The Issue Whether just cause exists for the proposed disciplinary action against the Respondent.
Findings Of Fact At all times material to this case, Cheryl McDonough (Respondent) was employed by the Pinellas County School Board (Petitioner) under a professional services contract. The Respondent was initially employed as a teacher by the Petitioner in 1987. On December 11, 1989, the Respondent received a written reprimand from the Assistant Principal at Northeast High School for using poor judgement by displaying anger when dealing with inappropriate student behavior. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Northeast High School until budgetary considerations led to her transfer to Osceola High School. On January 13, 1992, the Respondent received a written reprimand for using poor judgement by displaying anger and using vulgar language when dealing with inappropriate student behavior at Osceola High School. The reprimand was issued by the School District Director of Personnel Services. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Osceola High School until her position was eliminated for fiscal reasons. On February 14, 1994, the Respondent received a written conference summary from Joann Andrews, Principal at Azalea Middle School, where she had become employed. The summary notes that alcohol had been detected on the Respondent's breath during school hours. The Respondent denied the allegation. On April 20, 1994, the Respondent received a written school memorandum from the Assistant Principal at Azalea Middle School for smoking in an inappropriate area on school property. In the summer of 1994, the Respondent was transferred to the district service center where she worked until gaining employment at Lakewood High School in the fall of 1994. By letter from the Superintendent of Pinellas County Schools dated July 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be suspended without pay for ten days. The basis for the recommendation were allegations that the Respondent made disparaging remarks to a student and his mother in front of other students, that the Respondent had the odor of alcohol on her breath, and that the Respondent made derogatory remarks about another teacher to other students and had attempted to disrupt the other teacher's class. On September 13, 1994, the School Board issued a Final Order suspending the Respondent without pay for five days based on the allegations set forth in the July 7 letter. The Final Order was issued pursuant to a settlement agreement reached by the parties. During the 1994-1995 school term, the Respondent was employed as a teacher at Lakewood High School. During a Lakewood faculty meeting on August 23, 1994, the smell of alcohol was detected on the Respondent's breath. During a Lakewood "open house" in September, 1994, the smell of alcohol was detected on the Respondent's breath. During the first semester of the 1994-1995 school term, several students smelled the odor of alcohol on the Respondent's breath. During the first semester of the 1994-1995 school term, the Respondent used vulgar language including "damn," "hell," "shit," "bitch," and "fuck" in the classroom and within the hearing range of students. During the first semester of the 1994-1995 school term, the Respondent used demeaning language towards students in her classroom, calling them "brats" and "dumb," and stating "you are the worst class" and "you will never amount to anything." The Respondent told her sixth period class that she would kill them if she thought she could "get away with it." On more than one occasion, the Respondent became frustrated by the class behavior. She would give the class a "work assignment" and would refuse to teach. There is no credible evidence that the "work assignments" were part of any prepared teaching plan or were otherwise utilized as instructional resources. During the first semester of the 1994-1995 school term, the Respondent physically separated her fourth period class into two groups which she identified as "learners" and "non-learners." A row of empty desks was used to divide the students. During this episode, the Respondent refused to teach the group she called "non-learners." After receiving complaints from students about the division, an official at the school visited the Respondent's class and directed her to reunite the class. By letter from the Superintendent of Pinellas County Schools dated November 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be dismissed. The basis for the recommendation were allegations as follows: the Respondent used profanity and demeaning language towards students on numerous occasions; the Respondent had alcohol on her breath while at school on two occasions; the Respondent stated to her sixth period class that she would kill them all if she could get away with it; and that the Respondent separated students into two groups within the classroom setting and taught only half the class. The Respondent requested a formal administrative hearing which is the basis for this Recommended Order. At the hearing, the Petitioner's expert witnesses opined that the allegations, if established to be true, were of sufficient seriousness to impair her effectiveness as a teacher.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Pinellas County School Board enter a Final Order terminating the employment of Cheryl McDonough. DONE and RECOMMENDED this 20th day of June, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6983 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 10. Rejected, correct year is 1994. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected as to use of medication. The greater weight of credible and persuasive evidence fails to establish that the Respondent took the medication at the times when the odor of alcohol was detected on her breath. Immaterial. The evidence fails to establish that the students in the classes taught by the Respondent are responsible for her behavior therein. 6-11. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 14. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 15-16. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. Rejected. The Respondent does not recall making the statement so her explanation of her intent is speculative. As to the cited testimony of Ms. Hanes, it is immaterial because the statement is not "in and of itself" the sole event warranting termination. 19-21. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, immaterial, no related allegation. Rejected, immaterial Rejected, immaterial. Classroom management "techniques" are not the sole cause warranting termination. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County Post Office Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649 Marguerite Robinson, Esquire Kelly & McKee Post Office Box 75638 Tampa, Florida 33675
The Issue The issues in this case are whether Respondent committed the offenses charged in the Amended Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is responsible for investigating and prosecuting complaints against individuals who hold a Florida educator’s certificate and who are alleged to have violated one or more provisions in section 1012.795 and implementing rules. Respondent holds Florida educator’s certificate 777352, covering the area of social science, which is valid through June 30, 2020. Prior to becoming a teacher, Respondent was in the military for 21 years, serving as a soldier and non-commissioned officer in the U.S. Army. Respondent describes himself as a “great leader,” a skill he believes he developed in the Army. Respondent was employed as a teacher for the Lee County School District (School District) beginning in 1998 or 1999.6/ He taught social science classes at Bonita Springs Middle School until 2009. A former student who attended that school between 2002 and 2004 spoke highly of Respondent as her teacher. That student has not been in a classroom with Respondent since 2004. Beginning in early 2005, Respondent’s record as a teacher at Bonita Springs Middle School became spotted with disciplinary measures being regularly taken against him. The matters for which Respondent was disciplined were similar, evidencing a pattern of inappropriate physical contact with students, angry outbursts, conflicts with principals, and inappropriate classroom conduct, including ridiculing, embarrassing, and yelling at students. In February 2005, at the request of the Bonita Springs Middle School principal, Respondent attended an in-service training on Anger Management and De-Escalation Training. Despite that training, between 2005 and 2009, Respondent received six letters of reprimand from three different principals and two different directors of the School District’s Department of Professional Standards and Equity (DPSE). The letters of reprimand were for incidents described as: pushing a student (letter of reprimand, March 2, 2005); inappropriate physical contact--putting his hands in the pants of a female student (letter of reprimand, September 27, 2005); shoving two students out of the classroom (letter of reprimand, March 2, 2006); shouting at students in the hallway in a very harsh and loud tone (letter of reprimand, September 22, 2006); exposing students to unnecessary embarrassment or disparagement (letter of reprimand, August 6, 2009); and kicking three students out of class, and yelling at the remaining students in the classroom, “You all are a bunch of idiots” (letter of reprimand, October 26, 2009). On December 8, 2009, Respondent was involved in another incident with a student, E.C., who was a seventh-grade female. Respondent had sent E.C. to a neighboring classroom, connected to his classroom by a vacant office. When E.C. tried to return to Respondent’s classroom through the vacant office to retrieve her things, Respondent stopped her and told her to return to the other classroom. E.C. was determined to get her things and disobeyed Respondent. When she tried to go around him to go back into his classroom, Respondent put his hand on her shoulder in an attempt to stop her. E.C. told him: “Don’t touch me.” She retrieved her things from Respondent’s classroom and then returned to the other classroom where Respondent had sent her. At that point, Respondent called the office for assistance. The District’s DPSE immediately began an investigation. Respondent was suspended from teaching with pay and benefits as of December 9, 2009, pending completion of the investigation. Following the investigation and a predetermination conference, the School District’s superintendent filed a Petition for Termination, alleging that Respondent was guilty of misconduct and other violations in connection with the incident on December 8, 2009. Respondent, represented by counsel, requested an administrative hearing to contest the proposed termination. Beginning March 9, 2010, the terms of Respondent’s suspension were changed to without pay pending resolution of the administrative proceeding. A DOAH evidentiary hearing was held on July 14, 2010. The resulting Recommended Order found Respondent guilty of misconduct and some of the other charged violations. The recommended penalty was suspension without pay from March 9, 2010, through January 1, 2011. The Recommended Order’s findings of facts, conclusions of law, and recommended penalty were adopted in a Lee County School Board Final Order rendered November 2, 2010. Lee County School Board v. Joseph Cofield, Case No. 10-1654 (Fla. DOAH Sept. 24, 2010; Lee Cnty. Sch. Bd. Nov. 2, 2010) (2010 Suspension Order). Detailed findings of fact were made in the 2010 Suspension Order regarding the history of disciplinary action taken against Respondent from 2005 through 2009, which went uncontested by Respondent through the grievance process available to dispute disciplinary action. See 2010 Suspension Order, RO at 3-7. The findings also describe the repeated warnings given to Respondent in the numerous letters of reprimand, which went unheeded; Respondent continued to engage in the same types of inappropriate behavior, despite the discipline and the warnings. Findings were also made in the 2010 Suspension Order regarding Respondent’s positive contributions as a teacher during the same time span as his patterned inappropriate behavior. These included: being honored in 2005 as Wal-Mart Teacher of the Year; being honored by Florida Gulf Coast University as College Reachout Program Coordinator of the Year; participating in a conference in January 2009 to discuss the Troops to Teachers Program; coordinating a computer give-away program in conjunction with a community organization that presented computers to Bonita Spring Middle School; and achieving success in Cadet and College Reachout Programs. See 2010 Suspension Order, RO at 11-12. The 2010 Suspension Order concluded as follows: The School Board did establish that Mr. Cofield placed his hand on a student’s shoulder without the permission of the student. Mr. Cofield has been warned and disciplined in the past for placing his hands on students without the student’s permission. Mr. Cofield chose not to heed those warnings. Mr. Cofield argues that placing his hand on E.C. was reasonable force needed to control his classroom. This argument is without merit. Mr. Cofield did not need to put his hand on E.C.; he could call the office for assistance. The School Board has established that Mr. Cofield’s conduct constitutes misconduct[.] * * * Mr. Cofield has performed outstanding work with the various programs designed to assist students, such as the computer give-away program, the Cadet program, and the College Reachout Program. This work mitigates against termination. However, placing a hand on a student without justification warrants a serious disciplinary action. 2010 Suspension Order, RO at 14-15. Respondent did not appeal the 2010 Suspension Order. Its findings, officially recognized herein, establish the backdrop of Respondent’s significant track record of discipline, and of the repeated warnings given in connection with disciplinary measures, from 2005 through 2009. No contrary evidence was offered. In October 2010, just before the School Board rendered the 2010 Suspension Order, Petitioner issued an Administrative Complaint against Respondent (2010 Complaint), seeking to take disciplinary action against Respondent’s educator’s certificate. The 2010 Complaint set forth Respondent’s “history of discipline related to conduct with students,” listing in summary fashion much of the same disciplinary history detailed in the 2010 Suspension Order. Respondent’s disciplinary history set forth in the 2010 Complaint was as follows: On or about March 2, 2005, Respondent received a Letter of Reprimand from [the] principal related to pushing [a] student. On or about September 27, 2005, Respondent received a Letter of Reprimand from [the] principal resulting from allegations that Respondent put [his] hand into [a] student’s front pocket. On or about September 25, 2006, Respondent received a Letter of Reprimand from [the] principal for yelling at Cadets in a loud and harsh manner. On or about October 9, 2009, Respondent received a Letter of Reprimand from [the] principal for, among other things, Respondent’s confrontational behavior towards [the] principal. On or about October 28, 2009, Respondent received a Letter of Reprimand from [the] principal relating to conduct with students. On or about December 9, 2009, Respondent received a Letter of Suspension from [the] principal related to allegations of [a] physical assault on a student. 2010 Complaint at 1-2 (Pet. Exh. 1). The 2010 Complaint added allegations of other incidents of inappropriate conduct by Respondent during the 2008-2009 school year, including the following: Respondent called students embarrassing names such as “knucklehead” and “fruitcake.” Respondent looked at female students in a manner that made the students feel uncomfortable and self conscious. Respondent threatened students telling them, “I will cut your fingers off,” or “I’ll smash your head into a wall,” or words to that effect. 2010 Complaint at 2 (Pet. Exh. 1). Respondent, represented by counsel, entered into a settlement agreement to resolve the charges in the 2010 Complaint, rather than contest them in an administrative hearing. Respondent signed the agreement on April 28, 2011. Pertinent terms of the settlement agreement were: Respondent neither admits nor denies, but elects not to contest the allegations set forth in Petitioner’s Administrative Complaint, which are incorporated herein by reference. Respondent agrees to accept a letter of reprimand, a copy of which shall be placed in his certificate file with the Department of Education and a copy of which shall be placed in his personnel file with the employing school district. Respondent agrees that he shall be placed on probation for a period of two (2) employment years. . . . As conditions of probation, Respondent: * * * shall, within the first year of probation, take a 3-credit hour college level course in the area of Classroom Management. . . . shall violate no law and fully comply with all district school board regulations, school rules, and State Board of Education Rule 6B-1.006 [transferred to rule 10A-1.081 in January 2013; see endnote 2]; and shall satisfactorily perform his duties in a competent, professional manner. * * * In the event Respondent fails to comply with each condition set forth herein, he agrees that the Petitioner shall be authorized to file an Administrative Complaint based upon the violation of the terms of this Settlement Agreement. Settlement Agreement at 1-2 (Pet. Exh. 1). By Final Order rendered on August 9, 2011, attaching and incorporating the 2010 Complaint and settlement agreement, the EPC accepted the settlement agreement and ordered Respondent to comply with its terms. Respondent did not appeal. Respondent was on probation, and subject to the specific probation conditions imposed by the EPC Final Order, for the 2011-2012 and 2012-2013 school years. Meanwhile, Respondent completed the term of his suspension from teaching without pay imposed by the School Board’s 2010 Suspension Order on January 1, 2011; he was allowed to return to work on January 3, 2011. Respondent was not asked to return to teach at his former school, Bonita Springs Middle School. Instead, he was offered a teaching position at the Alternative Learning Center (ALC). The ALC principal, Ken Burns, was told to make a spot for Respondent to teach there, and he did. Respondent accepted the teaching position at ALC. He taught eighth grade social studies. ALC is an alternative school. Students are sent to ALC because they are having problems at other schools. Principal Burns describes the ALC students as kids who made bad decisions, but who are not bad kids. These students can present challenges for teachers and administrators. In classrooms, sometimes these students do not act properly. They can be disruptive. The teachers are responsible for managing their classrooms properly, in accordance with standards set by Florida law and regulations, and School District policies. Principal Burns described some of the methods used at ALC to deal with problems in the classroom. One tool in place is called Team Time Out. Specific teachers are scheduled to be in charge of Team Time Out for a period of time. If a student is getting unruly in a classroom, the teacher can send the student to the designated teacher in charge of Team Time Out. The student is allowed to cool down before returning to class. Another tool used is a regular Time-Out Room. If a student is disrupting a class, the teacher might send the student to the Time-Out Room, where the student can work on assignments. Regardless of the student problem being confronted, each teacher is expected to abide by the code of conduct established for the education profession. Rather than violate those conduct standards, if the teacher cannot otherwise handle a student problem, the teacher is expected to call administration or security for assistance. On November 30, 2012, while on his EPC-imposed probation, Respondent received a letter of warning, which is a form of disciplinary action, from the ALC principal. As described in the warning letter, a student reported that Respondent pushed the student out the door during a fire drill, and that the push nearly caused the student to fall. The incident described in the letter of warning is similar to the long list of prior incidents for which Respondent was disciplined and about which Respondent was repeatedly warned, including the incident for which Respondent had recently served a suspension without pay for nearly ten months. The November 30, 2012, letter of warning ended with a yet another reminder “to assist in correcting this conduct,” providing as follows: “From this point forward, please remember at no point should a student be physically touched. If you are having an issue with a student please notify the administration or security for immediate assistance.” Very shortly after that incident, the ALC principal received other complaints about Respondent’s behavior with students and his classroom temperament. The complaints came not just from students, but also from a paraprofessional (teacher’s aide) who was concerned about Respondent’s behavior that she had observed when she was in his classroom. The ALC principal consulted with the School District’s DPSE, collected statements from the paraprofessional and students, and passed on the information to the DPSE. By letter dated January 11, 2013, Respondent was informed that the DPSE was conducting an investigation into allegations of misconduct. Because the allegations involved issues of student safety, the notification letter informed Respondent that he was suspended from teaching with pay during the investigation. Andrew Brown, then-investigator for the DPSE, conducted the investigation of alleged incidents involving Respondent in December 2012 and January 2013, and prepared an investigative report. The complaints that were investigated were summarized in the report as follows: On or about December 20, 2012 (just before Winter Break), Mr. Cofield allegedly slammed a student’s fingers between the student’s desk and a binder the student was holding. In a separate incident [on] December 19, 2012, Mr. Cofield allegedly threatened a student by grabbing and holding a keyboard in a threatening manner. He allegedly slammed a door behind the same student as the student was leaving the room, making contact with the student’s arm. In a third incident [on] 1/8/12 [sic: 2013], Mr. Cofield allegedly embarrassed students by asking each one to sit separately on a stool at the front of the room and answer the question, “Do you have a teacher’s license?” before sending the same students out of the class. The investigative report noted that Respondent was “on probation” with the EPC “for similar allegations and conduct.” A predetermination conference was held on January 30, 2013, to allow Respondent to respond to the investigation findings and add any information he would want considered. Respondent was represented by union counsel at that conference. By letter dated February 5, 2013, Respondent was informed that the School District found probable cause for disciplinary action based on the allegations of misconduct investigated, and would be recommending termination of his employment.7/ As was done in 2009, the terms of Respondent’s suspension were changed to without pay, as of February 6, 2013. Before the School District could proceed with a Petition for Termination, Respondent submitted a letter of resignation on March 12, 2013. Respondent has disputed Petitioner’s contention that the resignation was in lieu of termination. When Respondent was deposed, he testified that he wrote his resignation letter to explain that this was a stressful situation for him. However, the letter makes no mention of a stressful situation. It simply reports that Respondent was taking the time for pursuit of higher education, to complete a master of arts degree and then seek a doctorate degree, and that Respondent had concluded: “I feel that it is time to resign in my career as a classroom teacher. I will peruse other opportunities that will be open to me as a result of obtaining my new graduate education.” Respondent testified that he did not think he had already been suspended from teaching when he resigned, and he thought he was still being paid. Contrary to Respondent’s recollection, he had not been teaching for nearly two months, having been suspended on January 14, 2013. He resigned six weeks after being confronted with the details of the DPSE’s investigation in a predetermination conference, and five weeks after he received a letter informing him that probable cause had been found and the recommendation would be made to terminate his employment. He had not been paid for five weeks when he submitted his letter of resignation. A fair inference from the timing is that he chose to resign when he did to avoid being terminated from employment and/or having to contest the charges in another administrative hearing. Pursuant to section 1012.796(1)(d), Florida Statutes, even though Respondent had resigned, the School District was required to report the alleged misconduct to the Department of Education, which then conducted its own investigation. Petitioner issued an Administrative Complaint against Respondent on March 9, 2015, and an Amended Administrative Complaint on December 3, 2015. The specific incidents alleged in both versions of the complaint, are as follows: On or about December 19, 2012, Respondent grabbed a keyboard from a computer being used by R.T., a fourteen year old, male student. Respondent held the keyboard over the head while glaring at R.T. and in a manner that made the student believe Respondent was about to hit him with the keyboard. On or about December 20, 2012, Respondent became angered when C.G., a thirteen year old, male student, tapped on his binder repeatedly. Respondent slammed C.G.’s binder with force, bringing the binder down on C.G.’s fingers causing pain to C.G. Respondent then threw C.G.’s binder in the trash. On or about January 7, 2013, Respondent called students in his class to the front of the room and individually asked them, in front of the class, if they had a license to teach. Respondent disputed the first allegation of a keyboard incident; Respondent admitted parts of the second allegation of a binder incident, while denying part of the allegation; and Respondent admitted the third allegation. No non-hearsay evidence was presented to prove the allegations regarding a computer keyboard incident on December 19, 2012. The student, R.T., did not testify; no other students or other eyewitnesses testified; and Respondent denied the allegations. R.T. provided a written statement about the incident, which is in evidence, but that statement is hearsay and cannot be used as the sole basis for a finding of fact. Petitioner did not argue that R.T.’s statement would be admissible over objection in a civil action, and the statement does not supplement or explain any non-hearsay evidence. Respondent admitted parts of the allegations regarding a binder incident on December 20, 2012. Respondent acknowledged that a student in his classroom, C.G., was tapping on, flipping, or otherwise playing with a notebook or binder when the class was supposed to be taking a test. Respondent admitted that he took the binder out of the student’s hands, and threw the binder across the room into the garbage can. As he testified: A: If there is a kid sitting in my classroom after I’ve given instructions of what to do and they still banging on a desk, yes, I have the right to go remove this noise away from these students that are trying to get ahead. If there is something wrong with that I don’t need to be in a classroom. Q: And throw this in the trash can? A: Sir, when I took -- as my statement says, I took the binder away from the child and I threw it across the classroom. If it went in the garbage can, sir, it went in the garbage can. I don’t -- I didn’t pay attention to where it went at. I stopped the negative behavior going on in my classroom. Q: So now your testimony is you took it and threw it across the classroom? A: Sir, I took the instrument away from the student and it went in the garbage can. Q: . . . [T]ell us what you told them at your predetermination conference. Didn’t you say you put it in the garbage? A: No, I put the binder in the garbage, that’s what it states. But we clearly know that that’s not . . . [t]here’s nothing false about that. What it means is the binder left the student’s desk and wound up in the garbage can. Q: It didn’t wind up there, you put it there, right? A: Yes sir, I put it there. (Tr. 131-132). In his deposition testimony, Respondent more clearly acknowledged that he intended to throw the student’s binder in the garbage can; he did not equivocate as he did at hearing: Q: Then you didn’t walk over to the trash can and, in a Frisbee-type manner, throw the binder into the trash can? A: Oh, I most definitely put it in the garbage can, sir. Q: You did? A: Yes sir, I did. Q: All right. Why did you do that? A: Because the student was disrupting – or, I mean, was interrupting a test environment. Q: Okay. A: and that – and that instrument was the thing that was causing all of that disturbment [sic]. (Pet. Exh. 11 at 39-40). The facts regarding this binder incident that were admitted by Respondent were supplemented and explained by a number of written witness statements by students who were present, including C.G. These statements confirm that Respondent got angry because of C.G.’s toying with his binder, and that Respondent snatched the binder out of C.G.’s hands, and then either went across the room and then tossed it Frisbee-style into the garbage can or tossed the binder Frisbee-style across the room where it landed in the garbage can. While Respondent may have had good reason to stop C.G. from disrupting the classroom, the manner in which he went about it was inappropriate and contrary to the repeated warnings he had been given over the prior seven years by no less than four different principals (including, most recently, the ALC principal) to avoid any physical contact with students. See 2010 Suspension Order (detailing past disciplinary warnings and identifying principals issuing them). Respondent did not admit to having smashed the binder down on C.G.’s hand before snatching it away from C.G., and there was no independent non-hearsay evidence to prove that aspect of the allegation. Nonetheless, Respondent’s admissions establish that he took C.G.’s binder away while C.G. was tapping on it, flipping the cover, or otherwise playing with it, as the means Respondent chose to stop C.G. from playing with his binder. The only reasonable inference is that Respondent forcibly removed the binder while at least one of C.G.’s hands was on, in, or under the binder--an inappropriate physical contact. Respondent’s explanation that he did this because the binder was the instrument being used to cause disruption is insufficient to justify the inappropriate physical contact that had to occur to remove the binder from C.G. while he was playing with it. Respondent’s additional acts of tossing C.G.’s binder like it was a Frisbee and throwing the binder in the garbage can were inappropriate responses that went well beyond the claimed objective of stopping the disturbance. These actions can only be explained as displays of anger, presumably because C.G. did not listen to Respondent’s instructions to stop playing with the binder. If Respondent were genuinely concerned only with stopping the disruptive behavior, he would not have reacted by causing an even greater disturbance by tossing the binder like a Frisbee into the garbage can. Instead, he would have, and should have, dealt appropriately with C.G. Moreover, it was irresponsible for Respondent to throw the binder in the garbage can, after he had wrested the binder away from C.G. The binder could have contained important schoolwork for Respondent’s class or another class. Despite being on probation for a string of similar incidents, despite having been suspended from teaching for nearly ten months for a similar incident, and despite having just received a letter of warning three weeks earlier, Respondent failed to heed the repeated warnings that if he had an issue with a student, he should contact security or administration for immediate assistance rather than inappropriately attempting to “control” the situation by making contact with the student. The evidence was clear and convincing that in this binder incident, Respondent did not act with the calm, professional demeanor expected of a teacher who is able to deal appropriately with a student disrupting the classroom by playing with a binder. Instead, Respondent acted inappropriately with a temper that made an all-too-regular appearance in the classroom. The ALC principal described Respondent as having a temper that would turn on and off like a switch. His testimony was credible and is credited. Ms. Lewis, the paraprofessional who spent time working in Respondent’s classroom during the 2012-2013 school year, observed the same thing: Respondent had a temper that greatly affected his classroom conduct. Set off by minor incidents of students talking or not listening, Respondent would get angry, yell at the students, use profanity (not the “f” word, but somewhat milder words),8/ and act in volatile ways, such as tossing text books so that they would slide on a table and stop just before they hit students. Respondent’s unpredictable outbursts caused concern for the students’ safety; sometimes when Respondent got angry, he would clench and shake his fists, trembling as if he was about to strike out. Respondent’s classroom temperament was unlike anything the paraprofessional observed from any other teacher in the other ALC classrooms where she also worked. While Respondent’s temper and classroom temperament, as described by the ALC principal and paraprofessional, were not set forth as the subjects of separate charges in the Amended Administrative Complaint, they tend to support the findings above that Respondent’s admitted conduct on December 20, 2012, was inappropriate, just as they undermine Respondent’s claimed justification. Respondent’s temper and lack of control also were on display on several occasions during the course of the hearing, adding even more credence to the findings. He raised his voice and got agitated while giving his sworn statement. He also accused the undersigned of having “belittled” him, without explanation as to why he said that. (Tr. 105). Respondent also admitted the third allegation describing his classroom conduct on January 7, 2013: Q: Did you do that on January -- on or about January 7, 2013, did you bring students up to the front of the class and ask them, “Do you have a license to teach?” A: I most – yes I did, sir. Q: All right. Good. So that, you admit? A: I clearly admit that, yes. Q: All right, good. A: And I –- and I will challenge anybody that -- that's in my classroom that’s trying to disrupt the class that don’t have a teaching license. (Pet. Exh. 11, p. 46). Respondent acknowledged to having engaged in that conduct on other occasions--indeed, as a matter of course: “I can guarantee you that I have asked all of my students over many periods of time do they have a license, because I’m the only person in that classroom with a teacher’s license.” (Pet. Exh. 11, p. 45). The paraprofessional working in Respondent’s classroom was an eyewitness to this conduct, which she described as very demeaning and embarrassing for the students. Respondent’s admissions and the paraprofessional’s eyewitness observations are corroborated by numerous written statements by students subjected to this conduct. Respondent sought to justify his conduct as legitimate teaching strategy. As he tried to explain it: It’s effective classroom management. If you have a bunch of students that do not have the ability to stop stopping their behavior, you have to ask them before you take them away from the classroom do they know what they’re doing. If the answer is yes, I know what I’m doing, then you need to send them out. If the person says no, I have no idea what I’m doing you need to work with that student until that student understands what is wrong with that behavior that you want to correct. (Tr. 129-130). Respondent’s explanation for his conduct does not square with his actual conduct. He is not being accused of asking unruly students whether they know what they are doing and then working with those students to correct their misbehavior. Instead, he is accused of demeaning these young teenaged students by isolating them one at a time at the front of the room, and requiring them to face their peers and announce that they are not licensed to teach, so that Respondent can remind them that he is superior. This has nothing to do with addressing unruly or disruptive behavior, questioning that behavior, or attempting to correct that behavior. Instead, Respondent dealt with disruptive students by belittling them, embarrassing them, and reminding them that he is better than them. As the ALC principal confirmed, there is no reasonable explanation for Respondent’s conduct as any form of legitimate teaching strategy. Instead, this is inappropriate conduct for a teacher. Respondent offered little by way of specific evidence in his defense. Instead, at times he claimed to not recall anything about his disciplinary track record, or about the incidents alleged in the Amended Administrative Complaint.9/ He repeatedly challenged Petitioner to produce video evidence of the incidents, but never proved that any video evidence existed. If there had been video evidence, it would have been in the possession of the School District, but no video is identified in the investigative report as would be expected if it existed. Respondent could have taken steps to compel the production of any such evidence by the School District, but he did not. Respondent’s other defense was to attempt to challenge the credibility of Petitioner’s witnesses. These efforts were ineffective. Respondent made general sweeping statements that he was “shocked” by the testimony of Petitioner’s witnesses, which he repeatedly characterized as filled with lies, without proof of that characterization. Other than those broad generalizations, no specifics came to light as to why the testimony of Petitioner’s witnesses should not be believed. Respondent argued in his opening statement that the ALC principal “has seemed to have an axe to grind and has been on the greatest witch hunt to railroad a great educator.” (Tr. 17). That charge was wholly unsubstantiated. Instead, the ALC principal recognized the same pattern of behavior evident since 2005 when Respondent was first required to take anger management training by a former Bonita Springs Middle School principal. Respondent proclaimed himself a great leader while offering his view that with one exception, none of the principals he worked for in Lee County were good leaders. It is worth noting that according to the 2010 Suspension Order, the “one great principal” Respondent identified (Tr. 113) was the principal who had Respondent undergo anger management training in early 2005, and who issued Respondent’s first letter of reprimand for pushing a student. To the extent Respondent attempted to blame his disciplinary history and the allegations he is now facing on his principals, rather than excusing or explaining the conduct for which he was disciplined and for which he is subject to discipline in this proceeding, the impression given is that Respondent has had difficulty accepting the subordinate role of teacher vis-à-vis principal. Indeed, Respondent admitted that he “did tell the principal the one that write down these false things against me, I could do your job just as well as you can do it. And maybe that offend some people. . . .” (Tr. 115). Respondent also attempted to discount the significance of the EPC Final Order by alluding to various medical problems he was experiencing that caused him to enter into a settlement agreement, even though he claimed the charges were not true. Respondent offered no evidence to substantiate his claims, but stated generally that he “had just got over having a kidney removed” and that he “had prostate cancer.” He also said that he had taken his wife’s money to fight the allegations, and agreed to the settlement so he could get back to work. (Tr. 111). Notwithstanding Respondent’s testimony, the EPC Final Order cannot be collaterally attacked in this proceeding. Respondent accepted the terms of that Final Order, and knew full well that he was required to comply with the probation conditions or face more discipline for violating the terms of his probation. Respondent also claimed that he was set up for failure by being assigned to ALC, which was more than one hour away from his home instead of the ten-minute commute he enjoyed when teaching at the school where he earned a lengthy suspension, after a string of six letters of reprimand. Respondent did not contest the assignment, but accepted the teaching position at ALC. Respondent’s school assignment may have been a matter he could have raised in a grievance proceeding, but it is not a matter that explains his inappropriate conduct while teaching there, especially knowing he was on probation. Finally, in a seeming admission that his temper was erratic and his behavior volatile while he was teaching at ALC, Respondent testified that he was undergoing radiation treatment for prostate cancer, and that anybody undergoing that treatment “would have such mood swings some times.” Yet in the next breath, he said: “But it never affected my effectiveness in my classroom.” (Tr. 112). In his predetermination conference in which Respondent was informed of the investigation findings and allowed to respond to the allegations of misconduct, Respondent did not mention that he had been undergoing treatment that may have affected his behavior or his classroom conduct. If this was a legitimate reason that might explain or excuse, even in part, Respondent’s conduct in December 2012 and January 2013 that was the subject of the School District’s investigation, surely Respondent would have shared information about his treatment and how it might have affected him in a conference to determine if there was probable cause to proceed to terminate his employment. Without more to substantiate the relevance of any medical conditions, treatment, or other external factors alluded to by Respondent, including specifics as to the timing of such matters, they cannot excuse or explain Respondent’s improper conduct as found above. As in the administrative hearing that resulted in the 2010 Suspension Order, Respondent offered evidence of his positive contributions as a teacher, as mitigating evidence to consider in imposing discipline. However, most of Respondent’s evidence is old, pre-dating Respondent’s suspension, and in fact, duplicating the evidence of Respondent’s contributions, honors, and achievements considered and addressed in the 2010 Suspension Order. Respondent’s contributions and achievements in 2009 and earlier years were expressly credited as mitigating against a harsher result in the 2010 Suspension Order for his misconduct committed during the same timeframe as the contributions. Having already enjoyed the mitigating benefit of his pre-2010 achievements, honors, and contributions to lessen the consequences of his pre-2010 misconduct, Respondent’s older achievements are not considered again in this proceeding in mitigation of the appropriate penalty for Respondent’s post- suspension improper conduct. Respondent presented evidence that after he returned to teaching when his suspension was completed, he continued his participation in the computer give-away program, working with a community computer club sponsoring free laptop computers for selected students who wrote an essay explaining how they would benefit from a laptop. Respondent provided one such essay submitted by an ALC student. Respondent’s continued involvement in the computer give-away program while at ALC was a positive contribution for at least one ALC student who participated. The other post-suspension evidence offered by Respondent shows that he is bettering himself by pursuing higher education, obtaining an additional degree and a certificate, as he stated he would do in his March 2013 resignation letter when he stopped teaching. These are positive contributions by Respondent, but cannot be considered contributions by Respondent as an educator to mitigate the penalty imposed for Respondent’s improper conduct as an educator. Respondent has not worked as a teacher since he submitted his resignation letter to the School District in March 2013, but he has been pursuing the higher education described in that letter. It is unclear whether Respondent would otherwise be seeking work as a classroom teacher pursuant to his educator’s certificate. Petitioner’s witness for the School District testified that he could not imagine that the School District would consider hiring Respondent back to teach there. The ALC principal echoed that sentiment. The principal would be concerned because it is his job to make sure the school is safe for all students. He would not want Respondent back in a teaching role at his school because of his track record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order: Finding Respondent guilty of violating section 1012.795(1)(j) and (1)(l), Florida Statutes, and Florida Administrative Code Rule 10A-1.081(3)(a), (3)(e), and (5)(p); Finding Respondent not guilty of violating section 1012.795(1)(g); and Revoking Respondent’s educator’s certificate no. 777352 for a period of three years. DONE AND ENTERED this 1st day of August, 2016, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 1st day of August, 2016.
Findings Of Fact The Respondent Respondent holds Teaching Certificate No. 75756, covering the areas of physical education, health education and drivers education. The Certificate expires June 30, 1987. At all times material hereto, the School Board of Palm Beach County employed respondent as an assistant principal at Lake Shore Middle School in Belle Glade, Florida. Respondent was first hired by the School Board in 1956, as a physical education instructor at East Lake Junior High School, in Belle Glade. During the ensuing years, he served as athletic director, football coach, basketball coach, baseball coach and drivers' education teacher at three Belle Glade schools (East Lake Junior High, Lake Shore High School and Glade Central High School) until his transfer in 1971 to Lake Shore Middle School as Dean of Boys. In 1978 he was promoted to Assistant Principal. In 1982, the School Board suspended respondent on charges of "misconduct and immorality arising out of improper sexual advances made by [him] toward female students at Lake Shore Middle School during the 1981-82 school years." After an evidentiary hearing on October 25-26, 1982, the School Board, by mixed vote, found him guilty of the charges, cancelled his continuing contract (tenure), and terminated his employment. The Department seeks to revoke or otherwise discipline respondent's Teaching Certificate on charges substantially the same as those brought (and sustained) by the School Board. Prior to the complained of conduct, respondent had an unblemished school employment record. By all accounts he was gregarious and outgoing, a competent, caring, and dedicated teacher and administrator. He was popular with students, respected by faculty, relied on by school administrators, and generally considered a "pillar of the community." He had been raised in Belle Glade. Unlike most county school teachers in Belle Glade, who taught there but lived elsewhere, he considered Belle Glade his home. Improper Sexual Remarks or Sexual Advances Toward Female Students Count I: Advances toward T. E. T. E. was 14 years old and a student at Lake Shore Middle School, where respondent was Assistant Principal. On May 17, 1982, she entered his office and asked for a lunch ticket. He could not find an extra lunch ticket in this office so he told her to accompany him to the data processing office where lunch tickets were kept. She complied and they walked together to data processing. He unlocked the door, turned on the lights, and they went in. They both looked around the office, but could not find the lunch tickets. Respondent then told her to return with him to his office and he would give her a temporary lunch pass. As they reached the door of the data processing office, he turned off the lights, put his arm around her shoulder, and asked her for a kiss. She refused. He asked her again, and she again refused. During this exchange he reached down and touched her breast. She felt his touch and was afraid; he was not restraining her though, and she did not think he would try to hold her against her will. They then left data processing. He returned to his office and she began walking to her class. He came back out of his office and told her not to tell anyone about the incident. She agreed. A little later, he found a lunch ticket and gave it to her. Enroute to her class, she began to cry. A student friend asked her what was wrong. T. E. wrote her a note, explaining what had happened. The friend told a teacher, who--along with others--told her to tell her parents. When T. E. arrived home that afternoon, respondent was talking to her grandmother. She heard him say that T. E. had misunderstood something he had done, or said. At 8:15 a.m. the next morning, May 18, 1982, respondent reported to Principal Edward Foley's office for his routine duties. As they were conducting an inspection, respondent asked to see him when they returned to the office, stating he had a "serious problem" to discuss with him. He then told Principal Foley that he (respondent) was being "accused of feeling on a young female student," (Petitioner's Exhibit No. 1), and explained his version of the incident. He did not tell the principal that he had twice asked the student for a kiss, and had touched her breast. He said that he had put his arm around her shoulder as they left date processing. Later that day, a conference on the incident was held in the principal's office. The principal, an assistant principal, respondent, T. E., T. E.'s mother and grandmother, and several teachers were present. Shortly after the conference convened, respondent asked for and was given permission to talk to T. E.'s mother and grandmother in a separate office. Once there, respondent told T. E.'s mother that he thought he had done something to upset T. E.; that he was sorry; and that he could understand how the mother felt because he would feel the same if T. E. was his child. He then asked T. E.'s mother to have her daughter say that she made a mistake and that it was simply a misunderstanding. The mother refused. During this short discussion, T. E.'s mother asked him if he had asked T. E. for a kiss: he said, "yes." When asked, "Did you touch her breast?", he replied, "I might have. But . . . I'm sorry, I didn't hurt your daughter." (TR-112) 2/ Count II: Improper Sexual Remarks to C. D. C. D. was a 14 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, respondent approached her (during school hours) when she was walking to the school cafeteria. He told her she "had big breasts and he wanted to feel one." (TR-33) Count III: Sexual Advances toward C. C. C. C. was a 15 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, as she was leaving the campus (though still on school grounds) at the end of the school day, respondent, who was walking with her, put his arms around her and asked her for a kiss. Count IV: Improper Sexual Remarks to C. S. C. S. was a 14 or 15 year old female student at Lake Shore Middle School during the 1981-82 school year, when respondent approached her as she was leaving the gym. He remarked, "You have some big breasts." (TR-57) She kept walking. Earlier that year, respondent asked her, "Do you wish things wasn't (sic) the way they are." This remark had, and was intended to have, sexual connotations. (TR-56) Later that school year, respondent, while on campus and during school hours, approached C. S. and asked her "to come in his office and give him a kiss." (TR-57) She left, without complying with his request. Conflicts Resolved Against Respondent Respondent denied having made these improper verbal remarks to, or physical sexual advances toward the four female students. The students' testimony, although containing minor discrepancies, is accepted as more credible than respondent's denial, and conflicts in the testimony are resolved against him. The students showed no hostility toward respondent and, unlike him, had not motive to falsify. Reduced Effectiveness The allegations against respondent, involving these four female students, received widespread notoriety in the area. As a result, his effectiveness as an employee of the School Board has been seriously reduced.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent's teaching certificate be revoked, and that he be declared ineligible for reapplication for three years following revocation. DONE AND ENTERED this 6th day of August 1984 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August 1984.
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
Findings Of Fact Respondent attends Thomas Jefferson Junior High School. With the exception of band class which he attends regularly and achieves high marks, his absentee rate (unexcused) is approaching 50 percent and he is receiving failing grades. He is frequently disruptive in class and disrespectful to his instructors. He regularly comes late to his classes or leaves before being excused. Petitioner has made frequent attempts to assist Respondent. All available counseling and disciplining techniques have been used without success. Respondent will be 16 years old in September and intends to withdraw from school at that time. Respondent and his mother seek his release from mandatory school attendance now so that he may begin vocational training. School officials agree that this is appropriate, but the application has not been completed due to communication problems between Mrs. Perez and Thomas Jefferson Junior High School.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Respondent to its opportunity school pending release from mandatory school attendance. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER, 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 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Sylvia Perez 460 Northwest 125 Street Miami, Florida 33168 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Charles Duhart resides at 956 Forest Ridge Court, Apartment 202, Lake Mary, Florida. His residence is a condominium, which he owns. He has resided there for 10 months. Mr. Duhart was married to Mary Duhart in April, 1974. The Final Judgment of Dissolution of Marriage entered October 25, 1988, which terminated their marriage, states: The parties shall have shared parental responsibility for the minor children of the marriage. The Wife is designated as the primary residential custodian of the minor children of the marriage. The non-custodian parent, the Husband, shall have liberal and reasonable contact and visitation with the children of the marriage, subject to reasonable notice by the Husband to the Wife. . . . Mary Duhart resides at 121 Wildwood Drive, Sanford, Florida. She and Mr. Duhart jointly bought the property in 1985, and she was awarded the property in the Final Judgment of Dissolution of Marriage. The two children in question are Katisha, who is 15 years old, and Serita, who is 14 years old. Both girls, together with a third child aged eight years, were born of the Duhart's marriage. During the 1988-89 school year, Katisha, who was in ninth grade, attended Lake Mary High School, and Serita, who was in eighth grade, attended Greenwood Lakes Middle School, as well as special programs at Lake Mary High School. Greenwood Lakes Middle School is in the Lake Mary High School attendance zone. Both girls enrolled in Lake Mary High School at the beginning of the 1989-90 school year. During the 1988-89 school year, the two children lived with their grandmother part of the time and their mother the remainder of the time. Their grandmother lived in the Lake Mary High School attendance zone. Mr. and Mrs. Duhart caused the grandmother to be appointed the legal guardian of the children, pursuant to Letters of Guardianship of the Person entered November 28, 1988. By so doing, under a procedure no longer available, the children could attend the schools whose attendance zone serves the grandmother's residence. This guardianship has never been dissolved or terminated. At the beginning of the 1989-90 school year, the two children went to live with their father, whose condominium is in the Lake Mary High School attendance zone. Although they spend the weekends with their mother and infrequent nights with their grandmother or at friends' homes, Katisha and Serita regularly reside with their father each weeknight from Sunday through Thursday nights, inclusive. Since the beginning of the 1989-90 school year began, the children primarily have lived with their father. Since the beginning of the 1989-90 school year, Mr. and Mrs. Duhart have reduced the child support payments required of Mr. Duhart by the Final Judgement of Dissolution of Marriage. Although Mr. Duhart continues to pay the usual amount through the clerk's office, Mrs. Duhart returns to him approximately one half of the support money in recognition of the fact that he now has two of the three children most of the time. By letter dated September 27, 1989, Respondent informed Petitioners that it had determined that Katisha and Serita were attending Lake Mary High School in violation of Policy 4.003. Consequently, the children had been administratively withdrawn from Lake Mary High School and administratively enrolled at Seminole High School, which serves their correct attendance zone, according to the letter.
Recommendation Based on the foregoing, it is hereby recommended that the School Board of Seminole County, Florida enter a Final Order enrolling Katisha and Serita Duhart in Lake Mary High School. RECOMMENDED this 22nd day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5898 Treatment Accorded Proposed Findings of Respondent 1-4: adopted. 5: rejected as subordinate. 6-10: adopted. 11: first sentence adopted as to children spending weekends with Mrs. Duhart and rejected as unsupported by the greater weight of the evidence as to the suggestion that they do not spend the remainder of the time with their father, with the possible exception of isolated overnight visits with friends or their grandmother. Remainder rejected as subordinate. 12: adopted. 13: rejected as irrelevant. 14: rejected as irrelevant and subordinate. 15: rejected as subordinate. 16: rejected as irrelevant. COPIES FURNISHED: Harry L. Lamb, Jr. Perry & Lamb, P.A. 135 Wall St., Ste. 200 Orlando, FL 32801 Ned N. Julian, Jr. Stenstrom, McIntosh, Julian, et al. P.O. Box 1330 Sanford, FL 32772-1330 Robert W. Hughes, Superintendent The School Board of Seminole County, Florida 1211 Mellonville Avenue Sanford, FL 32772 Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
The Issue Did Respondent Siebelts commit the offenses set forth in the petition for dismissal (Case No. 88-4697) and the amended administrative complaint (Case No. 89-0189) filed against her? If so, what discipline should she receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Karen Siebelts has held a State of Florida teaching certificate since 1976. Her current certificate was issued May 1, 1986, and covers the areas of elementary education, elementary and secondary reading, and secondary social studies and psychology. For the past thirteen years Siebelts has been employed by the School Board of Broward County as a classroom teacher. During the early stages of her employment, she taught at Melrose Park Middle School. She then moved to Perry Middle School, where she taught a class of emotionally disturbed sixth graders. Her performance at these two schools was rated as acceptable. In November, 1979, Siebelts was assigned to teach at Charles Drew Elementary School, a neighborhood school located in the predominantly black Collier city area of Pompano Beach. The charges lodged against Siebelts are based on specific acts she allegedly committed while she was a Chapter I Reading/Math and Computer teacher at Charles Drew providing remedial instruction to students whose test scores reflected a need for such special assistance. On January 22, 1985, while seated with her fifth grade students at a table during a reading lesson, Siebelts inadvertently kicked one of the students in the shin. The incident occurred as Siebelts was moving her legs to a more comfortable position. The force involved was minimal and produced no visible injuries. The student immediately demanded an apology from Siebelts. Siebelts responded to this demand with silence. She neither apologized nor said anything to suggest that she had intended to kick the student. Earlier in the lesson, Siebelts had directed the student to stop talking. The student had defied the directive and continued to talk. It was not until approximately three minutes after the student's initial defiance of the directive, however, that the kicking incident occurred. Nonetheless, the student suspected that Siebelts had intentionally kicked her because of her failure to obey Siebelts' order that she not talk. When the student came home from school that day she told her mother that Siebelts had intentionally kicked her during class. The mother immediately reported the incident to the principal of the school, Hubert Lee. The matter was referred to the School Board's Internal Affairs Unit for investigation. The requested investigation was conducted. Following the completion of the investigation, a written report of the investigator's findings was submitted to the administration. No further action was taken regarding this incident until approximately three and a half years later when the instant petition for dismissal was issued. Siebelts was annoyed when she learned that the student and her mother had accused her of wrongdoing in connection with the January 22, 1985, kicking incident. On February 19, 1985, she expressed her annoyance in front of her fifth grade class and in their presence threatened to take legal action against those students and parents who had made libelous or slanderous statements about her or had otherwise verbally abused her. She told the students that they and their parents would be subpoenaed to court and if they did not appear they would be incarcerated. The principal of the school was informed of these remarks shortly after they were made, but it was not until the instant petition for dismissal was issued on August 22, 1988, that Siebelts was first formally charged with having made the remarks. Before coming to work on January 28 1986, Siebelts took a codeine pain medication that her physician had prescribed. When classes started that morning she was still under the influence of the medication. She was listless and drowsy. Her speech was slurred and she appeared incoherent at times. She also had difficulty maintaining her balance when she walked. Because Siebelts had been taking this medication "on and off" since 1979, she had been aware of these potential side effects of the medication when ingesting it on this particular occasion. A teacher's aide in Siebelts' classroom concerned about Siebelts' condition summoned the principal, Hubert Lee, to the classroom. When he arrived, Lee observed Siebelts seated at her desk. She was just staring and seemed "to be almost falling asleep." The students were out of control. They were laughing and making fun of Siebelts. After questioning Siebelts and receiving an answer that was not at all responsive to the question he had asked, Lee instructed Siebelts to come to his office. Siebelts complied, displaying an unsteady gait as she walked to Lee's office. In Lee's office, Siebelts insisted that she was fine, but conceded that she was "on" prescribed pain medication. Throughout their conversation, Siebelts continued to slur her words and it was difficult for Lee to understand her. Pursuant to Lee's request, Dr. Lorette David, Lee's immediate supervisor, and Nat Stokes, a School Board investigator, came to Lee's office to observe and assess Siebelts' condition. A determination was thereafter made that Siebelts was not capable of performing her instructional duties that day, which was an accurate assessment. She therefore was sent home for the day. Because of her impaired condition, rather than driving herself home, she was driven to her residence by Dr. David. Although she believed that she was not suffering from any impairment, Siebelts did not protest the decision to relieve her of her duties because she felt that any such protest would have fallen on deaf ears. Following this incident, Siebelts was issued a letter of reprimand by Lee. She also was referred to the School Board's Employee Assistance Program because it was felt that she might have a substance abuse problem. Siebelts agreed to participate in the program and received counselling. At no time subsequent to January 28, 1986, did Siebelts report to work under the influence of her pain medication or any other drug. During the 1987-1988 school year, Siebelts and two other Chapter I teachers, Rosa Moses and Mary Cooper, occupied space in Charles Drew's Chapter I reading and math laboratory. Their classrooms were located in the same large room and were separated by makeshift partitions. Siebelts is white. Moses and Cooper, as well as the aides who were assigned to the laboratory during that school year, are black. In October, 1987, Moses complained to Principal Lee that Siebelts was not teaching her students, but rather was constantly engaging in loud verbal confrontations with them that disrupted Moses' lessons. Lee had received similar complaints about Siebelts from others. He therefore asked Moses to advise him in writing of any future classroom misconduct on Siebelts' part. Siebelts continued to engage in conduct in her classroom which Moses deemed inappropriate and disruptive. On November 4, 1987, for the last five minutes of one of her classes, she loudly exchanged verbal barbs with her students. Her yelling made it difficult for Moses and Cooper to teach their lessons. On November 5, 1987, throughout an entire 45-minute class period, Siebelts was embroiled in a verbal battle with a student during which she made derogatory remarks about the student's size. She called the student "fat" and told her that she "shake[d] like jelly." The student, in turn, called Siebelts "fruity" and likened her to a "scarecrow." On that same day during a later class period, Siebelts took a student by the arm and, following a tussle with the student, placed him in his seat. Thereafter, she made belittling remarks to the other students in the class. She said that they were "stupid" and "belonged in a freak show." She also referred to them as "imbeciles." Siebelts further told her students that their "mothers eat dog food." On November 25, 1987, Siebelts commented to the students in one of her classes that they would be able to move around the classroom with greater ease if they were not so fat. As she had been asked to do, Moses provided Lee with a written account of these November, 1987, encounters between Siebelts and her students, but Lee did not take any immediate action to initiate disciplinary action against Siebelts. Although she did not so indicate in her report, Moses believed that the unflattering remarks that Siebelts had made to the students on these occasions constituted racial slurs inasmuch as all of the students to whom the remarks had been addressed were black and in addressing these remarks to the students as a group she had referred to them as "you people." Moses thought that "you people" had meant black people in general, whereas Siebelts had intended the phrase to refer to just the students in the classroom. At no time during any of these reported incidents did Siebelts make specific reference to the students' race, nor did she specifically attack black people in general. The target of her demeaning and insulting remarks were those of her students whose unruly and disrespectful behavior she was unable to control. Her efforts to maintain discipline and promote learning in the classroom had failed. She had become frustrated with the situation and verbally lashed out at her students. Unfortunately, these outbursts only served to further reduce her effectiveness as a teacher. On March 1, 1988, Siebelts was involved in an incident similar to the one which had occurred more than three years earlier on January 22, 1985. As on the prior occasion, Siebelts was sitting at a classroom table with her students. Her legs were crossed. When she repositioned her legs, her foot inadvertently came in contact with the top of the head of a student who was crawling under the table to retrieve a pencil the student had dropped. The student had been told by Siebelts not to go under the table but had disobeyed the instruction. She had been under the table for approximately a minute and a half before being struck by Siebelts foot. The blow to the student's head was a light one and produced only a slight bump. Nonetheless, after getting up from under the table, the student, a brash fourth grader who had had confrontations with Siebelts in the past, threatened to physically retaliate against Siebelts. Siebelts did not say anything to the student and the class ended without the student following through on her threat. Following this incident, Siebelts telephoned the student's mother at home to discuss the student's classroom behavior. The call was placed sometime before 9:00 p.m. The conversation between Siebelts and the mother soon degenerated into an argument. They terminated the discussion without settling their differences. Lee subsequently met with the mother. He suggested that a meeting with Siebelts at the school be arranged. The mother indicated to Lee that she would not attend such a meeting unless school security was present. She explained that she was so angry at Siebelts that she was afraid that she would lose her composure and physically attack Siebelts if they were in the same room together.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission issue a final order suspending Karen Siebelts' teaching certificate for two years and that the School Board of Broward County issue a final order suspending Siebelts until the reinstatement of her teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-4687 AND 89-0189 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Commisioner of Education's Proposed Findings of Fact Accepted and incorporated in substance in the Findings of Fact portion of this Recommended Order. Rejected as contrary to the greater weight of the evidence. Rejected as beyond the scope of the charges. Siebelts was not charged with having made threatening remarks the day after the January 22, 1985, kicking incident. These threats were allegedly made, according to the charging documents, on February 19, 1985. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Insofar as it asserts that Siebelts engaged in name-calling on dates other than those specfied in the petition for dismissal and amended administrative complaint otherwise, it is accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Furthermore, the witness whose testimony is recited in this proposed finding later clarified her testimony and conceded that Siebelts did not use the precise words quoted in this proposed finding. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as not supported by the greater weight of the evidence to the extent that it suggests that Siebelts made "racial comments" on the dates specified in the petition for dismissal and amended administrative complaint. Insofar as it states that such comments were made on other occasions, it is rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. According to the petition for dismissal and amended administrative complaint, Siebelts threatened her students with legal action on February 19, 1985. This proposed finding, however, relates to alleged threats of legal action made by Siebelts during the 1987-1988 school year. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as unnecessary. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as irrelevant and immaterial. Rejected as irrelevant and immaterial. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Siebelts' Proposed Findings of Fact First unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance. Second unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Rejected as irrelevant and immaterial; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and :incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; ninth sentence: Accepted and incorporated in substance. Third unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as unnecessary; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance. Fourth unnumbered paragraph: Rejected as more in the nature of a statement of opposing parties' position than a finding of fact; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as subordinate; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance. Fifth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as subordinate; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance; tenth sentence: Accepted and incorporated in substance; eleventh sentence: Accepted and incorporated in substance; twelfth sentence: Accepted and incorporated in substance. Sixth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: rejected as a summary of testimony rather than a finding of fact based on such testimony. Seventh unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony (The exculpatory testimony of Siebelts which is summarized in the first three sentences of this paragraph has not been credited because it is contrary to the more credible testimony of other witnesses) fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Eighth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as subordinate; fourth sentence: Accepted and incorporated in substance; fifth sentence: Rejected as subordinate; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as subordinate; ninth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Ninth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Tenth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Accepted and incorporated in substance; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Superintendent of School's Proposed Findings of Fact Accepted and incorporated in substance, except for the fourth sentence, which has been rejected as contrary to the greater weight of the evidence. Accepted and incorporated in substance except to the extent that it asserts that Siebelts "advised the students that they and their parents would be placed in jail because of the lies and the slander." The preponderance of the evidence reveals that she actually told them that they and their parents would be incarcerated if they did not appear in court when summoned. First sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as subordinate. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected as more in the nature of argument concerning relatively insignificant matters than findings of fact addressing necessary and vital issues. Accepted and incorporated in substance, except to the extent that it suggests that Siebelts had alcohol on her breath. Any such suggestion has been rejected because it is contrary to the testimony of Investigator Stokes. Stokes, who has been employed by the School Board as an investigator for the past 20 years, testified that he was standing one or two feet away from Siebelts and did not detect the odor of alcohol on her breath. In view of his experience regarding the investigation of these matters, his testimony has been credited. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. To the extent that this proposed finding states that Siebelts made inappropriate remarks regarding the students' clothing or other matters on dates other than those specified in the petition for dismissal and amended administrative complaint, it has been rejected as outside the scope of the charges. Insofar as it asserts that Siebelts made derogatory remarks about black people in general on the dates specified in these charging documents, it has been rejected as contrary to the greater weight of the evidence. To the extent that this proposed finding indicates that Siebelts otherwise insulted the students in her class on the dates specified in the charging documents, it has been accepted and incorporated in substance. Rejected as beyond the scope of the charges. The "disparaging remarks" which are the subject of this proposed finding were purportedly made during the 1984-1985 school year. The "disparaging remarks" referenced in the petition for dismissal and amended administrative complaint were allegedly made, according to these charging documents, during the 1987-1988 school year, more specifically, on November 4, 5, and 25, 1987. Rejected as beyond the scope of the charges. The "critical" remarks referred to in this proposed finding were allegedly made prior to the 1987-1988 school year. First sentence: Rejected as irrelevant and immaterial to the extent it references reactions to "disparaging" and "critical" remarks that were purportedly made prior to the 1987-1988 school year. Otherwise, it has been accepted and incorporated in substance; second sentence: Rejected as a summary of the testimony of Siebelts' former students and colleagues rather than a finding of fact based on such testimony. First sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance, except to the extent that it reflects that Moses actively monitored Siebelts classroom conduct "through December of 1987." The preponderance of the evidence establishes that such active monitoring actually ceased November 25, 1987; third sentence: Accepted and incorporated in substance, except to the extent it indicates that Noses heard Siebelts tell her students that they "were dirty and needed baths." This comment was purportedly overheard, not by Moses, but by Margaret Cameron, a teacher's aide who had left Charles Drew prior to the commencement of the 1987- 1988 school year; fourth and fifth sentences: Rejected as beyond the scope of the charges. These proposed findings are based on Cameron's testimony regarding offensive comments she had allegedly overheard while an aide in Siebelts' classroom. These pre-1987-1988 school year comments, however, are not mentioned in either the petition for dismissal or the amended administrative complaint. First sentence: As this proposed finding correctly points out, Siebelts' insulting comments only served to heighten the students' hostility and anger toward her. There is no persuasive competent substantial evidence, though, to support the further finding that these comments "resulted in several physical altercations between the students;" second sentence: Rejected inasmuch as there no persuasive competent substantial evidence that there was any "heated verbal exchange" on November 5, 1987, between Siebelts and the student which preceded their "altercation." The preponderance of the evidence establishes that the verbal battle with her students occurred immediately after this incident; third sentence: Rejected as contrary to the greater weight of the evidence. Although she may used physical force during her encounter with this student, it is unlikely that she actually "tossed" him into his seat. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected inasmuch as there is no persuasive competent substantial evidence to support a finding that Siebelts telephoned the student's mother as a result of the incident near the air-conditioner. The preponderance of the evidence does establish that Siebelts did telephone the mother on a subsequent occasion, but there is no indication that Siebelts threatened the mother or otherwise acted inappropriately during this telephone conversation. Although the mother asked to have security personnel present during a parent-teacher conference with Siebelts, the preponderance of the evidence reveals that this request was not the product of any threats that Siebelts had made against the mother. First sentence: Rejected as not supported by the greater weight of the evidence. Siebelts' testimony that the contact was unintentional is plausible and has been credited. The circumstantial evidence presented by Petitioners (including evidence of prior confrontations between Siebelts and the student) raises some questions regarding the veracity of Siebelts' testimony on this point, but such evidence is not sufficiently compelling to warrant the discrediting this testimony. Given her penchant for verbalizing to her students her thoughts about them, had Siebelts intended to kick the student as a disciplinary measure, she undoubtedly would have made this known to the student, rather than remain silent as she did; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance, except to the extent that it suggests that immediately after kicking the student, Siebelts had a "smirk on her face." To this limited extent, this proposed finding is not supported by any persuasive competent substantial evidence; fourth sentence: Accepted and incorporated in substance. First sentence: Rejected as not supported by any persuasive competent substantial evidence; second, third, fourth and fifth sentences: Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. To the extent that this proposed finding suggests that Siebelts' behavior at school on January 28, 1986, and her verbal attack of her students on November 4, 5, and 25, 198', reduced her effectiveness as a teacher, it has been accepted and incorporated in substance. Insofar as it indicates that other conduct in which she engaged resulted in a reduction or loss of effectiveness, it has been rejected as either contrary to the greater weight of the evidence (other conduct specified in charging documents) or beyond the scope of the charges (other conduct not specified in charging documents). COPIES FURNISHED: Charles Whitelock, Esquire 1311 S.E. 2nd Avenue Fort Lauderdale, Florida 33316 Edward J. Marko, Esquire Suite 322, Bayview Building 4,1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Thomas P. Johnson, Ed.D. Associate Superintendent Human Resources Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Craig R. Wilson, Esquire Suite 315 1201 U.S. Highway One North Palm Beach, Florida 33408-3581 Karen B. Wilde Robert F. McRee, Esquire Executive Director Post Office Box 75638 Education Practices Commission Tampa, Florida 33675-0638 125 Knott Building Tallahassee, Florida 32399
Findings Of Fact Respondent was reassigned to Douglas MacArthur Senior High School- North, an alternative school, on December 16, 1982, because of his unacceptable conduct in Grade 9 at North Miami Junior High School. Petitioner presented evidence of 16 incidents of conduct by Respondent which required disciplinary action in the year preceding his reassignment to the alternative education program. Additionally, his grades in all courses were unsatisfactory at the time of reassignment. Respondent did not accept the alternative school assignment and instead obtained employment at a restaurant. He is now living with his grandmother, Mrs. Helen Wood, who seeks his return to a regular junior high school program. She has discussed this proposal with the principal of Thomas Jefferson Junior High School and he apparently agrees with her. Respondent's evidence established that his family life was difficult and disruptive during the period of his misconduct. His situation has now stabilized and he is responsive to his grandmother's supervision. He should, therefore, be given an opportunity to return to the regular academic program (Grade 9) at Thomas Jefferson Junior High School.
Recommendation In consideration of the foregoing, it is RECOMMENDED that Petitioner enter a Final Order classifying Respondent as a disruptive student, but permitting him to attend the Thomas Jefferson Junior High School in a probationary status. ENTERED this 6th day of May, 1983, at Tallahassee Florida. R. T. CARPENTER, 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, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Helen Ward 1000 Northwest 153rd Street Miami, Florida 33169 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
