The Issue Whether the teaching certificate of Respondent John Eugene Armstrong should be suspended, revoked or annulled.
Findings Of Fact The Petitioner Professional Practices Council seeks to revoke Respondent John Eugene Armstrong's teaching certificate based on a recommendation filed September 20, 1976, by Hugh Ingram, Administrator of the Council. The Council alleges that the Respondent is guilty of gross immorality and that he failed to perform his duties as educator as required by Section 231.09, Florida Statutes. Pursuant to the raising of the issue of fairness and constitutional guarantees by the hearing panel of the Professional Practices Council and without admitting the validity of the issue, the Council relinquished jurisdiction of the cause and requested that jurisdiction be assumed by a Hearing Officer from the Division of Administrative Hearings. The Petition for the Revocation of Teacher's Certificate filed by the Petitioner on October 7, 1976, contended that Respondent John Eugene Armstrong: "1. On August 16, 1967, at 4:00 p.m. made two threatening phone calls to Mr. Claude O. Hilliard, former principal, using pro- fane language; On or about January 14, 1975, made an obscene gesture with his fingers to Linda Rhodes, a student; On or about June 20, 1975, confronted Mrs. Marilyn H. Bagby, Coordinator EMR, in a classroom and made threatening remarks; On or about November 10, 1975, entered the girls' locker room when the girls were dressing out for class as observed by Coach Ruth Stevens and Coach Geraldine Williams; On or about November 10, 1975, in rela- tion to the incident in Number 4, threatened Ms. Ida L. Shellman, Administrative assistant; On or about December 10, 1975, fondled the upper portion of Gwendolyn Lowe's, a student's, body; On January 29, 1976, in the presence of Mr. R. L. Ballew, Director, Area I, made accusations against Mr. Milton Threadcraft, principal, in a threatening manner; On March 3, 1976, struck Lavern White, a student, on or about his neck causing bruises; On March 12, 1976, struck Johnny Hill, a student lacerating his upper lip; The Respondent Armstrong was first employed by the Board of Education in the public schools of Duval County, Florida, in 1952. He holds valid Florida Teaching Certificate Number 401436. In 1973 he was assigned to Northwestern High School to teach industrial arts and was assigned to teach classes of educable mentally retarded (EMR) students. He taught special education industrial arts classes consisting of seventh and eighth grade students. Respondent stated that he had attempted to obtain a transfer from the Northwestern School on a number of occasions both because of dissatisfaction with the facilities and because of harassment he received from the administration. He stated that discipline was a major problem among EMR students. Various witnesses were called to testify and findings in regard to the aforementioned charges are as follows: The charge that Respondent made threatening phone calls to Mr. Claude O. Hilliard, former principal, using profane language was not proved. The charge that Respondent made an obscene gesture with his fingers to Linda Rhodes, a student, was denied by the Respondent who stated that he did not know what an obscene gesture meant. The student testified that he "shot a bird" at her and demonstrated by position of her fingers. She was a member of Respondent Armstrong's class two years ago and was advised by her counselor, Mrs. Shellman, to write out a complaint against Respondent. Upon observing the demeanor of the witnesses, I find the Respondent did make such a gesture to Linda Rhodes, a sixteen year old student. Considering the testimony of the Respondent and of Mrs. Marilyn H. Bagby, the Hearing Officer finds that Respondent was upset and did in fact make remarks to her concerning a report she made subsequent to her observation of Respondent's teaching and room atmosphere which he had not received and that the witness Bagby was in fact frightened by the presence of the Respondent in her room alone, his close proximity and his tone of voice on or about June 20, 1975. She verbally reported the incident to her supervisors and later made a written report of the incident. Respondent testified that if he threatened her he did not recall it. The Respondent admitted that he did in fact enter the girls locker room when the girls were dressing out for class on or about November 10, 1975. The evidence does not show that the entrance into the girls locker room was for an immoral purpose although he knew or should have known he should not have entered when the girls were in various stages of undress. Considering the testimony of the Respondent and Mrs. Ida L. Shellman, Administrative Assistant, concerning the locker room incident, the Hearing Officer finds that by Respondent's presence with his hands in his pockets, his remarks and his general tone of voice, Mrs. Shellman was in fact threatened and frightened. Respondent testified that he did not recall his conversation relative to the incident as being threatening. The charge that on or about December 10, 1975, Respondent fondled the upper portion of Gwendolyn Lowe's, a student's, body was not proven by the evidence. The charge is that on January 29, 1976, in the presence of R. L. Ballew, Director, Area I, Respondent made accusations against Mr. Milton Threadcraft, the principal, in a threatening manner. The testimony of Mr. Threadcraft is believable when he testified that Respondent accused him of being incompetent and said that he, Respondent, was not going to put up with it. The remarks of Respondent were subsequent to a commotion in the school room in which wood was being thrown about and the Respondent had taken a student by the arms to discipline him. The principal, Threadcraft, was called by other students to witness the actions of Respondent. Respondent was relieved of his duties for the remainder of the day after a later confrontation with the principal and director. The testimony and evidence supports the charge. Charge Number 8 that Respondent struck Lavern White on March 3, 1976, on or about his neck causing bruises was proven by the testimony of the student, Lavern White, and also by a fellow student, Johnnie Hills. Sufficient evidence was not shown that Respondent in fact did strike Johnnie Hills on March 12, 1976, lacerating his lip although the evidence shows that Respondent did use corporal punishment by pushing the student against the wall to discipline him. Respondent attempted to discipline students through physical restraints. The Respondent was dissatisfied with his teaching position in the school to which he was assigned. He had asked to be transferred, he testified, about ten times in three years. The students were a discipline problem. The method of discipline of the students was to use force which, among other things, caused the students to be dissatisfied with their classwork. Order was not kept in the class and objects were thrown about the class from time to time. The Respondent was feared by some of the other teachers and by some of the students. From the general comments of the students of Respondent and the adult staff members, it is evident that the classes of Respondent did not reflect an atmosphere for optimum learning. Respondent appeared resentful of his professional status and uncooperative toward the other members of the educational community. He displayed no interest in the education of his students.
Recommendation Suspend the teaching certificate of the Respondent Armstrong for a period of time not to exceed three (3) years. DONE and ORDERED this 29th day of June, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David A. Barrett, Esquire Post Office Box 1501 Tallahassee, Florida 32302 Donald Nichols, Esquire 320 East Adams Street Jacksonville, Florida 32202
The Issue The issue posed for decision herein is whether or not the Respondent, Henry L. Penia, engaged in acts of immorality or immoral conduct, in that during the month of July, 1978, he improperly touched a female student in an indecent or improper manner on school grounds during school hours in violation of Sections and 231.09, Florida Statutes, and Section 6B-1, Rules of the State Board of Education. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the documentary evidence received and the entire record compiled herein, I hereby make the following:
Findings Of Fact Respondent, Henry L. Penia, holds Florida Teaching Certificate No. 044411, Graduate, Rank III, which by its terms is valid through June 30, 1981, for the areas of elementary education, history and political science. Respondent began his employment with the Hillsborough County School Board in February, 1952, and continued to be so employed until he was discharged on May 10, 1979. Respondent was assigned to LaVoy Elementary School (LaVoy) in 1974, where he taught nursery operations for the trainable mentally retarded (TMR) classified students. By way of background, the Florida Professional Practices Council, Petitioner, received a report from Hillsborough County school officials on May 24, 1979, indicating that Respondent had been charged with immoral conduct with a female student. Pursuant thereto, and under authority contained in Section 6A-4.37, Rules of the State Board of Education, staff of the Department of Education conducted a professional inquiry into the matter, and on September 10, 1979, reported the matter to the Petitioner's Executive Committee. The Executive Committee found that probable cause existed to believe that Respondent is guilty of acts which provide grounds for revocation of his teaching certificate. The Commissioner of Education found probable cause on October 1, 1979, and directed that Petitioner file a petition to revoke Respondent's teaching certificate pursuant to the authority contained in Rule 6A-4.37 of the State Board of Education and the guiding authority in Section 231.28, Florida Statutes. The material allegations of the Petition as filed by Petitioner are that during the month of July, 1978, Respondent committed an act of immorality in that he improperly touched a female student in an indecent manner during school hours on the school grounds of LaVoy. Concluding, the Petition alleged that the Respondent had violated Sections 231.28 and .231.09, Florida Statutes, and Rule 6B-1, Rules of the State Board of Education, in that based on the above-cited alleged conduct by Respondent, he committed acts of immorality which were inconsistent with good morals and the public conscience and failed to set a proper example for students. The Petition adds that Respondent's conduct as alleged was sufficiently notorious to bring the education profession into public disgrace and disrespect and seriously reduced his (Respondent's) effectiveness as a School Board employee. Michael Sails, presently the head custodian at Foster Elementary School, Hillsborough County, was, during times relevant herein, a custodian at LaVoy. During a school day in July of 1978, Mr. Sails, while standing at the rear of Mrs. Evans', a teacher at LaVoy, portable observed Respondent's arm around the neck of Irene (last name unknown) while Respondent and the other students were standing around the agricultural area at LaVoy. Kennedy Watson, the head custodian at Dickinson Elementary School, was, during times material herein, employed as a custodian at LaVoy. During July of 1978, Messrs. Watson and Sails were seated in Mrs. Evans' portable where they could view the agricultural area at LaVoy. Mr. Watson was situated a distance of approximately seven feet from Respondent and Miss Martin when he observed Respondent with his hands and arms around student Irene Martin's breast and crotch areas. Student Martin, according to Watson, is a "very developed teenager". Watson's view was not obstructed when he observed Respondent's hands draped around Miss Martin's crotch and breast. (See location "X" on Petitioner's Exhibit 1.) Mr. Watson, to get a better view of the acts by Respondent toward student Martin, situated himself at the rear of Mrs. Bennett's pod. Mr. Watson observed Respondent and student Martin for approximately ten minutes. Mrs. Bennett, who was in her classroom at the time, observed that something unusual was happening outside her classroom and inquired of Mr. Watson as to what was occurring. Mr. Watson declined to discuss the incident then but agreed to do so later since he was, at that time, very upset about what he had observed. On July 13, 1978, Mrs. Sandra Kilpatrick, a staffing specialist for exceptional education for the Hillsborough County School System and formerly a teacher at LaVoy, sent Mrs. Bennett a message that student Irene Martin was in Respondent's class. Mrs. Kilpatrick confirmed that Irene Martin is a TMR student with an I.Q. of less than 50. Mary Bennett, an employee of the Hillsborough County School System for approximately thirteen years, is presently the Director of the Mentally and Profoundly Handicapped Program for students. Mrs. Bennett serves as diagnostician for student placement. Mrs. Bennett knows Kennedy Watson and recalled the day that Mr. Watson entered her room in July, 1978, when he appeared to be upset. Mrs. Bennett observed Respondent from a distance of approximately sixty feet from her pod with his body closely against Miss Martin in a "bumping, grinding manner" which lasted approximately several minutes. She observed Respondent touch Miss Martin in a few places in the breast area with one of his hands down along side Miss Martin's. Mrs. Bennett emphasized that no training was taking place while Respondent and student Martin were engaged in the conduct as described herein. When questioned specifically about the incident, Mrs. Bennett made certain the fact that no instructional activity was taking place and that Respondent made no attempt to free himself of Miss Martin if indeed that was his claim. She also indicated that no shovel was being used by Respondent for a training activity. After observing the incident, Mrs. Bennett discussed it with Mrs. Kilpatrick later that afternoon and made an attempt to contact Ms. Davidson, the Principal at LaVoy. Mrs. Bennett was sure that the date was July 13 because she left for Ohio to celebrate her parents' fiftieth wedding anniversary on Friday, July 14, 1978. Mrs. Bennett has great distance vision and was not mistaken as to what she observed by Respondent relative to student Martin. Conceding that she was not an expert on guessing distances and that she could be mistaken as to the exact distance that her pod is situated from the area in which she observed Respondent and Miss Martin, Mrs. Bennett was unequivocal in her testimony charging that what she witnessed was not any attempt by Respondent to train or otherwise instruct student Martin. Millicent Davidson, the Principal at LaVoy, is familiar with student Irene Martin. Principal Davidson was formerly a teacher at LaVoy and noted that student Martin has an I.Q. range of a four year old. Student Martin is unable to judge "right" from "wrong" and reacts to physical stimuli differently than a person with a normal I.Q. Principal Davidson also confirmed that student Martin has a habit of grabbing the wrists or hands of persons to gain their attention. (Testimony of Millicent Davidson.) On July 24, 1978, Principal Davidson contacted school security as she observed Respondent in the agricultural area from portable No. 371. (See Petitioner's Exhibit 2.) On that date, while she observed Respondent and Miss Martin, Principal Davidson's view was not obstructed. Irene Martin and the other students were potting plants with Respondent when Respondent grabbed one female student on her buttocks. Principal Davidson observed Respondent's arm draped around student Martin from the time that they left the agricultural area until they reached the portables, at which time the hugging ceased. Principal Davidson related (during the hearing) that physical contact with students was banned at LaVoy. On that day, July 24, 1978, Principal Davidson had a conference with Respondent and security employees Dossinger and Tyrie, wherein Respondent denied that he engaged in any physical touching of students. He was at that time suspended pending the outcome of the School Board hearings which ultimately resulted in Respondent's dismissal from employment. Based on Principal Davidson's observance of Respondent on July 24, and subsequent unfavorable press accounts of the incident relative to the school, she would not want Respondent to return as a teacher at LaVoy. S. E. Dobbins, the Personnel Services Director for the School Board, read several newspaper articles in the "Tampa Times", the "Florida Sentinel Bulletin" and other local newspapers respecting the subject incident between Respondent and student Irene Martin. Veda Bird, the former Principal at LaVoy and a teaching professional for more than forty-seven years, retired from the Hillsborough County School System during 1978. Principal Bird recommended Respondent for employment by the School Board. She observed him on a daily basis and was unaware of any character charges having been leveled against Respondent during his tenure of employment. Principal Bird is also familiar with student Irene Martin. She recalled that student Martin had a habit of grabbing teachers and was generally very vocal and hyperactive while at school. Principal Bird remembered student Martin as being a very strong student who constantly had to be counselled about grabbing instructors and other students to gain their attention. Finally, Principal Bird recalled that Respondent and Mr. Kennedy Watson had personality clashes and that she considered that Mr. Watson thought that Respondent was "out to get his (Watson's) job." RESPONDENT'S DEFENSE Respondent appeared on his own behalf and generally denied all of the material allegations of the Petition for Revocation filed herein. Specifically, Respondent denied that student Irene Martin attended his class on the date of July 13, 1979. He related his policy of not permitting students to attend his classes when they were not assigned to be there. Respondent recalled one occasion wherein he was showing a student how to dig with a shovel. At that time, he stood in front of the student and demonstrated how to dig a hole with a shovel. Respondent denied that there was any body contact between himself and the female student while he gave the digging instructions. Respondent also denied that there was any body contact between himself and a female student during July of 1978, as testified by Mrs. Davidson and Mrs. Bennett. He related that on one occasion he struggled to get Irene Martin back to the classroom area and that he had to, in essence, pull her back from the agricultural area to the class pod. Respondent believed that Mr. Watson's testimony herein was motivated and stemmed from a disagreement he had with Watson concerning the disappearance of approximately two hundred azalea plants that Respondent had given Watson to plant for the school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's Teaching Certificate No. 044411, be REVOKED. RECOMMENDED this 28th day of August, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1980.
The Issue The issue in this case is whether Respondent, Gregory Schmidt, committed the offenses alleged in a Second Amended Administrative Complaint issued by Petitioner, and dated September 6, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact The Department of Education, which the Commissioner is the head of, is the state agency charged with the responsibility to investigate and prosecute complaints of violations of Section 231.2615, Florida Statutes (2001), against teachers holding Florida educator's certificates. Sections 20.15 and 231.262, Florida Statutes. The Education Practices Commission (hereinafter referred to as the "EPC"), is charged with the responsibility of imposing discipline for any violation proscribed in Section 231.2615(1), Florida Statutes. Section 231.2615(1), Florida Statutes. Gregory Schmidt holds Florida Educator's Certificate No. 609739, valid through June 30, 2003, covering the area of Physical Education. At the times material to this proceeding, Mr. Schmidt was employed by Miami-Dade County Public Schools (hereinafter referred to as "M-D Public Schools"). Since March 1987 Mr. Schmidt has been a "teacher on special assignment" participating as a swimming instructor in the "Learn-to-Swim Program." The Learn-to-Swim Program is part of the Division of Life Skills and Special Projects of M-D Public Schools. As its name suggests, the Program is intended to assist students in the M-D Public Schools to learn how to swim. The Executive Director of the Division of Life Skills and Special Projects at all times relevant to this proceeding was Dr. Jayne W. Greenberg. Dr. Greenberg was the immediate supervisor of Mr. Schmidt's and the other teachers in the Learn- to-Swim Program at the times relevant to this proceeding. Mr. Schmidt's May 6, 1999, Confrontation with Lisa Vance. On May 6, 1999, Mr. Schmidt was teaching swimming classes to students from Jose Marti Middle School at Bucky Dent Pool, located in Hialeah, Miami-Dade County, Florida. In addition to Mr. Schmidt, Lisa Vance and David Diamond, Learn to Swim Program teachers, were also conducting classes at Bucky Dent Pool on May 6, 1999. Each teacher was located at a separate "teaching station" in the pool, with Ms. Vance's teaching station located between Mr. Schmidt's and Mr. Diamond's. Ms. Vance had returned to teaching on that day, after a brief absence due to illness. When she arrived that morning she was made aware that the swimming instructors had been told by someone1 in administration that female students were to wear t-shirts over their swim suits, in and out of the pool. Ms. Vance's last class of the day consisted of approximately ten female students who were lined up along the edge of the pool. Ms. Vance, despite having been informed of the t-shirt policy, had instructed her students to remove their t-shirts while in the pool and they had complied. Ms. Vance elected not to follow the policy due to safety concerns for her students, safety concerns shared by Dr. Greenberg. While Ms. Vance was teaching her class, Mr. Schmidt walked to the pool deck where Ms. Vance was located and told her that it was the policy that female students were required to wear t-shirts over their swim suits at all times. Ms. Vance responded, saying something to the effect that she would talk to him later and that she would discuss the matter with the principal, and Mr. Schmidt turned and walked away.2 Although Mr. Diamond, who was approximately 25 yards away from Ms. Vance and Mr. Schmidt, was aware that Ms. Vance and Mr. Schmidt were talking to one another, the tone of their voices was not loud enough for him to understand what they were saying. Ms. Vance was annoyed with Mr. Schmidt for interrupting her class to remind her of the t-shirt policy. She was also annoyed that Mr. Schmidt was attempting to tell her what to do and acting "as though he was in charge." When her class ended, Ms. Vance, still annoyed, went into the pool office where she found Mr. Schmidt and Mr. Diamond sitting. Ms. Vance walked up to Mr. Schmidt, who remained seated, and told him that what he had said to her was unprofessional and that he was not to disturb her again while she was teaching. Although Ms. Vance did not raise her voice, it was obvious from her demeanor that she was angry with Mr. Schmidt. In response to Ms. Vance's comments, Mr. Schmidt asked her whether she was going to throw a clip board at him, despite the fact that she was not holding a clip board. In response to Mr. Schmidt's comment, Ms. Vance replied, "No, I don’t want to" or words to that effect.3 Mr. Schmidt did not, as he testified at hearing, say to Ms. Vance words to the effect that "If you hit me like you did Manny Hahn, I'll defend myself." Ms. Vance turned to begin gathering up her belongings. As she did, Mr. Schmidt, who was still sitting with Mr. Diamond, told her, "I'll kick your ass, you fucking bitch." Ms. Vance finished gathering her belongings and left the building without responding to this threat. After Ms. Vance left, Mr. Diamond admonished Mr. Schmidt for his "unprofessional" comment. Mr. Schmidt suggested at hearing and in Respondent's Recommended Order that he was intimidated or threatened by Ms. Vance and that he made his unprofessional statement in order to dissuade her from attempting to harm him. In particular, he testified that he was afraid that Ms. Vance would throw a clip board at him. His testimony in this regard was not persuasive. The suggestion that Ms. Vance had approached him in a "threatening manner," that she was "screaming and ranting and raving" at Mr. Schmidt, and "telling him that she was going to have him fired; and that she was going to call the police, the School Board and Dr. Greenberg" is not supported by the evidence. Mr. Schmidt, given his gender and size (six feet one inch tall and weighing 210 pounds), the fact that Mr. Diamond was present, and the nature of Ms. Vance's comments and actions, simply had no reasonable basis to be concerned in anyway for his safety. Ms. Vance was reasonably upset and concerned for her physical safety because of Mr. Schmidt's threat that he would "kick [her] ass." Therefore, Ms. Vance asked Mr. Diamond to assist her avoid being alone with Mr. Schmidt in the future. Despite her concern for her safety, Ms. Vance did not immediately report the incident to Dr. Greenberg in the hope that Mr. Schmidt would apologize and the incident could be forgotten. This did not occur. Therefore, in a letter dated June 10, 1999, Ms. Vance asked Dr. Greenberg that, upon her next assignment, she not be "teamed with Greg Schmidt." In support of her request, she related the May 6, 1999, incident to Dr. Greenberg. Mr. Diamond also signed the request as a "witness." In response to Ms. Vance's June 10, 1999, letter, Dr. Greenberg caused an investigation to be conducted about the incident. After an investigation by the Office of Professional Standards of M-D Public Schools, a conference-for-the-record was held with Mr. Schmidt on November 2, 1999. The conference-for- the-record was conducted by Sharon D. Jackson, the District Director of the Office of Professional Standards and was attended by Mr. Schmidt, Dr. Greenberg, Lilia Garcia, District Director of the Division of Life Skills, and Dia Falco and Steve Goldman, representatives of the United Teachers of Dade. Mr. Schmidt was suspended as a teacher for 30 days by M-D Public Schools as a result of the May 6, 1999, incident with Ms. Vance and other events not relevant to this proceeding. At some time during the school year following the May 6, 1999, incident and after an investigation of the matter had been commenced, Mr. Schmidt telephoned Ms. Vance and apologized to her. The evidence failed to prove, as alleged in the Second Amended Administrative Complaint, that Mr. Schmidt "attempted to file a lawsuit" against Ms. Vance or Mr. Diamond "because they [had]reported his behavior to school authorities." Although Mr. Schmidt's threat to Ms. Vance was unprofessional and improper, the evidence in this case failed to prove clearly and convincingly that his conduct constituted "gross immorality" or an act of "moral turpitude." Mr. Schmidt's Threatening Comment About David Diamond. During the fall of 2000 Mr. Schmidt was working with Jo Ann Sutter, who was also employed in the Learn to Swim Program as a paraprofessional swim instructor. Ms. Sutter had known Mr. Schmidt for 15 to 16 years. Between September 5, 2000, and October 24, 2000, Mr. Schmidt made a number of comments to Ms. Sutter about Mr. Diamond's involvement or lack thereof in the May 6, 1999, incident with Ms. Vance. Among other things, Mr. Schmidt told Ms. Sutter that an investigation of the incident had been instituted, that Mr. Diamond was not present during the incident and, therefore, was lying about what he had heard.4 Among the comments Mr. Schmidt made to Ms. Sutter was that "if he got fired, David Diamond was dead."5 The comment was made in a serious tone and without any sign that Mr. Schmidt was kidding. Mr. Schmidt's threat, therefore, worried Ms. Sutter and, after thinking about it a few days, she went to Mr. Diamond to report the threatening statement.6 Given his relationship to Ms. Sutter, it cannot be concluded that Mr. Schmidt wanted or expected Ms. Sutter to relate any of the comments he made about Mr. Diamond, including his comment about Mr. Diamond being "dead" if Mr. Schmidt lost his job, to anyone, including Mr. Diamond. It is more likely than not, that Mr. Schmidt trusted that Ms. Sutter would not repeat his comments. Therefore, the evidence failed to prove that Mr. Schmidt's threatening language was intended to "interfere with [Mr. Schmidt's] colleagues exercise of political or civil rights and responsibilities" or that it was made as a "reprisal against any individual who has reported an allegation of a violation of the Florida School Code or State Board of Education Rules " Mr. Diamond reported that Ms. Sutter had told him that Mr. Schmidt had made a threatening statement and, on October 30, 2000, he gave a written statement concerning what Ms. Sutter had told him to Dr. Greenberg. Although Mr. Schmidt's comment about Mr. Diamond was unprofessional and improper, the evidence in this case failed to prove clearly and convincingly that his conduct constituted "gross immorality" or an act of "moral turpitude." Mr. Schmidt's Use of Excessive Force. In January 2002 M. G. was an 11-year-old male, sixth grade student, attending Parkway Middle Community School. M. G. stood approximately five feet, two inches tall and weighed between 70 and 100 pounds. On January 24, 2002, M. G. attended a physical education class which was taught by Mr. Schmidt. M. G. had first met Mr. Schmidt the day before. During the class, some of the students were throwing rocks. Although the students were not throwing the rocks at one another, one of the rocks, thrown by M. Gi., one of M. G.'s classmates, struck M. G. on the leg. M. G. walked over to where M. Gi. was standing and asked if he had thrown the rock that had struck him. M. Gi. answered "yes." M. G. then asked M. Gi to apologize, but M. Gi. refused. M. G., angered by M. Gi.'s refusal to apologize, shoved M. Gi. There then ensued a shoving match between the two boys. Neither of the boys, both of whom were rather slight in stature, actually threw a punch. Before the shoving match could escalate, Mr. Schmidt intervened. He first put an arm around M. Gi.'s neck, from behind him (commonly referred to as a "choke hold"),7 forced one of M. Gi.'s arms behind his back, and forcefully pushed M. Gi. onto the concrete pavement in a sitting position. After placing M. Gi. on the ground, Mr. Schmidt turned his attention to M. G., who continued to jump and prance around. Both boys, still angry, continued to taunt each other verbally, but Mr. Schmidt stood between them. Mr. Schmidt told M. G. to sit down and when M. G. did not comply, Mr. Schmidt, as he had with M. Gi., grabbed M. G. from behind in a choke hold,8 forced one of M. G.'s arms behind his back, and forcefully pushed M. G., who was resisting Mr. Schmidt's efforts to get M. G. to sit on the ground, face first onto the concrete pavement. After hitting the pavement, M. G. attempted to get up but Mr. Schmidt prevented him from doing so by placing a hand on the back of M. G.'s head with enough force that the left side of his face was forced onto the concrete. M. G., who began to cry, continued to struggle until Mr. Schmidt released him. As Mr. Schmidt released M. G.'s head and allowed M. G. to get up, Annette Burris-Williams9, a teacher at Parkway Middle Community School, came to see what had happened. She witnessed M. G. get up and proceed to walk hurriedly away from Mr. Schmidt and in her direction. M. G. was crying and bleeding from the lip. She stopped M. G. until security personnel, who had also arrived as Mr. Schmidt released M. G. from the ground, took M. G. away. As Mr. Schmidt, who had been following M. G., came up to her, Ms. Burris-Williams asked Mr. Schmidt what had happened, to which Mr. Schmidt matter-of-factly, callously, and inaccurately replied: "He swung at me. He got what he deserved." As a result of Mr. Schmidt's actions, M. G. suffered abrasions to his forehead, primarily on the left side, and his left shoulder, a bruise on the area around his left cheek bone, and a laceration to his bottom lip, which required stitches to close. The incident was subsequently investigated and Mr. Schmidt was arrested and charged with child abuse. These charges were still pending at the commencement of the final hearing. The force used by Mr. Schmidt to subdue M. G. was excessive and unnecessary. M. G. could have easily been subdued by Mr. Schmidt, who was significantly larger and stronger than M. G., had M. G. required subduing, with much less force. G., however, although still angry and excited, did not require subduing. He was not making any real asserted effort to get to M. Gi., because Mr. Schmidt barred his path by his mere presence, he did not initiate any contact with Mr. Schmidt, and he did not swing his fist at Mr. Schmidt or at M. Gi. M. G. merely made the mistake of not following Mr. Schmidt's directive to immediately sit down. Mr. Schmidt's actions, under the circumstances, of placing M. G. in a choke hold, twisting his arm behind his back, pushing him to the ground, and pushing his face into the concrete were inconsistent with the policies of the M-D Public Schools concerning how to intervene in a fight. Mr. Schmidt's actions, which caused physical injuries to M. G., exposed him to unnecessary embarrassment or disparagement, and failed to protect him from conditions harmful to M. G.'s physical safety, constituted "gross immorality" and acts of "moral turpitude." The evidence failed to prove clearly and convincingly, however, that Mr. Schmidt acted under "color of authority of the laws of the State of Florida" to violate M. G.'s "legal rights." Mr. Schmidt's March 4, 2002, Anger Management Group Meeting. Pursuant to a Settlement Agreement entered into by Mr. Schmidt and accepted by the EPC, described in further detail, infra, Mr. Schmidt was participating in the Recovery Network Program (hereinafter referred to as the "RNP") during March of 2002. As part of his participation in the RNP, Mr. Schmidt attended an anger management group meeting (hereinafter referred to as the "Group Session") on or about March 4, 2002. The Group Session was conducted by Carter Wiggins, a clinical social worker, who had been approved at that time to provide services to individuals participating in the RNP. During the March 4, 2002, Group Session, Mr. Schmidt, who owns a .38 caliber revolver, told Mr. Wiggins, "I have a gun." As a result of this statement, Mr. Wiggins, out of concern for the safety of the participants in the Group Session, dismissed the meeting. He also dialed Mr. Schmidt's home telephone number and spoke to someone who identified himself as Mr. Schmidt's roommate. Mr. Wiggins asked the "roommate" whether Mr. Schmidt had any guns, to which the roommate said either "No" or "I don't know." When Mr. Schmidt arrived home after this incident, he took his revolver out of his desk and gave it to Joe Milligan, his roommate. He then asked Mr. Milligan to telephone Mr. Wiggins and tell him that Mr. Schmidt had complied with Mr. Wiggins' request that he turn his gun over to his roommate. Mr. Milligan complied with Mr. Schmidt's request. Mr. Wiggins spoke with Deborah Dove about the events of March 4, 2002, on March 5, 2002. Ms. Dove made the following contemporaneous note in the RNP Educator Activity Log concerning what Ms. Wiggins told her during the conversation: TC from Carter Wiggins; last night at anger group Greg had two guns on Him [sic] and was angry. . . . Last night he had two Guns [sic] on him and appeared explosive. When told Mr. Wiggins was Going [sic] to call police, he indicated there would be a shoot out; he also Stated [sic] there was a sense of hopelessness because he was going to lose Everything [sic]; he ran out of the group. Mr. Wiggins called his home and his Roommate [sic] was able to get the guns from him. Mr. Wiggins and He [sic] called Dr. Kahn today and he will call RNP tomorrow. I spoke to Carter At [sic] 4:15 PM and again at 4:28 PM. . . . Although it is clear that Ms. Dove accurately reported what Mr. Wiggins reported to her on March 5, 2002, the evidence failed to prove clearly and convincingly that these hearsay statements are accurate. Indeed, Mr. Wiggins specifically repudiated almost all of Ms. Dove's account of his conversation with her and no other evidence was presented to prove this hearsay evidence. A counseling session to discuss the March 4, 2002, incident with Mr. Schmidt was scheduled by Mr. Wiggins for March 7, 2002. Mr. Wiggins scheduled the meeting because he felt the need to discuss whether Mr. Schmidt required additional therapy as a result of what had happened on March 4, 2002. On or about March 8, 2002, after Mr. Schmidt had missed the March 7, 2002, counseling session, Mr. Wiggins sent a letter to Mr. Schmidt requesting that Mr. Schmidt contact his office. Mr. Wiggins ultimately referred Mr. Schmidt to a psychiatrist because of the March 4, 2002, incident. On June 5, 2002, Mr. Wiggins wrote to Ms. Dove and informed her of the following: The purpose of this correspondence is to update you regarding Mr. Greg Schmidt's behavior on March 4th, 2002, when during the group session, he made none specific threatening remarks. This concern has been clinically and appropriately addressed during the course of the treatment. The evidence failed to prove clearly and convincingly that Mr. Schmidt appeared at the Group Session on March 4, 2002, in an angry emotional state, that he had two handguns (or even one), that he was advised by Mr. Wiggins or anyone else that the police would be called, that Mr. Schmidt threatened a "shoot out" if the police were called, that one or more persons felt threatened or fearful for their person as a result of Mr. Schmidt's actions that evening, or that, after leaving the session, Mr. Schmidt was "disarmed." While Mr. Wiggins did eventually reluctantly admit at hearing that Mr. Schmidt said "I have a gun," he evaded all efforts of the Commissioner to elicit any further information about the circumstances surrounding this statement or the context in which it was made. As a consequence, the evidence does not clearly and convincingly prove what Mr. Schmidt meant by his comment.10 Without proof of the circumstances surrounding the statement or the context in which it was made, any number of meanings can be attributed to the statement, including that Mr. Schmidt meant to threaten Mr. Wiggins or someone else at the Group Session or that he was simply relating a fact, that he indeed does have a gun, albeit, one that was tucked safely in a desk at his residence when he made the statement. Although Mr. Wiggins' reactions in response to Mr. Schmidt's statement may indicate that the comment was meant as a threat or at least a possible threat, Mr. Wiggins refused to provide evidence to support such a conclusion clearly and convincing. Consequently, any conclusion about what Mr. Schmidt meant when he said, "I have a gun," would be based upon mere speculation and not clear and convincing evidence. Previous Disciplinary Action. On or about October 7, 1999, an Administrative Complaint was issued against Mr. Schmidt. In pertinent part, the October 7, 1999, Administrative Complaint alleged the following factual basis for taking disciplinary action against Mr. Schmidt's teaching certificate: 3. On or about October 23, 1997, Respondent made inappropriate threatening and abusive remarks toward one of his students Z.H. Respondent called the student a "Black Bitch" and a "Punk" and asked him to take a swing so he, the Respondent, could knock him out. On or about January 7, 2000, Mr. Schmidt agreed to and did execute a Settlement Agreement resolving the charges of the October 7, 1999, Administrative Complaint. Although the Settlement Agreement provides specifically that Mr. Schmidt, by entering into the Settlement Agreement, "neither admits or denies . . . the allegations set forth in the Petitioner's Administrative Complaint . . . ", Mr. Schmidt agreed to the following disciplinary actions: . . . . The Respondent agrees to accept a letter of reprimand, a copy of which shall be placed in his certification file with the Department of Education, and a copy of which shall be placed in his personnel file with the employing school district. The Respondent agrees, within sixty days of issuance of the Final Order accepting this settlement agreement . . . to undergo such evaluation relating to issues cited in the Administrative Complaint, as determined by the Recovery Network Program to be appropriate, to submit to said evaluation by a qualified provider approved by the Recovery Network Program, and undergo any counseling or treatment as may be prescribed by said professional. The Respondent shall provide the EPC with written verification of successful completion of the evaluation and any recommended treatment. . . . . The Respondent agrees that he shall be placed on probation for a period of 2 years, commencing upon the issuance of the Final Order by the Education Practices Commission [EPC] accepting this settlement agreement if the Respondent is currently employed as an educator in Florida. . . . In the event that the Respondent's employment in the teaching profession is interrupted for any reason prior to the expiration of the probationary period, the probationary period shall be tolled until such time as the Respondent resumes employment as an educator in Florida. As conditions of probation, the Respondent shall: . . . . violate no law and shall fully comply with all district school board regulations, school rules and State Board of Education Rule 6B-1.006; and, satisfactorily perform his assigned duties in a competent, professional manner. Waiving the statutory procedures of Section 231.2615(6), Florida Statutes (formerly number Section 231.28(6), Florida Statutes (1999)), for disciplining an educator's teaching certificate for a violation of the terms of the educator's probation, Mr. Schmidt, in executing the Settlement Agreement, agreed to the following: 7. In the event the Respondent fails to comply with each condition of probation set forth herein, the Respondent agrees that the Petitioner shall be authorized to file an Administrative Complaint for sanctions up to and including the revocation of his teaching certificate based upon the violation of the terms of this agreement. On or about March 10, 2000, the EPC issued a Final Order in the case of Tom Gallagher, as Commissioner of Education vs. Gregory Schmidt, EPC Case No. 99-0335-RT, at a meeting on February 25, 2000, accepting the Settlement Agreement. Pursuant to the Settlement Agreement, Mr. Schmidt's two-year probation period began to run March 10, 2000, and ended on March 10, 2002. In the Second Amended Administrative Complaint filed in this case, it is alleged that Mr. Schmidt violated his probation and, thus, the terms of the Settlement Agreement, "by committing the acts described [in the Second Amended Administrative Complaint]." The incidents involving Ms. Lance described in Section A, supra, took place before Mr. Schmidt was placed on probation and, therefore, do not support the allegation that he violated the terms of his probation. The incident involving Mr. Diamond described in Section B, supra, took place during September or October 2000, and therefore, occurred during the probation period. Mr. Schmidt's comment concerning Mr. Diamond, however, did not constitute a violation of the "law" or "district school board regulations," "school rules," or "State Board of Education Rule 6B-1.006." The incidents involving M. G. described in Section C, supra, took place on January 24, 2002, and, therefore, occurred during the probationary period. To the extent those incidents have been determined to be violations of "district school board regulations, school rules and State Board of Education Rule 6B- 1.006," Mr. Schmidt violated the terms of his probation. Finally, the incidents alleged to have occurred during the Group Session on March 4, 2002, described in Section D, supra, while occurring during the probation period, have not been proved to constitute a violation of "district school board regulations, school rules and State Board of Education Rule 6B- 1.006." G. Mr. Schmidt's Effectiveness as an Employee of the M-D Public Schools. The evidence failed to prove clearly and convincingly that any of Mr. Schmidt's actions with Ms. Vance or Mr. Diamond constitutes conduct "which seriously reduces his effectiveness as an employee of the school board."11 The evidence also failed to prove clearly and convincingly that Mr. Schmidt's violation of the terms of his probation constituted conduct "which seriously reduces his effectiveness as an employee of the school board." Mr. Schmidt's mistreatment of M. G., however, does constitute conduct "which seriously reduces his effectiveness as an employee of the school board."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Gregory Schmidt has violated Section 231.2615(1)(c), (f), (i), and (k), Florida Statutes, and Rule 1.006(3)(a) and (e), and 1.006(5)(d), and (o), Florida Administrative Code, and permanently revoking his Florida Educator's Certificate. DONE AND ENTERED this 16th day of May, 2003, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 16th day of May, 2003.
The Issue The issues to be determined are whether Respondent, Monroe Shannon, violated sections 1012.795(1)(d), (g), or (j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Administrative Complaint, and, if so, what are the appropriate sanctions?
Findings Of Fact The commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Mr. Shannon holds Florida Educator Certificate 734423, covering Educational Leadership, School Principal, and Business Education, which is valid through June 30, 2018. At all times material to this case, Mr. Shannon was employed as an assistant principal at Congress in the Palm Beach County School District. He is a 16-year employee of the School District. Mr. Shannon was transferred to Congress as assistant principal during the early portion of the 2011-2012 school year. Ms. Gina Marie Dempsey was an eighth-grade teacher at Congress during the 2011-2012 school year. She had been introduced to Mr. Shannon early in the school year and saw him frequently in the lunchroom or hall, but other than that, had little reason to be in contact with him, for he was the assistant principal for the seventh grade. Ms. Dempsey credibly testified that Mr. Shannon was a little inappropriate in his comments to her. He asked her where her friends hung out, whether he could be her friend on Facebook, and if she wanted to go out with him for drinks. When he asked her out, she indicated she did not hang out with administration. On September 15, 2011, there was an open house at Congress. Ms. Dempsey was dressed up, wearing stiletto heels. As the open house concluded, Ms. Dempsey was walking down the hall toward her car when she encountered Mr. Shannon. No one else was in the hall. He told her, "I really like those heels. I would like to see you only in those heels." As he made this statement, Mr. Shannon was rubbing his hand in the general area of his genitals. He then asked Ms. Dempsey if she needed an escort to her car. She said no. Mr. Shannon said, "It is getting dark and you need protection." Ms. Dempsey told him that she had an Easton bat in her car and that she could take care of herself. Mr. Shannon said, "All right, all right." Ms. Dempsey felt that the heel comment was "off color." She believed his statements and actions were inappropriate, especially for a married administrator to direct to a teacher. Ms. Dempsey reported the incident to her assistant principal, Ms. Cheryl Van Voorhies, saying she did not want Mr. Shannon in her classroom or her hallway. Ms. Michele Wertman (now Ms. Regan) graduated from Florida Atlantic University in 2009. During the 2011-2012 school year, she was 23 years old and had taught for two years. She was teaching seventh-grade English at Congress. Shortly after the start of the school year, a student in her fourth-period class, which was always difficult to manage, made an inappropriate sexual remark toward her. Ms. Wertman went to Mr. Shannon, as the new assistant principal for the seventh grade, to find out what should be done. Rather than assist her, Mr. Shannon told her, "Well, you know you are a sexy teacher, what do you expect?" or words to that effect. Ms. Wertman immediately reported the incident to Ms. Janis Rosencrans, the Classroom Teachers Association representative, who credibly testified that Ms. Wertman was visibly upset and in tears when she did so. Ms. Rosencrans in turn advised the principal, Ms. Harris, about the incident. This incident made Ms. Wertman upset and uncomfortable, particularly since Mr. Shannon had earlier asked if she was on Facebook, asked if she and her roommate wanted to go out for drinks, and asked if he could take her out. She had declined and had never socialized with Mr. Shannon. She did not feel it was appropriate for an assistant principal to be seeking a personal relationship with a teacher he supervised. Ms. Wertman continued to have problems with the behavior of her students in her fourth-period class. She concluded it was just a bad combination of students, since her other four classes were wonderful. She approached Mr. Shannon to see if some students could be switched because the existing classroom dynamic was not at all conducive to learning. In response, Mr. Shannon told her that perhaps she needed to transfer to a "west school" and that she was probably "too white" to work at Congress, which was a predominately black school. Ms. Wertman was shocked and upset and started crying in Mr. Shannon's office. She had gone to Congress as a student and never felt that she was out of place because of her race or color. Mr. Shannon then told her that "if you don't do A, B, or C, then, it will cost you your job and you won't be here next year." Ms. Wertman did not know what Mr. Shannon meant by this last remark, but became insulted and angry at the way Mr. Shannon was treating her. She immediately left and went to see Ms. Rosencrans. After hearing Ms. Wertman's story, Ms. Rosencrans told Ms. Wertman that she should go to the principal, which she did. Ms. Harris told Ms. Wertman that she would report the incident. On several occasions, Mr. Shannon would use his key to enter Ms. Wertman's locked classroom unannounced. While Mr. Shannon, as the assistant principal for seventh grade, had authority to observe seventh-grade teachers and evaluate them, Ms. Wertman never received any evaluations from any of these visits. She stated: And he would just take his aide key and he'd walk in and he'd stalk around the classroom and holding his belt buckle and he kind of like threw his weight around, like just his body language. Ms. Wertman felt intimidated and uncomfortable with these visits. On one of these occasions, Mr. Shannon told her fourth-period students: You know, you guys should really listen to Ms. Wertman. You have a really, you know, sexy teacher . . . . You have a fine looking teacher here. Ms. Wertman felt that she was being sexually harassed by Mr. Shannon and that Ms. Harris was allowing it to go on. She thought that if this was how the school system operated, she could not teach any longer. She quit her job on the last day before the Christmas break. She did not return to teaching during the rest of that school year and the year following. S.D., formerly an eighth-grade student at Congress, also testified about an incident involving Mr. Shannon. She testified that he told her that he "wished she was old enough," that he told her she "couldn't handle him," and that he "grabbed her [best friend's] behind." That testimony, however, was not clear and convincing. First, her testimony was a bit unclear as to when and where the statements were made. She said the statements were made in a conference room with another assistant principal present. But at another point in her testimony, she said that Mr. Shannon made the comment "walking through the hallway just saying that he wished I was old enough." Second, while she alleged that at least one other student and another assistant principal were present when the statements were made, there were no corroborating statements or testimony from them that they heard the statements or why they might not have heard them if they were made. Third, there were inconsistencies between her written statement given on the date of the incident and her later testimony at hearing. In her written statement, she stated that Mr. Shannon touched her face, but said nothing about him inappropriately touching her friend. At hearing, she stated that he had earlier "grabbed her [best friend's] behind," but said nothing about him touching her face. If Mr. Shannon had "grabbed the behind" of her friend, it seems remarkable that that incident would not have been part of her original written statement. Finally, Mr. Shannon testified that S.D. was being confrontational and that there was nothing sexual about the conversation. He testified that S.D. had balled up her fists and that comments that he "wished she was old enough" and about her "not being able to handle him" were related to her aggressiveness. At one point during cross-examination, S.D. seemed to concede that this might be the case: Q: Isn't it true when he said he wished you were old enough, again, that was in response to you coming at him physically and him wishing you were not a minor at the time? A: Yep. S.D.'s testimony, taken as a whole, was simply not precise or explicit enough to leave a firm conviction as to the truth of her allegations. On February 2, 2012, T.S., an eighth grader at Congress, encountered Mr. Shannon in the hall. Mr. Shannon put his arm around her and whispered in her ear, "You need a man." T.S. testified that Mr. Shannon's putting his arm around her did not make her feel uncomfortable, but that Mr. Shannon's whispering that "you need a man" in her ear did. T.S. testified that as far as she knew, in the crowded hallway with all of the students busy making their way to their classes, she was the only one that witnessed the conversation. At her next class, T.S. asked her reading teacher, Ms. Banks, if she "could keep a secret." When Ms. Banks told her she could, T.S. then replied, "well, I can just say it because they [the other students] know." After T.S. relayed what had happened, Ms. Banks directed T.S. to write a statement about the incident. In February 2012, Mr. Shannon was investigated for alleged acts of sexual harassment. In a letter from Ms. Mara Stafford, the director of Recruitment and Retention for the School District of Palm Beach County, dated February 16, 2012, Mr. Shannon was advised that he was to be the assistant principal at Citrus Grove Elementary School. He did not begin working there, however, because he was subsequently called and told he would not be reporting to the new position. On May 16, 2012, Mr. Shannon received a letter from Ms. Janis Andrews, chief academic officer of the School District of Palm Beach County, advising him that he would not be recommended for reappointment. The letter advised him that he could apply for vacant positions for which he qualified. His employment was thereby terminated a couple of weeks later at the end of his contract period. Mr. Shannon applied for a teaching position with many schools. There was an opening at Carver, and he was interviewed by the principal there, Ms. Lena Wallace. Mr. Shannon was hired for the teaching position and was reassigned to Carver. Mr. Shannon was issued a letter of reprimand by the School District dated August 20, 2012. Mr. Shannon's actions and remarks toward Ms. Dempsey when he encountered her in the hall after the open house constituted sexual harassment. Mr. Shannon's actions directed toward Ms. Wertman, his comments to her, and comments about her to her students, constituted sexual harassment and discriminatory conduct. Mr. Shannon's actions directed toward Ms. Wertman and his comments to and about her, unreasonably interfered with Ms. Wertman's performance of her professional and work responsibilities. Mr. Shannon's conduct toward T.S., an eighth-grade female student, constituted sexual harassment and failed to protect her from conditions harmful to learning or her mental health. However, there was insufficient evidence that he exposed her to unnecessary embarrassment or disparagement. These inappropriate behaviors of Mr. Shannon seriously reduced his effectiveness as an employee in the School District. There was no evidence that Mr. Shannon engaged in any inappropriate behaviors after he was given a teaching position at Carver beginning with the 2012-2013 school year. Ms. Wallace, aware of allegations against Mr. Shannon, advised him that if there were any incidents involving him, that she would "fire him immediately, and it would stick." Ms. Wallace testified that Mr. Shannon was very student-oriented, did everything that was expected of him, and worked professionally. At the time of the hearing, Mr. Shannon had been employed as a teacher at Carver for three school years. There was no evidence that Mr. Shannon's teacher certificate has been subjected to prior discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Monroe Shannon, in violation of sections 1012.795(1)(g) and (j) and implementing rules 6B-1.006(3)(a), 6B-1.006(3)(g), and 6B-1.006(5)(d). It is further RECOMMENDED that the Education Practices Commission impose upon Mr. Shannon a fine of $500.00 for each offense, for a total fine of $2,000.00, and revoke his educator certificate for a period of two years. It is further RECOMMENDED that educational employment upon recertification be subject to three years of probation as provided by section 1012.796(7)(d) with conditions determined by the Education Practices Commission to be reasonably necessary to ensure that there will be no threat to students and that he will be capable of resuming the responsibilities of an educator. DONE AND ENTERED this 31st day of July, 2015, 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 31st day of July, 2015.
The Issue Whether Respondent's teaching certificate should be revoked, suspended or otherwise disciplined for the violation alleged in the Administrative Complaint filed by the Petitioner.
Findings Of Fact At all times material to this proceeding, the Respondent held a Florida teaching certificate, number 652475, covering the area of substitute teaching, which is valid through June 30, 1993. At all times material to this proceeding, the Respondent was an authorized substitute teacher for the Pinellas and Manatee County School Districts. During the spring of 1990 Respondent was employed as a substitute teacher with the Manatee County School District and assigned as a teacher at Southeast High School. Respondent was an authorized substitute teacher for the Pinellas County School District, but after certain allegations arose concerning improper conduct by Respondent toward a student Respondent was not called to substitute. On May 3, 1989, the Respondent was arrested in Pinellas County and charged with soliciting a 14 year old child for sexual activity while in the position of custodial authority to the child. The child was a student in Respondent's class at Baypoint Middle School where Respondent was employed as a teacher by the Pinellas County School District. On May 3, 1989, Respondent was also arrested and charged with unlawfully obtaining a Florida Driver's license. In July 1989, the state attorney filed a two-count Information charging Respondent with procuring a person less than sixteen years for prostitution, and for soliciting for prostitution. Also, in July 1989, the state attorney filed an Information charging Respondent with knowingly making false statements, knowingly concealing a material fact, or otherwise committing fraud in an application for a Florida driver's license. On April 8, 1990, the Respondent was arrested in Pinellas County and charged with driving with a suspended driver's license. On April 27, 1990, the Respondent entered a plea of guilty to the charge of driving with a suspended license and was found guilty. The court withheld adjudication of guilt, and Respondent was ordered to pay $30.00 in costs. On May 4, 1990, Respondent was arrested and charged with petit theft. On June 21, 1990, the state attorney filed an Information charging Respondent with knowingly and unlawfully obtaining or using or endeavoring to obtain to use the property of another, to wit: petit theft, a second degree misdemeanor. On June 30, 1990, the Respondent entered a plea of guilty to the charge of petit theft. The court adjudged the Respondent's guilty and ordered him to pay a fine of $150.00 plus costs. On May 14, 1991, the Respondent entered a plea of nolo contendere to the charges of procuring a person less than sixteen years for prostitution, soliciting for prostitution, and making a false application for driver's license. The Respondent was represented by the Public Defender's office. The court withheld adjudication of guilt and imposition of sentence. The Respondent was placed on three years probation which included one year in the Community Control Program. The Respondent did not attempt to refute the above charges at the hearing. The Manatee County School Board became aware of Respondent's arrest in Pinellas County for solicitation of a minor and of certain alleged misconduct toward students at Southeast High School in Manatee County by the Respondent at the end of the 1989-90 school year. However, the Petitioner did not present any competent, substantial evidence of this alleged misconduct. The only evidence presented by the Petitioner was hearsay. There was insufficient evidence to show that Respondent's effectiveness as an employee of the School Board of Manatee County had been seriously reduced as a result of his personal conduct, notwithstanding that the Manatee County School Board would not rehire Respondent as a result of his personal conduct coming to their attention or the fact that his arrest and criminal history was reported in the Bradenton Herald, a daily newspaper circulated generally in Manatee County and the City of Bradenton. On September 4, 1990, in an attempt to secure employment with the District of Columbia Public Schools, Respondent signed a Disclosure Statement under penalty of perjury which included the following statement: I declare or affirm under penalty of perjury that I have not been convicted of, and or/am not the subject of pending charges for, the commission or attempt to commit any of the following offense(s), except as described below: murder; child abuse; rape; a sexual offense involving a minor or non-consenting adult; child pornography; kidnapping or abduction of a child; assault where the victim was a child under the age of sixteen years; illegal use, sale or distribution of controlled substances; illegal possession or use of weapons; or a crime of moral turpitude (i.e., one characterized by behavior or acts that violate moral sentiments accepted moral standards of the community and are of a morally culpable quality). I further certify that I am the applicant whose signature is affixed below. Although the Disclosure Statement provides a place for the description of convictions or pending charges, the Respondent did not list the conviction for petit theft or the pending charges of procuring a person less than sixteen years for prostitution, solicitation for prostitution and making false application for a driver's license that were pending in Pinellas County or the charges pending at the time in Manatee County for solicitation of a child for sexual acts by a person in custodial authority and solicitation of sex.
Recommendation Having considered the foregoing Findings of Facts and Conclusions of Law, it is, accordingly, RECOMMENDED: That a Final Order be entered finding Respondent, Kenneth K. Long guilty of violating Section 231.28(1)(c)(e) and (h), Florida Statutes and Rule 6B- 1.006(5)(a)(g) and (h), Florida Administrative Code, and for such violation permanently revoke Respondent's Florida teaching certificate No. 652475. It is further recommended that Counts III, VI, VII and VIII of the Administrative Complaint be dismissed. DONE and ENTERED this 27th day of August, 1992, in Tallahassee, 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 27th day of August, 1992. APPENDIX TO RECOMMENDED ORDER In Case No. 92-7879 The following constitutes my specific ruling pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number is parenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); 5(5); 6(11); 7(7); 8(8); 9(9); 10(10); 11(12); 13(12); 14(13); 16(13); and 17-18(14). Proposed findings of fact 12 and 15 are rejected as not being supported by competent, substantial evidence in the record. Proposed finding of fact is more of an argument to support proposed finding of fact 18 than a proposed finding of fact. Respondent did not file any proposed findings of fact with the Division of Administrative Hearings. COPIES FURNISHED: Margaret O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Kenneth K. Long 5301 85th Avenue #202 New Carrolton, MD 20784 Karen Barr Wilde, Exec. Dir. 301 Fla. Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
