The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent’s employment as a teacher.
Findings Of Fact Background The School Board is a duly constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. 1 At the conclusion of the hearing, the parties stipulated that students N.E., C.Z., T.C., and S.M., were unavailable, and that their deposition testimony, included within the School Board’s Exhibit No. 12 and Respondent’s Exhibit Nos. 16 through 18, could be received in evidence in lieu of their live testimony. The School Board hired Respondent in 2010 as a teacher at Campbell Drive K-8 Center ("Campbell Drive"), a public school in Miami-Dade County. During the 2016-2017 and 2017-2018 school years and at all times relevant to this case, Respondent was employed at Campbell Drive as an intensive reading teacher pursuant to a professional services contract. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade ("UTD"). The alleged conduct giving rise to the School Board’s proposed suspension and termination of Respondent occurred during the 2016-2017 and 2017-2018 school years. Allegations Involving K.S. The School Board alleges in paragraph 10 of the Notice of Specific Charges that during the 2016-2017 school year Respondent made grossly inappropriate physical and verbal sexual contact with K.S. At the time of the alleged conduct, K.S. was a female 12-year-old student in Respondent’s seventh-grade intensive reading class. Specifically, paragraph 10 of the notice alleges: During the course of the school year, beginning sometime after the Winter Recess, he would touch her private area over her clothing. On one day during lunch, the Respondent requested that this student come to his room during lunch to make up a test. When she arrived in the room, the Respondent initiated physical sexual contact with the student. In addition to touching the girl beneath her clothes, the Respondent exposed himself to her and had her touch his private area. After the brief encounter, the girl exited the room. During the course of the school year the Respondent also asked her to engage in sexual acts and made sexual comments to her. The School Board further alleges in paragraph 10 of the notice that during the 2017-2018 school year, when K.S. was a student in Respondent’s eighth grade intensive reading class, "Respondent requested a sexual favor from [K.S] on a small note that he had handed her." At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with K.S. 2 K.S.’s Written Sworn Statement to Detective Webb On March 2, 2018, K.S. was interviewed by Detective Steven Webb, with the School Board’s police department, regarding alleged inappropriate sexual conduct by Respondent against her. That same day, K.S. gave a written sworn statement to Detective Webb, received into evidence as Respondent’s Exhibit No. 11. In this sworn statement, K.S. stated that during the 2016-2017 school year, Respondent "became sexually active with students, he did multiple things." K.S. went on state that Respondent: started off by touching my private area and then he advanced a couple of days later by pulling his pen[n]is (sic) out and grabbing my hand and, placing it there. One day he sent a student to get me from the cafeteria and on the pass it stated that I had to make up a test, but when I entered his class he rubbed my breast, and started to suck them for about 10 to 15 seconds, and then I pushed him away. He was dropping my grade until I did the things he wanted me to do with him which is to have sex, give him head, thing of that nature. Recently, about 2-3 weeks ago he asked me to do things with him and that’s a reason to why I left early recently. 2 K.S. did not complete her seventh-grade school year at Campbell Drive. Before the school year ended, the principal of Campbell Drive asked K.S. to leave the school because of disciplinary problems involving physical altercations with other students and defiant behavior. K.S. subsequently enrolled in Villa Prep Academy, a private school where she completed her seventh-grade year. K.S. did not attend Villa Prep Academy for very long because she was dismissed from that school during the early part of her eighth-grade year. In December 2017, K.S. re-enrolled in Campbell Drive. Upon her return, K.S.’s mother requested that she be put in Respondent’s classroom and K.S. was a student in Respondent’s eighth-grade intensive reading class for the remainder of the 2017-2018 school year. There was nothing mentioned in K.S.’s written sworn statement about Respondent engaging in any inappropriate conduct toward K.S. while she sat at her desk in Respondent’s classroom. K.S.’s Audio Recorded Interview with Detectives Webb and Ochoa In a subsequent audio recording interview of K.S. on March 2, 2018, by Detective Webb and Detective Gil Ochoa, received into evidence as the School Board’s Exhibit No. 5, K.S. initially described the cafeteria pass incident as follows: K.S. stated she left the cafeteria with her food tray in hand and went to Respondent’s classroom. Upon entering Respondent’s classroom, she began telling him things about her family. K.S. stated Respondent then took away her food tray, set the tray down, and pulled her over to another area of the room, at which time he touched her breasts over her shirt, lifted up her shirt and sports bra, exposed her breasts, and sucked on one of her breasts for about 10 to 15 seconds. K.S. stated she got scared and left the classroom, and that is all he did that day. K.S. failed to mention anything about Respondent pulling out his penis on this occasion until asked specifically about it by Detective Ochoa near the conclusion of the interview. School Board’s Ex. 5 at 13:22. K.S. then stated that she saw his penis, but she was scared and looked away. K.S. made no mention of Respondent placing her hand on his penis. During this interview, K.S. went on to describe another occasion in Respondent’s class that occurred after school was dismissed for the day. According to K.S., on this particular occasion, Respondent asked her "to give him head" and "to have sex with him." However, according to K.S., it never happened. K.S. further stated that recently (two to three weeks ago), Respondent asked that she "give him head." There was no mention in this interview of Respondent touching K.S.’s vaginal area or dropping her grades. The entire audio recorded interview lasted approximately 15 minutes. At the conclusion of the interview, K.S. was asked if there was anything else that she remembered that she wanted to add. K.S. declined and she did not state any other alleged inappropriate physical and verbal sexual contact by Respondent. K.S.’s Testimony at Hearing At the final hearing, K.S. testified that toward the beginning of the 2016-2017 school year, Respondent moved her seat next to his because she was easily distracted by the other students and failed the first test. Subsequently, the following exchange occurred between counsel for the School Board and K.S.: Q: Now, during that school year, did Mr. Rizo ever do anything inappropriate to you during class time? A: Yes. Q: All right. Can you explain to the Judge what he would do to you? A: He would, like, walk by, ‘cause since I was sitting so close to him, he would just touch me, like, my private areas or he’ll just, like go down on my arm, like that. Stuff like that. Q: All right. Now, this would occur during class time? A: Yes. Q: When specifically--was there a specific time that it would occur during class time? A: Mainly when we were testing or doing our work. T. Vol. 1, pp. 28-29. Counsel for the School Board went on to question K.S. about the testing process and Respondent’s efforts to curtail students cheating on tests. K.S. testified that students placed raised stapled manila folders on their desks to prevent students from seeing each other’s tests. Counsel for the School Board then asked K.S., in leading fashion: "So it was this time, during the testing, when he would touch you? K.S. responded: "Yes." Id., Vol. 1, pp. 29-30. However, K.S. could not describe the number of times "this occurred" during the 2016-2017 school year. Moreover, this alleged inappropriate touching supposedly occurred while 20 to 25 other students were in the classroom. At hearing, K.S. testified at one point that Respondent’s touching of her vaginal area occurred every time they had tests, but she acknowledged that the raised stapled manila folders were not always present on the students’ desks during testing. At hearing, K.S. further acknowledged that had the inappropriate touching occurred as she testified to, any student at any point could have looked and seen Respondent caressing her in her vaginal area. Counsel for the School Board then inquired of K.S. if there was "ever anything more serious that [Respondent] did to [her]" that school year (2016- 2017). In response, K.S. described the alleged cafeteria pass incident as follows: A: I was in lunch--because I was in seventh grade at the time, seventh grade goes to lunch before anybody, and he sent one of his eighth grader students with a pass to go to get me. Because in order to leave the lunchroom, you have to have a pass. Security didn’t let you leave the lunchroom. Security called me and told me that my teacher was calling me to make up a test. When I got in the room, I had my tray in my hand, and he took my tray, put it down, he exposed himself. And then there was a corner and he, like, put me in the corner and he sucked on my breast. T. Vol. 1, pp. 32-33. However, moments later, K.S. described the incident differently: First he pushed me to the corner, and then after he sucked my breast, then he exposed himself. And then I was just scared. And he--when he exposed himself, he grabbed my arm and he made me touch his area, and then I grabbed my tray, I threw it away, and then I left. Id. at p. 33. According to K.S., she was in Respondent’s classroom on this particular occasion between five or ten minutes. The corner of Respondent’s classroom is located right next to the door entering the room. K.S. testified that the incident occurred with just Respondent and K.S. in the classroom, but with the other student who had retrieved K.S. from the cafeteria still waiting outside the door when K.S. left Respondent’s classroom. At hearing, counsel for the School Board also asked K.S., in leading fashion, whether she ever told the police officers that Respondent would "suck on your breasts or try to have sex with you multiple times?" In response, K.S. testified: "I told them--I told them the suck on my breast part, when he exposed him. And then when they asked about my eighth-grade- year, I told them how he wrote on a sticky note that I want to give him head, like oral sex …." Inconsistently, K.S. testified in her deposition that Respondent wrote on the sticky note: "Can I eat her?" According to K.S. in her deposition, Respondent picked up the sticky note, showed it to K.S., and she grabbed it from him and threw the note away. School Board’s Ex. 11, p. 11. At hearing, K.S. testified that Respondent handed her the sticky note and that she then threw it away. K.S. and Respondent never communicated by telephone, text, e-mail, or social media. There are no witnesses to any of the alleged incidents. K.S. never reported any alleged inappropriate conduct by Respondent to her parents, a teacher, or school administrators. However, at hearing, K.S. testified she told V.S.C. about Respondent’s conduct toward her during the 2016-2017 school year when V.S.C. came to her house on a single occasion sometime during K.S.’s eighth grade school year. Allegations Involving V.S.C. The School Board alleges in paragraph 11 of the Notice of Specific Charges that during the 2017-2018 school year, Respondent also made inappropriate comments to V.S.C. during his role as an afterschool care supervisor, and that he would "bump up against" V.S.C., "rubbing himself on her buttocks area." V.S.C. was not a student in Respondent’s classroom. The alleged inappropriate conduct occurred while V.S.C., a female 14-year-old eighth grade student at Campbell Drive, attended the school’s Students with a Goal ("SWAG") afterschool program. SWAG is an outdoor program where students can engage in a variety of recreational activities. Respondent was one of six school staff members that participated in the program. At any given time, there were approximately 100 students in attendance. Students could play soccer, basketball, football, dodge ball, board games, or do homework. Students could freely rotate through the different activities by simply notifying the adult conducting the desired activity. Respondent primarily engaged in soccer, but would occasionally participate in other activities. At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with V.S.C. V.S.C.’s Audio Recorded Interview with Detective Bernice Charley On March 6, 2018, V.S.C. was interviewed by Detective Bernice Charley, with the School Board’s police department, regarding alleged inappropriate sexual conduct by Respondent against her. An audio recording of the interview was received into evidence as the School Board’s Exhibit 8.3 During the interview, V.S.C. stated that while she and Respondent were at SWAG during the 2017-2018 school year, Respondent told her he wanted to slap her face with his penis; he asked her if she liked it rough (referring to sex); and he told her his penis was his "third leg." According to V.S.C., she and Respondent would engage in a verbal "back and forth," and he would say these comments in front of other students at SWAG. Additionally, V.S.C. stated she and Respondent would "bump" into each other at SWAG. According to V.S.C., Respondent would bump into her side or back from behind. During the interview, V.S.C. stated she had a bad memory. V.S.C. was reluctant to speak and there were many long pauses by her after questioning by Detective Charley. After much prodding and requests by Detective Charley for V.S.C. to "open-up," V.S.C. actually stated: "There’s nothing to talk about because nothing did happen." School Board’s Ex. 8, at 38:48-38:52. After further pauses, prodding, and requests by Detective Charley for V.S.C. to "open up," V.S.C. stated that Respondent also touched her breasts one time while they were at SWAG. According to V.S.C., this incident occurred with her shirt on. The School Board argues in its proposed recommended order that V.S.C. also described another incident while she and Respondent were at his classroom. According to V.S.C., Respondent was standing at his desk and V.S.C. was standing in the doorway, at which time Respondent stated to V.S.C.: "me and you here and now," followed by Respondent tapping on his desk. V.S.C. interpreted this comment as meaning that Respondent wanted 3 The audio recorded interviews of K.S. and V.S.C. (School Board’s Exhibits 6 and 8) are contained on a thumb-drive accompanying the School Board’s written exhibits received into evidence at the hearing. to have sex with her. According to V.S.C., other students were present when Respondent allegedly made the comment. Notably, this alleged incident is not referred to in the Notice of Specific Charges. The notice was, therefore, insufficient to inform Respondent of the School Board’s contention. The entire recorded interview lasted approximately 52 minutes. Much of the interview involved Detective Charley’s repeated efforts to redirect V.S.C. and her attempts to have V.S.C. "open-up." V.S.C.'s Testimony at Hearing At the final hearing, V.S.C. could not even remember whether she was in seventh or eighth grade during the 2017-2018 school year. In any event, V.S.C. testified that during the 2017-2018 school year, she attended Campbell Drive and the afterschool SWAG program. Respondent and V.S.C. did not have much interaction in the SWAG program. V.S.C. testified that she did not really participate in any of the SWAG activities; rather, she would either just "hang-out with [her] friends or sleep," or watch her friends and Respondent play soccer. However, most of V.S.C.’s time was spent sleeping near a tree, far away from where Respondent spent most of his time with the soccer group. When asked if Respondent ever did anything inappropriate to her during the SWAG program, V.S.C. testified that he talked about his "private part" to her, saying that "it was big," and referring to it once as "his third leg." Counsel for the School Board then asked V.S.C. in leading fashion: "Okay. Did he ever mention anything that he would like to do with his private part," to which V.S.C. responded, "I don’t remember. I just know that he talked about it once." T. Vol. 1, p. 82. V.S.C. described unspecified things that Respondent allegedly said to V.S.C. as "playful, like, in an inappropriate way," and "weird." Counsel for the School Board then asked V.S.C. in leading fashion: "Do you remember telling these things that he would say to you to the police at a given point," to which V.S.C. responded, "I barely remember. It’s, like, such a long time ago now." Id. at p. 83. As with her recorded interview with Detective Charley, V.S.C. was reluctant to testify at hearing and there were many long pauses by her after questioning by the School Board’s counsel. After further prodding and requests by the School Board’s counsel to describe "the things he would say to you, other than his talking about his private part," V.S.C. described the aforementioned verbal incident in Respondent’s classroom. On cross-examination, V.S.C. acknowledged this comment was loud enough so that other students could hear it and that she read a sexual connotation into the comment. Id. at p. 97. Counsel for the School Board again asked V.S.C. if Respondent ever made any other comments to her during SWAG, to which V.S.C. responded, "I can’t remember." Id. at p. 85. Subsequently, the following exchanges occurred between counsel for the School Board and V.S.C.: Q: Did he ever threaten to slap you with anything?" A: Yeah, with his penis. Q: What did he say? A: He said he wants to, like, slap me in the face with his penis. Q: And when did he say that? A: I think in SWAG. Yeah, it was in SWAG. * * * Q: Do you remember Mr. Rizo touching you in any other way other than bumping you with his hip or anything like that? A: When we would play fight, he would, like, put his pelvis, like, on my back area. Q: What would he do with his pelvis? A: He would just, like, be there, like, behind me and play fighting me. Q: Did he ever try to touch you sexually in any way? A: I guess, yeah, if he’s doing that, if he’s behind me like that. Id. at pp. 87 and 92. V.S.C. never reported any alleged inappropriate conduct by Respondent to her parents, teachers, or school administrators. At hearing, V.S.C. acknowledged that she and K.S. were friends. At hearing, V.S.C. admitted that she and Respondent were never alone during the SWAG program and that she was always close to the other students. At hearing, nothing was mentioned about Respondent touching V.S.C.’s breasts. Allegations involving N.E. In paragraph 12 of the Notice of Specific Charges, the School Board alleges that "Respondent also made sexual advances and over the clothing sexual contact with a third female student [N.E.] during the 2017-2018 school year." However, N.E. did not testify live at hearing and the School Board did not present any eyewitness testimony in support of the allegations. At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with N.E. Ultimate Findings of Fact At hearing, the undersigned had the opportunity to observe the testimony and demeanor of Respondent, K.S., and V.S.C. The testimony of Respondent is credited and is more persuasive than the testimony of K.S. and V.S.C., which is not credited or persuasive. Notably, K.S.’s and V.S.C’s versions of the events as set forth in their statements to the police and testimony at hearing were vague, differed in key respects, and much of their testimony and statements to the police were obtained through patently leading questions. Moreover, V.S.C. admitted that her memory is bad and that "there’s nothing to talk about because nothing did happen." It is also inconceivable that K.S. would have returned to Respondent’s classroom for intensive reading during the 2017-2018 school year had the alleged conduct during the 2016-2017 school year actually occurred. Had the alleged incidents occurred as testified about by K.S. and V.S.C., who were friends, it is also expected that there would have been eyewitnesses. In sum, the persuasive and credible evidence adduced at hearing demonstrates that Respondent did not engage in inappropriate physical and verbal sexual contact with K.S., V.S.C., or N.E., as alleged in the Notice of Specific Charges, and Respondent did not engage in conduct with K.S., V.S.C., or N.E., which constitutes misconduct in office or immorality.4 4 K.S. and N.E. were also friends. As detailed above, N.E. did not testify at the hearing. However, an audio statement and a written statement purportedly authored by N.E., both of which are hearsay, were received into evidence at the final hearing as the School Board’s Exhibit Nos. 6 and 16, respectively. Although hearsay is admissible in administrative proceedings, this does not necessarily mean that the undersigned must use the hearsay in resolving a factual issue. The statements cannot be used as the sole basis to support a finding of fact, because they do not fall within an exception to the hearsay rule. Furthermore, the statements do not supplement or explain other non-hearsay evidence. See § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."). At hearing, the parties stipulated to the receipt into evidence of N.E.’s deposition testimony in lieu of her live testimony. Even if the audio statement and written statement could be used by the undersigned, however, the audio statement, written statement, and deposition testimony would not be given any weight based on the live testimony Respondent presented at hearing. Unlike N.E., who did not testify live
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order rescinding the suspension and termination of Respondent, Oscar D. Rizo, and reinstate Respondent with full back pay and benefits. DONE AND ENTERED this 18th day of May, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Respondent was first employed by Petitioner as a substitute teacher beginning June 8, 1990. Since August 1990, and at all times pertinent to this proceeding, Respondent was employed by Petitioner as a full-time teacher pursuant to a professional service contract and assigned to McMillan Elementary School. Petitioner is charged with the duty to operate, control, and supervise all free public schools within the School District of Dade County, Florida. McMillan Elementary School is a public school in Dade County under the control of the Petitioner. During the 1992-93 school year, Respondent routinely began one of his sixth grade math classes by telling jokes to his students and, at times, sang to his class songs that contained obscene lyrics. Many of these jokes contained obscenities and ethnic slurs. In addition to telling these jokes during class, Petitioner permitted his students to tell these same type jokes. This joke telling time was referred to as "joke-off" and took place in lieu of classroom instruction. During the 1992-93 school year, Respondent permitted male students to draw pictures of naked females and told one student he should enlarge the figure's breasts. During the 1992-93 school year, Respondent made inappropriate comments to a group of sixth grade girls, teasing them about having small breasts and buttocks. Respondent referred to these girls as the "itty bitty titty committee". During the 1992-93 school year, Respondent discussed with his students two sexual encounters he had experienced. During the 1992-93 school year, Respondent gambled with certain students while playing basketball and sold donuts and pencils to students. During the 1992-93 school year, Respondent engaged in prohibited corporal punishment by flicking students on their ears, by twisting a student's nose, and by throwing a student against the wall outside of his classroom. Respondent lifted a student off the ground by his ankles, thereby hanging the student upside down. These acts constituted inappropriate corporal punishment of students. During the 1992-93 school year, Respondent gave certain male students "wedgies" by lifting the students up by their underwear. While this activity may have been done in a playful spirit, this conduct was inappropriate and exposed the students involved to unnecessary embarrassment. During the 1992-93 school year, Respondent told a female student in the presence of other students that she was "full of feces and excrement." Respondent also told this student, who is of African-Caribbean heritage, that her race was unclear because she had Caucasian hair and an African nose. Respondent told this student that she had "jungle fever" because she dated a Caucasian boy. These statements to this female student were inappropriate and exposed the student to unnecessary embarrassment. During the 1992-93 school year, Respondent was habitually tardy or absent. Respondent was also frequently absent from his classroom while he conducted business unassociated with his duties as a classroom teacher. The principal and assistant principal had repeated conferences with Respondent about his attendance. During the 1992-93 school year, Respondent was habitually late to team meetings, failed to bring his grade book to conferences, and appeared to be sleeping during parent conferences. Respondent entered final grades for his students in an arbitrary fashion without referencing his grade book. The assistant principal reprimanded Respondent for eating in class, being absent from the classroom, and not applying approved methods for student grading. Following the suspension of his employment, Respondent was directed not to be on school grounds. Respondent violated this directive. He was arrested for trespassing and reprimanded by the assistant principal. The trespassing charges were subsequently dropped.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and the conclusions of law contained herein and terminates Respondent's professional service contract. DONE AND ENTERED this 17th day of August, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5862 The following rulings are made on the proposed findings of fact submitted by the Petitioner: The proposed findings of fact in paragraphs 1 and 2 are adopted in material part by the Recommended Order. The proposed findings of fact contained in paragraphs 3-9 consist of the recitation of testimony that is subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by the Respondent: The proposed findings of fact in paragraphs 1 and 2 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3, 4, 5, 6, and 10 are rejected as being argument that is unnecessary as findings of fact and, in part, contrary to the conclusions reached. Respondent failed to establish that the Petitioner violated any orders pertaining to discovery as asserted in paragraph 6. The proposed findings of fact in paragraphs 7, 8, 9, 11, 15, 16, and 17 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 12 and 13 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 14 are subordinate to the findings made. COPIES FURNISHED: Reginald J. Clyne, Esquire Williams & Clyne, P.A. 1102 Douglas Centre, Suite 1102 2600 Douglas Road Coral Gables, Florida 33134 Mr. Kenneth C. Patterson Post Office Box 161786 Miami, Florida 33116 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether the Manatee County School Board (Petitioner or Board) has just cause to terminate the employment contract of Matthew Kane (Respondent or Mr. Kane).
Findings Of Fact Petitioner is a duly-constituted school board, charged with the duty to operate, control, and supervise all free public schools within the District. Respondent has been employed by the District since September 25, 1997. Respondent was a teacher at the District’s Lakewood Ranch High School from fall 2003 through spring 2007. Respondent became an assistant principal at Manatee High School (MHS) for the 2007-2008 school year, and served in that position through January 1, 2012. On January 2, 2012, Respondent became the MHS interim principal for the rest of the school year. Respondent returned to his prior position of assistant principal at MHS on July 1, 2012, when Don Sauer was hired as the new MHS principal. Respondent was an MHS assistant principal for most of the 2012-2013 school year; six weeks before the school- year end, he was transferred to an assistant principal position at the District’s Southeast High School. At the time of hearing, Respondent held an annual contract for an assistant principal position for the 2013-2014 school year. As a teacher, assistant principal, and interim principal, Respondent was at all times required to abide by all Florida laws pertaining to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida (adopted as State Board of Education rules), and the Board’s policies and procedures that have been promulgated as rules (hereafter Board policies).5/ On August 1, 2013, Respondent was placed on paid administrative leave during the pendency of an investigation that ultimately led to this proceeding. On August 14, 2013, Respondent was charged with felony failure to report known or suspected child abuse, and with providing false information to a law enforcement officer. The latter charge was subsequently dismissed. By letters dated September 25, 2013, and October 4, 2013, hand-delivered to Respondent, the superintendent provided written notice of his intent to recommend termination of Respondent’s employment. The Complaint, with allegations and charges against Respondent on which the recommendation was based, was delivered with the October 4, 2013, letter. Respondent was also informed that the superintendent would recommend to the Board that Mr. Kane be suspended without pay pending final resolution of the Complaint. On October 14, 2013, during a Board meeting at which Respondent was represented, the Board adopted the superintendent’s recommendation to suspend Respondent without pay pending the outcome of any administrative hearing requested by Respondent. On October 24, 2013, Respondent served a Request for Administrative Hearing and Respondent/Employee’s Answer to Administrative Complaint. At issue in this proceeding is whether Mr. Kane was informed of alleged improprieties with female students by an MHS paraprofessional, Rod Frazier, who was an administrative parent liaison handling student discipline and a football coach. If so, the issue then becomes whether Mr. Kane violated obligations imposed by Florida law and Board policies related to protecting students, including the obligations to report suspected child abuse and to report allegations of misconduct by instructional personnel affecting the health, safety, or welfare of students. The core allegations in the Complaint are that Mr. Kane was apprised of prior alleged inappropriate incidents involving Mr. Frazier and female students, yet he did nothing to intervene, which allowed Mr. Frazier to remain at MHS, placing the safety and well-being of students at risk. Following Mr. Kane’s stint as MHS interim principal, a new principal arrived for the 2012-2013 school year, Don Sauer. Others--not Mr. Kane--were instrumental in bringing some of the allegations of Mr. Frazier’s improprieties to the attention of the new MHS principal in November 2012. The person who coordinated the effort to bring these matters to Mr. Sauer’s attention was Steven Rinder. Mr. Rinder is the coordinator of the student assistance program, which offers advice and assistance to students and families regarding non-academic issues that can affect students’ academic performance. Mr. Rinder credibly testified that over the few weeks preceding his communication with Mr. Sauer, he was approached independently by several MHS teachers and other instructional staff, including Mike Strzempka (teacher), Lynn Aragon (teacher), Stephen Gulash (administrative parent liaison), Keltie O’Dell (teacher), and Jackie Peebles (teacher), regarding their concerns about Mr. Frazier’s inappropriate interactions with students. Mr. Rinder found these independent reports unusual, indicative of a problem needing attention, and significant enough that he went to Mr. Sauer about the concerns. Mr. Sauer told Mr. Rinder to make a list of the allegations, without names, and Mr. Sauer would do what ought to be done with a “hot potato”: pass it on. Mr. Rinder put together a list of the allegations that had been conveyed to him. In addition, he obtained a list from Mr. Gulash of the incidents he had observed or had been informed of, and Mr. Rinder added those items to his list. Mr. Rinder then gave the document to Mr. Sauer, who passed the “hot potato” on to the District’s Office of Professional Standards (OPS). As witnesses uniformly agreed, there was no question that the list, taken as a whole, raised serious concerns about Rod Frazier’s conduct with female students that would amount to, at the least, employee misconduct. Several allegations, standing alone, raised serious concern of inappropriate touching of female students, such as Mr. Frazier behind closed doors with a female student sitting on his lap feeding him cake, and Mr. Frazier shoving a water bottle between a female student’s legs. Upon receipt of the Rinder list on November 14, 2012, OPS initiated an investigation of Mr. Frazier. A letter from the superintendent notified Mr. Frazier as follows: “Effective Thursday, November 15, 2012, you are being placed on paid administrative leave pending the outcome of our investigation of possible misconduct on your part.” On Thursday afternoon, November 15, 2012, OPS specialist Debra Horne went to MHS and interviewed four of the persons contributing to the list of allegations. Ms. Horne spoke with Mr. Rinder and Mr. Gulash and got some information regarding the names of the sources for each allegation, and the names of the students involved in the alleged incidents. Ms. Horne also interviewed Mike Strzempka and Lynn Aragon, sources for several allegations. Ms. Horne did not interview Jackie Peebles that day, but learned that Ms. Peebles was the teacher who walked in on Mr. Frazier in his office and found a female student sitting on his lap feeding him cake. Ms. Horne also learned that the female student on Mr. Frazier’s lap was D.K., a senior, no longer at MHS, but at the District’s Palmetto High School. Ms. Horne did not interview Keltie O’Dell that day, nor Rod Frazier, nor D.K. or any of the other students whose names she had. After those four interviews, Ms. Horne met with MHS principal Sauer and assistant principals Kane and Greg Faller, in Mr. Sauer’s office. She called her boss, Scott Martin, a District assistant superintendent, and he participated by speaker phone. The purpose of the meeting was to bring everyone up to speed as to where Ms. Horne was in the investigation. Although the testimony was conflicting, the credible evidence established that during this meeting, Ms. Horne and Mr. Martin discussed the contents of the Rinder list, if not line by line, then item by item, and Ms. Horne reported that each allegation was either unverified or old. As to the old allegations, Ms. Horne reported that the concerns had been brought to the attention of either former principal Robert Gagnon or one of the assistant principals, and those administrators had already addressed the concerns with Mr. Frazier. When Ms. Horne made that statement, the two assistant principals present and listening--Mr. Kane and Mr. Faller--expressed agreement by nodding their heads. At that point, Mr. Martin told Ms. Horne to wrap it up and return to their office. Strangely, despite Ms. Horne having learned that “old” allegations had been reported to and addressed by administrators, Ms. Horne apparently did not interview the administrators about their knowledge of the allegations or what had been done to address those allegations with Mr. Frazier, either on that day or at any other time before she left OPS in late January 2013. There was no documentation in Mr. Frazier’s file of any kind of discipline for inappropriate interactions with female students-- no documentation of any conferences with administrators, directives, warnings, reprimands, or suspensions. Mr. Kane acknowledged that at the meeting with Ms. Horne, the Rinder list itself was there; he skimmed the document, he did not read it item by item. It is difficult to imagine that as an assistant principal, Mr. Kane would not have been more interested in the specific allegations made against an instructional staff member, particularly when Mr. Kane nodded in agreement with Ms. Horne’s report that the allegations were old and had been reported to and addressed by administration. Mr. Kane did not offer any information to Ms. Horne about the allegations he had skimmed. At hearing, he explained that he thought he was required to stay out of the OPS investigation. Inconsistently, he volunteered information about three staff members contributing to the list of allegations, stating at the meeting that Mr. Gulash, Ms. Aragon, and Mr. Strzempka all had grudges against Mr. Frazier. Ms. Horne left MHS and returned to the District office to meet with Mr. Martin. Mr. Martin testified that he pressed Ms. Horne regarding whether she had gone down every rabbit trail, with the implication that he was satisfied that Ms. Horne had exhausted her investigative options by conducting only four interviews in the span of a few hours. Ms. Horne testified that she asked to interview D.K. and the other students whose names she had obtained, and also suggested conducting random interviews of students at MHS. Mr. Martin cut her off from this notion, stating that since no student “victim” had come forward, there was no reason to interview any students. Prior to meeting with Ms. Horne, Mr. Martin discussed the investigation with Mr. Gagnon. Mr. Gagnon was MHS principal until January 2, 2012, when he was promoted to an assistant superintendent position in the District office and Respondent became MHS interim principal. Mr. Gagnon’s message to Mr. Martin was that Mr. Frazier had been the subject of rumors before that had allegedly ruined his marriage, and that it would be bad if Mr. Frazier was still suspended by the next evening (Friday, November 16, 2012), because there was an important football game, and rumors would fly if Mr. Frazier was not coaching at the big game on Friday night. Mr. Gagnon also told Mr. Martin that the investigation should proceed and that if Mr. Frazier did what he was alleged to have done, then the District should “bury him under the school.” Mr. Gagnon characterized this latter message as the primary message. Nonetheless, at best he was sending a mixed message by suggesting that the District should thoroughly investigate, as long as it did so in one day so the coach could return to work in time for the big game Friday night. Apparently keying on the game-night part of the mixed message, Mr. Martin made the decision after meeting with Ms. Horne that the investigation was going nowhere. He directed that Mr. Frazier be removed from paid administrative leave and returned to work the next day, Friday, November 16, 2012. Meanwhile, Ms. Horne went back to MHS on Friday to complete at least a few of the obviously missing steps in the investigation, by interviewing Jackie Peebles, Keltie O’Dell, and Mr. Frazier. Ms. Peebles credibly testified that in her interview, Ms. Horne made it clear that she only wanted to hear about recent incidents, not old matters that had been reported in the past. Ms. Peebles found Ms. Horne more interested in allegations of grudges against Mr. Frazier than in allegations of inappropriate interactions with female students. Ms. Horne testified that she was surprised to learn that Mr. Frazier had been taken off paid administrative leave and returned to work Friday morning, because she believed the investigation was still ongoing. However, since Mr. Frazier was placed on leave pending the investigation’s “outcome,” by taking Mr. Frazier off leave and returning him to work on Friday, November 16, 2012, the implication was that the investigation had reached its “outcome” and was concluded. Consistent with that implication, if the investigation was not formally closed it at least went dormant after November 16, 2012. The investigation got a second life in early January 2013, when a letter written by D.K. was delivered to Mr. Sauer, detailing some of Mr. Frazier’s inappropriate interactions with D.K. while she was at MHS in 2010-2011 and 2011-2012. D.K.’s letter corroborated some aspects of the Rinder-list allegations, and described additional incidents, such as more closed-door meetings in Mr. Frazier’s office, when Mr. Frazier would hug her, rub her upper leg, and grab her thigh and buttocks. Mr. Sauer immediately sent the letter to OPS. With an alleged student victim now having come forward, OPS was compelled to resume the dormant investigation, and finally interview D.K. Shortly after D.K. was interviewed, Mr. Frazier was put back on paid administrative leave. This time, the allegations were shared with the Bradenton Police Department, which initiated its own investigation, culminating in criminal charges against Mr. Frazier for battery and interfering with school attendance. The Board issued an administrative complaint seeking to terminate Mr. Frazier’s employment, but Mr. Frazier resigned in lieu of termination proceedings. As an outgrowth of both the Board’s investigation into Mr. Frazier’s alleged misconduct and the Bradenton Police Department’s investigation of Mr. Frazier, both the Board and the Bradenton Police Department initiated investigations into the actions and inactions of Respondent and others. What Did Respondent Know And When Did He Know It? As the prelude above suggests, the underlying matters involving Mr. Frazier must be described in order to address the core allegations against Respondent. However, the focus of this proceeding is not on whether there is proof of the allegations against Mr. Frazier, nor is the focus on how the investigations were handled; neither Mr. Frazier nor OPS personnel are on trial. Instead, as charged in the Complaint, the focus here is on whether allegations of Mr. Frazier’s inappropriate interactions with students were brought to Respondent’s attention; if so, when; and if so, what he did or did not do in response. 2009-2010: Patting Behinds; Closed Door Meetings; Lingerie Party At MHS, assistant principals have a variety of duties; they may be assigned primarily to certain areas, with assignments changing from time to time. For the 2009-2010 school year, one of Mr. Kane’s primary duties was to serve as head of the MHS discipline office. The discipline office is staffed by administrative parent liaisons (liaisons). The liaisons are the school’s disciplinarians--they handle student disciplinary referrals, communicate with parents about student discipline, and teach/supervise students serving in-school suspensions and “time- outs.” The liaisons also monitor areas such as the courtyard, cafeteria, and parking lot. As discipline office head in 2009- 2010, Mr. Kane supervised the liaisons, including Mr. Frazier. L.S. has been a school bus driver for the District for ten years. In the 2009-2010 school year, L.S.’s daughter, R.S., was a senior at MHS and L.S. had an MHS bus route. On several occasions during the 2009-2010 school year, while waiting at MHS in her bus, L.S. observed Mr. Frazier patting female students on their behinds. Also during that year, L.S. occasionally went to Mr. Frazier’s office with student discipline referrals, and she would find Mr. Frazier in his office behind closed doors with female students. She found this conduct inappropriate, and reported it to Mr. Kane. L.S.’s daughter, R.S., frequently got in trouble, and was often in time-out. According to R.S., one day in February 2010, near Valentine’s Day, when she was in the time-out room supervised by Mr. Frazier, a female student, C.H., came in to ask Mr. Frazier if he would be attending her “lingerie party,” and Mr. Frazier responded that he would be there. The lingerie party discussion made R.S. uncomfortable, and she asked to go to the principal’s office. When Mr. Frazier refused, R.S. walked out and headed toward the principal’s office. R.S. testified that she was intercepted by Mr. Kane and Student Resource Officer Freddy Ordonez. R.S. said that she told them about the “lingerie party” dialog with Mr. Frazier, and Officer Ordonez told R.S. that she would be arrested if she kept making false accusations. R.S.’s testimony about her “lingerie party” report to Mr. Kane was inconsistent with a prior statement she gave during an investigation of Rod Frazier. In that prior statement, R.S. told the investigator that it was Robert Gagnon, then-principal of MHS, who was with Officer Ordonez when R.S. reported the “lingerie party” incident. Regardless of whom R.S. may have reported to that day, R.S.’s mother testified credibly that R.S. told her about the “lingerie party” incident when R.S. came home from school upset that day. L.S. then went to MHS to talk to Mr. Kane in his office to express her concerns about Mr. Frazier. In addition to relaying what R.S. had told her about the “lingerie party,” L.S. also told Mr. Kane about Mr. Frazier’s inappropriate conduct that she had personally observed on several occasions: L.S. told Mr. Kane that she had seen Mr. Frazier patting girls on their behinds, and that when she went to see Mr. Frazier in his office, she found him with female students and the door closed. Mr. Kane told L.S. that he would check into the allegations. At hearing, Mr. Kane testified that he has no recollection of the meeting L.S. described; he did not deny it occurred, saying only that he does not remember it and does not recall L.S.’s report about Mr. Frazier. Nonetheless, L.S.’s testimony was credible and is credited.6/ Mr. Kane’s testimony that he has no memory of L.S.’s allegations reported to him during the 2009-2010 school year means that, despite telling L.S. that he would look into her report about Mr. Frazier, Mr. Kane did nothing to document, investigate, or report the allegations. 2010-2011: Calling Girls Out Of Class; Cake Incident; Golf Carts Jackie Peebles has been a teacher at MHS for eight years. In the 2010-2011 school year, she taught remedial math. Ms. Peebles described how she noticed that Mr. Frazier tended to call female students out of class when they were dressed inappropriately. The students would leave for a while, and return wearing appropriate clothes. Ms. Peebles credited Mr. Frazier with doing his job to correct dress code violations. However, the calls increased in frequency, for one student in particular, D.K., in her remedial math class. Mr. Frazier would frequently call to ask Ms. Peebles to send D.K. to his office. At first, D.K. would leave class wearing short- shorts and return in sweat pants from lost and found, or she would leave wearing a tank top and return wearing Mr. Frazier’s football jacket. Again, Ms. Peebles thought Mr. Frazier was just doing his job, but she became concerned because D.K. had an attendance problem and needed to be in class. The problem got worse, with D.K. leaving when called to Mr. Frazier’s office and not coming back. Ms. Peebles confronted Mr. Frazier, telling him that she was going to keep D.K. in her classroom whether she was dressed right or not, because D.K. was falling further and further behind. Mr. Frazier stopped calling Ms. Peebles to release D.K. Instead, Ms. Peebles would hear D.K.’s telephone buzz, watch D.K. look at the phone, and then D.K. would announce that she forgot to tell Ms. Peebles that she has to go to Mr. Frazier’s office. Ms. Peebles reasonably surmised that Mr. Frazier was sending text messages to D.K. After this happened a few times, one day Ms. Peebles took D.K.’s phone, put it in her drawer, and kept teaching. The phone kept buzzing and buzzing. Ms. Peebles opened her drawer to turn off the phone, and saw a message on the screen asking why D.K. hadn’t come to his office yet, and that he heard she was wearing her short-shorts again. Ms. Peebles reasonably inferred that this message was from Mr. Frazier. Ms. Peebles testified that her concerns about Mr. Frazier calling girls (especially D.K.) out of class and texting were heightened by the rather alarming “cake incident,” which occurred shortly after the short-shorts text message. Ms. Peebles testified that one afternoon, she had broken up a fight between two students and escorted the students to the discipline office for referral to a liaison. Ms. Peebles found the discipline office’s secretary/receptionist, Aida Coleman, at her desk in the large outer area. Ms. Peebles looked around and found that the doors to the liaisons’ interior offices were all open and the offices empty, except that Mr. Frazier’s office door was closed. Ms. Peebles looked at Ms. Coleman with frustration because no one seemed available to help her with her disciplinary problem, but Ms. Coleman volunteered that it was all right, Mr. Frazier was in his office with a student. Ms. Peebles took this to mean that she could go in, so she left the two students in separated chairs, one by Ms. Coleman’s desk. Ms. Peebles walked the short distance (estimated at around twenty feet) to Mr. Frazier’s office door. She knocked and opened the door simultaneously, and stepped a few feet inside. She was shocked to find Mr. Frazier seated behind his desk with D.K. sitting sideways across his lap, feeding him cake. Ms. Peebles said that she yelled something like: “What the hell is going on in here?” Although she described it as a “yell,” when asked to gauge how loud she was by comparison to others speaking at the hearing, Ms. Peebles did not attribute a great deal of volume to her “yell”--it was more a matter of what she said than how loudly she said it. Ms. Peebles was troubled by the fact that Mr. Frazier and D.K. did not move, and both acted like nothing was wrong with their seating arrangement and activity. Ms. Peebles then told D.K. to “get off” Mr. Frazier’s lap. D.K. did so, but she only moved as far as Mr. Frazier’s desk, where she perched facing him. Ms. Peebles then told D.K.: “No, come around here and sit in a chair like a lady.” D.K. did as she was told. Ms. Peebles then told Mr. Frazier that she had a referral requiring his attention, with two students waiting outside. Mr. Frazier got up and went out with Ms. Peebles to address the awaiting disciplinary matter. Ms. Peebles reported this incident to Respondent the next day. Ms. Peebles had a clear recollection of her conversation with Respondent in which she described the cake incident, and Respondent assured her he would take care of it. Ms. Peebles was relieved, because she assumed she could count on Respondent to address the matter with Mr. Frazier. Ms. Peebles also told another liaison, Stephen Gulash, about the cake incident at some point shortly after it occurred-- her best recollection was that she told Mr. Gulash the next morning. Mr. Gulash corroborated that Ms. Peebles told him about the cake incident--he thought it may have been right after it occurred, because she seemed upset. Ms. Peebles does not recall being upset when she told Mr. Gulash about the incident. While Respondent suggests this is an inconsistency that undermines the credibility of both Ms. Peebles and Mr. Gulash, this minor difference in perception and recollection is immaterial and understandable. The incident itself was not a happy thing to observe or describe. Even a number of years later, Ms. Peebles seemed upset when describing the upsetting incident at hearing. When Ms. Peebles told Mr. Gulash about the cake incident, Mr. Gulash asked Ms. Peebles if she had reported the incident to Mr. Kane. Ms. Peebles told him either that she had just done so or that she was about to. The material details provided by Ms. Peebles--that the cake incident occurred as she described it, that she reported the incident to Respondent the next day, and that Respondent assured her he would take care of it--were credible and are credited. The most alarming aspect of the cake incident is that D.K. was sitting on Mr. Frazier’s lap feeding him cake in the privacy of his office, a clearly inappropriate and suggestive intimacy between this MHS staff disciplinarian and the female student he frequently called out of class to come visit him behind closed doors. D.K. provided credible corroborating testimony of this most troubling aspect of the cake incident, acknowledging that she was sitting on Mr. Frazier’s lap feeding him cake when Ms. Peebles walked in and was shocked. Respondent contends that Ms. Peebles’ testimony was undermined by D.K.’s testimony that she could not recall what, if anything, Ms. Peebles said when she opened the door and by Ms. Coleman’s testimony that she did not recall an encounter when Ms. Peebles was yelling at Mr. Frazier. Ms. Peebles’ verbal reaction to the shocking scene pales in significance to the scene itself. Moreover, the inability of D.K. and Ms. Coleman to recall did not effectively undermine Ms. Peebles’ clear, credible testimony. It is by no means clear that Ms. Peebles’ words to Mr. Frazier and D.K. (which D.K. might well want to forget or minimize), delivered while Ms. Peebles was standing a few feet inside the office with her back to the door, would have been heard by Ms. Coleman at her desk twenty feet away from the door, particularly since Ms. Peebles had deposited one of the fighting students in a chair next to Ms. Coleman’s desk. Respondent testified that he does not recall Ms. Peebles reporting the cake incident to him. He added that if she had reported the incident as she described it at hearing, he believes there is no way he would not have acted, by documenting the report in writing or having Ms. Peebles do so, bringing it to the principal’s attention, and confronting Mr. Frazier with what was plainly inappropriate, improper, unprofessional conduct. Ms. Peebles, however, was steadfast and credible in maintaining that she reported the cake incident to Mr. Kane the day after it occurred (corroborated by Mr. Gulash). Ms. Peebles also reported the cake incident to Mr. Faller a year later, after reporting another inappropriate Frazier incident to Mr. Faller (discussed below in school year 2011-2012).7/ Respondent attempted to undermine Ms. Peebles’ credibility by dwelling on the lack of clarity on insignificant points, including when the cake incident occurred, what Mr. Kane’s duties were at the time, and where Ms. Peebles and Mr. Kane were when she told him about the incident. Respondent’s attempt was not effective. For the purposes of this proceeding, it is enough to know that the cake incident took place either in the 2010-2011 school year or the 2011-2012 school year--the only two years that D.K. was a student at MHS. The incident most likely occurred in the 2010-2011 school year, when D.K. was in Ms. Peebles’ math class. Ms. Peebles could not recall exactly when the incident occurred; she volunteered early on in her testimony, and repeated often, that she has never been good at remembering dates.8/ Likewise, regardless of Mr. Kane’s duties at the time of the cake incident report, Ms. Peebles explained why he was an appropriate administrator for her to report to. Ms. Peebles testified initially that she thought Mr. Kane was head of discipline when she reported the cake incident to him. That was shown to be not true. Mr. Faller took over the assignment as discipline office head in the 2010-2011 and 2011-2012 school years. However, Ms. Peebles added that after Mr. Faller assumed that role, Mr. Kane became Ms. Peebles’ direct supervisor (not disputed by Respondent), and that she may have reported the cake incident to him for that reason. Later still, Mr. Kane was MHS interim principal, and if the cake incident occurred then, she might have reported it to him for that reason. Ms. Peebles credibly summed it up this way: “Mr. Kane never left the realm of being someone I thought that I would go to.” (Tr. 568). As to the setting where Ms. Peebles reported the cake incident to Mr. Kane, Ms. Peebles offered her recollection that they were in the discipline office, in the corner interior office assigned to the assistant principal serving as head of the discipline office. But whether Ms. Peebles reported the cake incident to Mr. Kane in the office assigned to the head of discipline, as she recalled, or in an office in the adjacent building when he became Ms. Peebles’ direct supervisor, the setting is insignificant and the lack of clarity does not undermine the credible testimony regarding the material details. Ms. Peebles was genuinely troubled to be offering testimony adverse to Mr. Kane. Ms. Peebles likes and respects Mr. Kane as an educator and administrator, and spoke highly of his performance as an assistant principal and as her supervisor. Her general regard for him is why she was relieved to report the cake incident to him--she trusted him to follow through when he assured her that he would take care of it. Mr. Kane was equally complimentary of Ms. Peebles, describing her as one of the good teachers, and as someone who would not set out to hurt him. Respondent’s testimony expressing no recollection of Ms. Peebles’ cake incident report to him and offering hindsight assurance that he would have acted on such a report was not as credible as Ms. Peebles’ testimony and is not credited. Instead, Ms. Peebles’ report was the second time Respondent was informed of Mr. Frazier’s inappropriate closed-door sessions with female students--this time, with the added observation that Mr. Frazier was engaged in inappropriate physical contact with the female student in that particular closed-door session. As Respondent himself acknowledged, such a report should have spurred him to immediate action, but it did not. Moreover, because Respondent took no action in response to L.S.’s prior report, there was no record that this was the second report to Respondent of Mr. Frazier’s improprieties. As with L.S.’s report, this second report was also received and ignored, instead of being documented, investigated, and addressed with Mr. Frazier. Lynn Aragon is a teacher employed by the District. She taught at MHS for over ten years, until the end of the 2012-2013 school year, and is currently on a medical leave of absence. During the time period relevant to this proceeding, she served as the representative for the teacher’s union at MHS, and because of that role, teachers at MHS often would come to her with concerns. Ms. Aragon testified that during the 2010-2011 school year, a number of teachers came to her to express concerns about Mr. Frazier having female students in his office behind closed doors, calling female students to his office in the middle of class, texting female students in class, and going around in the courtyard on a golf cart with female students hugging him. Ms. Aragon testified that she reported these concerns to then- principal Bob Gagnon, but not to Mr. Kane.9/ Mr. Gagnon acknowledged that while he was still the MHS principal, he became aware of an issue with students on golf carts, although he did not say that Ms. Aragon was the source of his awareness or that Mr. Frazier was the subject of the “issue,” or complaint. Mr. Gagnon testified that he went out and told all of the staff using golf carts--not just Mr. Frazier--to stop allowing students on their golf carts. Several witnesses spoke generally about the legitimate use of golf carts by liaisons to monitor the parking lot and courtyard, and to transport a student when necessary. Often students congregate in the courtyard for lunch breaks, and it was not unusual, at least before Mr. Gagnon’s directive, for a student to sit on a golf cart with a liaison. However, as Ms. Peebles credibly explained, the student-on-golf-cart issue was decidedly different where Mr. Frazier was concerned. Whereas other liaisons and administrators might have a couple of students on a golf cart to sit and talk or to drive them someplace, Ms. Peebles described what she saw on Mr. Frazier’s golf cart: “[T]he students hanging around on Mr. Frazier’s golf cart mostly tended to be female students . . . more female students than could fit on the seats. There would be so many stacked on there that you literally couldn’t drive the golf cart anyplace.” 2011-2012: Groping At A Bar; More Golf Cart Issues; Horseplay Ms. Peebles testified that the year after the cake incident, another incident involving alleged inappropriate physical contact by Mr. Frazier was reported to her by MHS female student, A.P. Ms. Peebles told Mr. Faller about the allegations. When Mr. Faller seemed not interested, she told him about the prior cake incident, and she also told him that she had reported the cake incident to Mr. Kane. Ms. Peebles’ testimony was credible. Mr. Faller did not testify. Ms. Peebles did not say that she reported the A.P. incident to Mr. Kane. Nonetheless, Respondent offered A.P.’s testimony, apparently in an attempt to undermine the credibility of Ms. Peebles’ overall testimony. Instead, just as was the case with D.K., A.P.’s testimony corroborated the material facts, as reported by Ms. Peebles to Mr. Faller, regarding another troubling incident with Mr. Frazier. As A.P. testified, she snuck into a bar using fake identification, when she was still underage. She had a few drinks and was tipsy. Mr. Frazier approached her and grabbed her in “too friendly” a hug, putting his arms around the lower region of her back, or further down. Mr. Frazier had “his hands down there;” he was groping her and hanging all over her. Respondent attempted to elicit testimony from A.P. that she never told Ms. Peebles about being groped in a bar by Mr. Frazier. Instead, A.P. testified that although she could not say with certainty that she went to Ms. Peebles about this incident, it would make sense that she would have gone to Ms. Peebles: “I could see myself going to her[.]” A.P.’s testimony varied in some of the details from Ms. Peebles’ description of what A.P. told her. Ms. Peebles testified that she does not recall the word A.P. used in lieu of “erection,” she understood A.P. to be saying that Mr. Frazier had an erection and was rubbing himself against her buttocks. A.P. testified that she did not tell Ms. Peebles that Mr. Frazier had an erection; Ms. Peebles agreed that that was not the word A.P. used. Ms. Peebles also recalled A.P. showing her inappropriate text messages from Mr. Frazier regarding A.P.’s private body parts that Mr. Frazier inappropriately groped at the bar; A.P. denied receiving text messages from Mr. Frazier. Their testimony was in sync regarding Mr. Frazier’s inappropriate groping of A.P., who, at the time, was a minor and a student at MHS. Several years after the fact, the testimony by Ms. Peebles and A.P. is considered substantially and materially consistent. The variances do not undermine Ms. Peebles’ credible testimony. Not only was Ms. Peebles’ testimony regarding the bar- groping incident and her reports to Mr. Faller credible, but it highlights the problem of serial undocumented “isolated incidents.” An incident is reported to one administrator who ignores the report and takes no action; then when the next “isolated incident” is reported, the administrator receives that report as if nothing has ever been brought to his attention before, and again, takes no action; then when the next “isolated incident” is reported to a different administrator, there is nothing documenting that similar incidents had ever occurred before. Despite this pattern, Mr. Kane and Mr. Faller were the two administrators in the room nodding their heads in agreement when Ms. Horne reported to Mr. Martin that the allegations in the Rinder list were old news that had been reported to and handled by administrators. Two of the incidents on the Rinder list were the cake incident and the bar encounter. If brushing the allegations under the rug can be called handling them, they were, indeed, handled. While Mr. Kane was interim principal in 2012, two separate matters regarding Mr. Frazier were reported to him. In February 2012, Ms. Horne from OPS called Mr. Kane to inform him of an anonymous complaint received by the superintendent’s office regarding female students riding with Mr. Frazier on his golf cart and that it “didn’t look right.” At the direction of Ms. Essig, who was Mr. Kane’s immediate supervisor, Ms. Horne relayed the complaint to Mr. Kane, and asked him to look into it and speak to Mr. Frazier about it. Ms. Horne did not hear back from Mr. Kane within a reasonable time, so she called him back. Mr. Kane told Ms. Horne that he issued a verbal directive to Mr. Frazier to be professional in his dealings with students at all times. As Mr. Kane described it, he told Mr. Frazier to stop riding around with girls on his golf cart because others might perceive it to be inappropriate. Mr. Kane did not document his verbal directive to Mr. Frazier. The only evidence that there was a verbal directive comes from the hard-to-decipher scribbled note Ms. Horne made of her phone call to Mr. Kane to find out if he had responded to her request that he look into the complaint. There was no credible evidence that Respondent looked into the 2012 complaint at all, in the sense of trying to find out whether Mr. Frazier had conducted himself, with females on his golf cart, in a way that “did not look right” (such as by allowing so many female students to pile onto the golf cart with him that he and the females necessarily would be sitting on top of each other, as Ms. Peebles described). Instead, Mr. Kane apparently did not ask Mr. Frazier what he was doing with girls on his golf cart. Mr. Kane explained that because the complaint lacked details (such as names, dates, times, locations, or what exactly did not look right), he could not ask Mr. Frazier about the details because Mr. Kane did not have them. That explanation is unreasonable; a reasonable interim principal performing the duty of looking into a complaint asks questions to find out details. An absence of documentation about prior golf cart issues with Mr. Frazier resulted in yet another “isolated incident.” The absence of documentation of Mr. Gagnon’s student- on-golf-cart issue that caused him to tell all staff operating golf carts to stop letting students on the golf carts meant that the 2012 complaint about Mr. Frazier on his golf cart with female students and that it did not look right was never investigated as insubordination, for not following Mr. Gagnon’s prior directive. Also while Mr. Kane was interim principal, Mr. Gulash reported to Mr. Kane that Mr. Frazier shoved a water bottle between D.K.’s legs at the softball field. Mr. Kane had no recollection of Mr. Gulash reporting this incident to him. Mr. Gulash acknowledged that he mentioned the incident to Mr. Kane while they were walking together into the cafeteria; that he described the incident to Mr. Frazier as “horseplay”; and that he did not make a big deal of it. Nonetheless, one would expect that a description of “horseplay” involving a male liaison/coach placing anything between the legs of a female student would not only get the interim principal’s attention but also trigger immediate action. D.K. corroborated the occurrence of bottle-between-the legs “horseplay” by Mr. Frazier. She testified that Mr. Frazier had shoved water bottles or Gatorade bottles between her legs on more than one occasion, both at the softball field and while D.K. was hanging out with Mr. Frazier on his golf cart. While there were discrepancies in the details offered by Mr. Gulash and D.K., once again, their testimony was in harmony with regard to the troubling aspect of the incident they described--that Mr. Frazier engaged in a form of “horseplay” with a minor female student that involved him putting a plastic bottle between the student’s legs. Respondent claimed that Mr. Gulash was biased and not credible for several different reasons; Mr. Gulash responded with explanations. On balance, the undersigned accepts Mr. Gulash’s testimony, notwithstanding the attacks on his credibility. But even if Mr. Gulash did not tell Mr. Kane about the bottle- between-the-legs incident, those incidents should have, and would have, come to light much sooner than they did if Mr. Kane had responded appropriately to the reports of Mr. Frazier’s improprieties when they were made to him. D.K.’s credible testimony that one of these bottle-between-the-legs incidents occurred when she was on a golf cart with Mr. Frazier underscores the significance of the patterned failure to document or act on reports of Mr. Frazier’s inappropriate conduct with female students on golf carts. Likewise, D.K.’s description of Mr. Frazier’s inappropriate physical contact during closed-door sessions in his office underscores the significance of the patterned failure to document or act on reports of Mr. Frazier’s inappropriate closed-door meetings with female students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order terminating the employment of Respondent, Matthew Kane. DONE AND ENTERED this 30th day of September, 2014, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 30th day of September, 2014.
Findings Of Fact Clarence Dixon received a Bachelor of Science degree with academic honors from Bethune-Cookman College. He was active in athletics and was rated "All-American" in football. He was employed by Piper High School for the 1980- 81 school year in his first teaching position. He was hired to teach physical education, and was encouraged by the principal of Piper High School to take an active part in the black community. Sandra Brown is employed at Piper High School as a security specialist. She met Dixon through their work association and asked Dixon to counsel her son, as she knew he respected Dixon. Mrs. Brown related several conversations wherein Dixon made sexual advances to her. Mrs. Brown was also involved in the initial school investigation of Dixon's alleged sexual improprieties with Piper High School students; Sharon Cooper is a 15-year-old female student at Piper High School. She had been upset over rumors that involved her reputation, and was considering leaving school over the matter. Dixon became aware of her problem end counseled her to remain in school and ignore the rumors. Carl Nadler, a 16-year-old student at Piper High School, overheard Cooper tell Dixon that, "All the guys say I suck dicks and fuck." This was the statement attributed to Dixon in Count 2 of the Petition. However, it appears that Dixon did not use these words, or at least did not use them in a sexually suggestive context. Lesia McGee is a 17-year-old student at Piper High School. She did not testify at the hearing due to illness, but the parties agreed to allow her deposition to be admitted as evidence associated with Count 5 of the Petition. Her testimony establishes that Dixon told her, "If you wear those purple pants again, I'm going to tongue you to death." Any doubt regarding the sexual implication of this statement was removed by remarks Dixon made to McGee on other occasions to the effect that she had a good figure and would she be enough of a lady not to tell anyone if she and Dixon were to make love. McGee readily admitted that Sandra Brown wanted her to exaggerate her complaint, but she refused. Her testimony indicated no animosity toward Dixon nor influence by Sandra Brown. Freddie Jones is a student at Piper High School. He informed another student, Sandra Cunningham, that Dixon had asked Jones to spread a rumor about her. Jones recanted his initial statement to investigators at the prehearing deposition. He returned to the allegation at the hearing, explaining that he had tried to help Dixon by lying at the deposition, but came to believe it was more important to tell the truth. Jones' testimony lacks credibility because of its inconsistency with his earlier sworn statement. Valynda Johnson is an eleventh grade student at Piper High School. She and Dixon had frequent contacts even though she was not his student. Several times Dixon sent her passes to leave class in order to meet him on the athletic field. Dixon concedes that he once sought to have her excused from class to do some typing for him. On one occasion, Dixon invited Johnson to a basketball game with him and on another to meet him at a convenience store. On two occasions, Dixon asked Johnson, "When are you going to let me do that?" or words of similar import. When she asked what he meant, he replied, "You know what I'm talking about." Johnson was unsure of Dixon's intentions, but believed that Dixon was probably seeking sexual relations with her. Although Johnson was confused on some of the details of her testimony, she was a generally credible witness, showing no animosity toward Dixon or influence by Sandra Brown. Rene Snelling is an 18-year-old student at Piper High School. Dixon and Snelling became friendly, and Dixon made periodic comments to her about her figure and potential for a modeling career. They also discussed a trip to visit a college in Kentucky. Although Dixon took only male students on this trip, he did bring back souvenir T-shirts for Snelling and several other students. Dixon also phoned Snelling at her home and once told her he had a gold chain for her. The comment on which Count 8 is based involved Dixon's question to Snelling, "If we ever had sex would you [Snelling] be ladylike enough not to tell anyone?" or words of similar meaning. This conversation took place in the school library where Snelling was working on a class assignment. Dixon denies making this statement but recalls that when he asked to sit beside her in the library she replied that a nice-looking man like Dixon could sit next to her. Although Snelling was unsure of some of the details of her contacts with Dixon, she was a generally credible witness and showed no animosity toward Dixon or influence by Sandra Brown. Hooker T. Robinson is a 18-year-old student at Piper High School. He overheard Rene Snelling tell another student that if Coach Dixon were not so dedicated to his wife she would fuck him. Robinson was called by Respondent apparently to discredit Snelling's testimony. However, Robinson's testimony indicates that a sexual attraction was developing between Dixon and Snelling which is consistent with the charges contained in Count 8. Darryl Allen is a 15-year-old student at Piper High School. He overheard Chanita Austin, Rene Snelling and Valynda Johnson discussing Dixon in early January. He heard one of them say, "He [Dixon] is acting so high class and doesn't speak anymore," or words of similar import. Darwin Taylor is a 15-year-old student at Piper High School. He overheard a discussion between Sandra Brown and Rene Snelling about February wherein Mrs. Brown stated to Snelling, "Don't worry, we've got him where we want him." Taylor further overheard Mrs. Brown advise Snelling to tell the judge that Dixon gave her a gold chain and tried to touch her and have sex with her. This testimony and that of students Lesia McGee and Chanita Austin (deposition) establishes that Mrs. Brown either intentionally or in the zeal of her investigation encouraged exaggerations. However, the students testifying in this proceeding recognized this and were net swayed by Mrs. Brown's encouragement. The testimony of Piper High School students Alvin Williams, Eugene Wimbs and Ernest Merrell is not material and is accorded no evidentiary weight herein. The depositions of Piper High School students Sandra Anderson, Chanita Austin and Jackie Dawson do not contain evidence relevant to the charges herein and are likewise accorded no weight. The testimony of Anthony Ash, Broward County CTA representative, and Andrew Thomas of the Broward County School System, involve procedural matters not directly relevant to factual questions at issue here. The Respondent denies making the statements and other improper conduct attributed to him by the witnesses. He points out that the complaining witnesses are all from the same neighborhood and are all below-average students. He theorizes that they were confused over factual matters and did not appreciate the damage their statements could have upon him, and that they were unduly influenced by Sandra Brown. The testimony of these Piper High School students, with the exception of Freddie Jones who changed his testimony, was generally credible. They demonstrated an appreciation for the gravity of their complaints and the potential impact on Dixon's career. They did not show any resentment toward Dixon, but rather viewed him as a friend or former friend. The witnesses were encouraged to come forward by Sandra Brown. As noted above, Mrs. Brown's investigative techniques were lacking in objectivity. However, there was no indication that any witness committed perjury as a result of improper influence by Mrs. Brown. Although it was apparent that the students did discuss this case among themselves, there was no indication of any conspiracy against Dixon.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Counts 3 and 4 of the Petition be dismissed. It is further RECOMMENDED that Respondent Clarence Dixon be found not guilty of the charges contained in Counts 1, 2 and 6 of the Petition. It is further RECOMMENDED that Respondent Clarence Dixon be found guilty of the charges contained in Counts 5, 7 and 8 of the Petition. It is further RECOMMENDED that Respondent Clarence Dixon be discharged from employment as a teacher by the Petitioner School Board of Broward County. DONE and ENTERED this 6th day of August, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 6th day of August, 1981. COPIES FURNISHED: Charles Whitelock, Esquire 1244 SE Third Avenue Fort Lauderdale, Florida 33316 Richard H. Frank, Esquire 341 Plant Avenue Tampa, Florida 33606
The Issue Whether Respondent's Professional Service Contract should be terminated for just cause based on actions constituting misconduct in office within the meaning of Section 1012.33, Florida Statutes (2004),1 and Florida Administrative Code Rule 6B-4.009.
Findings Of Fact The Board is the entity authorized to operate, control, and supervise the Charlotte County Public School System. Art. IX, §4, Fla. Const. and §1001.30, Fla. Stat. Mr. LaGrange began his employment with the Board in 1991. In January 2005, Mr. LaGrange began teaching a new Health Careers and Occupations class at Port Charlotte High School. The class was a vocational educational course for low- functioning students and consisted of about 20 ninth-grade students. A.V., N.M., T.B., S.B., N.H., and B.H. were students in this class. Sometime in either March or April 2005, Mr. LaGrange made an inappropriate remark about A.V.'s appearance. The incident happened near the end of the class, while A.V. was drawing on the board with her back to the students. Mr. LaGrange stated: "Look at A.V.'s cute little ass" or words to that effect. This remark greatly embarrassed A.V. As A.V. was leaving Mr. LaGrange's classroom on the day of the incident, she yelled to Mr. LaGrange that it was a disgusting and perverted comment for him to make in front of the entire class. Other students, including N.M., N.H., T.B., and B.H., heard Mr. LaGrange make the sexually inappropriate remark about A.V. Although each student's recollection of the incident may vary concerning the exact words that Mr. LaGrange used, the students all agreed that Mr. LaGrange made an inappropriate remark about A.V.'s backside in front of the class. Mr. LaGrange also made some inappropriate remarks to N.M. He told her that "If I have a wet dream about you, I won't tell you" or words to that effect. Mr. LaGrange's comments made N.M. feel uncomfortable and caused her to view Mr. LaGrange as "weird." T.B. also heard Mr. LaGrange make comments in class concerning wet dreams. A.M., a female student, would sometimes come into Mr. LaGrange's classroom, kneel beside the desk of S.B., a male student, and watch S.B. draw. S.B. heard Mr. LaGrange comment to A.M. to the effect that she liked to be on her knees for guys a lot. S.B. also heard Mr. LaGrange tell N.M. that "for somebody who is a schoolgirl, you know a lot about sex." S.B. felt that the remarks were perverted. On April 28, 2005, Mr. LaGrange referred A.V. and N.M. to a school dean, Matthew Wheldon, for excessive gum chewing. Gum chewing is a minor infraction and is normally allowed in classrooms other than Mr. LaGrange's class. Mr. Wheldon asked the girls how things were going in Mr. LaGrange's class, and they confided in him about the inappropriate remarks that Mr. LaGrange had been making in the classroom. Mr. Wheldon referred the matter to the assistant principal, and an investigation ensued, resulting in Mr. LaGrange being suspended. After reviewing the investigation report and being made aware of two other times that Mr. LaGrange had been disciplined, the Superintendent of Schools for the School Board of Charlotte County recommended to the Board that Mr. LaGrange be dismissed from his teaching position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the actions of Leonard LaGrange constitute just cause to dismiss him from his employment with the Charlotte County School Board, and terminating his Professional Services Contract. DONE AND ENTERED this 18th day of April, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 18th day of April, 2006.
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f)1, 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes (2002-2005),2 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i), and, if so, what discipline should be imposed.
Findings Of Fact Ms. West holds Florida Educator’s Certificate 666407, which covers the area of physical education and is valid through June 30, 2012. She began her teaching career in 1990. At all times pertinent to this case, Ms. West was employed as a physical education teacher at Azalea Middle School in the Pinellas County School District. By Final Order dated February 20, 2004, the Education Practices Commission found Ms. West guilty of violating Subsection 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), by, among other things, making derogatory remarks to students and disclosing students’ grades without their permission. The Education Practices Commission suspended Ms. West’s educator certificate for the summer session for 2004 and placed her on probation for two years, effective February 20, 2004. The violations for which Ms. West was disciplined occurred while Ms. West was a teacher at Gibbs High School. In an effort to give Ms. West a fresh start, she was administratively transferred from Gibbs High School to Azalea Middle School beginning August 2001. Ms. West was assigned to teach seventh-grade physical education. Connie Kolosey was the seventh-grade assistant principal at Azalea Middle School who was responsible for supervising everything having to do with the seventh grade, including the seventh-grade teachers. The principal at Azalea Middle School received an anonymous letter early in the 2001- 2002 school year complaining that Ms. West was using offensive language and making derogatory remarks to students. About the same time as the arrival of the anonymous letter, Ms. Kolosey became aware that Ms. West was using her cell phone in class to call parents to talk about students’ behavior. Ms. Kolosey met with Ms. West on September 7, 2001, to discuss these issues. Ms. West felt that the anonymous letter came from individuals who were involved in Ms. West’s problems at Gibbs High School. The use of the cell phone was discussed during the conference. Ms. West stated that when she was at Bay Pointe Middle School she had used the cell phone to call parents during class and found it to be an effective way to curb student misbehavior. Ms. West indicated that she would leave the gymnasium and make the cell phone calls in the hallway. Ms. Kolosey explained to Ms. West that the use of cell phones to call parents during class was not appropriate. Students could be embarrassed by having Ms. West discuss their discipline issues in front of the class or in the hallways. Additionally, it was not a safe practice to leave the students in the gymnasium while she went into the hall to make telephone calls. On February 8, 2002, Ms. Kolosey had another conference with Ms. West to discuss accusations which had been made by several students that Ms. West had been making derogatory remarks to them about their physical appearance. Ms. West denied making the comments. During the spring of 2002, the parents of one of Ms. West’s students demanded that their child be removed from Ms. West’s class for comments which Ms. West allegedly made to their child, S.B. Ms. Kolosey investigated the matter and could find no one to corroborate the allegations made by S.B. and her parents. Thus, Ms. Kolosey refused to remove the student from Ms. West’s class. The parents of S.B. continued to request that their child be removed from Ms. West’s class because S.B. had skipped Ms. West’s class, and they felt it was a result of the child having been traumatized by Ms. West’s actions. Ms. Kolosey discussed the issues concerning S.B. She specifically told Ms. West not to bring the issues up to S.B. in a negative way but to attempt to mend her relationship with S.B. On March 12, 2002, Ms. Kolosey received a telephone call from S.B.’s mother again demanding that S.B. be removed from Ms. West’s class. Ms. West had told S.B. in front of S.B.’s classmates that S.B. could not run to Ms. Kolosey about things that were said in private because she was saying it in front of the whole class. Ms. West admitted to Ms. Kolosey that she had made the remarks to S.B. Ms. Kolosey agreed to remove S.B. from Ms. West’s class. On May 16, 2002, Ms. Kolosey; Ms. West; Ms. Andrews, the principal at Azalea Middle School; and Mr. McNeil, a union representative, had a conference to discuss more allegations that Ms. West had made belittling remarks to some of her students. It was suggested to Ms. West that if she needed to discuss a student’s performance or behavior that she take the student aside rather than do it in front of other students. Ms. West was warned that her attitude needed to change and that she could not always say the first thing that came to her mind. During the last semester of the 2001-2002 school year, Ms. West’s daughter was seriously ill, and Ms. West missed a great deal of work because of her parenting responsibilities. The first semester of the 2002-2003 school year, Ms. West was absent most of the time because of her daughter’s illness. Ms. West returned to teach at Azalea Middle School in January 2003. After Ms. West’s return, complaints began to be made to the administration about inappropriate comments that Ms. West was alleged to have made during class. Ms. West denied making the comments. Again, Ms. West was cautioned to think about what she says to the students before she says it. Ms. West was under a great deal of stress during the early part of the second semester of the 2002-2003 school year because of her daughter’s illness. Her daughter passed away in March 2003. In March 2003, Ms. West received a written reprimand from the principal at Azalea Middle School for “failing to interact appropriately with students and making inappropriate remarks to students, and for insubordination in failing to follow a previous directive to refrain from such remarks.” Again, Ms. West was directed to refrain from making inappropriate remarks to students. Ms. Kolosey evaluated Ms. West for the 2002-2003 school year. Ms. West was rated ineffective for her instructional and non-instructional performance. It was noted that Ms. West’s judgment was a serious concern and that the numerous complaints which had been received regarding Ms. West’s negative interactions with students overshadowed an otherwise knowledgeable and organized classroom presentation. Ms. West appealed the evaluation, but the evaluation was upheld. Ms. West felt that Ms. Kolosey was being unfair to her and that she was taking the word of students over Ms. West’s denials. Ms. West felt that because Ms. Kolosey believed the allegations of some of the students, the students somehow felt they were empowered and made even more accusations. In order to give Ms. West another fresh start, Ms. West was transferred to sixth-grade classes for the 2003- 2004 school year. Dan Stevens was assigned as her supervisor, and Ms. Kolosey had no further dealings with complaints regarding Ms. West. Because of the evaluation which Ms. West received at the end of the 2002-2003 school year, she was given a performance improvement plan on August 12, 2003. Among other things, the plan called for Ms. West to “[a]void use of inappropriate comments to students that they may find humiliating or demeaning in nature.” Ms. West was told to “[u]se wait time before responding to students[’] inappropriate behavior” and to “[r]emember to always praise student publicly and to correct them privately.” On August 25, 2003, Mr. Stevens received an email from the Azalea Middle School sixth-grade guidance counselor, advising him that there had been a complaint by a student that Ms. West had disclosed his grade in class without his permission and that the parent of another student, E.M., had called to complain that her daughter’s grade had been revealed to the other students. E.M.’s mother also wrote a letter to Mr. Stevens regarding her allegations that Ms. West was disclosing her daughter’s grades to the class. Because E.M.’s mother felt that Ms. West was acting inappropriately, she refused to allow E.M. to attend Ms. West’s class. On October 7, 2003, a conference was held with Ms. West to discuss the allegations made by E.M.’s mother. Ms. West denied disclosing E.M.’s grade. E.M. was transferred from Ms. West’s class to another class. In late August 2005, J.T., a sixth-grader at Azalea Middle School, was transferred to Ms. West’s health class. On September 2, 2005, J.T. called his stepmother during class and handed the telephone to Ms. West so that she could talk to his stepmother. Ms. West discussed with the stepmother that J.T. had failed a test and that he had not returned the test to her with a signature of one of his parents. This conversation was held during class time and in a manner that the other students could hear Ms. West. Ms. West called L.D. about her son, T.D., during class hours to complain that T.D. was making a failing grade. L.D. could hear students in the background. Ms. West made remarks to students which were disparaging and embarrassing. One remark made by Ms. West to T.J. was, “You must have studied in the dark.” Ms. West had been talking to T.J. about his low grade on a test. T.J. said that he had studied for the test, and Ms. West responded that he must have studied in the dark. Ms. West has also made this comment to other students who had made low grades on tests. Ms. West also told T.J. in front of other classmates to “Take your grow-up pill.” T.J. is small in stature and sensitive about his size. Ms. West denied that she was making a reference to his small size and contends that she was just trying to tell him that he was acting immaturely. Although Ms. West did not intend to make fun of T.J.’s small size, she should have known that such comments could embarrass him. Ms. West made the comment, “Dumb boys make dumb babies” during her health class in the fall of 2005. She contends that she was trying to make the students aware that they should think about the consequences of the decisions that they make in life. Although Ms. West was trying to convey an appropriate message, she chose an inappropriate means to do so. At the final hearing, Ms. West stated that she had made the remark to two girls, who were discussing a particular student. In essence, she referred to the young man as being dumb, which was not appropriate. Based on the numerous complaints that the administration received about Ms. West’s behavior, the Pinellas County School Board made investigations and terminated Ms. West’s employment with the Pinellas County School Board. Both administrators and parents found that Ms. West was an ineffective teacher. Based on the numerous complaints from parents and the necessity to transfer students from Ms. West’s classes to other classes, Ms. West was an ineffective teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Ms. West guilty of violating Subsections 1012.795(1)(f), 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i) and suspending Ms. West’s educator’s certificate for three years, followed by a two-year probationary period under terms and conditions set by the Education Practices Commission. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 22nd day of October, 2009.
Findings Of Fact Respondent, Michael B. Smith (Smith), has been continuously employed as a teacher by Petitioner, School Board of Dade County (School Board) since 1977. During the 1985-86 school year, Smith was employed under a continuing contract as a work experience teacher at Miami Norland Senior High School. The Assault and Loan Among the students in Smith's second period work experience class was Colleen Ann Dougherty (Colleen); a 15 year old female and 10th grade student. Colleen had been a student of Smith's since September 1985, and they enjoyed a good student- teacher relationship until the events which gave rise to these proceedings. 1/ On February 10, 1986, Smith asked Colleen to remain after class. Once the other students had left the classroom, and Colleen and he were alone, Smith engaged Colleen in a brief conversation concerning the progress of her outside employment. Gauging the conversation at an end, Colleen picked up her purse and book bag preparatory to moving to her next class, but was distracted when Smith asked her what was in her purse. As Colleen looked into her purse, which was hanging from her right shoulder, Smith placed his left hand on her right hip and his right hand on her left shoulder. When Colleen looked up, Smith pulled her toward him, and kissed her on the lips. Smith's conduct was uninvited and unexpected; Colleen, disconcerted, left the classroom. On February 11, 1986, Smith was covering Colleen's first period class for her regular teacher. After the class had started, Smith asked Colleen into the hall and, exhibiting his divorce papers and a sense of urgency, asked to borrow $50.00 by the end of third period. Colleen informed Smith that she did not know if she could get the money by then since she would need to go to her boy friend's house for the bank book. Thereupon, Smith gave Colleen a pass to visit her friend Jessica to see about transportation. After arranging for transportation with Jessica, Colleen returned to Smith, who was still standing in the hall outside the classroom, and informed him that Jessica and she could get the money. At this time, Smith told Colleen that he liked her and suggested that they meet at school one night so he could repay the money. When Colleen expressed a lack of understanding concerning Smith's comments, he told her to look down and said, "even standing next to you excites me." On looking down, Colleen observed that Smith had an erection. Colleen quickly changed the subject and left with Jessica to get the requested $50.00 from the bank, which she later gave to Smith. Colleen was troubled by what had transpired and was afraid that if she reported the incident the administration would not credit her statements over those of a teacher. However, on Wednesday, February 12, 1986, Colleen told her boss what had transpired between Smith and her, and on the evening of February 12, 1986, she informed her grandmother. On February 13, 1986 Colleen, together with her boss and grandmother, informed the principal of Miami Norland Senior High School concerning the events of February 10-11, 1986. Smith was subsequently suspended from his teaching position, and this administrative proceeding duly followed. In choosing to credit Colleen's recollection of the events of February 10-11, 1986, as opposed to Smith's, I am not unmindful of minor discrepancies in the proof. However, the candor and demeanor of Colleen, coupled with the corroborating proof, compels the conclusion that Smith did commit, without invitation or provocation, the acts set forth in paragraphs 3-5, supra. Smith's conduct was inconsistent with the standards of public conscience and good morals, and was sufficiently notorious to bring himself and his profession into public disgrace or disrespect. Due to the notoriety of his conduct, Smith's service in the community, as well as his effectiveness in the school system, has been severely impaired. The Excessive Absences The proof establishes that Smith was absent from his employment on 26 days during the 1985-86 school year. Five of those days, and possibly six, were for personal reasons, rather than illness. While teachers are generally allowed only 4 personal days each school year, the School Board offered no evidence to rebut the proof that the additional 1-2 days were authorized by Smith's supervisor, or that all time off was duly approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the School Board enter a Final Order sustaining the suspension of Respondent, Michael B. Smith, from his employment, and dismissing Respondent, Michael B. Smith, from his employment with the School Board. DONE AND ENTERED this 21st day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1986.
The Issue The issues to be determined are whether Respondent, Cornell Lamont Steward (Respondent or Mr. Steward), violated sections 1012.795(1)(f), Florida Statutes (2012), or sections 1012.795(1)(g) or (j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Amended Administrative Complaint,2/ and, if so, what is the appropriate sanction?
Findings Of Fact The Commissioner is the state officer responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. At all times relevant to the allegations in the Amended Administrative Complaint, Mr. Steward held Florida Educator Certificate 1156507, covering the areas of biology and earth- space science, and was employed as a science teacher at Miami Carol City Senior High School in the Miami-Dade County School District. Mr. Steward’s certificate expired on June 30, 2013. On September 7, 2011, Mr. Steward was arrested for driving under the influence of alcohol or drugs with resulting damage to property or another person in Broward County, Florida. As Mr. Steward admitted, on April 3, 2013, he was found guilty by a jury on this charge. On December 6, 2011, there was an altercation between a 15-year-old male student, A.C., and Mr. Steward in his classroom at Miami Carol City Senior High School. The Commissioner offered no competent evidence regarding this event other than pre-hearing admissions of Mr. Steward and his testimony at hearing. Mr. Steward testified that he was teaching in his fifth- period class, which was a ninth-grade science class consisting of about 21 students, when there was a knock on the classroom door. A.C., who was a student with behavior and attendance problems, had moved to a seat near the door and offered to see who was there. Mr. Steward at first agreed, but then changed his mind and asked A.C. to remain seated, while Mr. Steward answered the door himself. At the door were three unknown students. A.C. then got out of his seat, stating that the unknown students were his brothers, and moved to the door to greet them. Mr. Steward testified that the students at the door caused a great amount of disruption in the classroom, and he turned around to quiet his students. He testified that as he turned his back to the door, he felt A.C. “violently” press his groin against Mr. Steward’s buttocks, which startled and frightened Mr. Steward, so he had to “remove [A.C.] from [his] personal space.” Mr. Steward testified that A.C. then positioned himself between Mr. Steward and his desk, which had the telephone. According to Mr. Steward, A.C. then stepped forward in a “violent motion” and threatening manner with his fists balled up and “chin checked” Mr. Steward. Detective Marin testified that “chin checking” was slang to describe a tap or touch on the chin primarily as a challenge, used to instigate a confrontation, but was not itself a punch. Mr. Steward testified that he “removed [A.C.] from [his] presence.” Mr. Steward said that then, A.C. moved toward him again with a threatening motion, and Mr. Steward responded: With my left hand I grabbed his right shoulder. With my left hand I grabbed his right shoulder and with my right hand I grabbed his left shoulder. With using his momentum I placed him on the ground, I did not throw him, I did not slam him, I placed him on the ground. He’s a very small person. As soon as I did that, I, I checked for my students who were in attendance to locate security. One or two of them left the class and then there began to be a stampede out of the classroom. From that moment on–-oh, oh, while I was holding him on the ground, A.C. began to violently struggle and make motions towards me. Then also the three other students began to grab and pull at me and grab, pull and push at me. Then for my own safety I didn’t know if these children were armed. I didn’t know anything, I let A.C. go and he and the three other students fled the classroom. Later that day, Principal Dunn was told that Mr. Steward had been in an altercation with a student. He asked the school resource officer, Tracy Moore, to investigate. The following morning, December 7, 2011, Principal Dunn called Mr. Steward to his office to discuss the incident. But for the meeting in Mr. Dunn’s office, Mr. Steward would have reported to his classroom. At the meeting, Mr. Steward’s behavior was a bit erratic. He was laughing, loudly and inappropriately, at the events of the previous day. Principal Dunn noticed that Mr. Steward’s eyes were glassy. Principal Dunn suspected that Mr. Steward was under the influence of alcohol or drugs. Mr. Steward stated that his eyes were glassy and swollen because he was up the night before thinking about the incident with A.C. Principal Dunn called the region director and the Office of Professional Standards for advice on how to proceed. He kept Mr. Steward in his “custody,” so that Principal Dunn or the school would not be responsible if anything occurred. Principal Dunn completed a Reasonable Suspicion Form, noting that Mr. Steward had slow or inappropriate reactions, glassy and swollen eyes, and inappropriate laughter. He determined that there was probable cause to send Mr. Steward for a drug and alcohol screen. Mr. Steward was tested by LabCorp on December 7, 2011. The results were positive for marijuana. Mr. Steward’s exhibit offered to show that the lab sample which was tested was actually obtained on another day is not persuasive, and his argument that the test results should not be admitted is completely rejected. On January 5, 2012, a Conference for the Record was held with Mr. Steward, Mr. Dunn, Ms. Sherri Daniels of United Teachers of Dade, and Ms. Joyce Castro, district director. The events of December 7, 2011, and the test results were reviewed with Mr. Steward. He was given an opportunity to respond, but declined that opportunity. He was advised that a second positive drug test, refusal to submit to future drug tests, or failure to abide with rehabilitation directions could result in additional action, including dismissal. Mr. Dunn testified that the incidents had an effect upon Mr. Steward’s effectiveness as a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Cornell Lamont Steward, in violation of section 1012.795(1)(f), Florida Statutes (2012), and section 1012.795(1)(g), Florida Statutes (2011). It is further recommended that the Commission impose upon Cornell Lamont Steward a fine of $3,000.00 and revoke his educator certificate for a period of three years, at the expiration of which time he may receive a new certificate by meeting all certification requirements of the state board current at the time of his application, subject to terms and 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 10th day of November, 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 10th day of November, 2015.
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 actions set forth in the Amended Administrative Complaint dated July 31, 2014, and if so, whether these actions constitute just cause for suspension.
Findings Of Fact The School Board of Broward County (School Board) is responsible for investigating and prosecuting allegations of misconduct against individuals it employs. Respondent is employed by the School Board. As a member of the School Board’s instructional staff, Respondent’s employment is subject to section 1012.33, Florida Statutes (2014),1/ which provides that his employment will not be suspended or terminated except for “just cause.” Respondent is required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures of the School Board of Broward County, Florida. The Incidents At all times relevant to the allegations, Respondent was employed as a physical education (PE) teacher at Riverglades. On January 10, 2014, Respondent was attempting to move his students inside after their time on the playground. One student, S.W., was talking loudly and frustrating Respondent’s efforts. In response to this, Respondent pulled down on S.W.’s arm or wrist and screamed “Be quiet!” in her ear. S.W. was not physically harmed by this incident and did not cry. However, when asked about how the incident made her feel, she testified “not good.” Respondent’s approach was unnecessary, particularly considering that Respondent is over six feet tall and S.W. was a ten-year-old child at the time. Respondent could certainly project authority and correct a student’s inappropriate behavior without the need to resort to physical contact and screaming. After speaking with her teacher, S.W. filed a Bullying Witness Statement Form. Another student, C.B., witnessed the incident and similarly filed a report. On January 15, 2014, Ms. JoAnne Seltzer, intern principal at Riverglades, held an informal conference with Respondent regarding the incident involving S.W. In the conference summary report issued on January 21, 2014, Principal Seltzer notified Respondent of her expectation that Respondent would refrain from touching, embarrassing, screaming at, or demeaning students in the future. This constituted a direct order to Respondent. On February 12, 2014, J.G., a fifth grade student at the time, filed an incident report after Respondent called J.G. by the name “Miguel” on multiple occasions. J.G. is of Hispanic origin, and J.G. believed that Respondent called him “Miguel” in a derogatory manner on the basis of his ethnicity. When J.G. attempted to correct Respondent by telling him his real name, Respondent retorted “same thing.” Respondent contended that he called J.G. “Miguel” because he was confusing J.G. with a second-grader who looked similar to J.G. and whose name was in fact Miguel. This testimony is rejected as not credible. Respondent called J.G. “Miguel” on a great many occasions, and was always corrected by J.G. These instances were not mistakes. They occurred in the middle of the school year, by which time Respondent should have known J.G.’s actual name. It is also uncontroverted that Respondent had a class roster, which should have eliminated any confusion. The purported look-a-like did not testify, nor was there any other corroboration of Respondent’s claim. These incidents occurred in the presence of the entire class, embarrassing J.G. and making him “mad.” On February 25, 2014, Principal Seltzer provided Respondent with a letter directing him to report to her office on February 28, 2014, for a pre-disciplinary meeting regarding his inappropriate conduct. Before Principal Seltzer had an opportunity to hold the meeting with Respondent, on February 27, 2014, C.B., then an 11-year-old student, filed an incident report claiming that Respondent, the day prior, had told C.B. that he was a “loser.” At hearing, C.B. also testified that Respondent called him fat. Student witnesses, as well as Respondent, credibly testified that the “loser” comment was in reference to C.B. losing a game during class. Given that context, it was not shown that the term was used in a derogatory fashion. As for the “fat” comment, Respondent admitted that the other students would joke with C.B. about C.B.’s weight and that Respondent would “laugh with the kids” but maintained he never personally called C.B. any derogatory names. However, two other students, S.W. and J.G., corroborated C.B.’s claim that Respondent called C.B. fat, and this testimony is credited. This incident embarrassed C.B. and made him feel “bad.” Respondent’s behavior was inappropriate. After these new allegations came to light, on February 27, 2014, Principal Seltzer provided Respondent with a second letter informing him of the additional incidents that had been brought to her attention and requesting that he report to her office on March 4, 2014, for his second three-day pre- disciplinary meeting. After the pre-disciplinary meeting, on March 10, 2014, Principal Seltzer recommended that Respondent be suspended for five days. Respondent acknowledged receipt of the recommendation on March 14, 2014. Subsequent to the notice of recommendation, but before its presentation to the School Board, the parents of students S.B., J.B., and K.B., requested a meeting with Principal Seltzer regarding Respondent’s inappropriate behavior in the presence of their children. S.B., a nine-year-old student, credibly testified that on one occasion Respondent, while looking directly at her, said the words “fucking bitch.” The evidence was unclear as to whether Respondent directed those words to S.B. or was speaking to someone else on the phone. Respondent contended that he does not use profanity during class. J.B., a nine-year-old student, and K.B., a seven-year- old student, both testified that they heard Respondent use the words “God dammit” and use profanity on multiple occasions during class. Respondent admitted that he used the words “God dang” during class, but denied that he ever said “dammit.” The children’s testimony is credited. A conference was held on March 19, 2014. The student's mother, Principal Seltzer, Mr. Duhart (the interim assistant principal), and Respondent discussed the allegations brought by S.B., J.B., and K.B. On April 14, 2014, Principal Seltzer held a pre- disciplinary meeting with Respondent to discuss the reports of misconduct that had surfaced after her previous recommendation for a five-day suspension. On April 15, 2014, Principal Seltzer changed her recommendation to a ten-day suspension based upon the additional complaints. Respondent acknowledged receipt of this recommendation on April 23, 2014. Principal Seltzer testified that her ultimate recommendation for a ten-day suspension was based on Respondent’s prior disciplinary history, dating back to 2008, and the fact that his recent misconduct had continued despite repeated warnings. The Amended Administrative Complaint also references reports from students that, on one occasion, Respondent attempted to kick a student in the head. Although J.G.’s, C.B.’s and E.C.’s testimony all mention this incident, the scant details elicited at hearing failed to explain how Respondent could attempt to kick a student in the head from a sitting position. Petitioner failed to prove by a preponderance of the evidence that Respondent tried to kick a student in the head. At hearing, Respondent suggested that the students who filed complaints against him had colluded in an effort to get him fired, but this proposition is rejected. Respondent’s comments and laughing with students about C.B.’s weight and Respondent’s unnecessarily physical and aggressive discipline of S.W. failed to protect these students from conditions harmful to their mental health. Respondent’s actions toward C.B. and his repeated addressing of student J.G. as “Miguel” intentionally exposed these students to unnecessary embarrassment and disparagement, and the actions toward J.G. also constituted harassment on the basis of race and national or ethnic origin. Respondent violated the Principles of Professional Conduct for the Education Profession in Florida. Respondent engaged in misconduct in office. Respondent used profanity and engaged in other inappropriate communications with students J.G., C.B., S.W., K.B., and S.B. on several occasions. Respondent demonstrated incompetency to discharge his required duties as a teacher as a result of this inefficiency. Respondent intentionally refused to comply with Principal Seltzer’s direct orders not to touch, embarrass, demean, or scream at students. These orders were reasonable in nature. Respondent engaged in gross insubordination. Prior Disciplinary Action On February 13, 2008, the executive director of the School Board’s Professional Standards and Special Investigative Unit gave Respondent a written reprimand based upon allegations of assault and battery. The letter stated that there was sufficient basis to establish probable cause and recommend discipline. The letter constituted a disciplinary action taken against Respondent in his position as an educator. On January 14, 2011, the intern principal of Coral Glades High School, Respondent’s employer at the time, held a pre-disciplinary meeting with Respondent based on allegations that he intentionally exposed students to unnecessary embarrassment or disparagement. By letter dated January 21, 2011, Respondent was issued a written reprimand for this misconduct. On January 26, 2012, the intern principal of Coral Glades High School, Respondent’s employer at the time, gave Respondent a written reprimand after finding that Respondent had used profanity in the presence of students during a heated argument with a colleague.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order finding Mr. Robert Konnovich guilty of misconduct in office, incompetency, and insubordination; and suspending his employment, without pay, for a period of ten days. DONE AND ENTERED this 24th day of August, 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 24th day of August, 2015.
