Findings Of Fact Introduction At all times relevant hereto, respondent, Michael A. Graham, was a middle school teacher at West Miami Junior High School (WMJHS) in Miami, Florida. He is under a continuing contract as a teacher for petitioner, School Board of Dade County (Board). He has been an employee in the school system since 1975 and a full-time teacher since 1981. Graham holds bachelor and master degrees from the University of Miami and is currently taking course work at Florida International University towards a second master's degree. On January 12, 1988 the Board voted to suspend Graham without pay for thirty days effective January 20, 1988 for "just cause and misconduct in office." On July 1, 1988 the Board issued a Notice of Charges containing six counts of alleged misconduct. 1/ The charging document alleged that respondent failed to disclose on his job application dated September 24, 1981 that he had been previously arrested on numerous occasions, (b) intentionally exposed a student, I.M., to unnecessary embarrassment, (c) intentionally exposed a student, V.E., to unnecessary embarrassment or disparagement, (d) intentionally committed a battery on U.C., a student, (e) continually and intentionally refused to discontinue uttering profane and/or vulgar language in his classroom during school years 1985-86, 1986-87 and 1987-88, and (f) continually and intentionally refused to discontinue excessive tardiness and excessive absences during the same school years. These charges will be taken up separately below. Filing A False Application (Counts I and II) During the course of his employment with the Board, Graham has filled out various applications and other informational forms. Relevant to this proceeding is an application for an instructional position filed with the Board on September 24, 1981. The application asked the following question: Have you ever been convicted of anything other than minor traffic violations? Graham responded in the negative. Sometime after Graham filed the above application, the Board had an occasion to run a background check on him. Among other things, the Board uncovered the fact that Graham had been arrested on February 29, 1976 for resisting an officer without violence to his person and disorderly conduct, both misdemeanors. The first charge was nolle prossed while Graham was found guilty of the second charge and received a suspended sentence. Certified copies of these records have been introduced into evidence as petitioner's exhibit 10. Although petitioner did not introduce into evidence certified copies of other arrests, there was testimony, without objection, that Graham had been arrested for the following charges: 12/17/71 - public drunkenness 6/05/74 - theft 5/14/76 - worthless checks 4/08/77 - "warrant arrests" 5/18/77 - worthless checks 9/11/79 - worthless checks 9/17/81 - aggravated battery 11/05/82 - worthless checks 2/21/86 - worthless checks During a conference with a school administrator on August 21, 1987, Graham acknowledged that, with the exception of the May 14, 1976 arrest which he did not remember, and the April 8, 1977 matter which he stated involved a voluntary return on his part to the State of Indiana, all other arrests occurred. However, there is no evidence that Graham was convicted of any of these charges, and his testimony that all charges were later dropped was not contradicted. At hearing Graham explained that he thought the question concerning prior arrests on the employment application meant whether his civil rights had ever been taken away. Since they had not, he stated he believed his negative answer was appropriate. Exposing Students to Embarrassment or Disparagement (Counts III and IV) It is alleged that in school year 1986-87, respondent exposed I.M., a seventh grade female student, to "unnecessary embarrassment or disparagement." The student did not appear at hearing but gave post-hearing deposition testimony. As clarified at hearing, this charge stems from alleged off-color remarks about I.M.'s clothing made by Graham to I.M. in front of the class. I.M. was a student in Graham's history class in school year 1986-87. While in class on May 11, 1987, I.M. left her desk to go to the restroom. She was wearing tight fitting pants. When she returned, Graham remarked in a loud voice, and in front of the class, that her pants were so tight he "could see her crack and count the hairs." Graham also made her perform a "fabric test" to ascertain whether she could pinch the cloth on the pants without pinching her skin. If I.M. pinched both skin and cloth, this confirmed that the pants were too tight. After Graham made his comments and required I.M. to take the "fabric test," I.M. became embarrassed, felt "cheap," began crying and left the room. She reported the incident to her counselor and prepared a written statement which is attached to her deposition. Also, she described the incident to a school investigator the same day, giving essentially the same version of events described above. This account is deemed to be more accurate and credible than a slightly different version of events given by I.M. by deposition some fifteen months later. Graham recalled the incident differently. According to his recollection, when I.M. returned from the bathroom to the classroom, he told her she had "inappropriate clothing," and if she disputed this, she would be given a hall pass to visit the principal. If the principal approved the pants, she could wear them to school. Otherwise, Graham told her not to wear them to his class in the future. Graham contended also that he said "Your clothing is too tight around the hips and crotch" and denied using the words "hairs" or "crack." He conceded he may have asked her to perform a "fabric test." However, this version of events is not deemed to be credible and is hereby discredited. Student V.E. is a fundamentalist Christian who was in Graham's American History class for the first three days of school year 1987-88. On the first or second day of class Graham gave a class assignment requiring the students to use the Bible as a historical reference but to explain the story without the (i ideas of miracles and deity. V.E. understood this to mean that she was to "take all miracles" out of the story and to "not have God in it." During class that day, V.E. asked a question about a Bible parable being discussed by Graham and, after she gave the biblical version of what happened, Graham asked her if she believed in magic. V.E. felt "bad" and "intimidated" by Graham's question. When she went home that evening, V.E. told her mother about the class assignment. The mother was upset and prepared a letter for Graham and the assistant principal questioning the subject matter of the assignment. V.E. was told by her mother to hand carry a copy of the letter to Graham the next day. Before she could do this, the assistant principal told Graham that V.E.`s mother had sent a letter. When she entered the classroom the next day, V.E. was asked by Graham if she had a letter for him. After being handed the letter, Graham asked V.E. why she told her mother about the assignment and added "I'm pissed." This episode took place in front of the entire classroom. This caused V.E. to be very "upset" and "embarrassed." She immediately transferred out of Graham's class. Graham countered that there was no "homework assignment" per se and that he was merely seeking to obtain "critical thinking" from his students. According to Graham, his discussion was consistent with the approved curriculum and was intended to have the students reconcile biblical stories with other theories of evolution of men. Graham believed that V.E. had misunderstood the discussion as being an attack on religion when in fact it was not. He added that, of all the students, only V.E. reached that erroneous conclusion. He conceded that he "may have" used the words "I'm pissed" but contended that he was justified in questioning her in front of the entire classroom because students frequently hurried off to other classes once the end-of-period bell rang. Battering Urbano (Count IV) In school year 1986-87, Urbano was a fifteen year old male student. He has since departed the state. It is alleged that Graham committed battery on Urbano. According to Graham, who gave the only eyewitness account of the entire fray, Urbano was still a student when the incident occurred but was in the process of withdrawing from school and moving to California. Urbano had been in several classes taught by Graham and had a history of disruptive conduct. Urbano returned to the campus one day to speak with a girlfriend who was in Graham's classroom. Urbano entered the classroom during a change in classes. Not wanting a confrontation, Graham requested the girl to ask Urbano to leave. When she did this, Urbano began cursing Graham and slowly backed into the hallway outside of Graham's classroom. As Graham attempted to close his door, Urbano blocked the door and pushed Graham who responded by pushing Urbano out of the doorway. Urbano then threw a four pound textbook into Graham's chest. After Graham asked Urbano to follow him to the principal's office, Urbano drew back his fist to strike Graham. At that point, and in self-defense, Graham struck Urbano with a blow to the side of his face. In retaliation, Urbano threw a karate kick into Graham's left knee. Graham followed by administering a second blow to Urbano's face. A female physical education teacher then approached the melee, grabbed Urbano on the shoulder and escorted him to the principal's office. According to Graham, Urbano was immediately suspended from school. This was not contradicted. There is no evidence that Graham was criminally charged with battery or disciplined by the school for the incident. Using Profane and Vulgar Language in Class (Count V) It is charged that in school years 1985-86, 1986-87 and 1987-88 Graham was given direct orders to discontinue "uttering profane and/or vulgar language while in the performance of assigned duties as a classroom teacher," and that respondent "continually and intentionally refused to discontinue" doing so. The allegations stem from disciplinary action taken in the fall of 1985. On October 17, 1985 respondent participated in a conference for the record with WMJHS principal Kavenaugh for using "very salty language" in the classroom. Neither Kavenaugh or Graham could recall what words were actually used by Graham. As noted in finding of fact 11, Graham used the words "I'm pissed" while talking to student V.E. in September, 1987. About the same time, he recited a "parable" in V.E.'s class which went generally as follows: A large flock of birds immigrated south one winter but one bird's wings froze, and it fell to the ground. A horse came along and deposited cow shit on the bird. Although the cow shit did not smell good, it kept the bird warm. A cat then came upon the fallen bird, wiped the cow shit off of its wings and ate it. The moral: not everyone who shits on you is your enemy, and not everyone who does you a favor is your friend. Graham acknowledged reciting the above story in class but claimed he used the word "chip" instead of "shit." However, V.E. stated she heard the word "shit," and this version of the events is accepted as being more credible. Principal Kavenaugh gave some vague testimony about other incidents of vulgarity but could not give specifics as to when this occurred or what was said. Other than the order to quit using "very salty language" in October 1985, there is no evidence of any other orders given to Graham by a principal or administrative officer directing him to refrain from using vulgarity or profanity. Excessive Tardiness and Absences (Count VI) The notice of charges alleges that in school years 1985-86, 1986-87 and 1987-88 Graham was "given direct orders to discontinue his excessive tardiness and/or excessive absences," and that he "continually and intentionally refused to discontinue" doing so. Assistant principal Sotolongo authored memoranda to respondent on May 27, 1986 and March 25, 1987 regarding class absences. The first concerned respondent sitting in the teacher's lounge ten minutes after class had started on May 23, 1986. For this infraction, Graham received a reprimand. The assistant principal stated that Graham was "periodically" absent from class but could not recall the number of times this occurred or the dates of such absences. The second memorandum was prompted by Graham being absent from school during the afternoon of March 24, 1987. Graham's explanation of having to see a doctor for a workers' compensation injury was not accepted as being satisfactory. Principal Kavenaugh authored a memorandum on May 6, 1986 concerning punctual attendance by Graham. The memorandum was prepared after Graham had been late to school at least ten times between January 10, 1986 and May 5, 1986. Respondent promised to make an "extra effort" to comply with attendance requirements. There is no evidence that, after the May 6, 1986 memorandum, Graham was late for school or that he refused to comply with attendance requirements. Miscellaneous Graham was told by principal Kavenaugh on one occasion "to be courteous and free of sarcasm" while teaching his students. This order was memorialized in a memorandum dated June 19, 1987. There is no evidence he disobeyed this order. On November 10, 1987 Graham was placed on prescription for one item of performance. This meant he had to correct a deficiency in professional performance and responsibilities. The prescription was prompted primarily by the V.E. incident and the parable given in the history class, both occurring in September, 1987. There is no evidence that Graham did not fulfill the terms of the prescription. According to Dr. D. Patrick Gray, who was accepted as an expert in professional ethics, performance appraisal and professional or personnel management, Graham violated the teachers' code of ethics by intentionally exposing a student to unnecessary embarrassment or disparagement, unreasonably denying a student access to a diverse point of view, and failing to keep the confidence of personally identifiable information concerning a student. He opined further that, given respondent's conduct as described in the Notice of Charges, Graham's effectiveness as a teacher had been seriously impaired.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of those charges in Counts I and II and a portion of Count III. All others should be dismissed. Respondent should also be suspended without pay for thirty days as proposed by the agency in its suspension notice effective January 20, 1988. DONE AND ORDERED this 19th day of September, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 19th day of September, 1988.
The Issue Did Respondent Siebelts commit the offenses set forth in the petition for dismissal (Case No. 88-4697) and the amended administrative complaint (Case No. 89-0189) filed against her? If so, what discipline should she receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Karen Siebelts has held a State of Florida teaching certificate since 1976. Her current certificate was issued May 1, 1986, and covers the areas of elementary education, elementary and secondary reading, and secondary social studies and psychology. For the past thirteen years Siebelts has been employed by the School Board of Broward County as a classroom teacher. During the early stages of her employment, she taught at Melrose Park Middle School. She then moved to Perry Middle School, where she taught a class of emotionally disturbed sixth graders. Her performance at these two schools was rated as acceptable. In November, 1979, Siebelts was assigned to teach at Charles Drew Elementary School, a neighborhood school located in the predominantly black Collier city area of Pompano Beach. The charges lodged against Siebelts are based on specific acts she allegedly committed while she was a Chapter I Reading/Math and Computer teacher at Charles Drew providing remedial instruction to students whose test scores reflected a need for such special assistance. On January 22, 1985, while seated with her fifth grade students at a table during a reading lesson, Siebelts inadvertently kicked one of the students in the shin. The incident occurred as Siebelts was moving her legs to a more comfortable position. The force involved was minimal and produced no visible injuries. The student immediately demanded an apology from Siebelts. Siebelts responded to this demand with silence. She neither apologized nor said anything to suggest that she had intended to kick the student. Earlier in the lesson, Siebelts had directed the student to stop talking. The student had defied the directive and continued to talk. It was not until approximately three minutes after the student's initial defiance of the directive, however, that the kicking incident occurred. Nonetheless, the student suspected that Siebelts had intentionally kicked her because of her failure to obey Siebelts' order that she not talk. When the student came home from school that day she told her mother that Siebelts had intentionally kicked her during class. The mother immediately reported the incident to the principal of the school, Hubert Lee. The matter was referred to the School Board's Internal Affairs Unit for investigation. The requested investigation was conducted. Following the completion of the investigation, a written report of the investigator's findings was submitted to the administration. No further action was taken regarding this incident until approximately three and a half years later when the instant petition for dismissal was issued. Siebelts was annoyed when she learned that the student and her mother had accused her of wrongdoing in connection with the January 22, 1985, kicking incident. On February 19, 1985, she expressed her annoyance in front of her fifth grade class and in their presence threatened to take legal action against those students and parents who had made libelous or slanderous statements about her or had otherwise verbally abused her. She told the students that they and their parents would be subpoenaed to court and if they did not appear they would be incarcerated. The principal of the school was informed of these remarks shortly after they were made, but it was not until the instant petition for dismissal was issued on August 22, 1988, that Siebelts was first formally charged with having made the remarks. Before coming to work on January 28 1986, Siebelts took a codeine pain medication that her physician had prescribed. When classes started that morning she was still under the influence of the medication. She was listless and drowsy. Her speech was slurred and she appeared incoherent at times. She also had difficulty maintaining her balance when she walked. Because Siebelts had been taking this medication "on and off" since 1979, she had been aware of these potential side effects of the medication when ingesting it on this particular occasion. A teacher's aide in Siebelts' classroom concerned about Siebelts' condition summoned the principal, Hubert Lee, to the classroom. When he arrived, Lee observed Siebelts seated at her desk. She was just staring and seemed "to be almost falling asleep." The students were out of control. They were laughing and making fun of Siebelts. After questioning Siebelts and receiving an answer that was not at all responsive to the question he had asked, Lee instructed Siebelts to come to his office. Siebelts complied, displaying an unsteady gait as she walked to Lee's office. In Lee's office, Siebelts insisted that she was fine, but conceded that she was "on" prescribed pain medication. Throughout their conversation, Siebelts continued to slur her words and it was difficult for Lee to understand her. Pursuant to Lee's request, Dr. Lorette David, Lee's immediate supervisor, and Nat Stokes, a School Board investigator, came to Lee's office to observe and assess Siebelts' condition. A determination was thereafter made that Siebelts was not capable of performing her instructional duties that day, which was an accurate assessment. She therefore was sent home for the day. Because of her impaired condition, rather than driving herself home, she was driven to her residence by Dr. David. Although she believed that she was not suffering from any impairment, Siebelts did not protest the decision to relieve her of her duties because she felt that any such protest would have fallen on deaf ears. Following this incident, Siebelts was issued a letter of reprimand by Lee. She also was referred to the School Board's Employee Assistance Program because it was felt that she might have a substance abuse problem. Siebelts agreed to participate in the program and received counselling. At no time subsequent to January 28, 1986, did Siebelts report to work under the influence of her pain medication or any other drug. During the 1987-1988 school year, Siebelts and two other Chapter I teachers, Rosa Moses and Mary Cooper, occupied space in Charles Drew's Chapter I reading and math laboratory. Their classrooms were located in the same large room and were separated by makeshift partitions. Siebelts is white. Moses and Cooper, as well as the aides who were assigned to the laboratory during that school year, are black. In October, 1987, Moses complained to Principal Lee that Siebelts was not teaching her students, but rather was constantly engaging in loud verbal confrontations with them that disrupted Moses' lessons. Lee had received similar complaints about Siebelts from others. He therefore asked Moses to advise him in writing of any future classroom misconduct on Siebelts' part. Siebelts continued to engage in conduct in her classroom which Moses deemed inappropriate and disruptive. On November 4, 1987, for the last five minutes of one of her classes, she loudly exchanged verbal barbs with her students. Her yelling made it difficult for Moses and Cooper to teach their lessons. On November 5, 1987, throughout an entire 45-minute class period, Siebelts was embroiled in a verbal battle with a student during which she made derogatory remarks about the student's size. She called the student "fat" and told her that she "shake[d] like jelly." The student, in turn, called Siebelts "fruity" and likened her to a "scarecrow." On that same day during a later class period, Siebelts took a student by the arm and, following a tussle with the student, placed him in his seat. Thereafter, she made belittling remarks to the other students in the class. She said that they were "stupid" and "belonged in a freak show." She also referred to them as "imbeciles." Siebelts further told her students that their "mothers eat dog food." On November 25, 1987, Siebelts commented to the students in one of her classes that they would be able to move around the classroom with greater ease if they were not so fat. As she had been asked to do, Moses provided Lee with a written account of these November, 1987, encounters between Siebelts and her students, but Lee did not take any immediate action to initiate disciplinary action against Siebelts. Although she did not so indicate in her report, Moses believed that the unflattering remarks that Siebelts had made to the students on these occasions constituted racial slurs inasmuch as all of the students to whom the remarks had been addressed were black and in addressing these remarks to the students as a group she had referred to them as "you people." Moses thought that "you people" had meant black people in general, whereas Siebelts had intended the phrase to refer to just the students in the classroom. At no time during any of these reported incidents did Siebelts make specific reference to the students' race, nor did she specifically attack black people in general. The target of her demeaning and insulting remarks were those of her students whose unruly and disrespectful behavior she was unable to control. Her efforts to maintain discipline and promote learning in the classroom had failed. She had become frustrated with the situation and verbally lashed out at her students. Unfortunately, these outbursts only served to further reduce her effectiveness as a teacher. On March 1, 1988, Siebelts was involved in an incident similar to the one which had occurred more than three years earlier on January 22, 1985. As on the prior occasion, Siebelts was sitting at a classroom table with her students. Her legs were crossed. When she repositioned her legs, her foot inadvertently came in contact with the top of the head of a student who was crawling under the table to retrieve a pencil the student had dropped. The student had been told by Siebelts not to go under the table but had disobeyed the instruction. She had been under the table for approximately a minute and a half before being struck by Siebelts foot. The blow to the student's head was a light one and produced only a slight bump. Nonetheless, after getting up from under the table, the student, a brash fourth grader who had had confrontations with Siebelts in the past, threatened to physically retaliate against Siebelts. Siebelts did not say anything to the student and the class ended without the student following through on her threat. Following this incident, Siebelts telephoned the student's mother at home to discuss the student's classroom behavior. The call was placed sometime before 9:00 p.m. The conversation between Siebelts and the mother soon degenerated into an argument. They terminated the discussion without settling their differences. Lee subsequently met with the mother. He suggested that a meeting with Siebelts at the school be arranged. The mother indicated to Lee that she would not attend such a meeting unless school security was present. She explained that she was so angry at Siebelts that she was afraid that she would lose her composure and physically attack Siebelts if they were in the same room together.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission issue a final order suspending Karen Siebelts' teaching certificate for two years and that the School Board of Broward County issue a final order suspending Siebelts until the reinstatement of her teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-4687 AND 89-0189 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Commisioner of Education's Proposed Findings of Fact Accepted and incorporated in substance in the Findings of Fact portion of this Recommended Order. Rejected as contrary to the greater weight of the evidence. Rejected as beyond the scope of the charges. Siebelts was not charged with having made threatening remarks the day after the January 22, 1985, kicking incident. These threats were allegedly made, according to the charging documents, on February 19, 1985. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Insofar as it asserts that Siebelts engaged in name-calling on dates other than those specfied in the petition for dismissal and amended administrative complaint otherwise, it is accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Furthermore, the witness whose testimony is recited in this proposed finding later clarified her testimony and conceded that Siebelts did not use the precise words quoted in this proposed finding. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as not supported by the greater weight of the evidence to the extent that it suggests that Siebelts made "racial comments" on the dates specified in the petition for dismissal and amended administrative complaint. Insofar as it states that such comments were made on other occasions, it is rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. According to the petition for dismissal and amended administrative complaint, Siebelts threatened her students with legal action on February 19, 1985. This proposed finding, however, relates to alleged threats of legal action made by Siebelts during the 1987-1988 school year. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as unnecessary. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as irrelevant and immaterial. Rejected as irrelevant and immaterial. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Siebelts' Proposed Findings of Fact First unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance. Second unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Rejected as irrelevant and immaterial; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and :incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; ninth sentence: Accepted and incorporated in substance. Third unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as unnecessary; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance. Fourth unnumbered paragraph: Rejected as more in the nature of a statement of opposing parties' position than a finding of fact; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as subordinate; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance. Fifth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as subordinate; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance; tenth sentence: Accepted and incorporated in substance; eleventh sentence: Accepted and incorporated in substance; twelfth sentence: Accepted and incorporated in substance. Sixth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: rejected as a summary of testimony rather than a finding of fact based on such testimony. Seventh unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony (The exculpatory testimony of Siebelts which is summarized in the first three sentences of this paragraph has not been credited because it is contrary to the more credible testimony of other witnesses) fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Eighth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as subordinate; fourth sentence: Accepted and incorporated in substance; fifth sentence: Rejected as subordinate; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as subordinate; ninth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Ninth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Tenth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Accepted and incorporated in substance; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Superintendent of School's Proposed Findings of Fact Accepted and incorporated in substance, except for the fourth sentence, which has been rejected as contrary to the greater weight of the evidence. Accepted and incorporated in substance except to the extent that it asserts that Siebelts "advised the students that they and their parents would be placed in jail because of the lies and the slander." The preponderance of the evidence reveals that she actually told them that they and their parents would be incarcerated if they did not appear in court when summoned. First sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as subordinate. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected as more in the nature of argument concerning relatively insignificant matters than findings of fact addressing necessary and vital issues. Accepted and incorporated in substance, except to the extent that it suggests that Siebelts had alcohol on her breath. Any such suggestion has been rejected because it is contrary to the testimony of Investigator Stokes. Stokes, who has been employed by the School Board as an investigator for the past 20 years, testified that he was standing one or two feet away from Siebelts and did not detect the odor of alcohol on her breath. In view of his experience regarding the investigation of these matters, his testimony has been credited. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. To the extent that this proposed finding states that Siebelts made inappropriate remarks regarding the students' clothing or other matters on dates other than those specified in the petition for dismissal and amended administrative complaint, it has been rejected as outside the scope of the charges. Insofar as it asserts that Siebelts made derogatory remarks about black people in general on the dates specified in these charging documents, it has been rejected as contrary to the greater weight of the evidence. To the extent that this proposed finding indicates that Siebelts otherwise insulted the students in her class on the dates specified in the charging documents, it has been accepted and incorporated in substance. Rejected as beyond the scope of the charges. The "disparaging remarks" which are the subject of this proposed finding were purportedly made during the 1984-1985 school year. The "disparaging remarks" referenced in the petition for dismissal and amended administrative complaint were allegedly made, according to these charging documents, during the 1987-1988 school year, more specifically, on November 4, 5, and 25, 1987. Rejected as beyond the scope of the charges. The "critical" remarks referred to in this proposed finding were allegedly made prior to the 1987-1988 school year. First sentence: Rejected as irrelevant and immaterial to the extent it references reactions to "disparaging" and "critical" remarks that were purportedly made prior to the 1987-1988 school year. Otherwise, it has been accepted and incorporated in substance; second sentence: Rejected as a summary of the testimony of Siebelts' former students and colleagues rather than a finding of fact based on such testimony. First sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance, except to the extent that it reflects that Moses actively monitored Siebelts classroom conduct "through December of 1987." The preponderance of the evidence establishes that such active monitoring actually ceased November 25, 1987; third sentence: Accepted and incorporated in substance, except to the extent it indicates that Noses heard Siebelts tell her students that they "were dirty and needed baths." This comment was purportedly overheard, not by Moses, but by Margaret Cameron, a teacher's aide who had left Charles Drew prior to the commencement of the 1987- 1988 school year; fourth and fifth sentences: Rejected as beyond the scope of the charges. These proposed findings are based on Cameron's testimony regarding offensive comments she had allegedly overheard while an aide in Siebelts' classroom. These pre-1987-1988 school year comments, however, are not mentioned in either the petition for dismissal or the amended administrative complaint. First sentence: As this proposed finding correctly points out, Siebelts' insulting comments only served to heighten the students' hostility and anger toward her. There is no persuasive competent substantial evidence, though, to support the further finding that these comments "resulted in several physical altercations between the students;" second sentence: Rejected inasmuch as there no persuasive competent substantial evidence that there was any "heated verbal exchange" on November 5, 1987, between Siebelts and the student which preceded their "altercation." The preponderance of the evidence establishes that the verbal battle with her students occurred immediately after this incident; third sentence: Rejected as contrary to the greater weight of the evidence. Although she may used physical force during her encounter with this student, it is unlikely that she actually "tossed" him into his seat. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected inasmuch as there is no persuasive competent substantial evidence to support a finding that Siebelts telephoned the student's mother as a result of the incident near the air-conditioner. The preponderance of the evidence does establish that Siebelts did telephone the mother on a subsequent occasion, but there is no indication that Siebelts threatened the mother or otherwise acted inappropriately during this telephone conversation. Although the mother asked to have security personnel present during a parent-teacher conference with Siebelts, the preponderance of the evidence reveals that this request was not the product of any threats that Siebelts had made against the mother. First sentence: Rejected as not supported by the greater weight of the evidence. Siebelts' testimony that the contact was unintentional is plausible and has been credited. The circumstantial evidence presented by Petitioners (including evidence of prior confrontations between Siebelts and the student) raises some questions regarding the veracity of Siebelts' testimony on this point, but such evidence is not sufficiently compelling to warrant the discrediting this testimony. Given her penchant for verbalizing to her students her thoughts about them, had Siebelts intended to kick the student as a disciplinary measure, she undoubtedly would have made this known to the student, rather than remain silent as she did; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance, except to the extent that it suggests that immediately after kicking the student, Siebelts had a "smirk on her face." To this limited extent, this proposed finding is not supported by any persuasive competent substantial evidence; fourth sentence: Accepted and incorporated in substance. First sentence: Rejected as not supported by any persuasive competent substantial evidence; second, third, fourth and fifth sentences: Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. To the extent that this proposed finding suggests that Siebelts' behavior at school on January 28, 1986, and her verbal attack of her students on November 4, 5, and 25, 198', reduced her effectiveness as a teacher, it has been accepted and incorporated in substance. Insofar as it indicates that other conduct in which she engaged resulted in a reduction or loss of effectiveness, it has been rejected as either contrary to the greater weight of the evidence (other conduct specified in charging documents) or beyond the scope of the charges (other conduct not specified in charging documents). COPIES FURNISHED: Charles Whitelock, Esquire 1311 S.E. 2nd Avenue Fort Lauderdale, Florida 33316 Edward J. Marko, Esquire Suite 322, Bayview Building 4,1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Thomas P. Johnson, Ed.D. Associate Superintendent Human Resources Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Craig R. Wilson, Esquire Suite 315 1201 U.S. Highway One North Palm Beach, Florida 33408-3581 Karen B. Wilde Robert F. McRee, Esquire Executive Director Post Office Box 75638 Education Practices Commission Tampa, Florida 33675-0638 125 Knott Building Tallahassee, Florida 32399
Findings Of Fact Michael Douglas began the 1982-83 school year as a seventh grade student at South Miami Junior High School. Disciplinary measures were required on September 1, 10, 14, 17 and 29, 1982. The student refused to obey rules and instructions, and was generally incorrigible. On September 29, he threatened another student with assault. During September, school officials had several contacts with Michael's mother and his case was referred to the child study team. As a result of these conferences, he was assigned to a youth opportunity school on October 28, 1982.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner continue its placement of the student, Michael Douglas, in the Youth Opportunity School. DONE and ENTERED this 14th day of February, 1983, in 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 14th day of February, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132 Ms. Lillie Mae Jordon 5920 Southwest 6th Street Miami, Florida 33143
The Issue The issue in this case is whether, and how, Respondent should be disciplined for failing to take appropriate action regarding a middle school student who brought a knife to school.
Findings Of Fact Respondent holds Florida Educator Certificate 1063574 and is licensed in the fields of English, English for Speakers of Other Languages (ESOL), Reading, and Exceptional Student Education. She began teaching at Bonita Springs Middle School in Lee County in September 2011, after the start of the 2011-2012 school year. During instruction in her fourth period class on February 13, 2012, Respondent heard a student ask another student, who was an Exceptional Student Education (ESE) student with emotional issues, "was that a knife?" The ESE student responded, "Drama!" When Respondent looked up, she saw the ESE student place something in her lap, out of Respondent's view. Respondent did not see what it was but saw a flash of silver or metal. The class started to "act up," and Respondent decided to diffuse the incident and quiet the class by telling the ESE student to "put it away." The ESE student then put the object in her backpack. When the class ended, Respondent approached the ESE student and asked if she had a knife. The student denied it. Respondent told the student, if she had a knife, that would be unacceptable, but Respondent did not pursue the matter any further at the time and allowed the student to leave for her next class. During Respondent's eighth period class, the last period of the day, Respondent asked her student-aide, who also was a student in her fourth period class, about the incident during fourth period. The student-aide told Respondent that it was a knife, like a small steak knife, and that the ESE student had been licking it. After speaking with her student-aide, Respondent sent the school's ESE director, who also was the ESE student's caseworker, an electronic message simply asking to discuss the student with her when she had a moment. No details about the incident were included in the message out of Respondent's concern that it would be a public record. Respondent did not receive a response by the end of the school day. The ESE director received the message after hours. The next morning, Respondent saw the ESE director at a teacher's meeting and explained the previous day's incident. The ESE director was concerned about the delay in doing anything else about it and immediately went to the school principal, who was in the cafeteria, as were several other students, including Respondent's ESE student. The principal immediately went to the student and asked if she had a knife. The student admitted she did and thought it was no big deal since Respondent did nothing about it the day before. The student later stated that she was depressed and was considering cutting herself with the knife. Respondent now understands that she did not take the appropriate action on February 13, 2012. However, she contends that there are mitigating factors to consider, and any discipline should be constructive (such as, additional training), not punitive. Respondent attempts to defend herself to an extent by saying she did not actually see the knife during fourth period. However, it is clear that Respondent heard students asking about a knife, and saw something silver or metallic that could have been a knife, and was aware of the student's emotional issues. In light of those circumstances, Respondent should not have been satisfied with the student's denial that she had a knife; she should have involved the school's administrators and resource officer at that point. When she learned during eighth period that the student in fact had a knife, she should not have been satisfied with an unacknowledged electronic message to the ESE director. Respondent also attempts to deflect some blame onto the school for not making sure she knew what to do about incidents like the one that confronted her on February 13, 2012. It may well be true, as she testified, that Respondent did not get a copy of the Parent Guide and Code of Conduct for Students, normally distributed to teachers at the beginning of the school year, which identifies a kitchen knife as a weapon and prohibits it. Petitioner attempted to impeach Respondent's denial of receipt of the document by citing a handful of student discipline referrals by Respondent that use incident types taken from that document. One incident type, albeit not used by Respondent in any of her referrals, was possession of weapons; however, the form does not define weapons. Respondent testified convincingly that she used the forms without reference to the source document. Nonetheless, she knew it would be unacceptable for a student to have a knife at school. When Respondent started teaching at the school, she was offered an opportunity to take the APPLES program for new teachers, which provides information and training on codes of conduct, including provisions to protect the safety of students and faculty. Respondent opted out, stating that she took the APPLES program during her previous employment in Collier County. While perhaps not handed to Respondent when she started teaching at Bonita Springs Middle School, the Parent Guide and Code of Conduct for Students was easily accessible from Respondent's school computer via a program called SharePoint that was a link on the home page. Respondent denies ever accessing the material from her computer. However, Respondent prepared a professional development plan shortly after she started teaching at the school in October 2011. It included a plan to train on how to download documents from SharePoint, but Respondent had not yet followed through on that plan by the time of the incident. Information also was available to Respondent in the form of an Agenda book that she was given. The Agenda book contained the school's rules, including one prohibiting weapons as nuisances and providing that they would be confiscated. It is not clear whether any of the information provided or available to Respondent would have told her what to do in circumstances where she suspected, but was not certain, that a student had a knife, and the student denied it. Based on the facts of this case, additional training is appropriate and actually is desired by Respondent. On the other hand, Respondent would rather not be reprimanded, submit to supervised probation, and pay a $500 fine and pay costs, as Petitioner proposes. Under the facts and circumstances of this case, Petitioner's proposal would be harsh, not constructive, and possibly demoralizing. The evidence is clear that Respondent will follow the rules she is given and take appropriate action in a situation if she knows what is expected of her. A repeat of the failure to act appropriately in a situation similar to the incident on February 13, 2012, is not likely.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission find Respondent guilty of violating rule 6B-1.006(3)(a), issue a letter of reprimand, and place her on a short term of probation conditioned on the completion of appropriate additional training. DONE AND ENTERED this 8th day of April, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 8th day of April, 2013.
The Issue The issue for consideration in this matter is whether Respondent should be suspended without pay for five days from employment with the School Board because of the matters alleged in the charging letter issued herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for the provision of public instruction from pre-kindergarten through secondary and adult education in Polk County, Florida, and operated Haines City High School in Haines City. Respondent had been employed at HCHS for eight years and in the last two years prior to the incidents in issue, taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. In January, 1994, Respondent was administered a verbal reprimand as a result of reports that she has been consuming alcohol in the presence of her students at an out of town conference. A part of the basis for that reprimand was her reported comments to students to the effect that her predecessor as DCT instructor had advised her not to let Black students into the program because they caused trouble. These comments by Respondent were communicated to Black students who were upset by them. At some point during the 1993-1994 school year, Respondent reportedly overheard a student, Alisha Tanner, (now, Forsythe), in a discussion with another student regarding her breakup with her boyfriend. Respondent is alleged to have stated to Ms. Tanner that, "...if you have a vibrator, you won't need a boyfriend." Both Ms. Tanner and another female student who allegedly heard the statement, claim to have been shocked and embarrassed by hearing a teacher make such a statement, and a third student, Delana Muncy, indicated Ms. Tanner was crying as a result of the comment made to her. Evidence was also presented to indicate that about the same time, Respondent was overheard by several other students to have asked a male student, Jonathan Bradley, if he masturbated. Respondent does not deny using the term, "vibrator" to the female student. Her version of the conversation is somewhat different than those of the students, however. Respondent admits that she overheard the two girls discussing one's breakup with her boyfriend and that she joined the conversation. She, however, indicates that she did so to remind them of the dangers of reckless sexual behavior and suggested that the young lady find other ways, including the use of a vibrator, to satisfy her sexual needs. Respondent denies, however, the use of the word "masturbate" to Bradley. Only two of the students in or near the conversation recall Respondent making such a comment. Notwithstanding these comments were alleged to have been made during the early or middle part of the school year, no mention of them was made by any of the students to Respondent, her immediate supervisor, parents, school administration, or Board personnel until late in the school year, just shortly before graduation. At that time, a group of the students allegedly involved met for lunch at Pizza Hut off campus and in the course of their conversation, Respondent's alleged indiscretions surfaced. Prior to leaving campus, some of these students who now testify against Respondent passed a list of complaints against her around and, though denied, there is at least some indication the students were trying to get Respondent fired. Some of the students refused to sign the list. It was only several months after the inappropriate comments were allegedly made that the first official complaint was made. Other information presented at hearing indicates that during the school year several of the students involved in the reporting of this incident became dissatisfied with Respondent's conduct of her class. Respondent was alleged by students to have used such words in class as "shit", "hell", and "pissed off", and is reported to have commented, on a hot day, "I've got sweat running down between my breasts and the crack of my ass." No specific incident was presented to explain or elaborate on this. In addition, Respondent allowed a class discussion on marketing to inappropriately discuss the sale of condoms as a demonstrative example. In this case, she allowed any student who was offended by the discussion to leave the room, but this was not a satisfactory solution, as the students' excusal served only to focus unwelcome attention on the excused students. More specifically, Respondent was alleged to have become upset with student Bradley because, contra to the instructions she had given him about picking up the DCT jerseys from the printer, he disobeyed her instructions and picked them up without her permission. Respondent chastised Bradley for this. It is entirely possible the allegations against Respondent are the result of her disciplining of Mr. Bradley, thereby antagonizing him and his clique. Another allegation made against the Respondent by the Principal is her reported permission to several of her students to grade, average and record student grades, which allowed them access to her grade book. The HCHS teacher handbook, of which Respondent had previously been given a copy, specifically prohibits teachers from making grade books available to students and proscribes allowing students to record grades. Both the principal, Mr. Partain, and the Board's Director of Employee Relations indicated, without specific examples being provided, that Respondent's sexually inappropriate comments and her failure to abide by Board rules have impaired her effectiveness as a teacher in the school system. In general, her misconduct diminished her stature as a role model for her students, and her failure to obey Board rules compromised her ability to enforce discipline, but not to the degree that her effectiveness as a teacher was destroyed. Prior to the initiation of this action, the only disciplinary action taken against Respondent since she started working for the Board in 1988 was the verbal warning, (reduced to a letter), in January, 1994 regarding the drinking in front of students at conference and the untoward reference to Blacks. Other than that, her personnel record, commencing with the teacher evaluation done during the 1988-1989 school year, reflects positive comments and no criticism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova be reprimanded for improperly allowing students to grade the papers of other students, to average grades, and to have access to her grade book. RECOMMENDED this 6th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-4483 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. & 4. Accepted and incorporated herein. First two sentences accepted. Conclusions as to misconduct rejected. Accepted that a comment was made by Respondent to a student which included a reference to a vibrator. Exact wording as alleged not proven. Not proven. Accepted that condoms were discussed, but it is not established that the suggestion to use condoms as an example came from Respondent or that she agreed to the discussion other than reluctantly. In any event, this discussion was not listed as a basis for discipline. Not proven and not a listed basis for discipline. & 11. Accepted and incorporated herein. 12. Accepted as a restatement of the witnesses' testimony. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein with the exception of the last sentence which is not proven. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. First two sentences accepted. Third sentence a non proven conclusion. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U.S. 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
The Issue As to DOAH Case No. 12-2859TTS, whether Rhea Cohen (Respondent), a classroom teacher, committed the acts alleged in the Amended Administrative Complaint filed by Robert Runcie, as Superintendent of the Broward County Schools (Superintendent) and, if so, the discipline that should be imposed against Respondent’s employment. As to DOAH Case No. 13-0704PL, whether Respondent committed the acts alleged in the Administrative Complaint filed by Pam Stewart, as Commissioner of Education (Commissioner) and, if so, the discipline that should be imposed against Respondent’s teacher’s certificate.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida; and Robert Runcie was Superintendent of Schools. At all times material hereto, the Commissioner has been the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida; and Pam Stewart was the Commissioner. Respondent has been employed by the School Board since 2002 and holds a Professional Services Contract, issued in accordance with section 1012.33(3)(a). During the time relevant to this proceeding, Respondent was an ESE classroom teacher at Crystal Lake. During the 2007-2008 school year, Respondent was employed as an ESE classroom teacher at Atlantic West Elementary School teaching students on the autism spectrum. During that school year, the Education Practices Commission (EPC) reprimanded Respondent for sleeping in class while students were present and for using restraints inappropriately to control or manage autistic and exceptional student education students. The EPC imposed an administrative fine against her in the amount of $500.00. Thereafter, Respondent transferred to Crystal Lake. Respondent taught ESE students at Crystal Lake for the 2010-2011 and 2011-2012 school years. The events at issue in this proceeding occurred during either the 2010-2011 school year or the 2011-2012 school year. Exact dates were available for some of the events, but unavailable for other events. Respondent’s classroom at Crystal Lake for those two school years was divided into two halves, separated by tables and rolling chalkboards that did not form a solid wall. For the 2010-2011 school year, Respondent taught her class of ESE students on one side of the divided classroom and a Ms. Knighton taught on the other side. For the 2011-2012 school year Respondent shared the classroom with Mr. Montalbano. On one side of the classroom was Respondent’s class, consisting of 11 ESE students. On the other side of the room was Mr. Montalbano’s class, consisting of seven ESE students. Mr. Montalbano’s class was smaller because his class functioned at a lower level than Respondent’s class. On October 4, 2011, student J., a non-verbal, wheel chair-bound boy, and student D., a boy with Down’s syndrome, were sitting next to each other in Respondent’s classroom. Student D. did something to irritate student J. Student J. balled up his fist as if to strike student D. Respondent, in front of the entire class, Lisa Phillips (an ESE paraprofessional), and Ms. Sorren, made the following statement: “So is the cripple [student J.] going to beat up the retard [student D.]”./4 Other students in the classroom laughed at student J. and student D. Student J.’s wheelchair is motorized. After making the statement quoted above, Respondent attempted to move student J. into a corner. When student J. moved the wheelchair away from the corner, Respondent unplugged the wheelchair’s battery and made the statement: “Now who has the power. I am in control, not you.” The other students laughed at student J. Respondent then moved student J. to the corner./5 On October 11, 2011, Respondent sent student J. to Mr. Montalbano’s classroom and commented that “he’s too much of a bother.” One day at dismissal, student J. asked Respondent three or four times to be taken to the bathroom. Respondent did not respond to student J. The bus arrived, but the driver refused to accept student J. because of his request to go to the toilet. Mr. Montalbano, who overheard student J.’s requests to Respondent, took over the responsibility for student J. Respondent became frustrated while helping student J. with the computer after student J. got the wires to the headphones tangled. Respondent ripped the headphones out of the back of the computer leaving the male connection in the female end of the computer. In a private discussion with Mr. Montalbano, Respondent referred to student D. as being a “moron.” Respondent sent her 11 students to Mr. Montalbano’s side of the classroom, which housed ten computers. There was a disturbance because one student did not have a computer. Respondent came to Mr. Montalbano’s side of the classroom and told student D. to give up his computer. Student D.’s first language is Bulgarian. When student D. muttered in protest, Respondent yelled at him to express himself in English. When student D. left the computer, his place was quickly taken by another student. Student D. began to cry. Respondent walked back to her side of the classroom, leaving student D. crying in Mr. Montalbano’s side of the classroom. On October 11, 2011, student Mi., an 11 year-old female on the autism spectrum, was playing with a puzzle during free time when she spotted an open computer. Student Mi. left the puzzle pieces out to go to the computer. Respondent noted the puzzle on the table and yelled out, “Who left this puzzle out?” Student Mi. hid under a table in reaction to Respondent’s statement. Respondent came to the table, roughly grabbed student Mi., and pulled her out from under the table. Respondent led student Mi. to the table with the puzzle and yelled in front of the class: “I don’t know what your mother teaches you at home, but you’re a little, spoiled brat and I am not going to clean up after you.” Respondent then took student Mi.’s doll away from her and put her in time out for the remainder of the day, approximately 30 minutes. On another occasion, Respondent had the other members of the class imitate student Mi., after student Mi. had engaged in self-stimulatory behavior. The other students laughed at student Mi. In October 2011, Ms. Hudson discovered Respondent and student Mi. in Mr. Montalbano’s half of the classroom with the lights dimmed. Ms. Hudson thought student Mi. had been crying. Ms. Hudson reported the incident to her principal, but she did not question Respondent, nor did Respondent volunteer to Ms. Hudson an explanation of the circumstances that resulted in Respondent being in the darkened classroom with student Mi. At the formal hearing, Respondent explained that student Mi. had run into traffic while waiting to be transported from school. Respondent testified, credibly, that she was trying to calm down student Mi./6 Ms. Sorren testified, credibly, that during the short time she was in Respondent’s classroom (approximately three school days), she heard Respondent address the students as morons, monkeys, jungle monkeys, and animals. That testimony was consistent with the other testimony as to the language used by Respondent in her classroom. Petitioners established that Respondent repeatedly yelled at her students to “shut up,” described a student’s behavior as being “stupid,” and called at least one student a “brat.” Student Mo., a female on the autism spectrum, was new to Respondent’s class. On an unidentified date, Respondent directed student Mo. to go to timeout. After student Mo. refused to go to timeout, Respondent shoved student Mo. into the timeout area. During the 2010-2011 school year, Respondent became upset with student C., a female, and ordered her out of her classroom. When student C. talked back to Respondent, Respondent threw student C.’s backpack and her shoes over the chalkboard that divided the classroom. Ms. Knighton and her class were in the part of the classroom into which Respondent threw the objects. Student C. became very upset. Respondent became upset with Ma., a male student. Ma. had a snack on his desk. Respondent knocked the snack to the floor and smashed it with her foot. Petitioners established that Respondent engaged in a pattern of misconduct. Respondent’s effectiveness in the school system has been impaired.
Recommendation The following recommendations are based on the foregoing findings of fact and conclusions of law: As to Case No. 12-2859TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of Rhea Cohen’s employment and terminate that employment. As to Case No. 13-0704PL, it is RECOMMENDED that the Education Practices Commission enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order suspend Rhea Cohen’s educator’s certificate for a period of five years, to be followed by probation for three years with conditions to be set by the Education Practices Commission. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 July, 2013.
The Issue The issues to be determined are whether Respondent, Mr. Alain Sanon, violated section 1012.795(1)(j), Florida Statutes (2013), and implementing administrative rules,1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Mr. Sanon holds Florida Educator's Certificate 1010405, covering the area of mathematics, which is valid through June 30, 2019. At all times relevant to the complaint, Mr. Sanon was employed as an intensive math teacher at John F. Kennedy Middle School in the Miami-Dade County School District. Mr. Sanon was born in Haiti and lived there most of his life. He came to the United States in 2003. His native language is French. He also speaks Creole and is fluent in English. In August 2017, Mr. Sanon taught a seventh-grade intensive math class during fifth period. About 50 percent of this class was Haitian-American, and some students in the class spoke French and Creole. Student A.R. testified at hearing that, on August 27, 2013, Student N.R. was laughing and talking with some other students who did not quiet down after Mr. Sanon asked them to. Student A.R. testified that Mr. Sanon asked them if they were gay. At this question, many of the students in the class started laughing. Student A.R. testified that Mr. Sanon then said, "This is a no homo zone." Student A.R. testified that Mr. Sanon said these things in a playful, not hostile manner, as a joke. Student A.R. testified that Student N.R. looked embarrassed. Mr. Sanon, in his deposition and later at hearing, admitted that he used the word "gay," but denied that he used it to refer to anyone as a homosexual, even jokingly, but rather used it in the sense of "happy." He testified that it was all a misunderstanding stemming from his question in French to Student N.R. and his companions: "Why are you so happy today?" Mr. Sanon explained that the French word for happy is "gaie" and that, when other students in the class heard that word, they began to say that Mr. Sanon had made an allusion to the boys' sexual preferences. Mr. Sanon testified that students were becoming excited and things were beginning to get out of hand, so he then said, "You know what? This is no homo calling. Nobody is calling anybody names in this classroom." He denies ever saying, "This is a no homo zone." The testimony of Student A.R., as supplemented by the written statements of other students, is more credible than that of Mr. Sanon, and Student A.R.'s testimony is credited. Student N.R. was removed from Mr. Sanon's class. The other fifth-period students remained with Mr. Sanon for the rest of the school year. It can be reasonably inferred, from Student A.R.'s testimony and the fact that Student N.R. was subsequently removed from Mr. Sanon's class, that Student N.R. was embarrassed by the incident. This is corroborated by Student N.R.'s written hearsay statement. Mr. Sanon has been employed at the Miami-Dade County School District for about 12 years. He has never before had any discipline imposed against his license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Mr. Alain Sanon in violation of section 1012.795(1)(j), Florida Statutes, through his violation of Florida Administrative Code Rules 6A-10.081(3)(a) and 6A- 10.081(3)(e), and issuing him a letter of reprimand. DONE AND ENTERED this 8th day of March, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 8th day of March, 2017.
The Issue Whether Respondent violated Lake County School Board Policy 2.71 as described in letters from the Lake County Superintendent of Schools dated January 2, 2007, and January 7, 2007, and if so, what penalty should be imposed.
Findings Of Fact The School Board of Lake County is the corporate body politic responsible for the administration of schools within the Lake County School District. At all times material to this proceeding, Paul Ogles was employed as an English/speech teacher at the Curtright Center of Eustis High School in the Lake County School District. Mr. Ogles, a Caucasian male, has been employed as a teacher for the District for nine years. At all times material to this proceeding, Ms. Bernetta McNealy, an African-American woman, was employed as a teacher at the Curtright Center of Eustis High School. Ms. McNealy's classroom is adjacent to Mr. Ogles' classroom. During the 2005-2006 school year, Ms. Tess Rogers was an assistant principal at Eustis High School and one of Mr. Ogles' supervisors. Mr. Michael Elchenko was Principal at Eustis High School during this time, and Ms. Rebecca Nelsen was the Director of Compensation and Employee Relations for Lake County School District. Mr. Ogles' first teaching position was as a teaching assistant with Project Outward Bound at Morris Brown College, a historically black college in Atlanta, where he prepared high school students for college. Mr. Ogles returned to teaching twenty years later after running his own textbook company. Mr. Ogles has received excellent evaluations during his employment by the Lake County School District. Once a teacher receives a rating or twelve (the highest rating possible) for two consecutive years, the educator may choose to participate in a PG-13 Appraisal of Professional Growth/Career Development instead of receiving the normal educator evaluation. Mr. Ogles qualified for this type of evaluation and successfully participated in the PG-13 appraisal process for several years. Mr. Ogles has sponsored or assisted with many school organizations such as the Beta Club; the Chess Club; the Key Club; the High Q Club; and the Speech and Debate Club. He used personal funds to support the students' activities, including paying $300.00 to rent a bus so students could attend a competition. Mr. Ogles was one of two Team Leaders on campus and in that capacity worked with the assistant principal to try to upgrade the quality of the school and to increase interaction between students and teachers. He also volunteered for bus duty before and after school. While performing bus duty, it was often Mr. Ogles' responsibility to enforce the school's dress code as students arrived on campus. Eustis High School has a policy of prohibiting students from wearing clothing with symbols or messages that may be considered disruptive to the learning environment. Students are not necessarily disciplined for wearing such clothing, but are requested to remove the offensive clothing, turn it inside out so as to hide the offensive message, put other clothing on over it or call home to have alternate clothing provided. The Confederate flag is one such symbol that is not allowed to be displayed on clothing worn to school. Dixie Outfitters is a line of clothing that sometimes bears the Confederate flag. Mr. Ogles was aware that the school policy forbade the wearing of the Confederate flag and he often was involved in enforcing the policy against students wearing the symbol. On or about May 19, 2006, Mr. Ogles was using his computer to search for project ideas for the following year while his students were taking a test. He was looking at a website called www.cagle.com, a political website from which he has gotten cartoons in the past. Several cartoons from this website are posted in his classroom, and there was no evidence presented to indicate that anyone had ever complained about their display. While viewing the website, he saw a cartoon that depicted a Confederate flag. However, instead of the traditional "stars and bars," the cartoon showed black arms crossed, with stars imprinted on them. The hands were extended beyond the flag, with the wrists shackled. The cartoon was originally published in approximately 2000, as a means of protesting the consideration by several southern states to display the Confederate flag at state buildings. When Mr. Ogles first saw the cartoon, he thought that it was "strong art" depicting the Confederate flag as a symbol of racism. In between classes, he showed the cartoon to Ms. McNealy. He asked her if she was familiar with students wearing Dixie Outfitters clothing. She indicated she was not. He stated that perhaps this cartoon could be placed on a new line of clothing for black students to wear in response to the "heritage" argument white students used to defend the wearing of the Confederate flag. The conversation was very short, as the bell was ringing for the next class to begin. Ms. McNealy did not respond to Mr. Ogles or give him any indication that she was offended or bothered in any way. There is also no evidence that she ever discussed her feelings about the cartoon with Mr. Ogles at any later time. Mr. Ogles testified, and his testimony is credited, that he believed that because the cartoon advocated a position against the display of the Confederate flag, that it would support what he believed to be Ms. McNealy's position on this issue. It is his view that African-Americans have as much ownership of the Confederate flag as anyone else, and should be able to use the image to express their views. While Ms. McNealy did not tell Mr. Ogles that she was offended by the cartoon, she did make her feelings known to Ms. Rogers, the assistant principal and Michael Rivers, a guidance counselor at the Curtwright Center, almost immediately. Ms. Rogers is Caucasian and Mr. Rivers is African-American. Both found the cartoon to be offensive. After speaking with Ms. Rogers and Mr. Rivers, Ms. McNealy left campus for the day. About an hour after he showed Ms. McNealy the cartoon, he was asked to come to the office and was informed by Ms. Rogers and Mr. Jones, another administrator, that Ms. McNealy was upset about the cartoon and had left campus. Mr. Ogles did not realize that Ms. McNealy would be offended by the cartoon and had he realized she would be offended, he would not have shown it to her. On May 22, 2006, Mr. Elchenko, the Principal of Eustis High School received a written complaint from Ms. McNealy about Mr. Ogles' showing her the cartoon.1/ Mr. Elchenko determined Mr. Ogles' conduct to be unprofessional and issued a Professional/Personal Action Report Relating to Work Experience (Appraisal II form) and Prescription/Assistance Form to Mr. Ogles. Both documents directed him to stop giving materials to co-workers that could be considered offensive. Mr. Ogles has complied with these directives. After Mr. Elchenko completed his investigation, Mr. Elchenko reported the allegations to the School Board's District office because he believed the allegations in Ms. McNealy's complaint rose to the level of racial harassment. Rebecca Nelsen conducted an investigation on behalf of the School District. Mr. Ogles was reassigned from his teaching position at Eustis High School to the County Copy Center by letter dated July 17, 2006, and remains in that placement today. Ms. Nelsen determined that Mr. Ogles' conduct created an intimidating, hostile or offensive work environment on the basis of race, which is prohibited by School Board policy. Ms. Nelsen recommended to the Superintendent that Mr. Ogles' employment be terminated. A separate investigation was conducted for the School Board by a private entity called the Robert Lewis Group. The findings and recommendations of that investigation are not part of this record. By letter from the Superintendent dated January 2, 2007, Mr. Ogles was suspended without pay for the period from January 8, 2007 through January 12, 2007, and was directed to receive cultural sensitivity training for violating School Policy 2.71. There is no evidence submitted to indicate that the Superintendent's decision was approved or ratified by the Lake County School Board. Mr. Ogles served his period of suspension and successfully completed cultural diversity training. Before this incident, Mr. Ogles had never been accused of making any appropriate racial remarks and was not considered to be a racist individual. He had expressed the view that racism should hold no place in education. His principal did not question his competence as an educator.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the charges against Respondent, and rescinding all discipline previously imposed. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 12th day of June, 2007.
Findings Of Fact Respondent currently holds Florida teaching certificate number 576645, which covers the areas of elementary education and mathematics. Respondent's certificate is valid through June 30, 1992. During the 1990-91 school year, Respondent was employed as a third grade teacher at Markham Elementary School in the Broward County School District. 1/ On an undetermined date during the 1990-91 school year, Respondent hit, M.R., a female student, with a wooden ruler that was twelve inches long and one inch wide. Respondent's action was in response to M.R.'s behavior of talking in class without permission. M.R. was hit on the palm of her hand with the ruler in front of the class. M.R. was embarrassed by the incident, but she did not cry. On another occasion, M.R. was talking in class. There was a dispute in the testimony as to whether M.R. was using profanity. Respondent testified that M.R. was using profanity, while M.R. denied using profanity. Respondent took M.R. to the bathroom at the rear of the classroom, told M.R. to place soap on her hands, and made M.R. wash her mouth out with soap. 2/ During the 1990-91 school year, Respondent hit K.S., a female student, on the palm of the hand with the twelve inch wooden ruler. This discipline occurred at the door to the bathroom at the rear of Respondent's classroom. K.S. became upset and began to cry. Another student saw K.S. crying. On one occasion, while talking to K.S. in the bathroom, Respondent told K.S. to pretend to cry to make the other students believe that she had been punished. Respondent had not administer corporal punishment to K.S. on that occasion, but Respondent wanted the other students to believe that they would be punished if Respondent took them to the bathroom. The Respondent hit K.C., a male student, on the palm of the hand with a wooden ruler, and on the buttocks with a small board. On one occasion the Respondent took K.C. into the bathroom and hit him with a ruler. The Respondent threatened on other occasions to hit K.C. with a ruler. The Respondent threatened to hit L.S., a female student with a ruler. L.S. witnessed the Respondent hitting other students on the hand with a ruler. The Respondent hit V.D., a female student, on the palm of the hand with a ruler. V.D. cried after being hit with the ruler. The Respondent hit K.C., a female student, on the palm of the hand and buttocks with a ruler. The Respondent hit K.C. in the bathroom and in the classroom. The Respondent hit S.T. 3/, a female student, on the palm of the hand with a wooden ruler, causing S.T. to cry. The Respondent hit or tapped T.B., a male student, on the hand with a ruler. The Respondent's conduct in hitting the students with a ruler was not done in self-defense, but as a disciplinary measure that was intended to both punish and intimidate the students. At hearing, the Respondent offered a composite exhibit of permission forms, purporting to demonstrate parental permission to use corporal punishment against K.S., T.B., K.C. (female student) and D.R. (a student who did not testify). Respondent did not offer any permission forms from the parents of M.R., S.T., K.C. (male student), or V.D., although the evidence established that Respondent struck these students with a ruler. Regardless of parental permission, the discipline administered by Respondent violated district policy, which forbids corporal punishment of any kind. After an investigation into allegations that the Respondent had struck students, students were called to the school office to be interviewed. The Respondent discussed the pending investigation with her class. Several students recalled that on the day that they were to be interviewed she told them she might go to jail if students told the investigators that she had hit them. None of the students testified that Respondent told them, as a group, to lie to the investigators. In fact each of the students testified that the Respondent told the class to tell the truth. There was a conflict in the evidence as to whether Respondent told S.T. and V.D. individually not to reveal that she had hit them, or to say that she had hit them fewer times than she actually had. This conflict is resolved by finding that Respondent's denial that she told either S.T. or V.D. to lie is more credible than the testimony to the contrary from S.T. and V.D. Therefore, it is found that Petitioner failed to establish that Respondent told her students to lie about her discipline practices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which adopts the findings of facts and conclusions of law contained herein, which provides that a letter of reprimand be issued Respondent by the Education Practices Commission, and which places Respondent's certification on probation for a period of two years. It is further recommended that the terms and conditions of probation be identical to those recommended by Petitioner in its post-hearing submittal. RECOMMENDED in Tallahassee, Leon County, Florida, this 19th day of May, 1992. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1992.