The Issue Whether there exists just cause to terminate Respondent from his employment with the Broward County School Board.
Findings Of Fact The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Broward County, Florida, and for otherwise providing public instruction to school-aged children in the county. James had been employed by the School Board for 11 years prior to being placed on unpaid leave in June of 2011. During the time relevant to the instant case, he was employed as a Behavior Specialist and as the head football coach at Boyd Anderson. He also served as the Athletic Director at Boyd Anderson for the 2009-2010 school year. Edden Merchandise During the 2007-2008 school year, Christopher Edden (Edden), owner of Edden Clothing Company, began to call local schools to develop some business in the Broward County schools. He spoke with James at Boyd Anderson because he was the head football coach, and made his sales pitch. James spoke with Rayfield Henderson (Henderson) and Joan Ferguson, the co-principals at Boyd Anderson, and explained that Edden could create spirit gear for the students. Ferguson and Henderson thought it was a good fundraising idea, because James told them that Edden was producing the spirit gear on a consignment basis. James told Henderson that Edden would produce the gear, and Boyd Anderson would only have to pay for the gear as they sold it. Henderson thought it would be a good idea to set up a "spirit gear store" at the school, and for any profit to go into the athletic department. Henderson approved the spirit gear project, and because of his belief that the spirit gear was being given to the school on a consignment basis, and no money needed to be put forth to purchase the items, he did not instruct James to complete a purchase order. Edden and James exchanged e-mails regarding the colors and design for the logo and mascot. James indicated the items he was interested in ordering, placed the order with Edden, and signed the order form. Edden told James that he required full payment within 30 days after delivery; Edden invoices state "due on receipt." James knew that payment would be due within thirty days of receipt of the items; Edden made the terms of payment clear to James. Edden created the merchandise, and delivered 30 to 40 boxes of clothing and other spirit gear to Boyd Anderson. The amount ordered totaled approximately $32,000.00. After invoices were sent and remained unpaid, James informed Edden that he was not receiving payment for the merchandise because Henderson was not willing to pay the amount due. Edden then started to communicate with Henderson directly, and Henderson maintained that he would somehow pay Edden the amount owed to him. In the Spring of 2008, Edden wrote letters to Henderson, indicating that he had yet to be paid, that he had tried numerous times to contact James with no response, and that he demanded payment in full. The school made many efforts to sell the merchandise, but those efforts were largely ineffective. Ultimately, Edden hired an attorney, and sued the School Board. The School Board settled the case, paying Edden approximately $25,000.00. James misled Henderson when presenting the terms of the agreement with Edden. Henderson approved a fundraising project that was flawed from its inception, due entirely to James's misrepresentations. Due to the misrepresentation made to Henderson, School Board policy 3320, which mandates a specific process for purchases over $5,000, was not followed. Basketball game In November 2010, when James was the acting Athletic Director, he was approached by the Bank Atlantic Center about having the Boyd Anderson basketball team play Monarch High School after two collegiate games on the evening of December 18, 2010. On November 29, 2010, James submitted a Project Approval Form, which is used when any member of the faculty or administration is seeking approval of a project or event. The form was approved and signed by both Assistant Principal Evans, and the principal at that point, Mr. Almanzar. The athletic event was intended to be a fundraiser for Boyd Anderson. Boyd Anderson would purchase 150 tickets to the event for $17.75 each, and then re-sell the tickets to the student body and Boyd Anderson families and faculty for $22.75 each. Half of the tickets were to be given to Monarch High School to sell to their school community. James entered into the contract on behalf of Boyd Anderson, signing the contract with Bank Atlantic Center. Unfortunately, while the two high schools were attempting to sell these tickets, the Orange Bowl Committee was simultaneously providing free tickets to the Broward County schools. Thus, it became very difficult to sell tickets. Only a few tickets were actually sold, and Boyd Anderson ultimately paid for 136 tickets, totaling approximately $2,399.00. There is no evidence that James kept any money from the sale of the tickets, or that he stole or lost any tickets. Transcripts On June 7, 2011, a letter of reprimand was issued to James. It accused James of having asked the school registrar to enter transcripts into the school system, and bypass the process by which transcripts are validated. There was no direct evidence establishing that James committed the acts he was accused of in the reprimand letter. Ultimate Findings The greater weight of the evidence establishes that James is guilty of immorality and of misconduct in office, by failing to maintain honesty in his professional dealings and by violating the Code of Ethics. His misrepresentations led to a violation of School Board policy 3320, as the proper procedure for purchasing merchandise that totaled approximately $32,000.00 was not followed. The greater weight of the evidence establishes that James is not guilty of moral turpitude, or of violations of School Board policy 3411, or 6301.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board terminate Respondent's employment. DONE AND ENTERED this 31st day of July, 2012, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2012. COPIES FURNISHED: Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. Suite E 300 Southeast 13th Street Fort Lauderdale, Florida 33316 charles@ctwpalaw.com Patrick A. Santeramo Broward Teachers Union 6000 North University Drive Tamarac, Florida 33321 Melissa C. Mihok, Esquire Kelly and McKee, P.A. Suite 301 1718 East 7th Avenue Post Office Box 75638 Tampa, Florida 33675-0638 mcm@kellyandmckee.com Gerard Robinson, Commissioner Department of Education Suite 1514 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Suite 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert Runcie, Superintendent Broward County Public Schools 600 Southeast Third Avenue Fort Lauderdale, Florida 33301
The Issue The issues presented for decision in the above-styled matter are as follows: Can tenure be denied, as opposed to being granted or postponed, during the fifth year of employment? If so, was petitioner wrongfully denied tenure? Did respondent wrongfully determine that petitioner's employment contract would not be renewed beyond June of 1975? 4 Was petitioner wrongfully terminated before he received a due process hearing?
Findings Of Fact Based upon the admissible oral ad documentary evidence adduced at the hearing, the following pertinent facts are found: Petitioner Jeffrey Rosner was hired by the respondent in September of 1969 as an Assistant Professor in the Department of Political Science, College of Social and Behavioral Sciences, a tenure-earning position. He was reappointed to this position for the school years 1970-71, 1971-72, 1972-73, 1973-74, and 1974-75. During the period of time between September, 1969 and June of 1975, petitioner received and reviewed student evaluations of his teaching effectiveness. Although his student evaluations improved over the five-year period in question, petitioner's evaluations from students were consistently below the college median. Also, for the calendar year 1973, rating scores were assigned to all fifteen faculty members of petitioner's department. In the area of teaching, petitioner ranked fourteenth. 1/ At all times, petitioner's primary assigned duty was teaching. At all times relevant to this proceeding - from the time petitioner received his first appointment to the present time - the Florida Board of Regents had established and set forth three areas in which faculty members would be evaluated for purposes of tenure, promotion, salary and retention. These three areas are teaching, research and other creative activities and service. Also, "tenure" has been consistently defined in terms of a high degree of competence in the three areas mentioned above. The respondent University, at least since 1970, has employed the use of "tenure forms" in order to gather information from the individual faculty members being considered for tenure in the areas of teaching, research and service. Such forms may be supplemented as was done in the instant case by a six-page supplementary statement. In the middle of his fifth year of continuous employment at the University of South Florida, petitioner was considered for tenure. It was the common practice in the Political Science Department to consider faculty members for tenure during their fifth year. The faculty member himself is not given a choice as to whether he wishes to be considered or postponed for tenure. At the time petitioner was considered for tenure, from December of 1973 through March of 1974, the procedure utilized in the Political Science Department was as follows. The tenured faculty members of the Department review the candidate's file, which is at least partially prepared by him, and then vote by secret ballot to either grant, deny or defer the tenure decision. An advisory committee consisting of four persons (three acting and an alternate) elected by the faculty members also reviews the candidate's file. Each member of the advisory committee makes an independent evaluation of the candidate and then the members' get together, rate the candidate on a scale of 1 to 5 in the areas of teaching effectiveness, research and creative activity, service and overall quality. The committee members than vote upon the recommendation to be made to the Department Chairman to either grant, deny or defer tenure. The Department Chairman then reviews everything to date, rates the candidate on the same areas and makes his decision. The candidate is then notified of the Department's decision and is given an opportunity to request to meet with the Chairman and/or the advisory committee to discuss reconsideration of the decision. Thereafter, the recommendation is finalized and everything is sent to the Dean of the College. The Dean recommends to the Vice president of Academic Affairs and the Vice President recommends to the President of the University. The above procedure was followed in Dr. Rosner's case and the following transpired: The tenured faculty, consisting of six persons, voted four opposed to granting tenure, two to defer the tenure decision and none in favor of granting tenure. During its first consideration, the departmental advisory committee, consisting of three faculty members - one tenured and two non-tenured - voted as follows: two opposed to granting tenure, one to defer the tenure decision and none in favor of granting tenure. That committee found that while petitioner's areas of specialization were relevant to the Department's needs, plans and goals, his performance in the categories of evaluation - teaching, research and service - "is insufficiently high to justify granting him tenure." On a scale of 1 to 5 (1 - below average, 3 - average, 5 - above average) the committee rated petitioner 2 in teaching effectiveness, 2 in research and creative activity, between 2 and 3 in service and 2 in overall quality. Upon the first evaluation, the Department Chairman, Dr. Robert Bowman, voted that he was opposed to granting tenure. He rated Rosner between 2 and 3 in teaching effectiveness, 1 in research and creative activity, between 3 & 4 in academic advisement, between 2 & 3 in service and 2.33 in overall quality. The Chairman also found that Rosner's talents and resources did not fit the needs, plans and goals of the Department. Upon reconsideration at petitioner's requests the advisory committee and the Chairman rated Rosner 2.5 in teaching effectiveness, 1.5 in research and creative activity, 2.5 in service activities and 2.0 as the overall evaluation. (Attachments 1 through 4 of Exhibit 1 lists the material relied upon in arriving at these ratings). The Department therefore recommended "denial of tenure and absolute termination at the end of the 1974-75 contract period." The Dean of the College of Social and Behavioral Sciences, Dr. Travis Northcutt, having the choices set forth on a form to recommend either the granting, denying or deferring of tenure, voted to recommend the denial of tenure in Rosner's case. He based this decision on a full review of all materials submitted by Rosner and the file sent by the Chairman. The Vice president for Academic Affairs, Dr. Carl Riggs, also recommended that tenure be denied. On March 15, 1974, Dr. Riggs notified petitioner of his decision not to recommend to President Mackey that Rosner be granted tenure. Petitioner was further notified by the same letter that "your employment will not be renewed after Quarter III of the academic year 1974/75." Petitioner was further advised of the opportunity for review of cases in which a faculty member asserts that his contract of employment is not being renewed for constitutionally impermissible reasons. Upon petitioner's request, Dr. Riggs explained in writing the reasons for the non-renewal of petitioner's appointment. The reasons listed related to the denial of tenure. This memorandum is dated June 19, 1974. On December 13, 1974, Dr. Bowman wrote petitioner a letter denying his request to be considered for tenure for 1975-76 for the current (1974-75) evaluation cycle, because of the previous decision to deny tenure and terminate his appointment effective June 19, 1975. On May 22, 1975, Dr. Rosner filed his complaint with the University President and asked that it be referred to the Academic Relations Committee. After receiving the Committee's report dated June 18, 1975, the President determined that he was not prepared to render a decision in petitioner's favor, and ordered that the complaint be considered in a plenary proceeding as defined in F.A.C. 6C-5.08(3). On July 16, 1975, the Division of Administrative Hearings received a letter from Steven Wenzel, General Counsel of the University, requesting, on behalf of the President that a Hearing Officer be assigned to conduct the plenary hearing. The undersigned Hearing Officer was so assigned, and, on July 31, 1975, notified Dr. Rosner of certain procedural problems relating to the complaint. Between this date and the date of the prehearing conference in this matter, numerous inquiries were made by the undersigned to the petitioner and his counsel as to the status of the case and anticipated dates for a hearing. Little, if any, response was forthcoming until early October, when this case, along with six others, was set for prehearing conference. On September 6, 1975, Dr. Rosner sent a letter to president Mackey stating: "Because it now appears that the administrative hearing in my case will not be scheduled until after classes begin for the fall term, I am requesting that I be given an interim faculty appointment, beginning with the fall term and continuing until the case is decided." Dr. Mackey responded on September 12, 1975, that ". . .Inasmuch as your contract expired according to its terms following the tendering of the appropriate notice of non-renewal, I am not prepared to direct that you be reemployed during the pendency of your hearing."
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reasons that petitioner did not meet his burden of demonstrating that the decisions to deny tenure and to not renew his employment contract were unlawful. Respectfully submitted and entered this 29th day of December, 1975, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1975.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Petitioner be promoted to the rank of associate professor, said promotion to be retroactively effective with the beginning of the 1976-77 academic year. Respectfully submitted and entered this 27th day of January, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1977. COPIES FURNISHED: Charles N. Millican, President Florida Technological University Box 25000 Orlando, Florida 32816 Edwin C. Shirkey, Ph.D Assistant Professor of Psychology Department of Psychology Box 25000 Orlando, Florida 32816 Dr. Phillip M. Tell Florida Technological University Box 25000 Orlando, Florida 32816 F. Hartselle Baker, Esquire Hillcrest Plaza, Suite 202 1516 East Hillcrest Orlando, Florida 32803
The Issue Whether Respondent should receive back-pay for the period of time he was suspended without pay by the School Board of Highlands County, Florida (Board) under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to these proceedings, the Respondent was employed by the Board as a guidance counselor at Sebring High School, Sebring, Highlands County, Florida. Sometime around November 1989, N.S., a student in the Respondent's peer counseling class at Sebring High School notified Rebecca Clark (Clark), Assistant Principal, Sebring High School, that Respondent had engaged in inappropriate behavior with her and other students in the class. Thereafter, in early January 1991, J.N.A., another student in Respondent's peer counseling class, met with Clark to confirm N.S.'s allegations. As a result of the allegations by N.S. and J.N.A., Clark notified Jim Bible, (Bible) Principal, Sebring High School, of the nature of the allegations. Bible contacted John Martin, (Martin) Associate Superintendent for Administration by phone concerning the necessity of discussing the allegations, and both Bible and Clark met with Martin. Bible was instructed by Martin to interview the Respondent about the allegations, and on January 5, 1990 a conference was held which included Bible, Clark and the Respondent wherein the Respondent was confronted with the allegations. With the Respondent's approval, the conference was electronically recorded by a tape recorder. The tape was transcribed, and the transcript received into evidence as Petitioner's exhibit 5. During the conference, the Respondent talked candidly about the allegations, and although he did not deny specific allegations such as, kissing a female student on the lips or whispering to students about being pretty, or sexy or that he or some one loved them, he did not recall any specific incident where he kissed a female student on the lips or just breathed heavily into their ears or licked their ears or kissed them on the ear. Additionally, he did not recall any student pulling away from him or telling him to stop. In fact, it was Respondent's recollection that most of the contact was initiated by the students, and he had had no indication from the students that they were uncomfortable with his mannerisms or behavior. Following the January 5, 1990 conference, Martin was furnished a copy of the tape which he and the Superintendent reviewed. Following this review, the Superintendent asked Martin to talk with the Respondent. During this conference with Martin, Respondent assured Martin that there was nothing beyond what had already transpired, and Martin assured Respondent that if there wasn't then there would probably be only a letter of reprimand, but that PPS and HRS would have to be notified. Following Martin's conference with the Respondent, the Superintendent issued a letter of reprimand to the Respondent. This letter of reprimand was dated January 8, 1990 and advised the Respondent that: (a) his behavior in regards to the allegations was "totally inappropriate and unacceptable" and "enough to indicate a possible violation of Section 6B-1.06(sic), Principles of Professional Conduct for the Education Profession in Florida"; (b) he was to "consider this an official reprimand which will be placed in your personnel file upon completion of the investigation"; (c) "any future or similar behavior may result in action to terminate your teaching contract with the Highlands County School Board"; and (d) "the matter must be reported to the Department of Health and Rehabilitative Services and the Professional Practices Services of the Florida Teachers Profession". There was no evidence that Respondent repeated the conduct discussed in the January 5, 1990 conference, or the conduct referred to by the Superintendent in her letter of reprimand on January 8, 1990, or the conduct discussed with Bible in the informal conference referenced in Finding of Fact 29. The Superintendent reported the matter to HRS and PPS, and although Martin was kept abreast of the pending investigations by HRS and PPS, neither the Board nor the Superintendent made any further investigation of the Respondent's conduct which formed the basis for the Superintendent's action set out in her letter of reprimand of January 8, 1990, before the Board's suspension of the Respondent without pay on February 13, 1990. In early February 1990, HRS informed Martin that "a confirmed finding of sexual abuse had been reached by the HRS". On February 5, 1990, solely as a result of the disclosure by HRS that sexual abuse had been "confirmed", the Superintendent suspended the Respondent with pay and recommended to the Board that the Respondent be suspended without pay. In apparent disregard of the confidentiality provided for such records in Section 415.51, Florida Statutes, a copy of the complete entire HRS files in this matter was given to Martin who in turn had the files reproduced, and provided a copy to each Board member and the Board attorney before the Board's February 13, 1990 meeting. No written or other notification was provided to the Respondent that the contents of the confidential files were being provided to the Board. As a result of its receipt and review of the HRS file, the Board on February 13, 1990, acting pursuant to the Superintendent's recommendation, suspended the Respondent from employment without pay effective February 14, 1990, and such suspension to continue "until investigations have been completed by the Professional Practices Services and other agencies". The Board provided that should the Respondent be "exonerated of all charges, he will receive back pay". The Board at its February 13, 1991 meeting did not have before it any of the PPS investigatory file or any other facts found by the PPS in its investigation and, therefore, in that sense, the PPS investigation was not a factor in the Board's decision to suspend the Respondent without pay. Although the Board did have the unlawfully disclosed contents of the HRS file at the time of its decision, there was no evidence presented at the hearing that the file contained any facts evidencing any misconduct by the Respondent other than those facts known by the Superintendent when she issued her official letter of reprimand. In fact, when Martin was asked at the meeting to elaborate on the facts in the HRS file, other than those facts known by the Superintendent at the time she issued her official letter of reprimand, that the Board considered in making its decision to suspend the Respondent without pay, he declined to answer on the basis of the HRS file being confidential. Yet, Martin's testimony was that the information in the HRS file was a "significant factor" in the determination by the Superintendent and the Board to effect the suspension without pay of the Respondent. Apparently, the only additional fact known by the Board at its February 13, 1990 meeting was that HRS had reached "a confirmed finding of sexual abuse" in regards to the Respondent's conduct and that fact was a significant factor in its determination to suspend Respondent. In the late summer of 1990, Martin recommended to the Superintendent that Respondent be reinstated, but assigned to a position that did not involve student contact. The Superintendent made such recommendation to the Board, and the Board, acting on the Superintendent's recommendation, reinstated Respondent at the beginning of the 1990/91 school year but declined to award back pay. The Respondent was assigned to work with an adult school. Subsequently, the Respondent voluntarily resigned his position with the Board, and accepted a position with South Florida Community College. Martin's recommendation to reinstate the Respondent was based on the following: (a) the Respondent being on a continuing contract and nothing being done to terminate this continuing contract; (b) the resolution of the allegations made against Respondent by HRS and PPS were taking longer than anticipated; and (c) the indication that Martin had from the school board attorney that the "confirmed" report of abuse would most likely be reclassified downward, and, as such, would not warrant terminating Respondent's continuing contract. On May 8, 1991, a final order was entered by HRS in the child abuse case involving the Respondent, granting the Respondent's request for expunction, and reclassifying the report from "confirmed" to "unfounded". The final order was the result of HRS adopting a recommended order of the Hearing Officer from the Division of Administrative Hearings who had conducted a formal evidentiary hearing in the child abuse case on February 19, 1991. The PPS commenced its proceedings on June 27, 1990 by filing an administrative complaint against the Respondent, and concluded those proceedings before the Educational Practices Commission with a final order dated May 20, 1991 adopting a settlement agreement dated February 19, 1991. The Respondent chose not to contest the allegation in the administrative complaint, and neither the settlement agreement nor the final order make any findings of wrongdoing against the Respondent. As a result of the PPS action, the Respondent received a reprimand to be placed in his personnel file and his certification file, and upon re- employment in the education profession in Florida, in a position which requires state certification, to be placed on probation for a period of three years under conditions set out in the agreement. Notwithstanding Martin's understanding that Respondent's teaching certificate was suspended for short period (2-3 weeks), the Respondent's teaching certificate was never suspended for any period of time, and no action was taken which deprived the Respondent of his ability to continue teaching in the public school system of Florida. N.S. was a minor female student at Sebring High School, and a member of Respondent's peer counseling class during the 1988/89 school year (S/Y) and the fall semester of 1989/90 S/Y. Often, during the time N.S. was in Respondent's class, Respondent would give her an affectionate hug or squeeze, and would give her a kiss or peck on the cheek, forehead, or the back of the head, and whisper such things in her ear as "love you" or "you're sweet" or "you're pretty" or "you're sexy". There were occasions when Respondent was whispering in N.S.'s ear that his lips brushed against her ear. When Respondent was hugging, whispering or making remarks to N.S. it was always in the presence of staff or students in a public area of the school such as the hallway, classroom or guidance area, but never in private or off campus. Although N.S. testified that Respondent's behavior made her uncomfortable, she did not ever ask Respondent to stop or tell him or anyone else that his behavior made her feel uncomfortable. J.N.A. was a minor female student at Sebring High School, and a member of Respondent's peer counseling class during the 1988/89 S/Y and 1989/90 S/Y. Basically, J.N.A. experienced the same type of behavior from Respondent as did N.S. as set out in Finding of Fact 25, and likewise, did not ever tell the Respondent to stop or that his behavior made her feel uncomfortable. As with N.S., the incidents with J.N.A. always occurred in the presence of staff or other students in the public areas of the school, but never in private or off campus. Y.W. was a female student at Sebring High School, and a member of Respondent's peer counseling class during the fall semester of the 1989/90 S/Y. On one occasion, while Y.W. was standing next to Respondent in the class where other students were present, Respondent asked Y.W. to sit on his knee and talk about a problem, and after some protest N.S. sat on his knee. Although Y.W. considered Respondent as a "father-figure", this made her uncomfortable because it was not usual for her to sit on her father's or grandfather's lap. Y.W. also testified that Respondent probably kissed her on the cheek one time as he did with all his students, but found nothing unusual about this. There was no evidence that Respondent made any sexual overtures to any student or touched any of the females on their breasts, inner thighs, genital areas or buttocks. Clark came to Sebring High School as assistant principal at the beginning of 1988/89 S/Y (having completed three years as assistant principal at the end of the 1990/91 S/Y), and observed the Respondent exhibiting behavior similar to that expressed by N.S. and J.N.A. through late November or early December 1989 (about a year and a half). Although Clark considered Respondent's behavior as being inappropriate, enough so that she counselled her daughter not to go near him, she never told him he should stop or counsel him as to her views on his behavior even though she was his supervisor. In fact, Clark did not report the Respondent's behavior to Bible until after the beginning of the 1989/90 S/Y, sometime around November, and again when N.S. and J.N.A. came to her in late December 1989 and early January 1990. After Clark advised Bible on the first occasion around November 1989, Bible had an informal conference with the Respondent. Although Clark did not sit in on this conference she heard the tail end of the conversation between Bible and Respondent wherein Bible told Respondent "you can't do that" or "it doesn't look right" or "people will misinterpret it". Carolyn Shoemaker, guidance secretary, Sebring High School, observed Respondent exhibiting behavior similar to that expressed by N.S., J.N. and Clark, which she considered inappropriate, for about the same period of time as Clark, but she never expressed to the Respondent that he should stop or that his behavior was inappropriate. However, she did report it to Clark and Bible. Natalie Smith, Chairman, Guidance Department, Sebring High School, observed Respondent exhibiting similar behavior as that expressed by N.S., J.N.A., Clark and Shoemaker, which she considered inappropriate, for about the same period of time as Clark and Shoemaker. Although Smith was head of the department where Respondent worked, and felt this behavior to be inappropriate, she did tell him to stop or express her views on this behavior with Respondent. Smith remembers telling Bible about Respondent's behavior, but doesn't recall when she told Bible. Until Respondent's informal conference with Bible referred to in Finding of Fact 30 and the January 8, 1990 letter of reprimand, the Respondent was never disciplined, counselled or otherwise directed to refrain from his affectionate interaction with students. The Respondent's suspension without pay by the Board in February 13, 1990 was premised on the same facts and conduct which had resulted in the January 8, 1990 letter of reprimand being issued to the Respondent by the Superintendent. While the Respondent may have used poor judgment in his method of establishing rapport with the some 400 students in any given year for which he had counseling responsibilities, and his conduct may have been inappropriate under the circumstances, his conduct as established by the substantial competent evidence in the record does not rise to the level of being so serious as to impair the Respondent's effectiveness in the Highlands County School system, notwithstanding the opinion of both Clark and Smith to the contrary.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Board enter a Final Order rescinding the Respondent's suspension, reimbursing him for any pay lost as a result of the suspension, and restoring any benefits that the Respondent may have lost as a result of the suspension. DONE and ENTERED this 31st day of July, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-3758 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed finding of fact: 1(1); 2(4,5); 3(5,6); 4(7); 5(7,8); 6(10,11); 7(12,15); 8(18,19); 9(25,26); 10(27); 11(28); 12(30); 13(31); 14(32); 15(21,22,23,24). Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Each of the following proposed findings of fact and adopted in substance as modified in the Recommended Order. The member in parenthesis is the Finding(s) of Fact which so adopts that proposed finding of fact: 1(2); 2(3); 3(4); 4(5); 5(5); 6(7); 7(8); 8(8); 9(9); 10(10); 11(16,17,34); 13(11); 14(12); 15(13); 16(13); 17(14); 18(15); 19(16); 20(17); 21(17); 22(20); 23(20); 24(21); 25(22); 26(23); 27(24); 28(18,19); 29(18); 30(34); 31(25,27,28); 32(30); 33(30); 34(25, 27); 35(33,9); 36(29). Proposed findings of fact 12 and 37 are unnecessary or subordinate. Copies furnished to: Donald H. Wilson, Esquire P.O. Box 1578 Bartow, FL 33830 Ronald G. Meyer, Esquire P.O. Box 1547 Tallahassee, FL 32302 Ruth E. Handley, Superintendent Highlands County School Board 426 School Street Sebring, FL 33870 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
Findings Of Fact At all times material hereto, respondent, Marion C. Strange, held Florida teacher's certificate No. 296394, covering the areas of Elementary Education, Mental Retardation, and Specific Learning Disabilities. Since at least 1979, she has been employed by the citrus County School Board as a teacher of exceptional students at Crystal River High School. Her teaching duties included keeping complete, current and accurate records on her exceptional students. These record keeping duties are required of the Citrus County School System by federal and state authorities and are necessary for the school system to remain eligible for federal and state funds, which pay the costs of educating exceptional students. Exceptional students are defined by Section 228.041(18), Florida Statutes, as students who have been classified under regulations of the state board of education as unsuited for enrollment in regular classes in public schools or who are unable to be adequately educated in the public schools without the provision of special classes, instruction, facilities or related services. The education of exceptional students is strictly regulated by federal, state and local school board laws and regulations. Exceptional students are taught differently than students in regular public school classes. A basic element in the education of exceptional students is the preparation and maintenance of an Individual Education Plan (IEP) for each exceptional student. IEP's are reviewed on an annual basis and are considered the backbone of the special education process. Respondent, as an exceptional education teacher, was responsible for maintaining an IEP for each of her students. An IEP is necessary to evaluate the students' educational level, to establish short and long-term educational objectives for the student, to develop alternative ways to accomplish the objectives, to provide a systematic method for implementing the objectives, to record the progress of the plan and to establish a means for the school administration to review and control the education of the student. The proper preparation and maintenance of IEP's is a basic responsibility of the special education teacher. Critical to the preparation and maintenance of IEP's is the annual IEP review conference. Under Citrus County School Board regulations and policy, the annual review conference takes place at a meeting where school professionals, with varied areas of expertise, confer, evaluate the student's progress, make recommendations, and decide on the appropriate instructional program for the student. It is a multi-disciplinary "team" approach to managing the student's education program. The annual IEP review conference is mandatory. Failure to hold the conference is a violation of federal, state, and School Board rules and policies; deprives the child of the educational assistance to which he or she is entitled under law; and jeopardizes continued federal and state funding of the School Board's exceptional education program. Respondent was repeatedly instructed, as were all other teachers of exceptional students, that every IEP must be reviewed at least once a year through an IEP review conference. The School Board's Operations Manual requires the following persons to attend and participate in the annual review conference: the exceptional education teacher, a school psychologist, and a parent. At Crystal River High School, the psychologist also acted as the LEA representative, the designated representative of the school board. The Operations Manual states that the following additional people may participate in the annual conference: a guidance counselor, the mainstream classroom teacher, the principal, the student, other individuals invited by the parent, or other supportive personnel. Although not required by the Operations Manual, at Crystal River High School the mainstream teacher and guidance counselor were expected to participate in the annual review conference. The exceptional education teacher is responsible for assuring that the annual IEP review conference is held and documented in the student's IEP records. The exceptional education teacher schedules the conference, invites the required people, and records it. As a means of documenting that the required conference took place, the School Board requires that participants in the conference sign the IEP's. The requirement that attendees sign the appropriate IEP is a requirement made explicit by the Operations Manual, copies of which are given to each teacher, and by instructions at annual training sessions. Exceptional education teachers, including respondent, are well aware of this requirement. Beginning in June, 1980, and continuing through 1983, respondent was frequently cited for record keeping violations. Her supervisor repeatedly asked her to correct numerous errors and omissions in her students' IEP's. In June, 1980, Neil S. Weiss, Coordinator of Exceptional Students Programs for the Citrus County School Board, reviewed respondent's student IEP records. He found discrepancies and sent her a memorandum, dated June 6, 1980, in which he directed her attention to the Operations Manual and correct procedures to follow. On September 23, 1981, Mr. Weiss again reviewed respondent's IEP records, examining, in depth, the records of six students. He found at least five serious problems with those records and discussed them with respondent. On March 3, 1982, Mr. Weiss again reviewed respondent's records and found incomplete IEP forms. Disturbed by her continued record keeping deficiencies, Mr. Weiss wrote a letter, dated March 5, 1982, identifying the errors, explaining the seriousness of her failure to keep adequate records, and offering assistance. He considered this to be a letter of reprimand and treated it as such; it was made a part of her personnel file. On December 10, 1982, Mr. Weiss visited respondent's classroom and, once again, reviewed her exceptional students' folders. After finding substantial problems in more than half of her files, he discussed the matter with her and wrote her a letter, dated December 22, 1982, expressing concern. In his experience, her chronic record keeping failures were unprecedented. Never before had he experienced similar problems with a special education teacher in the Citrus County school system. In his December letter to respondent, Mr. Weiss advised her that her records were deficient and violated state and county rules and procedures. He noted that many of her IEP's had expired, and offered her the in-service training assistance of Patricia Stayments, a former teaching principal who was employed by the School board as a training consultant. He concluded the letter with an explicit warning: "If deficiencies in this area are not corrected by you by April 1, 1983 I may have to recommend that your teaching contract be returned from continuing to annual status." (Petitioners' Exhibit No. 6) This was the first time he had given her a specific deadline for bringing her records into compliance. In January, 1983, at the request of Mr. Weiss, Ms. Stayments approached respondent and offered her assistance. Respondent initially declined the offer but later changed her mind and sought her assistance. Their first meeting took place on February 24, 1983. At that time Ms. Stayments reviewed 27 of respondent's files and found substantial problems in 19 of them. Ms. Stayment documented these deficiencies, in detail, by making handwritten notes. (Petitioners' Exhibit No. 16) The files of numerous special education students either lacked an IEP annual review form, or, if such a form existed, lacked the required signatures of participants. (Petitioners' Exhibit No. 16) At that meeting, and in subsequent meetings on March 1, 2, and 24, 1983, Ms. Stayments discussed these deficiencies with respondent. At their final meeting on March 24, 1983, it appeared to Ms. Stayments that, except for four student folders, respondent had brought her records into compliance. She reported the progress to Mr. Weiss. She failed, however, to detect several discrepancies. Several signatures of annual IEP conference participants, previously noted as missing, were now included on "corrected records," but were back-dated to a time prior to Ms. Stayments' initial meeting with respondent. The previously imposed deadline for bringing respondent's records into compliance was April 1, 1983. On April 11, 1983, Mr. Weiss reviewed the IEP files of Marion Strange to determine compliance. At first, the records appeared to be acceptable. He then noticed that, on one IEP, the signature of Ann Cummins, a school psychologist, was misspelled "Cummings." (Ms. Cummins, had been the LEA representative at the Crystal River High School for the past 4 years. She was the designated representative of the School Board administration at IEP annual conferences.) Mr. Weiss then found other IEP's that had Ms. Cummins' signature misspelled. He then showed the misspelled signatures to Ms. Cummins, who verified that the signatures were false. Mr. Weiss then examined more closely the other IEP's and, after investigation, found numerous instances where signatures of professional personnel were forged, giving the false impression that the records were complete, that the IEP annual conferences were held and attended as required, and that the students were being educated in accordance with local, state, and federal requirements. The forgeries are described below. Respondent's IEP records contain the false signature of Ms. Cummins, as the LEA representative on 14 IEP annual review forms. The signatures were unauthorized. In fact, on the dates when many of the IEP annual conferences supposedly took place, Ms. Cummins was not at Crystal River High School. Many of the signatures were misspelled, "Cummings." (Respondent had earlier sent a routine letter to students' parents in which she made the same mistake in spelling Ms. Cummins' name.) The false signatures were affixed during 1982 and 1983. Several of the signatures were affixed between February 24, 1983, and April 11, 1983, for the apparent purpose of satisfying Ms. Stayments' February 24, 1983, criticism of unsigned or missing IEP review forms. Respondent's IEP annual review records also contain the false and unauthorized signature of George Moonschiene, a math teacher, on the IEP records of John Dubois, one of her exceptional education students. The false signatures indicated that Mr. Moonschiene had attended an annual IEP review conference concerning this student on October 19, 1982. He had not. On February 24, 1983, Ms. Stayments had complained to respondent that this particular student's IEP form had no signatures. By April 11, 1983, the form contained the unauthorized and forged signature of Mr. Moonschiene. Respondent's IEP records also contain the false and unauthorized signature of Gerald Schuman, an English teacher, on the IEP review forms of at least four exceptional education students: James Morrow, Debra Hollis, Greg Burress, and Richard Schaefer. The false signatures indicated that Mr. Schuman, as a mainstream teacher, attended IEP review meetings on these students. In fact, these were not his students and he did not attend any IEP review meetings concerning them. On February 24, 1983, Ms. Stayments had pointed out to respondent deficiencies in the IEP records of each of these students. Respondent's IEP records also contain the false and unauthorized signature of Linda Alexander, a guidance counselor at Crystal River who was expected to participate in IEP annual reviews. Her signature was forged on the IEP review forms for at least five exceptional education students: Debra Hollis, John DuBois, David Lenhard, James Marrow and Ronald Parker. The forged signature indicated that she had attended annual IEP review meetings on these students; she had not. At the February 24, 1983, meeting with respondent, Ms. Stayments pointed out deficiencies in the IEP records of four of these five students. The deficiencies in three of the forms involved missing signatures. John Dubois' IEP review record had no signatures. At least in his case, the forged signature was added between February 24, 1983, and April 11, 1983. Respondent's IEP annual review records for Doran Mulder also contain the forged and unauthorized signature of his parent, Calvin Mulder. The forged signature falsely indicates that Mr. Mulder attended his son's IEP annual review. A handwriting analyst employed by the Florida Department of Law Enforcement compared respondent's handwriting with the forged signatures of Ann Cummins, Jerald Schumann, Linda Alexander, and George Moonschiene. His resulting report was inconclusive: There are some similarities between the known writing of Marion F. [sic] Strange (K-1 thru K-21) and portions of the questioned signatures in the names of "Ann S. Cummings" and "Linda Alexander" on the above mentioned exhibits; however, there are differences present which cannot be reconciled on the basis of the material at hand. Therefore, no definite opinion can be reached with respect to whether or not Marion F. [sic] Strange (K-1 thru K-21) executed any of the questioned signatures on Exhibits Q-1 through Q-21. (Respondent's Exhibit No. 3) The evidence forcefully, and convincingly, supports the inference, now drawn, that respondent either alone or in combination with another--forged the signatures of Ann Cummins, Jerald Schumann, Linda Alexander, George Moonschiene and Calvin Mulder on the IEP annual review forms described above. She forged these signatures to make it appear that these persons had participated in annual IEP review meetings, when they had not; and that the students involved had received IEP reviews in accordance with local, state, and federal law, which they did not. She intended to deceive her supervisors into believing that she was conducting IEP reviews and keeping IEP review forms, as required. These inferences are based on circumstantial evidence which is compelling. No other theory or hypothesis has been posited which is plausible, or even rational. The falsified forms were in respondent's control and it was her duty to see that they were complete and accurate. It was also her duty to arrange for and convene the annual IEP review meetings for her exceptional education students. Her tenure and, conceivable, even her job were in jeopardy because of her seemingly chronic inability to comply with IEP annual review requirements, including record keeping and documentation. She had been formally reprimanded, and placed on a deadline for bringing her records into compliance. As of February 24, 1983, her records were replete with error and omissions; the deadline for compliance was fast approaching, little more than a month away. Under the pressure of these events, she had not only the opportunity but a clear motive to "correct" her records by forging, either alone or in concert with another, the required signatures. Many of the forged signatures were added to the documents between February 24, 1983, and April 11, 1983, when they were discovered by Mr. Weiss. There is no evidence that anyone, other than respondent, had anything to gain from falsifying the records in question. By forging signatures and falsifying important student records, respondent breached the trust which her employer, her students and their parents place din her as a school teacher. She misled her supervisors and deprived some exceptional students of the annual IEP review to which they were lawfully entitled. To this extent, her students were adversely affected by her actions. Her integrity and honesty are now in doubt; her supervisor has lost confidence in her. Her effectiveness as an employee of the School Board has been seriously reduced. She is no longer able to serve effectively as an employee of the Board.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's continuing contract with the School Board of Citrus County be terminated by the School Board; and That her Florida teacher's certificate No. 296394, be permanently revoked by the Education Practices Commission. DONE and ORDERED this 20th day of July, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 20th day of July, 1984. COPIES FURNISHED: Wilson Jerry Foster, Esq. Suite 616 Lewis State Bank Bldg. Tallahassee, Florida 32301 Richard S. Fitzpatrick, Esq. 213 N. Apopka Avenue Inverness, Florida 32650 Philip J. Padovano, Esq. Post Office Box 873 Tallahassee, Florida 32302 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Donald Griesheimer, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Roger Weaver, Superintendent School Board of Citrus County 1507 W. Main Street Inverness, Florida 32650 ================================================================= AGENCY FINAL ORDER ================================================================= RALPH D. TURLINGTON, as Commissioner of Education Petitioner, vs. CASE NO. 83-2889 MARION C. STRANGE, Respondent. /
The Issue Does the challenged language contained in the Academic Policy Statement Handbook constitute "curricula" so as to be exempt from rule-making pursuant to Section 120.81(1)(a), Florida Statutes [1996 Supp.]? Is Petitioner entitled to a de novo hearing on the merits of her dismissal from the University pursuant to Section 120.57(1) Florida Statutes in light of the provisions of Section 120.81(1)(f) Florida Statutes?
Findings Of Fact Petitioner was enrolled in Florida Agricultural and Mechanical University's College of Pharmacy and Pharmaceutical Sciences. On December 18, 1996, Petitioner was dismissed from the pharmacy program by a letter from the Dean of the College which stated, in pertinent part, After reviewing your academic record and the recommendation of the Admission and Academic Standards Committee, I must inform you that you are being dismissed from the College of Pharmacy. Please be advised that further request for readmission will not be considered. Because pharmacy is a career directed toward the safeguarding of community health, it also is a demanding career. We must insist that our students meet the academic challenges of the College of Pharmacy so that they will be well prepared to meet the challenge of a dynamic health care system. (Emphasis in original) [See, Exhibit to the First Amended Petition] Count I of the First Amended Petition challenges "Academic Policy Statement Handbook, Section 2 Dismissal", found on pages 9 and 10 of the publication. (See, Paragraph 5 of the First Amended Petition) The full title of this handbook is "Florida Agricultural and Mechanical University Academic Policy Handbook for BS and PharmD Students." The "Disclaimer" on page one of the Handbook makes clear that the Handbook is, ". . .for information purposes only and should not be construed as the basis of a contract between the student and the FAMU College of Pharmacy and Pharmaceutical Services . . ., the College reserves the right to change any provision listed, including but not limited to academic requirements for graduation, . . . it is especially important that each student note that it is his/her responsibility to keep himself/herself apprised of current graduation requirements by regular consultation with his/her advisor." The portion of the Handbook specifically challenged by Count I of the First Amended Petition provides as follows: ACADEMIC POLICY STATEMENT The Florida Agricultural and Mechanical University (FAMU) College of Pharmacy and Pharmaceutical Sciences (the College) has a responsibility to prepare students to enter the practice of pharmacy with competencies demanded by his/her role in health care. Further, the College serves to provide breadth and depth of scientific and professional background so as to allow versatility of practice within the subsystems of pharmacy. Students must make a commitment to their chosen profession by making those sacrifices necessary to insure academic success in their course of study. Being admitted to the College comes with the understanding that excellence in academic performance is expected. Failure to maintain academic performance will result in some action by the appropriate College of Pharmacy Committee. **It should be further understood that failing a course will usually result in the suspension of the student's program due to the structure of the curriculum and the associated prerequisite requirements in addition to any academic sanctions that may be imposed. The curriculum is designed to be followed from a course prerequisite standpoint while maintaining the integrity of the courses based on the year offered in the curriculum (i.e. 3rd year courses must be completed before entering 4th year courses, etc.). In addition to University Academic Regulations, the following rules will be used to provide for the immediate intervention of the Admissions and Academic Standards (A&AS) Committee. Additionally, the A&AS Committee may intervene at times other than specifically stated below if it is deemed necessary in order to ensure the academic integrity of the College. ProbationA student will be placed on academic probation if EITHER of the following occurs:Two or more D's in any course work in any semesterFailure of a professional courseA G.P.A. less than 2.0 in any semester. While on academic probation, the student will be required to meet with his/her advisor to determine what steps are needed to increase the student's academic performance. The student will be expected to adhere to the plan worked out with the student's advisor. The advisor will inform the A&AS Committee of the student's compliance and progress. **A "C" grade or better is required for passing all pharmacy courses.Probation will be lifted when BOTH of the following occur:A G.P.A. above 2.00No additional D's or F's DismissalA student may be dismissed from the program under provisions set by the A&AS Committee if EITHER of the following occurs:Two or more failures in one semesterA total of three failures in professionalcourses semester A G.P.A. less than 2.00 for the thirdThe student will be required to attend ALL professional courses in the semester in which he/she is retaking courses.The A&AS Committee will review every case separately and reserves the right to determine the provisions for each individual situation.The A&AS Committee will define the conditions for readmission for each individual student. DismissalA student will be dismissed from the program if EITHER of the following occurs:The fifth failure in professional coursesThe fifth failure in non-professionalcoursesThree failures in professional courses inone semesterThe second failure of a single courseThe student is eligible to reapply and be considered for admission one year after studies in the College have been discontinued. It is the student's responsibility to ask to be withdrawn from a course in a timely manner. Failure to seek counseling or guidance in a situation that negatively impacts his academic performance will not be used as cause to prevent the imposition of the appropriate academic penalty. (Emphasis in original) [See, Paragraph 5 of the First Amended Petition and Exhibit attached thereto] In her Supplementary Response to the Motion to Dismiss the First Amended Petition, Petitioner conceded that "No doubt the major text of the 'ACADEMIC POLICY STATEMENT' challenged, constitutes 'curriculum' which is exempt from rulemaking under Florida Law." The thrust of her challenge was then directed to the fifth paragraph on page 9 of the Handbook which reads, Additionally, the A & AS Committee may intervene at times other than specifically stated below if it is deemed necessary in order to ensure the academic integrity of the College. Petitioner further argued that she "contends that it is not what the challenged agency statement says . . . but what is not specifically in that text. The statement granted the A&AS Committee authority to take action against the Petitioner to preserve the 'academic integrity of the College,' but the text did not state what grounds that action must be based upon or what reasons are needed to take such action." Petitioner ultimately argued that she is "not challenging the 'curricula' use of the challenged statement to judge academic standards, but the use of the statement for other purposes as used against her." [See Petitioner's Supplementary Response to Respondent's Motion to Dismiss]. However, Petitioner conceded in the March 7, 1997 oral argument that she had no idea what those "other purposes" (also referred to as "discipline" or "other or secret agenda" in oral argument) might be, if any. Count II of the First Amended Petition adds anew a petition for a de novo review of the action of the Dean in dismissing Petitioner from the College of Pharmacy and Pharmaceutical Services. See, Finding of Fact 2, above.
