The Issue Whether it was appropriate for Petitioner, Pinellas County School Board, to terminate the employment of Respondent, Curtis Brown, under Section 1012.34, Florida Statutes (2007), due to his failure to correct performance deficiencies after having been placed on Professional Services Contract Probation for 90 days, in violation of School Board Policy 8.25(1)(t); his "incompetence," in violation of School Board Policy 8.25(1)(u); his "insubordination," in violation of School Board Policy 8.25(1)(u); and his failure to comply with "School Board Policy, State Law or the Appropriate Contractual Agreement," in violation of School Board Policy 8.25(1)(x) and Section 1012.33, Florida Statutes (2007).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner operates, controls, and supervises the public schools of Pinellas County, Florida. It has entered into individual and collective agreements with the teachers it employs and publishes policies that control the activities of its teaching professionals. Respondent is employed by Petitioner as a math teacher at Johns Hopkins Middle School and has a Professional Services Contract. Petitioner employs a formalized teacher evaluation process that assesses 25 teaching "expectations." These "expectations" are grouped in three related categories: Highest Student Achievement, Safe Learning Environment, and Effective and Efficient Operations. Each "expectation" receives one of four ratings: Exceeds Expectations, Meets Expectations, In Progress, and Not Evident. Assessments are made on specific and detailed indicia during observations, interviews, and review of data regarding student achievement. Depending on the number of indicia observed for each of the "expectations," a teacher receives a proficiency rating of Level 1 through 4, with Level 4 being the highest. Below a Level 1 is considered unsatisfactory. Respondent was rated unsatisfactory for school years 2006-07 and 2007-08. There are approximately 8,000 teachers in Pinellas County. Of the 8,000, 23 were rated unsatisfactory for the 2007-08 school year; only three were rated unsatisfactory for both 2006-07 and 2007-08. A state requirement of teacher appraisal includes student performance and learning gains for each student in a teacher's class. The Florida Comprehensive Achievement Test ("FCAT") is probably the most notorious student achievement data source in Florida. Unfortunately, the FCAT scores become available in July. Most annual teacher assessments are completed in April of each school year. However, there are other student achievement data sources that can be appropriately used in assessing student performance and learning gains. They include teacher-made pre- and post-tests, district developed assessments, student grades, and curriculum developed assessments. A teacher may offer any of these data sources during his or her evaluation. Because Respondent had received an unsatisfactory rating for the 2006-07 school year, administrators at his school and from the district office provided special attention and direction during the first months of the 2007-08 school year designed to help Respondent improve his teaching performance. The efforts of the administration were not successful. Respondent was placed on a 90-day probation period on January 14, 2008. He was advised of his unsatisfactory performance. At the same time, he received a revised "success plan" and a copy of Section 1012.34, Florida Statutes. Respondent received several formal observations and critiques during the probation period. Petitioner provided the requisite assistance, direction, and on-going assessment. During the 90-day probationary period, Respondent did not respond to specific corrective direction given him by administrators regarding a myriad of basic administrative details, teaching techniques, and methodology. Respondent's annual evaluation took place on April 24, 2008, after the conclusion of the 90-day probation. Even though requested, Respondent failed to provide any documentation of positive classroom results. Even though Respondent failed to present any evidence of positive classroom results, the evaluator (the school assistant principal) had monitored potential classroom progress through various data available to him. He failed to note any positive trend. Respondent received 19 "Not Evident" ratings in 25 "Expectations" and an unsatisfactory rating. Respondent's performance problems were increasing in spite of a concerted effort by the administration to correct the trend. In the 2005-06 school year, he received six "Not Evident" ratings; in 2006-07, 14 "Not Evident" ratings; and in 2007-2008, 19 "Not Evident" ratings. Over the several years contemplated by the testimony of school administrators who had supervisory authority over Respondent, he failed to teach the subject matter assigned, failed to complete lesson plans correctly and timely, failed to use a particular math teaching software program (River Deep) as required, failed to take attendance, and did not use the required grading software. In each instance he was encouraged and, then specifically directed, to comply with established policy regarding these areas of teaching responsibility; and yet, he failed to do so. Respondent's teaching record contains memos regarding the following: Two formal conferences regarding use of excessive force (12/6/02 and 10/29/03); A formal conference regarding growing number of parent concerns over penalizing students on academic work for behavioral problems and giving students F's for assignments that they couldn't complete due to lost work books (11/3/2004); A formal conference summary involving several issues including instructional methodology, leaving students unsupervised in class and leaving campus early (1/24/2005); Three reprimands for disparaging remarks made to or about students (1/19/05, 2/16/05, 4/02/07); A 15-day suspension for falling asleep in class and again leaving students unattended in class (7/12/2005); A formal conference summary for again leaving students unattended in the classroom and unsupervised outside of the classroom door (2/9/2007); and A formal conference summaries for missing a meeting and not turning in lesson plans and IPDP's (12/04/07, 1/29/08, 3/03/08).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Curtis Brown's, Professional Services Contract be terminated. DONE AND ENTERED this 23rd day of January, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2009. COPIES FURNISHED: Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Julie M. Janssen Superintendent of Schools Pinellas County School Board 301 Fourth Street Southwest Largo, Florida 33770-2942 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Laurie A. Dart, Esquire Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 33779-2942 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
The Issue Whether Respondent should be transferred from Glades Middle School to an opportunity school.
Findings Of Fact For the 1989-90 school year John Sarmiento was enrolled in the Dade County public school system and he was assigned to the eighth grade at Giades Middle School. On November 27, 1989, Petitioner administratively transferred him from Glades Middle School to J.R.E. Lee, an opportunity school. The stated basis for the transfer was the student's disruptive behavior and his failure to adjust to the regular school. As an opportunity school, J.R.E. Lee has a more structured program than a traditional school, such as Glades Middle School, and is designed to assist students with discipline problems. While attending Glades Middle School, John Sarmiento repeatedly engaged in disruptive conduct that interfered with his own learning and with the learning of others in his classes. This conduct resulted in his being referred to the assistant principal's office between five and ten times per week. On one occasion the student, while in class, threw a piece of chalk at another student. On another occasion, the student engaged in an argument with another student that almost resulted in a fight during class. On an almost daily basis, the student would wander around the class while making loud, boisterous comments. This student's misconduct would have merited his suspension according to the district code of student conduct. Instead of suspending this student, the school officials worked with him and with his parents in an effort to improve his behavior. Unfortunately the considerable efforts of the personnel at Glades Middle School to serve the student's educational needs did not succeed. The student needs the structured environment that the opportunity school can provide, and his educational needs will best be served by his transfer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which approves John Sarmiento's assignment to the J.R.E. Lee opportunity school. DONE AND ENTERED this 3rd day of April 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April 1990. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 Maria Ruiz de la Torre, Esquire 7111 Biscayne Boulevard, Suite Three Miami, Florida 33138 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Paul W. Bell Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue presented is whether Respondent Shedeidra Edge should be suspended without pay and dismissed from her employment with Petitioner School Board of Palm Beach County, Florida, for the reasons set forth in the Petition filed in this cause.
Findings Of Fact Respondent Shedeidra Edge has been employed by Petitioner School Board of Palm Beach County, Florida, since 1999. Prior to August 2006 Respondent interviewed for an opening as a secretary in the student services office at Jupiter High School. During her interview she was advised that the busiest time of the day in that office was when the students arrived at 7:00 a.m. until the first class began at around 7:30. She was advised that there would be two secretaries in that office, each of whom would be responsible for certain of the duties required in that office. Since there were four assistant principals working in that office, each of the secretaries was informally assigned to two of them to prevent all four from assigning all of their work to only one secretary. She understood that one of the secretaries would begin work at 6:45 a.m. and the other at 7:00 a.m. Respondent was offered the 7:00 a.m. starting time since she would be the first of the two secretaries for that office to be hired. Respondent advised the principal and head secretary during the interview that she did not know if she could accept a job starting at 7:00 a.m. She subsequently telephoned the head secretary and advised her that she could accept the job and that she had worked out her transportation and daycare concerns. Respondent began working as a secretary at Jupiter High School in the student services office in August 2006. From the beginning she was late arriving at work almost daily. In an effort to assist Respondent and since Respondent was only a few minutes late, the principal adjusted Respondent's start time to 7:10 a.m. Respondent started arriving even later, and the principal, thinking that a slightly-later start time would solve the problem, adjusted Respondent's start time to 7:20 a.m., starting September 11, 2006. With that adjustment, Respondent began arriving even later most mornings. By January 2007 she was arriving an hour late regularly. Although Respondent sometimes called to say she would be late, sometimes she did not. She simply came in, carrying her breakfast which she had stopped to pick up on her way to work even though she was late. The impact of Respondent's regular tardiness on the operation of Jupiter High School was negative and significant. The before-school rush of business in the student services office could not be handled by one secretary. Accordingly, when Respondent was late, an employee from another office was taken away from that employee's duties to cover for Respondent. Those employees were unhappy about having to cover for Respondent, who appeared to them to be permitted to arrive at work whenever she felt like it with impunity. One of the responsibilities of the student services office involved retrieving textbooks from students withdrawing from school and accounting for lost or missing textbooks. Since Jupiter High School had to reimburse the school district for textbooks not returned, which would, in turn, impact the School's operating budget, Kent Heitman, one of the assistant principals to whom Respondent was informally assigned, was in charge of making sure that textbooks were returned to the school before approving a student's withdrawal and release of that student's records. It was Respondent's job, assigned to her by Assistant Principal Heitman, to make the initial contact with a student's parents when a student failed to return a textbook. She was to provide the parents with the information on the unreturned textbook, including the price for the parent to replace it. She was to record the information regarding her contact in a log set up for that purpose. She was responsible for keeping that log current, along with the student obligation list of students who owed money to the school for missing or lost textbooks, utilizing information obtained from teachers and the school's cashier. Heitman told Respondent that if she had a problem with any parent as a result of the initial contact she made, she was to turn that particular matter over to him, and he would handle it. Respondent refused to make the phone calls and refused to make the required entries on the log. She took the position that it was Heitman's job to do these things and not hers. Although Respondent was counseled regularly about the need to arrive at work on time, she failed to do so. Therefore, on November 10, 2006, Dr. Paula Nessmith, the Principal of Jupiter High School, issued to Respondent a Memorandum of Specific Incident regarding her continuing late arrivals at work. That Memorandum pointed out that from Friday, October 20, 2006, through Wednesday, November 8, 2006, Respondent had arrived at work on time only once. The Memorandum further advised Respondent that her failure to comply with the directives to arrive at work on time might result in further disciplinary action. On December 4, 2006, Principal Nessmith issued a Written Directive to Respondent, advising her that she had been late all but two days from November 13 through December 1, 2006. That Written Directive further advised Respondent that her continued late arrival would constitute insubordination and result in disciplinary action up to and including termination. On December 14, 2006, Assistant Principal Heitman again directed Respondent to call parents of withdrawing students to retrieve unreturned textbooks. He sent her three e- mail directives with the same instruction on December 15, 18, and 19, 2006. On December 22, 2006, Principal Nessmith gave Respondent a Written Directive as a result of Respondent's continued failure to call parents of withdrawing students who had not returned textbooks in accordance with Assistant Principal Heitman's directives of December 14, 15, 18, and 19 and Principal Nessmith's verbal directive of December 19. The Written Directive detailed the procedures that Respondent was to follow in performing that duty. It also advised Respondent that her continued refusal to comply would be considered insubordination and could result in disciplinary action up to and including termination. On January 16, 2007, Principal Nessmith gave Respondent a Verbal Reprimand with Written Notation for failing to follow the directives given Respondent on December 4 and 22, 2006. That Verbal Reprimand advised Respondent that her continued refusal to comply would result in further disciplinary action up to and including termination. On January 17, 2007, Principal Nessmith gave Respondent a Written Directive: Textbook and Student Obligation List Procedures and Responsibilities, detailing the procedure for Respondent to follow regarding textbooks and student obligations. The Written Directive again advised Respondent that her continued refusal to perform her job duties would be viewed as insubordination and would result in discipline up to and including termination. On January 25, 2007, Principal Nessmith gave Respondent a Written Reprimand for not complying with the January 17, 2007, Verbal Reprimand with Written Notation. The Written Reprimand noted that Respondent had arrived at work at least 40 minutes late every day since she had received the verbal reprimand and had failed to place and log telephone calls to the parents of withdrawing students who had not returned textbooks. It further advised Respondent that her continued refusal to comply with directives constituted gross insubordination and her continued failure would result in further disciplinary action up to and including termination. On February 2, 2007, Principal Nessmith issued to Respondent another Written Reprimand for not complying with the directives of January 17 and 25. The Written Reprimand noted that Respondent had arrived at work at least 40 minutes late every day since the January 25 Written Reprimand. It noted that Respondent still refused to follow the required procedures regarding unreturned textbooks as contained in the previous directives and reprimands. It noted that Respondent's continuing late arrivals and refusal to follow required procedures constituted gross insubordination, and that Respondent's failure to comply would subject her to further disciplinary action up to and including termination. Respondent continued to fail to comply. By correspondence dated March 7, 2007, Respondent was advised that a pre-disciplinary meeting to address her insubordination was scheduled. Respondent attended the meeting on March 12, 2007. At the conclusion of the meeting, the matter was referred to the Superintendent. By letter dated July 16, 2007, the Superintendent of Schools issued his Notice of Suspension and Recommendation for Termination from Employment advising Respondent that at the August 1, 2007, School Board meeting he would recommend that she be suspended without pay as of July 31, 2007, and terminated from employment as of August 15, 2007, for insubordination, subject to her timely request for an administrative hearing before the Division of Administrative Hearings. Upon the School Board's approval of the Superintendent's recommendation and upon Respondent's timely request for a hearing, this matter was referred to the Division of Administrative Hearings and the hearing was conducted as set forth above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered suspending Respondent without pay as of July 31, 2007, and terminating her employment as of August 15, 2007, for insubordination. DONE AND ENTERED this 7th day of January, 2008, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2008. COPIES FURNISHED: Arthur C. Johnson, Ph.D. Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Esquire Commissioner of Education Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Vicki L. Evans-Pare, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Shedeidra Edge 1460 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
The Issue The issue here is whether the Superintendent has shown "good and sufficient reasons" for recommending that Mr. Udell be returned to annual contract status as a teacher employed by the School Board of Hamilton County, Florida.
Findings Of Fact For fourteen years, Mr. Udell has been employed by the Hamilton County School Board as a teacher. He is presently assigned as an auto-mechanics instructor at Hamilton High School. He has held a continuing contract for the last seven years. The principal of Hamilton High School has been Mr. Maurice Hammond for the last two years. It appears that he is less indulgent of rule violations than was the former school principal, Mr. William Edwards. Mr. Hammond has cracked down on activities such as student card playing which at one time were tolerated by the former administration. This has been at least a partial cause of friction between the old teachers like Mr. Udell and the new principal. It is the school policy that if a student is absent for more than nine days in a nine-week grading period, he will receive a sixty-five or lower grade for that period. With respect to the grade of Tim Holland, a student of Mr. Udell's for the 1979-1980 school year, Mr. Udell did not follow that policy. The policy was known to him through the teachers' handbook which he received at the beginning at the school year. In Mr. Hammond's opinion, Tim Holland would not have graduated if it has not been for Mr. Udell's violation of the nine-day rule. Tim Holland missed a total of seventy-five days of the 1979-1980 academic year. According to Hamilton High School policy, each student must receive nine grades during each nine-week grading period. Mr. Udell has not complied with that policy. During the last complete school year, his students received on the average only three grades. Hamilton High School students who are seniors and have a class grade average of ninety-five or above are exempt from quarter examinations. During the 1979-1980 year, on at least one occasion, Mr. Udell exempted from quarter exams several senior students who had less that a ninety-five average. The teachers of Hamilton High School compute the grades for their assigned students. In the 1979-1980 year, Mr. Udell had one of his students compute grades for him. The result was numerous computation errors, all in favor of the students. For instance, Leonard Phillips had a seventy-four for the first grading period and an eighty for the second period yet he received an average grade of eighty for the whole semester. Jack Alford received a sixty the first period, a sixty-four for the second period and an average of seventy for the semester. For the first semester of 1979-1980 alone, at least sixteen of Mr. Udell's forty-nine students received incorrect grades. Prior to Mr. Hammond's administration at Hamilton High School, there were occasions when students were allowed to play cards during class periods. On April 2, 1979, during a visit to Mr. Udell's classroom, Mr. Hammond observed numerous students playing cards in the third and fourth periods. Halter in the afternoon when the principal spoke with Mr. Udell about the indent, he responded that card playing occurred in other parts of the campus and "the best thing to do was to give me that oil [needed to operate an engine]." This response is typical of Mr. Udell's attitude when deficiencies in his teaching have been pointed out to him. He attempts to rationalize them by shifting repairability onto others. He explained his grading errors by complaining about not having a student assistant or a planning period; yet, with only three grades per student for the whole year, it would take little time for him to accurately compute the grades himself. In one instance, on January 14, 1980, Mr. Udell left an inadequate lessor plan for a substitute teacher. The plan which was for three classes for two periods stated in its entirety (spelling etc. as on original): 1-14-80 Auto Class 1-2 P. Class Basic Tune-up on six cyl. engine Practice on training unit that is on roll cabinit tools are in top drawer in roll cabinit Check training unit with sun scope This is for all classes one group work on engine one on training unit, then change over. Udell A 30-gallon drum of cleaning solvent was sent to Mr. Udell's auto mechanic shop without a purchase order being first submitted. This is contrary to the purchase procedure established at Hamilton High School. It resulted, however, because the salesman sent the solvent before he had Mr. Udell's approval. Mr. Udell was therefore not at fault for there not being a purchase order prior to the delivery of the goods. Evidence was presented which shows that Mr. Udell adequately handles many of the instructional aspects of his teaching responsibilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board of Hamilton County, Florida, enter a final order pursuant to Section 231.36(4), Florida Statutes, returning Mr. Lawrence Udell to an annual contract of employment as a member of the instructional staff, effective from the beginning of the 1980-1981 school year. DONE AND RECOMMENDED this 7th day of January 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January 1981.
The Issue Whether the placement of Respondent in the opportunity school program at Douglas MacArthur South is appropriate.
Findings Of Fact During the 1992-1993 and 1993-1994 school years, the Respondent, Joey Segura (Joey), was classified as an 11th grader and 12th grader, respectively, at Miami Killian Senior High School, Dade County, Florida. On October 20, 1992, Steve Whaley, Joey's D.C.T. teacher, referred Joey to the Assistant Principal, Judith Cooper, for excessive absences. Joey's mother was advised of the absences. Ms. Cooper reprimanded Joey and referred him to Mr. Banaszak, his guidance counselor. On Janaury 7, 1993, Joey's math teacher, Mrs. Rodriguez, referred Joey to Ms. Cooper for being late to class and presenting a bogus pass. Joey refused to serve detentions for the tardies and the pass. Joey was reprimanded and issued two Saturday schools for cutting class and refusing to serve the detentions. A Saturday school is a disciplinary measure used by the school system whereby the student attends class on Saturday. Joey was again referred to Mr. Banaszak for counseling. On January 22, 1993, Mr. Whaley referred Joey to Ms. Cooper for excessive absences. Ms. Cooper talked to Joey's mother, reprimanded Joey, and referred Joey to Mr. Banaszak for counseling. On January 25, 1993, Mrs. Rodriguez referred Joey to Ms. Cooper for leaving class without permission after Mrs. Rodiguez told him he could not leave. Ms. Cooper called Joey's mother, reprimanded Joey, and referred Joey to Mr. Banaszak for counseling. On February 16, 1993, Joey was given a ten-day outdoor suspension for calling Mr. Whaley an "asshole" and a "fucking asshole." Joey was again referred to Mr. Banaszak. On March 23, 1993, Mr. Flipse, one of Joey's teachers, referred Joey to Ms. Cooper for excessive tardiness and refusal to serve detentions. Joey told Mr. Flipse that he did not have to serve detentions. Ms. Cooper called Joey's father and related what was happening. Joey was reprimanded and given a Saturday school. Joey did not serve the Saturday school and was given a three- day indoor suspension. Joey stated he would not serve the indoor suspensions and instead chose to have a three-day outdoor suspension. 8 There was another incident in which Ms. Cooper had to suspend Joey. Joey got angry about the suspension and told Ms. Cooper that she better not mess with him, he would blow up her car. Ms. Cooper informed the principal about the threat and a conference was set with Joey's parents and his teachers. Ms. Cooper had recommended to the principal that Joey be referred to a disciplinary school program. Another conference was held in which an outside counselor hired by the Seguras participated along with Joey's parents and teachers. It was decided that since Joey was undergoing private counseling that he would be given another chance to stay in school and work at improving. During the 1992-1993 school year Mr. Banaszak met with Joey not less than twelve times concerning tardiness and academic difficulties. Joey's final grades for 1992-1993 were four D's and two F's. On September 20, 1993, Mr. Coyle, Joey's D.C.T. teacher, referred Joey to Thomas Jones, the assistant principal, for leaving class without permission. Joey was given a Saturday school. For the first semester of 1993-1994, Joey chose to take a photography class taught by Richard Ladwig. Joey's lack of attendance and his tardiness were problems in Mr. Ladwig's class. Mr. Ladwig discussed the problems with Joey and issued several detention notices to him. Joey ripped up the detention notices. Mr. Ladwig finally gave Joey an exclusion notice. Instead of going to exclusion hall as he should have, Joey ripped up the exclusion notice, and told Mr. Ladwig that he was going to Ms. Cooper's office. In September, 1993, Joey asked permission to leave Mr. Ladwig's class. Mr. Ladwig told him that he could not leave class. Joey retorted, "You're pissing me off." In September, 1993, Mr. Banaszak met with Joey and his father to discuss absences and tardies. Joey requested to be transferred out of Mr. Ladwig's class. Mr. Banaszak told him that it was not the school's policy to transfer a student four weeks into the school semester, and that Joey needed the photography class to meet his fine arts requirement for graduation. On October 11, 1993, Mr. Banaszak met with Joey, his parents, and Mr. Jones to discuss Joey's academic problems. Mr. Banaszak was concerned about whether Joey could graduate. Because of his failed courses he was almost an entire year behind in annual credits. A plan was devised to make up the credits through summer school and night school, thus, enabling Joey to graduate in the fall of 1994. Mr. Banaszak had authorized Joey's taking night classes on other occasions to help make up credits. Although Joey enrolled in the night classes he never recieved any credits, indicating that he either did not attend or did not complete the work. Joey was failing the photography class. He missed several quizzes, missed a lot of notes, resulting in a notebook grade of "F," failed some tests, and sometimes read a newspaper in class rather than doing his assigned work. One of the assignments in the Mr. Ladwig's class was to develop negatives in class and make contact prints from the negatives. Joey did not develop negatives in class. Mr. Ladwig allowed students who failed to do the developing portion of the assignment to have negatives developed outside of class to be used in making the contact prints in class. Joey did bring some negatives to class and make contact prints in class. One of Mr. Ladwig's sixth grade students had been complaining to Mr. Ladwig that someone had stolen his negatives. Mr. Ladwig told the student to take a look at the contact prints to see if any of the prints were made from his negatives. The student identified the prints made by Joey as being made from his negatives. 20 On several occasions, Mr. Ladwig asked Joey to bring his negatives to class. Finally on October 19, 1993, Mr. Ladwig told Joey that there was a dispute over the ownership of the negatives which he had used and told him to go and get the negatives from his locker. Joey got very angry and started to leave the class. At the doorway, Joey stopped and said, "If or when I see you on the street, Dude, I'm going to fucking kill you." The threat was heard by several of the students in the class. 21. Mr. Ladwig referred the matter to Mr. Jones. Later in the day, Joey along with Mr. Jones and Mr. Lewis, the security person, came to Mr. Ladwig's classroom while class was in session. Joey accused Mr. Ladwig of calling him a liar. Mr. Ladwig asked them to leave. On the way out, Joey said, "Ladwig, Dude, I'll deal with you later." 22 Joey gave Mr. Jones the names of several witness and Mr. Jones talked with them. An assault on a staff member is a Group IV violation according to The Secondary Code of Student Conduct, which defines an assault on a staff member as follows: Intentional verbal or physical threat to do violence to a staff member by a student who possesses an apparent ability to do so and in doing so creates a well-founded fear that such violence is imminent. The Secondary Code of Student Conduct provides that the following disciplinary actions be taken for a Group IV violation: Parent contact/parent conference. Administrator/parent conference. Ten-day suspension. Recommendation for expulsion, administrative assignment to Opportunity School Program, or placement in a substance abuse program. Refer criminal acts to the Dade County Public School Police and the local police agency for appropriate legal action. When appropriate, seek restitution or restoration. Mr. Jones reported the incident to the Dade County Police Department. Mr. Jones called Joey's mother and met with Joey's father. Joey was given a ten-day outdoor suspension with a recommendation for explusion. Joey's father asked for a second conference with Mr. Jones and Mr. Ladwig so that Mr. Segura could confront the teacher. Mr. Ladwig told Mr. Segura that he thought Joey meant it when he said he was going to kill him. Mr. Jones recommended that Joey be assigned to an opportunity school program rather than being expelled. His recommendation was based on Joey's continuous disruptive behavior, including the last incident with Mr. Ladwig. Joey's grades for the first nine weeks of the 1993-1994 school year consisted of four F's, one Incomplete, and one "C." Joey's behavior of excessive tardiness, verbal assault on his teacher, his continuous defiance of authority, and his disrespect for his teachers interferred with his own learning and the educational process of others. The needs of Joey are not being effectively met by the conventional education programs in the public schools. Joey was assigned to the opportunity school program at Douglas MacArthur South in lieu of explusion. This program provides students an opportunity to learn in a small group environment, more counseling on a one-to- one basis, and a more structured environment. Joey did not go to Douglas MacArthur South. He had been attending some adult education classes at night to get credit for classes which he had flunked, but he dropped out when he was assigned to Douglas MacArthur South.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered assigning Joey Segura to the opportunity school program at Douglas MacArthur South. DONE AND ENTERED this 4th day of May 1994 in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 4th day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6906 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraphs 2-7 Accepted in substance. Paragraph 8: The first sentence is accepted in substance. The second sentence is rejected as to the number 12 as not supported by the greater weight of the evidence, but otherwise accepted in substance that there were referrals for the reasons stated. Paragraphs 9-15: Accepted in substance. COPIES FURNISHED: Johnny Brown, Esquire School Board of Dade County 450 Northeast Second Avenue, Suite 301 Miami, Florida 33132 Miguel Segura 6114 Southwest 127th Place Miami, Florida 33173 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132-1308
The Issue The issue is whether Respondent should be suspended from employment for twenty days without pay for misconduct and unprofessional conduct in violation of School District Policies 1.013 and 1.014, Florida Administrative Code Rules 6B-1.001(3) and 6B-1.006(4)(b), (5)(a) and (5)(h), and School Board Bulletins #P-12542-CAO/COO-Count Day and Class Size Reduction Review, and #P-12519-CAO/COO-Florida Department of Education Student Enrollment Procedures.
Findings Of Fact Petitioner, Palm Beach County School Board (the Board or Petitioner), operates, controls, and supervises all public schools within the Palm Beach County School District (the District), as authorized by Subsection 1001.32(2), Florida Statutes (2008). The District School Superintendent, Dr. Arthur C. Johnson (Superintendent Johnson) is responsible for the administration, management, and supervision of instruction in the District, as provided in Subsection 1001.32(3), Florida Statutes (2008). Respondent, Dr. Gwendolyn Johnson (Dr. Johnson or Respondent) was the principal at Independence Middle School (Independence) during the 2007 to 2008 school year. In her thirty-five years with the District, Dr. Johnson was a principal for eight years, an assistant principal for eleven and a half years, a guidance counselor for approximately nine years, and, before that, an elementary and high school occupational specialist. At Independence, Respondent's assistant principals were Kathleen Carden, Martest Sheffield, and Scott Duhy. Although the projected enrollment was 1174, not the minimum number of 1201 required to justify having a third assistant principal, Dr. Johnson requested and, on May 15, 2007, received approval to keep the third assistant principal, Mr. Duhy, subject to reaching or exceeding the required enrollment by the time the count of students was taken on or about the eleventh day of school in the fall. The increase over the projection was possible because Independence was the 2007 receiving school for students whose parents transferred them from D- or F-rated schools under No Child Left Behind Act. For the 2007-2008 school year, Dr. Johnson assigned primary responsibility for maintaining a count of the student population to another one of the assistant principals, Dr. Carden. In addition to determining the number of assistant principals, the enrollment count is used by the District to determine other staffing, including the number of teachers, and guidance counselors assigned to each school. Attendance at Independence was reported by teachers each school day on bubbled attendance sheets. The sheets were scanned each day and the data stored in a computer program called the Total Education or Resource Management System (TERMS). The sheets were returned to the teachers who used them to record attendance for a two-week period before signing and submitting them, and receiving new computer-generated biweekly attendance scan sheets. On August 23, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12519-CAO/COO/FO/FTE), that any student who had never attended any period since the first day of school must have a withdrawn code entered into the TERMS program by August 27, 2007. Dr. Johnson e-mailed the Bulletin to her administrative staff and convened a meeting of that group to review it. Her secretary also e-mailed a reminder of the requirements to the staff on August 27, 2007. Teachers reported students who never attended school from the beginning of the year, the so-called "no-shows," by making handwritten notes or by drawing lines through the student's name on the attendance sheets, expecting those names to be removed from their rosters. Students who never showed up were not bubbled absent on the attendance sheets. A student aide in the student services office scanned the sheets, so the school's data processor, Angela Jones, did not see the teacher's notes and make changes in the computer. Once teachers kept getting biweekly attendance sheets with the names of no-shows and transfers on them, they started e-mailing or otherwise notifying Ms. Jones who began to keep a running list of no shows and transfers. Ms. Jones was not allowed to enter the withdrawal code in TERMS until authorized to do so by either Dr. Johnson or Dr. Carden, as shown by their e-mails. Rather than following the instructions in Bulletin # P-12519 to withdraw all no-shows by August 27, 2007, no-shows were treated like transfers and were not withdrawn until the student's new school requested their records. Dr. Johnson's claim that she was not aware that procedures outlined in the District's Bulletin of August 23, 2007, were not being followed by Ms. Jones and Dr. Carden, is not credible. She was present at the meetings in her office and her conference room, well after the August deadline, during which Ms. Jones continued to receive instructions to wait for approval to make withdrawals. On August 31, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12542-CAO/COO) that the District's enrollment count day was September 7, 2007, and that the count would be taken from TERMS. Dr. Johnson sent an e-mail to all teachers to count students, as directed in the Bulletin of August 23, by only including students who had been in attendance at least one period since school began on August 22, thereby excluding no-shows from the count. Prior to 2007, this would have been the enrollment number that the school faxed or e-mailed to the District. For the first time in 2007, the number used by the District was the number taken from TERMS summary enrollment screen that included no-shows at Independence. The District also relied on that data for its Full Time Equivalent (FTE) survey and report to the State Department of Education (DOE). The FTE count is used to determine per pupil funding by the State. The actual number of students at Independence on September 7, 2007, was 1188 but the number taken from the TERMS database and reported was 1214, a twenty-six student discrepancy that was later, after an audit, reduced to twenty-four. In October 2007, Dr. Johnson falsely verified the accuracy of the FTE survey that was, subsequent to the audit, determined to be an over-count of 23 students. Dr. Johnson testified that she verified the accuracy of the count relying on the work of Dr. Carden, Ms. Jones, Exceptional Student Education Coordinator Carol Lee, and ESOL Coordinator Ann Costillo. She denied attempting to fraudulently inflate the number to gain or maintain resources allocated by the District, but she knew there was a difference in the numbers based on a September report from Dr. Carden. She also knew that, if the teachers followed her instructions regarding how to count students, the "actual" number of 1214 from TERMS, written in by Dr. Carden, had to be incorrect. TERMS data also was uploaded to another program called Grade-Quick. When it was time to give grades at the end of nine weeks, Ms. Jones no longer had the ability to alter the rosters and teachers were required to give a grade to each student on their roster. David Shore was the Grade-Quick technical support person at Independence. At the suggestion of Dr. Johnson, he sought advice from the District's technical support person, Bruce Roland, who told him to have teachers give each no-show student a grade of "F" to avoid an error code. The uploaded grades for students who did not attend Independence, according to Mr. Roland, would be deleted from the District's mainframe. Fearing other consequences of giving "Fs," including the possibility of generating letters to parents whose children did not attend Independence, and doubting Mr. Shore's advice because he was relatively new in his position, some teachers refused to give "Fs" to no-shows. After discussions with Dr. Johnson, Mr. Shore instructed teachers to give a grade of "C" instead and to be sure also to give a conduct grade. One teacher apparently found a way to give a conduct grade, but no letter grade, to students who were not enrolled in her class and to somehow avoid a computer error code. Some time during the fall semester, anonymous complaints concerning the enrollment at Independence were made to the State Auditor General's Office, who referred the matter to an auditor in the District's office. In December 2007, the audit confirmed that the count at Independence was incorrect largely because no-shows and withdrawals were not withdrawn timely from the computer in TERMS before the District's initial count on August 27, 2007; before the District's eleven-day count on September 7, 2007; nor before Dr. Johnson twice verified the accuracy of the FTE count in October 2007. Dr. Johnson made no effort to make corrections, after she admittedly was aware of the errors in October, November, and December. Dr. Johnson blamed teachers who were unprofessional, racist, and disgruntled over her more strict adherence to the attendance rules for teacher planning and professional development days, and over proposed spending of A-plus money. She testified that they deliberately failed to bubble no-shows as absentees. That assertion contradicts the testimony of her witness that the proper procedure was followed by teachers who drew lines through the names of no-shows rather than bubbling them as absent. It also contradicts the instructions she gave in a memorandum to teachers, on October 5, 2007, telling them to write codes next to students' names on their rosters, NS for no- show, WD for withdrawn - If a student was present at least one day..., T for transfer, and A for add. Her memorandum instructs teachers to give the information to Ms. Jones on October 11, 2007. Ms. Jones said she did look at rosters for FTE reporting and she did make corrections. She too says her count was accurate at the time unless teachers withheld information. The teachers' rosters were maintained and, from a review of the class rosters, the auditor concluded that the error was made in not correcting TERMS to comply with teachers' reports. Dr. Johnson also blamed her supervisor, Marisol Ferrer, for sending a less experienced manager, Joe Patton, to attend a meeting, on October 11, 2007, with her of the Employee Building Council, a group that included some teachers who were antagonistic towards Dr. Johnson. It is true that only later did Mr. Patton recall that, after the meeting and after Dr. Johnson left, some of teachers told him there were problems with the student count at Independence. At the time, however, Mr. Patton did not tell Ms. Ferrer or Dr. Johnson about the comments. Dr. Johnson testified that, had she been told after that meeting on October 11th about the problems, she could have corrected the numbers before she submitted her verification of accuracy. She did know that Dr. Carden showed her two sets of numbers on September 7, 2007. Although she testified that she believed the fluctuations were normal because students come and go during the day for doctor's appointments or for other reasons, Dr. Johnson took no further steps to determine if that was in fact the cause of the discrepancy. After Dr. Johnson and Dr. Carden instructed Ms. Jones to begin making withdrawals after the October FTE report, some of the withdrawals were backdated showing the no-show students' withdrawal dates as the first day of school, August 22, 2007. The District submitted corrections to DOE before the deadline for incurring penalties, ultimately reducing the FTE count at Independence by 23 students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order suspending Respondent for twenty days without pay. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 16th day of April, 2009. COPIES FURNISHED: Frederick W. Ford, Esquire 2801 PGA Boulevard, Suite 110 Palm Beach Gardens, Florida 33410 Sonia Elizabeth Hill-Howard, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, C-302 Post Office Box 19239 West Palm Beach, Florida 33416-9239 Dr. Arthur C. Johnson, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, C-302 West Palm Beach, Florida 33416-9239 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500
Findings Of Fact Respondent is a seventh grade student at Howard D. McMillan Junior High School. He received failing grades in all his first semester courses and regularly fails to accomplish his homework assignments. He has an absentee rate (unexcused) approaching 50 percent and is frequently late to those classes he does attend. Petitioner has attempted various counseling and disciplinary techniques without success. Although there have been some communication problems between school officials and Respondent's parents, they were aware of his poor grades and frequent absences.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Ybrahim Gonzalez, Jr., to its opportunity school. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Mr. Ybrahim Gonzalez, Sr. 6624 Southwest 148 Place Miami, Florida 33138 Madelyn P. Schere, Esquire Assistant Board Attorney 1410 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Carter holds Florida teaching certificate number 383679, graduate, rank III, valid through June 30, 1978, covering the area of music education, and at all times pertinent hereto was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a Band teacher. During the summer school session of 1978, at Matthew Gilbert, Carter was assigned as teacher for the Band class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 15 band students be enrolled and in attendance. In previous summers, band was an enrichment program which received no FTE money and did not require attendance records. However, during summer school of 1978, these requirements were changed and it was necessary to maintain a register of attendance of the Band class for FTE auditing purposes. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Carter prepared a student attendance register for the summer school of 1978 band class beginning June 16, 1978, and ending July 28, 1978. That register reflects 18 enrolled students in the course. Carter also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 30, 1978, and shows 19 students enrolled in Band. The second is dated July 10, through July 14, 1978, and reflects 18 full-time students and 1 half-time student enrolled in Band. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Carter. Deidre Sampson was reported as having been present for thirty (30) days between June 16, 1978, and July 28, 1978. Ms. Sampson also received a grade of "C" in the course. While Ms. Sampson was enrolled in the course, she attended no more than two or three days. Deborah Grant Lewis enrolled for the course and attended it for a period of three weeks and then lost interest and withdrew from the course. She received a "B" for the course and the attendance register reflects that she was present for twenty-nine (29) days with one day absent. Lloyd Gillespie neither enrolled in the course nor ever attended the course, yet he received a grade of "C". The attendance register reflects that Lloyd Gillespie was present for twenty-nine (29) days with one day absent. Ricky King enrolled in the course and attended for two or three weeks and then dropped out. The attendance register reflects that he was present twenty-seven (27) days with three days absent. LeVonne Sinclair enrolled in the class and attended through July 3, 1978, at which time she dropped out because of other employment responsibilities. While Ms. Sinclair did not receive a grade, her attendance register reflects twenty-seven (27) days in attendance with three days absent. Patricia Willis enrolled in the band course but never attended any classes. Nonetheless, Ms. Willis received a grade of "C" in the course and the attendance register reflects she attended twenty-six (26) out of the thirty days. Laura Redden enrolled in the Band course but never attended. She did not receive a grade but the attendance register reflects thirty days attendance with no absences. Vanessa McBride never enrolled in or attended the Band class but shows on the attendance register as having attended twenty-seven days with three days absent and receiving a grade of "C". It was the responsibility of Carter to prepare the student attendance registers and grade reporting forms for his class. The evidence establishes that Carter's signature appears on those forms which reflect the inaccurate attendance data and the award of undeserved grades. Mr. James E. Thompson, who is principal of Matthew school where Carter teaches, is willing to accept Carter in the future as one of his teachers because of Carter's overall abilities. Carter's efficiency ratings reflect that he is, otherwise, an effective teacher. The evidence establishes that Carter signed his name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the Band class, the class would have been cancelled and Carter would not have received remuneration for services as a Band instructor during that summer session of school. The evidence does not establish Carter's motivation as being that of protecting his income or insuring that the course was made available to those students who did attend.
The Issue The issues are whether Respondent is guilty of the alleged misconduct and, if so, whether such misconduct constitutes just cause for Respondent's termination, pursuant to section 1012.33(6)(a), Florida Statutes.
Findings Of Fact Introduction Respondent has been teaching for 30 years. At all material times, she has held a professional service contract, pursuant to section 1012.33, Florida Statutes. For the past 13 years, Respondent has taught at Northport K-8 School. She taught at this school until she was suspended without pay, pending termination, for the incidents of March 20, 2013, which are the subject of this case. During second period on March 20, 2013, Respondent was teaching a seventh-grade class. One of the students, R. W., misbehaved. Respondent cautioned him to sit down and be quiet. Instead of doing so, R. W. asked her, "How do you know that I'm the only one talking?" Respondent again instructed him to be quiet, to which the student replied, "I wish I could cuss a teacher out right now." Respondent did not reply. Several nearby students heard this exchange and nothing more of significance. After the bell rang, R. W. proceeded to his next class, which was taught by Sandra Tyndale-Harvey, whose classroom is in the same hallway as Respondent's classroom. During the three-or four-minute interval between second and third periods, Respondent visited another teacher, Kalyn Nova, whose classroom is between the classrooms of Respondent and Ms. Tyndale-Harvey. "Inappropriate Language" and Three Alleged Failures to Act Respondent told Ms. Nova about the incident involving R. W. during the previous period. Although she was speaking in a whisper, she was upset and was overheard by D. S., an eighth-grade student in Ms. Nova's third-period class. According to D. S., he overheard Respondent tell Ms. Nova that R. W. had said to her: "If you don't shut the 'F' up, I'm going to beat the shit out of you," or words very close to that effect, including the abbreviated swear word, the unabbreviated swear word, and the threat of violence. Ms. Nova and Respondent recalled the statement differently from D. S., but similar to each other. Ms. Nova testified that Respondent stated that R. W. had said, "If you don't stop talking to me, I'm going to beat the shit out of you." Respondent testified that R. W. had said, "If you say my name one more time, I'm going to slap the shit out of you," implying that this was what Respondent told Ms. Nova that R. W. had said. The differences in language among all three statements are immaterial. All three versions capture a threat to physically beat Respondent and a hair-trigger precondition to the beating: failing to stop speaking or saying R. W.'s name one more time. All three versions also use the word, "shit." Respondent's use of this vulgarity was not inappropriate for three reasons. First, Respondent was merely recounting what she understood that R. W. had said to her. Based on this record, Respondent was wrong; R. W. never said anything like this to her. But Respondent is not charged with fabricating this statement. Although R. W. did not say it, Petitioner has failed to prove that Respondent intentionally misquoted the statement, such that her use of "shit" in Ms. Nova's classroom might have been inappropriate. It is at least as likely that Respondent misunderstood R. W. to have threatened Respondent using the word, "shit." Second, Respondent was visibly upset when she recounted what she had thought R. W. had said to her. And third, despite the fact that she was upset, Respondent took a reasonable precaution--i.e., whispering--to avoid being overheard by other students, even though she was unsuccessful in this effort. Perhaps because she was upset, Respondent's speech was loud enough for a nearby student to overhear it. After recounting R. W.'s statement to Ms. Nova, Respondent walked over to D. S. and M. B., who were seated next to D. S. D. S. knew Respondent because he had taken a class from her the previous school year. Respondent asked D. S. if he would talk to R. W. because he and R. W. were friends and see what was going on with him. The incident during second period was not the sole reason that Respondent might have wondered what was going on with R. W., whose behavior and academic performance had been deteriorating recently. By this time, the bell had rung, and Respondent was walking toward the classroom door to return to her classroom. D. S. and M. B. asked Ms. Nova if they could go to the restroom. Ms. Nova said that they could, so D. S. and M. B. exited the classroom directly behind Respondent, who held open the classroom door for them. Hallway camcorders recorded much of what followed. The camcorders of main interest are identified in the video as Cameras 5 and 6. Located in close proximity to each other, these cameras display opposite ends of the same hallway. Thus, a person walking toward one camera will eventually walk off the bottom of the frame, only to appear at the bottom of the frame of the other camera. A small portion of the hallway, directly beneath both cameras, is not covered by either camera, so a person would not instantly appear in the frame of the other camera as soon as she left the frame of the first camera. The video is timestamped to thousandths of a second, and, at least at the level of seconds, the times for the two cameras are closely synchronized. If the cameras are out of sync at all, it is by no more than a couple of seconds. The video from Camera 6 reveals that Respondent held open the door for D. S., who passed through the door immediately ahead of Respondent. Respondent released the door, but, before it had swung closed, M. B. passed through the door a few steps behind D. S. Both boys walked in the direction of Ms. Tyndale-Harvey's classroom. Rather than proceed in the opposite direction, toward her occupied classroom, Respondent stopped in the middle of the hallway and then followed the two boys for about six seconds, as they approached and stopped at the door of Ms. Tyndale-Harvey's classroom. Both boys looked directly at Respondent, who, for two to three seconds, might have talked to the boys, but it is impossible to know for sure because her back was to the camera. Respondent suggests that she counseled the boys not to run in the hallway, but clearly they were not running. Also, considering that third period had already begun, it is unlikely that, even if two eighth-grade boys were running down the hall, Respondent would so diligently supervise them, even to the extent of following them down the hall for six seconds in the opposite direction of her classroom, and completely ignore the needs of the classroom of her students awaiting her arrival. It appears, then, that Respondent said something to the boys, and it had nothing to do with not running in the hallway. Just before the boys entered Ms. Tyndale-Harvey's classroom, Respondent turned around and started to walk up the hall toward her classroom. Seven seconds after entering Ms. Tyndale-Harvey's classroom, D. S. and M. B. reentered the hallway with R. W. By this time, Respondent was out of range of Camera 6, but she was within range of Camera 5. The video from Camera 5 reveals that Respondent did not immediately enter her classroom. Instead, for about ten seconds, Respondent stared down the hall in the direction of Ms. Tyndale- Harvey's classroom. Based on the timestamps on the two videos, Respondent saw D. S. and M. B. leave the classroom with R. W., and she saw the boys walk R. W. across the hall, where one of the eighth-grade boys opened the door of another classroom, which was occupied at the time. At this point, Respondent entered her classroom, so she did not see what followed in the hallway. The circumstances under which R. W. left Ms. Tyndale- Harvey's classroom are difficult to establish. D. S. testified that he asked to talk to R. W., but he did not say whom he asked. R. W. testified that two boys--D. S. and A. S.--entered Ms. Tyndale-Harvey's classroom and asked the teacher if they could take R. W. because Respondent needed to talk to him. An especially reliable student witness, S. W., testified that she heard the boys tell R. W. that Respondent needed him, and he thus left the classroom with them. Ms. Tyndale-Harvey testified that, by the time that she took attendance toward the beginning of third period, R. W. was not in her classroom. When she asked if anyone knew where he was, several of the students said that he was talking to Respondent. The hallway was clear when the boys and R. W. left Ms. Tyndale-Harvey's classroom, so third period had started, but it is possible that the teacher had not yet taken attendance by the time that R. W. had left. Given the statements of the other students and presence of D. S. and M. B. in the classroom for a total of only seven seconds, it is more likely than not that they persuaded R. W. to join them in the hall without informing or asking Ms. Tyndale-Harvey. The video from Camera 6 reveals that no one left the second classroom to join D. S., M. B., and R. W. in the hall. The three boys went down the hall, still within range of Camera 6, but no longer being observed by Respondent. D. S. or M. B. ducked into a third classroom, from which, in short order, four students joined them in the hall. Up to this point, R. W. was being escorted, but did not appear restrained. While standing in the hall at the door of the third classroom, R. W. stood by himself, only two or three steps from his classroom, but making no attempt to reenter his classroom. However, almost immediately after the four boys joined D. W. and M. B. in the hallway, several of the boys physically confronted R. W., who tried to escape up the hall. One of the boys grabbed him after only a couple of steps and R. W. stumbled. Now surrounded by five or six boys, R. W. kneeled on the floor as the boys grabbed at and pushed him. One of the boys removed his cloth belt and swatted at R. W.'s lower torso seven times, as three of the other boys held R. W. against the wall. The evidentiary record does not establish that R. W. suffered any physical injuries as a result of this incident, whose intensity is impossible to describe. The boys are relatively far from Camera 6, and any views of R. W. are intermittent due to the movement of him and the other boys during the incident. Clearly, though, whatever level of intensity that the incident attained, tapered off considerably after about 30 seconds. About one minute after the start of the incident, the media specialist, who has worked at the school in her present position and as a teacher for 28 years, entered the hallway and walked right by the boys. She gave them a look, but noted nothing out of order--besides, one hopes, the presence of six students loitering in the hall in the middle of third period. The media specialist continued walking up the hall. The students followed her five or six steps behind. At this point, two students were holding R. W., possibly by his backpack, which had remained in place during the hallway incident. As these three boys approach Camera 6--and thus were clearly depicted right in front of the lens--the boys' grasp of R. W. is light, and R. W. is smiling. The other four boys are trailing the first three and are talking in pairs, paying no attention to R. W. Based on the foregoing, Petitioner proved that Respondent was aware that D. S. and M. B. left Ms. Nova's classroom and headed toward R. W.'s classroom, departed Ms. Tyndale-Harvey's classroom with R. W., and walked across the hall with R. W. and opened the door of another, occupied classroom. Petitioner also proved, of course, that Respondent never intervened with the boys during these actions. Petitioner proved that Respondent had just asked one of the boys to talk to R. W. before he left the classroom to visit Ms. Tyndale-Harvey's classroom. Even in a preponderance case, it is impossible to infer that Respondent knew or reasonably should have known that D. S.'s walking to and into Ms. Tyndale-Harvey's classroom meant that he was going to act on her request. But this is a reasonable inference as soon as D. S. emerged from the classroom with R. W., especially given the proximity in time between Respondent's request and D. S.'s action in retrieving R. W. from class. Seeing D. S. and M. B. walking R. W. across the hall and open the door of another occupied classroom establishes the inference that Respondent knew or reasonably should have known that the boys were not merely going to talk to R. W. about what might be wrong. D. S. and M. B., as well as all of the other eighth-grade boys, were much larger than R. W., so D. S. and M. B. did not need allies in order to talk to R. W. safely. More likely, the presence of allies was at least for intimidation, or worse. The Petition alleges a duty to act based on Respondent's having just heard one or both of the students ask if they could confront R. W. The evidentiary record does not establish such a request. However, Petitioner's opening statement predicates the duty to act on Respondent's instruction to one of the boys to talk to R. W. (Tr. 15) As discussed in the Conclusions of Law, the point here is that Respondent has established a specific basis for notice and a heightened duty to act on Respondent's part, and basis alleged in the Petition--D. S.'s asking Respondent if he may confront R. W.--is close in time and content to the proved basis-- asking D. S. to talk to R. W. Interlude The media specialist who had passed the boys in the hall was headed to Respondent's classroom to schedule an author visit. The media specialist entered the classroom and, four or five seconds later, so did the six students and R. W. The media specialist remained in Respondent's classroom for a little over one minute. About 20 seconds after she left the room, so did the six students and R. W. The boys urged R. W. to apologize to Respondent. He did so once, but laughingly. Urged by the boys to apologize again, R. W. did so, the second time more sincerely. Respondent thanked R. W. for the apology, but said that she was still going to have to write a referral. Respondent said nothing else to R. W. The boys escorted R. W. down the hall, past his classroom, and into an adjoining hall, where they walked him into a restroom. From the video, it appears that one of the boys locked the door behind them. The boys remained in the restroom for less than one minute. R. W. then walked out of the restroom. About 15 minutes after the boys had left Respondent's classroom, the Dean's clerk went by the classroom and informed Respondent that R. W. had told her that he had been "jumped in the boys' bathroom" by six boys. The clerk added that R. W. had told her that the boys had attacked him on Respondent's instruction. The clerk told Respondent that she was taking R. W. to the front office so he could tell administrators what had happened. Three Alleged Instances of Student Witness Tampering Within three minutes after the clerk and Respondent parted, the six eighth-grade students involved in the hallway incident (plus another student who does not appear to have been involved) entered Respondent's classroom. They met with Respondent in a separate planning room that was in the back of the classroom. Respondent testified that she asked what had happened, and the boys told her about the incident in the hall--with one boy saying that he had removed his belt, but he had hit the floor with it. Respondent testified that they would have to tell the Dean what they had done. About five minutes after entering Respondent's classroom, the six students left it. On this record, it is impossible to find that that Respondent said anything more to the boys. It is thus impossible to find that Respondent tried to influence or interfere with these students in terms of what they would tell school investigators. The second alleged instance of interfering with student witnesses involves Respondent's third-period class, which witnessed the eighth-grade students' production of R. W. before Respondent. One student from this class, D. D., testified that, after Respondent had finished meeting with the boys in the planning room, she asked the class what would R. W. have looked like if he had been beaten up, and the class responded with suggestions. Although this student testified that R. W. did not look as if he had been beaten up, he did not testify that Respondent ever followed up with the obvious question of whether W. looked as if he had been beaten up to the students. Another student from this class, M. C., testified, but was not asked what Respondent had said to the class after talking to the boys in the planning room. The only other student from this class called as a witness, V. S., was also not asked about any comments that Respondent made to the class after talking to the boys in the planning room. It appears that, at hearing, Petitioner decided not to press the second alleged instance of interference with student witnesses. Any implication by Respondent that R. W. did not look beaten up while he was in her classroom was no more an attempt to influence the students than a statement asking them to remember when R. W. was in the classroom: both statements were true. Petitioner thus failed to prove any attempt by Respondent to influence student witnesses on these first two alleged occasions. However, at lunch on the day of the incident, Respondent visited some of her second-period students in the cafeteria. Five students concerning this incident were called as witnesses: W., C. T., K. H., L. J., and J. R. All of them were in R. W.'s second- and third-period classes. S. W. was an especially impressive witness. She also appeared to be quite fond of Respondent. S. W. testified that Respondent approached her and some friends while they were eating and asked if R. W. had said that he had been hurt, and S. W. replied that he had not. Respondent also asked if S. W. or her friends had heard R. W. say during second period, "If she opens her mouth one more time, I'm going to beat the shit out of her." Neither S. W. nor her friends could recall that; S. W. recalled that R. W. had said only, "Sometimes I wish I could curse out a teacher." C. T. was at lunch when Respondent approached him and asked if he and his friends remembered when R. W. had said, "If this bitch won't shut up, I'm going to knock her on the floor." Neither C. T. nor his friends recalled this statement. C. T. testified that R. W. said in second period, "I wish I could cuss out a teacher right now." K. H. testified that Respondent approached him at lunch and asked if he had heard R. W. say that "he wished he could knock that bitch the fuck out." K. H. replied that he not heard any such statement. K. H. testified that R. W. said that he had wished he could cuss out teachers, or words to that effect. L. J. testified that he did not recall anything, except that Respondent approached him during lunch and asked if R. W. had said "anything about he was going to beat the shit out of me." J. R. testified only that Respondent approached him at lunch and asked if he recalled that R. W. had used a curse word at her in class. Petitioner has proved that Respondent asked leading questions to each of these five students. Although the leading questions framed what Respondent apparently had understood R. W. to have said, not a single witness recalled any such statement from R. W. Under the circumstances, including the fact that Respondent had no role in conducting an investigation of her acts and omissions, the leading questions constituted improper influencing of student witnesses. Despite what Respondent understood R. W. to have said, the leading questions suggested to these student witnesses that R. W.'s statement was physically threatening, when it was not, and used one or more swear words, when it did not.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the above-cited violations of the Principles of Professional Conduct and School Board policy and terminating her employment. DONE AND ENTERED this 12th day of February, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2014. COPIES FURNISHED: Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC Suite 103 1300 Corporate Center Way Wellington, Florida 33414-8594 Leslie Jennings Beuttell, Esquire Richeson and Coke, P.A. Post Office Box 4048 Fort Pierce, Florida 34948 Dena Foman, Esquire McLaughlin and Stern, LLP Suite 1530 525 Okeechobee Boulevard West Palm Beach, Florida 33401 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael Lannon, Superintendent St. Lucie County School Board 4204 Okeechobee Road Ft. Pierce, Florida 34947-5414
