is that Ms. Andrews testified that she did not take an independent study course from Mr. Hester or anyone else during that period. She testified that she knew nothing about this course or of having received credit for it until June 2013, when she was questioned during the School Board’s investigation of Mr. Hester. She had no memory of discussing her ESOL credits, or lack thereof, with Mr. Hester in 2011. Mr. Hester testified that Ms. Andrews had been adamant that her college work exempted her from taking ESOL courses, and was furious when Mr. Hester explained what she had to do get “in field.” Mr. Hester stated that he did not do many independent studies and that he chose them on a case by case basis. He testified that Ms. Andrews was “a phenomenal teacher” with a “fantastic rapport” with her students, who topped the state in AP statistics and calculus scores. However, she became very difficult when Mr. Hester relayed the news that she might not get credit for her “Teaching Diverse Populations” class at UNF. Mr. Hester stated that they sat down and discussed her situation. Ms. Andrews fretted that she would lose her job. Mr. Hester told her it was too late to enroll in an ESOL course, but that he would work with her on an independent study.15/ Mr. Hester testified that this was a “very, very rare occurrence” because Ms. Andrews did not meet the criteria established by Ms. Wims for independent study, i.e., she had no family obligations or school duties that ruled out attendance at a regular ESOL course. He testified that when he wanted to undertake an independent study for reasons outside of Ms. Wims’ criteria, he usually called Ms. Patterson for permission and that he "probably" did so in the case of Ms. Andrews. Ms. Patterson did not testify as to her recollection of a conversation with Mr. Hester about an independent study for Ms. Andrews. She clearly testified that she had no authority to authorize Mr. Hester’s independent study proposals. At most, she forwarded the proposals to Ms. Wims and relayed Ms. Wims’ decisions to Mr. Hester. Mr. Hester believed that losing Ms. Andrews would be a “major loss to education” and decided to pursue an independent study with her, employing the “alternative delivery” method, despite the fact that she did not meet the standard criteria for an independent study. He looked at everything he knew about Ms. Andrews as a teacher: the quality of her teaching, her extensive PLC work, her lesson design notebook, his classroom observations of and discussions with Ms. Andrews. He was familiar with the content of the course she took at UNF because he taught the course, and he took that course into account. Mr. Hester talked with ELL students to confirm that Ms. Andrews was using ESOL strategies to communicate with her students. Mr. Hester testified that by taking all of these factors into account, he was able to determine that Ms. Andrews met the competencies of the Cross-Cultural ESOL class for which he gave her credit. When pressed during cross examination, Mr. Hester conceded that Ms. Andrews did not perform an independent study16/ and did not receive any instruction from Mr. Hester to receive the 60 ESOL points for which she was credited. What did she do? Mr. Hester stated as follows: We looked at the PLC information, the binders and the information that she had, and embedded in those were the assessments, were the strategies, were the lesson plans, were the student strategies, all those areas, also, with her lesson design notebook, which included her lesson plans, her specific students with the strategies needed, so on and so forth. And I remember being in Ms. Andrews’ classroom at least once for observation. In other words, Ms. Andrews performed no classwork or dedicated work of any kind to obtain credit for Cross-Cultural ESOL. Mr. Hester believed that he was authorized to award ESOL credits based on the teacher’s competence and the quality of her teaching, provided the teacher in question was “phenomenal.” He believed that Ms. Andrews was qualified to receive the ESOL credits and stated that he had no intent to mislead anyone as to how Ms. Andrews received the credits. Mr. Hester testified that he was “confused” that Ms. Andrews claimed she knew nothing of the ESOL credits until the investigation in this case commenced. He stated that Fletcher’s computer system allowed teachers to view their transcripts and course credits and that Ms. Andrews could have accessed her records at any time. Julie Durden graduated from UNF in 2004 with a degree in English and American Sign Language (“ASL”) and had taught at Fletcher since 2004. She met Mr. Hester when she was taking alternative certification courses from him, and knew him thereafter in his role as PDF at Fletcher. Ms. Durden testified that prior to the 2013-2014 school year she taught ASL to hearing students and did not have any ELL students in her classes. In the 2013-2014 school year she was switched to teaching English. Ms. Durden stated that she was first flagged as out of field for ESOL during the 2013- 2014 school year, although documentary evidence presented at the hearing indicated that Mr. Hester sent Ms. Durden an email regarding her out of field status on March 16, 2012.17/ At the hearing, Ms. Durden was shown the attendance sheet for the Cross-Cultural ESOL class that Mr. Hester taught from July through September 2011, the same attendance sheet that had Ms. Andrews’ name on it. Ms. Durden is listed as attending all but one of the twelve class sessions. Ms. Durden testified that she did not sign up for this course, did not attend the classes, and performed no independent study to qualify for ESOL credit in this class. Ms. Durden stated that she knew nothing of receiving credit for this class until she was interviewed during the School Board’s investigation of Mr. Hester. Mr. Hester testified that Ms. Durden first came to him during the 2011-2012 school year, when he notified her that she was out of field. She did not believe she needed ESOL because she was teaching ASL, but Mr. Hester informed her that she needed 60 hours of credit. It was late in the semester, too late to sign up for an ESOL class, and she did not know what to do. Mr. Hester testified that he would be willing to look at Ms. Durden’s activity in establishing “Challenge Day” at Fletcher and at her pre-planning activities during the 2010-2011 school year as equivalents under his “alternative delivery” independent study method. “Challenge Day” was a national program that Ms. Durden imported to Fletcher. It is a three-to- four-day program on diversity, designed to break down barriers between students, eliminate cliques and bullying, and create a safe environment for all students. The program was such a success at Fletcher that it spread to every high school in Duval County. Ms. Durden testified that she put in a lot of work to establish and maintain the Challenge Day program. She conceded that there may be some subject matter overlap between Challenge Day and ESOL, but could not fathom how her Challenge Day activities could be considered a substitute for an ESOL class because they have nothing to do with teaching strategies for ELL students. She denied that Mr. Hester ever told her she could get ESOL credit for running Challenge Day at Fletcher. She did admit that Mr. Hester reviewed her lesson design notebook, though she assumed he did so in his role as Fletcher’s instructional coach. Ms. Durden testified that pre-planning in-service courses are organized for teachers to attend during the week before the school year begins. She stated that she helped with the training on one occasion, but that Mr. Hester never told her that she could get ESOL credit for helping with the pre-planning in-service training. She had no idea whether Mr. Hester had received permission to give her ESOL credit for her Challenge Day or pre-planning in-service activities. Mr. Hester testified that Challenge Day is “all Cross Cultural ESOL” because it “breaks down barriers of bullying, you know, racism, and sexism, and everything.” He stated that he told Ms. Durden that she did not have to attend the Cross Cultural ESOL class, that he would “take care of it.” They talked about the work she had done for Challenge Day and pre- planning and how that work equated to the expectations of the ESOL course. As noted above, Ms. Durden denied that any such conversation occurred. Mr. Hester testified that he had a telephone discussion with Karen Patterson about the extent to which preparations for Challenge Day could satisfy the requirements for Cross Cultural ESOL. He stated that Ms. Patterson told him that, “In the end, does what they do meet the expectations of the course?” Mr. Hester could produce no written memorandum to confirm this conversation. Ms. Patterson was not specifically asked about Challenge Day, but denied having any conversation that could be construed as giving Mr. Hester permission to award ESOL credit via his “alternative delivery” method. At the time of the hearing, Sherry Murrell was in her tenth year as a geometry and intensive math teacher at Fletcher. Ms. Murrell’s name appears on the class roster for the same 2011 Cross Cultural ESOL class that included the names of Ms. Andrews and Ms. Durden. She is listed as attending each of the twelve class sessions. Ms. Murrell testified that she had completed all of her ESOL requirements in June 2005. She was not out of field in 2011 and had no need to take an ESOL course. She stated that she was in Mr. Hester’s office one day when he asked her to attend one of his courses. She told him she didn’t need professional development points. He replied that she just needed to say that she sat in the class. She told him that she needed to be in her classroom and couldn’t be in two places at once. Mr. Hester persisted. At that point, Ms. Murrell needed to leave to pick up her own children and told Mr. Hester, “Sure, whatever,” on her way out the door. Ms. Murrell testified that she did not sign up for or attend the 2011 ESOL class. She did not complete an independent study for the course credit. She did not learn she was on the attendance sheet until a School Board investigator contacted her in June 2013. Ms. Murrell’s name also appears on an attendance sheet for an ESOL Curriculum & Materials course that Mr. Hester taught from January to April 2012. The sheet indicates that she attended eleven out of twelve class sessions. Ms. Murrell testified that she did not attend this course or perform any independent study activities for this course. Again, she only learned that her name was on the attendance sheet from the School Board investigator. Ms. Murrell testified that about a week and a half before the investigator came to the school, a student delivered to her a manila envelope containing a completed “course activities checklist” for an ESOL Curriculum & Materials class taught during Spring 2012 and for a Hybrid ESOL class taught in Spring 2012. Both documents were signed by Mr. Hester and dated April 3, 2012. These are the documents that a course instructor completes to verify that a teacher has satisfactorily completed all the required activities in a given ESOL course. Ms. Murrell testified that she did not take either of these courses. At lunch that day, Mr. Hester asked Ms. Murrell if she had received the envelope and she said yes. He said nothing more about it, and Ms. Murrell gave it no more thought until the investigator arrived. She provided the investigator copies of the checklists. Ms. Murrell recalled another conversation with Mr. Hester about an ESOL class in which he told her she went “above and beyond” the course requirements. Ms. Murrell testified the conversation went as follows: I said I didn’t sign up for that class. He’s like, Well, I can make it an independent study. I was like, You can do that? And he said, Yes. And I’m like, Well, isn’t there some course work that I have to do online? He’s like, No, don’t worry about it. You’ve gone above and beyond. He goes, You’ve met all the criteria. When Ms. Murrell protested that there must be something she needed to turn in to show the course work, Mr. Hester responded that she shouldn’t worry about it. He would make it an independent study and take care of everything. Mr. Hester testified that Ms. Murrell was one of the rare “phenomenal” teachers who merited ESOL credit for the quality of her teaching. He recalled Ms. Murrell telling him that she had learned it was possible to “bank” ESOL points, meaning that extra ESOL points may be carried over and applied to a teacher’s next recertification period. Ms. Murrell expressed a desire to take ESOL courses for banking purposes but was unable to do so because she had two young children at home. Mr. Hester testified that he told Ms. Murrell, “Well, Sherry, with what you're doing at Fletcher, we could be able to show that you have competency in this course.” He denied ever telling Ms. Murrell that she should tell people she sat in one of his classes. Mr. Hester testified that he sent the completed course checklist to Ms. Murrell in April 2013 at her request. She was concerned about the ongoing investigation and was worried because she couldn’t find the checklist sheet that proved she had completed the competencies for the class. She asked Mr. Hester for another checklist sheet and he provided it via interoffice mail. Mr. Hester stated that he could not understand why Ms. Murrell would deny knowing about the ESOL class attendance sheets. Mr. Hester described Ms. Murrell’s qualifications for the ESOL credit as very similar to those of Ms. Andrews with the addition of extensive pre-planning training. Ms. Murrell also performed teacher trainings for Compass Odyssey, a proprietary program used by the School Board, and testified that she never missed a PLC. Her lesson design notebooks were “overflowing.” Mr. Hester believed that Ms. Murrell easily met the substantive criteria for obtaining the ESOL credits he awarded, despite her never taking a course or an active independent study program from him. Mr. Hester clearly remembered asking Ms. Patterson for permission to do an independent study with Ms. Murrell. Heather Kopp graduated from UNF in 2006 and started teaching at Fletcher in 2007. After two years she transferred to Mandarin High School. She returned to Fletcher two years later. Ms. Kopp testified that she took ESOL courses as an undergraduate at UNF and was told she needed no further ESOL courses. Ms. Kopp later received an out of field notice. She contacted the District office and explained that at UNF she had performed a 50-hour internship and wrote a case study to fulfill her ESOL requirements. The District awarded her the ESOL credit. Ms. Kopp testified that she has taken no ESOL courses since graduating from UNF. At the hearing, Ms. Kopp was shown the attendance sheet for a Methods of Teaching ESOL course taught by Mr. Hester from January to March 2009. Ms. Kopp is listed as present at every session of the course. Ms. Kopp testified that she did not sign up for the class, did not attend the class, and did none of the course work or independent study work toward obtaining credit for the class. Ms. Kopp was also shown the attendance sheet for an ESOL: Curriculum & Materials class taught by Mr. Hester from January to March 2010. Ms. Kopp is listed as present at every class session. Ms. Kopp testified that she did not sign up for the class, did not attend the class, and did none of the course work or independent study work toward obtaining credit for the class. Ms. Kopp testified that she first learned of her purported participation in these classes during the School Board’s investigation in this case. Mr. Hester testified that Ms. Kopp came to him because she was out of field and didn’t know what to do. Her husband worked in the evenings and she had two small children and could not attend evening ESOL courses. Mr. Hester obtained permission to work with Ms. Kopp on an independent study. At the time of the courses, Ms. Kopp was working at Mandarin High School but lived near Fletcher, where Mr. Hester taught the courses. Mr. Hester gave Ms. Kopp access to the course online. She independently performed all of the course work and left the written work in Mr. Hester’s mailbox at Fletcher. Mr. Hester testified that Ms. Kopp performed all of the course work in both of the ESOL classes for which he gave her credit. Ms. Kopp denied working with Mr. Hester on independent study classes in 2009 and 2010. She did not recall telling Mr. Hester about her husband or her children making it hard for her to attend evening classes. Ms. Kopp did recall telling Mr. Hester that she had satisfied her ESOL requirements at UNF. Catherine Johnson teaches English at Fletcher. She started at Fletcher in 1998. She took a two-year leave of absence that ended with her return to Fletcher on December 1, 2008. At the hearing, Ms. Johnson was shown the attendance sheet for an ESOL: Curriculum & Materials course taught by Mr. Hester from January through March 2009 at Fletcher. The sheet indicates that Ms. Johnson attended all but one of the nine class sessions. Ms. Johnson testified that she did not attend the class, did not sign up for the class, did no course work for the class and performed no independent study in relation to the class. Ms. Johnson was also shown the attendance sheet for a Cross-Cultural ESOL course taught by Mr. Hester from January to April 2011. Ms. Johnson testified that she had nothing to do with this course. Ms. Johnson recalled that in December 2010 she received an out of field notice for ESOL. She talked to Mr. Hester about it, telling him that she was not sure exactly which ESOL class she needed to take. Mr. Hester consulted with Ms. Patterson, who wrote to him that Ms. Johnson needed part 2 of Cross-Cultural Communications to complete her ESOL endorsement. Mr. Hester passed this news along to Ms. Johnson. Ms. Johnson asked Mr. Hester what she needed to do to complete the ESOL endorsement. Mr. Hester told her just to consider it independent study. He handed her two discs to download to her computer in case of an audit. Ms. Johnson testified that she tried to download the disks but either they were defective or she was doing something wrong. She brought them back to Mr. Hester and asked him to come to her classroom and try to download them to her laptop. Mr. Hester took the disks from her and told her that he knew her reputation as a classroom teacher. Ms. Johnson was a quality instructor and had fulfilled the requirements of part 2 of the Cross-Cultural Communications course. Ms. Johnson stated that because Mr. Hester was her PDF, she took him at his word. She did no work for the ESOL course. Ms. Johnson testified that Mr. Hester later made reference to having done her a “favor.” The reference was not specific, but she believed he was referring to having given her the ESOL credit. She stated that Mr. Hester also alluded to having done “favors” for Heather Kopp. She did not pursue the issue with Ms. Kopp because she didn’t want to make her uncomfortable. Mr. Hester testified that Ms. Johnson was the third of the three “phenomenal” teachers who received ESOL credit because of the quality of their teaching. He stated that Ms. Johnson came to him “in rather of a panic” after being notified she was out of field. Mr. Hester testified that he was very familiar with her work, having taken “needs assistance” teachers to her classroom to see how it is done. He knew her PLC work and was familiar with her lesson design notebook. Mr. Hester stated that he gave Ms. Johnson the syllabus for the Cross-Cultural ESOL course and told her that she could either come to the class or he could look at her lesson design notebook and her work in the PLCs and see how well these items met the course criteria for the class. He testified that Ms. Johnson was very happy to see that her classwork satisfied all of the requirements of the ESOL class syllabus and that she would be able to obtain her endorsement. Mr. Hester was certain that he and Ms. Patterson discussed Ms. Johnson’s situation and that Ms. Patterson okayed the independent study option in her case. Mr. Hester agreed that he did not give Ms. Johnson any work to do. He denied giving her discs or CDs to download into her computer. There was no need to do so because all of the course materials were on the District website. He gave her the course syllabus for Cross-Cultural ESOL and told her she could use that as documentation if she needed it. He denied giving her the syllabus “in case of an audit.” He gave her the syllabus because she asked for documentation of the course. Mr. Hester testified that he wasn’t “giving” anything to Ms. Johnson. She earned the ESOL credit because of the extra work she did with the PLC groups, her status as an AICE, her lesson design notebook and his observations with her in the classroom and the PLCs. At the time of the hearing, Josh Corey had been a teacher at Fletcher for twelve years. He teaches leadership and physical education and also serves as the head football coach, assistant athletic director and student activities director. Mr. Corey testified that he had known Mr. Hester for fifteen years, since they taught together at Fletcher Middle School. Mr. Corey testified that he was up for recertification in 2013 and looked up his records. He was surprised to see that he had five ESOL courses, or 300 hours, to his credit. He believed that he only had 180 hours, and was puzzled by the last two courses he was credited with completing in 2011. Mr. Corey was shown the attendance sheet for a Methods of Teaching ESOL course taught by Mr. Hester from April to June 2008 and agreed that he attended the class and did the course work. Mr. Corey was shown the attendance sheet for an ESOL: Curriculum & Materials course taught by Mr. Hester from January to March 2009 and agreed that he did independent study work through Mr. Hester for this course. Mr. Corey was coaching softball at the time and was unable to physically attend the class. Mr. Hester told him that he was approved through the District to do an independent study. Mr. Hester gave Mr. Corey the readings and assignments and Mr. Corey did the work on his own time. Mr. Corey was shown the attendance sheet for an Empowering ESOL Teachers course taught by Mr. Hester during July 2010. Mr. Corey testified that he did not physically attend the class but he performed an independent study through Mr. Hester. He was allowed to do independent study for this course because he was teaching drivers’ education and working at the school during the summer. Mr. Corey testified that the 2009 and 2010 courses were the only independent study courses he ever took from Mr. Hester. He was shown the attendance sheet for an ESOL: Applied Linguistics course taught by Mr. Hester from January to April 2011 and the attendance sheet for a Cross-Cultural ESOL course taught by Mr. Hester on different nights during the same period. Mr. Corey’s name (along with the name of his wife, Michelle Corey, a kindergarten teacher at Seabreeze Elementary) appeared on the sheets for both classes. Mr. Corey testified that he did not attend either of the 2011 classes. He was coaching softball during this time and could not have attended classes either after school or in the evening. He did not sign up for the courses and could not recall having any discussions with Mr. Hester about them. He only learned that he had been credited for the courses when he pulled his points for recertification in October 2013. Mr. Hester testified that Mr. Corey wanted ESOL points for banking purposes. Mr. Corey’s wife, Michelle, had come back into teaching after taking time off to have a child and also needed ESOL courses. They had a problem because Mr. Corey coached in the evenings and they had two small children. Therefore, Mr. Hester allowed them to do independent studies and turn in their work in the same fashion Ms. Kopp had. Mr. Hester testified that the work was turned in with both Coreys’ names on it. He assumed they collaborated on the work and gave them both credit. Mr. Hester stated that collaboration was encouraged in the ESOL independent studies because it mimicked the sharing of activities and experiences that goes on in the ESOL classroom. Mr. Hester agreed that Mr. Corey did not attend the 2011 ESOL classes, but stated that the Coreys did the work independently. He assigned them all of the activities and readings they would have done in the class, and they submitted the completed work to him.18/ Andrew Davis testified that he went through the alternative certification program, finishing at the end of his third year of teaching in 2010. He taught intensive reading from 2008 through spring 2013, then switched to physical education. He is a football coach. Mr. Hester was the instructor for Mr. Davis’ alternative certification course and acted as a mentor to Mr. Davis as he began his teaching career. At the hearing, Mr. Davis was shown attendance sheets and/or completion reports for the following classes: Methods of Teaching ESOL, taught by Mr. Hester from January to March 2009; Empowering ESOL Teachers, taught by Mr. Hester during July 2010; ESOL: Applied Linguistics, taught by Mr. Hester from January to April 2011; Cross-Cultural ESOL, taught by Mr. Hester from January 2011 to April 2011; and ESOL: Curriculum & Materials, taught by Mr. Hester in spring 2012. Mr. Davis testified that he did not attend any of the classes in the 2009 Methods of Teaching ESOL, despite his being marked present for each of the nine class sessions. He testified that he performed an independent study with Mr. Hester, who told him that things he was doing in the classroom or while coaching counted toward his credit for the class. Mr. Hester also assigned him readings for the class. Mr. Davis testified that he did not attend any of the classes in the 2010 Empowering ESOL Teachers course, despite his being marked present for six of the seven class sessions. He did an independent study consisting of “whatever Mr. Hester asked me to do, whether it was looking at articles or things like that.” Mr. Davis was coaching football during this period, and stated that Mr. Hester told him that coaching football counted toward his independent study. Mr. Davis’ testimony was the same as to all five of the listed ESOL classes. He did not attend the classes. He performed an independent study with Mr. Hester, but only vaguely recalled what Mr. Hester had him do for the course. He mostly recalled being assigned articles to read. Mr. Davis could not recall if his alternative certification course with Mr. Hester provided him with ESOL credit. Mr. Hester confirmed that Mr. Davis received 300 credits over the course of three years doing independent studies for ESOL courses. Mr. Davis was coaching girls’ flag football among other things and his coaching duties conflicted with the ESOL classes. Mr. Hester testified that he employed Ms. Wims’ criteria to allow Mr. Davis to take independent study courses because his school duties did not permit him to take regular ESOL classes. Suzanne Harman has been a teacher since 1974, and has taught English at Fletcher since 1996. She stated that she was out of the classroom from 1986 to 1996 because of her husband’s career in the Navy. On March 25, 2011, Ms. Harman received an email from Natosha Earst-Bailey informing her that she was out of field for ESOL and must document completion of the required ESOL credits by December 31, 2011. Ms. Harman forwarded the email to Mr. Hester and asked him what she needed to do. Ms. Harman testified that she had given ESOL no thought prior to this email, as it did not even exist during her early days in teaching. She heard from fellow teachers that Mr. Hester was the person to see about ESOL credits. Ms. Harman went to see Mr. Hester. Her testimony is unclear as to how much time passed between her receipt of the email from Ms. Earst-Bailey and her meeting with Mr. Hester, but it appears from the context of her testimony that she waited until October 2011. Ms. Harman testified that when she mentioned that her friends had advised her to see him, Mr. Hester “looked up kind of funny” and she wondered whether she had said something wrong. He asked who told her that. She replied that it was just a couple of her friends. Mr. Hester stated, “Well, they need to watch what they tell people.” Ms. Harman testified that Mr. Hester then pulled out a piece of paper, later identified as a “course artifacts checklist” for the Cross-Cultural ESOL course, and started going over the items on the checklist, saying, “I’ve seen you do this in your classroom. Ms. Harman stated that “he was signing, signing, and then handed a piece of paper to me when he finished initialing.” The document states that Suzanne Harman took the seminar in summer 2011. Mr. Hester signed the “statement of completion” as the approving instructor and dated it October 5, 2011. He initialed every item on the checklist, including eleven “journal entries.” The form states that “All articles are to be read and each summary is to be 2 paragraphs long.” Ms. Harman testified that she did not complete any of the activities checked off on the form. The problem with Ms. Harman’s testimony that Mr. Hester out of the blue completed a checklist for her on October 5, 2011, is that her name appears on the attendance sheet for the Cross-Cultural ESOL class taught by Mr. Hester from July through September 2011. She was shown this attendance sheet at the hearing and confirmed that she did not attend any of the twelve classes in the course, but was not asked how Mr. Hester could have known to place her on the class list in July when she did not come to him for help until October.19/ Mr. Hester testified that Ms. Harman was a needs assistance teacher, meaning that she was labeled by the Fletcher administration or the District as needing help because she was not meeting classroom expectations. Mr. Hester worked with Ms. Harman quite a bit at the behest of Fletcher’s assistant principal supervising the English department. Mr. Hester testified that Ms. Harman tried very hard in class, but was weighted down with personal issues at home. Mr. Hester agreed that Ms. Harman told him that other teachers said he was the person to see about ESOL but he denied telling her they needed to keep quiet about it. He stated that Ms. Harman requested an independent study similar to Catherine Johnson’s, i.e., an “alternative delivery” award of ESOL credit based on her merits as a teacher. Mr. Hester told Ms. Harman that it doesn’t work that way. Ms. Harman was a little irate because she thought she was as good a teacher as Catherine Johnson. Mr. Hester testified that he would never sit down with a teacher and tick off boxes on a checklist to give ESOL credit. Before giving credit under the alternative delivery method, he would examine the teacher’s PLC group, individual assessments, collective assessments and lesson design notebooks. He would observe the teacher in the classroom. The scene described by Ms. Harman did not happen. Mr. Hester did sit down with Ms. Harman to go over the checklist, but only when she came in with her completed portfolio at the end of the 2011 independent study. Mr. Hester stated that he allowed Ms. Harman to do an independent study because she was having so many issues at home with her family. Mr. Hester made time to sit with her to go over the work, mostly readings and activities, once or twice a week. Mr. Hester testified that Ms. Harman did more work for the Cross-Cultural ESOL class than is indicated on the checklist he signed on October 5, 2011. Ms. Harman was on the recipient list for the same March 16, 2012, out of field email that Mr. Hester sent to Ms. Andrews and Ms. Durden. On the same date, Ms. Harman sent Mr. Hester the following response: “Is it time for me to take another class with you?” Ms. Harman testified that she was not sure what Mr. Hester would expect of her, because she had heard that some people had taken classes for their ESOL credits in the time since Mr. Hester allegedly gave her the checklist. Mr. Hester told Ms. Harman that he was teaching a hybrid ESOL class on Tuesday nights in a portable classroom at Fletcher. The attendance sheet for this class indicates that Ms. Harman was present for the Curriculum & Materials portion of the hybrid class for the seven sessions held between April 24 and June 5, 2012. Ms. Harman testified that she did indeed sign up for the course and that she attended every session except the first. She stated that she was having difficulties during this period with her mother, who had been put on a new Parkinson's disease medication that caused her to stop breathing. Her mother was rushed to the hospital via rescue unit three times during the time Ms. Harman was attending the class. Ms. Harman twice emailed Mr. Hester to say she might not make the class, but each time she attended. However, Ms. Harman was not able to complete all the work for the class in timely fashion. At the last class, when the rest of the students were turning in their work folders, Ms. Harman told Mr. Hester that she had not been able to finish. He told her to get the work to him when she could. On June 28, 2012, Mr. Hester sent an email to Ms. Harman thanking her for “completing the Hybrid ESOL class this spring.” He attached a copy of the artifacts checklist. He wrote that Ms. Harman received 60 ESOL points for the course. Ms. Harman testified that she read this email with relief. She believed it meant that she did not need to submit her uncompleted coursework, that her class attendance and the work she had done were sufficient for class credit. On January 25, 2013, Mr. Hester sent Ms. Harman an email stating that he had to see her about her ESOL work. Ms. Harman testified that she went to see Mr. Hester the next day. He told Ms. Harman that he needed to see her work folder from the class. She was shocked and asked why he needed it seven months after the class. Mr. Hester told her that something had been said about the way he gives out ESOL points, and that he needed her folder. Ms. Harman testified that she told Mr. Hester she hadn’t talked to anyone. Mr. Hester responded that he didn’t trust anyone. Ms. Harman promised to look for the folder but she wasn’t sure she had kept it. She was able to find a few pieces of her work from the class and she sent those to Mr. Hester with a note stating that this was all she could find. Mr. Hester did not ask her for anything else. In May 2013, Mr. Hester reported to Ms. Patterson that Ms. Harman did not complete the agreed-upon work that he assigned her to complete the Hybrid ESOL class in which she was enrolled from April to June 2012. His email to Ms. Patterson stated as follows, in relevant part: It was agreed upon that she would be given more time to complete the required work and have it ready by September 2012 due to her extreme family situation. I gave her another extension to the holidays to complete the work (I know that I am not allowed to give that amount of time). However, I could not get the information needed. I asked for her work and finally received an incomplete packet (see attached) April 1, 2013. I still waited until the end of April (April 28, 2013) to see if she would come to me and complete the necessary work—- she did not. I am asking that she not be awarded the 60 points for ESOL: Curriculum & Materials. Please have these points removed from her Master Plan Points. Ms. Harman received a courtesy copy of this email. She testified that she was shocked by it because she and Mr. Hester had not had the referenced discussions. She did not think that the District actually took away her points for the class. Mr. Hester testified that he had talked to Ms. Harman many times about the need to send in her work before he sent the email of January 23, 2013. His email should not have been a shock because of their many conversations. Mr. Hester stated that the email Ms. Harman received in June 2012, stating that she had completed the course, was a bulk email sent to all the course participants. Mr. Hester and Ms. Harman had made an agreement. Because she was having so many family issues, he would give her more time to get her portfolio finished. When the teachers came back in the beginning of August, Mr. Hester met with her and told her that he still needed her class portfolio. According to Mr. Hester, there was no surprise intended and no vindictiveness involved in his email to Ms. Patterson. By the time he sent it, Mr. Hester knew that he was under suspicion. He considered Ms. Harman’s case a loose end he needed to tie up so that no one could say he was giving away ESOL points that the teachers had not earned. Nicole Conrad graduated from Flagler College in 2005 and taught at Fletcher from 2007 to 2013. She now teaches at Lake Shore Middle School in Jacksonville, after being “surplused” from Fletcher. Ms. Conrad was the head coach of the girls’ varsity soccer team at Fletcher and assisted with softball and cross country. She taught Spanish I and a career and college readiness course. Ms. Conrad believed that her classes at Flagler had satisfied all of her professional ESOL requirements. However, on May 5, 2010, she received an email from the District’s distance learning coordinator stating that she needed ESOL points before the June 30 deadline. Ms. Conrad did not believe she should have received this notice but she nonetheless went to Mr. Hester to find out how to proceed. Ms. Conrad testified that Mr. Hester told her that because she was a coach she didn’t need to do anything to obtain the ESOL credit, “that I was taken care of, or exempt, or whatever it might be. He said after-school duties.” Ms. Conrad responded by saying “I felt like he was a hustler.” Mr. Hester did not like that comment. Ms. Conrad testified that his answer was, “If I was a hustler, I’d be making money.” Ms. Conrad stated that she called Mr. Hester a “hustler” because it seemed that certain people were required to do more work for ESOL credit than others, depending on their relationship with him. Mr. Hester appeared to use his position to gain leverage over people. Because she did not trust Mr. Hester, Ms. Conrad declined the “exempt coach” option and insisted on doing work to obtain her ESOL credits. Mr. Hester gave her a packet of work to do, which she completed in a week or two. Mr. Hester recorded Ms. Conrad as attending an ESOL: Methods class that he taught from February to May 2010. Ms. Conrad testified that she did not in fact attend any class sessions but that she independently did the work for this class. On cross-examination, Ms. Conrad conceded that before her out of field notice and the meeting with Mr. Hester at which he told her she need do nothing for her ESOL credit, Mr. Hester had sent her a lengthy email outlining her options for obtaining ESOL credit, none of which involved “doing nothing.” The email, dated March 29, 2010 (more than a month prior to the date on which Ms. Conrad testified she first learned she was out of field), stated as follows, in relevant part: As a summary of our conversation last week regarding ESOL and your expectation to complete 60 hours to keep you [sic] job, I am listing your options. You can petition the district ESOL office to allow your college courses [to] count for credit. You need to remember the following: The state university systems did not get clearance from the state that those course [sic] can be used as ESOL credit. The district and the state is [sic] under no obligation to honor these course [sic]. If you plan on petitioning the district to allow the courses, you have to: Get an Official-certified copy of your college transcripts, Drop off the transcripts (in person) to Karen Patterson . . . . This process may take up to 3 months (average wait time) and there is NO GUARANTEE that you will receive credit for the classes. You can get into the classes that I am teaching at Mandarin HS. They are every Tuesday starting at 2:00 p.m. I will provide you some make up work to get you caught up from the classes that you missed. The next class is tomorrow March 30th at Mandarin HS at 2:00 p.m. You can get with Carmen Meyer and see if she has room in her class that is going on right now. You can do the Independent Study option that we discussed. You will receive a listing of assignments of what you need to complete and the dates and times we will meet to review the information. I will have this ready on the Tuesday after break for your review (if you plan to complete this option). Please let me know what you plan to do. Ms. Conrad conceded that this email indicates that Mr. Hester was trying to help her by offering a number of legitimate options for obtaining her ESOL credits. However, she continued to state that Mr. Hester later offered to “do a favor” and give her the credit based on her coaching duties alone. Mr. Hester testified that Ms. Conrad was identified by the District’s World Languages supervisor as a needs assistance teacher. Ms. Conrad was friendly with Mr. Hester when she started at Fletcher, but that ended when he started working with her as a needs assistance teacher. Their relationship soured to the point that Mr. Hester moved away from performing direct classroom observations of her. Dr. Joanne Davis, the World Languages supervisor, took over the task of observing Ms. Conrad and worked for three years in an attempt to improve Ms. Conrad’s classroom performance. A sample of Dr. Davis’ observations was entered into the record, and discloses many problems with Ms. Conrad’s classroom performance, including her failure to implement any of Dr. Davis’ prior suggestions. Mr. Hester testified that Ms. Conrad came to him at some point to talk about being out of field. She was “annoyed” about that because she believed she had taken the necessary ESOL courses at Flagler. Mr. Hester outlined her options, which are reflected in the March 29, 2010, email quoted above. Ms. Conrad chose the independent study, did the work assigned by Mr. Hester, and earned the ESOL credit. Mr. Hester denied telling Ms. Conrad that he would give her the credit just for being a coach. Mr. Hester confirmed Ms. Conrad’s version of the “hustler” conversation, except that he was in no way bothered or concerned about it. He testified that he considered Ms. Conrad a friend at the time and that they were both joking. Dane Gilbert, the principal at Fletcher High School from July 1, 2006, to June 30, 2012, testified that he learned in spring 2013 that he had received 60 points for a hybrid ESOL class taught by Mr. Hester from May to June 2012. The attendance sheet for the ESOL: Testing & Evaluation portion of the hybrid class indicates that Mr. Gilbert attended six out of the seven class sessions. Mr. Gilbert testified that he did not attend any of the classes and did not perform any independent study to obtain the credits awarded for the class. Mr. Gilbert testified that, to his knowledge, he did nothing directly for this ESOL class. He noted that he had done a lot of work with Mr. Hester in the area of testing and evaluation, though not in the area of ESOL. Mr. Gilbert testified that as principal he green- lighted Ms. Durden to initiate the Challenge Day program at Fletcher and that he did a lot of work on the program. Mr. Hester testified that Mr. Gilbert indeed received credit for “Empowering ESOL,” which is testing and evaluation. He stated that he and Mr. Gilbert had a conversation about it during the period when Challenge Day was going forward. Mr. Gilbert and Ms. Durden were instrumental in bringing this program to Fletcher. Mr. Hester opined that the Challenge Day program “is all Cross-Cultural ESOL. It really breaks down the barriers of bullying, you know, racism, and sexism, and everything.” Mr. Hester was also working with Mr. Gilbert on his principal evaluation binder, which required case study. He told Mr. Gilbert that all of this work could fit the criteria for ESOL testing and evaluation credit. At that point, Mr. Gilbert liked the idea of banking the ESOL points for his recertification and okayed Mr. Hester’s plan to give him the credit. Mr. Hester stated that this was the extent of their discussion about ESOL and that he saw to it that Mr. Gilbert was awarded the credits. Mr. Gilbert testified that he subsequently retired and didn’t give much thought to the ESOL credit matter until he was contacted during the School Board’s investigation of Mr. Hester. Mr. Gilbert credibly testified that he relied on Mr. Hester’s knowledge of the ESOL certification criteria to accept the credits that Mr. Hester offered. Personal conflicts Mr. Gilbert testified that Mr. Hester came to Fletcher as a standards coach during his second year as principal. Mr. Hester’s position evolved into his becoming the PDF and the AICE coordinator for Fletcher. Mr. Gilbert believed that Mr. Hester was very good at his job and was good for Fletcher. Mr. Hester was in a difficult spot because he was in a teaching position, not an administrative position, yet appeared to have authority over the regular faculty. Mr. Gilbert compared the friction caused by Mr. Hester’s job to other “quasi-administrative” positions such as athletic director and activities director. The employees are teachers but they are not in the classroom and they take care of administrative duties. These “quasi-administrative” teachers tend to ruffle feathers and are not popular with the rank and file teachers. Mr. Hester confirmed that it was hard at times to be the PDF at Fletcher because not all of the teachers liked doing what the District and the state required to maintain their professional standing, such as the preparation of lesson design notebooks. Several teachers testified about their personal conflicts with and unease about Mr. Hester and his role at Fletcher. Ms. Durden, for example, said that it was well known around the school that one did not want to get on the wrong side of Mr. Hester or he would make your life hell as a teacher. For his part, Mr. Hester agreed that most of the animosity toward him was due to his position at Fletcher but he also believed that certain of his accusers were motivated by homophobia, as he is an openly gay man. Ms. Harman testified that Mr. Hester once directed a very inappropriate joke to her. She stated that she entered Mr. Hester’s office one morning to ask him a question and found the room full of men, coaches mostly, who were talking and laughing. Mr. Hester said to the gathering, “I’ll ask Harman. Harman, do you know what Ballchinia is?” Ms. Harman said, “Ballchinia?” Mr. Hester said, “Yes, it’s a condition where you have balls on your chin. Gay men are prone to have it.” Ms. Harman testified that at that point she realized Mr. Hester was making a crude reference to oral sex for the amusement of the men in the room. She turned around and walked out. She testified that she did not immediately report the incident to anyone in authority, but that she did tell Mr. Gilbert about it at a later time, stressing the embarrassment Mr. Hester had caused her. She did not know whether Mr. Gilbert ever followed up on the matter. Mr. Gilbert denied that Ms. Harman ever came to him to talk about Mr. Hester telling a sexual joke that upset her. Mr. Hester was not questioned about this incident. Ms. Conrad testified that when she was on good terms with Mr. Hester, she would hang out in his office. A woman who was an assistant principal at the time was also in Mr. Hester’s office. Fletcher had just had its annual faculty Christmas party and Mr. Hester joked that one of the raffle prize drawings was “a blow job, and that if you were real lucky, it would involve gumming.” Ms. Conrad further testified that she was in Mr. Hester’s office when a woman arrived from “downtown,” the vernacular for the District’s central office. Ms. Conrad did not know this woman or what her prior relationship with Mr. Hester might have been. Mr. Hester was busy when the woman arrived. Mr. Hester addressed her as “sex kitten” and told her to just have a seat. The woman sat down. Ms. Conrad found it “shocking” that “she just went right along with it like it was nothing.” Ms. Conrad was also made uncomfortable by a comment Mr. Hester made regarding a photograph in the Fletcher school newspaper. A group of teachers was “kind of hanging out” near Mr. Hester’s doorway in the common area of the main office. Mr. Hester picked up a copy of the newspaper, the front page of which had a jokily posed photograph of an upper classman pushing a younger student into a locker. Ms. Conrad testified that Mr. Hester told the assembled group that he had taken the photo home and showed it to his partner, who thought it was a “turn- on” or “hot,” or “something like that.” This statement made the group uncomfortable. People tried to laugh it off and moved away from Mr. Hester as soon as possible. Despite believing that Mr. Hester’s statements were “out of line,” Ms. Conrad never told Mr. Hester she found them offensive and never reported them to Mr. Gilbert or anyone else in a position of responsibility. She testified that she didn’t know how well connected Mr. Hester was and was afraid to initiate a confrontation. She wasn’t sure to whom she could turn. “He was obviously very comfortable using inappropriate language in front of important people, like assistant principals and downtown personnel, so I didn’t know who he had connections with. . . . I felt it best at that time to just try to avoid him the best I could and go on with my business and stay away.” She noted that Mr. Hester was in charge of “the documentation and certification and the paperwork that keeps us legally teaching.” She feared retaliation if she reported his misbehavior. Ms. Conrad testified that it seemed understood around Fletcher that Mr. Gilbert was aware of “the types of things Dennis was doing and ignored them.” She described Mr. Gilbert as a “people person” who shied away from confrontation and did not want to deal with Mr. Hester’s behavior. Ms. Conrad also testified that Mr. Hester was doing a lot of Mr. Gilbert’s work for him, including preparation of the school budget. Therefore, the understanding around the school was that Mr. Hester was a privileged, protected person who could do as he pleased, “unchecked and unbalanced.” Ms. Durden similarly testified as “a really oppressive environment for the adults at Fletcher High School.” She described Mr. Gilbert as a good administrator who was, nonetheless, very dependent on Mr. Hester for many things. She was a new teacher at Fletcher and did not want to be on Mr. Hester’s “dark side.” She knew that complaining about him would put her in a bad spot. Mr. Gilbert testified that he once suggested to Ms. Durden that she place Mr. Hester on the committee to plan Challenge Day. Ms. Durden declined, stating that there would be too much “drama” with Mr. Hester trying to take things over. She also mentioned that she was somewhat in disfavor with Mr. Hester for unspecified reasons. Mr. Gilbert testified that Ms. Durden’s statement about “drama” with Mr. Hester did not ring a bell with him. Ashley Snell, an intensive reading teacher in her tenth year at Fletcher, testified as to an argument she had with Mr. Hester in September 2010. She stated that there was a non- ESOL class that the subject area teachers were required to take from Mr. Hester after school hours. Ms. Snell had two jobs at the time and was unable to stay after school. She went to Mr. Gilbert and asked for permission to take the class during school hours at the Schultz Center for Teaching and Leadership, a conference center where many of the District’s professional development classes are taught. Mr. Gilbert approved a “Temporary Duty Elsewhere” (“TDE”) permit for Ms. Snell and she signed up for the class at the Schultz Center. Ms. Snell testified that Mr. Hester called her down to his office after school. He yelled at her for going behind his back and asking permission to take the class elsewhere. He told her that she was going to ruin things for all the other teachers because he could not offer the class unless a certain number of people signed up for it. Ms. Snell stated that Mr. Hester got up from behind his desk and stood between her and the door, blocking her way out of the room as he yelled at her. She stated that he was in her face, cursing and screaming “How dare you,” saying that she had no right to do what she did and that she needed to sign up for his class. Ms. Snell testified that the next thing she knew, another teacher unlocked the back door to the office and she ran out and down to the classroom of Tina Reed, another teacher. Ms. Snell stated that she had never been talked to that way before and was hysterical and afraid. She reported the incident to Mr. Gilbert, but was unsure whether Mr. Hester was ever disciplined. She acknowledged that Mr. Hester later apologized to her. Mr. Gilbert testified that his office was a couple of doors down from Mr. Hester’s in the administrative wing but that he was not in his office when this incident occurred. Mr. Gilbert heard about it from his secretary and from Ms. Snell and Ms. Reed. His secretary told him that there was a lot of loud yelling and arguing behind Mr. Hester’s closed door. The students had gone home but staff was still present in the office. The secretary said it was “disturbing” and Mr. Gilbert saw that Ms. Snell was upset by it. At the time of the hearing, Mr. Gilbert could not remember what the incident was about, but he recalled telling Ms. Snell that he would address the matter and get back to her. Mr. Gilbert testified that he called Mr. Hester as soon as possible, either later that afternoon or the next day. Mr. Hester admitted there was an argument that got too loud, which Mr. Gilbert stated was not acceptable. He reminded Mr. Hester that his door was open any time there was a disagreement and they could come in and sit down with him and try to resolve it. Mr. Gilbert told Mr. Hester he was being given a “verbal warning”20/ and from that day forward was to have nothing to do with Ms. Snell. Mr. Gilbert would take care of all her assignments from that point forward. He also told Mr. Hester that he had to make a formal apology to Ms. Snell. Mr. Gilbert stated that he got back to Ms. Snell and told her how he had handled the matter and asked her to let him know if she had any more problems with Mr. Hester. He heard nothing further from Ms. Snell. Mr. Gilbert testified that Ms. Snell and Mr. Hester did not become best friends, but that he was aware of no further difficulties between them. Mr. Hester recalled the incident with regret, but disputed some of the details recited by Ms. Snell. He did not recall getting up from his desk and impeding her from leaving the office. He recalled standing on his side of the desk, Ms. Snell standing on the other side, and the conversation becoming “rather heated.” Mr. Hester was upset because he needed to get as many teachers as possible to take Content Area Reading-—Professional Development (“CAR-PD”) training at Fletcher, and there were just barely enough teachers signed up to offer the class. Mr. Gilbert would be unable to give TDE permits to ten or more teachers because the school would then be short-staffed. Ms. Snell’s action might have the effect of denying all the other teachers the ability to take the CAR-PD class at Fletcher. Mr. Hester was frustrated and their inability to agree on her course of action led to an argument. Mr. Hester conceded that “I lost my cool and told her to get the hell out of my office.” At that point, Ms. Snell called him “a fucking faggot.” This comment made Mr. Hester very upset. Mr. Gilbert met with Mr. Hester later that day and told him he could not yell at people like that. Mr. Hester told Mr. Gilbert about the “faggot” remark but Mr. Gilbert said, “I don’t care. . . . You’re a man. You should never talk to a woman that way.” Mr. Hester agreed that Mr. Gilbert was right. Mr. Hester readily agreed to apologize to Ms. Snell. When Ms. Snell walked past his office the next week, Mr. Hester called her in and told her he wanted to apologize for his unprofessional and disrespectful behavior. Ms. Snell stated that she was sorry as well. Mr. Hester testified that this was the last time they discussed the incident and he never had any further problem with Ms. Snell. Mr. Gilbert kept Mr. Hester from having any oversight of Ms. Snell, and Mr. Hester respected that order. Mr. Hester testified that this was the only time he ever had a heated argument with another teacher. Ms. Snell testified that she never called Mr. Hester a “faggot.” The investigation In January 2013, an anonymous letter was sent to School Board Superintendent, Nikolai Vitti; School Board Chairman, Fred “Fel” Lee; Human Relations (“HR”) Director, Sonita Young; and Fletcher High School Principal, Donald F. Nelson. The letter stated as follows, in relevant part: I hate to have to submit this as an “anonymous” letter. However, it is important that someone take action and there is a situation that must be addressed. I am currently assigned as a teacher at Duncan U. Fletcher High School. It is for this reason that I am choosing to send this letter anonymously. I am writing it as [sic] the request of several teachers who feel that the current situation cannot be allowed to continue. I do not want to be subjected to individual scrutiny. We have tried to address this with our school level administration (this year and in past years). However, we do not feel that it is being handled appropriately. The situation involves our Instructional Coach, Professional Development Facilitator and AICE Coordinator at Fletcher, Dennis Hester. Several faculty members have lodged complaints against him, yet he appears to be protected from any possible disciplinary consequences. The complaints that are generally listed are about how he treats members of our faculty unprofessionally. One teacher even went to the previous principal after being yelled at and “bullied” into a corner, and Mr. Hester was simply asked to make a verbal apology. That’s not enough in response to the repeated behavior that he displays. In fact, other teachers have said they have experienced the same behavior from Mr. Hester again this year. * * * Another example of his unprofessionalism points to ESOL. For a few years now, it has been known that if a Fletcher teacher is flagged and needs ESOL hours, just sign up for Hester’s class. He doesn’t require anything of you. You simply sign the papers in his office and you never attend a single session. He is supposed to be the Professional Development Facilitator, yet nothing about this seems professional. * * * These are only a handful of the situations that have taken place. Each teacher seems to have a story of his/her own regarding professionalism, ethics, support, etc. This situation at Fletcher has gotten out of hand. I would like to request that someone from Human Resources or Professional Development visit Fletcher and interview faculty members. As I mentioned before, there are several teachers who have requested that I write this letter and invite the district to intervene, as the traditional avenues haven’t proven effective. We love our school and many of us are long term faculty within the system and at this school. We are only trying to make Fletcher the best it can be. We look forward to seeing you at Fletcher in the very near future and welcome your involvement in the review of what is going on here. Mr. Nelson testified that when he receives such letters, he immediately calls in the affected employees. Because he could not meet with the anonymous author of the letter, he confined himself to meeting with Mr. Hester. They went over the letter paragraph by paragraph and Mr. Nelson made notes on his copy of the letter. After meeting with Mr. Hester, Mr. Nelson concluded that the matter was not much more than a “catfight” and suspected, correctly as it turned out, that the author of the anonymous letter was Laura Strickland, Fletcher’s media specialist and the sister-in-law of the School Board Chairman, Mr. Lee.21/ Mr. Nelson was aware that there were some ongoing personal issues between Mr. Hester and Ms. Strickland. She believed that Mr. Hester was “holding back” the paperwork for her professional development credits for 2012 and she had written a string of increasingly agitated emails to Mr. Lee complaining of this and other high-handed actions by Mr. Hester. Mr. Hester testified that Ms. Strickland was one of about ten Fletcher teachers, including Mr. Gilbert, who failed to submit their paperwork on time and were thus late in obtaining their professional development credits. After talking to Mr. Hester, Mr. Nelson decided to take no further action at the school level, as most of the allegations concerned matters that occurred during Mr. Gilbert’s time as principal of Fletcher. He spoke with Ms. Young, who confirmed that her office had received the letter and someone would be in touch with the school. Shortly thereafter, Mr. Nelson was contacted by Mary Mickel, an employee of the Professional Standards office of the HR Department. Mr. Nelson told Ms. Mickel that he believed the letter was a vendetta by the anonymous author against Mr. Hester. Ms. Mickel summarized her meeting with Mr. Nelson in an email to Ms. Young, dated February 6, 2013, which stated as follows, in relevant part: When asked if this is a pattern of behavior for Mr. Hester, who was accused of displaying unprofessional behaviors in several instances, the principal replied that it is not. Principal Nelson also stated that he believed that these “hodge- podge, shot in the dark” accusations are a means to hurt Mr. Hester, by someone who does not care for him and has a personal vendetta. The principal also stated that he believed that it was one of two people who wrote the anonymous letter. [Mr. Nelson named Ms. Strickland and Ms. Johnson as the likely authors.] * * * When the principal received the letter, he met with Mr. Hester to address each issue of alleged unprofessional behaviors below: Treats other members of the faculty unprofessionally-— Mr. Nelson stated that he has not observed any unprofessional behavior towards other faculty members, nor has anyone come to him with complaints. * * * If a teacher was flagged for needing ESOL hours, Mr. Hester does not require anything from teachers accept [sic] to sign papers in his office-— Mr. Hester’s response to the principal was that Karen Patterson, ESOL Professional Development Office, approved all courses. (Office of Professional Standards made recommendation to principal to obtain records of sign-in sheets and records of Professional Development requests with approval from Karen Patterson’s office to have on hand.) A string of District emails entered into evidence indicates that the matter continued to percolate during the spring of 2013, primarily via a series of signed email complaints from Ms. Strickland to Mr. Lee, who forwarded them to Dr. Vitti. An email from Dr. Vitti to District ESOL director Christine Dahnke, dated April 28, 2013, states as follows: I need someone to look into ESOL endorsement at the school. Apparently there is an individual who has been hired there to provide ESOL endorsement training for teachers. Training is not occurring but teachers still receive endorsement. There may be no substance to this but it continues to be raised as a concern by teachers. Ms. Dahnke forwarded the emails to Ms. Young, who in turn sent the following email to Ms. Jackson and Ms. Mickel on May 2, 2013: Josephine—- This continues to come up. We received an anonymous complaint earlier this year and Mary spoke to the principal. We now need to conduct an official investigation to include interviews with appropriate personnel. Thanks. The matter was assigned to Professional Standards investigator Jessica Altman. Mr. Nelson testified that in late May, teachers began coming forward to speak with him about their experiences with Mr. Hester. The first was Tina Reed, the teacher who had assisted Ms. Snell in her confrontation with Mr. Hester. Ms. Reed brought in Ms. Snell and another teacher, Joy Chalker, to Mr. Nelson's office. During their discussion with Mr. Nelson, the teachers stated that there were others who were afraid to come forward because nothing had been done when they had complained in the past. Mr. Nelson told them that any charges against Mr. Hester would have to be made in writing, and that they should encourage the other teachers to submit written statements. Mr. Nelson testified, “I was dealing with teachers that felt that their voice wasn’t heard before, so I felt in order to give them some comfort, they could tell the other teachers to please put it in writing.” Each of the three teachers who met with Mr. Nelson submitted a written statement, which Mr. Nelson forwarded to HR. More teachers came forward and submitted written statements, eight or nine in total, all of which Mr. Nelson forwarded to HR. Mr. Gilbert testified that he never noticed that teachers were reticent to speak with him about Mr. Hester. He denied there was a climate of fear at Fletcher as regards Mr. Hester. Ms. Durden certainly did not hesitate to tell Mr. Gilbert what she thought of his proposal to place Mr. Hester on the committee for Challenge Day. Mr. Gilbert stated that he was known for literally having an open door to all Fletcher employees, but that no teacher ever came to him with any problem concerning ESOL. Mr. Gilbert testified that, far from protecting or coddling Mr. Hester, he was harder on Mr. Hester than on most other people on staff at Fletcher.22/ He would edit emails that Mr. Hester wanted to send to the entire faculty and would “kind of jump on him” about not getting data into the principal’s office fast enough. Mr. Gilbert would have to rein in Mr. Hester on things such as changing the way the students marched at graduation, but he described these as minor incidents. Mr. Gilbert disagreed that Mr. Hester could make a teacher’s life miserable if the teacher crossed him. Mr. Hester had no authority to discipline teachers at Fletcher. Mr. Gilbert noted that the District, not Mr. Hester, is the ultimate arbiter of professional development points. Mr. Hester facilitated the preplanning and training day workshops held at the school, but his authority over those matters was limited to turning in the paperwork to the District. Josephine Jackson is the executive director of the District’s Professional Standards office. She assigned Ms. Altman to investigate the complaint against Mr. Hester. Ms. Jackson also serves as the District’s equity officer, addressing violations of nondiscrimination laws and policies. Ms. Jackson testified that she first met Mr. Hester when her office called him in to discuss the concerns that had been raised about the endorsements for ESOL classes. Ms. Jackson stated that this was a brief meeting at the end of the day. She told Mr. Hester there had been accusations of discrepancies in awarding endorsements to teachers and asked whether he could provide documentation as to what classes were held, who attended them and what was the course content. Mr. Hester told her that he believed there was a group of people at the school who had targeted him because of his sexual orientation. Ms. Jackson told him that such behavior was intolerable and would be dealt with by her office. She asked Mr. Hester to provide names and examples of things that had been said to him. Ms. Jackson testified that she had no more in-person meetings with Mr. Hester but that they communicated via email. Mr. Hester did submit to her secretary a small packet of ESOL information with attendance sheets and checkmarks,23/ but he never provided any information about the alleged sexual orientation targeting. Mr. Hester conceded that he did not bring to Ms. Jackson any information to substantiate his allegation that he had been targeted because of his sexual orientation. He did note that the investigative report included insinuating statements made to the investigator by Ms. Durden, who spoke of Mr. Hester having young male teachers at his house in the evenings. Mr. Hester also noted a statement by Ms. Conrad that she would walk by his office and see the door closed as he “courted” young male students.24/ Mr. Hester wondered why such irrelevant comments were included in the investigative report. He noted that the teachers at his house were Mr. Corey and Mr. Davis, the coaches with whom Mr. Hester was working on alternative certification, and that Mr. Corey’s wife often accompanied him. He also denied “courting” male students, stating that such behavior would be criminal and that he was not a pedophile. Mr. Hester stated that he takes a lot of pride in his job and tries very much to be a professional. He noted that homosexuality is still not “really accepted” in society and that it can become a touchy situation in terms of classroom management. He took great offense at the insinuations of these teachers being made part of the District’s investigative report. In her defense, Ms. Durden testified that she is gay and had no problem with men going to Mr. Hester’s house. Her point was that Mr. Hester should not have been coaching alternative certification teachers at his house before they were on the faculty of Fletcher High School. Ms. Durden’s testimony on this point was not persuasive. The clear suggestion of her statement to the investigator was that assignations may have been taking place at Mr. Hester’s house. Ms. Snell testified that one day she was in Ms. Reed’s classroom working on planning with Ms. Reed when the phone rang. Ms. Reed answered on speakerphone. Mr. Hester was on the line. He said that he was just leaving downtown, where someone had told him there was a possible investigation into ESOL. He told Ms. Reed not to worry about it. He had taken care of it, but was going to give some backdated paperwork to Ms. Reed’s daughter to deliver to Ms. Reed. Mr. Hester stated that he thought the investigation was stemming from “either Laura Strickland or the dumb bitch, Joy Chalker, who could possibly be the two that filed the anonymous letter.” Mr. Hester denied that he phoned Ms. Reed to tell her that he had taken care of anything or had backdated ESOL documents. Mr. Hester testified, “I knew [Ms. Reed] was part of the anonymous letter. Why would I call her about it?” It does not seem credible that Mr. Hester would phone a known adversary to discuss a plan to fraudulently cover his tracks on the ESOL endorsements, particularly when the discussion is alleged to have taken place over a speakerphone. Ms. Snell’s testimony on this point appears to be fabricated, which calls into question the entirety of her testimony save that which Mr. Hester and Mr. Gilbert corroborated.25/ Mr. Nelson testified that Mr. Hester came by his office a few times to inquire about the status of the investigation. Mr. Nelson forwarded the inquiry to Ms. Jackson, who declined to comment because the investigation was ongoing. Mr. Nelson relayed this information to Mr. Hester. Mr. Nelson testified that Mr. Hester never suggested that homophobia was the motivating factor in the teachers’ complaints against him. Mr. Nelson stated that he would have immediately notified the investigator had Mr. Hester made such a statement to him. Mr. Davis testified that around May 21, 2013, he had a conversation with Mr. Hester in the Fletcher parking lot. Mr. Hester was upset. Mr. Hester stated that Ms. Reed, Ms. Snell, and Ms. Chalker “needed to watch their back because he was going to go after them” for writing an anonymous letter about him. Mr. Hester stated, “You never want to piss off a gay man” and cautioned Mr. Davis to distance himself from the three women to avoid becoming “collateral damage.” Mr. Hester recalled the parking lot conversation. He told Mr. Davis, “I’m under investigation. If anyone asks you anything, don’t lie.” Mr. Hester conceded that he was “very heated” about the situation in which he found himself. He did tell Mr. Davis that Ms. Snell, Ms. Reed, and Ms. Chalker had written the anonymous letter. Mr. Hester testified that he gleaned his erroneous attribution of authorship “just from my knowledge and from information that I had received from some other people.” Mr. Hester further conceded that he told Mr. Davis that he was going after the women and would not feel bad about anyone who gets caught in the collateral damage. Mr. Hester conceded that he told Mr. Davis, “You never want to piss off a gay man.” Mr. Nelson testified that during the period of the investigation and Mr. Hester’s subsequent dismissal, the District assigned several new employee positions to its secondary schools. One of those new positions was “testing coordinator.” Mr. Nelson intended to give the job to Mr. Hester. Because Mr. Hester was fired, Mr. Nelson gave the position to Ms. Reed. Based on his own exposure to Mr. Hester’s work, Mr. Nelson believed that Mr. Hester was effective in his position and was an asset to Fletcher High School. Ms. Jackson testified that at the time of the investigation, she understood that Mr. Hester was unique in marking people present for classes they did not physically attend. She stated that after the determination to fire Mr. Hester was made, the District continued to investigate “because it became clear that this may have been an issue that was broader than the number of people that we had spoken with during the course of the investigation.” Summary of findings Mr. Hester has been accused of “displaying unprofessional behavior toward and in the presence of colleagues” and “repeatedly provid[ing] ESOL endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes.” The evidence presented at the hearing established that Mr. Hester displayed unprofessional behavior toward and in the presence of colleagues. He admitted to having a shouting match with Ms. Snell that could be heard outside the closed doors of his office. Even crediting Mr. Hester’s testimony as to the extreme provocation provided by Ms. Snell, his actions were unprofessional. Ms. Harman’s undisputed testimony described a lewd joke Mr. Hester told to her in front of a group of male colleagues, to her profound embarrassment. Ms. Conrad described witnessing three separate incidents of unprofessional conduct by Mr. Hester, all of which involved sexual innuendo of varying degrees of egregiousness. There is no question that Mr. Hester was feared by at least some teachers on the Fletcher campus. Though Mr. Gilbert accurately stated that Mr. Hester was merely a teacher and had no control over other teachers’ jobs, as a practical matter Mr. Hester had the power to seriously affect careers by providing or withholding professional development credits. Mr. Hester was capable of “going after” teachers who had crossed him without regard for “collateral damage.” The evidence regarding the ESOL endorsements was not as straightforward or overwhelming as the School Board alleged. The School Board’s ESOL classroom requirements were elastic enough to provide for shortened “emergency” and “hybrid” courses when the crush of teachers needing ESOL credits became too much. Vacations abroad qualified for Cross-Cultural Communication ESOL credit. Of the most relevance to this case was the School Board’s practice of allowing teachers to obtain ESOL credits via “independent study” supervised by a PDF. The School Board’s most serious allegation against Mr. Hester is that he intentionally falsified ESOL documents by marking independent study participants “present” in classes they did not physically attend. The evidence established that Mr. Hester accounted for the work performed by his independent study students by marking them present on attendance sheets for ESOL classes that Mr. Hester or another PDF was teaching. The evidence further established that this method of accounting for the work performed by independent study students was also used by Ms. Patterson and apparently by all PDFs in Duval County. Ms. Jackson’s statement that “this may have been an issue that was broader than the number of people that we had spoken with,” in conjunction with Ms. Patterson’s testimony, effectively conceded that the allegations of falsification of documents by Mr. Hester was without basis. The evidence presented at the hearing established that, whether or not his actions were within his actual authority to conduct independent studies and award ESOL credit, Mr. Hester at all times believed that he was acting as authorized by Ms. Patterson. Even crediting Ms. Patterson’s testimony that she lacked the authority to authorize independent study projects, there is nothing in the record to gainsay Mr. Hester’s reasonable belief in Ms. Patterson’s apparent authority. Documentary evidence indicated that Ms. Patterson’s authority to approve independent study projects was taken for granted not only by Mr. Hester but by the District’s Supervisor of Certification, Kella Grant. Mr. Hester’s contention that the January 23, 2013, email from Ms. Patterson marked a change in policy was well founded. However, the power to approve independent study projects and the delegation of that approval power to Mr. Hester mark the outer limits of the reasonableness of Mr. Hester’s belief in Ms. Patterson’s authority. It was not reasonable for Mr. Hester to believe, based on the novel example of the Chets Creek teachers,26/ that Ms. Patterson had conveyed or could convey to him the independent authority to award ESOL credits for anything other than completion of ESOL coursework. Mr. Hester had no reasonable basis to believe in his authority to award ESOL credit by his “alternative delivery” method. Mr. Hester determined that Ms. Andrews met the competencies of the Cross-Cultural ESOL class for which he gave her credit though she performed no independent study and received no instruction in the coursework. Mr. Hester gave Ms. Durden credit for a Cross- Cultural ESOL class based on her work on Challenge Day and on pre-planning in-service courses. Ms. Durden performed no independent study and received no instruction in the coursework for the Cross-Cultural ESOL class. Mr. Hester also gave Mr. Gilbert ESOL credit for Challenge Day, as well as for his work in testing and evaluation and his principal’s evaluation binder, none of which involved ESOL coursework. Mr. Gilbert testified that he relied entirely on Mr. Hester’s expertise in accepting the ESOL credits. Though Ms. Murrell and Mr. Hester differed dramatically on the details of their interaction, there was no dispute that Mr. Hester awarded her credits for two ESOL courses despite her never taking either an ESOL course or an active independent study program from him. Mr. Hester’s sole basis for awarding the credits was his determination that Ms. Murrell’s work as a teacher met the competencies of the ESOL classes. In like fashion, even if Mr. Hester’s disputed version of his interaction with Ms. Johnson is fully credited, the undisputed fact remains that Mr. Hester awarded her ESOL credits for her work with PLC groups, her status as an AICE, and her lesson design notebook, not for any ESOL coursework she performed. Mr. Hester’s version of events involving Ms. Kopp is credited. The evidence established that Ms. Kopp performed independent studies with Mr. Hester in 2009 and 2010, despite her testimony to the contrary. Mr. Hester’s version of events involving Mr. Corey is credited. It is more likely that Mr. Corey’s wife completed and turned in the coursework in “collaboration” with Mr. Corey than that Mr. Hester invented the fact of having received the work for which he credited both of the Coreys. However vague his recollection, Mr. Davis testified that he performed independent study projects for each of the five ESOL courses for which Mr. Hester gave him credit. Ms. Harman was not a credible witness and no findings against Mr. Hester should be based on her testimony. Mr. Hester’s version of events involving his interactions with Ms. Harman is reasonable and supported by the documentary evidence. Ms. Conrad’s contention that Mr. Hester offered her ESOL credit merely for being a coach was belied by the documentary evidence showing that Mr. Hester in fact offered her several legitimate options for obtaining ESOL credit. Ms. Conrad performed an independent study and legitimately received ESOL credit. In summary, five teachers, Ms. Andrews, Ms. Durden, Mr. Gilbert, Ms. Murrell, and Ms. Johnson, were awarded ESOL credits by Mr. Hester based on an “alternative delivery” method that he was not authorized to use and that he could not reasonably have believed he was authorized to use. Mr. Hester has potentially damaged these teachers professionally, should their ESOL credits be disallowed based on Mr. Hester’s actions. There was no evidence that Mr. Lee, the School Board Chairman, took an active part in initiating or conducting the investigation of Mr. Hester. The evidence did establish that it was well known in the District that Ms. Strickland is Mr. Lee’s sister-in-law, but it would be speculative to find that her complaints carried more weight than their substance merited. No sexual improprieties were alleged against Mr. Hester, unless one counts locker room jokes made to fellow teachers. There was, therefore, no reason for the School Board’s investigator to include the insinuating comments of Ms. Durden and Ms. Conrad in her report. The School Board should be sensitive to the still-tenuous position of its gay employees in both the school setting and the larger society and should be more vigilant to exclude such damaging irrelevancies from its official documents. The evidence established that Mr. Hester was somewhat self-aggrandizing and given to interpersonal intrigue among his colleagues at the school. He obviously had enemies at Fletcher. Mr. Hester also wished to appear omnicompetent in his field. Some of his problems appeared to stem from this desire to impress fellow teachers with his wizardry in the area of professional development. Rather than explaining to them in drab detail exactly how he was providing them with ESOL credit, Mr. Hester would airily proclaim that he was “taking care of it.” This practice led to confusion and unease and goes some way toward explaining why even those “phenomenal” teachers who bore Mr. Hester no real grudge were not especially friendly toward him in their testimony.27/ However, the evidence also established that Mr. Hester was extremely accomplished as a trainer and designer of training programs. He was selected to redesign the District’s alternative certification program to include an ESOL component and he was the developer of the District’s hybrid ESOL course. He worked tirelessly, teaching ESOL courses after school and doing independent studies with teachers such as Mr. Tracy over the Christmas holidays, if such was necessary to maintain their certification. If anyone in the District was qualified to determine that a teacher should receive ESOL credit for the type and quality of her work in the classroom, it was Mr. Hester. The School Board presented no evidence of prior discipline against Mr. Hester and acknowledged that the default position for first time disciplinary actions is progressive discipline. The School Board proved its allegation that Mr. Hester “repeatedly provided ESOL endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes.” However, the School Board did not prove that Mr. Hester intentionally falsified records, otherwise engaged in fraudulent activities, or took any action indicating a guilty conscience. Mr. Hester believed, unreasonably but honestly, that he had the authority to award ESOL credits to the five teachers discussed above based on his “alternative delivery” method. Whether Mr. Hester’s mistaken understanding of his authority constitutes such a severe act of misconduct as to merit circumvention of the established progressive discipline procedure is ultimately the School Board’s decision. It appears to the undersigned that the District would not be well served if it were to simply jettison such a tremendous source of information and support based on the allegations proven at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Duval County School Board enter a final order finding Dennis Hester guilty of misconduct in office and imposing the following sanctions: uphold Respondent's suspension without pay from July 3, 2013, through the date of the final order and issue a written reprimand to Respondent. DONE AND ENTERED this 7th day of January, 2015, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2015.
The Issue At issue in this proceeding is whether respondent was convicted of conspiracy to possess with intent to distribute at least five kilograms of cocaine and, if so, what disciplinary action, if any, should be taken against his Florida teaching certificate.
Findings Of Fact Respondent, Frederick Dingle Charles, holds teacher's certificate number 264894, issued by the Florida Department of Education, covering the area of substitute teaching. Such certificate is valid through June 30, 1992. During the 1989-90 school year, respondent was employed by the Dade County School Board as a teacher at Homestead Middle School. On or about September 20, 1989, respondent was arrested and charged with conspiracy to possess with intent to distribute at least five kilograms of cocaine in the United States District Court, Southern District of Florida, Case Number 89-627-CR-Aronovitz. On October 15, 1990, he was found guilty of such charge and committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of 121 months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the teaching certificate of respondent, Frederick Dingle Charles, be permanently revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June 1991. WILLIAM J. KENDRICK 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 13th day of June 1991. Copies furnished: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Frederick D. Charles # 41454-004 Metropolitan Correctional Center 15801 S.W. 137th Avenue Miami, Florida 33177 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated sections 1012.795(1)(g) and (j), Florida Statutes (2013), and Florida Administrative Code Rules 6A-10.081(3)(a) and (e), during an altercation with a student on February 24, 2014, and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor of the witnesses, the documentary evidence presented, and the record as a whole, the following facts are found: At all times relevant to the instant case, Mr. Morris held Florida Educator Certificate 349864, covering the areas of mathematics and guidance counseling, valid through June 30, 2015. On February 24, 2014, Mr. Morris was employed as a teacher at Sandalwood High School in Jacksonville, Florida. At approximately 10:25 a.m., on February 24, 2014, Mr. Morris was about to begin a math class. At least two of the students (V.H. and D.C.) were unsatisfied with their grades in Mr. Morris’ class and were vigorously expressing their displeasure with his teaching style and with being tested on material that allegedly had not been taught in class. During this time, Mr. Morris was in the front of the classroom, and the complaining students were in the back or middle of the classroom. Mr. Morris responded by telling the complaining students to “shut up,” and his statement was primarily directed toward V.H. V.H. told Mr. Morris to “shut up,” and Mr. Morris responded by ordering V. H.to leave the classroom. When V.H. refused to leave the classroom, Mr. Morris told V.H. that he would physically remove her from the classroom if she did not comply. V.H. challenged Mr. Morris to physically remove her from the classroom. At that point in time or very soon thereafter, V.H. was seated in a chair. Mr. Morris moved behind her and pulled the chair out from under her. One of the other students in the classroom had a device capable of recording audio and video and had pointed the device in V.H.’s direction just as Mr. Morris was pulling the chair out from under her. The video and accompanying audio begin at that moment but do not record anything that transpired beforehand. The video shows V.H. falling to the floor and quickly getting to her feet. V.H. then took one or two steps toward Mr. Morris. Mr. Morris extended both of his arms and kept his hands on V.H. Due to the vantage point from which the video was shot, it is impossible to definitively ascertain V.H.’s intent when she got to her feet and took those one or two steps in Mr. Morris’ direction. However, V.H. was a few inches over five feet tall and weighed approximately 110 pounds at the time. In contrast, the video indicates that Mr. Morris was at least five feet, ten inches in height and approximately 200 pounds. Therefore, given their respective sizes, V.H. posed no threat to Mr. Morris even if her intent had been to attack him. For the next few seconds, Mr. Morris and V.H. struggled with each other. V.H. testified that Mr. Morris repeatedly slammed her against a bookshelf. But, given the vantage point from which the video was shot, it is impossible to verify that portion of V.H.’s testimony through the video. D.C. quickly rose from her chair and attempted to place herself between Mr. Morris and V.H. While doing so, D.C. implored Mr. Morris to, “get your hands off of her Mr. Morris, she’s a girl, get off of her.” Mr. Morris said something to the effect that V.H. was attacking him. At that point, Mr. Morris shoved V.H. away from him, and the ease with which he did so underscores the fact that V.H. posed no threat to him. The force of Mr. Morris’ shove drove V.H. a few feet backwards. While she stumbled, she did not lose her balance. Mr. Morris then ordered V.H. to leave the classroom and advanced toward her. At that point, D.C. put herself directly between Mr. Morris and V.H., and D.C. wisely led V.H. out of the classroom. As she was being led out of the classroom, V.H. angrily voiced her displeasure with Mr. Morris pulling the chair out from under her. Mr. Morris responded by saying, “I asked you to leave!” After V.H. left the classroom, Mr. Morris and some of the remaining students discussed the incident. Mr. Morris stated to one student that V.H. “came straight at me, and I’m supposed to let her hit me!?” One of the students reminded Mr. Morris that he pulled V.H.’s chair out from under her. The above findings regarding the incident between Mr. Morris and V.H. were drawn from the video, written statements given by several of the other students present in the class that day, and the testimonies of V.H. and D.C. The undersigned found D.C.’s testimony to be particularly credible and an accurate account of what transpired that day. V.H. testified that she sustained injuries to her back and neck during the altercation with Mr. Morris. She missed a week of school, and her family spent $3,693 treating her injuries. Even if the comments directed toward Mr. Morris at the beginning of the class were disrespectful and even if V.H. had been insubordinate, it was inexcusable for Mr. Morris to pull the chair out from under V.H. There are no circumstances under which such an act would be appropriate conduct for a teacher. Mr. Morris acted with reckless disregard for V.H.’s mental and physical health, and safety by intentionally pulling the chair out from under her. Also, that action exposed V.H. to unnecessary embarrassment or disparagement. Petitioner has proven by clear and convincing evidence that Mr. Morris violated sections 1012.795(1)(g) and (j) and rules 6A-10.081(3)(a) and (e).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission revoke Marvin Morris’ educator’s certificate; or, in the alternative, permanently bar him from applying for a new educator’s certificate. DONE AND ENTERED this 25th day of March, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 25th day of March, 2016. COPIES FURNISHED: Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 (eServed) Marvin E. Morris Apartment 238 3545-1 Saint Johns Bluff Road Jacksonville, Florida 32224 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The basic issue in this case is whether the Respondent, Theresa Callahan, should be dismissed as a member of the instructional staff of the Palm Beach County School Board. Respondent's dismissal has been recommended by the Petitioner, Thomas J. Mills, Superintendent of Schools, on the basis of allegations set forth in an Amended Petition For Dismissal in which it is alleged that the Respondent was incompetent and guilty of misconduct in office, willful neglect of duty, and gross insubordination, and subject to dismissal pursuant to Section 231.36, Florida Statutes. Petitioner based these charges on allegations of the Respondent's repeated failure to perform duties prescribed by law as requested by her supervisor(s), her repeated failure to communicate and relate to her students in the classroom to such an extent that they were deprived of a minimal educational experience, her continued verbal abuse of her co-workers, her continued denial of basic rights to her ESOL students and her discriminatory application of discipline to Haitian students. Numerous sub- issues are set forth at pages 15 through 18 of the Parties' Joint Pre-hearing Stipulation.
Findings Of Fact Based on the parties' stipulations and on the credible evidence received at the hearing, the following facts are found: Stipulated facts The Respondent has been employed as a classroom teacher with the Palm Beach County School Board since August 21, 1967. Respondent received her continuing contract of employment in November 1971. The Respondent was initially employed by the District as a Television Studio Teacher from August 1967 until June 1, 1970. In October 1970, the Respondent served in the capacity of an Elementary Education Teacher with the District. She held that position until June 1973. From August 1973 through November 1976, the Respondent worked as a Resource Teacher within the School Board's Bilingual Project. In August 1976, she was assigned to Pine Grove Elementary School where she worked as a bilingual teacher until November 1978. Effective December 1, 1978, through the present, the Respondent worked as a Bilingual Education Teacher at Atlantic High School and Boca Raton High School. Respondent is currently assigned and is fully certified to teach ESOL (Bilingual Education) to students in grades seven through twelve at Atlantic High School and Boca Raton High School. Respondent's present principals, Ms. Carole J. Shetler, Atlantic High School, and Dr. Norman Shearin, Boca Raton High School, are both charged with assessing the performance of duties and responsibilities of all employees at their schools, including the Respondent. Respondent acknowledges the receipt in January 1986 from the principal of Atlantic High School of a mid-year evaluation of her performance as a classroom teacher identifying that she needed to improve her performance in the following areas: Planning for Instruction; Communication, Verbal and Non-Verbal; Effective Working Relationship with Associates; Accepts Constructive Suggestions; and Submits Reports on Time. However, Respondent disagreed with the content of that evaluation. Respondent also received a mid-year evaluation from the principal at Boca Raton High School in which she was rated "Very Good" in five areas, "Satisfactory" in eleven areas and "Improvement Needed" in only one area which pertained solely to submitting timely reports. In the Respondent's annual evaluation for the 1985-1986 school year, the principal at Atlantic High School noted that she needed to improve her performance in the areas of: Instructional Organization and Development; Communication, Verbal and Non-Verbal; Climate; and Effective Working Relationship with Associates. The areas titled "Planning for Instruction" and "Accepts Constructive Suggestions" had gone from improvement needed in the 1986 mid-year evaluation to unsatisfactory in the 1986 annual evaluation. Respondent acknowledged agreement with the content of that evaluation. In February 1987, the Respondent received another mid-year evaluation from the principal of Atlantic High School. The areas noted for improvement needed were: Planning for Instruction; Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Climate; Effective Working Relationship with Asso-ciates; and Organizes for Efficient Use of Resources. The area titled "Accepts Constructive Suggestions" was still noted as unsatisfactory. However, Respondent disagreed with the content of that evaluation which she so noted thereon. She also forwarded the District and the Atlantic High School Principal her letter dated March 12, 1987, stating her disagreement with the mid-year evaluation. In the recommendation section of the 1987 mid-year evaluation, the principal of Atlantic High School gave the Respondent four directives: Comply with request to take Assertive Discipline Training; Develop an Assertive Discipline Plan; Work in a positive and professional way with associates; and Complete appropriate lesson plans and utilize time for instruction. In May of 1987, the principal of Boca Raton High School, the Respondent's other work site, completed an annual evaluation of the Respondent's performance. The areas noted as improvement needed were: Planning for Instruction; and Organizes for Efficient use of Resources. The area titled "Submits Reports on time" was noted as unsatisfactory. The two areas noted as problem areas (Planning for Instruction and Organizes for Efficient use of Resources) were also addressed in the Respondent's 1987 mid- year evaluation by the principal of Atlantic High School. However, also noted in the May 1987 annual evaluation from the principal at Boca Raton High School, the Respondent was also rated as "Outstanding" in two areas, "Very Good" in four areas and "Satisfactory" in eight areas. The Respondent's annual evaluation from the principal of Atlantic High School reflects that the Respondent failed to improve the deficiencies noted in her 1987 mid-year evaluation. The Respondent still had seven areas which were classified as improvement needed. Those areas were: Management of Student Conduct; Instructional Organization and Development; Communication, Verbal and Non-Verbal; Climate; Effective Working Relationship with Asso-ciates; Accepts Constructive Suggestions; and Organizes for Efficient Use of Resources. However, as reflected in the May 1987 annual evaluation from the principal at Boca Raton High School, the Respondent was rated as "Outstanding" in two areas (Adheres to Defined Duty Days and Is Punctual) and "Very Good" in four areas (Management of Student Conduct, Communication, Verbal and Non-Verbal, Effective Working Relationship With Parents, and, Accepts Constructive Suggestions). The Respondent received an overall "Satisfactory" annual evaluation in May 1988 from the principal/assistant principal at Atlantic High School, although she did receive three areas of concern titled: Management of Student Conduct; Instructional Organization and Development; and Establishes an Appropriate Classroom Climate. In May 1988, Respondent also received her annual evaluation from the principal/assistant principal at Boca Raton High School. Every area was marked as "Acceptable" (satisfactory) and Respondent was given two commendations ("Accepting atmosphere - students from many cultures appear relatively comfortable" and "Practical application of English to the business world and their world"). In the Respondent's January 1989 mid-year evaluation by the principal/assistant principal at both Atlantic High School and Boca Raton High School, five areas of concern were reflected. They were: Management of Student Conduct; Instructional Organization and Develop-ment; Establishes an Appropriate Classroom Climate; Demonstrates Self Control; and Demonstrates Effective Working Relationship with Co-Workers. At or about that same time, the principal of Atlantic High School also tendered Respondent with a deficiency notice dated January 24, 1989, stating that Respondent failed to use her assertive discipline plan, delayed her lesson a significant part of the class period, failed to use appropriate language when she communicated with her students and her Aide, and refused to help a student who said they did not understand. About that same time, Respondent was also placed on a Professional Development Plan ("PDP") by both school administrations with respect to each identified area of concern, instructed to comply with certain informational/instructional strategies, and to demonstrate improvement in such areas within 30 days of commencement of the PDP. Respondent disagreed with the content of the Boca Raton High School evaluations/PDP but nonetheless did comply with and satisfactorily complete the specified instructional strategies set forth therein timely within the 30-day timeline schedule. The Respondent remained on both mid-year PDP's until the end of the school year. In June 1989 the principal at Atlantic High School tendered Respondent her annual evaluation also identifying the previous five areas of concern. In May 1989 the principal at Boca Raton High School tendered Respondent her annual evaluation identifying the previous five areas of concern as well as an additional one titled "Adheres to and Enforces School Policies." About the same time as tender of the respective annual evaluations, both principals again issued Respondent another PDP, each enumerating the respective annual evaluation areas of concern cited therein. Both PDP's again instructed Respondent to comply with certain informational/instructional strategies, and to demonstrate improvement in such areas within 30 days of commencement of the PDP. By letter dated June 8, 1989, to the District, with copies to the principal and assistant principal (her evaluator) at Boca Raton High School, Respondent stated her disagreement with the annual evaluation, acknowledged the earlier problem with the former aide, objected to the alleged deficiency in the annual evaluation on that issue since it was already identified on the mid-year evaluation, and agreed to work to improve on the areas noted in the annual PDP to demonstrate satisfactory performance. About September 1989, the Respondent attended District Level Remediation pursuant to the PDP's as directed by both schools. The workshops were scheduled for September 12, 1989, on Instructional Organization and Development and Communication Verbal and Non-Verbal; and September 13, 1989, on Management of Student Conduct and Classroom Climate. By letter dated December 6, 1989, the principal of Boca Raton High School informed the Respondent that her "performance in the classroom remains unsatisfactory" and stated the reason for the principal's decision and attached the evaluation instruments. In January 1990, the principal of Atlantic High School reviewed the Respondent's performance based on the results of her observations, the observations of Respondent in the classroom by the assistant principals, and the ESOL program coordinating teacher. The principal advised the Respondent that the five concern areas cited in her January and June 1989 evaluations were still areas of concern. The principal also informed the Respondent that two additional areas had been identified. The seven areas noted as concern on the 1990 mid-year evaluation and in the deficiency notice were: Management of Student Conduct; Instructional Organization and Development; Establishes an Appropriate Classroom Cli-mate; Demonstrates Ability to Plan Effectively; Demonstrates Self Control; Demonstrates Effective Relationship with CoWorkers; and Adheres to and Enforces School Policies. Thereafter, in March 1990 Respondent was suspended and has remained suspended without pay since about mid-March 1990. The original petition and the instant Petition were later filed seeking Respondent's removal from/termination of her continuing contract teaching position with the District. During all times material, Respondent was the only teacher teaching English for Speakers of Other Languages (ESOL) at Atlantic and Boca. Facts established at the hearing The Respondent's ESOL Educational/Teaching Background Before she began teaching ESOL at Atlantic High School and Boca Raton High School about the 1978-79 school year, Respondent worked in the District's bilingual program where she wrote the grant for funding the bilingual program and trained teacher aides for that program. Respondent holds a Florida teaching certificate in ESOL, and is also certified through about 1996 in supervision, Spanish, and bilingual education. She has a Bachelor of Arts in Humanities, with a major in Spanish, a Master of Arts in Education, both from FAU, two and one-half years completed toward a 3- year Doctorate at Nova University in the field of administration and supervision, and various extension courses. She has been active in various bilingual and/or ESOL education organizations and activities (including Gulf TESOL and the ESOL Leadership Conferences) which include supervisors, coordinators, and other teachers, and her activities included providing advisory input concerning developments in bilingual/ESOL education to school districts, the Department of Education, and various universities which educate/train other such persons. At all times material, Respondent's classes were comprised of limited English proficient (LEP) students who had various English speaking, reading, and writing skill levels, which required Respondent to provide individualized and/or small group instruction and rotate between such persons and/or groups. Such "multi-level" instruction is the biggest challenge to ESOL educators. The Administrators who supervised, evaluated, or observed Respondent The ESOL Program for which Respondent was responsible was part of the English Department. The Chairperson of the English Department was Warren O'Toole. Although department chairpersons may be involved in some situations involving teachers, they are not involved with evaluation problems. Department chairpersons are not an official part of the administration, since they are members of the same bargaining unit as teachers. Department chairpersons lack the authority to conduct formal evaluations of teachers, or to recommend the termination of a teacher. Carole J. Shetler, the current principal at Atlantic High School, has been employed by the Palm Beach County School Board for sixteen years. She has served in the capacity of a classroom teacher, an assistant principal, an administrative assistant, and for the past six years as the principal of Atlantic High School. Ms. Shetler holds certificates from the State of Florida in the areas of English and Administration and Supervision. Ms. Shetler's duties require her to hire and evaluate personnel, manage the budget of the school, supervise student discipline and to supervise the instructional program at Atlantic High School. Since Ms. Shetler first became aware of the Respondent's teaching, in 1984, five administrators at Atlantic High School, including herself, have participated extensively in the Respondent's evaluation process. They were Ms. Shetler, Mr. Perlman, Mr. Williams, Ms. Dawson, and Ms. Thurber. Ms. Shetler observed the Respondent directly in the classroom and she also reviewed observations conducted by her assistant principals and district personnel who were called in to observe the Respondent. Dr. Clara DeFrank was the principal of Boca Raton High School from the 1986-87 school year through the end of the 1988-89 school year. Prior to the 1986-87 school year she worked as a principal at Boca Raton Middle School, an assistant principal, the director of guidance, and as a counselor. Dr. DeFrank was employed by the Palm Beach County School Board for 27 years. Dr. DeFrank has doctorate degrees in Education and Administration and Supervision. She also has a Masters Degree in Guidance Counseling and a Bachelor's Degree in Journalism. Dr. DeFrank is certified by the State of Florida in the areas of: (1) Administration & Supervision; (2) English; (3) Journalism; (4) Speech; (5) Social Studies; and (6) Guidance and Counseling. When Dr. DeFrank was assigned as the Principal of Boca Raton High School her duties required her to supervise the entire staff. Her supervisory responsibilities included the hiring of staff, the giving of assistance and recommending termination of staff when necessary. Dr. DeFrank has known the Respondent since the early 1970's. Dr. DeFrank and the Respondent have been able to communicate on an informal basis. For all three years that Dr. DeFrank was assigned to Boca Raton High School, Dr. Robert Murley, an assistant principal, evaluated the Respondent. Dr. Murley has a B.A. Degree in English, a Masters of Education Degree in Personnel and Organizational Behavior, and a Doctorate in Administration of Higher Education and Organizational Behavior. Dr. Murley is certified by the State of Florida in English, as an Assistant Principal, and as a Supervisor. Dr. Murley monitors and assists all of the beginning teachers at Boca Raton High School. Dr. Norman Shearin, the current Principal at Boca Raton High School, has been employed by the Palm Beach County School Board for 24 years. He has served in the capacity of a classroom teacher, department chairman, activities director, athletic coach, dean, assistant principal, and for approximately ten years as a principal. Dr. Shearin has been assigned as Boca Raton High School's Principal since July 1, 1989. Dr. Shearin has a Bachelor Degree in Mathematics and Social Studies, a Masters Degree in Educational Administration and Supervision and a Doctorate Degree in Educational Leadership and Behavioral Research. Dr. Shearin currently holds a Graduate Certificate from the State of Florida which certifies him in Educational Leadership, Mathematics and several other subjects. In addition to Dr. Shearin's employment with the Palm Beach County School Board, he has also served as an Adjunct Professor for Florida Atlantic University and Nova University. Dr. Shearin presently serves as the Senior Faculty Member for the Educational Staff at Nova University. Respondent's evaluator at Atlantic High School for the 1987-88 school year was James O. Williams. He currently holds a teaching certificate and a certificate in Administration and Supervision. Mr. Williams has been employed by the Palm Beach County School System for 25 years. Respondent's evaluator for the 1988-89 school year at Atlantic High School was Ms. Betty Dawson. Ms. Dawson has served in the position of assistant principal for seven years. Ms. Dawson is certified by the State of Florida in the areas of English and Administration and Supervision. Respondent's evaluator for the 1989-90 school year at Atlantic High School was Ms. Jean Thurber. Ms. Thurber has been employed as a teacher and as an assistant principal during her fifteen years of employment with the School Board. Ms. Thurber has a Bachelor's Degree in Art Education and English, and a Master's Degree in Administration and Supervision. Ms. Thurber is certified as an administrator. Ms. Diane Larange observed the Respondent on September 11, 1989. Ms. Larange has served as the ESOL Program Coordinating Teacher for nine of the twenty years she has worked for the School Board. Ms. Larange is an expert in bilingual education. She has a Master's Degree in Bilingual Education and a Bachelor's Degree in French with a Minor in Spanish and Foreign Language Education. Periodic Observations/Evaluations/PDP's 1/ Teachers are notified in the pre-school week of the evaluation forms which will be used and the basis upon which the teacher will be evaluated. Boca Raton High School also utilizes a mid-year evaluation, in addition to the final evaluation, to assist teachers by pointing out deficiencies prior to the end of the school year. Teachers are notified of the approximate date when the formal observation will take place. The periodic evaluations issued before the 1987-88 school year at Atlantic High School and Boca Raton High School did not reflect an overall satisfactory or unsatisfactory rating but did provide for the teacher to state agreement or disagreement with the content. The mid-year evaluation and the annual evaluation of Respondent's performance at Atlantic High School during the 1985-86 school year reflected the school administrators' concern about their perception of Respondent's interaction with Lloyd Taylor, her ESOL Aide. Respondent was given a letter of expectation by Ms. Shetler, dated October 7, 1986. The purpose of the letter was to set expectations for the new school year so that the problems noted in the prior school year could be avoided. Ms. Shetler was willing to assist Respondent with her noted problems. On February 17, 1987, Ms. Shetler had a conference with Respondent to review progress since the October 7, 1986, Letter of Expectation. During this conference, Respondent interrupted Ms. Shetler and stated that she wished Ms. Shetler "would stop talking about it because it was going in one ear and out the other." Ms. Shetler confirmed the discussion in a letter dated February 24, 1987. During the conference of February 17, 1987, and after the conclusion of the conference, Ms. Shetler felt that Respondent's performance, from the start of the year through their conference, had not improved. Ms. Shetler also believed that the Respondent was unwilling to cooperate with attempts to remediate her performance and behavior. When Ms. Shetler gave the Respondent the evaluation for the 1986-87 school year, she had another conference with the Respondent to discuss the areas that were noted as improvement needed. The specific problems discussed were: (1) The Respondent's waste of classroom time; (2) Respondent's negative classroom climate; (3) Respondent's failure to use the positive aspects of the assertive discipline training which she had been given; (4) Respondent's working relationship with professional staff and (5) Preparing lesson plans. After the evaluation format change in the 1987-88 school year, Respondent's May 1988 annual evaluation by assistant principal James Williams and principal Carole Shetler was overall "satisfactory" (like her May 1988 Boca evaluation), and Respondent received a commendation expressing her willinginess to accept suggestions and grow professionally. It has not been alleged and there is no record evidence that Respondent's performance at Boca before the 1988-89 school year was deemed anything but satisfactory. In the 1987-88 school year, Respondent was evaluated at Boca Raton High School by assistant principal Robert Murley and principal Clara DeFrank when she was rated fully "satisfactory" and awarded two commendations. Respondent's 1988-89 evaluator was assistant principal Betty Dawson who prepared the overall unsatisfactory January 1989 and June 1989 evaluations along with principal Carole Shetler. On October 10, 1988, Ms. Dawson had one of her many conferences with Respondent. Present during the conference were Ms. Shelter, the Respondent, and Ms. Kennedy, the Respondent's Classroom Teachers Association Representative. During the conference, Respondent agreed to use a letter grading system, to make her daily objectives for the students clearer, and to note the objectives on the board. While the meeting was being conducted, the Respondent spoke to her evaluator, Mrs. Dawson, in a manner which indicated that she was upset. On January 11, 1989, Atlantic High School completed a mid-year evaluation of Respondent's performance. The Respondent received five (5) areas of concern on this mid-year evaluation. Attached to Respondent's mid-year evaluation were: (1) October 21, 1988, observation notes, (2) Respondent's November 28, 1988, summative observation instrument, and (3) Summary of the conference which Ms. Dawson had with Respondent on December 1, 1988, which directed Respondent to "work on beginning class on time and handling material." With respect to her January 1989 mid-year evaluation at Atlantic High School, Respondent expressly noted thereon that it was a review of previously discussed ideas and that she disagreed with some of it. She was then placed on her first PDP with a 30-day timeline to complete the remediation prescribed. The numerical concerns on the mid-year evaluation correlate with the "criterion" numbers/areas of concern cited on the PDP. The Respondent's first PDP at Atlantic High School directed the Respondent to: (1) Read Domains 2, 3, and 5, in Domains of the Florida Performance Measurement System; (2) Visit with Ms. Tarkinson's and Ms. Fail's class; (3) "Demonstrate professionalism at all times;" and (4) "Make a sincere positive effort in working toward positive relations with co-workers." Assistant Principal Robert Murley and Principal Clara DeFrank at Boca Raton High School also evaluated Respondent in the 1988-89 school year when a mid-year evaluation was also conducted. Respondent was then cited with five areas of concern (identical to the 5 cited in her Atlantic mid-year evaluation). Like Atlantic's January 1989 mid-year evaluation, since Respondent also had five areas of concern cited at Boca Raton High School, she was placed on a 30-day PDP which she timely complied with and satisfied all of the remediation strategies. Attached to the Respondent's mid-year evaluation at Boca Raton High School in January of 1989 were (1) Summative observations for October 26, 1988, and January 18, 1989; (2) A Deficiency notice dated January 23, 1989; and (3) The Respondent's Professional Development Plan. The concerns expressed in the January 1989 mid-year evaluation at Boca Raton High School were based on the administrators' belief that: (1) The Respondent behaved unprofessionally with her students; (2) The respondent behaved unprofessionally with Ms. DelBarco; The Respondent failed to start class on time; and (4) The Respondent behaved inappropriately during a parent conference. The Respondent's first PDP at Boca Raton High School directed the Respondent to: (1) Read Domains 2 and 3 in Domains of the Florida Performance Measurement System; (2) Complete "Classroom Management Professional Growth Component;" (3) Display a positive professional demeanor at all times; and Demonstrate professional relationship with noninstructional personnel. In a conference which was held on June 12, 1989, the Respondent received her annual evaluation from Atlantic High School. Attached to the Respondent's evaluation were: (1) A deficiency notice dated June 6, 1989; (2) A summary of conferences held with the Respondent from February 23, 1989, through May 11, 1989; (3) Several incident reports involving students; (4) Respondent's summative observations dated February 28, May 1, and June 5, 1989; and (5) The Respondent's up-dated Professional Development Plan which recommended "district level remediation in the Fall." The observation documents reported that during the observations the Respondent either started late or that she had "very little instruction going on." At the time of the conference, Ms. Dawson still had concerns about the Respondent's performance. Although Respondent had successfully complied with and otherwise completed the remediation set forth in her January 1989 (first Atlantic) PDP timely, within the prescribed thirty days, Respondent was nonetheless again cited in those same five areas on her June 1989 evaluation by Dawson and Shetler. The areas of concern/criteria (C-12, self control, and C-13, effective working relationships with coworkers) were cited on both the 1988-89 mid-year and annual evaluations and related PDP's solely because of the September 8, 1988, Delbarco incident even though no other comparable incidents had occurred with any aide, coworker, or administrator. With 5 areas of concern cited (rather than 4 or less), Respondent's annual evaluation was "unsatisfactory' and she was necessarily placed on her Atlantic PDP. Had the areas of "concern" C-12 and C-13 not again been cited on her evaluation, Respondent would not have been placed on her June 1989 second (1988- annual) PDP since she would have had an overall "satisfactory" evaluation. However, since she was again placed on a PDP, she was the subject of District remediation at the beginning of the 1989-90 school year, increased observations, and a mid-year evaluation. Later, in May 1989, Respondent was tendered her annual, and last Boca evaluation, which was also completed by Murley and DeFrank, again citing the same five concerns set forth in the mid-year evaluation, as well as another titled "Adheres to and Enforces School Policies." On September 11, 12, and 13, 1989, the Respondent received District level remediation at the request of both schools. The Respondent was referred for District level remediation because the Administrators at both schools felt like they had exhausted their resources with regard to the workshops, reading, and suggestions they could offer. On September 11, 1989, the Respondent was observed and counseled by Ms. Diane Larange, the ESOL Program Coordinating Teacher. At a later date, Ms. Larange sent Ms. Shetler and the Respondent a list of ESOL teachers she felt the Respondent should visit. Ms. Larange was of the opinion that the observation was overall satisfactory, although there were some minor things that could have been improved. Ms. Larange had previously observed the Respondent on several occasions in prior years and all of those observations were generally satisfactory. On September 12 and 13, 1989, the Respondent received assistance from Dr. Mary Gray, an expert in teacher education. The Respondent was assisted in the areas of: (1) Instructional organization and development; (2) Verbal and nonverbal communication; (3) Management of student conduct; and (4) Classroom climate. During the remediation sessions the Respondent was, in general, unenthusiastic. This was largely because the Respondent did not feel that the remediation offered was addressing any specific professional need relevant to her. The Respondent had requested assistance specifically addressed to the teaching of ESOL classes, which assistance was not provided. At no time prior to December 14, 1989, did Murley or any other Boca administrator or designee discuss with Respondent the results of any of the observations or summatives preceding that date in the 1989-90 school year, including her last (11-1-89) fully satisfactory observation/summative. Ultimately, about January 5, 1990, Respondent was tendered her mid- year evaluation and later a letter with attachments from Shetler dated January 8, 1990, referencing the evaluations and attachments, and advising that further assistance would not be recommended. Except as to her June 1986 annual evaluation, Respondent expressly disagreed with the material content of most of her periodic evaluations setting forth areas allegedly needing improvement, unsatisfactory areas, and/or areas, of concern, from January 1986 through January 1990. In each instance where Respondent disagreed with the material content of those evaluations before the evaluation format change in the 1987-88 school year, Respondent expressly noted her disagreement by marking the box stating "I disagree with the content of this evaluation," and on two such instances she forwarded letters expressing the substance of her disagreement. ESOL Experts and Unique Nature of ESOL Instruction ESOL is an educational program which uses the English language exclusively to teach English to speakers of other languages. ESOL teachers are not required to know the languages spoken by their students. ESOL classes should ideally be taught in a non-threatening manner using fun activities. The field of ESOL encourages the "buddy system." The buddy system pairs a beginning level ESOL student with a higher level ESOL student who speaks the same language. ESOL advocates cooperative learning, in which students help one another. Yvonne Cadiz is an expert in ESOL education such as observing, assessing, evaluating, and providing expert training and teaching, implementing the currently accepted newer ESOL teaching methodologies to ESOL teachers, in advising and assisting county school districts in implementing the service plan containing such newer methodologies and training techniques, and in advising the State Board of Education in those areas to develop rules to implement on-going changes in ESOL education. Ms. Cadiz is the past president of Gulf TESOL and a past sponsor of the ESOL Leadership Conference. The evaluation instrument and related summative used by the District to evaluate teachers is geared primarily to regular classroom teachers, not to teachers of "multi-level" ESOL instruction, which contains unique teaching methodologies. Administrators performing the observations and evaluations using those instruments generally lack the specialized ESOL background to recognize or adequately evaluate ESOL instructional skills or otherwise make effective recommendations on how to improve ESOL educational techniques. At all times material, none of the District's principals or assistant principals assigned to observe or evaluate Respondent had any of the requisite ESOL educational background or knowledge of the unique nature of ESOL education or its teaching methodologies. Accordingly, the criticisms directed to Respondent by such evaluators in their observation summatives, related documents, and periodic evaluations cannot be fully credited as valid and accurate criticisms. Such evaluators or other District administrators do not appear to have adequately observed and/or evaluated Respondent's teaching abilities or to have otherwise suggested or offered competent, adequate, suggestions for improvement or related remediation of perceived performance deficiencies. Accordingly, I credit the opinion of ESOL experts Yvonne Cadiz and Diane Larange that Respondent's classroom teaching skills were satisfactory. Respondent's treatment of work associates An ESOL Aide named Roxana DelBarco was hired for the 1987-88 school year to be an aide in the Respondent's ESOL classes at both Boca Raton High School and Atlantic High School. 2/ Ms. DelBarco apparently worked as the Respondent's ESOL aide for the entire 1987-88 school year without any significant incident. Ms. DelBarco returned in the same capacity for the 1988-89 school year. On September 8, 1988, an incident occurred in which the Respondent became annoyed or frustrated by Ms. DelBarco's inability to successfully complete an errand. In the course of sending Ms. DelBarco on the errand a second time, the Respondent raised her voice or otherwise spoke harshly to Ms. DelBarco in front of the students. The manner in which the Respondent spoke to Ms. DelBarco hurt the latter's feelings and caused her to cry. As a result of the September 8, 1988, incident, Ms. DelBarco decided she no longer wished to work with the Respondent and reported her decision to resign to the school administrators. A conference was held to try to persuade Ms. DelBarco to change her mind. During the course of the conference, the Respondent admitted she had raised her voice, apologized for doing so, and offered to talk to Ms. DelBarco about changing her decision to resign. Ms. DelBarco did not change her mind. As a result of the September 8, 1988, incident involving Ms. DelBarco, the Respondent was given written reprimands by both Atlantic High School and Boca Raton High School. Atlantic High School provided the Respondent with two recommendations: (1) Treat future aides in a "courteous and professional manner," while discussing differences of opinion in private and (2) Communicate with students in a courteous and kind manner, while refraining from "sarcasm or humiliating remarks as a means of discipline." Boca Raton High School advised the Respondent that she was to behave with staff and her students in a manner which demonstrated "positive, courteous interactions free from sarcasm, unnecessary loudness/harshness, or embarrassment in front of others." At the time of the September 8, 1988, incident, the two schools could have disciplined the Respondent by at that time placing her on a PDP, citing "criterions" 12 and 13. Both schools elected not to do so at that time. However, even though there were no similar incidents, both schools cited "criterions" 12 and 13 in the Respondent's mid-year evaluations at both schools, and placed her on PDP's. The Respondent timely and satisfactorily complied with and completed the prescribed remediation set forth in her 1988-89 mid-year PDP's (her first PDP's) without any further incidents relating to "criterions" C-12 or C-13 during the 30-day period specified in the PDP's or during the remainder of the 1988-89 school year. The foregoing notwithstanding, the Respondent's annual evaluations at the end of the 1988-89 school year cited "criterions" C-12 and C-13. As a direct result of these repeat citations, the Respondent was placed on a second PDP at both schools, even though there had been no similar incidents since the DelBarco incident. Had these two "criterions" not again been cited, the Respondent's annual evaluations at both schools would have been satisfactory. In view of the time of and the nature of the September 8, 1988, incident with Ms. DelBarco, and in view of the fact that there were no similar incidents during the remainder of the 1988-89 school year, the Respondent should have received satisfactory annual evaluations at both schools for the 1988-89 school year. 3/ At the beginning of the 1989-90 school year, an ESOL Aide named Maria Montiel was assigned to be the aide in the Respondent's ESOL classes at Atlantic High School. From the very beginning, the Respondent was apparently annoyed by the fact that Ms. Montiel seemed to be somewhat lacking in initiative, energy, and direction, even though Ms. Montiel was, generally, a sweet, warm-hearted, caring person. 4/ The Respondent went to one of the administrators, Ms. Thurber, to explain that she was having problems getting Ms. Montiel to follow instructions. Among other things, Ms. Montiel had questioned whether she was required to perform certain tasks the Respondent had asked her to do; tasks Ms. Montiel seemed to regard as work more appropriate for custodians than for teacher aides. As a result of being dissatisfied and annoyed with Ms. Montiel's performance, on a couple of occasions during the first three weeks of the 1989- school year, the Respondent spoke to Ms. Montiel in a loud voice or in a harsh tone of voice. The Respondent had good reasons for being annoyed on both occasions. After about three weeks, Ms. Montiel decided that she did not wish to work as the Respondent's aide. At Ms. Montiel's request, she was transferred to work at another school. Ms. Montiel's primary reason for not wanting to work with the Respondent was that she felt under-appreciated and under-utilized. During the 1989-90 school year, after Ms. Montiel left, Harvey Lee, Jr., was assigned to work as an aide at Atlantic High School in the Respondent's first period class and for part of the Respondent's planning period. Early in their relationship there was an incident in which the Respondent spoke harshly to Mr. Lee. Mr. Lee discussed the incident with the Respondent, the Respondent apologized to Mr. Lee, and for the remainder of that school year Mr. Lee and the Respondent had a harmonious relationship. During the 1989-90 school year on one occasion the Respondent raised her voice to a substitute teacher, Inga D'Orazio, in front of the class. The Respondent was admonishing the substitute for not following instructions the Respondent had left. 5/ Respondent's treatment of her students The Respondent appears to have a tendency to be impatient with students who are disruptive or who otherwise appear not to be trying to learn. As a result of this tendency, she probably refers more students to the office than the average teacher. 6/ But the evidence in this case does not show that the Respondent regularly engages in inappropriate or excessive disciplinary referrals. 7/ It is probable that the majority of the students the Respondent referred to the office for disciplinary reasons were of Haitian origin. 8/ It is clear that the majority of the students in the Respondent's classes were of Haitian origin. The Respondent's discipline referrals were all based on Respondent's evaluation of the conduct of each student referred. The Respondent did not discriminate on the basis of race or place of national origin in her discipline referrals. The Respondent did not prohibit her students from going to the bathroom during class. She did, however, discourage them from doing so. Her discouragement was consistent with school policy at both schools which generally discouraged teachers from issuing restroom or hall passes to students, absent an emergency. The Respondent provided reasonable assistance to her students at reasonable times and permitted her aides to do likewise. The Respondent would refuse to assist students or to answer student's questions during the course of such activities as lectures or testing. Such refusals were reasonable. At all times relevant to this case, the Respondent communicated with and related to the students in her classrooms to such an extent that the students received at least a minimum educational experience. Miscellaneous Findings The School Board of Palm Beach County, Florida, has entered into an Agreement with the Classroom Teachers Association (CTA), the representative of the teachers' bargaining unit. Said Agreement delineates terms and conditions of employment for teachers and provisions of this Agreement are applicable to Respondent's employment. Teachers at Atlantic High School are expected to have their grade book, attendance book, and lesson plans available for substitute teachers. On one or two occasions during the 1989-90 school year the Respondent may have failed to have a lesson plan available or may have had an inadequate lesson plan available for a substitute. 9/ During the 1986-87 school year, the Respondent was slow in complying with written instructions that she complete her course expectation and class rules. She did, however, ultimately comply.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the School Board of Palm Beach County issue a final order in this case dismissing all charges in the Amended Petition For Dismissal, restoring the Respondent to her position of employment on the instructional staff, and awarding the Respondent back pay from the date of her suspension without pay until the day she is restored to her position of employment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June 1991.
Findings Of Fact Petitioner is A graduate of the University of the East in Manila, Philippines. Petitioner is the holder of the state of Illinois C.P.A. Certificate No. 18012. On July 11, 1979, Petitioner filed an application to obtain a reciprocal certified public accountant certificate in Florida (licensure by endorsement) based upon his certificate issued by the State of Illinois. On December 14, 1979, the Board denied Petitioner's application for a reciprocal certificate for the reason that Petitioner had not graduated from an accredited four-year college or university and, accordingly, failed to satisfy the requirements set forth in Section 7(3)(b), Chapter 79-202, Laws of Florida, now codified as Section 473.308(3)(b), Florida Statutes (1979) The University of the East in Manila, Philippines, is not recognized by the Board as an accredited university in Florida and was not so recognized at the time that Petitioner received his certificate as a certified public accountant in the State of Illinois. The University of the East is not listed among the institutions of post secondary education by the Council on Postsecondary Accreditation, the official listing of accredited colleges and universities adopted by the Board to ensure the minimum competence of public accounting practitioners. Additionally, the University of the East in Manila, Philippines, has not been accredited by any of the regional accrediting agencies recognized by the Board. Douglas H. Thompson, Jr., the Respondent's Executive Director since 1968, is the Board's chief executive officer and, as such, carries out the Board's functions respecting applications for licensure. Mr. Thompson examined Petitioner's application pursuant to Petitioner's Illinois certificate to ascertain whether Petitioner's certificate was issued under criteria substantially equivalent to Florida's licensing criteria and determined that the criteria were not substantially equivalent. Petitioner's application was considered by the Board on two occasions and was rejected.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: Petitioner's application for a reciprocal certified public accountant certificate be denied. RECOMMENDED this 10th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1980. COPIES FURNISHED: Samuel Hankin, Esquire Commerce Building 226 South Main Street Gainesville, Florida 32602 Mr. Marianito Manalo Ilagan 9020 S.W. 56th Street Cooper City, Florida 33328 Ms. Nancy Kelley Wittenberg Secretary Department of Professional Regulation The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Paul W. Lane, holds teacher's certificate number 323312, issued by the Florida Department of Education, covering the area of substitute teaching. Such certificate is valid through June 30, 1993. Pertinent to this case, respondent was on a list of authorized substitute teachers in the Broward County School District, and during the 1989- 90 school year he was assigned as a substitute teacher at Plantation Middle School. In May 1990, a complaint was lodged with school authorities by one of respondent's students, Debi Keefe, regarding respondent's conduct. Following investigation, respondent was removed from the list of approved substitute teachers for the Broward County School District. 1/ Regarding the complaint lodged by Debi Keefe (Debi), the proof demonstrates that during the course of the 1989-90 school year, she was an eighth grade student at Plantation Middle School and was occasionally assigned to respondent's internal suspension class (ISC). On or about May 10, 1990, she was informed by a member of the faculty that he was going to return her to respondent's ISC, at which time Debi objected and accused respondent of various acts of misconduct which she contended occurred while previously assigned to his ISC. The acts of misconduct voiced by Debi, that were identified at hearing, were essentially four in number. First, she testified that when she wore her bicycle shorts to school, respondent would tell her to lift her shirt so he could see her "fat thing" (vagina). Second, when, following respondent's inquiry as to where she would be going for spring break, and Debi informing him that she would be at the beach, respondent stated that if she did "they could do it in [the] car". Third, upon becoming aware that Debi was dating her friend's cousin, respondent stated "I hope he fucks you so he makes you scream." Finally, Debi testified that on one occasion during ISC, respondent grabbed her on the leg, and she pushed his hand away. Regarding the later allegation, Debi had no recollection of the circumstances surrounding the event, and no conclusion can be drawn regarding the propriety of respondent's action in grabbing Debi's leg from the paucity of proof. According to Debi, she at first thought respondent's remarks to be a joke, but because they had continued, she elected to make her disclosure when faced with reassignment to his ISC. She was not really scared or embarrassed by respondent's remarks, but they did make her feel uncomfortable. Following Debi's revelations to the authorities at Plantation Middle School, an investigation was undertaken which included interviews with other students who had been in respondent's classes that school year. During the course of that investigation, three other students revealed what they felt was objectionable conduct by respondent. Those three students, Chantalle Habersham, Marilyn Gonzales, and Catherine Illiano testified at hearing as to the events which follow. Chantalle Habersham (Chantalle) was a seventh grade student in respondent's drop out prevention class for the 1989-90 school year. On Chantalle's fourteenth birthday, in May 1990, respondent announced that, following the end of class, he was going to give Chantalle some birthday "licks" (spanks), thereafter took her over his knee, and gave her fourteen licks across her buttocks. According to Chantalle, each time respondent gave her a lick, he rubbed his hand across her buttocks, but she declined to characterize such contact as a caress. At the time, Chantalle was wearing slacks and the spanking occurred in front of approximately four other students. Although embarrassed by the incident, it did not really scare Chantalle or make her angry. Nor was Chantalle's birthday spanking the first of such events in respondent's class. Rather, such had become a ritual or game, although perhaps ill advised, during the course of the year. Chantalle further testified regarding a spelling test where respondent used the word "saliva" in a sentence to demonstrate its meaning to the class. According to Chantalle, the sentence selected by respondent was as follows: "When I kiss Chantalle, saliva ran out my mouth". Chantalle did not, at the time, interpret respondent's statement to be a sexual or intimate reference on his part, but did find it embarrassing. Marilyn Gonzales (Marilyn) was a seventh grade student in respondent's language arts class, during the 1989-90 school year and also participated in track, where respondent was her coach. According to Marilyn, on one occasion during the school year she experienced a cramp in her thigh while running and respondent offered his assistance to alleviate the problem. While rubbing her thigh to isolate the area where the pain was located, Marilyn says that respondent "touched [her] vagina" once. Marilyn further testified that respondent, on another occasion, "touched [her] butt". On each of these occasions Marilyn was wearing shorts, and respondent did not then, nor did he ever, make any sexually suggestive remarks toward her. Regarding Marilyn's allegations of "touching," the record is devoid of any specificity as to the manner in which respondent "touched" Marilyn's vagina on one occasion and the manner in which or the circumstances surrounding the one occasion on which he "touched" her buttocks. Under such circumstances, the proof is as susceptible of demonstrating accidental contact, as it is an improper touching on respondent's part. Finally, Marilyn testified regarding an event that occurred in respondent's ISC while she and Chantalle were passing out papers. According to Marilyn, she and Chantalle were discussing, in respondent's presence, Marilyn's sister, who was single and pregnant with her second child. During the course of that conversation, respondent was attributed with saying something to the effect that, "if a girl lay down and spread her legs something would happen." Such statement was not, however, shown to be a sexually suggestive remark, nor was it so taken by Marilyn. Rather, considering the context in which it was uttered, such remark was, as likely as not, intended to evoke caution least the girls find themselves in the same predicament as Marilyn's sister. Catherine Illiano (Catherine) was an eighth grade student at Plantation Middle School during the 1989-90 school year and participated in after school athletics, discus and shot put, for which respondent was the coach. According to Catherine, on one such afternoon she and Marilyn Gonzales, along with the other girls who were participating in shot put and discus, were gathered, and respondent stated to Marilyn that "he liked her big titties", and then turned to Catherine and stated "don't worry, I like little ones too." While such statements were certainly improper, the circumstances surrounding such remarks were not adequately explicated at hearing to demonstrate baseness or depravity. Finally, Catherine also testified that on another afternoon respondent stated to her that her "father wouldn't like it if [she] had a black hand across [her] ass". When asked why respondent made such a statement, Catherine answered: I don't know. We were just talking about the shot put and we were all playing around and he bursted out with that. While the circumstances surrounding the incident are sparse, they suggest, as likely as not, that respondent's statement was intended as a reproach for Catherine's disruptive conduct at the time, rather than for any improper motivation. Contrasted with the recollections of Debi, Chantalle, Marilyn and Catherine, respondent testified that, but for the birthday spanking of Chantalle, which did occur, and his current lack of recollection regarding the statement made by him during the spelling test, that the remaining statements or conduct attributed to him by the other students did not occur. Considering the proof offered in this case, with due deference to the standard of proof applicable to these proceedings, discussed infra, compels the conclusion that respondent was not shown to have committed any improper or immoral act when he touched Debi and Marilyn, and was not shown to have committed an improper or immoral act when he spanked Chantalle on her birthday. Such conduct was also not shown to seriously reduce respondent's effectiveness as an employee of the District, or to constitute the intentional exposure of a student to unnecessary embarrassment or the exploitation of a professional relationship for personal gain or advantage. 2/ Regarding the remarks attributed to respondent by Debi, Chantalle, Marilyn, and Catherine, the proof in this case is compelling that respondent did utter such remarks. The remarks uttered to Debi, a fourteen-year-old girl at the time, were base, exposed her to unnecessary disparagement, and seriously reduced respondent's effectiveness as an employee of the District. The remarks uttered to Chantalle, Marilyn and Catherine, while not shown to be of such inherent baseness as to rise to the level of gross immorality, were nevertheless improper and, to varying degrees, demonstrated respondent's failure to fulfill his duty of providing leadership and effectiveness as a teacher.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be rendered which permanently revokes respondent's teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of August 1991. WILLIAM J. KENDRICK 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 27th day of August 1991.
The Issue Whether the charges contained in the Petitioners' complaints constitute a basis for discipline against Respondent's Florida teacher's certificate pursuant to section 231.28, Florida Statutes (1984 supp.), and for the suspension or dismissal of Respondent from employment with the school Board pursuant to Section 231.36, Florida Statutes (1984 supp.)?
Findings Of Fact The Respondent is licensed as a teacher by the Florida Department of Department of Education. He holds Florida Education Certificate Number 486520 (this fact was admitted in the Pre-Hearing Stipulation). The Respondent is employed by the School Board pursuant to a continuing contract of employment (this fact was admitted in the Pre-Hearing Stipulation). The Respondent's Florida Teacher's Certificate qualifies him to teach "quantity food" at the Vocational-Technical level. Respondent was employed by the School Board to teach culinary arts at the Pinellas Vocational Technical Institute. The average age of students taught by Respondent was 25 to 30 years. During the 4 years the Respondent has been employed with the School Board he has received satisfactory and above satisfactory evaluations. The following facts have all be admitted in the Pre-Hearing Stipulation. In 1972, in the State of Vermont, the Respondent pled no contest to possession of 2.2 grams of hashish. In 1976, in the State of Pennsylvania, the Respondent was arrested for disorderly conduct. Adjudication is unknown. In 1976, in the State of Florida, the Respondent was arrested for possession of less than 4 grams of marijuana and driving while intoxicated. Respondent pled no contest. In 1977, in the State of Florida, the Respondent was arrested for possession of more than 4 grams of marijuana, resisting arrest with violence and assault on a police officer. Adjudication was withheld. Detective William Donal Gates, Jr., Tampa Police Department, participated in Respondent's arrest in 1977. Detective Gates identified the Respondent as the individual he arrested. Detective Gates also testified that the Respondent engaged in a physical altercation with one of the arresting officers. The record in these cases fully supports the facts admitted in the Pre- Hearing Stipulation. The record also supports the admission of the Respondent in the Pre-Hearing Stipulation that he did not disclose his criminal record when applying for a Florida Teacher's Certificate or employment with the School Board. In applying for a Florida Teacher's Certificate and employment with the School Board, the Respondent failed to disclose any of his convictions and arrests listed above except his arrest for DWI; the arrest for DWI was reported on a Personal Data Sheet Post Employment Information form. On September 11, 1980, the Respondent certified as true his response to questions he answered on an Application for Teacher's Certificate filed with the State of Florida. The Respondent acknowledged on the Application that he understood the following: Florida Statutes provide for the revocation of teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. On the September 11, 1980 Application the Respondent answered "no" to the following question: Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations? Despite the Respondent's acknowledgement on the Application, Respondent's answer to this question was clearly untrue. Respondent also untruthfully answered the same question on an Application for Teacher's Certificate and Reapplications for Temporary Certificate signed by the Respondent on May 13, 1981, April 13, 1982, and April 7, 1983. On each of these forms there was a statement to the effect that the Respondent, by signing his name thereto, acknowledged his answers were true and correct. There was also a statement on these forms that informed the Respondent that he could lose his teaching certificate if he obtained it through fraudulent means. The Respondent acknowledged this statement. On September 24, 1980, the Respondent signed an application for employment as a teacher with the School Board, and his signature appeared under the following language on the application form: [I]f employed by the School Board of Pinellas County, Florida [I] do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida. I further certify that all information given on this application is true to the best of my knowledge. Despite this statement, the Respondent answered "No" to the following question: Have you ever been convicted of a misdemeanor (other than minor traffic violations), a felony, or any other offense involving moral turpitude? The Respondent also answered this question negatively on an application for part-time employment filed with the School Board. Finally, on December 2, 1980, the Respondent was asked the following two questions on a Personal Data Sheet Post Employment Information form: Have you ever been arrested? YES( ) NO( ) If yes, please list all arrests by date, location, and charges. Have you ever been convicted? YES( ) NO( ) If yes, please list convictions by date, and location. In response to the first question, Respondent answered by placing an "X" after "YES and listed "D.W.I." Respondent also placed an "X" after "NO" in response to the second question. These responses were certified as true by the Respondent. Respondent admitted in the Pre-Hearing Stipulation and at the hearing that he failed to report his arrests and convictions when he applied for a Teacher's Certificate and for employment with the School Board. At the final hearing, the Respondent indicated that he did not disclose his arrests and convictions because he believed that his criminal record had been sealed. According to the Respondent, the attorney who represented him when he was arrested in 1977 told him that he would arrange to have the Respondent's criminal record sealed if he would cooperate with the authorities. His attorney also told him that the authorities had agreed to drop the charges against him if he would cooperate. The Respondent did in fact cooperate and the charges against him were dropped. The Respondent indicated that he believed his record had been sealed since the charges were dropped. There is no evidence, however, that the Respondent's attorney told him that the authorities had agreed that they would have his records sealed or that they had in fact been sealed, only that his attorney said he would have them sealed. The Respondent, when first confronted with his prior arrests and convictions by Ms. Nancy Zambito, School Board Director of Personnel Services, in July of 1984, did not tell Ms. Zambito or Mr. Warren Laux, principal of Pinellas Vocational Technical Institute, who was also present, that he had not divulged his criminal record because he believed his record had been sealed. Instead, the Respondent gave other reasons for not answering the questions correctly including his concern that he would not be hired by the School Board if he told the truth. Based upon the foregoing, it is concluded that the Respondent intentionally misrepresented his criminal history because he believed he would not be employed by the School Board or granted a Florida Teacher's Certificate if he divulged his criminal record. Dr. Ronald Stone, the Executive Assistant Superintendent for Human Resources for the School Board, testified that, based upon the arrests and convictions of Respondent and his failure to disclose his record, the Respondent would not be granted a Florida Teacher's Certificate and should be dismissed from employment with the School Board. Dr. Stone also testified that the School Board's policy as to the treatment of persons who disclose criminal offenses on their applications is to determine whether the crime involved was serious enough to render an applicant unsuitable to teach. Based upon the nature of Respondent's offenses, Dr. Stone indicated that the Respondent was unsuitable for employment as a teacher. Ms. Zambito also testified that the appropriate sanction in these cases would be revocation of the Respondent's Florida Teacher's Certificate and dismissal from employment with the School Board. Both Dr. Stone and Ms. Zambito based their opinion on their conclusion that the Respondent's actions violated the public trust and because of the negative effect on students, regardless of their age, of a teacher with the Respondent's background.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found not guilty of "immorality" under Section 231.36(4)(c), Florida Statutes (1984 Supp.), and "gross immorality" under Section 231.28(1)(c), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found guilty of "misconduct in office" in violation of Section 231.36(36)(4)(c), Florida Statutes (1984) Supp.). It is further RECOMMENDED: That Respondent be found not guilty of being convicted of a crime involving moral turpitude in violation of Section 231.36(4)(c), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found guilty of obtaining his teaching certificate by fraudulent means in violation of Section 231.28(1)(a), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found not guilty of an act involving moral turpitude in violation of Section 231.28(1)(c), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found not guilty of having been convicted of a crime in violation of Section 231.28(1)(e), Florida Statutes (1984) Supp.). It is further RECOMMENDED: That Respondent be found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board in violation of Section 231.28(1)(a), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found guilty of violating Section 231.28(1)(h), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be dismissed from his employment with the School Board and his continuing employment contract be cancelled. It is further RECOMMENDED: That Respondent's Florida Teacher's Certificate be permanently revoked. DONE and ENTERED this 6th day of May, 1985, in Tallahassee, Florida. LARRY J. SARTIN 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 6th day of May, 1985. COPIES FURNISHED: Usher Brown, Esquire Associate School Board Attorney 1960 E. Druid Road P.O. Box 6374 Clearwater, Florida 33513 Robert McKee, Esquire KELLY & McKEE, P.A. 401 S. Albany Avenue Tampa, Florida 33606 Mr. Donald L. Griesheimer Executive Director Department of Education Education Practices Commission Tallahassee, Florida 32301 =================================================================
Findings Of Fact Petitioner Samuel J. Pomeranz holds a "Rank 2" certificate issued by the Florida Department of Education. Petitioner Samuel J. Pomeranz obtained an advanced certificate in Educational Administration and Supervision in June 1970, from City College of New York. He obtained a Bachelor of Arts Degree in 1957 and a Master of Arts Degree in Education in 1959. Petitioner was licensed as a teacher in the State of New York and served as head of Curriculum Development in a senior high school in New York, New York. At the time of the hearing, he had not taught school in the State of Florida. Petitioner applied for a "Rank 1A" teaching certificate from the Respondent Department of Education Certification Section, but certification as "Rank 1A" was denied. Florida Administrative Code Rule 6A-4.049(1)(b) 1. requires that an applicant hold a "sixth year postmaster's level degree." Applicant received a certificate rather than a degree at the conclusion of his postmaster's work.
Recommendation Affirm the Respondent's action in denying Petitioner's request for "Rank 1A" certificate. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. COPIES FURNISHED: William L. Boyd, Esquire Post Office Box 5617 Tallahassee, Florida 32303 Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32304 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
