The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact Petitioner, School Board of Miami-Dade County (School Board), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Respondent, Jim J. Smith, was at all times material hereto, employed by the School Board as a teacher (under a professional service contract), and assigned to Charles R. Drew Elementary School (Drew Elementary). On or about September, 1997, an informant heard on the street that Respondent wanted to hire someone to kill his former wife. As a consequence, a Florida Department of Law Enforcement (FDLE) agent was assigned (on September 15, 1997) to operate undercover and to meet with Respondent regarding his proposal. On September 16, 1997, the undercover FDLE agent was introduced to Respondent, and during the course of that meeting, Respondent told the agent that "he had a brother that had got into some trouble and there was a [female] witness . . . [that] he wanted taken care of so she couldn't testify against him." (Transcript, page 39). Following that explanation, the meeting was discontinued (for reasons not apparent from the record), and another meeting was scheduled for the following day. As arranged, the undercover agent met with the Respondent the next day and, at Respondent's direction, followed the Respondent by car to a residence located at 1149 Northeast 210th Terrace, Miami, Florida. There, Respondent identified the residence as that of the "witness" he wanted "taken care of"; however, it was actually the residence of his former wife and their two daughters. Respondent also advised the agent that the "witness" would be home alone that day between 5:00 and 6:00 p.m., when he wanted the job done. At the time, Respondent knew his former wife would be alone that afternoon because he was scheduled to have visitation with his daughters. After Respondent identified the residence, the parties drove to a K-Mart parking lot where Respondent exited his vehicle and met with the agent in his car. At that time the agent related the following conversation ensued: . . . at that time I asked him, "So, what do you want done? He says, "I just want her taken care of." I said, "Well, what does that mean? What do you want, because there are different payments for different things. If you want me -- if you want me to kill her, cut her up, take her out to the ocean, that's going to be X amount of dollars. Whatever you need to do, tell me." "I want her messed up, I just want her messed up so she can't talk, whatever you take that as doing, I just need her messed up." 4 I said, well, fine, that it will be $1500 before that, and then it will be $1500 afterwards, which is a total of -- would be a total of $3,000. (Transcript, pages 41 and 42). Notwithstanding Respondent's insistence that the job be done that day, there was no apparent exchange of money and no proof of record that anything further transpired following their conversation. Based on such incident, Respondent was arrested on October 1, 1997, for solicitation to commit aggravated battery. Those charges were, however, dismissed in early March 1998, based on the State's perceived failure to comply with the "Speedy Trial" rule. The propriety of that dismissal is currently pending on appeal. On or about March 20, 1998, following dismissal of the charges, the School Board inexplicably returned Respondent to his duties at Drew Elementary. That reinstatement was met by an "outcry from the community"; however, the School Board allowed Respondent to resume his duties. Apart from soliciting someone to harm or, as the undercover agent understood it, to kill his former wife, Respondent had also engaged in a pattern of harassment toward his former wife since on or about April 1, 1996. That harassment abated during the pendency of the criminal charge, and escalated following dismissal of the charge.5 In response, Respondent's former wife secured an injunction against domestic violence which prohibited Respondent from contacting her or their daughters. Notwithstanding, the harassment continued. On October 1, 1998, Respondent was arrested and charged with burglary with assault therein, aggravated stalking, and violation of the injunction against domestic violence. Thereafter, Respondent was apparently erroneously released on bond; however, on or about October 6, 1998, he was taken back into custody, where he remained as of the date of hearing. On April 12, 1999, as his trial was about to commence, Respondent expressed his desire to enter a plea. At the time, Respondent pled guilty to all charges, and was sentenced to two years of community control (house arrest), followed by ten years of probation. As a special condition of the two-year term of community control, Respondent was ordered to serve a term of 364 days in the Dade County Jail without credit for time served; however, the jail term would be mitigated to residential treatment provided Respondent found and entered into appropriate residential mental health counseling. As heretofore noted, as of the date of hearing (April 19, 1999), Respondent remained incarcerated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that a final order be entered which sustains Respondent's suspension without pay, and which dismisses him from employment with the School Board. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida WILLIAM J. KENDRICK 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 28th day of May, 1999.
Findings Of Fact On or about September 13, 1976, Petitioner Alvin Leonard Pondexter, was convicted in Leon County, Florida, of attempted petty larceny, a misdemeanor, on the charges of attempting on May 26, 1976 to steal two bicycles from students on the campus of Florida State University. At the hearing in this cause, Petitioner maintained that he only admitted to, and was convicted of, attempting to steal one bicycle. On June 12, 1976, while the charges contained in the preceding paragraph were pending and Petitioner was awaiting sentencing, Petitioner was arrested in Leon County, Florida, as he attempted to steal a ham from a Tallahassee food market. In an effort to free himself from restraint by the store security guard, Petitioner bit the tip of one finger off the guard's hand and bit the guard on the inside of a thigh. On December 20, 1976, Petitioner was convicted of battery on the guard and shoplifting, both misdemeanors, and was sentenced to one year in the Leon County jail. On or about September 9, 1979, Petitioner was arrested in Dade County, Florida, for lewd and lascivious behavior after police officers observed him performing oral sex with a 15-year-old male while in a parked car which was located in a beach parking lot off Collins Avenue. Bruce Munster, one of the officers who observed the Petitioner's conduct at the time of his arrest, noticed that the Petitioner became irate and caused Munster to pull his gun to effect the arrest. Petitioner refused to discuss the case at the hearing because the criminal charges against him in connection with this matter were dropped. Petitioner did not offer any rebuttal evidence at the hearing on this charge and in his deposition, he admitted that at the time of the arrest that his companion in the car was sitting in the front seat with his pants down. In 1980, Petitioner applied for a teacher's certificate. On October 21, 1980, his application was denied for the same reasons set out in the foregoing paragraphs. Petitioner failed to appeal or in any way contest the denial of his application. Dr. Patrick Gray, Executive Director, Division of Personnel Control, Dade County, testified as an expert in the areas of education and personnel administration in Dade County and the State of Florida, and as an expert with respect to the Code of Ethics and the Principals of Professional Conduct regulating teachers. The Petitioner's conduct amounts to immorality and moral turpitude, and lessens Petitioner's effectiveness as a public educator in the public school system. In addition, as stated by Dr. Gray the Dade County School system would not hire the Petitioner even if he were granted a certificate.
Recommendation Accordingly, based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's application for a Florida Teacher's Certificate. DONE and ENTERED this 23rd day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1984. COPIES FURNISHED: Alvin Leonard Pondexter 17120 Northwest 27th Street Miami, Florida 33056 Wilson Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Donald L. Griesheimer, Director Education Practices Commission Knott Building Tallahassee, Florida 32301
Findings Of Fact Michael J. Craven holds a Florida teaching certificate #244046, Post Graduate, Rank II, for elementary education, junior college and supervision. During the school year 1978-1979, he was employed as a foreign language teacher and curriculum assistant at Terry Parker Senior High School in Duval County. He was on an annual contract. At the conclusion of the school year he was not rehired because of a police report received by the personnel office of the Duval County school system. The report alleged that Mr. Craven had committed a sexual offense. Michael Legan is a detective with the Duval County Sheriff's Office. He is attached to the vice squad and was so employed on February 15, 1979. On that date he was on duty at an establishment called Daytona International where pornographic movies were shown in numerous small booths. Mr. Craven approached detective Legan who was wearing plain clothes and asked him if he wanted to watch a movie with Mr. Craven. Detective Legan agreed and went into a booth. Upon their entry Mr. Craven put one hand on Detective Legan's buttocks and grabbed his crotch with the other one, while attempting to fondle him. At that point Mr. Craven was arrested. On February 22. 1979, an information was filed by the State Attorney against Mr. Craven. It alleged that on February l5, 1979, he violated Section 800.02, Florida Statutes by fondling and rubbing Detective Legan's buttock and penis. Mr. Craven pled guilty as charged on March 19, 1979. He received a fine of $50.00 by the Duval County Court. Immediately after his arrest, Mr. Craven notified his school principal of his arrest. Other than to rehire him for another year of teaching, no discipline concerning Mr. Craven's arrest or conviction was ever taken against him by the Superintendent or School Board of Duval County. Since the school year of 1968-1969, Craven has received excellent evaluations of his performance as a school teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered by the Education Practices Commission, pursuant to Section 2, Chapter 80-190 Laws of Florida (1980) suspending Mr. Craven's certificate to teach for a period of three (3) years commencing with the date of the final order. DONE and RECOMMENDED this 10th day of October, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1980. COPIES FURNISHED: L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202 Michael J. Craven 3460 Red Oak Circle East Orange Park, Florida 32073
The Issue The issue in this case is whether the Respondent committed certain acts alleged by the School Board and, if so, whether those acts constitute immorality or misconduct in office and thereby constitute just cause for the suspension and termination of the Respondent's employment as a continuing contract visiting teacher.
Findings Of Fact The Respondent, James W. Hamilton, was employed by the School Board of Dade County pursuant to a continuing contract and was assigned to Region One of the school system as a visiting teacher. As a visiting teacher, the Respondent held a valid teaching certificate and he had the option of being a classroom teacher. As a visiting teacher, his duties here primarily related to identifying and helping to resolve home problems that adversely affected the school attendance or school performance of students in the Region One schools. Visiting teachers are held to the same standards of conduct as those expected of classroom teachers. For many years, including the 1989-90 school year, there has been in place throughout the Dade County School System an ongoing, continuous anti-drug program. The program is designed to prevent the use of unlawful drugs by public school students. At about 10:00 p.m. on the night of October 27, 1989, Officers Warren Emerson and Willie Wiggins, together with several other law enforcement officers of the Broward County Sheriff's Office were in the process of conducting a reverse sting operation in the 4600 block of Southwest 20th Street, a neighborhood in West Hollywood, Florida, known as Carver's Ranches. Officer Wiggins was working as an undercover operative, posing as a street level narcotics dealer offering to sell rock cocaine to anyone who was interested in buying it. Other officers waited nearby to arrest all of Officer Wiggins' customers. The Carver's Ranches area is known to be a high-level street narcotics area where many offenses occur, such as burglaries, robberies, thefts, shootings, and an array of crimes related to narcotics activity. At approximately 10:00 p.m. on the night of October 27, 1989, the Respondent approached the location of the reverse sting operation and stopped his vehicle beside where Officer Wiggins was standing. Officer Wiggins walked over to the Respondent's vehicle, whereupon a conversation took place between the Respondent and Officer Wiggins. Officer Wiggins then handed a small plastic baggie containing rock cocaine to the Respondent. Immediately thereafter, Officer Wiggins removed his cap, which was a signal to the other law enforcement officers involved in the reverse sting operation that a narcotics transaction had taken place and that the Respondent was in possession of rock cocaine. Other officers promptly moved in and arrested the Respondent. At the time of his arrest the Respondent was holding in his left hand a small plastic baggie containing rock cocaine. The baggie containing the rock cocaine was seized by the arresting officers and was turned over to a forensic chemist for analysis. Scientific analysis of the contents of the baggie taken from the Respondent confirmed that the baggie contained cocaine. Scientific analysis also confirmed that it was the same cocaine that had been distributed by Officer Wiggins, because all cocaine distributed by Officer Wiggins was specially marked. Shortly after the Respondent was arrested for possession of rock cocaine that information was reported to the School Board of Dade County. The school system initiated investigative proceedings and the facts became known to various school system administrators. The fact of the Respondent's arrest also became known to clerical staff, to other personnel who handle confidential matters, and to agencies that are customarily involved in these types of matters. The Respondent's arrest for possession of cocaine was also reported on two occasions in the Miami Herald, a Dade County newpaper of wide circulation. The Respondent's possession of cocaine constitutes a breach of various duties imposed on instructional personnel, including the following: (a) the duty to strive to achieve and sustain the highest degree of ethical conduct, (b) the duty to maintain the respect and confidence of colleagues, students, parents, and other members of the community and (c) the duty to make reasonable efforts to protect students from conditions that would be harmful to either learning, health, or safety. The Respondent's possession of cocaine is inconsistent with standards of public conscience and good morals and is sufficiently serious as to impair the Respondent's services in the community and his effectiveness in the school system. Such conduct also constitutes a violation of School Board rules relating to employee misconduct and conduct unbecoming a School Board employee pursuant to Rules 6Gx13-4A-1.21 and 6Gx13-4C- 1.01.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order in this case concluding that the Respondent is guilty of - "immorality" and "misconduct in office" within the meaning of Section 231.36(4)(c), Florida Statutes, and terminating the Respondent's employment. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of July 1990. MICHAEL M. PARRISH 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 18th day of July, 1990. COPIES FURNISHED: Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Mr. James W. Hamilton 505 N.W. 177th Street Apartment 120 Miami, Florida 33169 Dr. Patrick Gray Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 The Honorable Betty Castor Commission of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400 =================================================================
The Issue The issue is whether respondent should be dismissed as an employee for the reasons given in the termination letter dated June 19, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Oliver Williams, was employed as a bus aide for petitioner, School Board of Alachua County (Board). As such, he is an educational support employee within the meaning of the law. In a charging document dated June 19, 1996, the Board alleged that respondent had violated the Board's "DrugFree Workplace" policy by "testing positive for an illegal substance" a second time. For this alleged misconduct, the Board proposed to terminate his employment. Effective July 17, 1996, respondent was suspended without pay pending the outcome of this proceeding. Respondent disputes these allegations and has initiated this proceeding to challenge his termination. In his position as a bus aide, respondent is required to undergo an annual physical, including a five-panel drug screen through urinalysis for amphetamines, cannabinoids, cocaine, PCP and opiates. The testing is required since the Board has adopted a policy/guideline of maintaining a drug-free workplace. The policy/guideline has been in effect since at least May 16, 1989, and all employees are on notice that controlled substances may not be used in the workplace. On June 14, 1995, respondent provided a urine speciman to Doctor’s Laboratory, Inc., a Gainesville, Florida firm which has contracted with the Board to provide drug screening for certain Board employees. That test revealed a positive reading for Cannabinoids-THC (marijuana), which violated a Board policy prohibiting the “use of a controlled substance” in the workplace. On June 26, 1995, respondent was invited to a conference to discuss the test results. At that conference, respondent executed a rehabilitation contract in which he agreed to undergo patient counseling and to refrain from using “all illegal mind- altering substances.” He also agreed to have “random urinalysis” for a period of one year following release from the rehabilitation clinic/counselor. The contract provided that if he violated the agreement, he would be subject to termination as a Board employee. On August 16, 1995, and March 4, 1996, respondent tested negative in follow-up drug tests. On June 10, 1996, however, respondent again tested positive for Cannabinoids-THC. The validity and accuracy of the latter test has not been challenged. At a pre-termination conference held on June 18, 1996, respondent was asked what would cause his test to be positive. He responded that a fourteen year old niece who lived in his home regularly smoked marijuana with her friends and the passive smoke may have caused the positive reading. Through expert testimony of Dr. Goldberger, however, this theory was discredited. Because respondent’s conduct violates Board policy and the agreement which he signed, he should be terminated. Termination of employment is consistent with actions taken by the Board in the cases of other employees who have tested positive a second time. It is likewise found to be appropriate in this case.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Alachua County enter a final order finding respondent guilty of violating Board policy regarding the use of drugs in the workplace and that he be terminated as a Board employee.DONE AND ENTERED this 13th day of March, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1997. COPIES FURNISHED: Robert W. Hughes, Superintendent of Schools School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601-5498 Thomas L. Wittmer, Esquire 620 East University Avenue Gainesville, Florida 32601-5498 Douglas W. Porter, Esquire Post Office Box 2655 Gainesville, Florida 32602
The Issue Whether Petitioner should be granted an educator's certification although he allegedly engaged in inappropriate conduct on May 8, 2002, in violation of Section 1012.795(1)(c), Florida Statutes.
Findings Of Fact On or about May 8, 2002, Deputy Kevin Mason of the Hillsborough County Sheriff's Office stopped a person named David Cheesman for consuming alcohol within 500 feet of a bar, which is prohibited by local ordinance. Deputy Mason "patted down" Cheesman and discovered he was in possession of pills he recognized as clonazepam. Cheesman informed the deputy he had received the pills from Petitioner who was standing nearby. Petitioner had, in fact, given the clonazepam pills to Cheesman. Petitioner had a prescription for the pills. His psychiatrist had just lowered the dosage from 2 mg to 0.5 mg. However, Petitioner had five of the 2 mg pills left. It was those five pills he gave to Cheesman. Petitioner knew the pills were antiseizure and antistress medication, since they had been prescribed by his psychiatrist. Petitioner knew the pills could not be purchased without a prescription. Petitioner was arrested for delivery of a controlled substance, a felony, and also for drinking within 500 feet of a bar, a misdemeanor. The delivery of a controlled substance charge was eventually dropped in criminal court, and Petitioner pled nolo contendere to the misdemeanor. At the time of his arrest, Petitioner was employed as a teacher in the Hillsborough School District working under a temporary certificate. Petitioner's arrest was reported in a local newspaper. As a result of his arrest, Petitioner was suspended without pay, pending further investigation. Petitioner's contract of employment with the Hillsborough School District was not renewed as of July 31, 2002. Teachers in Hillsborough are expected by the public to hold themselves as upstanding citizens, and the delivery of controlled substances and drinking within 500 feet of a bar is not acceptable conduct. Petitioner's inappropriate conduct on May 8, 2002, was an act involving moral turpitude.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Petitioner did violate the provisions of Section 1012.795(1)(c). It is further RECOMMENDED that a final order be issued denying the issuance of a teaching certificate to Petitioner; that Petitioner be prohibited from reapplying for a period of one year; and that should Petitioner reapply, the certificate be issued subject to such conditions as the Education Practices Commission may specify. DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 19th day of September, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399 Bruce Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Arthur Therrien, Jr. 2114 Village Avenue South Tampa, Florida 33612 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether Respondent's educator's certification should be sanctioned for alleged gross immorality or an act involving moral turpitude, and other offenses in violation of Section 231.2615(1)(c), (e), (f) and (2), Florida Statutes.
Findings Of Fact Respondent, Daniel Ayers, holds Florida Educator Certificate number 735644, which was valid through June 30, 2005. At all times relevant hereto Respondent was employed as a second grade teacher at Gulfport Elementary School in the Pinellas County School District during the relevant school year. On July 5, 2000, at about 8:15 p.m., Respondent entered the public restroom at Lake Seminole Park, Pinellas County Florida, where he was observed by Deputy James Brueckner of the Pinellas County Sheriff's Office. It is a well-used park, and people were present that evening. It was still light at that time, and Lake Seminole Park was being used by families and children. The playground is close to the northeast corner of the restroom Respondent entered. Respondent approached a urinal, and, after facing it for about 30 seconds, he went to the back wall where it was possible for him to observe, through the openings, anybody approaching the restroom. At that point, Respondent had his penis in his hands and was masturbating by holding his penis and fondling it. He then replaced his penis in his pants through the fly, pulled down his shorts, and began moving his hand up and down on his penis in a rapid motion. Deputy Brueckner, who was inside the restroom, removed his badge and identified himself to Respondent. He told Petitioner that he was a detective and showed him the badge. He told Respondent that he was under arrest, but that he should be calm. They would go out to his vehicle to do the paperwork. Respondent made a move towards the door, as if he was going to run. Deputy Brueckner grabbed him, and Respondent shoved the deputy and fled. Deputy Brueckner pursued Respondent and caught him. Respondent swatted the deputy several times. Two other deputies came to Deputy Brueckner's assistance, and Respondent was subdued. Respondent was charged with indecent exposure of sexual organs (a misdemeanor) and with resisting arrest with violence (a felony). He subsequently entered a plea of No Contest to the charge of indecent exposure of sexual organs and to the reduced charge of resisting arrest without violence in Pinellas County Circuit Court. He was adjudicated guilty on both charges by the court and placed on probation. Respondent admitted to Michael Bessette, an administrator in the office of professional standards, Pinellas County School District, that he was the person arrested and charged as a result of the incident on July 5, 2000. In Bessette's expert opinion, the public would not tolerate the type of behavior exhibited by Respondent on July 5, 2000, at Lake Seminole Park. Respondent's effectiveness as a teacher was seriously reduced to the point where the school district had to remove him from teaching duties. In Bessette's opinion Respondent engaged in conduct that constitutes gross immorality and would not be tolerated under state or local ethical standards. Respondent resigned his teaching position with the Pinellas County School District on April 25, 2001, following his conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Section 231.2615(1)(c), (e), and (f), Florida Statutes. It is further RECOMMENDED that a final order be issued revoking Respondent's teaching certificate for three years, imposing a $1,000 fine for the above violations, and that upon re- application for certification, imposing such conditions as are just and reasonable. DONE AND ENTERED this 14th day of April, 2003, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2003. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Daniel Ayers 7096 111th Street, North Seminole, Florida 33772 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Mary Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent is guilty of failing to make reasonable effort to protect a student's safety, in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a).
Findings Of Fact Respondent holds Florida Educator Certificate 646554 in the area of Mentally Handicapped. For the past six or seven years, Respondent has been employed as an ESE teacher at Windy Ridge. The record contains no evidence of prior discipline of Respondent's educator certificate, but the District suspended her for five days without pay for the three incidents that are described below. For the 2012-13 school year, Respondent and four paraprofessionals taught a class of seven ESE students. The paraprofessionals performed tasks assigned to them by Respondent. Absences on December 4, 2012, reduced the class to five ESE students, Respondent, and two of the four paraprofessionals regularly assigned to Respondent's classroom. The principal assigned a substitute for one of the two absent paraprofessionals, so four adults were supervising five students on that day. One of the five students present on December 4 was D.R., who was nine and one-half years old and suffered from a "significant cognitive disability." As documented by his Individual Educational Plan (IEP), which is dated November 6, 2012, D.R.'s mother was "very concerned" about the safety of her son, who was tube-fed, "non-verbal," and able to follow only "some simple one-step commands." The IEP warns that D.R. was in a "mouthing stage," meaning that he put "everything" in his mouth for sensory input. As described in his social/developmental history, which is dated November 1, 2012, D.R.'s health was "fragile." The three incidents at issue took place during approximately one hour at midday on December 4. The first incident took place at 11:10 a.m. Serena Perrino, a District behavior trainer, was sitting alone in Ms. Barnabei's classroom, which is next to Respondent's classroom. The two classrooms are joined by the two teachers' offices, so it is possible to walk between the classrooms without entering the hallway. On a break, Ms. Perrino had turned off the lights and was on the computer at the front of Ms. Barnabei's classroom. While facing the computer monitor, Ms. Perrino heard a noise behind her, turned around, and saw D.R., by himself, seated on the floor playing with a toy. Ms. Perrino knew that he belonged in Respondent's classroom. Without delay, Ms. Perrino walked D.R. toward his classroom, but, as they were passing through the teachers' offices, Ms. Perrino and D.R. encountered one of Respondent's paraprofessionals, who said that she was "just coming to get him, thanks." The second incident took place between 11:30 a.m. and noon. Bernadette Banagale, the substitute paraprofessional assigned to Respondent's classroom on that day, was eating lunch in a small outside courtyard that is located at the end of the hallway where Respondent's classroom is located. Ms. Banagale saw D.R., by himself, enter the courtyard from the doors at the end of the hallway. Ms. Banagale approached D.R. and, with some difficulty, walked him back to Respondent's classroom where she left him in the custody of the other two paraprofessionals, Susan Brown and Delta Porter, but not Respondent, who was not in the classroom when Ms. Banagale returned the child. The third incident took place shortly after noon. Cathy Zimmerman, a teacher, was sitting in a classroom eating lunch with another teacher. Looking out the window of the classroom, Ms. Zimmerman noticed D.R. in the adjoining breezeway, which divides the building from the school parking lot. Ms. Zimmerman did not know D.R., nor where he belonged, but she saw that he was unescorted. Approaching D.R. in the breezeway, Ms. Zimmerman guided him back through the doors leading to a hallway that, after a short distance, intersects the hallway where Respondent's classroom is located. As she was walking the child into the building, Ms. Zimmerman directed the teacher with whom she had been having lunch to enter the nearest classroom to see if anyone could identify the child. As directed, the other teacher entered Ms. Barnabei's classroom, where she found Ms. Perrino, who again took custody of D.R. and immediately returned him to Respondent's classroom where Ms. Perrino found Respondent and one or more paraprofessionals. In an effort to prove that Respondent failed to make reasonable effort to protect D.R., Petitioner offered two pieces of evidence: during direct examination, the principal prescribed that a classroom teacher is required to know at all times the location of her students, and, during cross-examination, Respondent agreed with the metaphor supplied to her by Petitioner's counsel that a classroom teacher is the "captain of the ship." The principal's prescription and Respondent's metaphor constitute the entirety of Petitioner's explicit analysis of the reasonableness of Respondent's effort to protect D.R. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the first incident. The principal's testimony is inapt because Petitioner failed to prove that a paraprofessional did not always know D.R.'s location; that Respondent failed to protect D.R. when a paraprofessional knew his location, regardless of whether Respondent knew his location; and that D.R.'s safety was compromised at any time during the few seconds that he was in the adjoining classroom. Respondent's testimony is inapt because Petitioner did not prove that a paraprofessional failed to make reasonable effort to protect D.R.'s safety, which would be a pre-condition to attributing this failure to the captain of the ship, as discussed in the Conclusions of Law. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the second incident. Petitioner failed to prove that Respondent was in the classroom at the time of D.R.'s escape or at any time during his ensuing absence from the classroom and failed to prove that Respondent's absence from the classroom was unauthorized. As for the absence of Respondent from the classroom at the time of the escape in the second incident, the strongest evidence is Respondent's written statement to this effect. Other evidence tends to support Respondent's written statement that she was not in the classroom at the time of the escape. Ms. Banagale's scheduled lunch was 11:30 a.m. to noon, and nothing in the record suggests that the substitute paraprofessional took her lunch at other than her scheduled time. The distance between the front door of Respondent's classroom and the exterior doors leading to the courtyard is the width of the single classroom that separates Respondent's classroom from these exterior doors, so it would not have taken D.R. long to travel from the front door of the classroom to the exterior doors leading to the courtyard. Respondent's scheduled lunch was 11:00 a.m. to 11:30 a.m., but Respondent testified that she was behind schedule when she took her lunch. She also testified that she returned to the classroom "a little after noon." Nothing in the record indicates how long Respondent took for lunch, but, if she took all of her allotted time, she likely left the classroom shortly after Ms. Banagale, leaving a very narrow window for D.R. to escape, if he were to do so after Ms. Banagale's departure, but before Respondent's departure--a fact that Petitioner has not established. The only evidence suggesting that Respondent was in the classroom at the time of D.R.'s escape comes from Respondent's testimony at the hearing to this effect. Notwithstanding the inculpatory nature of Respondent's testimony, it is impossible to credit it. Provided nearly two years after the incident, Respondent's testimony was, at times, confused and unclear, but her written statement is clear and straightforward. It would appear that, based on the findings below concerning the third incident, Respondent may have confused the second and third incidents. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the third incident. The third incident is more complicated than the first and second incidents because it is more difficult to determine exactly what Petitioner proved and the extent to which the material factual allegations extend to the proof of the third incident.2/ At minimum, Petitioner pleaded3/ and proved that D.R. escaped from the classroom, and Respondent was in the classroom at the time of the escape. Respondent gave a written statement admitting that she was present when D.R. left the classroom and that she was unaware of his departure "because my back was turned by me working with another student on the computer, [as D.R.] left out the rear door." At the hearing, Respondent testified confusingly, possibly suggesting that she was at lunch or in planning when D.R. escaped in connection with the third incident, but any such exculpatory testimony is discredited for the same reason that her inculpatory testimony regarding the second incident was rejected. As was true of the written statement in connection with the second incident, other evidence tends to support Respondent's written statement in connection with the third incident. As noted in the discussion of the second incident, Respondent returned to the classroom "a little after noon." At this point, Respondent, Ms. Banagale, and Ms. Brown were in the classroom. Ms. Porter's scheduled lunch was from noon to 12:30 p.m., and nothing in the record suggests that she did not take her lunch as scheduled. As discussed in the Conclusions of Law, analysis of whether Respondent failed to meet a reasonableness standard may be facilitated by consideration of the burden of taking precautions sufficient to prevent an escape, the probability of an escape, and the magnitude of the threat to D.R.'s safety, if he escaped. The burden of taking additional precautions was not insubstantial. The classroom has three exits, and D.R. used each of them in connection with the three incidents. In the first incident, as noted above, D.R. used a side exit through the teachers' offices to get to the adjoining classroom of Ms. Barnabei. In the second incident, D.R. used the front door to get to the courtyard. In the third incident, D.R. used the rear door to access the adjoining breezeway, where Ms. Zimmerman found him no more than 75 feet from the rear door. Evidence suggests that locking the doors at each of these exits was forbidden, possibly due to fire regulations. Although three adults were supervising only five ESE students at the moment of D.R.'s escape in the third incident, the paraprofessional who normally taught D.R. one-on-one at the time of the escape was absent. It is not entirely clear how long Respondent was in the classroom before D.R. escaped, but Respondent was performing instructional duties at the moment of the escape, so additional attention by Respondent to security would have meant reduced instruction, at least of the child whom she was teaching one-on-one at the time of the escape; this adds to the burden of taking escape precautions.4/ The probability of D.R.'s escape was demonstrably very high, as evidenced by his three escapes in a single hour on December 4. The magnitude of the threat to D.R.'s safety from an escape is difficult to assess. D.R. was a medically fragile, highly vulnerable child. However, he suffered no injuries in any of the three escapes that are the subject of this case. The magnitude of the threat posed to D.R.'s safety from escaping was thus low. Considering that the burden of taking additional precautions was moderate, the probability of escape was high, and the magnitude of threat to D.R.'s safety from an escape was low, it is impossible to find that Petitioner proved by clear and convincing evidence that Respondent failed to make reasonable effort to protect D.R.'s safety by preventing the escape in connection with the third incident. The analysis in the preceding paragraphs focuses on Respondent's failure at the moment of D.R.'s escape, not on the duration of his absence from the classroom and any ongoing failure to notice that the child was missing from the classroom. As explained in the Conclusions of Law, Petitioner did not plead these failures as grounds for disciplining Respondent, but, in an abundance of caution, the following findings address these alternative grounds for determining that Respondent failed to make reasonable effort to protect D.R.'s safety in connection with the third incident. There is no direct evidence of how long D.R. was out of the classroom in connection with the third incident. There is only one point in time established by direct evidence: Ms. Zimmerman first saw the child at 12:10 p.m. There is no direct evidence of when D.R. escaped from the classroom, nor could there have been such evidence from the known witnesses. Ms. Zimmerman's written statement notes that all of the physical education teachers, which may include her, were in the area of the breezeway from noon to 12:07 p.m., and they never saw D.R. Ms. Zimmerman's statement implies that someone would have seen D.R. if he had been anywhere in the breezeway by himself. Although Ms. Zimmerman could have estimated how long she had the child before turning him over to Ms. Perrino, no one asked her to do so.5/ And there is no other direct evidence of how long Ms. Zimmerman had the child. Based on the evidence cited in the preceding paragraph, D.R. escaped the classroom between 12:08 p.m. and 12:10 p.m. and returned to the classroom between 12:11 p.m. and 12:13 p.m. Limiting inferences to those supported by clear and convincing evidence, as discussed in the Conclusions of Law, the earliest that D.R. left the classroom was 12:09 p.m., and the latest that D.R. returned to the classroom was 12:11 p.m. This means that Petitioner has proved that D.R. was absent from the classroom for no more than two minutes: one minute by himself and one minute accompanied by Ms. Zimmerman. The burden of taking adequate precautions to detect the child's absence and return him to the safety of the classroom is lower than the burden of preventing the escape, which can occur in a few seconds, although it is difficult to assess what exactly would have been required of Respondent to conduct a search or, by notifying school administrators, to cause a search to be conducted. The burden of preventing an escape is much greater than the burden of noticing, within two minutes, that a child is missing from a five-student classroom. The magnitude of the threat to D.R.'s safety rises the longer that he is out of the classroom, especially unescorted. Presenting a closer case than the pleaded case involving only an escape, the claim that Respondent failed to make reasonable effort, when directed to the length of time that D.R. was out of the classroom, requires consideration of any effort that Respondent made during D.R.'s absence. The duration of D.R.'s absence is thus linked to whether Respondent noticed that D.R. was missing and, if so, what Respondent did upon discovering that he was gone. As discussed in the Conclusions of Law, because inferences are limited to those supported by clear and convincing evidence, Petitioner has not proved that Respondent and the paraprofessionals failed to notice that D.R. was missing. There is no direct evidence that Respondent and the paraprofessionals failed to notice that D.R. was missing from the classroom. The record lacks admissions from Respondent and the two paraprofessionals in the classroom during the third incident that they were unaware of D.R.'s absence.6/ Both Ms. Zimmerman and Ms. Perrino testified that they did not see anyone in the vicinity of the classroom looking for D.R., and this testimony is credited, but supports no more than an inference by a preponderance of the evidence that the adults in the classroom were not looking for the child, and does not support even an inference by a preponderance of the evidence that the adults in the classroom had failed to notice that D.R. was missing. Ms. Perrino testified that when she returned D.R. to the classroom, none of the adults present seemed to have realized that the child had been missing. This testimony is credited, but, lacks important detail, including on what this testimony is based and whether this observation applied to Respondent, so as to support no more than an inference by a preponderance of the evidence that the adults had not noticed that D.R. was missing. Thus, even if Petitioner has pleaded the duration of D.R.'s absence and a failure to notice the absence of the student as grounds for determining that Respondent failed to make reasonable effort to protect his safety, Petitioner failed to prove these claims by clear and convincing evidence
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 1st day of December, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2014.
Findings Of Fact The following findings of fact are based upon the evidence presented at hearing, the demeanor of witnesses, and stipulations of the parties: Respondent was employed by Petitioner as a 4th and 5th grade teacher under continuing contract since June, 1980. During his employment, he was evaluated as a satisfactory teacher. The parties stipulated that on May 19, 1987 at approximately 1:45 a.m., Respondent committed fellatio with another male adult. They further stipulated that Respondent does not claim that this was a single, isolated occurrence. The incident on May 19, 1987 took place in North Shore Park, St. Petersburg, which is an area known to the local police as a place for homosexual activity. North Shore Park is approximately 6 1/2 miles from the elementary school at which Respondent taught fourth grade. It is a public park extending from Sixth to Nineteenth Avenues, North, and bordered on the east by Tampa Bay and on the west by Shore Drive. The park has a public swimming pool, tennis courts, parking areas and a public beach. On the morning of May 19, 1987, Respondent drove to the park, parked his car, and walked from Seventeenth Avenue, North, to Thirteenth Avenue, North, where he encountered the other male. Respondent believed they were alone. They walked to a bench on the public beach and engaged in fellatio. Police Officer Thad Crisco, St. Petersburg Police Department, observed Respondent performing fellatio on the other male. Officer Crisco, who was patrolling the park on foot, was approximately twenty feet away from Respondent. He observed them with the use of an infra-red night scope, but he testified that the night scope was not required or necessary to observe the incident due to the moonlight and other available lighting. Crisco was behind a palm tree, but had a clear line of vision over a four foot high sea wall which separated him from Respondent and the other male. There was also a lit public parking area about 100 feet from where Respondent was observed. Respondent was arrested and charged with performing an unnatural and lascivious act with another male in a public place. On or about May 27, 1987, Respondent was suspended with pay by Superintendent Scott Rose, who also recommended his dismissal by the School Board, effective June 25, 1987. The Superintendent's action and recommendation resulted from the incident on May 19, 1987. The School Board approved the Superintendent's recommendation for dismissal on June 25, 1987, and Respondent was informed of this action by letter dated July 21, 1987. Respondent timely sought this hearing on his dismissal. On or about June 12, 1987, Respondent entered a plea of no contest to the criminal charges arising out of the incident at North Shore Park, and an Order Withholding Adjudication of Guilt and Placing Defendant On Probation was entered on June 12, 1987 in Case Number CTC 87-10343 MMANO, County Court for Pinellas County. Respondent was placed on six months probation, ordered to perform ten hours of community service and prohibited from entering any parks in Pinellas County. Respondent's probation was terminated early by Order entered on October 15, 1987 since he had satisfied all terms and conditions of his probation. By letter dated October 26, 1987, the Commissioner of Education found there was no probable cause "at this time" to suspend or revoke Respondent's teaching certificate in connection with this incident. Within the month following the incident in North Shore Park and his arrest, Respondent was the subject of one article in the St. Petersburg Times and three articles in the Tampa Tribune, Pinellas Edition. The parties stipulated that the St. Petersburg Times has a daily circulation of approximately 285,000 in Pinellas County, and the Pinellas Edition of the Tampa Tribune has a daily circulation of approximately 11,000. Based upon the testimony of Robert Welch, Principal of Bay Point Elementary School, Nancy Zambito, Director of School Operations, and Superintendent Rose, all of whom were accepted as experts in education, it is found that Respondent's action on May 19, 1987, his arrest and plea of no contest, and his being placed on probation are inconsistent with a public school teacher's responsibility to set an example for the students he teaches, undermines the confidence, trust and respect which parents and students should have in a teacher, evidences extremely poor judgement for one in whose custody the educational welfare of fourth graders is placed, and can reasonably be expected to impair his effectiveness as a teacher and lead to serious discipline problems with students if he returns to the classroom. Respondent even expressed concern about the embarrassment his actions caused for the school district. Through the testimony of Thomas Auxter, Ph.D., who was accepted as an expert in ethics, Hernan Vera, Ph.D., who was accepted as an expert in sociology, and Harry D. Krop, Ph.D., who was accepted as an expert in psychology, Respondent sought to establish that the incident on May 19, 1987 was a private, consensual act, without demonstrable or intentional injury or infliction of harm upon others outside the act. Dr. Auxter expressed the opinion that the act was not immoral since Respondent had a reasonable belief that no one else was present, and the act was not demonstrably or intentionally harmful. According to Dr. Auxter, one has to consider the time and place where an act occurs, as well as a person's intentions, in determining if it is an immoral act; circumstances are very important. Thus, an act performed at 1:45 a.m. may be a private sex act, while the same act at 1:45 p.m. in the same place may be clearly intentional, observable and offensive to others, and therefore be immoral. Dr. Vera expressed the opinion that Respondent's behavior did not constitute public behavior since the circumstances were private. Again, the time of the morning when the incident occurred was critical to Dr. Vera's opinion. Dr. Krop testified that school children would not necessarily be negatively affected by the incident, and that Respondent is capable of mitigating the effect of the incident on his ability to teach. The testimony of Drs. Auxter and Vera concerning the private nature of the act of fellatio in this case is specifically rejected based upon the testimony of Officer Crisco and Sergeant Earl J. Rutland, St. Petersburg Police Department. Crisco was only twenty feet away from Respondent at the time of the incident, with a clear line of sight. Respondent and the other male were clearly visible in the moonlight without having to use the night scope. The act occurred in a public park, and on a public beach. According to Sergeant Rutland, North Shore Park has a great deal of public activity at all hours of the day and night, and much of that activity results in complaints to the police. The very fact that Respondent went to this area at 1:45 in the morning looking for someone to engage in homosexual activity with, confirms the fact that members of the public frequent this area at all hours. Thus, he had no reasonable expectation that they would be alone on this beach, even at 1:45 a.m. Respondent did commit a sexual act, fellatio, in public on May 19, 1987. Dr. Vera testified that cultural norms require that sexual acts be performed in private, and Dr. Auxter acknowledged that just one violation of said norm can bring a person into disgrace and disrespect. The testimony of Dr. Krop concerning the effect of this incident on children and parents, and on Respondent's ability to teach, is outweighed by the testimony of Welch, Zambito, and Superintendent Rose. Krop was not accepted as an expert in education, and demonstrated little experience working with public school children and their parents when compared with the vast experience of Petitioner's experts.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order dismissing Respondent from employment. DONE AND ENTERED this 19th day of May, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1988. APPENDIX (DOAH Case No. 87-2849) Rulings on Petitioner's Proposed Findings of Fact: 1-4 Adopted in Finding of Fact 1. 5. Adopted in Findings of Fact 2, 3. 6-9 Adopted in Findings of Fact 6, 14. Adopted in Finding of Fact 7. Adopted in Finding of Fact 9. Adopted in Finding of Fact 11. Adopted in Findings of Fact 3, 14. 14-16 Rejected as cumulative and unnecessary, but considered as the basis for accepting the witness as an expert in education. 17-20 Adopted in Finding of Fact 12. 21 Rejected as irrelevant and also hearsay. Rulings of Respondent's Proposed Findings of Fact: 1-2 Adopted in Findings of Fact 1, 4, 8. Adopted in Findings of Fact 7, 9, but otherwise rejected as irrelevant and unnecessary. Rejected in Findings of Fact 6, 14. Adopted and Rejected in Findings of Fact 6, 14. Adopted and Rejected in Finding of Fact 5, and otherwise Rejected as irrelevant. 7-8 Adopted in Finding of Fact 12. Rejected as irrelevant. There was evidence that Respondent initially considered resigning and then Petitioner acted expeditiously to take disciplinary action. These events may have affected the level of community reaction. Adopted in Findings of Fact 7, 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 13. 13-14 Rejected as unnecessary and as not based upon competent substantial evidence. While the ethical analysis set forth by Dr. Auxter represents one expert's opinion, it was not shown that his opinion, albeit an expert opinion, competently and substantially represents 2500 years of study and thought. Rejected as unnecessary since Dr. Auxter's ultimate opinion is rejected. Rejected as Finding of Fact 14. 17-30 Adopted in part and Rejected in part in 13 and 14; otherwise Rejected as irrelevant and unnecessary. Rejected as unnecessary since Dr. Vera's ultimate opinion is rejected. Adopted in Finding of Fact 13. Rejected in Finding of Fact 15. Rejected as unnecessary since Dr. Krop's ultimate opinion is rejected. 35-38 Rejected in Findings of Fact 12, 15. 39 Rejected as argument on the evidence rather than a Finding of Fact. COPIES FURNISHED: Scott Rose, Ph.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 33518-4688 Bruce P. Taylor, Esquire School Board Attorney Post Office Box 4688 Clearwater, Florida 33518-4688 Robert F. McKee, Esquire Charleen C. Ramus, Esquire KELLY & McKEE, P.A. Post Office Box 75638 Tampa, Florida 33605-0618 =================================================================
