The Issue The issue is whether Petitioners are entitled to the Best and Brightest Scholarship as established and defined by section 1012.731(3)(c), Florida Statutes (2017).
Findings Of Fact In 2015, the Legislature enacted, by way of a line item in the annual appropriations bill, the Best and Brightest Program to award cash scholarships to Florida teachers who have been evaluated as “highly effective” by their school districts and who scored at or above the 80th percentile (top 20%) on the SAT or ACT when they took the test. Ch. 2015-232, § 2, line item 99A, Laws of Fla.1/ In 2016, the Legislature enacted a stand-alone statute for the Best and Brightest Program, codifying the appropriations bill language and providing that the program is to be administered by the Department of Education (the “Department”). Ch. 2016-62, § 25, Laws of Fla., codified at § 1012.731, Fla. Stat. (2016). Rather than enacting a statutory scholarship amount, subsection (5) of the 2016 version of section 1012.731 provided that the scholarships would be awarded to every eligible classroom teacher “in the amount provided in the General Appropriations Act.”2/ The 2016 statute also explained that the Best and Brightest Program was intended to provide “categorical funding for scholarships to be awarded to classroom teachers, as defined in s. 1012.01(2)(a), who have demonstrated a high level of academic achievement.” § 1012.731(2), Fla. Stat. (2016). Section 1012.01(2) defines “instructional personnel,” including “classroom teachers,” as follows: INSTRUCTIONAL PERSONNEL.— “Instructional personnel” means any K-12 staff member whose function includes the provision of direct instructional services to students. Instructional personnel also includes K-12 personnel whose functions provide direct support in the learning process of students. Included in the classification of instructional personnel are the following K-12 personnel: Classroom teachers.--Classroom teachers are staff members assigned the professional activity of instructing students in courses in classroom situations, including basic instruction, exceptional student education, career education, and adult education, including substitute teachers. Student personnel services.--Student personnel services include staff members responsible for: advising students with regard to their abilities and aptitudes, educational and occupational opportunities, and personal and social adjustments; providing placement services; performing educational evaluations; and similar functions. Included in this classification are certified school counselors, social workers, career specialists, and school psychologists. Librarians/media specialists.-- Librarians/media specialists are staff members responsible for providing school library media services. These employees are responsible for evaluating, selecting, organizing, and managing media and technology resources, equipment, and related systems; facilitating access to information resources beyond the school; working with teachers to make resources available in the instructional programs; assisting teachers and students in media productions; and instructing students in the location and use of information resources. Other instructional staff.--Other instructional staff are staff members who are part of the instructional staff but are not classified in one of the categories specified in paragraphs (a)-(c). Included in this classification are primary specialists, learning resource specialists, instructional trainers, adjunct educators certified pursuant to s. 1012.57, and similar positions. Education paraprofessionals.--Education paraprofessionals are individuals who are under the direct supervision of an instructional staff member, aiding the instructional process. Included in this classification are classroom paraprofessionals in regular instruction, exceptional education paraprofessionals, career education paraprofessionals, adult education paraprofessionals, library paraprofessionals, physical education and playground paraprofessionals, and other school-level paraprofessionals. In 2017, the Legislature amended section 1012.731(3) to establish that the scholarship award would be $6,000 for those classroom teachers rated “highly effective” who also had the requisite SAT or ACT scores: (3)(a) To be eligible for a scholarship in the amount of $6,000, a classroom teacher must: 1. Have achieved a composite score at or above the 80th percentile on either the SAT or the ACT based on the National Percentile Ranks in effect when the classroom teacher took the assessment and have been evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded, unless the classroom teacher is newly hired by the district school board and has not been evaluated pursuant to s.1012.34. * * * In order to demonstrate eligibility for an award, an eligible classroom teacher must submit to the school district, no later than November 1, an official record of his or her qualifying assessment score and, beginning with the 2020-2021 school year, an official transcript demonstrating that he or she graduated cum laude or higher with a baccalaureate degree, if applicable. Once a classroom teacher is deemed eligible by the school district, the teacher shall remain eligible as long as he or she remains employed by the school district as a classroom teacher at the time of the award and receives an annual performance evaluation rating of highly effective pursuant to s. 1012.34 or is evaluated as highly effective based on a commissioner- approved student learning growth formula pursuant to s. 1012.34(8) for the 2019-2020 school year or thereafter. Ch. 2017-116, § 46, Laws of Fla. The 2017 amendment to section 1012.731 also added a new subsection (3)(c), providing that lesser amounts could be awarded to teachers rated “highly effective” or “effective,” even if they could not demonstrate scores at or above the 80th percentile on the SAT or ACT: Notwithstanding the requirements of this subsection, for the 2017-2018, 2018- 2019, and 2019-2020 school years, any classroom teacher who: Was evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded shall receive a scholarship of $1,200, including a classroom teacher who received an award pursuant to paragraph (a). Was evaluated as effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded a scholarship of up to $800. If the number of eligible classroom teachers under this subparagraph exceeds the total allocation, the department shall prorate the per-teacher scholarship amount. This paragraph expires July 1, 2020. Id. By December 1 of each year, each school district must submit to the Department the number of eligible classroom teachers who qualify for the scholarship, as well as identifying information regarding the schools to which the eligible classroom teachers are assigned. § 1012.731(4)(a)-(c), Fla. Stat. For the 2017-2018 school year, the December 1, 2017, submission deadline was extended to January 2, 2018, due to a hurricane. The School Board’s deadline for teachers to apply for the scholarship was accordingly extended from November 1, 2017, to December 1, 2017. By February 1 of each year, the Department is required to disburse scholarship funds to each school district for each eligible classroom teacher to receive a scholarship. § 1012.731(5), Fla. Stat. By April 1, each school district is required to award the scholarship to each eligible classroom teacher. § 1012.731(6), Fla. Stat. In 2018, the Legislature amended section 1012.731 to provide that a school district employee who is no longer a classroom teacher may receive the $6,000 award if the employee was a classroom teacher in the prior school year, was rated highly effective, and met the requirements of this section as a classroom teacher. § 1012.731(3)(b)2., Fla. Stat. (2018). The Legislature did not add a similar provision stating that former classroom teachers who are still school district employees remain eligible for the $1,200 and $800 awards. § 1012.731(3)(c)2., Fla. Stat. (2018). The Legislature funds the Best and Brightest Program. The School Board had no role in creating the Best and Brightest Program. The School Board is required to determine the eligibility of classroom teachers who qualify for the Best and Brightest Program pursuant to the requirements of the statute. Petitioners in this case claim entitlement only to the $1,200 award established by the 2017 version of the statute. Brenda Troutman, director of Instructional Personnel, is the School Board employee in charge of the Best and Brightest Program application and submission process. Ms. Troutman has worked for the School Board for 17 years. She has been a junior high classroom teacher and an assistant principal and vice principal at the high school level. Though no longer teaching in the classroom, Ms. Troutman retains her certifications in math grades 5-9, exceptional student education (“ESE”), educational leadership, and school principal. When working as a high school administrator, Ms. Troutman was the master scheduler for her school, meaning that she built the schedule for every teacher at the school. This task required that she become very familiar with the School Board’s course code directory. Ms. Troutman also had to understand the certification system in order to hire and assign teachers. If a teacher asked to teach a certain course, Ms. Troutman had to know both the course requirements and the teacher’s certifications to determine whether the teacher was eligible to teach the course. As part of her current position in the School Board’s human resources department, Ms. Troutman is required to know the School Board’s various job titles and descriptions. She is responsible for replacing obsolete job descriptions and posting current job descriptions on the School Board’s website. Ms. Troutman testified as to how she manages the application and submission process of the Best and Brightest Program. She starts by making herself familiar with any changes the Legislature may have made to the program. She then issues a notice to teachers about the program and the current eligibility requirements. For the 2017-2018 Best and Brightest Program, Ms. Troutman prepared a draft email that Superintendent Addison Davis reviewed and sent to all of the school district’s teachers and administrators on September 28, 2017. The email explained that to be eligible for the $6,000, $1,200 or $800 scholarship, an applicant must meet the definition of classroom teacher as set forth in section 1012.01(2)(a). Ms. Troutman developed the School Board’s application for the Best and Brightest Program, based upon her understanding of the statutory requirements. All completed applications for the Best and Brightest Program come into Ms. Troutman’s office. Ms. Troutman testified that she received approximately 2,000 applications for the 2017-2018 award. Ms. Troutman, with the aid of her assistant, reviews and verifies the information on the applications. If Ms. Troutman has any questions about an application, she seeks the opinion of her direct supervisor David Broskie, the director of Human Resources. In some cases, they also have discussions with Superintendent Davis and School Board Attorney David D’Agata. The School Board employs two major data programs. FOCUS is the program/database that holds all student information, including attendance, grades, disciplinary actions, test information, and demographics. TERMS is the program/database that houses all employee information. When verifying information on the Best and Brightest Program applications, Ms. Troutman uses both FOCUS and TERMS, and on occasion conducts additional investigation. The School Board’s application asks for the teacher’s assignment. Because the application was titled “2017-2018 Clay County Application: Florida Best & Brightest Teacher Scholarship,” Ms. Troutman believed that the teachers were required to provide their 2017-2018 teacher assignments. As will be discussed in more detail below, the year of the teacher assignment was a major point of disagreement between Petitioners and the School Board. The application provided a checkmark system for the teacher to indicate which scholarship was being sought. The $1,200 scholarship line provided as follows: I am applying for the $1,200.00 highly effective scholarship. I have attached a copy of my 2016-2017 highly effective final evaluation (with student performance measures). The application’s language led Petitioners to believe that the 2017-2018 scholarship awards would be based on their teacher assignments and evaluations for 2016-2017. Ms. Troutman explained that this belief was incorrect. Eligibility for the 2017-2018 scholarship was based on a teacher’s assignment for the 2017-2018 school year. The plain language of the statute requires that one must be a “classroom teacher” in order to be eligible for the scholarship; having been a classroom teacher in a previous year does not suffice. Ms. Troutman stated that she verified with Mr. Broskie, Mr. Davis, and Mr. D’Agata that the School Board should base the award on the teacher’s 2017-2018 assignment. Petitioners, on the other hand, argue that the statutory language requires only an evaluation of “highly effective” for the 2016-2017 school year. The statute is silent as to whether a teacher applying for the $1,200 scholarship must be teaching in a classroom situation during the 2017-2018 school year. Petitioners argue that the School Board is reading a requirement into the statute that is not evident from the plain language. Ms. Troutman further explained that the applications for the 2017-2018 scholarships were to be submitted prior to the conclusion of the 2017-2018 school year. Therefore, as required by section 1012.731(3)(a)1. and (3)(c), the application requested the evaluation for “the school year immediately preceding the year in which the scholarship will be awarded.” Ms. Troutman testified that it is sometimes obvious from the teaching assignment that the teacher qualifies as a “classroom teacher.” If an application states that the assignment is “chemistry teacher” or “algebra teacher” or “fifth grade classroom teacher,” it is clear that the applicant meets the definition. Aside from verifying the assignment in the TERMS database, Ms. Troutman takes no further action. However, some applications require additional research before Ms. Troutman can conclude that the applicant qualifies as a classroom teacher. For example, Petitioner Abbie Andrews identified her assignment on her application as “classroom teacher.” Ms. Troutman went to TERMS and saw that Ms. Andrews was designated as an “ESE Support Facilitator” for the 2017-2018 school year. Ms. Troutman testified that ESE Support Facilitators are sometimes assigned to teach classes and therefore could be classified as “classroom teachers” for purposes of the Best and Brightest Program. Ms. Troutman examined both the master schedule and the teacher’s personal account in FOCUS to determine whether Ms. Andrews was assigned to teach any courses. Ms. Andrews had no teaching assignments for 2017-2018 in FOCUS. Ms. Andrews and fellow Petitioners Cherry Deaton, Donna Foster, and Danielle Perricelli held the position of ESE Support Facilitator during the 2017-2018 school year. The School Board concluded that these Petitioners did not qualify for the $1,200 scholarship because their schedules did not assign them the professional activity of instructing students in courses in a classroom situation, as required by the statute. It was undisputed that these Petitioners had been rated “highly effective” for the 2016-2017 school year. It was also undisputed that Ms. Andrews, Ms. Deaton, and Ms. Foster met the statutory definition of a classroom teacher for the 2016-2017 school year. The School Board’s general job description for an ESE Support Facilitator provides as follows: The teacher is responsible directly to the Principal. He/she provides for the instruction, supervision, and evaluation of assigned students on an as needed basis. He/she supports both general education and ESE teachers. He/she serves in a staff relationship with other teachers and supports and promotes ESE inclusion activities. (Emphasis added). The School Board contrasts this job description with that of “Classroom Teacher,” which provides: “The teacher is responsible directly to the principal for the instruction, supervision, and evaluation of students.” The classroom teacher is fully responsible for the “instruction, supervision, and evaluation” of the students in her classroom, whereas the ESE Support Facilitator performs those activities only “as needed.” The School Board also points out that, unlike a classroom teacher, an ESE Support Facilitator is not required to be certified in-field for the position. The ESE Support Facilitator is not the teacher of record for any particular course. Their schedule is fluid. The ESE Support Facilitator comes and goes as needed (“pushes in,” to use the teaching vernacular) in the classroom, and is expected to be wherever the ESE student assigned to them needs their services. Sometimes they push into the classroom and sometimes they pull students out of the class to work on a specific concept or skill. An ESE Support Facilitator is assigned “contact students” for whom individualized educational plans (“IEPs”) are prepared. The classroom teacher of record is responsible for giving the student course credit or a grade and is responsible for recording attendance in FOCUS. One-third of the classroom teacher’s evaluation is tied to student performance. Only the classroom teacher has default access to FOCUS in order to enter attendance and grade information for the students in the class. An ESE Support Facilitator must seek and be granted access to student’s FOCUS information. An ESE Support Facilitator is expected to meet with each contact student at least once a month; in practice, these meetings tend to occur more frequently. The ESE Support Facilitator goes over accommodations the student needs and assignments the student did not understand. The facilitator reteaches the course material if need be and stays in touch with the student’s teachers and parents, making sure all stakeholders in the student’s success are on the same page. The evidence presented at the hearing indicated that all of the students served by the ESE Support Facilitators in this case attended classes in regular classrooms, not in separate ESE classes. In such “inclusion” classes, the ESE Support Facilitator’s role is to push in and assist contact students in the regular classroom, ensuring that their IEP requirements are met and that the students are progressing satisfactorily through the course material. Based on these definitional and operative distinctions, Ms. Troutman considered ESE Support Facilitators to be “other instructional staff” as defined by section 1012.01(2)(d), rather than “classroom teachers” as defined by section 1012.01(2)(a). Ms. Andrews was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Andrews met the definition of a “classroom teacher” for the 2016-2017 school year. During the 2017-2018 school year, Ms. Andrews was a full-time ESE Support Facilitator at Middleburg High School, not assigned to teach any courses. In FOCUS, she was assigned as the “contact teacher” for approximately 60 students, meaning that she was primarily responsible for writing their IEPs and ensuring that they made adequate progress in their classes. She met with all of her contact students on an as needed basis, at least once per month but often as much as twice per week. However, Ms. Andrews was not listed in FOCUS as the teacher of record for any class. Even though she routinely pushed into classes to support her assigned ESE students, Ms. Andrews was not the primary teacher of record. She was there to assist her contact students with whatever they needed to learn the course, but the course was not assigned to her to teach. Ms. Andrews did not have a traditional classroom. She was not the teacher of record in any course for which students received academic credit, and she did not assign grades to students for the material she was teaching. Ms. Andrews prepared IEPs that were individualized to particular contact students. She did not prepare daily lesson plans in the manner of a classroom teacher. Ms. Andrews described her job as an ESE Support Facilitator as follows: My job is to teach, mentor, challenge students to make them -- make them ready for graduation, become productive members of society. I believe that’s the same thing a classroom teacher does. I am using the Florida standards to prepare lessons for remediation if a student needs it. I am constantly having conversations with not just students, but their parents, keeping them on track or making sure their students are on track because ultimately, a parent wants that student to graduate on time as well. I believe that the questions that are asked of me as a support facilitator are the same questions that parents would ask of a classroom teacher because they are very concerned. I am not just answering questions based on one classroom. I'm answering questions based on six classes. I'm responsible for that student being successful in six classes. The IEPs that I write, they're legally binding. I am involved in the academics, behavior, discipline. I deal with discipline problems. All of these things are the same things that a classroom teacher would deal with. I do not have a schedule in Focus; however, when a need arises, I'm there, I'm in a classroom, I'm helping, and I'm doing what's needed to be done for the kids to be successful. Ms. Deaton was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Deaton met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Deaton was a full-time ESE Support Facilitator at Middleburg High School, with approximately 60 contact students assigned to her in FOCUS. She was not assigned to teach any courses. If she pushed into a class to support her assigned ESE students, she was not the primary teacher of record. She was not designated as a co-teacher,3/ but she would assist teaching classes on an as-needed basis if she was not busy testing students or preparing IEPs. For those classes, she was provided access to view grades in FOCUS, but she did not have access to give grades. She would meet students as needed in her office, in another teacher's classroom, or in the computer lab. She did not develop lesson plans on her own, but provided suggestions and advice on lesson plans to the primary teacher. As an ESE Support Facilitator, Ms. Deaton did not have a classroom or teach a classroom full of students. She had no schedule assigned to her in FOCUS, but had contact students assigned to her in FOCUS. Ms. Foster was employed as an English/language arts and ESE Inclusion Teacher during the 2016-2017 school year. She taught four classes as ESE inclusion teacher. The remaining two periods were devoted to her position as ESE department head. Ms. Foster had a schedule in FOCUS. She had her own classroom and students, prepared daily lesson plans, and assigned grades. Students in her classes received academic credit. Ms. Foster was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Foster met the definition of a “classroom teacher” for the 2016-2017 school year. Ms. Foster was employed as an ESE Support Facilitator and ESE department head during the 2017-2018 school year. She retired at the end of the school year, effective June 7, 2018. As an ESE Support Facilitator, Ms. Foster did not have a set schedule. Ms. Foster’s assigned ESE students did not receive academic credit for the services she provided, but her assistance was integral in helping them pass their courses. Ms. Foster assisted with an American history class during the 2017-2018 school year, but was not assigned as the primary teacher in FOCUS. Ms. Foster testified that she did not believe she had ever been identified as a co-teacher in FOCUS, though she thought she should have been. Ms. Foster testified that she had IEPs for the American history class that listed both the class setting and the service delivery method as “co-teach.” She explained that because the class had both general education and ESE students, the teacher had to be certified in both the subject matter and ESE. Because the primary teacher was certified only in the subject matter, it was necessary for Ms. Foster to co-teach the class. Ms. Foster testified that she split lesson plan preparation with the primary teacher. Ms. Foster believed she was not listed in FOCUS as the co-teacher because the school administration never bothered to remove the name of Kristin Heard, the ESE teacher originally assigned to the class, who was moved to a science class early in the year. Ms. Foster pursued the matter with the assistant principals at Lakeside Junior High, but nothing came of it. Mallory McConnell, the principal at Lakeside Junior High School during the 2017-2018 school year, confirmed that Ms. Foster was not listed as a co-teacher on the master schedule. Ms. McConnell testified that in 2017-2018 there were no “true co-teacher” situations, by which she meant two teachers who equally shared responsibility for the instruction and grading of every student in the class. Ms. McConnell was aware of situations in which a student’s IEP mandates co-teaching in a class, but she testified that she was unaware of any student at Lakeside Junior High School in 2017-2018 whose IEP required a co-teacher. Ms. McConnell conducted infrequent walkthrough observations of the American history class. She testified that she saw Ms. Foster providing support services to the ESE students but never saw Ms. Foster teaching at the front of the class. Ms. McConnell stated that she would not have expected to see Ms. Foster teaching the class or creating lesson plans for the class as a whole because those tasks were not her job responsibility. Ms. McConnell was in no position to state whether Ms. Foster did, in fact, prepare lesson plans and teach the class. Ms. McConnell was able to state that for at least one month during the school year, Ms. Foster administered tests to her ESE students, meaning that she could not have been co- teaching the American history class. Ms. Foster did not tell Ms. Troutman that she had assisted teaching the American history class during the 2017- 2018 school year, nor did she include such information on her application for the Best and Brightest Program, because she believed the award was based upon her position in 2016-2017 and because she believed the school administration’s failure to include her as teacher of record in FOCUS was an “in-house” issue. Ms. Perricelli was employed as an ESE Support Facilitator, ESE department head, and MTSS intervention team facilitator at Orange Park Junior High School. “MTSS” is an acronym for Multi-Tiered System of Support, a framework for providing support to students who are struggling academically or have an identified need in a specific area such as speech, language, or behavior. MTSS interventions may be used for regular education or ESE students. Ms. Perricelli testified that she was not the teacher assigned by FOCUS for any class in 2016-2017. In addition to her regular ESE duties, Ms. Perricelli taught “grade recovery” to two students in language arts, science, and math. Grade recovery is a class offered to students who have failed a course and lack the credits to move on to the next grade level. Ms. Perricelli designed lesson plans and curriculum assessments for each subject, graded papers and tests, and reported the students’ grades to the school. Ms. Perricelli testified that she was not given the authority to enter the grade recovery students’ grades into FOCUS in 2016-2017. She requested a course code but was never provided one. Ms. Perricelli taught grade recovery for two periods, one for each student. For the other four periods of the school day, Ms. Perricelli would push into classrooms and work with ESE students, usually in small groups with students who needed remediation. She had around 40 contact students and developed IEPs for each of them. Most of her contact students were in the classrooms that she was going into, so she would see them throughout the week. She would meet with her other contact students about once a week. Ms. Perricelli would work with the assigned teacher to modify the course material to meet the needs of the ESE students. Ms. Perricelli was evaluated as “highly effective” for the 2016-2017 school year, based on standard classroom teacher criteria. She was observed working with her grade recovery students and in the classrooms in which she pushed in. Ms. Perricelli testified that her assignments were the same for the 2017-2018 school year. She taught one student in a grade recovery course. Due to her persistence, Ms. Perricelli was able to get a course code from Ms. Troutman for the grade recovery course in 2017-2018. The grade recovery course was named “Unique Skills.” In 2017-2018, Ms. Perricelli was assigned around 70 contact students for whom she prepared IEPs. As department head, Ms. Perricelli oversaw 22 ESE instructors. She was the only ESE Support Facilitator at the school. Janice Tucker was vice principal at Orange Park Junior High School in 2017-2018. She testified that early in the school year, the assigned teacher for seventh grade math left for another county. A long-term substitute, Lashonda Campbell, took over as teacher of record. Ms. Perricelli testified that she developed some of the curriculum in Ms. Campbell’s math classes, which included ESE and non-ESE students. She stated that she taught the class alone once a week when Ms. Campbell started, then tapered off into pulling out small groups of ESE students who needed remediation. She worked with four periods of seventh grade math classes that year. Ms. Perricelli testified that she gave grades to students in those courses and gave them to Ms. Campbell for entry into FOCUS. Ms. Tucker testified that Ms. Perricelli was not a co- teacher for the math class. Ms. Campbell was the teacher of record. Ms. Tucker testified that when she observed the math class, she saw Ms. Perricelli working with small groups in the back of the class or at a table in the hallway, and Ms. Campbell at the front teaching the class. Ms. Tucker never saw Ms. Perricelli at the front of the class teaching. Ms. Tucker conceded that she had no knowledge whether Ms. Perricelli was involved in creating lesson plans or assigning grades for the math class. Ms. Perricelli was evaluated by Ms. Tucker for the 2017-2018 school year. Ms. Tucker observed Ms. Perricelli in the seventh grade math class and in the Unique Skills class. Ms. Perricelli was again rated “highly effective.” Ms. Perricelli testified that she did not mention teaching the math class on her scholarship application. She stated that she did not tell Ms. Troutman about the math class because at the time, the school was still attempting to get a full-time teacher for the class. Ms. Troutman obviously knew about the “Unique Skills” class, having issued the course code to Ms. Perricelli. Ms. Troutman testified that she consulted with Mr. Broskie and Mr. D’Agata as to whether having one assigned class in FOCUS should qualify Ms. Perricelli for the scholarship. They concluded that teaching one class with one student was insufficient to qualify as a “classroom teacher” for purposes of the Best and Brightest Program. Ms. Troutman testified that this conclusion was consistent with the School Board’s historic practice of considering two or more classes as the “cutoff” for a classroom teacher. Ms. Troutman believed that if an ESE Support Facilitator taught two classes, then she would qualify as a “classroom teacher.” Petitioner Easter Brown taught a fourth grade classroom at Grove Park Elementary School during the 2016-2017 school year and was rated “highly effective.” It is not disputed that Ms. Brown met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Brown was a full-time SPRINT specialist. “SPRINT” stands for Supervisor of Pre-Interns and New Teachers. SPRINT specialist is a support position for teacher trainees and new teachers, operating under an agreement between the School Board and the University of North Florida (“UNF”), each of which pays half of the SPRINT specialist’s salary. Ms. Brown taught field classes at UNF and conducted workshops for clinical educator training and professional development. Ms. Brown kept Grove Park Elementary as her home base and shared a classroom there with two other teachers. She taught UNF students in classes at the university and worked with new teachers at the school. She estimated that she spent half her time at UNF and half at Grove Park Elementary. Ms. Brown had no K-12 courses or K-12 students assigned to her in 2017-2018. She had no courses assigned to her in FOCUS. She gave grades to only UNF students. Ms. Brown did not create traditional lesson plans but did assist new teachers in writing lesson plans. Ms. Brown testified that she did some teaching in a regular classroom for purposes of modeling teaching techniques for her student teachers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Clay County School Board enter a final order: Finding that Petitioners Abbie Andrews, Cherry Deaton, and Donna Foster were not eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were not classroom teachers during the 2017-2018 school year; and Finding that Petitioners Easter Brown and Danielle Perricelli were eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were classroom teachers during the 2017-2018 school year, and directing staff to take all practicable measures to secure the scholarship monies for Ms. Brown and Ms. Perricelli. DONE AND ENTERED this 18th day of March, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2019.
Findings Of Fact William Haynes Gandy, for 17 years a school teacher and coach, began his most recent stretch of employment with the Santa Rosa County School Board in the fall of 1978 at Jay High School. He coached football and taught girls' physical education and math courses during the 1978-1979 school year, even though he held a teacher's certificate in physical education only, at all pertinent times. Coaching assignments entail a certain amount of prestige and entitle their recipients to a salary supplement. In Santa Rosa County, school principals make coaching assignments in their unfettered discretion. LETTER NO FACTOR On July 1, 1979, Mary Cecelia Diamond Findley, assistant principal of Jay High School during the preceding school year, became principal. During Dr. Findley's first year as principal, Mr. Gandy taught math and science courses. In the fall of the year, a student asked petitioner to write a letter on her behalf, because she had been accused of a burglary. Dr. Findley's son had also been charged with this crime. On November 30, 1979, Mr. Gandy addressed the following letter "To Whom it May Concern" and gave it to the student's parents: I, W. H. Gandy, being employed by Santa Rosa County School Board as an in- structor at Jay High School do hereby give the following statement in behalf of Karen Cooley. I have known this student for several years. She was in my class last year and was an excellent student. I found her to be very cooperative, initiative [sic] and enthusiastic young student. Her capabilities and talents are unlimited if she applied herself. I know of no past conflicts or involvements in our community or school which would reflect on her character. In working directly with young people for the past 15 years, I have found that most all students need help at one time or another. Of course, their needs vary, from personal, emotional problems, school discipline problems, to problems with the laws of our society and state. I feel Karen realized what she did was wrong and now must face the consequences. She has already been subjected to the scrutiny of her classmates at school, to the embarrassment of hurting her parents and family, and to the fact that she took part in crime and now has a record which will remain with her the rest of her life. Karen cannot undo the wrong she has done, but certainly since this is her First Offense, and she has the ability and desire to mature into a useful citizen in our community, she should be given this opportunity. I hope and pray that she will be given some kind of a probation period and given the opportunity to finish school and start a meaningful life of her own. Petitioner's Exhibit No. 1 He told no one other than the Cooleys and Karen's attorney about the letter, at the time. Dr. Findley did not learn of the letter until this year. Dr. Findley's decision not to reappoint Mr. Gandy as assistant football coach, more than two and a half years after the letter was written, took place after discussions with the head football coach and had nothing to do with the letter or any other exercise by petitioner of his first amendment rights. TRANSFER Beginning with the 1979-1980 school term, Mr. Gandy has been on continuing contract as a teacher for respondent. On Dr. Findley's recommendation, at the close of the 1982-1983 school year, and that of Bennett C. Russell, respondent's superintendent, respondent transferred Mr. Gandy to the Gulf Breeze Middle School. Originally he was to teach health classes there, but he was assigned physical education classes after his request for formal hearing was filed. Respondent had taught some classes out of his field every year he was at Jay High School. Before the letter on behalf of Ms. Cooley was ever written, and, according to petitioner, before there were any ill feelings between Dr. Findley and himself, he was assigned exclusively math and science courses for the 1979-1980 school year. In 1980-1981, and again the following school year, Mr. Gandy taught a single physical education class and several math classes. He taught math courses exclusively during the 1982-1983 school year. By the spring of 1983, there were five teachers at Jay High School who had taught there shorter periods than the five years petitioner had taught at Jay High School. Of these, Oliver Boone, the band director, and Deborah Walther, who was certified in art and science, were retained. Desiree Jamar, who was certified in art, was transferred; and the two other junior teachers did not have their annual contracts renewed. One of these two, Deborah Gomillion, who is certified to teach exceptional education classes, was subsequently rehired to head the exceptional education program at Jay High School. Five of the 32 teachers at Jay High School for the 1982-1983 school year were certified in physical education, but, unlike respondent, some of them were certified to teach other subjects, as well. Respondent transferred another coach from Jay High School who was certified in social studies as well as physical education. There was only one teacher certified in mathematics for the 1982-1983 school year. Respondent hired a second certified mathematics teacher for 1983-1984 who was to teach five mathematics courses and coach football at Jay High School. On July 28, 1983, respondent hired a teacher certified in physical education to teach at Pace High School. Dr. Findley and Mr. Gandy had their differences. She believed him guilty of certain improprieties never formally established. He resented a notice of non-renewal Dr. Findley, under the erroneous impression that Mr. Gandy had not yet been awarded a continuing contract, sent in response to instructions so to notify all annual contract teachers who taught compensatory classes like the math classes he was teaching at the time. The low esteem in which Dr. Findley held petitioner was a factor in her recommending that he be transferred. The superintendent was aware of the friction, but he made his decision "because we were cutting back personnel at Jay High School and we had a position available at Gulf Breeze Middle School." (T. 129) Respondent's superintendent did not accept her recommendation that petitioner be transferred just to keep the peace. Dr. Findley herself was transferred from Jay High School for the 1983-1984 school year. The continuing contract of employment between the parties does not grant petitioner the right to teach in a particular school. Joint Exhibit No. The master contract in effect between Santa Rosa County School Board and the Santa Rosa Professional Educators provides: Involuntary transfer of teachers shall be made by the Superintendent and Board based upon: l) Santa Rosa County School District needs as determined by the Superintendent and the Board; 2) certification; 3) length of service in Santa Rosa County; and, 4) any other data. Petitioner's Exhibit No. 6, p. 8. Article IV of the same agreement establishes in detail a grievance procedure, but does not make it mandatory or exclusive.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent dismiss petitioner's request for hearing, without prejudice to his filing a grievance as regards his transfer. DONE and ENTERED this 27th day of September, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of September, 1983. COPIES FURNISHED: Philip J. Padovano, Esquire 1020 East Lafayette Street Tallahassee, Florida 32302 Paul R. Green, Esquire Post Office Box 605 Milton, Florida 32570
Findings Of Fact At all times material hereto, Respondent was employed by the School Board of Dade County as a classroom teacher. During the 1980-1981 school year, Respondent was assigned to Southwood Junior High School as a science teacher. During that school year, Dr. E. L. Burck was the principal at Southwood. In August, 1980, Respondent applied for a part-time position teaching photography during the evenings at Robert Morgan Vocational Technical Institute. When Dr. John D. White, the vice principal at Robert Morgan, hired Respondent, he explained to Respondent that it would be necessary for Respondent to qualify for a teaching certificate in the area of photography. Respondent told White that he believed he was certifiable based upon his work experience and indicated to White that he would pursue the necessary steps to obtain his certification. At the time that White hired Respondent to teach part-time during the fall 1950 semester, White knew that Respondent was employed full-time at Southwood. During the fall 1980 semester, the administrators at Robert Morgan determined they wished a full-time program at Robert Morgan and decided that if enough students would be generated, they would need a full-time photography teacher in January, 1981. The possibility of a full-time position was discussed with Respondent. Respondent decided that if he could obtain a full-time position at Robert Morgan in January, he would pursue obtaining certification; however, if he could not obtain a full-time position, he would not pursue obtaining certification since it was difficult to teach full-time at Southwood in addition to part-time at Robert Morgan. During December, 1980, while enrollment was underway at Robert Morgan and it appeared probable that a full-time photography position would become available, Respondent spoke with Dr. Burck at Southwood regarding the possibility of transferring to Robert Morgan on a full-time basis beginning January 5, 1981, the first day of classes following the Christmas, 1980, vacation. Burck explained to Respondent the procedures relating to such a transfer of assignment and further explained that he needed to have definite information as soon as a final decision had been made so that he could initiate procedures for obtaining a teacher to replace Respondent. Just prior to Christmas vacation, Dr. White (as the potential "receiving principal") and Dr. Burck (as the potential "sending principal") discussed the possibility of the full-time photography class and the possibility of Respondent's transfer to Robert Morgan to teach that class. White explained that he did not yet know if the full-time class would materialize but that he would give Burck two weeks' notice in order that Burck could find a replacement teacher. Burck conveyed to Respondent the content of this conversation and advised Respondent that until such time as the class materialized and Respondent was replaced at Southwood, Respondent was still a staff member at Southwood and Burck expected to see him on January 5, 1981. Respondent did not report for work at Southwood on Monday, January 5, 1981, and failed to advise anyone at Southwood that he did not intend to return to teach his classes. Burck and another employee of Southwood attempted to locate Respondent. On January 6, 1981, White ascertained that there was sufficient enrollment for the full-time photography teacher's position at Robert Morgan. He instructed an employee at Robert Morgan to process the necessary paperwork to hire Respondent full-time. It was discovered that Respondent did not have, nor had he applied for, his vocational certificate covering the field of photography. Since White had told Respondent in August, 1980, to obtain certification and Respondent had apparently done nothing to do so, White gave to Respondent a deadline of Friday, January 9, 1981, to obtain verification of his ability to secure the proper teaching certificate. Also on January 6, 1981, White and Burck discussed Respondent's employment. White advised Burck that Respondent was teaching part-time at Robert Morgan and that there appeared to be a problem with Respondent's certification. Burck then talked with Respondent, and Respondent told Burck that he was teaching at Robert Morgan as a full-time instructor and that the certification problem would be resolved shortly. Burck told Respondent he needed an immediate resolution because Respondent's students at Southwood were without a regular teacher. Burck reminded Respondent that Respondent's assignment was at Southwood and that no transfer had been officially requested or granted. Burck contacted Dr. Thomas Peeler, South Area Director, and requested Dr. Peeler's assistance in resolving Respondent's status. On January 7, 1981, Dr. Peeler contacted White at Robert Morgan and advised White that Respondent was not reporting to work at Southwood. White had assumed that Respondent was reporting to his assigned school. Peeler instructed White to advise Respondent that he was to report to work at Southwood the following day. On January 7, White told Respondent to report to Southwood the following day. On January 8, White again advised Respondent that he was to report to work at Southwood. On January 9, White released Respondent from his part-time teaching assignment at Robert Morgan since Respondent had not achieved either obtaining the required certification or obtaining verification that he was in fact certifiable. Also on January 9, Burck contacted Respondent and advised Respondent that he had not been transferred and was still assigned to Southwood. On Monday, January 12, 1981, Dr. Peeler, the South Area Director, ordered Respondent to report to his teaching position at Southwood on Tuesday, January 13. Later that same day, Dr. Burck ordered Respondent to return to work on the 13th. Respondent told Dr. Burck that he would not return to work. On January 13, Dr. Peeler wrote Respondent, ordering him again to immediately report to his teaching assignment at Southwood. Peeler advised Respondent that his failure to report could result in suspension. In view of Respondent's continued refusal to obey orders, and in view of Respondent's advice to Burck the evening of January 12 that he would not report to Southwood to fulfill his teaching duties, a replacement teacher was located to fill Respondent's position as a science teacher at Southwood. Between January 5, 1981, and January 30, 1981, Respondent did not report to his assigned teaching position despite repeated orders from his superiors, Respondent knew that his place of employment had not been changed, and Respondent was absent from his teaching duties without leave. On January 30, 1981, a conference was held among Mr. Eldridge Williams, the Executive Director of the Office of Personnel for the Dade County Public Schools, Dr. Thomas Peeler, the South Area Director, and Respondent to discuss Respondent's repeated failure to report to work and Respondent's employment status. At that meeting, Respondent offered to return to work at Southwood on February 2, 1981; however, his position had been filled. Insofar as payroll status, Respondent was classified as absent without leave. No alternate position was available for placement of Respondent through the remainder of the 1980-1981 school year. On March 9, 1981, Patrick Gray, the Assistant Superintendent in the Office of Personnel, wrote Respondent regarding the south area supervisor's recommendation that Respondent be suspended or dismissed from employment. Gray's letter ordered Respondent to immediately return to Southwood or to resign or to retire in order that his employment status could be resolved. At the time he wrote that letter, Gray was not aware that Respondent's position at Southwood had been filled. In response to his letter of March 9, Gray received a letter from Respondent dated March 16, 1981, requesting another conference. A second conference between Respondent and Eldridge Williams was scheduled for April 2, but Respondent refused to meet with only Williams. Accordingly, a conference was scheduled for April 17, 1981, with Patrick Gray, Eldridge Williams, Dr. Peeler and Respondent. As a result of that conference, Respondent submitted a leave request dated April 22, 1981, requesting leave for the period of April 27, 1981, through the end of the school year in June, 1981. This request for leave was approved by Gray on August 7, 1981, retroactive for the period requested. A formal letter of reprimand dated October 13, 1981, was issued to Respondent as a result of his insubordination in refusing to report as ordered to Southwood Junior High School. During the 1981-1982 school year, Respondent was assigned to Redland Junior High School as a science teacher. Utilizing proper procedures, Respondent was absent on September 16, September 28, October 6, October 22, October 23, October 26, October 27, October 28, October 29, October 30, November 2, November 3, November 4 and November 5, 1981. On September 28 and October 6, Respondent utilized personal leave. On the other 12 days, he utilized sick leave. On November 5, 1981, Respondent advised Judy Cobb, Assistant Principal at Redland Junior High School, that he was looking for another job. Cobb advised Norman Lindeblad, Principal of Redland Junior High School, of this conversation with Respondent. On Friday, November 6, 1981, Respondent advised Lindeblad that he would not be returning to his teaching assignment at Redland Junior High School. Respondent told Lindeblad to fill Respondent's teaching position, and Lindeblad advised Respondent that he could not do so without receiving such directive in writing. Lindeblad advised Respondent that he expected Respondent to report to his teaching position on Tuesday, November 10, 1981, absent some other resolution of the problem such as approved personal leave or resignation. Late in the evening on November 9, 1981, Respondent telephoned Lindeblad at home and advised Lindeblad that he would not report on Tuesday, November 10, 1981, to teach his classes. On Tuesday, November 10, 1981, Respondent once again advised Lindeblad that he would not return to his teaching position at Redland. Respondent scheduled an appointment with Lindeblad on November 11 to finally resolve his status, and Lindeblad advised Respondent that unless verification of illness was provided, Lindeblad would commence recording Respondent's leave as leave without pay beginning on Friday, November 6, 1981. On November 11, 1981, Respondent appeared at Redland Junior High School and gave to Lindeblad a memorandum authorizing Lindeblad to replace Respondent in his science teaching position as of Wednesday, November 11, 1981. On November 16, 1981, the personnel office received an application for leave without pay from Respondent, which application was dated November 11, 1981, and which application requested leave effective November 11, 1981, due to Respondent's ill health. The portion of the application for leave requiring the signature and recommendation of the principal was not completed. Although the application required a statement from a physician justifying the request if the request were based upon ill health, Respondent provided only a short letter signed by a therapist possessing a degree in education stating that Respondent felt stress and frustration. No information regarding any physical symptoms, diagnosis or prognosis was volunteered. Since proper procedures require the principal's recommendation for extended leave, Lindeblad was asked to provide his recommendation to the personnel office. On November 18, 1981, Lindeblad sent a memorandum to the Office of Personnel stating that he did not recommend approval of leave for Respondent since no statement from a physician had been provided to verify Respondent's alleged ill health and because Lindeblad felt that the Respondent had begun unauthorized leave before he even requested leave. On November 19, 1981, Patrick Gray advised Respondent that Respondent's request for leave was not approved. Respondent was further advised that since he refused to carry out his teaching assignments for the second year in a row and since Respondent was simply attempting to obtain a teaching position in an area for which he was not certified and could not be certified, then Respondent's options were limited to either resignation or suffering suspension and dismissal proceedings. Respondent did not resign, and dismissal proceedings were initiated. Respondent was absent in accordance with proper procedures for the 14 days ending on November 5, 1981, as set forth in Paragraph numbered 24. Commencing on November 6, 1981, Respondent was absent without leave. Although Respondent eventually obtained verification of his work experience for the addition of photography to his teaching certificate, as of October 1, 1981, Respondent was still not certifiable for the reason that he still needed three full years of teaching experience and 14 semester hours of credit in vocational education courses. By the time of the final hearing in this cause, Respondent had still not obtained a teaching certificate enabling him to teach photography.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of gross insubordination, incompetency, willful neglect of duty and absence without leave; dismissing Respondent from employment by the School Board of Dade County; and denying Respondent's claim for back pay. DONE and RECOMMENDED this 21st day of January, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Robert F. McKee, Esquire 341 Plant Avenue Tampa, Florida 33606 Leonard Britton Superintendent of Schools Dade County Public Schools Lindsay Hopkins Building 1410 NE Second Avenue Miami, Florida 33132
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Background Information The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Dillard High School, Thurgood Marshall Elementary School, and Deerfield Park Elementary School) and for otherwise providing public instruction to school-aged children in the county. Respondent is employed by the School Board as a professional service contract teacher. He has worked as a teacher for the School Board since 1982 (except for a year's leave of absence following the 1994- 1995 school year). He has an unblemished disciplinary record as a School Board employee. Respondent taught music at Dillard High School (Dillard) from 1982 until the end of the 1994-1995 school year, at Thurgood Marshall Elementary School for the 1995-1996 school year, and at Parkview Elementary School from the beginning of the 1996-1997 school year until early 2005, when he was placed on administrative reassignment pending the outcome of an investigation of an allegation of sexual misconduct made against him by a former student, T. H. At Dillard, Respondent was the director of the school band and a popular teacher. Allegations of Sexual Misconduct T. H. graduated from Dillard in 1989. In her ninth, tenth, eleventh and twelfth grade years at Dillard, she was in the school band and a student of Respondent's. T. H., who lived in a fatherless household, looked up to Respondent and considered him to be a "father figure" and "role model." A personal relationship developed between the two. They began conversing with one another on a daily basis, talking "about people and about the world and different things like that." Respondent did most of the talking, with T. H. "listen[ing] to [the] the things he had to say." During "summer band," before the beginning of T. H.'s tenth grade year, the conversations between T. H. and Respondent became more intimate in nature and their relationship evolved into a physical one. The first physical contact they had that summer was in the music library adjacent to Respondent's office, when Respondent walked up to T. H., "embraced" her, and gave her an "[i]ntimate, on-the-mouth kiss." Later that summer, Respondent started driving T. H. home (but not always straight home) in his Toyota Camry after band practice. In the car, there was intimate touching between the two, including Respondent's penetrating T' H.'s vagina with his hand. Thus began the sexual relationship between T. H. and Respondent, which lasted until after she had graduated from Dillard. "[N]umerous times," after school and on weekends, Respondent drove T. H. in his car to various hotels, where they had sexual relations. They also had "dozens" of sexual encounters on school grounds, usually after school hours, in a "little back room," near the school auditorium, that was used as a dressing area. As a result of her having been intimate with Respondent, T. H. was able to observe that Respondent's penis was uncircumcised and that he had a "branded tattoo on his chest." Respondent sometimes set up a video camera to tape his sexual liaisons with T. H. He would also "send [T. H.] home with the camera" on weekends, requesting that she tape herself fondling herself and "and then bring the camera back to him on Monday" (which T. H. did). One day while T. H. was in Respondent's office, Respondent handed her a piece of "notebook paper" on which he had written the following poem: How then, can I tell you of my love? Strong as the eagle, soft as the dove, Patient as the pine tree that stands in the sun and whispers to the wind you are the one!!!![2] On another occasion when T. H. was in Respondent's office, she had a tape recorder with her and asked Respondent to "say something" that she could record. What Respondent said in response to this request was: "I love you baby, suck my dick," and "I love you baby, sit on my face."3 T. H. ended her relationship with Respondent during her first year as a student at the International Fine Arts College in Miami. It was not until 2003, approximately 14 years after she had graduated from Dillard, that T. H. decided to come forward and tell authorities about the sexual relationship she had had with Respondent when she was a student at the school. She had not come forward sooner because she did not have the courage to do so. Only after receiving "church counseling" was she able overcome her fear and become sufficiently emboldened to report what had occurred years earlier between her and Respondent. T. H. first went to the Fort Lauderdale Police Department, but was told that Respondent could not be criminally prosecuted because the limitations period had expired. In January 2005, the School Board's police unit was advised of the allegation that T. H. had made against Respondent and commenced an investigation into the matter, which included interviews with both T. H. and Respondent. On January 28, 2005, Respondent was placed on administrative reassignment with pay pending the outcome of the investigation. T. H. has "hired an attorney to pursue a civil claim against the School Board" for damages she allegedly suffered as a result of her relationship with Respondent when she was a student at Dillard. Allegations of Residing with Students From 1985 to 1987, Respondent resided in Dade County, Florida, with his wife4 and two minor daughters. For at least a portion of that time, two Dillard students stayed with Respondent and his family. One of these students was P. R., who was in the school band. When Respondent learned that P. R. was living in a residence with "no running water [and] no mom or dad," he invited P. R. to move in with him, an invitation that P. R. accepted. "Eventually," Respondent was able to make contact with P. R.'s mother and obtain her approval to "keep" P. R. P. R. lived with Respondent and his family for a year and a half. He moved out after he graduated and joined the military. The other student that stayed with Respondent and his family was C. M. Respondent's oldest daughter and C. M. both played flute in the school band and were close friends. C. M. stayed at Respondent's house on weekends and when school was not in session. C. M.'s mother never had any problem with these living arrangements. Respondent did not notify the School Board that P. R. and C. M. were staying with him inasmuch as he did not know that he was required to do so. Allegations of Corporal Punishment From 1982 to 1985, Respondent administered corporal punishment to students contrary to School Board policy (hitting female students on the hand with a ruler and male students on the buttocks with a paddle). He did not "seek permission from anyone in the [school] administration before administering [this] corporal punishment," nor did he administer this corporal punishment in the presence of another School Board employee, as required by School Board policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for having had a sexual relationship with T. H. when she was a student of his at Dillard. DONE AND ENTERED this 23rd day of August, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2006.
The Issue The issue in this case is whether Petitioner, Charlotte County School Board (the "School Board") has just cause to terminate the employment contract of Respondent, Natalie Santagata, based upon loss of effectiveness as a teacher due to scandalous materials being disseminated to School Board employees and parents.
Findings Of Fact The School Board is the duly authorized entity responsible for the operation, control, and supervision of the School, which is an elementary school within the Charlotte County Public School system. The School is an "A-rated" school with approximately 650 students and 45 members of the teaching staff. At all times relevant hereto, Santagata was employed at the School under a professional services contract. At the time of her termination from employment by the School Board, Santagata was teaching fifth grade at the School. She had been teaching at the School for approximately four years, having transferred from Peace River Elementary School. By all accounts, Santagata was an excellent teacher when she was hired to work at the School. She was hired to teach third-graders, an important grade due to the "no-child- left-behind" requirements associated with that grade level. Santagata was a "stellar" teacher according to the school principal. When she first came to the School, she taught third grade. Then, she "looped" to fourth grade the next year. One hundred percent of her students' parents agreed to allow their children to loop with her so she could continue teaching them. Santagata continued to be an excellent teacher at the School. However, in the beginning of the 2010-2011 school year, things began to change. At the start of the school year Santagata was operating at about the same proficiency level as in previous years, but in November her supervisor and co-workers began to notice disturbing changes in Santagata's appearance and demeanor. She began to show up at work in a somewhat disheveled state, she began to lose a noticeable amount of weight, and she was absent from the classroom more than usual. There were reports that Santagata was leaving her co-teacher alone in the room with the students more frequently. Her co-teacher at that time was a teacher with three years' experience as a teacher, but was in her first year at the School. Santagata was, however, never unable to perform her duties as a teacher during the school year. Santagata was experiencing significant difficulties in her personal life at the time she began to struggle as a teacher. She was going through a very unpleasant divorce and was undergoing extreme stress and anxiety because of that event. Beginning late in 2010 and continuing into the early months of 2011, Santagata showed signs that she was not performing up to her normally excellent standards. According to her principal, Santagata began to lose her "with-it-ness," i.e., her ability to maintain interaction and involvement with her students and their parents. One day, Santagata did not show up for work. When the principal called, Santagata said she had overslept. Santagata, ultimately, made it to work, but she was late and was admonished for that failure on her part. As her concerns about Santagata grew, the principal began to take more frequent "walk-throughs" in Santagata's classroom as a means of monitoring her more effectively. As a result of her observations during those walk-throughs, the principal decided to offer Santagata some help by way of the employee assistance program. The program provides teachers a way to deal with private and personal problems more effectively in order to maintain professionalism in their classrooms. The program was first discussed with Santagata in November of the 2010-2011 school year when the principal first learned Santagata was going through her divorce. The program was offered a second time in January after Santagata's behavior and demeanor began to change even more. There was no evidence as to whether Santagata availed herself of the employee assistance program. At about the time Santagata began showing signs of stress, the School received a few anonymous telephone calls from individuals saying that Santagata was using drugs and making inappropriate life choices. The School knew that Santagata's estranged husband was attempting to hurt her in any way he could. It was believed that he may be the source of the anonymous calls. The School also received an anonymous email advising about a You-Tube video purportedly showing Santagata in a room where other people were apparently smoking marijuana. When confronted with those allegations, Santagata voluntarily agreed to take a drug test to prove her innocence. The School decided not to test Santagata at that time. At a school field day held in the spring, a couple of parents reported to a teacher that Santagata looked "terrible." The teacher reported the observation to the principal, who went to see for herself. The principal found Santagata not to be up to her normal standards, but she did not look terrible. Shortly thereafter, the principal received another anonymous email saying Santagata was abusing drugs. At that time, the School decided to ask Santagata to submit to a drug test. Santagata was placed on administrative leave pending the result of the test, and when the test returned with a negative result, Santagata was reinstated. The reinstatement occurred just a few days before the end of the 2010-2011 school year. After the conclusion of the school year, various administrators at the School received packages from an anonymous sender. The packages contained videos and still photographs that purported to be Santagata engaged in sexual activities and smoking marijuana. The person in the videos and photographs resembled Santagata. The school principal recognized Santagata's house from one of the videos or still photographs. However, there was no verification that the person in the videos and photographs was indeed Santagata. Santagata neither admitted, nor denied that the videos and photographs were of her. One of the videos shows a woman engaging in oral sex with a man. Both appear to be adults and the sexual activity appears to be consensual. The videos also show the man and woman smoking cigarettes, but holding the cigarettes between the thumb and forefinger, i.e., in the manner which is generally associated with smoking marijuana cigarettes. The man in the videos at one point asked the woman whether she was "high" or some such reference to drug use. One of the videos also shows the woman moving from room to room, seemingly gathering clothes and other items as if she were packing. The man and woman appear to be angry at each other during this particular video. The woman appears to be preparing to terminate whatever relationship existed with the man. Once the videos were received at the School Board, they were turned over to the School Board security officer so that an investigation could be conducted. As part of the investigation, the security officer reviewed the videos and pictures, pleadings and other documents concerning Santagata's divorce proceedings, newspaper articles, and other documents. The officer interviewed school employees, but did not interview any parents of students from the School. The officer did not interview Santagata. Mrs. Mangiafico, a parent of students at the school, also received the pictures that had been sent to the School and School Board. Mangiafico's children were never in Santagata's classroom, but they were friends with Santagata's children. Mangiafico may have, at the time she turned over the pictures to the School, stated that she did not want Santagata teaching her children. However, she considered Santagata to be an excellent teacher and that "everybody wanted their kid in her class." Mangiafico did not know whether any other parents of students received the videos or pictures. She did not believe there had been any change in Santagata's reputation as a result of the pictures being disseminated. A local newspaper published an article about Santagata saying she was under investigation due to "inappropriate photos" the School had received. The article was published on August 10, 2011. There is no mention in the article as to what the photographs may have depicted. The School Board recognized that Santagata was not responsible for releasing the videos and pictures. It was, however, concerned about the possible perception of the School and Santagata by the general public. Specifically, the superintendent worried that "because the pictures and videos had been sent out to parents, that would affect [Santagata's] effectiveness in the classroom." The School principal was concerned about "the doubt that was placed in parents' minds" about Santagata as a teacher. Likewise, the assistant superintendent's concern was that once the pictures got out into the public, "it would lessen her effect [sic] as a teacher." The School Board was genuinely worried that if the videos and pictures were distributed more widely, the School may experience some negative public scrutiny. The School and School Board took strong measures to ensure that they were not the source of dissemination of the information to the public, but they could not be sure that some anonymous person might do so. Based upon those concerns, the School Board decided to terminate Santagata's employment. Santagata was offered the opportunity to resign, rather than being fired, but she refused to do so. Santagata was placed on administrative leave with pay, effective August 1, 2011. On September 6, 2011, the School Board voted to terminate Santagata's employment; she was notified by letter the next day. According to the superintendent of schools and the School principal, the pictures and videos were not sufficient, in and of themselves, to warrant discipline against Santagata, nor had any discipline been imposed against Santagata prior to her being placed on administrative leave. The basis of the School Board's action was simply the possibility that Santagata may lose her effectiveness, if the public was made aware of the photographs and videos.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Charlotte County School Board, rescinding the termination of Respondent, Natalie Santagata's, employment and that she be reinstated to her position with back pay and benefits for the reasons set forth above. DONE AND ENTERED this 13th day of March, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 13th day of March, 2012. COPIES FURNISHED: Dr. Douglas Whittaker, Superintendent Charlotte County School Board 1445 Education Way Port Charlotte, Florida 33948-1052 Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark S. Herdman, Esquire Herdman and Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Thomas M. Gonzalez, Esquire Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez & Hearing, P.A. 201 North Franklin Street, Suite 1600 Tampa, Florida 33602
Findings Of Fact Respondent is Lawrence J. Ferrara. He holds Florida teaching certificate number 150262, issued by the State of Florida, Department of Education. He is certified to teach social studies, grades 7-12. He has not been assigned to teach outside of this subject area at any time relevant to this proceeding. While Respondent's performance for the school years 1981-82 through 1985-86 is at issue in this proceeding, a review of his annual evaluations for the years 1966 to 1986 indicate a continuing problem in the control of students in the classroom and teaching effectiveness. Respondent was assigned to teach at John I. Leonard High School beginning with the 1970-71 school year and remained in this assignment until his suspension on February 19, 1986. John I. Leonard High School consisted of a 40 acre campus, 145 teachers, and about 2,200 students during the 1985-86 school year. Luke Thornton has served as principal of John I. Leonard High School since October 22, 1981. In dealing with employees, he follows guidelines set out in the collective bargaining agreement with the Classroom Teacher's Association. He is also guided by district school board policy, administrator's directives and the John I. Leonard High School Teacher and Student Handbooks. Thornton has several assistant principals, including "deans", who are authorized to counsel and reprimand employees. Deans are, however, primarily responsible for discipline of students and working with parents. Guidance counselors at the high school are also known as Senior High Counselors. They provide individual and group counseling to students, interpret test results and assist students in career planning. Guidance counselors may counsel other staff members when need arises. While designated department chairpersons within the school have authority to counsel with teachers in their respective departments, the chairpersons do not have the authority to reprimand or evaluate teachers. The chairperson for the social studies department at John I. Leonard High School is Catherine Thornton (no relation to the principal, Luke Thornton). As the chairperson, Ms. Thornton reviews lesson plans of all 16 teachers in the department to assure that objectives of the unified curriculum program are covered by the teacher. This action is mandated by the school board. Teachers are required to prepare lesson plans one week in advance. They must also prepare emergency lesson plans which can be used by a substitute teacher in the event the teacher is unexpectedly absent. Course assignments within the social studies department are recommended by the chairperson and reviewed by the assistant principal assigned to that task. The entire schedule is eventually approved by the principal. Textbooks are issued to each teacher within the social studies department by the chairperson. The teacher returns the books at the end of the semester or school year. If books are not returned, the teacher must collect the cost of the missing textbook from the student responsible for it. The 1981-82 School Year During the 1981-82 school year, Respondent was assigned three 9th grade American government classes and two 11th grade history classes. Respondent's hours of work, to accommodate this teaching schedule, were normally 9:45 a.m. until 5:15 p.m. In previous years, Respondent's assignment had been all 11th grade classes and his hours were normally 6:45 a.m. through 2:15 p.m. Shortly after the beginning of the school year, Luke Thornton became principal. Respondent sought to have his assignment changed by Thornton. The principal denied the request and told Respondent the subject would be revisited at the semester's end. At the end of the semester, Thornton again denied Respondent's request for change in course assignment due to disruption that would be caused in the master schedule, concerns about Respondent's performance, and what Thornton considered to be an excessive amount of failing grades received by students in Respondent's classes during the first nine weeks of the previous semester. During the fall semester, Respondent was absent on several occasions. After the refusal of his request at the end of the semester for a change of his teaching assignment, Respondent took a leave of absence for the entire second semester. During Respondent's absences in the 1981-82 school year, Mary Sandt substituted as the teacher of his classes. Lesson plans were available during the first semester. However, no lesson plans were provided for the second semester. Respondent did not provide any assistance to the substitute teacher in this regard, although testimony of Sandt establishes that other teachers normally provided such assistance. More than any other teacher during the 1981-82 school year, Respondent referred students from his classes to the deans for disciplinary reasons. The referrals were for minor infractions such as talking out of turn, sharpening pencils, and squeaking chairs. Sometimes he referred groups of students for discipline. Earl Higgs, a dean during this school year, discussed ways of handling minor infractions with Respondent. Higgs advised Respondent to review the John I. Leonard Handbook discipline provisions. Respondent was not responsive to these recommendations. Higgs was required to review class rules with Respondent's students on at least three occasions as a result of being called to the class by the Respondent because the class was out of control. Initially, Mary Sandt had some disciplinary problems with Respondent's classes during her substitute teaching for him, but the deans provided her with assistance in gaining control. Thereafter, she was able to control the students with only minor problems. Before referring students, Ms. Sandt attempted to resolve discipline problems in the class. If unsuccessful, she documented her action on a discipline referral slip. Respondent did not follow this procedure. Luke Thornton's first evaluation of Respondent following the 1981-82 school year noted Respondent had a considerable amount of discipline problems with 9th and 11th grade students. In addition, it was noted that students have "difficulty understanding his approach to teaching." Respondent's ineffective working relationship with associates and his failure to attend open house and graduation functions at the school were also noted. The evaluation reflected no areas of strength beyond the observation that Respondent "uses various methods and materials." The 1982-83 School Year The chairperson of the social studies department recommended that Respondent be assigned all 9th grade American Government classes for the 1982-83 school year. The recommendation was approved by Assistant principal Shirley Jackson and by Luke Thornton, the principal. Respondent felt "absolutely demoralized, devastated and dehumanized" and worthless in the eyes of fellow teachers as a result of his assignment to teach 9th grade. The 1982-83 school year produced numerous complaints about Respondent's teaching. His teaching technique essentially consisted of giving students a text book reading assignment and have them answer review questions at the end of the chapter. Students completed these assignments in class time while Respondent read the newspaper or listened to the radio. Students cheated on many occasions in order to complete their work by passing answer sheets around the classroom while Respondent was present. Respondent sometimes gave lectures to his classes. Many times the lectures had nothing to do with the course content. Respondent discussed a lawsuit he had initiated against the school board without relating it to the lesson content. He repeatedly told his students they were immature, he hated them and he preferred to teach upperclassmen. Respondent would tell students to be quiet or find the answer in the book when they asked for assistance. Respondent called students names such as "jackass" and "jerk" in class. Students did not pay attention to Respondent because they found his classes boring. Respondent's general reputation among students was that he was not a good teacher; that he treated students in the same manner each year, and that he was "weird." Many of Respondent's students tried to transfer out of his class. Reasons given to Pat Konttinen a school guidance counselor, for requesting transfers included no motivation for students, inability to understand Respondent's lectures when he gave them, Respondent's failure to lecture on the subject matter, testing students on materials not covered in class, and that the class was boring. Ms. Konttinen discussed specific complaints of students with Respondent, but he did not change his teaching style. The testimony of students concerning the 1982-83 school year reveals that they have had no other teachers at the school who taught as poorly as Respondent. Respondent had the highest rate of textbook losses for the 1982-83 school year. During the first semester of the 1982-83 school year, Ms. Sandt again substituted for Respondent when he was absent. No lesson plans were available contrary to the requirement that such plans be provided. Respondent also failed to complete emergency lesson plans. Ms. Sandt wrote lesson plans and gave assignments when substituting because she had no idea when he would return. When Respondent did return, he threw assignments completed by the students in the trash because Sandt had not graded the work. Substitute teachers do not normally grade papers. The students felt the substitute teacher, Ms. Sandt, was a better teacher than Respondent. During Respondent's absences, Ms. Sandt experienced no discipline problems. Earl Higgs, in his capacity as dean, continued during the 1982-83 school year to receive numerous discipline referrals from Respondent. In each case, Higgs asked students for their side of the story and advised Respondent of actions taken on referrals. These referrals indicated that Respondent did not have proper control of his classes. Students were referred for minor disciplinary matters because Respondent did not want to handle problems on his own. Students who were referred for discipline by Respondent were either never previously referred by any other teacher, or, at most, referred one other time. Respondent continued to send groups of students to the dean. Sometimes the students would get out of control talking and laughing in class because "they could get away with it." On occasion, Respondent would shut the door to the classroom, close the windows and turn off the air conditioner as punishment for the class until the class was in control. On one particular occasion, Luke Thornton walked back to Respondent's room with four girls after they complained that Respondent would not open the room windows and the air conditioning was not working. On arrival at the room, Thornton found the room extremely hot. Respondent was wearing a sweater and the room windows were closed. The principal opened the windows to prevent students from passing out in the heat. Respondent improperly grabbed a student by the arm to discipline him during the 1982-83 school year. Bruises were left on the arm. After an investigation, Respondent was counseled concerning the incident. In his 1983 evaluation of Respondent, Luke Thornton noted that Respondent had knowledge and understanding of his subject matter, maintained an appropriate appearance, possessed appropriate educational qualifications and adhered to the defined duty day. The principal noted no other areas of strength. Numerous performance deficiencies were noted in a sheet attached to the 1983 evaluation form. Specific recommendations for improvement were cited. In regard to teaching technique, Respondent was informed he should vary methods of instruction. Consistency in discipline standards was noted as a way to improve classroom environment. Respondent was urged to strive to achieve rapport with peers and parents, as well as to timely submit lesson plans. Luke Thornton held several conferences with Respondent to discuss the deficiencies noted in the 1983 evaluation. Respondent was not receptive to suggestions. He complained of unfair treatment in course assignments and repeatedly discussed his lawsuit against school officials. Respondent continued to maintain he was better suited to teach 11th graders, although he was certified to teach 9th and 11th graders. The principal told Respondent to be responsible to his students regardless of other personally perceived problems. He also told Respondent that he should work to improve performance. While there is no significant technical difference in teaching either 9th or 11th grade, there is a difference in maturity levels of the students in each grade. Such a difference in maturity levels requires a difference in teaching style. Pat Martin, a guidance counselor, testified that ninth grade boys "get a little antsy" and have to be motivated by the teacher. This testimony was corroborated by Assistant Principal Earl Higgs who preferred to teach 9th graders but conceded they required more assistance and can be more difficult to handle. The 1983-84 School Year Respondent remained in the same teaching assignment during the 1983-84 school year. He did not request a transfer to another school, nor did he request a schedule change. Testimony of students of Respondent for 1983-84 school year was consistent with the testimony of his students from the 1982-83 school year. Respondent's teaching techniques did not vary from the previous year. Respondent's attitude remained unchanged in the 1983-84 school year as he continued to advise his students that they were immature and that he preferred to teach upperclassmen. Students requested transfers at an increased rate from Respondent's classes, indicating that Respondent was unresponsive and they did not know how they were doing in his class. Respondent was advised of student and parent complaints by guidance counselors Pat Konttinen and Melinda Wong. They observed no change in his behavior. Two written complaints were received by Ms. Wong concerning Respondent's behavior in the classroom. Respondent did not issue required progress reports to students at the proper time to advise them whether they were failing. When several students were failed by Respondent, they complained about this fact. Luke Thornton discussed this problem with Respondent. Respondent had the second highest rate of textbook losses for the social studies department. Students defaced a number of books due to Respondent's improper storage of the books. Respondent continued to ignore requests to make lesson plans available. As of February, 1984, Respondent had turned in three lesson plans for a 20 week time period. By June, 1984, Respondent had completed five lesson plans when he should have completed a total of 36 lesson plans. The lesson plans completed by Respondent were usually unsatisfactory. Respondent was on leave for approximately three weeks during the Spring semester of this school year. The substitute teacher was Robin Thomas. Respondent left no lesson plans, nor did he have emergency lesson plans available as required. Catherine Thornton, the department chairperson, provided Ms. Thomas with assistance. Thomas created lesson plans, gave assignments to students and corrected the results even though she was not required to do so. She had no problems with discipline in any of Respondent's five classes. She was 21 years old at the time. When Respondent returned to the class after his absence, the students did not want him back and told Respondent to go away. Respondent did not consider Thomas' graded assignments. Students were required by Respondent to repeat the work previously given by Thomas. Also, after returning to school, Respondent requested lesson plans from Ms. Thomas contrary to normal procedure. On several occasions, David Culp, a dean at the school, was advised by Respondent that he, Respondent, refused to teach the class. Students also told Culp that Respondent would stop teaching. Culp received numerous complaints from parents about the lack of teaching their children received from Respondent. Respondent refused to grade papers on one occasion. He also refused to sign a withdrawal slip for a student even though requested to do so by Culp's office. Both Culp and Earl Higgs received frequent discipline referrals from Respondent. Higgs, serving his last semester as dean during the first semester of the 1983-84 school year, testified that Respondent's referrals did not diminish while he was a dean. Culp became a dean beginning with the 1983-84 school year. Culp's testimony was consistent with that of Higgs concerning the type of referrals Respondent sent to him. Culp was also called to Respondent's room to assist Respondent in regaining control of the class. According to Culp, he routinely visited Respondent's class because of his personal observation that Respondent did not have adequate control of students and the atmosphere in the classroom was so hostile that learning could not take place. Culp discussed Respondent's large number of discipline referrals with Respondent. Culp, like Higgs, had many more discipline referrals from Respondent than other faculty members. Culp estimated 25 per cent of all referrals received by him were from Respondent with the remaining 75 per cent split among the remaining 139 faculty members. Students continued to complain that Respondent did not open windows or turn on the air conditioner when requested. A parent's complaint regarding Respondent's discipline techniques was filed with Luke Thornton. Respondent began to come to work late and leave early. This action was noted and Respondent was warned to adhere to the defined duty day. On April 25, 1984, Luke Thornton placed Respondent on a remedial program known as the Notice, Explanation, Assistance and Time (NEAT) procedure as a result of Respondent's continuing problems. The purpose of the program is to provide assistance to teachers with performance problems. Respondent was given a detailed written summary of all deficiencies noted in his performance and given until October 16, 1984, to correct those deficiencies. Among the deficiencies noted were failure to use acceptable teaching techniques, lack of a positive classroom environment through use of acceptable control, lack of professional and effective working relationships with peers and failure to submit proper records. Respondent believed the NEAT procedure was a "device used to get rid of tenured teachers, especially those who made waves." He characterized the "T" in NEAT for "termination," not "time". Respondent's evaluation for the 1983-84 school year noted that the same deficiencies pointed out previously still existed. The evaluation noted that Respondent possessed appropriate educational qualifications and used good oral and written language. Among other subjects, Respondent was criticized for having an inadequate variety of methods and materials, inadequate planning, using inappropriate language with students, discussion of inappropriate topics with students during class time, unwillingness or inability to work effectively with parents, unwillingness or inability to provide a positive learning environment, failure to submit proper records, failure to comply with defined duty days, and failure to have an effective relationship with colleagues. He was admonished to avoid improper language with students, to maintain appropriate standards of discipline and to promote a positive relationship between students and teacher. The 1984-85 School Year At the beginning of the 1984-85 school year, Luke Thornton asked Respondent what assistance he could offer Respondent that had not yet been provided. Respondents refused the principal's offer of assistance. Based on testimony of students who had him as a teacher for the 1984- 85 school year, Respondent's teaching methods did not vary. Students again confirmed that Respondent told them he hated 9th graders and felt they were immature. Students also confirmed that when given worksheet assignments, some students would cheat while Respondent read the newspaper, listened to the radio or looked out the window. Respondent continued to refer to his lawsuit against the school board and school officials during class time. He also discussed with his students the qualifications of another teacher in the social studies department. Respondent's general reputation among his students was that he was boring and no one liked or respected him. Instead of paying attention to Respondent, some students would sleep or "horse around." Students indicated they did not learn anything or learned very little because Respondent did not teach. Also, these students had not encountered any other teachers at the school with teaching problems like those of Respondent. Complaints by students regarding Respondent's refusal to open windows and doors for air continued. On one occasion, Respondent told the class the air conditioner was not working, but refused to open windows because the students were too loud. Respondent refused to give credit for assignments given by the substitute teacher. He refused to issue progress reports. He refused to change a student grade after being directed to do so by Luke Thornton, although such change was appropriate. Guidance counselors continued to receive requests from students seeking transfers from Respondent's class. A new guidance counselor for the 1984-85 school year, Pat Martin, received reports that Respondent constantly talked about his lawsuit during class time. Another guidance counselor also received numerous self-referrals from Respondent's students who were concerned that they were not learning American government, the course subject matter, and that Respondent was talking about his court case. Martin, who had formerly served as a social studies teacher at the school with Respondent, was unable to discuss complaints she received with Respondent. He would not communicate with her and requested she not be allowed to sit in parent conferences with him. As a result, Martin was forced to communicate with Respondent in writing. She handled several complaints of students and parents in this manner. Guidance counselor Elizabeth Konen informed Respondent of complaints from students and parents. Usually, Respondent advised Konen he had no time to participate in conferences with the parents and students. In some instances, Respondent would not respond to parents requests that he contact them. At other times in parent conferences, Respondent would discuss his personal problems with the administration rather than the student's problems. Respondent improved in this school year slightly on textbook accountability, but books and desks continued to be defaced. He also continued to disregard his defined duty hours. Respondent did not turn in any lesson plans during the entire school year. At the conclusion of the year, he turned in a complete set of plans. Those plans did not meet requirements of indicating what part of the unified curriculum objectives had been met. In addition to David Culp, who continued to receive a large number of student discipline referrals from Respondent, Sandra Cowne was assigned to be a dean. Ms. Cowne's testimony is that 35 to 45 percent of her time was spent dealing with referrals by Respondent. Cowne noted 75 per cent of those referrals could and should have been handled by Respondent. Cowne requested students who were referred by Respondent to write out the details of the incident where the student's version differed with that of Respondent. Usually, Respondent did not indicate on the referral form that any action had been taken by him, or whether he had provided instruction to his students about expected and acceptable behavior. Students admitted to administrators that they deliberately "egged" Respondent on, particularly when he made personal comments about them. They also complained that Respondent would shut the windows and make them sit in the heat for discipline, or that he would turn off the air conditioner. They complained that Respondent made them write sentences as punishment, an inappropriate method of discipline. Cowne dealt with several problems when it became apparent Respondent did not have control of his classes. She assisted Respondent in calming classes down and restoring order. The disruption caused by discipline problems adversely affected the amount of learning that took place in Respondent's classroom. Luke Thornton decided to extend the NEAT Procedure to the cover the entire 1984-85 school year. During this time, numerous conferences were held and memos provided to Respondent concerning a multitude of problems. Respondent was observed in class by three administrators. The first observation was conducted on September 19, 1984, by H. W. Berryman, an assistant superintendent and area administrator. An employee of the Palm Beach County School District for 24 years, Berryman has evaluated the performance of principals, teachers, department heads and directors. In his memo to Luke Thornton following the observation, Berryman noted that too much time was taken with roll call and students were not attentive to Respondent's lecture. Berryman was concerned that students in the class were not involved in the total learning process. Berryman stated that he foresaw Respondent "in serious difficulty in managing conduct of students and considered this his most urgent need for growth." On October 4, 1984, Respondent was observed by Dr. Mona Jensen. Jensen is a consultant, certified by the Florida Performance Measurement System (FPMS). The FPMS was designed to determine effective teaching behaviors. Jensen also trains other administrators in the use of FPMS, both locally and statewide. The FPMS utilizes a written instrument called a Summative Observation Form. This form is used to evaluate teacher performance by recording the types of effective and ineffective behaviors observed in four domains: management of student conduct, instructional organization, presentation of subject matter and communication skills. Jensen has previously observed teachers with performance problems on the NEAT procedure. The report provided by Jensen to Respondent and Luke Thornton was based on actual behaviors of Respondent which she observed. Jensen noted in the report that students were talking to one another and not participating in the activity at hand. Jensen provided specific recommendations for improvement in all the areas addressed by the Summative Observation Form. According to Jensen, the main problem with Respondent's teaching technique was the lack of several positive teaching behaviors. She offered Respondent a conference and assistance, but he rejected her offer. Respondent was also observed by Lois Biddix on October 29, 1984. She is a FPMS certified state trainer and is authorized to train administrators to observe teachers. Biddix used the Summative Observation Form in her observation of Respondent. Biddix provided a written summary to Respondent and to Luke Thornton. She observed students talking and engaging in activities unrelated to the lesson. The atmosphere in the classroom, she observed, was sedentary and lethargic. Students suffered from boredom and frustration caused by Respondent's lack of enthusiasm and failure to introduce new content into the lesson. Biddix's observation of students talking, putting on makeup and sleeping are consistent with those of Berryman and Jensen. Biddix's concern was that students were not involved in the learning process. Her recommendations for improvement were consistent with those noted by Jensen. Dr. Jensen completed a second observation of Respondent on January 31, 1985. Again, she provided a written summary of her observations to Respondent and Luke Thornton. On this occasion, Respondent was presenting a lesson and students were not paying attention or participating in the class discussion. Respondent became frustrated with a student who made a personal remark to him. Jensen's recommendations for improvement were basically the same as those proposed by her in October, 1984. She again offered to arrange a conference with Respondent to discuss recommendations and he again spurned her offer. In response to a recommendation by Earl Higgs that Respondent observe successful teachers in their classrooms, Respondent advised that he wanted to observe Catherine Thornton and Mike Lott. Respondent did not associate with these teachers professionally or otherwise. Both Lott and Catherine Thornton requested that Respondent not be allowed to observe their classes. This request was honored by Luke Thornton because he was aware that Respondent disliked these two teachers. Respondent's annual evaluation for the 1984-85 school year indicated the atmosphere in his class was not conducive to learning. He was criticized again concerning the discipline of his class. It was also noted that he continued to make unprofessional comments to his students despite warnings not to do so. Luke Thornton had reviewed specific incidents of such conduct with Respondent during the school year. The evaluation also noted Respondent's failure to adhere to defined duty days after warnings, other poor work habits (i.e., lesson plans) , and his inability to get along with his peers. The 1985-86 School Year Luke Thornton extended the NEAT procedure for Respondent through November 1985, with the hope that Respondent's performance would improve. In the August 19, 1985 letter, Thornton stated: In order to assure that you are given every opportunity to be successful, I am extending the NEAT procedure to November 1, 1985. If at that time, the deficiencies consistently noted . . . continue to exist, I will make my recommendation to the superintendent concerning your employment status with the Palm Beach County School Board. The testimony of Respondent's students for the first semester of the 1985-86 school year confirm that Respondent did not change his teaching techniques despite suggestions given to him for improvement. 9l. One student testified that on the first day of class Respondent told the students they were immature. Other students testified to Respondent's repeated statements that they were immature, childish and that he did not like them. Further, Respondent continued to discuss his problems with the administration during class time. Classroom temperature remained uncomfortable. Respondent advised students to complain to the administration. In one instance, a student vomited in the classroom, creating a foul odor. Although students complained about the smell and administrators located another available classroom, Respondent refused to move his classes. Students testified that Respondent's reputation among them was that he was a "jerk" and a bad teacher who was not liked or respected. Several students stated that they would not want Respondent as their teacher again. He had a bad attitude and they either did not learn anything or they did not learn as much as they felt they should. Respondent did display improvement in taking roll call issuing progress reports, adhering to defined duty days and reducing the number of failures in his classes. He continued to fail to attend open house and to provide adequate lesson plans. In addition to Ms. Cowne and Mr. Culp, Linda Chubbuck was assigned as dean at John I. Leonard High School for the 1985-86 school year. Chubbuck received referrals of students from Respondent which were usually for such minor infractions as talking in class, refusing to be quiet, or not writing "punishment sentences". Student and parent complaints were received by the deans as a result of Respondent continued making students write repetitious sentences. Groups of students were still referred by Respondent. On two occasions, Chubbuck was referred nine to ten students at one time. Cowne was referred six students at one time. The groups were usually referred by Respondent because the students were not being quiet, would not settle down or were otherwise causing disruption. The students who were referred to the deans described Respondent's classes as chaotic. They described Respondent as "caustic and cutting with them." Further, Respondent did not take action to control his classes and rarely instructed students concerning behavior. The deans continued to answer Respondent's requests to come to his class to settle the class down. David Culp saw no improvement in Respondent's ability to control his classes over a three year period. Respondent continued to have more referrals than other teachers, and it was difficult to support Respondent's actions. Due to the constant chaos in Respondent's classes, the deans concluded that very little learning could be taking place. The number of referrals from those classes decreased sharply after Respondent was later suspended from the school. Guidance counselors continued, during this school year, to receive the same type of complaints about Respondent as they had in the past. The only difference was the names of the students making the complaints. The guidance counselors concluded that Respondent was not benefiting students emotionally or academically. Dr. Mona Jensen conducted her third and final observation of Respondent on December 2, 1985. She observed that Respondent's pattern of instruction had not changed. She determined his lesson plan to be insufficient. Respondent had not added any of Jensen's prior recommended positive behaviors to his technique. Respondent continued to fail to provide motivational or positive reinforcement to his students. Jensen concluded that Respondent's "teaching behaviors" were ineffective, ranking Respondent below average as a teacher. Jensen testified that a teacher's behavior should not change based upon the quality of the students. Further, a professional should not allow personal problems with the administration to interfere with providing successful opportunities to students. H.W. Berryman conducted a second observation of Respondent in December, 1985. Berryman was more complimentary of Respondent than was Jensen. Berryman noted Respondent had improved in getting instruction started in the class. He also commended Respondent's knowledge of the subject matter, but noted Respondent seemed to be writing off a majority of the students in the class by allowing them to be inactive and uninvolved in the learning process. Respondent did not communicate well with other social studies teachers at any time at issue in this cause. No improvement of Respondent's behavior in this area was noted during the first semester of the 1985-86 school year. He had heated words for Catherine Thornton, the department chairperson, and expressed his disdain for her. He accused another teacher of theft of a map from his classroom. The atmosphere of the workroom for social studies teachers at the school was hostile and uncomfortable when Respondent was there. Respondent continued to perceive his assignment to teach 9th graders to be a demotion. His peers did not agree. Testimony of teachers indicates that each level of teaching has unique problems. Some teachers volunteered to teach 9th grade. Respondent had difficulty with the administration over reserved parking spaces for the deans, refusing to refrain from parking in the places reserved for them until ordered by Luke Thornton to park elsewhere. The school's security officer was asked by Respondent to investigate the theft of pens and pencils from his desk, as well the source of a stick figure drawing of Respondent. The security officer had not received similar requests from other teachers. An evaluation of Respondent on November 18, 1983, noted he did not have an up to date plan book; that parent complaints about Respondent's unwillingness to work to resolve student problems had been received; and that Respondent remained unable to have a positive relationship with coworkers. Respondent was on the NEAT procedure for a total of 16 academic months. During that time, Respondent's teaching style did not change. He continued to make disparaging remarks to students, failed to provide classroom management and failed to improve his peer relationships. He did not attend open house functions, and failed to maintain adequate lesson plans. Parent and student complaints about him did not diminish. District administrators and school personnel were unable to influence Respondent to change his behavior. Due to Respondent's inability to change and the finding that Respondent was damaging students, Luke Thornton recommended Respondent be terminated from employment. Respondent was suspended in February of 1986, and subsequently terminated from employment by the school board. In Luke Thornton's professional opinion, which is credited, Respondent performed incompetently as an educator from the fall of 1981 until his termination. Further, Respondent's personal conduct during that time seriously reduced his effectiveness as an employee of the district school board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's teaching certificate. DONE AND ENTERED this 24th day of August, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 24th day of August, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Petitioner submitted 128 proposed findings of fact. Those findings are treated as follows: 1. Included in finding 2.-3. Included in part in findings 1-3, remainder rejected as unnecessary for conclusion reached. 4.-5. Included in findings 4-5. 6. Included in findings 6-7. 7.-8. Included in findings 9-10. Included in finding 12. Included in finding 11. Included in part in finding 6, remainder rejected. Included in finding 7. Addressed in findings 13-14. 14.-15. Addressed in finding 14. 16. Included in finding 15. 17.-18. Addressed in findings 16 and 14. Included in finding 17. Included in finding 18. 21.-22. Included in findings 18-19. 23.-24. Included in findings 20-21. Included in finding 23. Included in finding 24. Included in finding 25. 28.-30. Included in findings 26-28. Included in finding 29. Included in finding 30. Rejected as unnecessary to conclusion. 34.-35. Included in finding 32. 36.-37. Included in findings 33-34. Included in finding 31. Included in finding 36. 40.-41. Included in findings 37-39. 42.-43. Included in findings 41-42. 44. Addressed in part in finding 43. Remainder rejected as unnecessary to conclusion. 45.-55. Included in findings 44-54. 56.-57. Addressed in finding 55. Included in finding 56. Included in finding 48. 60.-61. Included in findings 56-57. 62. Included in findings 58-59. 63.-64. Included in findings 60-61. 65.-66 Included in finding 62. 67.-70. Included in findings 63-66. 71.-75. Included in findings 67-70. 76.-83. Included in findings 72-77. 84.-85. Included in finding 76. 86. Included in finding 71. 87.-94. Included in findings 77-83. 95.-128. Included in findings 85-111, except for a portion of proposed finding 122 which is rejected as unnecessary for conclusion reached. RESPONDENT'S PROPOSED FINDINGS Respondent submitted 145 proposed findings of fact. They were encompassed in 52 pages and are treated as follows: 1.-19. Rejected as unnecessary to conclusion reached and cumulative. 20.-24. Included in part in findings 13-14, and 21; remainder rejected as unnecessary to conclusion. 25. Addressed in part in finding 15. Remainder unnecessary for conclusion. 26.-28. Rejected as unnecessary for conclusion reached. 29.-31. Addressed in part in finding 20. Remainder rejected as unnecessary to conclusion. 32.-33. Included in findings 37-38. 34. Included in finding 60. 35.-36. Included in part in finding 88, remainder rejected as unnecessary to conclusion. 37.-38. Included in part in finding 108, remainder rejected as unnecessary to conclusion. 39.-40. Included in part in findings 3133, remainder rejected as unnecessary to conclusion. 41.-52. Rejected as unnecessary to conclusion reached. Included in part in findings 20-22, remainder rejected as unnecessary to conclusion reached. Rejected as unnecessary to conclusion reached. Included in part in finding 40, remainder unnecessary to conclusion. Included in finding 23 in part, remainder rejected as unnecessary to conclusion. 57.-63. Rejected as unnecessary to conclusion. 64.-65. Included in part in finding 93, remainder rejected as unnecessary to conclusion. 66.-73. Rejected as unnecessary to conclusion reached. 74. Included in part in finding 113-114, remainder rejected as unnecessary to conclusion. 75.-80. Rejected as unnecessary to conclusion. Addressed in finding 45. Rejected as unnecessary to conclusion reached. 83.-84. Included in part in finding 46, remainder unnecessary to conclusion reached. 85. Rejected, unnecessary. 86.-87. Addressed in part in findings 46 and 57, respectively; remainder rejected as unnecessary to conclusion. 88. Included in part in finding 88. Remainder unnecessary. 89.-90. Rejected as unnecessary to conclusion reached. 91.-96. Included in part in findings 34-35, remainder rejected as unnecessary. 97.-100. Rejected as unnecessary to conclusion reached. 101.-102. Included in part in finding 14, remainder unnecessary to conclusion. 103.-107. Rejected as unnecessary to conclusion. 108.-113. Included in part in findings 58-59, and 79; remainder rejected as unnecessary to conclusion. 114.-118. Rejected as unnecessary to conclusion. 119.-120. Included in part in finding 87, remainder rejected as unnecessary to conclusion. 121.-123. Rejected as unnecessary to conclusion reached. l24.-125. Included in part in finding 80. Remainder rejected as unnecessary to conclusion. 126.-129. Included in part in findings 81-84, remainder rejected as unnecessary to conclusion. Included in part in finding 67. Remainder rejected as unnecessary to conclusion. Included in part in finding 86, remainder rejected as unnecessary to conclusion. Rejected, unnecessary to conclusion and cumulative. Included in part in finding 88, remainder rejected as unnecessary to conclusion. Included in part in finding 89, remainder rejected as unnecessary. 135.-136. Rejected, unnecessary to conclusion reached. 137.-141. Included in part in findings 102-103, remainder unnecessary to conclusion. 142.-143. Included in part in finding 85, remainder rejected as unnecessary to conclusion. 144.-145. Included in part in finding 110, remainder rejected as unnecessary. COPIES FURNISHED: J. David Holder, Esquire 325 John Knox Road Suite C-135 Tallahassee, Florida 32303 Thomas W. Young, III, Esquire 208 West Pensacola Street Tallahassee, Florida 32301 Sydney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Martin B. Schapp, Administrator. Professional Practices Services Department of Education 319 W. Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 =================================================================
The Issue The issue in this case is whether the School Board of Pinellas County (School Board) should accept the Petitioner's recision of her resignation from her position as a high school teacher and reinstate her to her former position on the ground that her resignation was given under legal duress.
Findings Of Fact During the 1992/1993 school year, the Petitioner, Deborah Green, taught high school in the GOALS (drop-out prevention) program at Dixie Hollins High School. In January, 1993, she applied for a year of medical leave of absence due to stress and stress-related symptoms. The School Board approved leave starting January 27, through June 11, 1993. Shortly after going on medical leave, the Petitioner was notified that a student had made serious accusations against her. One of the accusations was that the Petitioner freely told the student details about her romantic relationship with a Michael Miller, who was married and the principal of another Pinellas County high school. She contacted the student to find out what the accusations were and met with her principal and the student and his mother to discuss the accusation. At the meeting, the student recanted. The Petitioner left for Dallas, Texas, shortly after her leave began, but she continued to receive telephone messages locally through her friend and former housemate. Not long after the Petitioner left for Dallas, the student who had accused her, and then recanted, again accused the Respondent, alleging that he had recanted because the Petitioner had asked him to lie for her. When this happened, the principal of Dixie Hollins referred the matter to Stephen Crosby, Director of Personnel Services for the Pinellas County Schools. Crosby called the Petitioner at her local telephone number and left a message. When the Petitioner returned the call from Dallas, Crosby explained that he was investigating serious charges that had been made against her and that, as always in such circumstances, it was important for him to meet with her about them as soon as possible. The Petitioner declined, stating that she was not emotionally, mentally, or physically prepared at the time to handle the situation or the stress of the situation. She insisted that her meeting with Crosby be postponed. As an accommodation to the Petitioner, Crosby agreed to postpone the meeting, and the two agreed to meet on March 1, 1993. On or about February 28, 1993, on a return trip to Pinellas County, the Petitioner visited her school and left a written message for Crosby to tell him that she still was unable to meet with him and would not attend the scheduled March 1, 1993, meeting. Crosby did not get the message until the morning of the scheduled meeting. On receipt of the message, Crosby turned to the School Board's legal office for advice on how to proceed. Based on the advice of counsel, Crosby sent the Petitioner a letter stating that he viewed the delay in the interview until March 1 to be an unusual accommodation, since teacher interviews normally are conducted as soon as he becomes aware of the charges. He wrote that, since the Petitioner would not meet on March 1, as they had agreed, he would have to proceed exclusively on the basis of his interviews of students and others. In accordance with normal procedures, he also advised her that, unless she chose to resign by March 12, 1993, he would be recommending to the School Superintendent that he recommend to the School Board that the Petitioner be dismissed. On March 3, 1993, the Petitioner received Crosby's March 1 letter and wrote back in response to offer her resignation, effective June 11, 1993. In the Petitioner's own written words, she resigned "for my personal sanity and for the credibility of Michael Miller." Crosby processed the Petitioner's resignation to be considered at the March 24, 1993, School Board meeting. It is standard operating procedure to process resignations before their effective dates, if possible, so that replacement personnel can be hired. The School Board accepted the Petitioner's resignation (among others) at its March 24, 1993, meeting. The Petitioner tried unsuccessfully several times after March 24, 1993, to contact Crosby by telephone to rescind her resignation. She was unable to speak to him but was told that the School Board already had accepted her resignation and that it was too late to rescind it. In April, 1993, the Petitioner learned that the Florida Education Practices Commission of the Florida Department of Education also was investigating the allegations against her, notwithstanding her resignation. On or about June 3, 1993, the Petitioner returned to Pinellas County and met with a lawyer about getting her teaching position back and about defending her teacher certificate. On June 8, 1993, the lawyer wrote a letter to the School Board Attorney (which was received on or before June 11, 1993) purporting to rescind the Petitioner's resignation. It was not proven that the Petitioner had no choice but to resign from her position as a teacher between March 1 and March 12, 1993, due to her emotional, mental and physical condition at the time. As a result of her long-standing membership in the local teachers' union, the Pinellas Classroom Teachers Association (PCTA), the Petitioner knew that dues-paying members of the PCTA may be entitled to the services of an attorney, free of charge, in a teacher dismissal proceeding. She claimed that she did not know she still was entitled to free legal counsel after going on medical leave of absence as of January 27, 1993, and ceasing to pay union dues while on leave. However, there was no evidence that she inquired as to the availability of paid counsel until after the effective date of her resignation. Had she done so in a timely fashion, she would have learned before her resignation was accepted that she was entitled to the services of an attorney, free of charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Amended Petition for Administrative Hearing. RECOMMENDED this 16th day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6074 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven. Third sentence, accepted but subordinate and unnecessary. Rejected as not proven that she spoke to Crosby more than once. Explaining the discrepancies between her testimony and his is problematic. But some of the telephone conversations she supposedly had with Crosby would have been on weekends (e.g., January 16 and 23, 1993), giving rise to a question as to the accuracy of her testimony. In addition, the Petitioner's own evidence suggested that her condition during this time period impaired her thought process and memory. Perhaps the Petitioner is counting unsuccessful attempts to contact Crosby as actual conversations with him. Rejected as not proven that the Petitioner acted on the advice of her physician in cancelling the March 1, 1993, meeting with Crosby. Otherwise, accepted and incorporated. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, rejected as not proven that she resigned "under protest because of her inability to participate in the investigation due to her medical condition"; otherwise, accepted and incorporated. First sentence, rejected as not proven. See 7., above. (Some of the telephone conversations she supposedly had with Crosby during this time period would have been during the spring school holidays when all school offices were closed.) Second sentence, accepted and incorporated. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected in part as not proven as to "rational decisions with respect to her employment"; otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-7. Accepted but subordinate and unnecessary. 8.-20. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. 23.-26. Accepted but subordinate and unnecessary. (As to 25., the referee appeared to be referring to Green's medical leave of absence.) COPIES FURNISHED: Mark F. Kelly, Esquire Kelly & McKee, P.A. P. O. Box 75638 Tampa, Florida 33675-0638 Keith B. Martin, Esquire Assistant School Board Attorney Pinellas County Schools Administration Building 301 Fourth Street SW Largo, Florida 34649-2942 Dr. J. Howard Hinesley Pinellas County School Board 301 4th Street SW Largo, Florida 34640-3536 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether just cause exists to terminate Respondent's employment with Petitioner based on violations of Florida Administrative Code Rules 6A-5.056(2), , and (5), for incompetence, misconduct in office, and/or willful neglect of duties, respectively.
Findings Of Fact The Board is responsible for hiring, monitoring, and firing employees at its schools, including Manatee and Pinewoods. At all times relevant hereto, Respondent was an employee of the Board. Respondent was hired by the Board on August 22, 2005, as a second grade teacher at Harns Marsh Elementary. She taught second grade at that school for three years. At the end of her third year, Respondent was awarded a professional services contract. Prior to the beginning of her fourth year at Harns March, Respondent was told she was being moved to a fifth grade class for the upcoming school year. Inasmuch as she preferred teaching second grade, Respondent voluntarily transferred to Manatee for the 2008-2009 school year, as there was a second grade position open there. Manatee is a Title I school, serving a distinct population of students with various emotional or behavior issues. After teaching second grade at Manatee for one year, she was moved to a third grade class for the 2009-2010 school year, then back to second grade for the 2010-2011 school year. The principal at Manatee, Louzao, began to have concerns about Respondent commencing in the 2009-2010 school year. The annual evaluation Louzao initially prepared for Respondent after the 2009-2010 school year had contained less than satisfactory scores. In the face of a possible grievance of those scores by Respondent and the teacher’s union, Louzao upgraded the scores to satisfactory. Louzao was a fairly new principal, being at that time in only her third year as an administrator. She did not feel comfortable defending her negative evaluation against a formal grievance. Louzao also believed a satisfactory evaluation would encourage Respondent to improve. As a result of some of her concerns, Louzao ultimately moved Respondent to third grade for the 2010-2011 school year. Louzao felt like Respondent might interact better with students slightly older than the second grade students she had been teaching. However, some of the third grade students’ parents complained to Louzao about Respondent, resulting in some students being transferred out of Respondent’s class to another third grade class. It was not Louzao’s normal policy to transfer students; she would prefer that the teacher and students work through their issues. In this case, however, Louzao felt like removal of the students would be most beneficial as Respondent continued to work with the school guidance counselor dealing with her classroom demeanor. The teacher-student relationship was never fully corrected to Louzao’s satisfaction. For example, the first student was transferred out of Respondent’s class in August, then another in October, and yet another in November 2010. Louzao met or talked with Respondent daily and had her assistant principal counsel Respondent in an effort to improve Respondent’s teaching skills. At the end of the 2010-2011 school year, Louzao gave Respondent another evaluation with generally satisfactory scores, but listed several “areas of concern,” i.e., areas that needed additional work. Louzao would have given Respondent less than satisfactory marks, but she had failed to adequately document Respondent’s shortcomings during the school year, a requirement for unsatisfactory evaluations. Louzao then attempted to deal with Respondent’s inability to properly interact with her students by moving Respondent to a fifth grade class for the 2011-2012 school year.1/ Louzao believed that Respondent’s sarcasm and coarse demeanor would be more well-received by older students. Almost immediately, however, parents began to make complaints about Respondent. Louzao was contacted by parents who reported that Respondent had called students “retarded” or “stupid.” School staff questioned a number of students and received verification from those students that the remarks had been made. Based upon that verification – although it was not absolute proof that the comments were made – Louzao contacted the Board’s professional standards office to begin further investigation into the allegations. It was also reported that Respondent was refusing to allow children to use the bathroom when needed. Again, while Respondent admitted to having a fairly strict bathroom policy, there is no proof that children were actually denied bathroom privileges. The school, nonetheless, found sufficient student verification of the allegation to make it a point of discussion with Respondent. Then, in September 2011, an incident occurred which led to an investigation of Respondent by the Department of Children and Families. The incident involved discipline in a school stairwell. The security videos from a stairwell near Respondent’s classroom showed students walking and running up and down the interior, non-air conditioned stairwell numerous times for approximately 20 minutes without water or rest. There is no dispute about what the videotapes show; Respondent admits that she had the students doing “training” to prevent them from ascending and descending the stairs improperly. Several parents complained to the school about the staircase discipline incident. Respondent described the matter as follows: She had been having a lot of trouble with this particular class; they were very disrespectful. The students would misbehave when they were moving from the classroom to other areas of the school. Particularly, the students would run up and down the stairs. To change that behavior, Respondent decided to teach the students how to walk up and down the stairs. To that end, she had the students walk up and down the stairs over and over until they did it properly. The videotape accurately reflected that it took some students more attempts to stop running and that some students never did stop running. The activity was not, according to Respondent, punishment; rather, it was a teaching moment. She had seen a student injured at a prior school because of running down the stairs, and Respondent did not want that to happen again. Respondent said she just lost track of how much time the students were on the staircase. To administration, however, it looked like Respondent was disciplining the students in an extremely harsh fashion. The Board does not condone such actions by its employees. After the staircase discipline matter, Respondent was suspended with pay. A pre-determination hearing was held, but Respondent said the staircase incident was not mentioned. Rather, she was questioned about various allegations that had been made by students and their parents. The allegations included: Calling a student a “retard;” saying someone was stupid; not allowing students adequate bathroom breaks; making fun of a student’s name; and yelling at students. Upon completion of the pre-determination meeting, Respondent was suspended with pay and sent home. She was later assigned to an office job so that she could be of some benefit to the Board during her suspension. The investigation concluded with the issuance of a Letter of Reprimand to Respondent, who was also required to attend a class on classroom management and a Code of Ethics training session. She was not allowed to return to the classroom at that time. In January 2012, at the beginning of the second semester of the 2011-2012 school year, a second grade teaching position came open at Pinewoods. The Board’s Professional Standards office called Dr. Carlin and told her the Board wished to have Respondent fill the position. Dr. Carlin agreed to the assignment. Dr. Carlin did not speak to Louzao about Respondent and did not know of Respondent’s prior issues at Manatee. Respondent’s testimony that Dr. Carlin stated she was aware of “everything that happened at Manatee” is not credible. Respondent first went to Pinewoods on or about January 19, 2012. She was introduced to the school and to her classroom by Dr. Carlin. Dr. Carlin attempted to prepare Respondent and to provide all the support and assistance she could to insure Respondent’s success. One of the items of support provided by Dr. Carlin, was a website containing the school handbook which sets out all of Pinewood’s policies for teachers and other staff members. Respondent remembers meeting Dr. Carlin on a Thursday and being told she would start co-teaching the class with the out-going teacher the following Monday, January 23, 2012. It was Respondent’s understanding that she would then begin teaching on her own the following Friday, January 27, 2012. (Respondent said her understanding was based on an email she received from the Professional Standards office informing her about the new assignment. However, the email was not produced as an exhibit in this case.) In fact, Respondent was introduced to the class on Friday January 20, 2012, the out-going teacher’s last day. She took over the class the following Monday, January 23, 2012, on her own. Dr. Carlin remembers spending a fair amount of time with Respondent on Respondent’s first day before introducing her to the class. Respondent’s first day with the students in her new class was atypical; it was a field day of sorts at the school, so the students were out of the class more than they were in. At the beginning of the class period, however, Respondent noticed that the children were socializing and talking for the first few minutes after arrival. Respondent asked the out-going teacher if she always allowed the children to do that, and was told she did. That was a different approach than the one normally taken by Respondent. She had hard-fast rules about what students should do upon entering the classroom, e.g., turn in their homework, bring their homework notebook to the teacher’s desk, sharpen their pencils, use the bathroom, and then do advanced reading or use the computer until regular instruction began. Respondent’s approach was much more strict and instruction-oriented than the prior teacher’s. Within two or three days of Respondent assuming her new teaching position, some of the students’ parents began calling the school with complaints. The initial complaint was that Respondent was assigning weekend homework in violation of the school’s policies. When Respondent became aware of the policy, she ceased that practice. Dr. Carlin believes Respondent should have known the policy after reading her school handbook, but the book was over 50 pages long and contained a lot of information. Thus, Respondent’s temporary violation of that policy is excusable. More troubling, however, were the complaints concerning Respondent’s alleged verbal abuse of students and her rude demeanor. Parents who visited Respondent’s classroom found her to be aloof, stand-offish, and she seemed not to be engaged with the students. It was reported again that Respondent was refusing to allow students to use the bathroom as needed. There is no competent evidence to support the allegation, but it is troubling that the same complaint that had been made by parents at Manatee was being made by parents at Pinewoods. The Board’s director of professional standards received “weekly, if not daily,” calls from parents and administration complaining about Respondent almost from the day she started her employment at Pinewoods. Dr. Carlin visited Respondent’s classroom on several occasions to see for herself whether there were any “teaching” issues that needed attention. Dr. Carlin met with Respondent on February 1, 2012, just one week after Respondent started teaching at Pinewoods. The purpose of the meeting was to discuss the parents’ complaints and to provide suggestions for doing better in the classroom. Respondent was not told at that time that she was being formally reprimanded. A letter dated February 6, 2012, memorialized the February 1, 2012, meeting and constituted a written reprimand for Respondent’s behaviors in the classroom. Despite the prior meeting, Respondent was surprised by the written reprimand. The letter set out six categories of problems that had been identified by Dr. Carlin from letters and conversations with a number of parents: Lack of respect shown to students and parents, e.g., rolling her eyes and speaking in disrespectful tones; Classroom not warm and supportive. Refusing to help children and making them cry; Refusing to allow children restroom privileges when needed; Moving through the curriculum too fast; Giving excessive homework; and Causing children to cry and become distressed about coming to school. Respondent denied each of the allegations and expressed surprise about the parents’ complaints. She also said that part of the blame for any problems lay with the students; they were not respectful to her and had no rules of conduct.2/ Dr. Carlin knew, however, that the prior teacher had rules for her classroom and the children were well-behaved. Respondent signed the letter, acknowledging receipt. The letter then set forth some guidelines or action plans that were to be implemented immediately by Respondent. In response to the first item, prohibiting Respondent from yelling at students or speaking in a disrespectful tone, Respondent seemed to go to the other extreme. She became very quiet and almost apathetic in her relationship with the students. Respondent did meet expectations in the other items, at least to some degree, though Dr. Carlin was not totally satisfied with all Respondent’s actions. Finally, the letter provided four distinct suggestions for improving her conduct and teaching habits, including: Use of the Peace Education materials in her classroom, including I-Care Rules. Respondent was to meet with Mrs. Cutting and Ms. Roberts for assistance with implementing the materials. Use of the Board’s academic plans for subject areas. Respondent was to meet with Mrs. Cutting and Mrs. Hardee to receive coaching and modeling with regards to the materials. Initiation of a classroom plan outlining her expectations for students. Following all directives in “this letter.” In response to the four suggestions, Respondent: Met with Mrs. Cutting and Ms. Roberts about the Peace Education materials. However, Respondent did not demonstrate implementation of the materials in her classroom. Respondent met with Mrs. Cutting and Mrs. Hardee about use of the Board’s academic plans. However, she did not utilize the plans on a regular basis. Respondent did initiate a classroom plan outlining her expectations for students. Dr. Carlin described the plan as inferior and had to re-write it (with assistance from her staff). Respondent considered her plan to be adequate in all regards, even prior to editing by Dr. Carlin. The fourth guideline was somewhat nebulous, so it is difficult to ascertain whether Respondent complied with the directive. After the letter was issued, Dr. Carlin waited for a week to give Respondent an opportunity to incorporate the guidelines and suggestions. She then conducted three formal observations of Respondent’s classroom to determine whether the guidelines and suggestions were being followed. She prepared written synopses of her observations. The assistant principal, Ms. DeMarchena, also did an observation that was codified in written notes. The gist of the observations by administrative staff was that Respondent was unresponsive to students, uncaring in her demeanor, lethargic in her efforts to teach, and somewhat rude. Dr. Carlin described Respondent as “the worst teacher I have ever seen in my career.” Dr. Carlin noticed a totally lethargic demeanor by Respondent after the February 1, 2012, meeting and February 6, 2012, written reprimand. Respondent seemed to just stop caring about her job. Dr. Carlin said of her visits to Respondent’s classroom, “I really couldn’t quite believe my eyes.” There were 18 students in Respondent’s classroom at Pinewoods. Eight of their parents made formal complaints to Dr. Carlin about Respondent’s classroom demeanor or teaching skills. Three of those parents testified at final hearing and expressed overall dissatisfaction with Respondent’s teaching abilities. The parents observed that their children did well at school prior to Respondent’s arrival, then did well after Respondent’s departure. While Respondent was teaching, however, their children were unhappy, unmotivated, and emotionally distressed. Two of the parents had teaching experience and measured Respondent both professionally and from their perspective as parents. These parents also discussed Respondent’s behavior and teaching abilities with many of the other parents from the class. The parents’ complaints included the following: Respondent ignored two parents when they came into the classroom, a response the parents had not experienced from any other teacher. Respondent did not engage her students in the celebration of a holiday (Valentine’s Day), even upon intervention by a parent who brought treats for the students. Respondent’s classroom was messy and disorganized. Students who had previously enjoyed school were now reluctant to attend Respondent’s class. Students feared Respondent and were afraid to complain about her strictly enforced policies, e.g., bathroom and pencil sharpening limitations. One parent reported that her child prayed each night that Respondent would be nice to the class. Pinewood’s curriculum specialist, Ms. Hardee, was asked by Dr. Carlin to observe Respondent in the classroom and to provide assistance as needed. Ms. Hardee intervened to assist Respondent to gain access to the web-based accelerated reading materials when Respondent initially experienced problems. She also helped Respondent understand the homework policy and other school policies. When observing Respondent’s classroom, Ms. Hardee found that not all students were actively engaged. Ms. Hardee also substituted for Respondent on one occasion and could not find a lesson plan for that day. Respondent said the lesson plan was right in the middle of her desk and does not know why Ms. Hardee could not find it. Many of the parents, as well as administrators, reported that Respondent’s classroom was extremely messy and disorganized. It is, therefore, understandable that Ms. Hardee would not find the lesson plan. Hardee, who was called by Respondent as a witness, provided extremely credible testimony. During her review of Respondent’s class, Hardee found a “lack of procedures” in the classroom and the students were not engaged during instruction time. Hardee described Respondent’s style as “flat, without expression or enthusiasm.” One parent of a student at Manatee, the prior school at which Respondent had taught, testified on Respondent’s behalf. She praised Respondent’s teaching and said Respondent did a good job with her child. Of the several parents’ testimony, the Manatee parent’s was the least persuasive. On February 22, 2012, Dr. Carlin met with Respondent and addressed the many concerns raised by parents and the observations made by herself and her staff. Respondent and Dr. Carlin discussed all the problem areas and Dr. Carlin told Respondent unequivocally that failure to correct the problems would result in sanctions, up to and including termination of employment. It was Dr. Carlin’s intention to place Respondent on a very short leash, intending to act quickly if things did not drastically improve. However, that very evening Dr. Carlin received three additional letters from upset parents complaining about “very disturbing” incidents in Respondent’s classroom. Dr. Carlin contacted the Professional Standards office and the Board’s attorney the next day. In consultation with those people, Dr. Carlin decided that, notwithstanding, her representations to Respondent the day before, she must remove Respondent from the classroom before irreparable harm was done to the students. She then notified Respondent – on February 23, 2012 – that she was being suspended with pay pending further review. The entire situation concerning Respondent’s classroom demeanor and actions was then reviewed by the Professional Standards office. That office determined that just cause existed to terminate Respondent’s employment. Dr. Carlin concurred with the decision. By letter dated April 20, 2012, Respondent was notified that a recommendation for termination of employment would be made to the Board at its next meeting. The letter also notified Respondent that she was suspended without pay effective April 23, 2012. Respondent rejects all of the complaints against her as being without basis or truth. She says the “staircase discipline” issue was just a misunderstanding; she simply lost track of how much time she made the children walk up and down the stairs. She did not, however, grieve the reprimand issued for that incident. Respondent says the children simply misunderstood her bathroom policy; it was correct and appropriate. The parents’ comments about her were, she said, derived from their children’s mistaken perception of her demeanor and attitude. And, even though Respondent acquiesced and took a behavior management class and a class on teacher’s code of ethics, she did not believe she needed them or that they taught her anything. Respondent’s testimony lacked credibility and was not persuasive. The most credible and persuasive evidence presented in this case indicates that Respondent does not recognize how she comes across to students and their parents. Respondent’s demeanor and teaching style, while it may be comfortable to her, is not consistent with good teaching practices. She is dour, lethargic, unfriendly, scary to her students, and defensive. Because she does not understand her own shortcomings, Respondent has become incompetent and has willfully neglected her duties as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, upholding the termination of Respondent, Elaine Partenheimer's, employment for the reasons set forth above. DONE AND ENTERED this 19th day of October, 2012, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 19th day of October, 2012.
The Issue The issue in this case is whether the Pinellas County School Board (Petitioner) has just cause to terminate the employment of teacher Francine Louis (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner as a French teacher, assigned on a full-time basis to Countryside High School in Clearwater, Florida. The terms of the Respondent's employment were governed by a collective bargaining agreement (CBA) between the Petitioner and the Pinellas County Classroom Teachers Association. Pursuant to the CBA, the Respondent was entitled to one day of sick leave per month, up to a maximum of ten days per school year. Unused sick leave would accrue from year to year without restriction. Upon providing two days advance notice, a teacher could use up to four days of sick leave for personal reasons unrelated to illness, and the personal leave would be charged against accrued sick leave. The Respondent's job performance was satisfactory through the end of the 2008-2009 school year. In December of 2009, Assistant Principal Lewis Curtwright became aware that the Respondent had been absent from the classroom for approximately 15 days during the first part of the 2009-2010 school year. He approached the Respondent in the school hallway and asked if there was a reason for the absences. The Respondent declined to discuss the matter with Mr. Curtwright. Based on the Respondent's refusal to address his concern during the informal discussion, Mr. Curtwright scheduled a formal meeting for December 8, 2009, to discuss the Respondent's attendance, and advised the Respondent of the meeting in a hand-delivered notice, dated December 3, 2009. At the December 8, 2009, meeting, the Respondent explained that the attendance situation was related to personal stress and health concerns, to her enrollment in a graduate studies program, to unhappiness with her classroom arrangements, and to her schedule. Mr. Curtwright responded by emphasizing the importance of classroom instruction, and advised the Respondent that her absences could be negatively impacting the quality of instruction and the educational progress of her students. He advised that documentation was required for the absences, and that use of extended sick leave required a doctor's note. Mr. Curtwright memorialized the discussion from the meeting in a letter dated December 10, 2009, which was provided to the Respondent. Despite the conference, the Respondent's attendance continued to be a matter of concern for Mr. Curtwright. By the time Mr. Curtwright completed the Respondent's annual performance appraisal on April 23, 2010, the Respondent had been absent for 21 classroom days, and in addition, had started to leave the school grounds without permission before the end of the work day. He noted the concerns in the Respondent's performance evaluation. Mr. Curtwright also scheduled a formal meeting for May 3, 2010, by notice dated April 28, 2010, and delivered to the Respondent; he advised that the meeting was being held to discuss the Respondent's "poor attendance and leaving without signing out." At the May 3, 2010, meeting, Mr. Curtwright noted that since the December 8, 2009, meeting, the Respondent had missed additional classroom days, and that he had seen the Respondent leaving campus before the end of the school day without signing out. He observed that no documentation had been provided for any of the absences. He reiterated the requirements for documentation and noted that additional absences would result in a reprimand and additional disciplinary measures. The Respondent did not participate during the meeting, but took notes. Mr. Curtwright memorialized the discussion from the meeting in a letter of caution, issued and delivered, to the Respondent on May 4, 2010. By the end of the 2009-2010 school year, the Respondent had been absent without approval or documentation for a total of 25.5 days. According to the Petitioner's attendance reports, the Respondent was absent on 16 days prior to the December 8, 2009, meeting, and was then absent for 9.5 days between the December 8, 2009, and the May 3, 2010, meeting. Despite the warnings, the Respondent's attention to attendance requirements did not improve. Teachers employed under the CBA do not receive "vacation" time other than the usual periods when schools are not in session, such as during the summer and various holidays. It is reasonable to expect that teachers consider the school calendar when planning vacations, so as to be present and available for work when school is in session. The 2010-2011 school year was scheduled to commence on August 16, 2010. Students are not present during the first week of the school year, and teachers are expected to be present at the school to participate in various planning and organizational meetings, and to make ready for the commencement of instruction when students return. Countryside High School teachers were specifically advised of the starting date for the 2010-2011 school year in a faculty meeting held in January of 2010. Copies of the 2010- 2011 school calendar were distributed at the faculty meeting, and the school calendar was published and widely available. In February 2010, the Respondent made plans to travel outside the country during the summer of 2010. On the evening of Sunday, August 15, 2010, the night before the 2010-2011 school year began, the Respondent sent an email to the school secretary stating that the Respondent was "out of the country" and would not return to work until August 23, 2010. The Respondent's email stated that she had attempted to utilize an online system (the "sub-finder" system) to record the absences, but that the system had been unavailable. The Respondent failed to request or to obtain approval for her absence from the first week of the 2010-2011 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Manatee County, Florida, enter a Final Order terminating the employment of Francine Louis. DONE AND ENTERED this 24th day of March, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2011. COPIES FURNISHED: Laurie A. Dart, Esquire Pinellas County Schools 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33770-2942 Francine Louis 31177 U.S. Highway 19, North Apartment 101 Palm Harbor, Florida 34684 Dr. Julie M. Janssen, Superintendent Pinellas County School Board 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33770-2942 Dr. Eric J. Smith Commissioner of Educations Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact At all times pertinent hereto, Respondent, William B. Bailey, was a certified teacher in Florida employed by the Broward County School System (BCSS). He has been a teacher for 22 years and has taught at Markham Elementary School, (Markham) for 18 or 19 years. Respondent has generally had a good rapport with young boys. He has an adopted 26 year old son who was recently promoted to Captain in the U.S. Air Force. Allean Jones has known Respondent and his parents for many years. Several years ago she became the guardian of her grandson, Earl Edwards, who, for a long time, had disciplinary and behavior problems at home and at school due, at least in part, to his difficult home life with his natural mother who bore him at age 14. For some time, several years ago, Earl Edwards was a student at Markham of Respondent who developed a good relationship with him. While the student-teacher relationship existed, on numerous occasions, Earl went to Respondent's home where he swam, ate, played, and spent nights, always with Mrs. Jones's permission. She feels Respondent, who bought Earl clothes and paid his dental bills, is a good influence on him and she has offered to let Earl stay with him on a permanent basis. At no time did she object to Respondent's relationship with her grandson, and felt it to be beneficial rather than detrimental to his best interests. Unfortunately, Earl has left school since he graduated from Markham and she does not know where he is now. Mr. William Bell, who was principal at Markham at the time, heard about Respondent's relationship with Earl from two staff members and, without any investigation of the situation and without checking with Earl or his grandmother, concluded that since Respondent was an unmarried male, his off- campus contacts with a young male student were inappropriate and he asked Respondent to cease contact with his student off-campus or before or after school and on weekends. Had Respondent been married, Mr. Bell's reaction might well have been different. Mr. Bell believes that the Teacher Code of Ethics conflicts with off-campus contacts in such a manner as would interfere with teacher effectiveness, and parental approval would make no difference. This request to cease contact with Earl Edwards, in 1980 or 1981, somehow became a part of Respondent's record in the BCSS. No copy of any written request was produced by Petitioner, however, nor was any record reflecting it. Both Bell and Dr. Thomas Johnson, Associate Superintendent for Human Resources in the system, recall the incident, though. When requested to cease off-campus contacts with Earl, Respondent complied. In the Spring of 1986, the new principal, Ms. Dorothy Wooten, was approached by a teacher, Ms. Denise Wright, and the school counselor, who requested that she tell Respondent to leave some of her students alone and stop socializing with them when they should be in Ms. Wright's class. The students in question were Sedaniel Allen and Willie McCloud, who, apparently, would leave her class without permission and, she believed, go to visit with Respondent in his planning area. She believed this is where they went because, though she did not check on them to see where they were going, they told her that's where they were going when they asked her for permission to leave. She periodically gave it and therefore assumed that they would visit Respondent when they left without permission. Ms. Wooten did not investigate the situation herself, but, as a result of Ms. Wright's request, called Respondent in and spoke with him about the situation in the presence of the students in question and both complainants. Respondent seemed as though he would comply and she took no formal action. It appears, however, that the situation continued and a short while late, she talked with Respondent again about the same students and again he seemed to agree. It was after the second meeting that she wrote a memo summarizing the situation. After this second conference, she spoke with Ms. Linda Gaines, Sedaniel's mother, who indicated that Sedaniel had spent the night at Respondent's home without her permission or knowledge, and neither Sedaniel nor Respondent had called her to let her know he was there. When Sedaniel went to Respondent's home a second time without her permission, Sedaniel's step-father went to Respondent's home and got him. Further discussion of these incidents is found in paragraph 15 et seq. infra. After Ms. Wooten received this information from Sedaniel's mother, she wrote Respondent a letter on May 1, 1986 recounting the substance of the interview with Ms. Gaines and advised him she was referring the matter to the Internal Affairs Division, (IA), of BCSS. A week later, she wrote another letter to Respondent requesting that he restrict his contact with Sedaniel and Willie to the scheduled class time and "strongly advised" him to have no other contact with them. In a subsequent meeting held with Ms. Wooten, the students' parents, and Mr. Joseph Viens, an investigator with IA, at the investigator's suggestion, at least some of the parents indicated they did not want the Respondent to have any off-campus or extra-class contact with their children. At this point, Respondent indicated he would talk with his attorney before discussing the matter any further. Respondent took that position only after the investigator accusatorily pointed his finger at him and called him a faggot. Respondent strongly denies being a homosexual and there is no evidence to suggest otherwise. By the same token, Respondent's recounting of the investigator's public accusation was not contested either and is found to have occurred. Having done all she felt was required by reporting the matter to IA and by advising Respondent in writing to refrain from further off-campus contact, Ms. Wooten felt she was out of the matter until one day in October, 1986 when she noticed Sedaniel and Willie loitering after school and not going home. When she looked into it, she found Willie sitting in Respondent's classroom with Respondent and another person. She called both Respondent and Willie to her office where she recalled her instructions to Respondent to avoid extra-class period contacts with these boys and again stated her requests. In response, Respondent stated Willie had been injured and he was going to take him home. Willie confirmed he had been injured one day around this time in an afternoon ball game and the following day, aggravated the injury at recess. When he reported this to his teacher, Mr. Collins, this individual did not consider it serious and refused to let Willie do anything about it. It got worse during the day and swelled up and after school, Willie went to Respondent's room where he saw Mrs. Ruise, Respondent's team teacher. Respondent was at a meeting away from the area. Mrs. Ruise saw that Willie's ankle was injured, but did nothing for him and when staff departure time came, left the school locking the classroom door and leaving Willie out in the hall. When Respondent came back to his classroom somewhat later, he found Willie curled up on the hall floor outside the room crying. Willie's ankle looked bad but Respondent nonetheless questioned him in a forceful tone to find out what had happened. Willie said he needed a ride home. After some serious questioning and initial refusals, Respondent ultimately relented and agreed to take Willie home even though he knew he was not supposed to have contact with him. He saw Willie at school the next day and attempted to talk with him about his ankle in the cafeteria, but was unable to do so. After school, during a conversation with Mrs. Ruise, he again saw Willie who once more asked for a ride home. When, upon questioning, Willie told him he had gotten a ride to school that morning because of his ankle, Respondent gave him a tongue lashing and told him to get someone else to take him home. As Willie told him there was no one else around to do it, Respondent reluctantly agreed and did take him home, but that was the last contact he had with Willie. It must be noted here that Respondent, on both occasions, agreed to give Willie a ride without checking around the school to see if someone else was available to do so. There was some question whether Willie was actually injured at this time and needed a ride. Ms. Wooten heard from other staff members that Willie did not seem to be nor did he complain of being hurt. By far the better evidence, however, clearly indicates that Willie was hurt on this occasion and needed transport and it is so found. Respondent used poor judgment in not looking for someone else to take Willie in light of the injunction he was under and in not reporting the contact after the fact. There is also some issue that Willie may have hidden in the car at Respondent's direction when Respondent drove him home. This is not established. Even according to Willie, it was his idea to hide to keep from being seen because of the fact that Respondent had been instructed not to be with him away from class. There is no evidence that Respondent attempted to conceal any of his actions with regard to Willie. As a result of all the above, on October 7, 1986, Ms. Wooten again sent Respondent a memo to advise him that all future incidents of unauthorized contact would be reported to IA. She was informed by IA that Respondent had had off-campus contacts with other students in addition to Sedaniel and Willie. These included Reggie Nixon, Andre Murray, and Trenton Glover among others. It was reported to her that Respondent would instruct them to meet him at a shopping center from which he would take them to his home where they would do chores for him there and at his nightclub. She felt this reported behavior, which she did not disbelieve, was inappropriate because (1) it was an abuse of his position as a teacher, and (2) a nightclub is no place for children. Ms. Wooten believes Respondent's effectiveness as a teacher has been adversely affected because she has heard the students are questioning his ability to control his students and are making moral judgments about his behavior in regard to Willie and Sedaniel. She has heard no specific comment by any student, however. During the period she has worked with Respondent, she does not feel there have been any conflicts which would create animosity on either his or her part. In fact, she has recommended him for several special projects which would be to his benefit. Ms. Wooten is convinced that Respondent has an ability to relate to troubled children who tend to seek him out. In fact, former students often come back to school to see him. This is both good and bad. Initially, she favorably commented on this in an evaluation of Respondent but after some of these students began making trouble, and after, at a course she took, she learned that this conduct may indicate inappropriate luring of children for improper purposes, she began to look at it differently and tried to put a stop to it. With regard to Sedaniel Allen, Ms. Gaines' dissatisfaction with Respondent arose out of an incident in April, 1986, when Sedaniel had spent the night at Respondent's home without either Respondent or Sedaniel calling to let her know he was going to do that. Prior to the weekend in question, Respondent, acquiescing in Sedaniel's request to be allowed to come over with some other boys, wrote her a note requesting permission for Sedaniel to come to his house to work for him for pay. She agreed to this and signed the permission slip but never returned it to the Respondent. Had Sedaniel returned home on Saturday night, she would not have been upset. In fact, however, Sedaniel did not come home until Sunday evening when Respondent dropped him off. Ms. Gaines and her husband were angry over this and told Sedaniel they didn't want him to go back to Respondent's house ever again. They did not pass this information on to the Respondent, however. Nonetheless, two weeks later, on a Saturday morning, Sedaniel disappeared again. When she checked around, she found that Respondent had picked him up again at the "Gate" of the housing project in which they lived. That evening, Mr. Gaines went to Respondent's house in Deerfield Beach where he found Sedaniel watching television. On this occasion, Respondent had not sent home a permission slip, but subsequent inquiry showed it was Sedaniel who initiated the visit and who had told Respondent that he had permission to be there. He had also told Respondent he had permission to spend the night on the first visit. On these visits the boys would swim, watch television, wrestle (with, on occasion, Respondent) and generally have a good time. Sedaniel indicates that he met with Respondent in his classroom after class on several occasions to discuss what would be done when he was at the Respondent's house. Some other teacher was always there when this happened. On most other occasions, Sedaniel would go to Respondent's classroom with Willie McCloud and wait while Willie would ask Respondent for a ride home. Ms. Sandra Ruise, who knew Sedaniel as one of her own students, and who was Respondent's team teacher, was frequently in the area of the room. She never saw Sedaniel in Respondent's room outside of class hours nor did she ever see any student come to have lunch in Respondent's classroom while she was there and she ate in the room with the Respondent almost every day. She knows Sedaniel's reputation for telling the truth, gleaned from discussions with other teachers and his mother, and it is not good. He has even lied about her, filing a false report about her which he subsequently recanted. Consequently, while it is clear Sedaniel did go to Respondent's home on two occasions, once without permission and once with permission for only a day visit, he was not a frequent visitor to Respondent's room outside of class hours and Respondent's relationship with him at school was not improper. As to the unauthorized visits by Sedaniel to Respondent's home, it is also clear that Sedaniel initiated the visits, begged to stay over night, and lied about having permission to be there. None of this excuses Respondent's failure to verify and have presented to him some concrete evidence of parental authorization for the visit and the length thereof, however. Sedaniel and some other boys, Willie McCloud, Andre Murray, and Trenton Glover, were with Respondent one time when he was on an errand and stopped by Club Bailey for a moment to drop something off. On that occasion, they picked up beer cans from a vacant lot and cleaned ashtrays outside the building. It well may be that the club was open at the time, a Sunday morning, (Respondent was inconsistent in his stories as to whether the club was open), but aside from Sedaniel's uncorroborated allegation that he cleaned the ashtrays inside the club, all the other testimony, including that of the other boys, indicates, and it is so found, that they did not go inside. Respondent alleges that one of the male visitors to Respondent's home on one of the occasions when the boys were there swimming made a remark to the effect that Reggie Nixon was "fine meat" or words to that effect and that Respondent immediately told this individual to keep quiet. Neither comment was heard by Reggie, though Willie and Andre allegedly did. Even if the comments were made, however, the evidence is clear that there were no approaches made to any of the boys, they were not touched or bothered in any way, and in fact, were not spoken to at all by any of the men in question, all of whom deny such comments being made. There is also no support for the allegation that one of the men asked if the boys had ever had sex with a man. What is certain, however, is that Sedaniel has a reputation for being untruthful and his report, as well as his characterization of Respondent's visitors as "faggots", is lacking in credibility. Each of the visitors identified by Sedaniel and the other boys testified at the hearing. The boys' descriptions of one or more of the men as "faggots" were based on their opinions of their hair styles, laughs, and voice patterns. This evidence is not enough to support a finding that there was anything untoward about Respondent's guests, especially in light of the youth and lack of sophistication of these boys and the unequivocal denials of Respondent and the other men. The investigation into Respondent's conduct, conducted by the school system's internal affairs division at the request of Ms. Wooten, resulted in a report incorporating much of the above information which was referred to Dr. Thomas P. Johnson, Associate Superintendent for Human Resources. Dr. Johnson referred it to a committee for evaluation which resulted in a recommendation to bring charges against the Respondent. The action here was based upon the allegations that respondent had taken students to his home without parental permission; that some of the students involved had indicated Respondent's friends were "faggots"; that there was an allegation by one of the children that they had been worked in Respondent's night club; and that Respondent had disregarded a direction from his principal to cease this activity. This all was aggravated by allegations that Respondent had been the subject of a report of similar activity several years previously which, while not resulting in disciplinary action against him, had resulted in a "Cease and Desist Order" being issued. This prior order was not offered into evidence. School officials considered that Respondent's failure to abide by the orders given him by his principal showed a lack of judgment and integrity and his invitation of the students to his home violated the ethical requirements of the Teacher's Code of Ethics. It must be noted that off-campus contacts are not, per se, improper if done with parental consent. With regard to the issue of parental consent, Respondent always sent a note home requesting permission. Sedaniel lied about having permission to spend the night on the first visit and about having permission on the second visit. If Respondent is at fault, it is in failing to insure by a phone call or by seeing the permission slip itself, that what he was told by Sedaniel was true. As to Respondent's alleged disregard of Ms. Wooten's direction to stay away from Sedaniel and Willie, the evidence is clear that Respondent attempted to do just that; that the two occasions on which he gave Willie a ride home, (the only contacts he had with Willie after the direction from the Principal), were as a direct result of Willie's initiation and Respondent's unwillingness to allow an injured boy to fend for himself. Respondent showed poor judgment here but the evidence does not support a finding of misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent be reinstated to a teaching position with the BCSS and that that he be awarded full back pay and benefits. RECOMMENDED this 15th day of July, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 15th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4727 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact (PFOF) submitted by the parties to this case. By the Petitioner Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. The witness's testimony related to Earl Edwards and was offset by Edwards' grandmother. Accepted and incorporated herein. Rejected as a recitation of testimony, not a FOF. Accepted and incorporated herein. Rejected as it refers to any male in female garb which does not appear in the record as represented. Accepted. Accepted and incorporated herein. 9-11. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. 14-15. Accepted and incorporated herein. 16-19. Accepted and incorporated herein. 20. Misleading. Respondent did take students to his home and paid them to perform chores in the yard. He did go to his lounge with some students on one occasion, but did not take them inside. 21-22. Accepted as the witness' opinion. Misleading. Sedaniel Allen, a reported liar, told Respondent not to pick him up at home. This was due more to Sedaniel's manipulation than to Respondent's actions. Rejected as contrary to the evidence. Rejected as contrary to the evidence. Accepted and incorporated herein. Respondent sent home a permission slip. The child reported he could stay. Respondent did not know he could not. Proposed FOF is incomplete and misleading. Accepted but phrased in a misleading way. Accepted as to the 1st and 2nd sentences. Accepted and incorporated herein. 31&32. Accepted and incorporated herein. This PFOF is misleading. The students went to the club once where Sedaniel cleaned some ashtrays outside while Respondent was doing something inside. The bar was closed to the public at the time and no alcohol was being served. The Respondent1s associates were at his home not at the club and there is substantial doubt as to the alleged comments. That the students were left at home unsupervised is contradicted by the Respondent who says his mother would come over and sit. In any case, this element is not in issue as to the charges. Accepted as to the facts, not the inferences. This PFOF does not make sense. Rejected. Accepted. Accepted. Rejected in that the transcript says he went to Respondent's home on 5 to 10 occasions but did not spend the night each time. Accepted as to what the witness testified to. Use of word feminine is improper. The cousins were male but were described as feminine in demeanor. Accepted. 42&43. Accepted. Accepted (See 33, supra). Accepted. Accepted. Misleading in that this student is the one who initiated all contact after the principal's directive. Accepted as the witness's opinions--the issue of comments was not established. Accepted but irrelevant. Rejected as an improper conclusion drawn from the evidence. This PFOF is incompetent in that it is impossible to determine who is being described. Rejected as contrary to the weight of the evidence admitted at hearing. Accepted and incorporated herein. 54&55. Accepted. 56&57. Accepted. By the Respondent 1-3. Accepted and incorporated herein. 4-10. Accepted. 11. Accepted and incorporated herein. 12. Accepted. 13-15. Accepted and incorporated herein. 16-21. Accepted. 22&23. Accepted and incorporated herein. 24. Accepted. 25&26. Accepted. 27-31. Accepted. 32-35. Accepted. 36-40. Accepted and incorporated herein. 41-44. Accepted and incorporated herein. 45&46. Accepted. 47. Accepted. 48. Accepted. 49. Accepted and incorporated herein. 50-55. Accepted. 56-58. Accepted and incorporated herein. 59. Accepted. 60-66. Accepted and incorporated herein. 67-76. Accepted and incorporated herein. 77. Accepted. 78-80. Accepted and incorporated herein. 81-83. Accepted. 84-90. Accepted and incorporated herein. 91-93. Accepted. 94-96. Accepted. 97-100. Accepted. 101-104. Accepted. 105&106. Accepted and incorporated herein. 107&108. Accepted and incorporated herein. 109. Accepted. 110-115. Accepted. 116. Immaterial. 117-119. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted. 124-125. Accepted. COPIES FURNISHED: William J. Leary, Superintendent School Board of Broward County 1320 S.W. 4th Street Fort Lauderdale, Florida 33312 Charles T. Whitelock, Esquire Whitelock and Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Leslie Holland, Esquire Staff Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301
