The Issue The issue is whether Respondent's Teaching Certificate should be revoked or otherwise disciplined based on the acts alleged in the Administrative Complaint. The Petitioner presented the testimony of Linda Rondone, Jane E. Vowell, Susan C. Vassilev, Kyril P. Vassilev, III and Johnny B. McKenzie. Petitioner's Exhibits 1-5 were admitted in evidence. Official recognition, pursuant to Section 90.202, Florida Statutes, was taken of the statutes and violations charged in the case of State of Florida v. Jeffrey Siegfried, 85-1568 MMA02, and the Code of Ethics of the Education Profession in Florida, Section 6B--1.01, Florida Administrative Code. The Respondent, Jeffrey W. Siegfried, failed to appear for the formal hearing despite notice to him personally and to his former counsel who was granted leave to withdraw. Petitioner submitted proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact At all times material hereto, the Respondent held Teaching Certificate Number 440229, issued by the Department of Education for the State of Florida. The Respondent's Teaching Certificate covers the areas of English and Reading. On or about June 13, 1978, the Respondent applied for a teaching certificate for the State of Florida. The Respondent filled out the application and answered "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" The Respondent signed the application in front of a notary on June 13, 1978, certifying that all information pertaining to the application was true and correct. Petitioner presented charging documents from the Court of Common Pleas of Montgomery County, Pennsylvania, in which the Respondent was charged with three crimes alleged to have occurred on June 7, 1975, to wit: Unlawful Possession of a Controlled Substance, Corruption of Minors and Disorderly Conduct. Further, the documents indicated that the Respondent was sentenced on December 4, 1975, to the Program of Accelerated Rehabilitative Disposition on the charges of Possession of Marijuana and Corruption of Minors. The program involved a twenty four (24) month probationary period and payment of $350.00 restitution. The charge of Disorderly Conduct was nolle prossed. On July 20, 1979, the Respondent filled out an Application of Instructional Position for Palm Beach County, Florida. The Respondent in said application again made no mention of his criminal history. He again checked off "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" The Respondent signed the application certifying that all the answers given were true. In the fall of 1980, the Respondent was employed by the Palm Beach County School District. On January 24, 1986, an Information was filed in the County Court of Palm Beach County, Florida, charging the Respondent with Possession of Marijuana on January 15, 1985 and Child Abuse on December 23, 1984. Susan C. Vassilev, mother of Kyril Vassilev, testified that she had been friends with the Respondent for 3 or 4 years preceding December of 1984. Throughout their acquaintance, the Respondent was employed as a full time teacher for the Palm Beach County School Board. Mrs. Vassilev's son, Kyril, occasionally did yard work and odd jobs for the Respondent. On December 23rd of 1984, Mrs. Vassilev reminded her son about a Christmas Eve dinner invitation at the Respondent's house. He answered her, "No, I'm not going there. He's a fag. I don't want anything to do with him." Mrs. Vassilev than testified as to what her son told her which was again reiterated by her son when he testified later in the hearing. In November and December, 1984, Kyril Vassilev was thirteen (13) years old. He had met the Respondent through his mother and knew the Respondent to be a teacher in Palm Beach County. Kyril went to the Respondent's house in late November or early December of 1984 to do some yard work for the Respondent. The Respondent picked Kyril up and while in the Respondent's van, the Respondent suggested that he knew a way for Kyril to earn a lot of money and only work two hours a day, 2 or 3 times a week. After Kyril mowed the Respondent's yard, he came into the Respondent's house for a drink. He asked the Respondent how he could make such easy money. The Respondent told him it was called child pornography and explained that it involved Kyril posing for nude photographs. The Respondent showed Kyril photographs of a nude boy in a magazine and claimed that he had helped the boy earn money by arranging for him to pose nude. Kyril told the Respondent that he wasn't interested and went back outside to continue staining the backyard fence. After a while, Kyril went back inside for another drink. The Respondent at that point told Kyril that the photographers had called and were willing to pay him $200.00 for posing nude. Kyril again told the Respondent that he was not interested. After finishing work, Kyril again came into the house and the Respondent told him the photographers had called again and upped the price to $500.00. Kyril told the Respondent no again. The Respondent sent Kyril to buy camera film at Eckerds. Kyril testified that he was afraid, but he went and got the film and brought it back. Again the Respondent asked Kyril if he would reconsider. Kyril, again, declined. Before Kyril left, the Respondent informed him that he couldn't tell his mother or anyone else. The Respondent told Kyril that he need not worry about his mother finding out, because the Respondent would open a secret bank account for him, where he could keep the money. Before leaving for the day, Kyril testified that, the Respondent told him "they" had called and were now willing to pay up to $1,000. The Respondent took Kyril home and enroute again tried to talk him into posing nude. Kyril again declined. The Respondent indicated that Kyril could make even more money doing things with other boys in front of the camera. Kyril was waiting until after Christmas to tell his mother, but because of the invitation to the Respondent's residence for Christmas Eve dinner, he decided to tell his mother on December 24, 1984. Mrs. Vassilev confronted the Respondent with her son's allegations and he claimed to be working undercover for school security to infiltrate a child pornography ring. Johnny B. McKenzie testified that as Director of Security for Palm Beach School Board that he had no knowledge of the Respondent working for school security. On July 11, 1985, the Respondent pled no contest to Count I, Possession of Marijuana less than 20 grams and Count II, Child Abuse. Judge Karen Martin, County Court Judge in and for Palm Beach County, Florida, withheld adjudication as to Count I and adjudicated the Respondent guilty of Count II. The Respondent was placed on twelve (12) months probation with special conditions that he: (1) make no contact with any child under the age of 18 years without another adult being present; (2) make no contact with the mother of the victim and/or the victim, himself; (3) undergo substance abuse evaluation and treatment if needed; and, (4) undergo psychological evaluation and counseling if needed. Ms. Jane E. Vowell, then acting as Assistant Superintendent, testified that on or about January 17, 1985, the Respondent was called into her office and she informed him of the charges against him, and told him that she would recommend to the Superintendent that he be suspended with pay and given an opportunity to resign. The Respondent resigned on February 4, 1985. Ms. Vowell testified that the Respondent's teaching certificate should be permanently revoked because he lacked the moral character needed to be a teacher responsible for children. On March 6, 1985, the Respondent submitted an Application for Instructional Position to the Broward County School Board. The Respondent again answered "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" He again signed the application certifying that all the information given on the application was true and correct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking the teaching certificate of Jeffrey W. Siegfried. RECOMMENDED this 5th day of February 1987, in Tallahassee, Florida. DIANE K. KIESLING 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 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2020 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 in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Proposed findings of fact 1-33 are adopted in substance in Findings of Fact 1-33. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Jeffrey W. Siegfried Post Office Box 172 Truro, Massachusetts 02666 Marlene T. Greenfield Administrator Professional Practices Services 319 West Madison Street Tallahassee, Florida 32301 Karen Barr Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether just cause exists for Petitioner, Broward County School Board, to suspend Respondent, Brenda Joyce Fischer, from her employment as a teacher for three days without pay.
Findings Of Fact The Parties Petitioner, Broward County School Board, is charged with the duty to operate, control, and supervise free public schools in Broward County pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes.2/ Respondent has been employed as a teacher with Petitioner since 1992, and has been employed as an art teacher at Western High School ("Western") since 2009. Evidence Adduced at the Final Hearing During the 2018—2019 school year, Respondent was assigned to teach Creative Photography I, an elective course, at Western. The 2018—2019 school year was the first year this course was taught at Western. In May 2018, Respondent requested that textbooks be ordered for the Creative Photography I course. As of the first few weeks of the 2018—2019 school year, the textbooks for the course had not yet arrived. Respondent testified, credibly, that she did not have access to any textbooks from which to plan her instruction during the time she was waiting on the arrival of the textbooks. During the planning period before the first week of school, Respondent contacted photography teachers at other schools in the Broward County Public School District ("District") to obtain materials to use until her textbooks arrived. For a variety of reasons, much of the material she received from other teachers was not suitable for her course. According to Respondent, Christine Malin, who taught a photography course at another public high school in the District, assisted her by providing materials. Much of what Malin provided was not suitable because Respondent's class did not have access to cameras for student use. Malin also told Respondent about two videos on photography that she had found on the internet, and that Malin's description of the content of the videos sounded suitable for Respondent's course. Respondent testified that Malin told her that she had reviewed the videos. However, when asked whether Malin told her the videos were appropriate to show to a high school class, Respondent acknowledged that "[s]he didn't say anything about that." Respondent previewed one video in its entirety. She testified that "when it came to the second one, I did not preview it as closely as I did the first one because the first one I said, okay, this isn't bad." According to Respondent, she previewed the second video after school in the evening while she was working on school paperwork. She testified "[s]o I was doing that along with listening to the video and watching the video and I was doing some other stuff." Respondent showed the videos to her first period class on August 23, 2018. One of the videos contained a total of 11 images of nude men and women on seven slides. Two of the images, shown twice during the video, depicted the models in sexually suggestive poses with their genitalia clearly visible. One of the six images depicted a nude male, which, while not depicting genitalia, was accompanied by an audio narrative referencing a dominant sexual partner. The first nude images were shown in the interval from 3:02 to 3:13 in the video. Additional nude, sexually explicit images appeared in the interval from 3:14 to 3:21 and 3:21 to 3:36 in the video. All of these images were again shown in the interval from 3:36 to 3:43 in the video. The last nude images appeared in the interval from 5:08 to 6:25 in the video, accompanied by the sexually explicit narrative. The images comprised approximately two minutes of the nearly 13—minute long video. Respondent testified that she did not realize that the video contained nude images until she saw the first nude image, at which point she tried to turn the projector off. According to Respondent, she was "fumbling," but did eventually stop the projection of the nude images, albeit not before the students saw the additional nude images. Respondent also showed the video to her second period class. According to Respondent, as soon as she saw the first nude image, she shut the projector lens off and fast—forwarded past the other images, so that the students only saw one nude image. According to Respondent, she was able to use the portions of the video that did not contain nude images for instructional purposes in her first and second period classes. Six students in Respondent's class testified about what they saw in the video shown in Respondent's class that day. The students who testified were 15— and 16—years—old at the time of the incident. All six students who testified also had provided handwritten statements to Western assistant principal Derek Gordon as part of Petitioner's investigation into the incident. Four of the six students who testified were in Respondent's first period class. They each testified to the effect that they had viewed all of the nude images in the video. Some of these students, either in testimony or in their written statements, characterized the images as "inappropriate" or "disturbing." Two of the students who testified were in Respondent's second period class. They testified to the effect that they had seen more than one nude image and had heard sexually explicit audio narrative accompanying the last nude image in the video. One of these students, in a written statement provided during the investigation, characterized the images as "inappropriate." Respondent acknowledged that she did not obtain prior approval from the principal of Western or his designee, her department head, before showing the video to her class. She also acknowledged that she had previewed the video only three days, at most, before she showed it to her classes, and that she had not watched the entire video because she was multitasking. When questioned about when she prepared her lesson plan for August 23, 2018, she responded: "I wound up doing it that Monday, Tuesday, Wednesday because I was told I was getting my textbooks, they didn't come in and I know I needed an assignment. . . . I didn't plan for two weeks because I was expecting to get the textbooks in so we could use the textbooks." She acknowledged that it was her responsibility to thoroughly preview the video before she showed it to the students, and that she had not vetted it to the extent she should have before she showed it in her classes. After her second period class on August 23, 2018, Respondent reported to Derek Gordon that she had shown a video containing nude images in her first and second period classes. Gordon initiated the investigation that culminated in Petitioner proposing to suspend Respondent for three days without pay. Respondent's timely challenge to that proposed action is the subject of this proceeding. According to Gordon and Western Principal Jimmy Arrojo, many parents contacted the school regarding the incident, some of whom wanted their children removed from Respondent's class. Arrojo testified that the incident also was widely reported in the news. Following this incident, and apart from serving her three—day suspension, Respondent taught the Creative Photography I course at Western for the remainder of the 2018—2019 school year. Respondent currently is serving as a teacher facilitator for an online class at Western. She is not teaching the Creative Photography I course at Western for the 2019—2020 school year. School Board Policy and Faculty Handbook Requirements Petitioner and the administration at Western each have adopted relevant standards and requirements governing the use of audiovisual materials in classroom instruction. Specifically, school board policy 6100, titled "Audiovisual Materials Use Policy," requires audiovisual materials to be previewed "in their entirety" before being shown to students by the teacher using the material to ensure that the language, theme, level of violence, and content are consistent with the maturity level of the students who will be viewing the material. The policy adopts the Motion Picture Association of America's ("MPAA") ratings as the guidance standards for determining whether audiovisual materials are age-appropriate. The MPAA rating rule for the PG—13 category states, in pertinent part: "[m]ore than brief nudity will require at least a PG—13 rating, but such nudity in a PG—13 rated motion picture generally will not be sexually oriented." By contrast, the MPAA rating rule for R—17 states, in pertinent part: [a]n R—rated motion picture may contain adult themes, adult activity, . . . sexually—oriented nudity, or . . . other elements, so that parents are counseled to take this rating very seriously. Children under 17 are not allowed to attend R—rated motion pictures unaccompanied by a parent or adult guardian." Additionally, the Western High School Faculty & Staff Handbook for the 2018—2019 school year ("Faculty Handbook") includes several provisions relevant to the charges at issue in this proceeding. Specifically, the section of the Faculty Handbook titled "Movies" states, in pertinent part, that "[a]ll instructional resources, including audiovisual materials, must: be consistent with School Board of Broward County policies[,] [and] [r]eflect the best teaching practices based on age— appropriateness and instructional relevance, meant to support instruction[,] not replace it." Additionally, the Faculty Handbook requires faculty who intend to use audiovisual materials for class instruction to "[c]omplete a Movie Request Form of corresponding assignment [and] [s]ubmit Request Form to department chair for approval." The Faculty Handbook also states that each teacher is required to keep his/her lesson plans one week in advance, and specifies the components that each lesson plan must contain. The purpose of this requirement is to ensure that each lesson is prepared a sufficient time in advance so that classroom instruction is organized and effective. The Faculty Handbook does not contain, and Arrojo confirmed the absence of, an exemption to the lesson plan preparation requirement for situations when a textbook on order has not arrived by the time the course begins. To this point, the Florida Department of Education has ratified the Curriculum Planning and Learning Management System ("CPALMS"), which is the "State of Florida's official source for standards information and course descriptions." CPALMS provides "an online toolbox of information, vetted resources, and interactive tools to help educators effectively implement teaching standards." As Arrojo explained, CPALMS is the "go—to site" for every course that is offered. For the Creative Photography I course, there are 460 vetted and approved course— specific resources that are available to teachers on the CPALMS website for use as instructional material.3/ Respondent's History of Prior Discipline Respondent previously has been subjected to disciplinary action while employed by Petitioner. Specifically, Respondent's disciplinary history consists of the following: a written reprimand in February 1997 for using inappropriate language in class; a written reprimand in April 1997 for making inappropriate comments in class; a three— day suspension in 2009 for using inappropriate language in class; a verbal reprimand in 2014 for intentionally exposing a student to unnecessary embarrassment and disparagement; a written reprimand in November 2017 for inappropriately touching and yelling at students; and a written reprimand issued by the State of Florida Education Practices Commission in October 2018 for failure to make reasonable effort to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and safety. Findings of Ultimate Fact As discussed in greater detail below, Respondent has been charged in this case with misconduct in office, incompetency, and willful neglect of duty under Florida Administrative Code Rule 6A—5.056, and with violating Broward County School Board policies 6100 and 4008.4/ Whether a charged offense constitutes a violation of applicable rules and policies is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether particular conduct constitutes a violation of a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, and policies is a question of ultimate fact); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there was a deviation from the standard of conduct is not a conclusion of law, but is instead an ultimate fact). Misconduct in Office under Rule 6A—5.056(2) Based on the foregoing findings, it is found, as a matter of ultimate fact, that Respondent engaged in conduct constituting misconduct in office, as defined in rule 6A—5.056. Respondent's conduct violated several provisions of Florida Administrative Code Rule 6A—10.081, the Principles of Professional Conduct for the Education Profession in Florida, which has been incorporated into rule 6A—5.056(2). Specifically, in failing to adequately prepare her lesson plans a week in advance and failing to preview the video in its entirety, Respondent failed to exercise best professional judgment, as required by rule 6A—10.081(1)(b). As a result of her failure to exercise best professional judgment, she exposed the 15— and 16—year—old students in her classes to images that they found "inappropriate" and "disturbing." In doing so, she failed to make a reasonable effort to protect her students from conditions harmful to learning and their mental health, in violation of rule 6A—10.081(2)(a)1. Furthermore, even after Respondent became aware during her first period class that the video contained nudity and sexually explicit images, she nonetheless continued to show it, thereby exposing the students to additional nude, sexually explicit images and narrative that they otherwise would not have seen or heard. In doing so, she intentionally exposed the students in her first period class to unnecessary embarrassment, in violation of rule 6A—10.081(2)(a)5. Respondent's failure to exercise best professional judgment was further compounded when, after learning of the images and narrative, she nonetheless chose to show the video to her second period class. Although she testified that she skipped over almost all of the nude content, the students' testimony established that, at minimum, they were exposed to the first two nude images at 3:02 in the video and the last image, with its sexually explicit narrative, starting at 5:08 in the video. In choosing to show the video despite being aware of its contents, Respondent intentionally exposed the students in her second period class to unnecessary embarrassment, in violation of rule 6A—10.081(2)(a)5. Respondent's conduct also negatively affected the confidence and respect of her students' parents, in violation of rule 6A—10.081(1)(c), which establishes a standard to achieve and sustain the highest degree of ethical conduct. To this point, Arrojo and Gordon both testified, credibly, that they had received numerous calls from parents, requesting that their children be removed from Respondent's class. For the reasons discussed below, it is also found, as a matter of ultimate fact, that Respondent engaged in conduct that violated school board policies 6100 and 4008; thus, she violated rule 6A—5.056(2)(c). For the reasons discussed in detail above, it is found, as a matter of ultimate fact, that Respondent engaged in conduct that disrupted her students' learning environment, in violation of rule 6A—5.056(2)(d). Respondent's conduct also reduced her ability to effectively perform her teaching duties, in violation of rule 6A—5.056(2)(e). Specifically, as a result of Respondent's conduct, many parents requested to have their children removed from her class. This significant consequence evidences that Respondent's ability to effectively perform her teaching duties was reduced during the 2018—2019 school year. Incompetency under Rule 6A—5.056(3) It is also found, as a matter of ultimate fact, that Respondent's conduct constitutes incompetency due to inefficiency, in violation of rule 6A—5.056(3)(a). Specifically, in showing the video to her classes, Respondent violated school board policies and State Board of Education rules, and, thus, failed to perform her teaching duties as prescribed by law. By showing the video containing content that was not appropriate for her students to see and hear, she also failed to communicate appropriately with her students. Further, as a direct result of her disorganization in failing to adequately and timely prepare her lesson plans for August 23, 2018, including completely previewing both videos that she intended to show that day, the welfare of her students was diminished. The undersigned finds, as a matter of ultimate fact, that Respondent's conduct does not constitute incompetency due to incapacity. Although Respondent was not adequately prepared for her August 23, 2018, class, and, as a result, showed a video that was age—inappropriate for her students, the evidence does not establish that she lacked adequate command of her area of specialization. To the contrary, the evidence establishes that she taught the Creative Photography I course for the entire 2018— 2019 school year, and that, apart from her three—day suspension, incurred no further disciplinary action due to lack of preparation or use of inappropriate instructional materials. Willful Neglect of Duty under Rule 6A—5.056(5) It is found, as a matter of ultimate fact, that Respondent's conduct constitutes willful neglect of duty, in violation of rule 6A—5.056(5). As discussed above, once Respondent became aware, during her first period class, of the nude and sexually explicit images in the video, she nonetheless chose to continue showing the video to her first period class, thereby recklessly5/ exposing the students to additional nude images and sexually explicit content. Violation of School Board Policy 6100 It is found, as a matter of ultimate fact, that Respondent's conduct violated school board policy 6100. Specifically, by showing the video in her classes, Respondent violated policies 6100(1)(d) and (2)(a), which require that audiovisual materials selected for student instruction be age—appropriate. The evidence definitively establishes that the nude and sexually explicit images and narrative were not age— appropriate for the students enrolled in the class. The students who testified at the final hearing were 15— and 16—years—old. Pursuant to the MPAA ratings, which have been incorporated into school board policy 6100, audiovisual materials depicting sexually—oriented nudity——such as that depicted in multiple images in the video——would warrant an R—rating, indicating that they are inappropriate for viewing by children younger than 17 years old. Respondent's conduct also violated policy 6100(2)(b). She did not personally preview the video depicting the nude images that she showed in her class on August 23, 2018, and the video was neither part of Western's school audiovisual collection nor reviewed or recommended in professional literature. Additionally, Respondent's conduct violated policy 6100(3)(a), because she did not obtain prior approval from Arrojo or her department head before showing the video containing the nude images to her classes. Respondent's conduct also violated policy 6100(3)(c), because she did not preview, in its entirety, the video containing the nude images before she showed it to her students. Consequently, she did not pay due attention to assure that content was consistent with the maturity level of the students in her class. Violation of School Board Policy 4008 It is found, as a matter of ultimate fact, that Respondent's conduct violated school board policy 4008. Specifically, as discussed above, Respondent's conduct violated several provisions of rule 6A—10.081, and, thus, violated policy 4008(B)(1). Respondent also violated policy 4008(B)(1) by failing to effectively use the materials provided by the District or State in her class instruction on August 23, 2018. Although she could have chosen from the 460 units of material available on the CPALMS website——all of which were State—approved for use in Creative Photography I——she instead chose to show a video that that she had not previewed, that was not part of Western's audiovisual collection, and that had not been approved for instructional use by Arrojo or his designee. In doing so, she failed to employ sound teaching practices and methods. Respondent violated the directive in policy 4008(B)(3) to infuse responsibility in the classroom, by failing to adequately prepare for her class, and, consequently, showing nude, sexually explicit images that were inappropriate for her students to view. Because it is determined that Respondent violated provisions of rules 6A—5.056 and 6A—10.081, and school board policy 6100, it is found that she also violated school board policy 4008(B)(8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order determining that just cause exists to suspend Respondent, Brenda Joyce Fischer, from her employment as a teacher for three days, without pay. DONE AND ENTERED this 21st day of January, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 21st day of January, 2020.
The Issue Whether the Respondent, Darrell Timothy Roundtree (Respondent), committed the violations alleged in the Administrative Complaint dated May 30, 2006, and, if so, what penalty should be imposed. The Respondent has denied any and all wrongdoing.
Findings Of Fact At all times material to the allegations of this case, the Respondent was a teacher employed by the Broward County Public School District. He was assigned duties as a physical education teacher during the 2003/2004 school year at Walker Elementary School. The Respondent holds a Florida Educator’s Certificate and is subject to the provisions of law governing the conduct and discipline of teachers within the state. The Petitioner is responsible to investigate and prosecute complaints against persons who hold Florida Educator’s Certificates who have allegedly violated provisions of law. In this case, the Petitioner filed a six-count Administrative Complaint against the Respondent following an investigation of charges that came from the Broward County School District. Although the allegations in the instant case are not the first disciplinary concerns regarding the Respondent, the instant charges, if proved, are sufficient to warrant disciplinary action against the Respondent's teaching certificate. Prior allegations against the Respondent resulted in a Letter of Concern being placed in his file based upon a claim that he had tweaked the nipples of a seven-year-old student. A second charge was not prosecuted due to the lack of cooperation by the alleged victim and his parent. The Respondent resigned his employment with the Broward County School District on September 16, 2005. The resignation followed an investigation into the conduct that is the subject matter of the instant proceeding. Sometime in 2003 the Respondent started a business for the purpose of providing male escorts. As depicted in this record, males hired through the Respondent's company were dispatched to parties or events and asked to dance and provide male companionship for the attendees of the party. Although prostitution was not the stated goal of the enterprise, it was not without possibility given the nature of the information describing the males. Pictures of the males were posted to the Respondent's website with listings as to sexual preference, age, and dimension of the males' anatomy. Although he initially denied involvement in the website, the record is clear the Respondent took pictures of partially nude males for the purpose of posting them on the website, SouthFloridaThugz.com. One of the males was a student in the Broward County GED program. The student, J. M., heard about the Respondent's business through a friend. A partially nude picture of J. M.'s friend was posted on the Respondent's website. According to J. M., the Respondent would take pictures of the males, post them for review, and schedule "parties" for the "clients" to attend. J. M. was scheduled to attend one such party. Based upon his conversation with the Respondent, J. M. expected to attend a party, dance nude for the attendees, and receive $300.00 for compensation. From that $300.00 J. M. expected the Respondent to receive a portion of the compensation. J. M. believed that the party would have women as well as men in attendance. J. M.'s friend had suggested that sometimes "safe sex" might occur. When he got to the party, J. M. was stunned to find that only men attended. He did not expect to be watched by gay men. He did not agree to that and insisted on leaving. He returned the $300.00 and told the Respondent he would not "do business" with him. Later J. M. went to authorities to file a complaint against the Respondent. J. M.'s complaint led to an investigation by the Broward County School District. Thereafter, the Respondent's school-issued computer was examined. The school-issued computer was used to access adult websites, chat sites, and other inappropriate sites. Petitioner's Exhibits 6 and 8 show a complete listing of the sites. The Respondent claimed that the computer use was not his, but such denial has not been deemed credible. After the matter was fully investigated by the Broward School District, it was determined that the Respondent had lost his effectiveness with the school system. The instant case was investigated and prosecuted over a period of time within which the Respondent and others gave multiple statements. The Respondent gave inconsistent and contradictory statements on more than one occasion. The student, J. M., was deemed the more credible of the two. Further, it is determined that the computer history of the Respondent's school-issued computer clearly and unambiguously established that the Respondent accessed inappropriate websites and chat rooms. It is determined that the Respondent did not verify the age of J. M. before making the pictures of his nude torso and groin area. Further, the Respondent did not maintain records to verify that the other nude and partially nude males depicted on the website were adults. Finally, it is determined that the purpose of the website was not for "dancing." The depiction of the males' penises in a state of arousal would not suggest or relate to any dancing ability. The Respondent's claim that his privacy has been invaded is unfounded. Teachers in the State of Florida are held to a high standard of conduct. It is expected that a school- issued computer may be subject to inspection by school authorities. The Respondent has taught for approximately 21 years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking the Respondent’s teaching certificate. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 5th day of March, 2009. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224-E 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Darrell Timothy Roundtree 2388 South Oakland Park Drive, Apartment 202 Oakland Park, Florida 33309
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent held Florida Teaching Certificate No. 139016 covering the area of history and qualifying him to teach grades 7 through 12. From on or about January 27, 1988, until August 29, 1989 the Respondent was employed by the Board as a teacher at Sandalwood Junior/Senior High School, teaching 8th grade gifted students ranging in age from 13 to 14 years and 11th and 12th grade advanced placement history students ranging in age from 16 to 18 years. Respondent is presently employed by the Board, assigned to the Media Center in Jacksonville, Florida where he was assigned on August 29, 1989. Prior to his present employment with the Board, the Respondent had been employed by the Florida Community College of Jacksonville (FCCJ) for 21-1/2 years as a teacher/administrator. Before assuming his teaching duties at Sandalwood, Respondent had read the Code of Ethics of the Education Profession and understood and accepted the obligations and responsibilities placed on him by the code. On June 21, 1989, S.L.W. ran away from her home in North Carolina and while standing outside of a local fast food restaurant, a short distance from her home, an individual called Adrian Freeman offered her a ride. S.L.W. was not acquainted with Freeman before he offered her a ride. Freeman learned from S.L.W. that she had run away from home and offered to help her and not tell anyone. S.L.W. spent the night at Freeman's house and while there she became intoxicated and "passed out." While S.L.W. was passed out, Freeman sexually assaulted her. The next day, June 23, 1989, S.L.W. decided to leave Freeman's house and he drove her to the bus station. At first, S.L.W. was going to Myrtle Beach but because the bus for Jacksonville, Florida left earlier she decided to go to Jacksonville. Before S.L.W. left for Jacksonville, Freeman made arrangements with the Respondent for him to meet S.L.W. in Jacksonville and find her a place to stay. Upon arriving in Jacksonville, S.L.W. was met at the bus station by Respondent. The Respondent told S.L.W. that he was a high school teacher. S.L.W. told Respondent that she was in the tenth grade and a runaway. Respondent then told S.L.W. that she would be staying at the home of Lee Daniels. Respondent then bought S.L.W. some food. When S.L.W. finished eating he carried her to the home of Lee Daniels but they were told to come back later. Respondent and S.L.W. later returned to the home of Daniels around 10:00 a.m. Respondent showed S.L.W. to her room and told her to take a shower. After taking she shower she put on her clothes and got under the cover. At this point, Respondent returned to the room with an alcoholic beverage for S.L.W. Respondent then told S.L.W. to remove her clothes item by item and once she was undressed began to massage her body. Later Respondent attempted sexual intercourse with S.L.W. and, although Respondent did not have an ejaculation he did penetrate S.L.W.'s vagina with his penis. Respondent then left Daniels' home and was seen by S.L.W. on only two other occasions. There was no physical contact between them on these occasions. S.L.W. remained at Daniels' home for approximately three weeks. Eventually, S.L.W. was picked up by a State Trooper at a bar and through the Jacksonville Sheriff's Department was returned to her mother. S.L.W. identified Respondent for the sheriff's department as the person who sexually assaulted her by pointing him out in a high school year book. Based on this identification, Respondent was arrested and charged with lewd and lascivious assault upon a minor. Respondent's conduct involving S.L.W. was immoral, reflects on his character, not only as an individual but more specifically as a teacher, and is in violation of the Duval County Teacher's Tenure Act and the Code of Ethics of the teaching profession. Although the publicity of Respondent's involvement with S.L.W. created by several newspaper articles and television stories and by word of mouth of the students, teacher and parents of Sandalwood seriously impaired his effectiveness as a teacher at Sandalwood, there was insufficient evidence to show that Respondent's effectiveness as a teacher had been seriously impaired in the Duval County School System as a whole.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, RECOMMENDED that the Board enter a Final Order finding Respondent guilty of having violated Section 4(a) of the Duval County Teacher Tenure Act and terminating his employment with the Board. DONE AND ENTERED this 12th day of July, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 12th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6704 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-4. Adopted in Findings of fact 1, 3, 2 and 4, respectively. 5-7. Rejected as not being material or relevant to this case or not being supported by any substantial competent evidence in the record. 8. Adopted in Finding of Fact 5. 9-10. Adopted in Finding of Fact 2. 12-55. Adopted generally in Findings of Fact 6 through 19, otherwise rejected as not being material or relevant, or being redundant or subordinate, or not supported by any substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Adopted in Finding of Facts 2 and 3. 3.-4. Adopted generally in Finding of Fact 17, otherwise rejected as not being material or relevant. Rejected as not being material or relevant. Covered in Preliminary Statement. 7.-10. Adopted generally in Findings of Fact 6-17, otherwise rejected as not being material or relevant, or redundant or subordinate, or not supported by any substantial competent evidence in the record. 11.-15. Adopted in Findings of Fact 19, otherwise rejected or not being material or relevant, or being redundant or subordinate, or not being supported by any substantial competent evidence in the record. 16. Rejected as not being supported by any substantial competent evidence in the record. See Findings of Fact 10 through 18. COPIES FURNISHED: Dr. Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207 Gail A. Stafford, Esquire 421 West Church Street, Suite 715 Jacksonville, Florida 32202 David A. Hertz, Esquire 1601 Atlantic Boulevard Jacksonville, Florida 32207 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-certified teacher authorized to teach mathematics. She holds Florida Educator's Certificate No. 801286, which covers the five-year period ending June 30, 2003. Respondent was a teacher for more than a decade in Michigan before moving to Florida. She began teaching in Florida in or around September of 1998, when she was hired to teach mathematics at Deerfield Beach High School (DBHS). Respondent taught at DBHS only into the early part of the second semester of the 1998-1999 school year, when she was removed from the classroom following her arrest, during the early morning hours on January 17, 2002, for lewd and lascivious conduct. The arrest occurred at Athena's Forum, a club that Respondent and her then fiancée, William Markowitz, had read about in a magazine article about "swing clubs." The article "peaked [their] interest to go in[to one of these clubs] and see what it was all about." Respondent and Mr. Markowitz entered Athena's Forum at approximately 9:30 p.m. on Saturday, January 16, 1999. Neither she nor Mr. Markowitz had been to the club before. They were stopped in the vestibule and asked to fill out and sign a membership application and to pay a membership fee of $75.00, which they did. They were then allowed to go into the interior of the building. There were signs posted in the vestibule and elsewhere in the club cautioning that those who might be offended by "sexual activity or nudity" should not enter the club. Upon entering the interior of the building, Respondent and Mr. Markowitz went to the bar and ordered drinks. They later went to the buffet area where food was being served to get dinner. They brought their dinner to a table "at the stage level," where they sat down and ate. It was "very dark" there. They spent the rest of the evening sitting at their table (next to each other) listening to music and watching "people coming and going throughout the club." On occasion, they got up to dance. There were at least 50 people in the club that evening, some of whom were in various states of undress, being "fondl[ed]" and "touch[ed]" by others. Respondent and Mr. Markowitz, however, both remained clothed throughout their stay at the club. Among the other people in the club that evening was Deputy John Duncan of the Broward County Sheriff's Office (BCSO). Deputy Duncan was there, along with eight to 12 other law enforcement officers, as part of a BCSO undercover operation. Deputy Duncan had been to the club on a prior occasion to conduct "surveillance." He had gone there at the direction of his supervisor, Sergeant Barbara Stewart. Sergeant Stewart had advised Deputy Duncan and the other participants in the undercover operation that a "tip" had been received that "lewd activity was supposedly going on inside the club" and that they "were going in there to look for" such activity and to see if "any narcotics [were] being sold." During that first visit, the club was "dead." The bartender, however, told Deputy Duncan that there were other times, including "certain nights [designated as] couples nights, that things [did] go on" at the club. Among these "things," according to the bartender, was "sexual activity." Deputy Duncan returned to the club at approximately 10:00 p.m. on January 16, 1999. He gained entry to the interior of the building after showing his "membership number" to a woman "at the front desk," giving the woman a "bottle of liquor" he had brought with him, and having his "cover charge" paid (by a fellow undercover officer). Deputy Duncan, along with Sergeant Stewart, who was part of the BCSO undercover operation at the club that evening, proceeded to the "northwest section of the bar," where they sat down. Next to the bar was a "dance floor." There were tables and chairs surrounding the "dance floor." Approximately 30 feet from where he was seated at the bar, in the area of the "dance floor," Deputy Duncan observed a "white female," 3/ standing up, straddling the right leg of a "gentleman" sitting on a chair. The "white female" was wearing a tight-fitting, black spandex dress. Deputy Duncan saw the "gentleman" "lift her dress up" above her vaginal area. It appeared to Deputy Duncan that the "white female" did not "have any underwear on." The "gentleman" then proceeded to fondle the "white female's" vaginal area. This went on for two to five minutes. At no time did the "white female" attempt to pull down her dress or otherwise cover her vaginal area. Neither she, nor the "gentleman," made any effort to hide what they were doing. Although Deputy Duncan considered the "white female's" and the "gentleman's" conduct to be lewd and lascivious, he did not immediately place them under arrest inasmuch as the undercover operation had not concluded. Before the club was "raided" later that evening and arrests were made, Deputy Duncan observed other instances of people in plain view engaging in activities of a sexual nature. He saw, among other things, "women with other women where they were fondling the breast," "women with men doing dirty dancing," and "men and women in corners." In the "back area" of the club, he saw "hot tubs with several naked individuals inside" and rooms where people were "engaging in open intercourse." There were approximately 38 people arrested as a result of the BCSO undercover operation at Athena's Forum that evening. Respondent and Mr. Markowitz were among those arrested. Respondent's and Markowitz's arrests were for lewd and lascivious conduct. The arrests occurred at 1:30 a.m. on January 17, 1999 (after the club had been "raided"). Deputy Duncan was the arresting officer. He believed that Respondent and Mr. Markowitz were the "white female" and "gentleman," respectively (referred to above) whom he had observed earlier that evening in the area of the "dance floor" engaging in conduct that he considered to be lewd and lascivious. Deputy Duncan, however, was mistaken. Respondent was not the "white female" 4/ and Mr. Markowitz was not the "gentleman" 5/ Deputy Duncan had seen. At no time that evening at the club had Mr. Markowitz pulled Respondent's dress up or fondled Respondent's vaginal area. Respondent's and Mr. Markowitz's arrests were two of the "many" arrests Deputy Duncan made at "swing clubs" in the county. Respondent's arrest was reported in the media. It was common knowledge at DBHS that she had been arrested for lewd and lascivious conduct at a "swing club." The Broward County School Board initiated disciplinary proceedings against Respondent. It removed her from the classroom and reassigned her to a "security guard" position pending the outcome of the disciplinary proceedings. Respondent thereafter submitted a letter of resignation, dated January 24, 2000, to the Broward County School Board. In her letter, she stated, among other things, the following: Broward County showed me a warm welcome by taking away my civil rights to privacy and making my entire ordeal a Nationwide joke. No one, except my attorney and my future husband knew of my arrest on January 17, 1999, until the School Board . . . gave information to the local and national media. . . . . The Broward County School Board showed an excellent, motivated and experienced educator that they are more interested in what teachers do after hours than the students' well-being. I was wrongfully arrested on January 17, 1999 in a private club where no children were present. It was not near or on any school grounds and it did not impair my ability to teach. As of this letter, it seems that the criminal charges against me will be dismissed. On February 17, 1999, I was handed a letter that will forever change my life, when I was pulled and submitted to complete ridicule in front of my 4th Period class with only forty minutes to the end of the day. I successfully taught for four weeks and would have continued to successfully teach if the Board had not release[d] my name to the media. After a national debate on the right to privacy my career was destroyed, as well as my life. . . . In August 1999 I was placed on administrative reassignment with pay. I was informed that I would receive a "meaningful" job that would justify my paycheck while we awaited the Administrative Hearing. Once assigned a position, displayed for the world to see, as a security guard for the main School Board Building, I reported my health issues and repeated harassment from the media, school board employees, teachers, and parents. I was informed by Carmen Rodriguez, attorney for the School Board, that the position I was assigned would involve "little or no participation." I asked for a different position but the request was denied. . . . At this point I am unable to return to work due to illness . . . . Therefore, due to the cost to my personal health, lack of financial resources, lack of union support, the fact that I am only an annual contract teacher, being refused a position change, and being denied a Leave of Absence, and the pride to not submit myself to the degrading way you treated my fellow educator, I must with great hesitation resign as an educator in Broward County. I am giving up the battle in the administrative courts to win the war of public opinion. The criminal charges that had been filed against Respondent following her arrest were "dropped by the court" on or about July 18, 2000. Respondent married Mr. Markowitz, but they were later divorced. They still keep in touch with one another, however. Mr. Markowitz tried to help Respondent make the necessary arrangements to attend the final hearing in the instant case, but due to the expense involved and the fact that Respondent had an examination to take, she was unable to be at either of the hearing sites. 6/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the EPC issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 14th day of October, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2002.
