Findings Of Fact Rood is a black person. Rood was employed by Coastal Lumber Company on June 22, 1981, as a glue line superintendent, where he supervised three shifts and three shift supervisors. In January, 1982, Rood was promoted to Dry End Superintendent, responsible for seven supervisors and three shifts. Coastal Lumber Company operates a plywood production plant in Hinson, Florida. The plant has been in operation only since 1981 and produces plywood panels for use in the construction industry. Plywood production is divided into several stages. The first stage is referred to as the Green End and involves stripping green logs straight from the forest by use of an industrial lathe. The lathe strips the logs into thin veneer sheets approximately 50 inches by 101 inches in size. The veneer sheets are then transported to a huge oven where the sheets are dried out. Once the green veneer has had most of the water content removed in the oven, the sheets are placed on a conveyer belt (the lay-up line). Glue is applied and the veneer sheets are placed one on top of the other like a sandwich to obtain the desired thickness. The multi-layered sheets are then pressed together in a large hydraulic press to cure the glue and bond the veneer sheets together to form a plywood panel. After pressing, the rough-edged panels are squared off into standard size panels, sorted, graded, and shipped. The production line beginning with the drying out process in the ovens through gluing and pressing process is referred to as the Dry End. The finishing and shipping department is a part of the Dry End in that the finished product has been dried in the oven, but is more typically referred to as a separate department. David Carter was hired by Coastal Lumber as the plywood production manager in February 1982. He had previously been employed by the Union Camp Corporation as a plant manager and has twenty-five years of experience in the plywood industry. Carter was hired because Coastal Lumber was in dire financial straits. The company had lost a lot of money in its first year of operation and was in danger of closing down. Production was down, costs were out of control and the plant was lacking in leadership. When he arrived at Coastal Lumber, Carter found the plant organized in a departmental superintendent system. Warren Thornton, a black man, was the Green End superintendent. Rood was the Dry End superintendent. John Asbell, a white man, was the Finishing and Shipping superintendent. Under the system, the three superintendents were of equal authority and were responsible for scheduling and coordinating production between their departments. Carter had worked before in plants which used this departmental superintendent system but based on his many years of experience preferred a system utilizing a single plant superintendent who is responsible for scheduling production throughout the plant. In order to increase production and turn the plant around, Carter began making changes. First, he fired John Asbell because Asbell was unable to improve the finishing and shipping department. He then transferred Mike Leonard, a black employee, from the glue line to the finishing and shipping department because Leonard had some prior experience in the area. Rood, who had previously supervised Leonard on the glue line, was required to assume superintendent responsibilities for the finishing and shipping department in addition to his responsibilities as dry end superintendent. Both of these personnel moves were on a trial basis. Although some improvement occurred in the finishing and shipping department under Rood's supervision, the improvement was not satisfactory in light of the serious financial condition of the company. Production had not improved sufficiently, housekeeping and maintenance was not up to par and the manufacture of specialty items was requiring too much personal involvement by Carter due to Rood's inexperience. Having exhausted internal efforts at increasing production in the finishing and shipping department, Carter hired Leon Pinner from outside the company as the finishing and shipping supervisor. Pinner had over one and one- half years experience in the finishing and shipping department with International Paper Company and had been directly involved in the production of specialty items. He had also worked as assistant plant superintendent, plant superintendent and plant manager while employed with Georgia Pacific. For several weeks Pinner worked under Rood's supervision but Carter relieved Rood of any supervisory responsibilities in the finishing and shipping department shortly after Pinner's arrival. Within four weeks or so after Pinner's arrival, the finishing and shipping department was up to production, housekeeping was in order and Carter was tremendously impressed with Pinner's performance. Shortly thereafter Carter, along with his immediate boss - J. T. Woods, elected to switch to a plant superintendent organizational scheme for the plywood plant. This reorganization resulted in the elimination of the three departmental superintendent positions, although as a practical matter two of the positions were vacant at of the time of reorganization. Woods and Carter considered three candidates for the position of plant superintendent - Warren Thornton, Bill Rood and Leon Pinner. There was no advertisement or announcement that Coastal was seeking a plant superintendent. Based on Pinner's superior performance in straightening out the finishing and shipping department, Pinner's experience in the industry and Rood's inability to straighten out the finishing and shipping department, Pinner was promoted to the position of plant superintendent. Rood completed 3 1/2 years of college credits. He was first hired in the plywood industry in 1966. He has worked as a foreman, a supervisor, Dry End Superintendent, and plant superintendent. He has a total of 14 1/2 years of supervisory experience at the different levels of responsibility. Pinner began in the plywood industry in 1967. In addition to various line positions, he has served as supervisor in the glue line, drier and finishing and shipping and as assistant plant superintendent, plant superintendent and plant manager. Carter and Pinner discussed how the reorganization was to be handled and what was to be done with Bill Rood's position as Dry End superintendent. Rood's position was eliminated and he was transferred to day shift glue line supervisor, without a pay cut. His new position was equivalent to that held by any other supervisor and he no longer had the authority to exercise any supervision over the other supervisors. On June 18, 1982, Pinner called a production supervisors' meeting to advise the supervisors of the reorganization. Rood was present at the meeting. Pinner advised Rood that his position had been eliminated and that he was placed in the position of day shift glue line supervisor. He was advised that the change was effective immediately. Pinner also advised all supervisors to pull maintenance while the plant was shut down. Pinner gave strict instructions that all supervisors, including Rood, were to be present on June 20, 1982, to perform maintenance. Rood was advised to run his day shift on June 19, 1982, after which the plant would shut down for maintenance. Following this meeting, Rood no longer had supervisor authority over the other supervisors and no longer had the authority or latitude of a superintendent. On Sunday, June 20, 1982, Rood showed up at the plant and instructed the other two supervisors in the glue line as to what maintenance needed to be done. Rood then left the plant and did not return. Rood performed no actual maintenance work himself. He did not ask permission to leave of either Pinner or Carter, both of whom were present at the plant themselves performing maintenance. The next day, June 21, 1982, Pinner terminated Rood. Carter concurred in this decision. The decision to terminate Rood was based on several reasons. First, Rood had disobeyed a direct order from the plant superintendent, an order which had been given in the presence of other supervisors. Second, Rood had left without asking permission. As an on-line supervisor, like all other supervisors, Rood could not come and go as he pleased. Although, while he was the Dry End superintendent, Rood had necessarily worked at various times (due to the responsibility of having to oversee all shifts in his department), he no longer had such flexibility and was required to be at the plant specific times for a specific shift. He was required to help with maintenance on Sunday just like every other supervisor (including the plant superintendent and plant manager - Pinner and Carter). He failed to do so. Third, his failure to pull maintenance despite direct orders set a bad example for other supervisory personnel, some of who had legitimate reasons for needing June 20 off. At various times Coastal has had problems with other employees, both black and white. No other employee had been terminated on the first instance of absence from work without permission. Infractions by others were dealt with first by warnings or suspensions. Termination did occur with both black and white employees. Rood was treated differently because all of this took place during a critical period for the plant when everyone s cooperation was imperative. In this regard, Rood's situation is clearly distinguishable from that of other employees, both black and white whose jobs had been terminated only after several instances of tardiness because of his prior position and the dire circumstances of the company. Mr. Rood was not fired because he is black. After his termination, Coastal Lumber offered Rood the same opportunity it typically offered supervisory personnel that were fired or quit: he was offered a hourly job as a core layer with the opportunity to work his way back up into a supervisory position. This opportunity was administered equally to both black and white workers (for example, Lacy Stacker and David Brown). Had Rood accepted the core layer job at $6.00 per hour and proved himself capable of good job performance, he probably would have resumed a supervisory role within a month or so, as did Stacker and Brown. Rood made reasonable attempts to secure other employment, but remained unemployed from June 21, 1982 until January 1983. During that period he collected $2,630.00 as unemployment compensation. At the time of his termination, Rood was paid $2,530.00 per month. In January 1983, he was hired by Boise Cascade Lumber Company in South Carolina with an annual salary of $20,991.00. In May 1984, Rood was promoted to a supervisory position and received a pay increase to $27,000.00 per year. 30. Rood lost income of $15,180.00 during 1982, $9,459.00 in 1983 and $5,845.00 from January 1, 1984 until November 1, 1984. The total lost wages for this period was $30,484.00. Rood continues to make $380.00 less per month than while employed by Coastal.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the complaint of William D. Rood, Jr., be DISMISSED and that the Prayer for Relief be DENIED. DONE and ENTERED this 7th day of February, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1985.
The Issue The issue in this case is whether Petitioner has just cause to suspend and terminate Respondent from her contract.
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Osceola County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Gomez has been employed by the School Board for about ten years.6/ Ms. Gomez is a Florida-certified teacher. She is certified to teach exceptional student education (ESE), regular education (kindergarten through sixth grade), and English as a second language (ESL). As a member of the School Board's instructional staff, Ms. Gomez's employment contract was subject to section 1012.33, which provides that her employment will not be suspended or terminated except for just cause. A copy of the teacher's employment contract was not offered into evidence, nor was the applicable collective bargaining agreement. As a teacher, Ms. Gomez was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures Manual of the School Board. Ms. Gomez has not been previously disciplined by the School Board. Of the School District personnel performance plan for teacher development assessment forms introduced at hearing, Ms. Gomez received "High Performance" ratings in all categories for three consecutive school years beginning in August 2006 through the end of the school year in June 2009.7/ During the 2011-2012 school year, Ms. Gomez was an ESE kindergarten teacher at Sunrise Elementary School (Sunrise). Arima Santana and Austria Medina de Luna were the two para- professionals assisting in Ms. Gomez's classroom of six or seven ESE students. Ms. Gomez demands a lot of work from her para- professionals because her ESE students demand a lot of direction and attention. She uses teaching centers throughout her classroom for writing, reading, computer activities, and math. Each student has an individual education plan (IEP) with goals, and everything is geared to help the students reach those goals. Ms. Gomez taught the reading and math components and was ultimately responsible for the running of the classroom. Ms. Santana was first employed at Sunrise as an ESE assistant starting with the 2011-2012 school year. Prior to her Sunrise employment, she worked in an office at Flora Ridge Elementary School (Flora Ridge) as an IEP assistant. In this IEP position, she was responsible for making sure all the Flora Ridge students' IEPs were in order and in compliance. Although Ms. Santana has a ten-year-old autistic child8/ and appeared to have some knowledge of autism, her formal education or training as a teacher or teacher's aide in ESE, specifically autism or otherwise, was not documented, discussed, or provided at the hearing. Ms. Santana was in charge of the writing center. She had crayons at her work center. Additionally, she brought in jumbo-size crayons to assist the students with their writing skills. Ms. Santana usually had one or two students at a time, and, when she had a higher functioning student on one side, she would generally have a lower functioning student on the other side. She employed the "hand-over-hand" writing technique to help guide the students in forming their letters, which means that she would place her hand over the student's hand to guide their writing. Her attention would be focused on that student while the other student attempted other work. There were other crayons at other locations in the classroom. Ms. Santana was an assistant to Ms. Gomez; however, at some point in October, she requested a transfer to Flora Ridge. Ms. Santana felt uncomfortable in Ms. Gomez's classroom; yet, she did not explain to the Sunrise administration her reason for requesting the transfer. Ms. Santana and Ms. Gomez differed on their approaches to teaching the ESE students. Ms. de Luna was first employed at Sunrise as an extended-day program worker for the 2010-2011 school year. The following year, Ms. de Luna was hired as an ESE assistant in Ms. Gomez's classroom. Ms. de Luna has a degree in civil engineering and maintained a Florida teaching certificate for several years.9/ Ms. de Luna was in charge of the computer center. She was also responsible for transitioning the students from one center to another and assisting the students with their bathroom needs. She usually had two or three students at the computer center at a time. Ms. de Luna had taught lower- performing students in math subjects before, but her training in ESE or autistic students was limited to a course or two offered by the School Board. Ms. de Luna and Ms. Gomez did not share the same teaching techniques or experiences, and Ms. de Luna called Ms. Gomez a witch because of her teaching techniques. J.A. (or the student) was a non-verbal, five-year-old, autistic student in Ms. Gomez's classroom. J.A. functioned at a lower level than the other students. J.A. was known to eat inedible objects such as rocks, mulch, and crayons prior to entering Ms. Gomez's classroom. An IEP is developed by a specific committee (comprised of the student's parent(s), an ESE and regular education teacher, and related school district service personnel) for students with special educational needs to ensure that the child receives a free and appropriate public education in the least restrictive environment. An IEP is created to address the specific instruction, related services, accommodations, supplemental aides, and services that an exceptional student needs to be successful. The School Board directs that the ESE teacher is responsible for "drafting the IEP." J.A.'s father10/ was present when the IEP was written on June 3, 2011, following J.A.'s evaluation on March 31. There was no mention in the IEP that J.A. had a propensity to place inedible objects in his mouth, and, therefore, there was no goal established for him to stop the behavior. However, both J.A.'s occupational therapy assessment (date of test: April 25, 2011) and J.A.'s psycho-educational reevaluation report (evaluation date: March 31, 2011) reflected that J.A. "seems to need to have something in his mouth" and "puts inedible things in his mouth." The report also contained some "stereotyped behaviors" that J.A.'s father reported to the psychologist. It was recorded that J.A. would frequently "lick, taste or attempt to eat inedible objects."11/ The School Board personnel were aware of J.A.'s propensity to eat inedible objects; yet, there was no plan to modify that behavior. Several School Board personnel placed the responsibility for addressing this issue with others involved with J.A. Unfortunately, no person in authority timely took that necessary action. Ms. Gomez was not J.A.'s ESE teacher when the IEP was drafted in June 2011,12/ nor was she present when it was discussed or written. Linda Schroeder-King is the co-coordinator for ESE for the School Board. Her position involves administrative duties as well as the supervision of the special educational services for students throughout the district. She is familiar with the Individuals with Disabilities Education Act (IDEA) and the School Board's policies and procedures regarding ESE students and their needs. The School Board utilizes positive behavior support for all students. The School Board does not have a document that contains an approved aversive therapy policy and procedure, nor does the School Board have someone who is responsible for approving aversive therapies. Ms. Schroeder-King testified that a behavior analyst would do an evaluation and would have to make a recommendation, but that the recommendation would have to be approved. Yet, no person was identified who could approve (or disapprove) such a recommendation. J.A. was assigned to Ms. Gomez's classroom and began the 2011-2012 school year in August 2011. Shortly after the school year began, Ms. Gomez, Ms. Santana, and Ms. de Luna each noticed that J.A. put inedible objects in his mouth while in the classroom and on the playground. J.A. participated in the various centers around the room.13/ It was while at the writing center that Ms. Santana noticed that, when she turned to assist another student, J.A. would grab crayons and put them in his mouth. Although not done daily, J.A. would frequently grab a crayon and chew it. Ms. Gomez or one of the para-professionals would attempt to remove the crayons from J.A.'s mouth; however, when an autistic child clinches his mouth shut, there is little that can be done to open it. Sometime in early October 2011, in an attempt to modify J.A.'s eating of inedible objects, Ms. Gomez peeled the paper wrapper off several jumbo-size crayons and placed them in a disposable cup. She then poured Louisiana hot sauce over the crayons. Ms. Gomez allowed the cup of hot sauce crayons to sit. Then Ms. Gomez removed the hot sauce crayons, placed them on a towel, and allowed them to dry. There was a strong odor to those hot sauce crayons. Ms. Gomez instructed Ms. Santana to put the hot sauce crayons in a plastic zip-lock baggie labeled with J.A.'s name and directions that other students were not to use those crayons. Ms. Santana complied with this request. There was no evidence presented that the hot sauce crayons retained any of the hot characteristics of hot sauce other than a strong odor. Although the baggie with the hot sauce crayons was placed on the table at the writing center for several days, neither Ms. Santana nor Ms. de Luna ever saw Ms. Gomez put a hot sauce crayon in J.A.'s mouth. Ms. Santana saw J.A. pick up other non-hot sauce crayons and chew or mouth them while at the writing center during that time. Play-doh was also in the classroom; however, it was seldom if ever used. None of the classroom adults observed J.A. grabbing, mouthing, chewing or eating any Play-doh at any time. At approximately the same time as the hot sauce crayons were made, Ms. Gomez also massaged hot sauce into some black Play-doh. As directed, Ms. Santana placed the hot sauce Play-doh in a separate plastic zip lock baggie labeled with J.A.'s name and directions that other students were not to use that Play-doh. At the time of the alleged Play-doh event, Ms. Santana was at the writing center while Ms. Gomez was at her desk with J.A. Ms. Gomez made some statement and Ms. Santana turned to see what was happening. Ms. Santana testified that Ms. Gomez placed "a little piece of play-doh" or "physically put a piece" in his mouth and that J.A. spit it out. Ms. Santana's testimony is undermined by her inability to describe other details surrounding the alleged incident.14/ Ms. de Luna repeatedly testified that, when Ms. Gomez allegedly said "look, look," Ms. de Luna turned away because she did not want to watch what was happening with J.A. Yet, she testified that she did not see J.A. spit anything out, that he just chewed something. Her testimony contradicts what Ms. Santana said she saw and does not support any visual confirmation of what was or was not placed in J.A.'s mouth. Ms. Gomez denies she ever put Play-doh or anything in J.A.'s mouth. Based on the totality of the Play-doh evidence, there is no basis in this case to credit Ms. Santana's testimony over that of Ms. Gomez. Ms. Santana, while a sincere witness, was unable to provide specific details, and her testimony is insufficient to support a finding of guilt as to the alleged Play-doh incident. Ms. Santana did not balk at bagging the hot sauce crayons or Play-doh and did not confront Ms. Gomez after she witnessed the alleged Play-doh incident. Ms. Santana did not attempt to determine whether or not J.A. was harmed in any fashion. While it is understood that J.A. was non-verbal, he did have other means of communication. J.A. could point to things and did engage in classroom activities, albeit in an unconventional manner. J.A. did not show any reaction to the alleged Play-doh incident. Further, as no one ever saw Ms. Gomez place a hot sauce crayon in J.A.'s mouth, and no one saw a hot sauce crayon in his mouth, there was no reaction to see. On October 14, 2011, several days to a week (or longer) after the alleged Play-doh incident, Ms. de Luna and Ms. Gomez had a conference with Cara Colovos, Sunrise's assistant principal. The conference was allegedly about on-going issues between the two.15/ There was an airing of grievances from both parties. Ms. de Luna gave the hot sauce bottle, the bag of hot sauce crayons, and the bag of hot sauce Play-doh to Ms. Colovos. There is no credible evidence that Ms. Gomez "insisted on the child [J.A.] actually licking or eating"16/ the hot sauce crayons or Play-doh or that she "made sure that the student put these materials [hot sauce crayons and hot sauce Play-doh] in his mouth." (emphasis added). J.A. was at Ms. Santana's writing center when the hot sauce crayons were present. And, although Ms. Santana allegedly saw Ms. Gomez put Play-doh in J.A.'s mouth, the specific allegation was either he licked or ate the Play-doh (which he spit out), or he put the Play-doh in his own mouth, which he did not. In this case, it is clear that placing hot sauce on crayons and Play-doh warrants some form of discipline. Although no noticeable harm came to the student or any student, the mere creation of the material is contrary to School Board policy. There was no credible evidence introduced that Ms. Gomez's effectiveness as a teacher in the school system was impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered by Petitioner, Osceola County School Board: (1) finding Respondent's behavior to be inappropriate; (2) upholding the suspension without pay to- date; (3) reinstating Respondent as a classroom teacher; and placing her on probation for a period of not less than two years. DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 17th day of August, 2012.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts are found: With respect to an appropriate bargaining unit: Employees of the Pinellas County School system are classified into three categories for pay purposes. These classifications are for non-instructional or support persons, administrative persons, and instructional persons. The instructional classification or teacher salary schedule is reflected in a document entitled Pinellas County School Board Instructional Lists by Job Code, which was received into evidence as Exhibit No. 10 and contains approximately 5,200 persons. Members of the administrative and supervisory staff do not appear on this list, nor do supporting services personnel. Principals, deans, registrars and substitute teachers do not appear on this list. Curriculum specialists and coordinators, social workers, psychologists, learning disability specialists and attendance officers do appear on this list. Exhibit No. 16 depicts the organization of administration of the Pinellas County School system as it presently exists. Principals would appear on this organizational chart in the place marked "x" on Exhibit No. 16 in the box labeled local schools. All personnel above that level effectively recommend the hiring and firing of employees, direct other Employees, are paid on the administrative salary schedule, and participate in the preparation of budgets, the adjustment of grievances and in the process of collective bargaining. A stipulation that all persons depicted on this chart above the level of principals (whom are not depicted, but would appear at the local school levels) be excluded from the bargaining unit could not be reached. The following persons or classifications effectively participate in the preparation of the budget, have the ability to hire and fire or effectively recommend hiring and firing and are paid on the administrative salary schedule: the Superintendent, the associate Superintendent and assistant Superintendents. The School Board, CTA & AFT all stipulated that these three positions should be excluded from the bargaining unit. Attendance officers are included on the instructional, teacher's salary list, but they do not hold teaching certificates. They report to the administrative assistant to the associate superintendent and work out of the central administrative offices. It was stipulated by all the parties that attendance officers would not be appropriate in a bargaining unit. Principals and deans effectively recommend the hiring and firing of other employees, participate in the preparation of the budget and in the adjustment of employee grievances and are paid on the administrative salary schedule. It was stipulated that principals and deans should be excluded. The duties and functions of assistant principals are essentially the same as those of principal in the principal's absence. They are certificated, but generally not do classroom teaching. They participate in the formulation of the school budget and in the disposition of employee grievances. They effectively recommend the hiring, firing or disciplinary actions of employees, evaluate employees and are paid according to the administrative salary level. Not every school has an assistant principal. The elementary schools generally do not have one, unless they are on double session. Assistant principals are approved by the School Board, as is anyone who is on a supplement. No stipulation was reached as to assistant principals. Registrars participate in budgeting, are paid on the administrative salary schedule and come in contact with confidential material from time to time. They do have an office in the school, have daily contacts with students, receive essentially the same fringe benefits as classroom teachers. They do not have the authority to direct other teachers or employees in the performance of duties. By reason of their confidential status, it was stipulated by all the parties that registrars be excluded from the unit. The Pinellas County school system hires persons known as directors, associate directors and assistant directors. In a vocational program or center, the principal is known as the director and the assistant principal is also called an assistant director. Also there is a director of the budget and other types of directors. There are now approximately 50 directors, 2 or 3 assistant directors and no associate directors. They are paid on the administrative pay scale, have supervisory functions, assist in the preparation of the budget and in the collective bargaining process, deal with confidential materials, supervise employees and recommend hiring, firing or discipline and adjust employee grievances. They are generally at the county level and not the school level. It was stipulated that directors should be excluded from the bargaining unit, but no stipulation was reached with respect to assistant and associate directors. Supervisors are generally curriculum persons who supervise the formulation of the curriculum and supervise the teacher in working with the curriculum. They are paid pursuant to the administrative salary schedule, work out of the central office, evaluate other employees and effectively recommend hiring, firing or discipline, prepare and handle confidential materials and participate in both budgetary policies and the processes leading to collective bargaining. It was stipulated by all parties that supervisors should be excluded. Activity directors work in the schools, but do not teach classes. They are more of a business management type of person. They schedule activities and events, handle ticket or club monies, and hire teachers as ticket sellers at events. While they have occasion to work in the preparation of the budget for their particular school, they do not evaluate other employees, do not assist in the adjustment of Employee grievances, do not effectively recommend the hiring, firing or discipline of other employees and do not handle or prepare confidential records. They are on the instructional salary schedule. While they are not required to hold a teaching certificate, almost all do, and they are on ten-month contracts. No stipulation was reached as to the inclusion or exclusion of activities directors. Curriculum assistants, curriculum coordinators psychologists learning disabilities specialists and social workers are all regular, full-time instructional personnel and are listed on the instructional salary schedule, are not paid for vacations and do not accrue vacation time, have no power or control over budgeting and do not hire, fire or promote. In the same manner as classroom teachers, they earn sick leave, receive group health insurance, have the same retirement benefits and pay increases, have pupil contact and are certified employees. All are located within the schools, with the exception of psychologists and social workers, who are not assigned to a specific school, but work out of the county office. There is a classification known as specialist. There are approximately twelve persons in this classification such as a computer specialists and they are paid pursuant to the administrative salary schedule. If they perform supervisory and/or managerial functions, it would generally be over service personnel rather than instructional personnel. However, there is a group of specialists who fall within a category of a federal program which is in contact with students. No stipulation was reached as to this classification. In addition to curriculum coordinators, there is a classification known as coordinators. Some are purely classroom teachers such as a diversified education coordinator. Coordinators work predominantly in the schools with children and are paid on the instructional salary schedule. There are approximately 75 coordinators, and they receive the same paid holidays, the same group health insurance, the same retirement benefits and earn sick leave the same as classroom teachers. These people are required to hold a teaching certificate, although there may be one or two who do not. Most are in the vocational field. They do not supervise other employees nor do they have the ability to effectively recommend hiring or firing of other personnel. They have no power to establish a budget. No stipulation was reached on this position, or any of the remaining positions which follow. 1/ There is also a vocational teacher coordinator. The person occupying this classification teaches students in class and then coordinates their work outside of class and sees to it that students obtain jobs. They are generally assigned to a school and report directly to the principal of that school. They have no budgetary functions and they do not evaluate other teachers. They are usually certified. Also, there is a classification known as health coordinator. Most are certified and they work primarily with students. They coordinate the various phases of the health programs in the school to which they are assigned. They are on the instructional pay scale, have no power to make budgetary determinations and do not supervise instructional personnel. There are also secondary education coordinators who deal with the vocational aspects of a school. They work with students, receive regular retirement benefits and do not evaluate other teachers. There is one person involved in a classification known as RESRVOL. This is a federal program pertaining to the recruiting of adult volunteers to help senior citizens. While she is on the instructional payroll, she does not teach and she is not certificated. On the instructional payroll, there is a classification known as self- renewal. This too is a federal program comprising about four persons. While certification is not required, all who occupy the position are certified. Their function is to deal with children who have lost confidence in themselves and attempt to restore self-confidence. They receive the same emoluments as a classroom teacher and are not involved in the evaluative process of other teachers. They are not assigned to any particular school, but work out of a county office. This description would also fit a Position known as educational self-renewal. Enhanced learning personnel supplement the classroom teachers with respect to teaching the gifted child. They do not evaluate other teachers nor do they have any role in the budgetary Process. Some are permanently assigned to a school and others are on a county-wide basis. Their emoluments with respect to retirement, sick leave and vacation are the sane as classroom teachers. A curriculum assistant helping a kindergarten teacher exists on the instructional salary list. Only one person is involved. This person does evaluate teachers, has no classroom duties and is involved in the budgetary process. She reports to the supervisor of kindergarten and receives the same emoluments as classroom teachers with respect to retirement, sick leave and pay and vacations. Other helping teachers do exist and the positions are supervisory, supportive type positions. They evaluate teachers and report to their supervisors. A junior high school work experience teacher teaches children and finds them jobs outside of school. They do not coordinate teachers and they receive the same emoluments as a classroom teacher with respect to retirement, sick leave and vacation. An adult home economics teacher teaches post high school students in the evenings. They do not evaluate other teachers and report to their supervisor in the evening program. Substitute teachers are hired and paid on a daily basis. They are not required to be certified. However, there is a distinction between a short-term and a long-term substitute teacher. The long-term substitute takes a regular teacher's place over a long period of time. After the first ten days, the long term substitute is allowed to go on a teacher's contract (whatever contract they would be eligible for were they a regular teacher) for the period of time they are going to be substituting, if it is determined that the period of substitution will be extended. It was not determined whether long-term substitutes go on the same instructional list as Exhibit No. 10, but no long- term substitutes are now on said list due to the recent opening of school. They do not participate in the same retirement or receive the same insurance that a classroom teacher does. While several other positions were discussed, there were no other employees who were in the list of instructional personnel (excluding personnel heretofore discussed) who have the ability to effectively recommend the hiring or firing of other employees, who participate in the adjustment of Employee grievances or evaluate other employees, or who work in the preparation of the budget. All remaining positions receive their pay on the same day, earn sick leave in the same fashion, participate in the same group insurance and retirement benefits as regular classroom teachers and are required by the School Board to be certified. With respect to requests for recognition and bargaining history: Pursuant to local legislation enacted in 1971 granting to instructional personnel employed by the School Board the right to bargain collectively, the CTA has engaged in collective bargaining with the School Board. The first contract was ratified in September of 1971. The last contract expired on August 1, 1975. The 5,018 employees covered by this latter contract included counselors, librarians, classroom teachers, media specialists, special education teachers, vocational teachers, curriculum coordinators, psychologists, social workers and other employees of the public schools having whole or in part classroom teaching duties. This is essentially the same group listed in Exhibit 10. The CTA made a formal request for voluntary recognition by the School Board on April 30, 1975. Certain events (unfair labor practice charges and the filing of RC petitions) then ensued, which events are well known and are on file with the Public Employees Relations Commission. On or about April 24, 1975, the AFT requested, by letter, the School Board to officially recognize the AFT for the rights to bargain collectively with the School Board for the teachers. As noted above in the Introduction, the parties agreed that the School Board is a public employer; that both petitioners are employee organizations, and that there is no contractual bar to the holding of an election. In accordance with F.S. s. 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 22nd day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Respondent, Billie M. Bunch, is a noninstructional employee of the Petitioner, School Board of Palm Beach County, and is under an annual contract of employment for the 1987-88 school year. Respondent was initially employed by petitioner in 1970 as a custodian, and was assigned to Boca Raton Elementary School (the school). In 1972, he was promoted to foreperson, and has continued to serve in such capacity at the school through the ensuing years. The custodial staff at the school has, during respondent's tenure, consisted of two people: the custodial foreperson and a custodian. The school is, however, a small school, with a maximum capacity of 290 students, and can be appropriately maintained by a staff of two custodians provided they regularly perform their prescribed duties. As custodial foreperson, respondent was charged with the responsibility of ensuring that the school center was properly cleaned and maintained. To accomplish this charge, respondent was directed to devote 75 percent of his time to cleaning activities and 25 percent of his time to administrative matters. The administrative matters were, however, nominal and consisted primarily of preparing a work schedule, supervising the custodian, ordering necessary supplies, and recommending needed repairs. The proof demonstrates that respondent rarely devoted any time to actual cleaning at the school. 1/ Rather, he placed that burden on the sole custodian. As a consequence, the school center was not routinely cleaned and fell into a state of disrepair. During the 1984-85 school year, the school was surveyed by a team of educators representing the Southern Association of Colleges and Schools. The purpose of the survey was to ascertain the degree to which the school met the standards for accreditation as established by the Southern Association. The team found the school satisfied all standards for accreditation except the standard relating to school maintenance. That standard Provided: There shall be evidence of effective maintenance and housekeeping designed to Provide a safe, sanitary, and attractive environment for learning and to protect the investment in the school plant. The team recommended: that the administration immediately take what ever action is necessary to insure that routine maintenance and daily housekeeping be done on a constant basis. that the administration recommend immediately for the district main- tenance to do the necessary repairs, painting, replacing, etc., that would come under their jurisdiction. * * * 4. that the gymnasium be maintained so that it can be utilized in a multi- purpose manner. The proof supports the finding of the survey team that daily housekeeping was not done on a routine basis. Trash was not removed, rooms were not cleaned, equipment was not maintained, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter. During the 1985-86 school year, conditions were not improving at the school. Respondent contended, however, that the condition of the school was not a consequence of his failure to perform his duties, which contention is not credited, but the failure of petitioner to improve the school. In the face of the report of the survey team and complaints from the school advisory board, petitioner undertook to remodel, repaint, recarpet, and otherwise completely renovate the school center. The renovations were completed on or about June 1986, and respondent concedes that every complaint or problem he perceived with the condition of the physical plant had been remedied. During the 1986-87 school year, despite respondent's promise to maintain the school center, the same conditions that had previously existed at the school slowly began to reappear. Trash was not removed, rooms were not cleaned routinely, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter. Because of the poor condition of the school at the end of the 1986-87 school year, the supervisor of petitioner's building services department sent in an outside crew to clean the physical plant. Over the course of a number of days that summer, this crew cleaned a substantial portion of the facility, including the 2 gang toilets, the 4 small bathrooms, 7 classrooms, the gymnasium, and the outside corridors. Additionally, they changed the air conditioning filters, cleaned the carpet in 6 classrooms, pressure cleaned the outside corridors, and washed windows. In July 1987, a new principal, Mary Smith, was assigned to Boca Raton Elementary School. Prior to the end of the 1986-87 school year, Donald Robinson had acted as principal of the school. However, because of his failure, among other things, to assure that the school center was properly maintained, petitioner requested and received his resignation. 2/ On July 27, 1987, Ms. Smith met with the respondent upon his return from vacation. At that meeting, Ms. Smith directed that he prepare new work schedules and that, under her administration, his absenteeism would have to cease. The new work schedules prepared by respondent were not significantly different than those previously used. While they purported to assign cleaning duties to him, respondent did not fulfill those duties but, rather, continued to place that burden on the sole custodian. While directed by Ms. Smith on July 27, 1987, to maintain a good attendance record, respondent promptly ignored such direction. Respondent was absent one-half day on July 28 and all of July 29, 1987, ostensibly attending an aunt who had suffered a heart attack. On July 30, 1987, respondent was present for work, but on July 31, 1987, a Friday, he was absent from the school to attend an in-services training session for custodial forepersons. While scheduled for a full day, respondent only attended until 1:30 p.m. 3/ On August 3, 1987, Ms. Smith received a phone call from respondent's aunt. She advised Ms. Smith that respondent was en route to New York to visit his ill mother. Ms. Smith told the aunt to have respondent call her as soon as possible. Fifteen minutes later, respondent telephoned Ms. Smith, ostensibly from the West Palm Beach Airport. He told Ms. Smith that his mother was very sick and that he was en route to New York to visit her. However, at no time did respondent disclose the nature of his mother's illness to Ms. Smith, and no proof was offered at hearing to demonstrate its nature or severity. During this same telephone conversation, respondent also advised Ms. Smith that he had borrowed $35 from the school coke machine. Ms. Smith told respondent he had no authority to borrow the monies. She also told respondent that he was needed to ready the school for the returning teachers and that she was not approving his absence. Notwithstanding such advice, respondent was absent from the school the week of August 3, 1987. Upon his return to the school on August 10, 1987, respondent was suspended. On September 2, 1987, respondent was suspended without pay, and thereafter the petitioner commenced this proceeding for his dismissal. On August 21, 1987, respondent delivered to the school a $35 check as a reimbursement for the monies removed from the coke machine. Respondent's contention that he did not borrow the monies but merely took them to safeguard them is not creditable. Rather, the proof demonstrates that respondent misappropriated such funds to his own use.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order sustaining the suspension of respondent and dismissing him from employment. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of March, 1988. WILLIAM J. KENDRICK 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 7th day of March, 1988.
Findings Of Fact Jerry Stine was employed by the Pinellas County School Board as a Groundskeeper II when he was transferred to BCHS in September, 1983. On September 30, 1987, Jay Kurth, a groundskeeper at BCHS observed Respondent take two paint brushes and four light bulbs from the office at BCHS, put them in a bag and later put them in the trunk of the car he was driving. This information was passed to Charles Yero, the head plant operator at BCHS and the supervisor of Respondent. Yero passed the information to Don Bryan, Assistant Principal at BCHS, and the school police were notified. Subsequently, the campus police officer, Bryan and Yero approached Respondent and requested he open the trunk of his car. The initial message from Kurth appears to have been garbled because Respondent was told they were looking for paint. Respondent opened the trunk, and the two testifying witnesses who looked in the trunk saw a five gallon gas can and two quart cans of Chevron motor oil. No testimony was presented that paint brushes or light bulbs were found in the trunk. Neither the police officer nor the school officials removed the gas can or motor oil cans from the trunk of the car, nor was Respondent ever charged by the police for the unauthorized taking or attempting to take school property. No evidence was presented that the can in the trunk contained gasoline. The gas can in the trunk of the car contained no marks identifying it as the property of BCHS or the School Board of Pinellas County. Subsequent to September 30, 1987, a photograph of a paint-spattered five gallon safety gas can was taken (Exhibit 2) and identified by one witness (Yero) as the can in the trunk, but by the witness who took the photograph (Lynd) as a five gallon gas can at BCHS. Respondent initially stated that the gas can belonged to the owner of the car, but shortly thereafter claimed that the gas can belonged to him and that he had brought it to BCHS shortly after he started work there and used it to mix gas and motor oil for use in the two cycle weed-eaters. Petitioner contends the gas can was the property of the school board. To support that position, all witnesses agreed that prior to 1982 there were three five gallon safety gas cans at BCHS. Charles Yero testified that around 1982 he bought a fourth gas can. Robert Johnson, a groundskeeper employed at BCHS in August, 1983, testified that when he started at BCHS there were three gas cans and that some three weeks later when Respondent was transferred to BCHS, Respondent brought a fourth gas can which was used to mix oil and gas for the two cycle engine weed-eaters. Respondent testified similarly with respect to the fourth gas can. In June, 1984, a fifth gas can was delivered to BCHS and receipted for on Exhibit 10. Charles Yero identified Exhibit 3, a photograph of a one or two gallon rectangular-shaped gas can, as a photograph of a gas can of which Respondent had claimed ownership. As further support of the testimony that on September 30, 1987, there were five, five gallon gas cans at BCHS, Petitioner presented Exhibits 4, 5, and 6, which are credit card purchases of 25 gallons of gas, each from a Mobil station. All witnesses agreed that gas and oil purchases made by maintenance personnel at BCHS were made at this Mobil station. Since the motor oil found in the trunk of Respondent's car was Chevron oil and no evidence was presented that Chevron oil was ever purchased for use at BCHS, the ownership of the motor oil found in the trunk can hardly be attributed to BCHS. In May, 1987, Respondent was suspended without pay for five days upon his admission of taking home school equipment for personal use and for poor attendance and punctuality (Exhibit 9). In Exhibit 9, Respondent acknowledged that future infractions of policy or continued problems with attendance or punctuality may result in termination of his employment. On September 30, 1987, Respondent was not given authority to remove school equipment from BCHS. No personnel directives or manuals relating to disciplining school board employees were presented, and Respondent was not charged with violating any specific directive.
The Issue The issues in this case are whether Respondent violated subsections 1012.795(1)(c),(f), and (i), Florida Statutes, Florida Administrative Code Rules 6B-1.006(3)(a),(e),(g) and 6B- 1.006(4)(c), and if so, the penalty that should be imposed.
Findings Of Fact Petitioner is the head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes, against teachers holding Florida educator's certificates. John Mark Pomar, Respondent in this proceeding, holds Florida Educator's Certificate 386817, covering the area of physical education, which was valid through June 30, 2008. At all times material to the allegations of this case, Respondent was employed as an agriculture teacher at Vero Beach High School in the Indian River County School District. During the 2004-2005 school year, J.K.2/ was a tenth- grade student in Respondent's Agriculture Tech I class. In addition, J.K. was a member of Future Farmers of America ("FFA"). J.K. was actively engaged in Respondent's agriculture classroom and would assist Respondent in a variety of practical duties and assignments including hatching chicks, cleaning pens, harness training of bulls and cows, and feeding and cleaning animals.3/ J.K. was considered Respondent's aide and "right-hand man." Over the course of the tenth-grade year, J.K. and Respondent had almost daily contact and developed a close relationship, both in and outside of the classroom. Respondent invited J.K. to assist him with duties outside of the school environment such as purchasing seed. On at least one occasion, she accompanied him to Punta Gorda, Florida, to acquire game birds to be raised at the school. At the conclusion of the 2004-2005 school year, during the summer break, J.K. and several other students continued to care for the agriculture class animals. The students were paid for their time. J.K. enrolled in Respondent's Agriculture II class for the 2005-2006 school year. J.K. remained actively involved in Respondent's class and the FFA. Likewise, her close relationship with Respondent continued. On March 15, 2006, members of the agriculture class and FFA, including J.K., were present at the Indian River County Firefighter's Fair. During this annual fair, the students would participate in the showing of various animals. On that date, J.K. had a disagreement with her younger sibling. Consequently, her father informed J.K. that she was not allowed to attend the fair. J.K.'s parents were divorced, and, therefore, she contacted her mother and requested that she drive her to the fair. J.K.'s mother acquiesced and ultimately dropped J.K. off at the agriculture pavilion section of the fairgrounds. While en route, Respondent called J.K. on her cellular phone to determine if she was going to attend the fair. Once at the fair, J.K. congregated with several of her friends in an area set apart from the general public for those participating in the showing of animals. J.K. was still visibly upset from the domestic quarrel and was venting. On the same date, Respondent consumed several alcoholic beverages before and/or during dinner at home with his wife and family. Thereafter, Respondent and his family went to the fair. On this occasion, Respondent was not attending the fair in a teaching or chaperon capacity. Shortly after arriving at the fair, Respondent approached J.K., who was still with her group of friends. J.K. had not yet gained her composure and had been recently crying. Respondent asked to speak with J.K. alone and she followed him to a separate area behind the "show animal" pens. As they were walking, Respondent inquired as to whether J.K. was upset, and she advised him of the disagreement with her family. Once apart from the group, Respondent advised J.K. that he was concerned about her. He then gave J.K. a hug that she reciprocated. Thereafter, while J.K. was standing directly in front of Respondent, he grabbed her with both of his hands on either side of her shoulders, pulled her to him and held her there as he kissed her on the lips.4/ J.K. observed the odor of alcohol on Respondent's breath. Prior to this occurrence, Respondent had never kissed J.K. on the lips or even the cheek. J.K. conceded that they had probably hugged on a few limited occasions; however, even these embraces were characterized as a "one-hand kind of good job" hug. When Respondent released J.K. from the embrace, she immediately returned, by herself, to her friends. Witness A.K., who was J.K.'s best friend at the time, was among the group. A.K. observed J.K. return from her private encounter with Respondent at a fast pace, crying and very upset. According to A.K., J.K. was hyperventilating, advised A.K. that she was going to vomit, and that Respondent had kissed her on the lips. J.K. then proceeded to the bathroom where she became ill. As a result of the kiss and embrace, J.K. felt shocked, confused, disgusted, betrayed, and uncomfortable. Aside from her best friend, A.K., however, she did not immediately tell anyone about the incident. When J.K. returned to school the following week, she remained uncomfortable and there was clearly a rift in the formerly close relationship. J.K. no longer desired to speak or be in close proximity to Respondent and attempted to avoid him. Respondent advised J.K. that, if she did not want to attend the agriculture class, she could come between classes and pick up an excuse pass that would be available on his desk. J.K. utilized that option.5/ On one such occasion, in addition to the pass, J.K. observed on Respondent's desk an envelope with her name handwritten in blue ink.6/ The envelope contained an unsigned, undated, computer generated letter addressed to J.K. The contents of the subject letter are set out, in full, as follows: [J.K.], Friday and Saturday a week ago were two of the best days I have had in a while, it began by taking you to your mother's where we talked about your being unhappy and why you were unhappy, and what I could (wanted to) do to help. That day I came away with, "she is not going to Montana, she will be here for another 3 years. No!!! It was no coincidence I was in Sebastian Saturday and brought you b'fast—I drove up there made an excuse to see if the twinkle was still there---it was. Then all hell broke loose on Sunday—problem after problem—all personal with-in my family. When things that are near and dear to me are not right I sometimes can not handle it. I have a problem when I am angered, not irritated—not just mad, but angry. When angry I sometimes can not see the forest for the trees. Wednesday was the hell day to try and forget and over-come, 2 drinks did not help. Although most was vivid some was a blur—that blur must have been when I did whatever it was to hurt you, I remember the hug/kiss/and you not wanting to talk about it anymore. No excuse for the drinks I am not presenting that as a defense nor justification; just how it did not help— not drunk just a combination when alcohol, anger meets my body chemistry something is not cool. Although, I can not turn back the hand of time I want you to know "I wish I could". I know this for sure I would never hurt you in any way intentionally or otherwise. My actions and feelings for your are true and sincere—not like a father—not like a boyfriend's passion—not like a friend— different all together but true and sincere— Some kinda special Luv. You bring out the "best and the worst in me— when you hurt I want to hurt—when the twinkle is there, there is no mountain to high I cant climb, you make me want to be the best I can be!!! I will honor my arrangement for A-2, if needed there will be a pass filled out and signed all you have to do is fill in where you are going, if not you are welcome to stay out here do your work or chill and expect very little, if any, contact from me— the same applies for B-3. This I hope will minimize the pain for both of us. My old Bud I have revealed to you some weaknesses, faults, chinks in my armor none of which I am ashamed or proud of—just chinks I must fight to control. Although I have no problem owning up to you for them—it is hard to swallow to know I have to fight to control them and sometimes lose the battle. Regardless of how you take this, laugh at it, choke on it or other as King Preamm told Achilles "there is respect between enemies" (you are/never will be an enemy just a saying). I will never reveal or betray the times we talked about our lives, friends, and family—those conversations will never be shared with anyone no matter what—in return I ask that you do the same and destroy this note it is for you eyes and thoughts only. If this became known to the wrong people my children could feel the shame and hurt—they do not deserve that, plus you are the only one who knows what is being said. [J.K.], I am not offering this as an excuse, explanation or apology just merely the "truth". I am at peace with myself—now—knowing you know the truth. Closing—always know our fondest times and memories, my prayers and my heart will always travel with you. Bye, Bud During the pertinent period, several school district computers were located in Respondent's agriculture classroom. One of the computers was issued solely for the educator's use. To log on to the school district's network computer, Respondent was required to enter a unique user name and password. All documents saved by Respondent while using said computer were automatically routed to his "home folder" on the District server. When not in use, Respondent was to log off or lock the computer to prevent others from accessing the same. In August 2006, Ralph Starr, a network analyst for the Indian River County School District, was requested to search Respondent's assigned computer for any documents addressed to, or referring to J.K. or "Dear Friend." The computer was delivered to Mr. Starr. Mr. Starr's analysis revealed that no such correspondence was located physically on Respondent's C- drive (the hard drive); however, the above-referenced correspondence was found saved on the school district's server, in Respondent's home folder.7/ Respondent's computer was located on a desk in the classroom. Conceivably, another individual who possessed Respondent's user name and password could access his computer in his absence. Alternatively, if Respondent failed to follow the procedure of logging off or locking the computer, another could utilize the computer.8/ J.K. credibly testified, however, that she had never used Respondent's computer for any reason and that the style of writing contained in the subject correspondence was not hers. J.K.'s testimony was bolstered by that of A.K. J.K. showed the correspondence to A.K. and advised her that same was from Respondent. At the time A.K. reviewed the letter, she was J.K.'s best friend and they had been friends since sixth grade. In the course of their friendship, A.K. had an opportunity to review J.K.'s writings. She confirmed that the subject correspondence was not J.K.'s words or writing style. The undersigned finds that the above-referenced correspondence is genuine, and in light of the circumstances, logically indicates the correspondence was drafted by Respondent with J.K. as the intended recipient. Respondent's admissions to alcohol usage and kissing J.K., the request for secrecy, coupled with phrases such as "[s]ome kinda special Luv," "to see if the twinkle was still there," and "my heart will always travel with you," support J.K.'s credible testimony that the embrace and kiss on the lips were romantic and transcends the competing interpretation that the same was merely of a consoling nature. A few weeks after the incident and receiving the letter from Respondent, J.K. finally confided to her mother the events of March 15, 2006. Her decision was prompted by several factors: Respondent informing A.K. that he had lost respect for J.K.; Respondent informing other students that J.K. was not welcome at agriculture; and Respondent informing fellow students that J.K. had changed her interests and had "blown all of them off." The incident of March 15, 2006, and Respondent's subsequent conduct, which J.K. internalized, negatively affected her mood, behavior, and relationship with her father. A few days after school recessed, J.K. finally advised her father that Respondent had kissed her. J.K.'s father subsequently sought legal counsel, and upon the advice of counsel, notified the school board attorney. Facing an investigation concerning the allegations forming the basis of the Administrative Complaint, on or about August 8, 2006, Respondent resigned from his teaching position. J.K. returned to Vero Beach High School for her senior year. While J.K. desired to remain in the agriculture program, she perceived resentment from certain classmates in retaliation for the allegations against Respondent that had become public over the summer break. Consequently, school administrators encouraged J.K. to remain in the program albeit with different classmates. J.K. remained in the agriculture curriculum and enrolled in a class entitled Advanced Placement Environmental Science. J.K. graduated from Vero Beach High School in 2007, with honors. Prior to the incident that is the subject matter of this case, Respondent consistently obtained "highly effective" or "exemplary" performance appraisals. For Respondent's last appraisal, concerning the 2005-2006 school year, he was given an exemplary rating, with a score of 50 out of 52. Respondent was instrumental in the development and execution of a successful agriculture program and agribusiness opportunities for those students enrolled in the program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued finding that Respondent, John Mark Pomar, violated the provisions of subsections 1012.795(1)(c), (f) and (i), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a), suspending Respondent's Florida educator's certificate for a period of two years. DONE AND ENERED this 24th day of October, 2012, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2012.
The Issue As stated in the prehearing stipulation, the issue is whether the school board should accept or reject the recommendation by the superintendent of schools to reduce Andrea Childs from continuing contract status to annual contract status for the 1989-90 school year.
Findings Of Fact Andrea Childs was employed by the School Board of Okeechobee County as a teacher in December, 1980. Ms. Childs is certified as a teacher in Social Science. She taught 9th grade Social Science at the Okeechobee Junior High School for the school years 1980-81, 81-82, 82-83, and 83-84. She transferred to Okeechobee High School after the school board moved the 9th grade from the Junior High School to the High School. She has taught continuously at the High School since her transfer. Prior Evaluations Ms. Childs' performance as a teacher was first evaluated on January 16, 1981. While her performance was found to be satisfactory, she had been on staff for such a brief period of time it was difficult to make a meaningful evaluation. She was next evaluated on March 16, 1981, and found satisfactory for all twenty characteristics contained on the school's evaluation form. On December 14, 1981, she was evaluated for the first semester of the 81-82 school years, and again rated satisfactory on all characteristics. Her evaluation at the end of the 1981-82 school year and the first semester of the 1982-83 school year found her satisfactory on all characteristics. Ms. Childs was recommended for continuing contract in April, 1983, at the close of 1982-83 school year, when her evaluation was satisfactory on all characteristics. She obtained a continuing contract on May 19, 1983. When her teaching at the Okeechobee High School was evaluated on February 20, 1984, she was rated satisfactory on all twenty characteristics. Ms. Childs was next evaluated at the end of the second semester of the 1984-85 school year by her new principal, Phoebe Raulerson. The evaluation forms used by the district then changed. The behaviors to be assessed were grouped into six categories, each having subdivisions denominated as indicators. Ms. Raulerson evaluated Ms. Childs' performance as meeting each of the 31 indicators. The new evaluation forms also included a separate assessment of additional factors called employability behaviors, and Ms. Childs was found acceptable on each of those behaviors. On April 1, 1986, Ms. Raulerson again evaluated Ms. Childs, and found that Ms. Childs' teaching performance met all 31 indicators, and that Ms. Childs' performance was acceptable on each of the employability behaviors during the 1985-86 school year. On April 13, 1987, Ms. Raulerson found that Ms. Childs' performance met all 31 indicators and found her service acceptable on all employability behaviors. On March 11, 1988, Ms. Raulerson evaluated Ms. Childs, finding that her performance met all 31 indicators and acceptable on all employability behaviors. At no time from her first employment with the school board in December, 1980 through her annual evaluation on March 11, 1988, was there any finding that Ms. Childs had failed to perform satisfactorily on any characteristic, indicator or employability behavior evaluated by the School Board of Okeechobee County. In February, 1988, as will be discussed in greater detail below, Ms. Raulerson observed Ms. Childs' teaching, determined that her performance was inadequate, and recommended to the superintendent of schools that Ms. Childs be reduced from continuing contract status to annual contract status. When confronted at hearing with the uniformly positive evaluation Ms. Childs had received, including those from Ms. Raulerson herself for each of the school years from 1984-85 through 1987-88, Ms. Raulerson deprecated her own evaluations with the suggestion that Ms. Childs had been in poor health since the birth of her first child in approximately August, 1985, 1/ and explained that the positive evaluations should not be taken at face value. Ms. Raulerson contended that Ms. Childs' performance was evaluated leniently because of her health difficulties. There is no such indication on the evaluation. Ms. Raulerson is obviously a competent principal who does not confuse efforts with results. The evaluations were accurate as written, and there were no deficiencies in Ms. Childs' performance during any prior school year. The Oblique Warning During the teachers' work period before students returned to school in August 1988, Ms. Childs had an informal discussion with Ms. Raulerson, during which Ms. Raulerson told Ms. Childs "this has got to be a good year". Apparently Ms. Raulerson meant to tell Ms. Childs that her performance as a teacher needed to show improvement that year. If that was her intention, her choice of words was so oblique that the message was not conveyed. An ordinary listener would not have understood the comment as a criticism of past teaching performance. The comment was so general that it would not draw the attention of a teacher to any area of deficiency which a teacher could then attempt to correct. There was no criticism of Ms. Childs' performance on her last evaluation which could have served as a focus for any need for improvement. Ms. Raulerson is an experienced administrator, able to draw the attention of teachers, students or others at the school to inadequate performance or misconduct in a direct manner. In the Okeechobee High School, students are grouped for classes by broad ranges of ability. There are classes for slow learners, known as basic classes, as well as for regular students. In 1988-89 school year, Ms. Childs taught two basic classes, and other regular social studies classes. The classes which Ms. Childs taught during the sixth and seventh periods were basic classes. Ms. Childs had some difficulty with the behavior of two students in basic classes, and discussed the problem with an Assistant Principal, Barbara James, on September 15, 1988. One of the problems was tardiness by some of her students. Ms. James' written suggestions to Ms. Childs for dealing with the problem included: In the beginning, you might try some extra, positive reinforcement for the on-time rule until you get going, if tardies are a problem. Always be on time yourself. This advice was a common sense suggestion to a class management problem. It was not any sort of admonition to Ms. Childs that she herself was not arriving to teach her classes on time and that she should make a better effort to be punctual. Tardiness Unknown to Ms. Childs, Ms. James, the Assistant Principal, had mentioned to the Principal, Ms. Raulerson, that Ms. Childs was sometimes arriving late for her classes. Ms. Raulerson told Ms. James to keep track of the times Ms. Childs was late for a class. Ms. James noted 11 instances between September 19, 1988, and February 27, 1989, of apparent tardiness by Ms. Childs. Ms. Childs was not in her classroom at the beginning of first period on 5 of those occasions (all in September of 1988), but there was good reason for this. That class was made up of 11 Junior and Senior students during the first semester, and 9 Juniors and Senior students during the second semester. Ms. Childs taught in a small portable building, separated from the main building. It had no clock, nor a working intercom system with the main building. Ms. Childs left her first period class to go to the school office to listen to the daily school announcements which she could not hear in her classroom. This was important, because those announcement often contained relevant information about subjects such as class meeting and scholarships, and students were charged with notice of the information. This information was not always available from other sources. Ms. Childs ultimately avoided this problem by taking her students to the cafeteria at the opening of first period so they could hear the announcements. No one at the office had ever indicated that she should not be there. The School's Faculty Handbook does tell teachers to remain in their classroom during class periods. Ms. Childs had frequently asked to have the intercom line between her classroom and the main building fixed. There was no adequate explanation for why the intercom had not been fixed. Ms. Childs' actions were common sense accommodations to the problem which confronted her and her students. Other instances when Ms. Childs was seen out of her classroom when first period began occurred during the second semester, in February, 1989. At this time she was team teaching with another teacher, Ms. Audrey. That teacher was in the classroom, and Ms. Childs was using the time to prepare lessons for her sessions of that class on the Holocaust. Those students were not left unattended. Ms. Childs' lateness in arriving for class during the first semester is much less than it seems on its face. The charges with respect to lateness are mere makeweight arguments. The Teaching Evaluation The contract between the school board and the teachers union for Okeechobee County prescribes a procedure for teacher evaluation which is consistent with the Okeechobee County Teacher Assessment System adopted by the school board on June 28, 1988. According to the school board policy and the union contract, teachers are provided with copies of the forms and procedures that will be used in the evaluation process. The teaching performance of continuing contract teachers is assessed by the principal at least once annually. The assessment for Ms. Childs was made on February 27, 1989. She had received the evaluation forms at the beginning of the year, as did all other teachers. The assessment of a teacher is based on observations conducted and other information gathered during the year by the principal, supervisor or assistant principals. The evaluation of teaching is accomplished using the summative evaluation from the Florida Performance Measurement System, i.e., an evaluation used for personnel decisions about a teacher, rather than an evaluation done to assist the teacher in developing good teaching technique, which is know as a formative evaluation. Ms. Raulerson had been trained in the use of the Florida Performance Measurement System summative evaluations. Before February 27, 1989, Ms. Childs received no oral or written notice that she was not performing her duties as a teacher in a satisfactory manner, and had no conference with any school administrator about unsatisfactory performance. Of necessity, she had been given no recommendations about ways in which to remedy any specific areas of unsatisfactory performance. On February 27, 1989, Ms. Raulerson observed Ms. Childs' first period class. This single class period provides the sole basis for Ms. Raulerson's evaluation of Ms. Childs' teaching for the entire year. By its very nature, that sample of teaching is entirely too small to permit Ms. Raulerson validly to generalize a conclusion that Ms. Childs' teaching is inadequate. 2/ After observing Ms. Childs during the first period, Ms. Raulerson had a consultant who is a professor of education at Florida Atlantic University, Dr. Mary Gray, who was at the school that day, observe Ms. Childs during the class period which begins at about 10:50 a.m. Ms. Raulerson had a brief discussion with Dr. Gray following her observation. By the fifth period on February 27, Ms. Raulerson presented Ms. Childs with her evaluation report. Ms. Raulerson informed Ms. Childs that Ms. Raulerson would recommend to the superintendent of schools that Ms. Childs be reduced from continuing contract status to annual contract status for the 1989-90. The whole evaluation process was remarkably swift. Ms. Raulerson was obviously displeased by what she saw during Ms. Childs' first period class, but the summary fashion in which she completed the evaluation is more indicative of pique than of reasoned professional analysis and judgment. Ms. Raulerson became angry, and allowed that anger to guide her actions. During the first period on September 27, 1989, Ms. Childs taught American History. She showed the class a video that she had searched out prepared by the National Geographic Society. The video dealt with the conservation of tigers and other animals in India. It was a story of Jim Corbet, who formerly had been a big game hunter, but who later become a conservationist. At first blush this video seems to have little to do with an American History class, but upon analysis, this is not the case. Ms. Childs was teaching students about the presidency of Theodore Roosevelt, and his personal transformation from a game hunter to conservationist, including his significant role in the establishment of a national parks system in the United States. Drawing the analogy between a contemporary big game hunter who had become a conservationist with the conversion of Teddy Roosevelt was one reasonable way to relate current experience to history and assist the students in comparing and contrasting concepts using different people as examples. Since the student text devoted three of seven and one half pages on Teddy Roosevelt to conservation, Ms. Childs' use of the film is defensible. No doubt, different educators might have different views as to how to approach the subject. To conclude from this single event, however, that Ms. Childs was deficient in the categories of content coverage and utilization of instructional material cannot be sustained. Ms. Childs also used the same video in other classes she taught on February 27, 1989, including World History and four World Geography classes. The video was appropriate for those classes also. It is not unusual for a teacher to show the same video to all of her classes. It makes sense to concentrate the use of audiovisual materials across several classes to minimize the logistical problems inherent in having the equipment delivered on a number of days at different class periods. The use of the video in several classes cannot have been very important in Ms. Childs' evaluation, however, because the only class period which Ms. Raulerson observed was the first period. It is difficult to understand how Ms. Raulerson could criticize the use of the video in other classes which she had not observed. More importantly, the Florida Performance Measurement System is designed to evaluate traditional teaching performance. The materials which make up the performance system point out that the summative evaluation of teaching cannot be performed during a class period if a test is given to students of 20 minutes duration or longer. Similarly here, the attempt to perform a summative evaluation during a class period where the teacher was screening a video renders the teaching evaluation invalid. An administrator trained in the use of the system should have know this. In any case, the expert testimony offered by Dr. Heald on the inappropriateness of using the Florida Performance Measurement System during a class period in which the video was shown is persuasive; the evaluation made is invalid. Ms. Raulerson also criticized Ms. Childs in the evaluation because two students in the class watching the video were "off task". One student removed a compact from her purse and put power on her face while watching the video. She had put powder on her face in other classes without being criticized. The action distracted no one. One could easily put on makeup while still paying attention to the film. It is inappropriate to generalize from this event that Ms. Childs generally fails to "stop misconduct" in her classes. Another student had obtained Ms. Child's permission before class to wrap a box with construction paper which the student was going to use in a peer teaching class. The student was a good student who could easily watch the film while devoting some time to covering the box. Ms. Childs' decision to grant the student permission to cover the box while watching the film is an insufficient basis to determine that Ms. Childs generally fails to stop misconduct in her classes. No misconduct was involved. These same instances also were the basis for determining that Ms. Childs does not orient students to classwork and maintain academic focus. As with the criterion dealing with misconduct, these instances do not support the generalization Ms. Raulerson made from them. Spelling On the area of presentation of subject matter, Ms. Raulerson found Ms. Child deficient for the indicator "treats concept- definition/attributes/examples/non-examples", with the comment "many words incorrectly spelled". This is the result of trivial misspellings contained in forms Ms. Childs completed during the year. One form was a referral slip written by Ms. Childs when a student misbehaved and was being sent to the office; it contained the word "surprize". The other was a note sent in lieu of a referral slip resulting from a fight where the word "cussed" appeared as "cused" and "none" is written "non". Since the notes obviously were written in haste in an effort to correct discipline problems, the misspellings are of no consequence. The spelling Ms. Childs used is, however, one recognized spelling of the word "surprise". In another situation, she wrote in a note on a student progress report that the student was failing "royaly". This was also a handwritten note that was passed from teacher to teacher for comments about the student's performance. Given its nature, the misspelling in this internal memo is of little significance. The Gray Notes Shortly after Ms. Raulerson's first period evaluation, Ms. Childs was evaluated by Professor Mary Gray from Florida International University. Ms. Childs had not been told beforehand that Dr. Gray would be observing her teaching that day. Had she know this, she would have rearranged her lessons so that she would have been providing a more standard lecture format for her class in order to benefit from the observation. Dr. Gray made notes of her observation of Ms. Childs. These five pages of notes written on legal pad sheets were introduced at the hearing as corroboration of the testimony of Ms. Raulerson, who had spoken with Dr. Gray before the summative evaluation was completed and given to Ms. Childs during fifth period on February 27, 1989. While the notes may be technically admissible as corroboration, Ms. Gray did not testify at the final hearing, and review of those notes is unenlightening. Lesson Plans and Punctuality Ms. Raulerson rated Ms. Childs unsatisfactory for dependability and "following policies and procedures" because lesson plans had not been completed before the lesson was presented on February 27, and because of her lateness for classes. Ms. Childs had been specifically instructed by her department chairman that her lesson plans for the week could be completed during her free period on Monday. As a result, she did not have a lesson plan already written out during the first period on Monday, February 27. It is true that the Faculty Handbook distributed to teachers for the 1988-89 school year states, under the heading "Plan Book and Grade Books," the following: Friday afternoon each teacher must hand in a copy of his/her plans for the next week to the Department Chairman. The faculty handbook is a tool created by the school administration, it was not shown to be a rule of the school board, although the board has a similar "policy." Exhibit 15. Having first established the general requirement that lesson plans should be submitted on the Friday before the week of instruction, the school administration also could modify that requirement. The general practice at the school did modify it. Ms. Childs' compliance with her department chairman's instruction and the general practice of the school should not be held against her. Finding that Ms. Childs' punctuality was unacceptable because she was not in class on time has been discussed above. It would be one thing if Ms. Childs had been late in arriving at school, but that was not the case. Her absence from classes early in the year occurred because she was learning announcements which both she and her students were required to know. Her conduct was a reasonable means of dealing with a difficult situation created when the school administration failed to make the speaker in her portable classroom operational. It is also significant that there were no instances of misbehavior by her students while she was spending the first few minutes of her class period in learning the announcements. The class was made up of older students with good records, so that leaving them unattended was not fraught with the peril presented by leaving younger or less responsible students without supervision for a few minutes early in the first class period. Procedural Errors After receiving the evaluation report prepared by Ms. Raulerson, the superintendent of schools recommended to the school board that Ms. Childs be reduced to annual contract for unsatisfactory performance. This would have the effect of terminating her continuing contract status. He sent Ms. Childs' notice of his recommendation on March 6, 1989. The matter was considered by the school board at its meeting on March 14, 1989, despite the requirement in the contract with the teacher's union that: Any teacher terminated from his/her contract shall have an opportunity to be heard before public hearing after at least ten (10) days written notice of the charges against him/her and of the time and place of hearing. Exhibit 13 at page 67 lines 2-5. The recommendation of reduction to annual contract was placed on the consent agenda, which means that the matter was considered favorably but without discussion at the board meeting. As a result of the board's action, Ms. Childs filed an appeal with the District Court of Appeal, Fourth District challenging her reduction to annual contract. By agreement of the parties, the court relinquished jurisdiction to the school board to conduct a full Section 120.57(1) hearing on Ms. Childs' contract status, which lead to this hearing. The Board's Assessment Policies The Okeechobee County Teacher Assessment System During the summer of 1988, the School Board of Okeechobee County adopted a systematic procedure for the evaluation of teacher performance know as the Okeechobee County Teacher Assessment System. That program had been developed by a committee established by the school board; among the members of the committee were the principal of the Okeechobee High School, Ms. Phoebe Raulerson, and the Superintendent of Schools, Mr. Danny Mullins. Under the heading of "Philosophy", the procedure adopted by the school board states: Teachers who experience performance problems should be advised of specific problems and provided assistance. Also, teachers who demonstrate superior performance should be recognized for their talent and diligence. In the substantive portion describing the procedure for assessment of teaching, the school board policy states: In the event that an employee is not performing his duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination and describe such unsatisfactory performance. The evaluator shall thereafter confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and assistance in helping to correct such deficiencies with a reasonable, prescribed period of time. Exhibit 14 at I., General Procedure. The Union Contract The School Board of Okeechobee County had a collective bargaining agreement with the Okeechobee Federation of Teachers which was in effect during the 1988-89 school year. The contract contains provisions governing personnel rights, which give every teacher the right to due process and grievance procedures. The contract also has a provision regarding teacher evaluation, which provides: . . . in the event an employee is not performing his duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination and describe such unsatisfactory performance. The evaluator shall thereafter confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct such deficiencies within a reasonable, prescribed period of time. Exhibit 13 at 43. The provisions on teacher assessment in the County's Teacher Assessment System and the union contract are essentially identical. The question arises whether the employee is entitled to a written description of unsatisfactory performance and the opportunity to correct performance deficiencies within a reasonable, prescribed period of time before the conduct may be embodied in an evaluation having adverse consequences on the teacher's employment status, or whether the adverse evaluation can itself be the written statement of unsatisfactory performance and result in reduction from continuing contract to annual contract status before the teacher has been offered assistance from the school board in correcting deficiencies. Viewed together, both the County Teacher Assessment System, and the Teacher Evaluation portions of the union contract indicate that a teacher will receive written notice of unsatisfactory performance and assistance in correcting deficiencies before adverse employment action is taken by the school board. It would be unreasonable to interpret the provisions of the Assessment System and the union contract quoted above to allow the school board to terminate an employee by following the procedure the board and its administration used here. The action the board has attempted to take with respect to Ms. Childs is less severe than termination, but it is adverse employment action. It was not preceded by delivery of any written statement of unsatisfactory performance to Ms. Childs. No administrator made any recommendations to Ms. Childs about how to improve her performance or established a period of time in which to correct deficiencies before her continuing contract status was threatened with termination. Ms. Raulerson's brief conversation with Ms. Childs at the opening of the year does not suffice, because it was not a written statement of unsatisfactory performance, and was not sufficiently specific to advise Ms. Childs of any failings. The written suggestions given to Ms. Childs by the Assistant Principal, Ms. James, were not criticisms of Ms. Childs putting her on notice that the administration found her performance inadequate. As discussed above, the general admonition in the second paragraph of Exhibit 1, "Always be on time yourself", was not an effort by the administration to put Ms. Childs on notice that her practice of going to the office to learn announcements which could not be heard in her classroom, in order to pass them on to her students, was unacceptable. The proposed reduction in contract status is inconsistent both with the Okeechobee County Teacher Assessment System and the provision of the union contract on teacher evaluation. Summary The basic problem in this case arose from Ms. Raulerson's dissatisfaction with the instruction she observed in Ms. Child's first period class on February 27, 1989. Ms. Raulerson attempted to apply the Okeechobee Teacher Assessment System in her observation, even though that system, and the state system on which it is based, is structured so that it cannot validly be applied when the lesson observed is an audiovisual presentation. Educators may differ over whether the National Geographic film shown in the American History class was appropriate, but Ms. Childs' explanation is cogent, and supported by the expert testimony of Dr. Heald. The use of the film was not improper. Ms. Raulerson completed the teaching evaluation of Ms. Childs based on the single, unrepresentative and invalid observation, and a brief discussion with Dr. Gray, who had observed the third period class. This resulted in a disciplinary recommendation which was unduly severe, and inconsistent with the procedures set out in the Okeechobee County Teacher Assessment System and the Board's contract with the Okeechobee Federation of Teachers.
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final Order be entered by the School Board of Okeechobee County instructing the superintendent to prepare a contract for Andrea Childs for the 1989-90 school year in the usual form for continuing contract teachers. DONE and ORDERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1989. WILLIAM R. DORSEY, JR. 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 3rd day of November, 1989.
The Issue The issue is whether Respondent's employment with the Pinellas County School Board should be terminated for just cause for violations of Pinellas County School Board Policies 8.04(4) and 8.25(1)(a), (d), and (x).
Findings Of Fact Based upon observation of the witnesses while testifying, their ability for accurate recall and the review of exhibits in evidence and pleadings contained in the file, the following relevant and material facts are found. Petitioner, Pinellas County School Board, is the governing board of the Pinellas County School District. In 1995, the Board adopted School Board Policy 8.25 "Discipline of Employees." Respondent, Thaddeus Starling (Starling), has been a teacher for 23 years with the last 17 of those years spent in Pinellas County as a full-time teacher. Starling has worked for the last three years as a physical education instructor at the John Hopkins Middle School, located on 16th Street in St. Petersburg, Florida. At all times relevant and material to these proceedings, Starling was employed pursuant to a professional services contract with the School Board pursuant to Section 231.36, Florida Statutes (2001). Mr. James Baldwin, a principal for over 15 years and the current principal of John Hopkins Middle School, testified that he has personally known Starling for 15 to 16 years and has been his supervisor and principal for three years. As far as he knows, Starling has never done anything wrong to suggest that he was not a good man. He is good with the students and has received good annual evaluations. There is no evidence in the record to suggest that Starling has ever been disciplined by the School Board. Starling has been with his wife 14 years and married to her for the last eight years. Their pastime over the years has been fishing in and around the St. Petersburg area. Starling and his wife regularly fish for mullet in and around the St. Petersburg area during September and October, when the mullet are running. Each day that fishing is planned, Starling calls his wife to identify the spot where they will fish, and she meets him at the identified spot with their fishing equipment. On September 5, 2001, Starling left school driving a 1983 Camaro by pulling onto 16th Street going toward 22nd Avenue. He turned left onto 22nd Avenue to Third Street where he made a left turn. Located along Third Street is one of the several fishing locations where Starling and his wife regularly fished. Third Street at 20th Avenue was under construction on September 5, 2002, and Starling had to detour off Third Street onto 20th Avenue. Starling followed 20th Avenue to the intersection of 20th Avenue and Fourth Street, which is controlled by posted stop signs facing the 20th Avenue traffic. Because it was raining hard, all the windows in his vehicle were rolled up when he stopped at the 20th Avenue and Fourth Street intersection. In response to complaints made to the St. Petersburg Police Department, a prostitution decoy detail was dispatched to the area of 20th Avenue and Fourth Street on September 5, 2001. Sergeant Quandt, the ranking officer, was in charge of the detail consisting of Detective Christina Bentham, posing as the prostitute decoy, and Detective Landrem, who was an observer or "eyeballer" responsible for looking out for the safety of the female decoy. The crime of solicitation for prostitution focuses on the conversation between the "John" (the person who initiates conversation with the decoy for the purpose of sex in exchange for something of value) and the decoy prostitute. No consummation need occur. The crime is committed by the specific "words spoken" by the accused. While on the decoy detail, Detective Bentham wore an electronic device that transmitted her voice to Detective Landrem, who was equipped with an electronic receiver. Detective Bentham was also wired with an electronic device that transmitted her voice and the voice(s) of persons speaking to her to Sergeant Quandt, who controlled the electronic receiving and recording device. The electronic communication devices enable the members of the prostitution detail to communicate among themselves. The electronic recording device is to record, as factual evidence, the solicitation for sex made by the "John" to the decoy prostitute. On September 5, 2001, Sergeant Quandt had the electronic recording device in his vehicle. He is the only member of the prostitution decoy detail with personal knowledge of when the recording device was actually operating during this decoy detail, but was not called by the Board to give testimony. After approximately four hours of waiting in the pouring-down rain at the intersection of 20th Avenue and Fourth Street, South, decoy Detective Bentham had not arrested anyone for soliciting her for prostitution. Sergeant Quandt drove up to Detective Bentham and ordered her to "get in he was calling it off." By her admission, Detective Bentham steadfastly refused to enter Sergeant Quandt's vehicle and insisted she would stay out longer. Thereafter, Sergeant Quandt drove away to another location. Detective Bentham went to stand under a tree approximately 20 yards away from the intersection. According to Starling, as he sat at the stop sign, waiting for traffic to clear for his turn onto Fourth Street, Detective Bentham came from the grass area, walked onto the sidewalk to the passenger side of his vehicle, and motioned for him to lower his passenger window. Detective Bentham yelled something to Starling that he did not understand, so he slightly rolled down the passenger window of his vehicle. According to Starling, he saw a lady out in the rain waving at his car, and he thought maybe she needed some help. Starling's testimony is plausible. According to Detective Bentham, Starling yelled something to her through his rolled-up passenger window while at the stop sign. She did not understand what he was saying, prompting her to walk approximately 20 yards in the pouring-down rain to the passenger window of his car. This testimony is not credible. Starling and Detective Bentham gave conflicting testimony about who initially said what to whom. According to Starling, Detective Bentham's first statement to him was, "What can I do for you?" and he replied, "Well, nothing, I'm headed to the wall." According to Detective Bentham, her first statement to Starling was, "What are you looking for?" and he replied, "Head." Considering the totality of circumstances, Starling's habit of fishing, the planned fishing at the specific location, calling home to his wife to meet him, and the road construction in the area causing detours resulting in Starling's arrival in the rain at the intersection of 20th Avenue and Fourth Street, Starling's testimony are credited. Detective Landrem was in a parked vehicle approximately 100 yards from Detective Bentham and had control of a radio that he testified "received" only the words spoken by Detective Bentham. According to Landrem, he could not and did not heard any incriminating statements allegedly made by Starling. It is undisputed that the decoy prostitution detail, with electronic recording equipment in their control and on their person, failed to record the alleged incriminating statements during the conversation between Detective Bentham and Starling. Sergeant Quant, ranking police officer in charge of this detail, was not called by the School Board to testify. According to Starling, when Detective Bentham began to speak with him, he said, "Wait a minute," and [I'm going] "fishing," and rolled his window up with the intent of turning right onto Fourth Street. Moments before making his right turn, Starling, looking in his side view mirror, saw Detective Bentham step off the curb onto the road and walk to a white car that was directly behind his car when he was on Twentieth Avenue. Unknown to Starling at that time, the white car was driven by a male, Mr. Perry, whom Detective Bentham arrested for solicitation for prostitution, again without recording that conversation. After Starling turned onto Forth Street East driving without stopping toward Ninetieth Avenue, Starling was followed by Sergeant Quant, but was stopped by and arrested by a uniformed St. Petersburg Police Office and charged with solicitation for prostitution. Under Section 796.07, Florida Statutes, this criminal offense is a misdemeanor. Starling obtained local counsel to represent him in the criminal proceeding. On November 20, 2001, Starling was advised by counsel that he would best be served by dropping his plea of not guilty and entering a plea of nolo contendere. Starling was advised that his fine would be the amount of his posted bond, and he would have to take a sexually transmitted disease test. Starling agreed with the understanding the agreement would be acceptable to the School Board. The County Court of Pinellas County accepted Starling's plea of nolo contendere, withheld adjudication of guilt, and placed Starling on four months' probation that he successfully completed. Starling was advised by his counsel that he did not have to report his arrest to the School Board until time for his professional service contract renewal in May of 2002. In January of 2002, after Starling and a colleague saw a newspaper article about another School Board employee who was disciplined, in part, for failing to report an arrest and a withholding of adjudication, they found a policy manual and talked to a school administrator who advised them to report any such occurrence to the Office of Professional Standards. Thereafter, Starling reported the arrest to the School Board. Starling failed to report his arrest to the Office of Professional Standards immediately after his release from jail on bond. Starling's failure to immediately report his arrest to the School Board was not an intentional violation of Policy but was, at worst, excusable neglect based upon the advice received from counsel. Starling reported his arrest by the St. Petersburg Police Department, the charge of solicitation and the disposition by the court to the Office of Professional Standards on January 9, 2002. Starling's prolonged delay in reporting his arrest to the Board is a violation of Pinellas County School Board Policies 8.04(4) and 8.25(1)(x). By letter of January 25, 2002, as amended thereafter, the Office of Professional Standards, the School Board's attorney and the Pinellas County Sheriff's Office, Superintendent J. Howard Hinesley sent the following notice of suspension and dismissal letter to Starling: January 25, 2002 Dear Mr. Starling: This is to advise you that you were suspended with pay effective January 11, 2002, until the School Board meeting on February 12, 2002. The Board will meet at 1:00 p.m. in the conference hall of the Administrative Building located at the address on this letterhead. At that meeting, I shall recommend that the Board sustain your suspension and dismiss you. If the Board enters its Final Order at that meeting, the effective date of your dismissal will be February 13, 2002. My recommendation for dismissal is based on the fact that on September 5, 2001, you were arrested by St. Petersburg Police for solicitation for prostitution. On November 15, 2001, you pled nolo contendere to the charge. Your actions are violation of School Board Polices 8.04(4) and 8.25(1)(a),(v), and (x), the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida, and constitute just cause for your dismissal pursuant to Florida Statute 231.36. You are entitled to a hearing regarding my recommendation. This hearing, if requested will be pursuant to Chapter 120, Florida Statutes. Your request for a hearing must be submitted, in writing, to Staff Attorney, Jackie Spoto Bircher, no later than 4:30 p.m. on Monday, February 11, 2002. If you do not request a hearing, this failure constitutes an admission of the allegations made in this letter. Due to the nature of the charges against you, I will recommend that you be suspended without pay effective February 13, 2002, until the conclusion of the administrative hearing process, if you request such a hearing. If you have any questions regarding these procedures, you may contact the Staff Attorney's office at 588-6221. (Emphasis added.) During the final hearing, counsel stipulated to an error in the above Notice in charging a violation of Pinellas County School Board Policy 8.25(1)(v). Counsel agreed that the charge should be violation of Pinellas County School Board Policy 8.25(1)(d). The stipulation amending the charge against Starling was accepted. Dr. Hinesley testified that on those occasions when he considers his recommendation to discipline employees, he adheres to the following process: first, when an employee is alleged to have committed a criminal act involving solicitation of prostitution he listens to his Staff's version of whether or not there is any question of guilt in terms of whether this act actually occurred; and second, if in the opinion of Staff and of the people who investigated the incident, the criminal act did occur, he was limited by Board Policy to recommending dismissal based on the penalty range contained in School Board policy 8.25(a). With regard to this case, Dr. Hinesley testified that at the time Mr. Barker presented this case to him, he did not know whether Mr. Barker's investigation consisted of cross- examination of police officers or merely reading and relying upon reports, including police reports, provided by staff; he did not talk to the police officers nor did he talk to Starling. He had no knowledge of whether Mr. Barker or his staff questioned all the parties involved for purpose of determining whether, in fact, the alleged solicitation for prostitution had occurred. Dr. Hinesley affirmed that had his staff provided him with a report that Starling had not committed the alleged criminal act of solicitation for prostitution, his recommendation to the Board would not have been dismissal. Dr. Hinesley also agreed that should the result of this administrative proceeding conclude that the alleged solicitation for prostitution had not occurred, his recommendation of discipline less than dismissal is permissible under his understanding of Board's policy 8.25(1)(a). Based upon his authority and extensive experience in the Pinellas County Education system, I accept the opinions of Dr. Hinesley and find his testimony credible and conclusive regarding application of Pinellas County School Board's discipline policy. Based on the Finding of Facts herein above, the School Board has failed to prove, by a preponderance of the evidence, that Starling solicited for prostitution decoy Detective Bentham, on September 5, 2001, as alleged in the School Board's Notice of a Recommendation of Dismissal dated January 25, 2002. Based upon the foregone Findings of Fact, Starling has rebutted the presumption of guilt based on his plea of nolo contendere for solicitation of prostitution. However, based upon the foregone Findings of Fact, the School Board has proven by a preponderance of evidence that Starling violated Subsections 8.04(4) and 8.25(1)(x) of the School Board's Policy for not timely reporting his September 5, 2001, arrest.
The Issue Whether Respondent's state teaching certificate should be suspended or revoked pursuant to Chapter 231, , Florida Statutes, asset forth in Petition, dated May 21, 1979. This is an administrative proceeding whereby the Petitioner seeks to take adverse action concerning the teaching certificate of the Respondent based on two counts of misconduct arising from the teacher/pupil relationship. The first count alleges that the Respondent had sexual intercourse with a seventh grade student on one or more occasions during the 1972 school year. The other alleges that during the 1978 school year, the Respondent kissed a female student on the lips on one or more occasion. The Petitioner herein was filed pursuant to directions of the State Commissioner of Education who, on May 18, 1979, found probable cause to justify disciplinary action under the provisions of Section 231.28, Florida Statutes. Respondent requested an administrative hearing by his answer to the Petition, dated June 20, 1979.
Findings Of Fact Respondent holds Florida Teaching Certificate No. 157255, Graduate, Rank II, valid through June 30, 1989, covering the areas of English elementary education, and junior college. He received a Maser's Degree in education from South Carolina State College in 1969, and obtained Florida teaching certification in August, 1969. At the time of the incidents alleged in the Petitioner, Respondent was employed as a teacher in the public schools of Orange County. (Testimony of Respondent, case pleadings) During the 1971-72 school year, Respondent was a sixth grade teacher at the Grand Avenue Elementary School, Orlando, Florida. At some undisclosed time subsequent to the end of the school year, an Information was filed against Respondent by the State Attorney, Ninth Judicial Circuit of Florida, as a result of allegations that he had engaged in sexual intercourse with one of his twelve- year-old female students in 1972. The case was thereafter nolle prossed by the State Attorney for insufficient evidence. (Testimony of Nagel, Bailey) The alleged victim, Harriett Moten, testified at the hearing that on a number of occasions during the period January or February through May, 1972, while a twelve-year-old student in Respondent's sixth grade class, Respondent had sexual intercourse with her in a storage area behind the stage of the school auditorium. She testified that such incidents occurred approximately twice a week at about 11:00 A.M. during a class period. At those times, Respondent allegedly sent her out of class on an errand, such as obtaining film, and then joined her in the backstage area. She stated that these encounters would consume approximately 20 or 25 minutes by the time she returned to class, and the Respondent came back to class a short time later. Although music classes were conducted in the auditorium practically every day of the school week during the times in question, Moten testified that she never saw the auditorium in use or heard music while she was behind the stage. She stated that she submitted to Respondent's advances because she was afraid of him. She further testified that on one occasion Respondent had brought another female student to the rear of the stage who observed his activities with her. The deposition testimony of another former student, Thomas Grier, was admitted in evidence wherein he testified that he had once observed Respondent lying on top of the student who supposedly had once witnessed Respondent and Moten behind the stage. This incident also allegedly took place behind the auditorium after a music class. He further testified that he had observed Respondent enter the classroom on a number of occasions with one or the other of the tow female students. The witness was deposed at Zephyrhills Corrections Institute, Zephyrhills, Florida, where he was incarcerated for possession of a firearm. It was his third conviction of a felony. Harriet Moten testified that she gave birth to a child in January 1973. Although her blood type and that of Respondent is 0, she was informed by an Assistant State Attorney that her child's blood type was A. She had been a failing student during her sixth grade year and had been paddled a number of times by Respondent for disciplinary reasons. She informed her mother of Respondent's actions in the summer of 1972 when she experienced irregular menstrual periods and was found to be pregnant after her mother took her to a physician. She had not informed her mother earlier concerning the matter because they did not get along with each other. She claimed that she had not had sexual relations with anyone other than Respondent. Respondent denied the allegations at the hearing and said that, although the student had been one of his "problem children" whom he had to discipline on occasion, she had appeared to like him and was the only student who had brought him a Christmas present in 1971. From the foregoing, it is considered that the improbable and uncorroborated testimony of Harriet Moten, when viewed against Respondent's unequivocal denial of the allegations, is insufficient upon which to predicate a finding that Respondent had sexual intercourse with the student, as alleged in the complaint. The deposition testimony of Grier which, in part, supports the allegations, is not deemed credible. (Testimony of Moten, Grier (deposition, Petitioner's Exhibit 3), Respondent, Petitioner's Exhibit 5, Respondent's Exhibits 1, 2, 5). During the 1978-79 school year, Respondent taught sixth grade at the Cypress Park Elementary School, Orlando, Florida. On November 20, 1978, one of his students, Patricia Foster, accompanied by another member of her class, Lola Ortega, reported to the school principal that in the preceding October, Respondent had kissed her in the classroom during a-recess period when no one else was present. Lola told the principal that she had opened the classroom door at the time and observed the incident. The principal reported the matter to a school board Area Administrator who interviewed the two girls on the following day. Patricia told this official that Respondent had kissed her twice on the lips during the recess period and that, after the first kiss, he had said he "didn't mean it." Patricia said that on the second occasion, she looked up and saw Lola open the door and then close it. She further stated that she had not told her parents of the incident because her stepfather would have become angry, and that she had not told the principal earlier because she didn't want to get Respondent in trouble. Lola told the Area Administrator that she had opened the door to the classroom and observed Respondent stoop over and kiss Patty on the lips, at which time she closed the door and returned to the playground. At the hearing, Patricia testified that Lola had opened the door when Respondent kissed her the first time. Lola testified that at the time she opened the classroom door, Respondent had his back toward her and that she only saw him bend over the desk. She conceded that she had not seen Respondent actually kiss Patricia and denied that she had told anyone that she had. However, upon further inquiry, she admitted telling the principal that she had seen Respondent kiss the student and could not explain why she had done so. Patricia later told one of her classmates at a "slumber party" about the incident. That girl, Michelle Cridelle, testified that she thought Patricia had told her Respondent had kissed her twice on different days. Respondent had disciplinary problems with Lola during the previous school year and at the beginning of the 1978-79 school year. Also, on a prior occasion, she and another female student had fabricated a letter purportedly written by a male student to them containing coarse language which she admitted was designed to get the boy in trouble when it was delivered to her father. In another instance, Patricia and Lola had been untruthful in telling Patricia's mother where they had been on one occasion. Lola had been a frequent disciplinary problem for the school principal who considered her to be a leader and catalyst in creating problems at school. Respondent testified that, on the day of the alleged kissing incident, another student was in the classroom with Patricia during the recess period, and that he had simply gone to her desk and colored some leaves on a box. He denied kissing her on this or any other occasion. The school principal is of the opinion that Respondent is a very truthful individual. It is considered that the improbable, contradictory, and uncorroborated testimony of Patricia concerning the alleged kissing incident, coupled with Respondent's denial of the same, is insufficient upon which to base a finding that Respondent committed the acts alleged in the Petition. (Testimony of Foster, Richardson, Ortega, Cridelle, Cossairt, Taylor, Brady, Respondent, Petitioner's Exhibit 1). Respondent was relieved of his duties as a classroom teacher by the Superintendent of Orange County Public Schools on November 28, 1978, and reassigned to an Assistant Superintendent's office to perform administrative duties pending investigation of the 1978 allegations by Petitioner. He had been supervised by the principal of the Cypress Park Elementary School for a period of six years. The principal testified that the other teachers respected him, but that he should not be working with children due to his abrasive personality with students. During the three year period 1976-78, Respondent's performance evaluations were uniformly "Satisfactory," except in those areas reflecting his relations with students and parents, and in his support of "state laws and county policies." It was noted in the 1977 and 1978 evaluations that improvement was needed in those areas. Narrative comments of the evaluations further indicated his lack of rapport with students and parents, lack of support of corporal punishment practices, and his ridicule of students. One fellow teacher at Cypress Park Elementary School submitted a letter to Petitioner in January, 1978, stating that Respondent had always conducted himself properly with students and parents on the occasions when she had observed him at the school and during school functions. (Testimony of Cossairt, Petitioner's Exhibit 2, Respondent's Exhibit 3, supplemented by Respondent's Exhibit 4).
Recommendation That the charges against Respondent Isadore Smith be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of February, 1980. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 Edward R. Kirkland, Esquire 126 East Jefferson Street Orlando, Florida 32801 Professional Practices Council 319 West Madison Street - Room 1 Tallahassee, Florida 32301
