The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(f),(g), and (j), Florida Statutes (2015), and Florida Administrative Code Rule 6A-10.081(3)(a) and (e), as alleged in the Amended Administrative Complaint. If it is found that Respondent has committed any of the statute or rule violations alleged, the penalty that should be imposed must also be determined.
Findings Of Fact Based on the demeanor and credibility of the witnesses, the documentary evidence admitted and the record as a whole, the following findings of fact are found: Respondent holds Florida Educator’s Certificate 823554, covering the area of physical education. His certificate is valid through June 30, 2016. At all times material to the allegations in the Amended Administrative Complaint, Respondent was employed as a physical education (P.E.) teacher at Oakleaf Junior High School (Oakleaf) in the Clay County School District (the District). Mr. Ford also served as a track and field coach in the District and was heavily involved in volunteer activities to encourage youth fitness. In 2008, the Education Practices Commission issued a final order which adopted a settlement stipulation with respect to a prior complaint against Respondent. The settlement stipulation “neither admitted nor denied” the factual allegations in the Administrative Complaint giving rise to the disciplinary proceeding in that case. The Scene Oakleaf is a junior high with sixth through eighth-grade students. During the 2012-2013 school year, there were six P.E. teachers who typically had classes of at least 40 students each class period. These classes made use of the baseball and softball fields, tennis and basketball courts, and the gymnasium for class time. All of the students shared what were described as small girls’ and boys’ locker rooms adjacent to the gymnasium. Students and teachers have approximately ten minutes at the end of each class period to get to their respective locker rooms, change clothes, and get ready to move to the next class period. Usually one male and one female P.E. teacher were assigned to open the gender-specific locker rooms. Until the locker rooms were opened and after students finished dressing, the students congregated in the P.E. building hallway. The space where students waited was cramped at best, and not adequate to accommodate the large numbers of students. During the 2012-2013 school year, students were expected to wait in the hallway near the double doors closest to the P.E. fields for the ringing of the class bell. Students typically stayed as close to the doorway as possible in order to ensure a quick exit. While students were supposed to sit against the wall, they often either stood near the double doors or sat with their legs stretched out into the aisle-way. Traversing the area could be a challenge under the best of circumstances. A typical day could be described as loosely-organized chaos. As described by Bonnie Lawrence, Oakleaf’s physical education department head, “it’s not that the kids are so bad; it’s just that you’ve got a large amount of students that are hot . . . they’re worked up. . . . [A] lot of them are very competitive, so they’re still bringing it into the hallway, and it just . . . is a problem and it still is a problem.” In the first week of April 2013, one of the students attending Oakleaf was a seventh grader named D.O.2/ D.O. was a relatively tall student, described as a big boy between 5’8” to 5’10”. D.O. received exceptional education services for emotional behavioral disorder (EBD). EBD students are placed in EBD special education classrooms because of emotional and/or medical issues that render them unusually disruptive and volatile in a traditional classroom setting. D.O. participated in regular P.E. classes and was assigned to Coach Rountree’s class. D.O. was a difficult student and had been removed from P.E. class the week before spring break because of behavioral issues. D.O. was easily agitated and unpredictable. When angry, he used a lot of profanity and walked very quickly. D.O. had at least three disciplinary referrals processed during the school year for his misbehavior. One P.E. teacher admitted that she had been verbally attacked by him and found him intimidating. Ms. Lawrence stated that while she had never seen D.O. attack another student, she had witnessed him hitting the walls with his fists. Because EBD students can be prone to frequent outbursts and sometimes violent behavior, they are often escorted around campus and directly monitored by a behavioral aide when the students go to lunch, travel to and from bus areas, or participate in any regular education classes. Jessica Strunz was the aide assigned to escort D.O. during the timeframe relevant to this proceeding. Petitioner relies on her testimony almost exclusively concerning what happened with respect to the incident alleged in the Amended Administrative Complaint. April 2, 2013, was the first school day after spring break. D.O. had been removed from P.E. for misbehavior the week before spring break, but on April 3, he was back in the gym. D.O. was assigned to Coach Rountree’s class. Coaches Ford and Rountree observed paint on D.O.’s shoes, consistent with some paint used in recent vandalism of cars in the area. They asked D.O. about the paint, and talked to him about making better decisions, and the consequences that flow from making poor choices. Coach Ford used his own vehicle as an example, and told D.O. if someone were to spraypaint his wife’s truck, there would be damages that would have to be paid, as an illustration of the consequences of bad decisions. He indicated that a perpetrator’s parents would be responsible for those damages as one of those consequences. Ms. Strunz was present during this discussion. The Incident On April 3, 2013, D.O. was again present for P.E. Ms. Strunz escorted D.O. to P.E. but soon after left the area to assist another aide, believing that D.O. was fine with Coach Rountree. Coach Rountree’s class was going to be playing frisbee on the baseball field. However, Coach Rountree would not allow D.O. to be paired with his partner of choice, because they had previously caused disruptions in the class. When Coach Rountree told him he would have to partner with someone else, D.O. became angry and started using profanity and questioning Coach Rountree’s authority. As a result, Coach Rountree told D.O. to take a seat in a chair that was on the baseball infield as a time-out. Instead, D.O. flung the back of the chair over, and Coach Rountree spoke to him in an attempt to calm him down. Eventually, D.O. sat in the chair and Coach Rountree went back to supervising the rest of his class. Sitting in the chair, however, did nothing to calm D.O. Instead, he became angrier, kicked the chair, and started yelling insults and profanity at the other students in the class. He was apparently trying to provoke a reaction from another student by making statements such as, “you’re gay, and your father’s gay,” in addition to the profanity. At some point, he got up and threw the chair down rather than sit on it. Coach Ford was in the area supervising his students, who were split between the basketball and tennis courts. He approached D.O. and told him that he thought D.O. was supposed be sitting in the chair. Eventually, D.O. sat back down, but continued to spew profanities directed at another student in his class. Ms. Strunz returned to the field at this point and found D.O. sitting in the time-out chair. As she put it, D.O. was angry at the world, upset, yelling, and cursing. Rather than approach him directly, Ms. Strunz stayed on the other side of the fence and tried to calm him down by talking to him, but D.O. ignored her. At hearing, Ms. Strunz did not seem overly concerned about the propriety of D.O.’s behavior, saying, “he just does that.” D.O.’s tirade continued, and he stood and threw the chair down the baseline from first base toward home plate. At that point, he left the infield to sit in the bleachers behind home plate. As he passed the gate near the dugout, he reached up and pulled Coach Rountree’s grade book from where it was wedged between the fence sections and threw it up into the air. D.O. then sat down but continued to curse and yell. Coach Ford came back over to speak to D.O., attempting to calm him down and talking to him about making better choices. He also called Coach Rountree on his radio about D.O. moving from the seat where Coach Rountree had directed him to sit. Coach Rountree came over to the area and spoke with both Coach Ford and Ms. Strunz, who told him that D.O. had stood up out of his seat, kicked the chair, and thrown Coach Rountree’s grade book. At this point, D.O. was sitting in the bleachers and for the moment was calmer, so Coach Rountree went back to the rest of the class, believing Ms. Strunz had the situation under control. Ford, likewise, went to direct his class to line up and go in the building. D.O.’s mood fluctuated between calm and anger. It was, at best, unpredictable. After Coach Rountree went back to the rest of his class, D.O. got up from his seat in the bleachers and started walking quickly to the doors of the P.E. building, with Ms. Strunz following behind.3/ D.O. was yelling, cursing, and saying how much he hated the school. Coach Ford followed him in in an attempt to calm him down, continuing to talk to him about the need to make better choices. D.O. was not interested. Instead, as he approached the building, D.O. told Coach Ford to “shut the f**k up,”4/ slammed his hand against the left side of the double doors, and started to swing open the door to the hallway. At this point, Coach Ford reached out and restrained D.O. from behind to prevent him from going into the hallway. Coach Ford put his right arm around D.O.’s chest and used his own left arm to secure D.O.’s left forearm to keep D.O. from swinging it, and pulled D.O. away from the door. D.O. attempted to pull away from Coach Ford, and Coach Ford had to jerk him up slightly so as to keep him from falling off balance and into the eroded area next to the sidewalk. The momentum of keeping both of them out of the eroded area propelled them over to a railing near the walkway, beside an adjacent portable. The entire maneuver by all accounts lasted a matter of seconds. Coach Ford then told D.O. he was going to release him and that D.O. needed to stay calm and stand next to the building. Coach Ford’s purpose in having D.O. stand next to the building was to minimize the interaction between D.O. and the other students in Coach Rountree’s class, who were approaching from the baseball field in order to enter the hallway. D.O. stood next to the building as instructed. D.O. was not injuring himself and was not attacking any other student before attempting to enter the building. He was, however, about to enter a crowded area full of students in an angry and agitated state soon after kicking and throwing a chair and throwing a teacher’s grade book, and while shouting profanities and what could be interpreted as derogatory comments toward other students. Shortly thereafter, Coach Rountree and his students caught up to Coach Ford, and Coach Rountree, Coach Ford, and D.O. stood at the side of the building while Ms. Strunz was standing at the railing by the walkway. Once Coach Rountree caught up to them, Ms. Strunz went inside to coordinate with another aide, and Coach Rountree directed his other students to go inside. When Coach Rountree approached, both Coach Ford and D.O. appeared to be fairly calm. However, as was the case earlier, D.O.’s mood fluctuated between extremely agitated to calm to agitated again, and he started saying he was going to sue the school. Coach Ford continued to try and calm him, but dismissed D.O.’s threat of litigation by saying something to the effect that D.O. did not know what teachers are allowed to do. Ms. Strunz returned and Coach Ford left the area to attend to his students. D.O.’s mood continued to fluctuate, and he made a statement to the effect of, “you’re all screwed, and this place is going down,” and that the school was in big trouble because he was going to sue the school. When Coach Rountree asked him what he meant, D.O. was not listening to him, but kept repeating that they were all screwed. At some point during this tirade, which lasted about five minutes, D.O. noticed that he had a small scrape on his elbow about the size of a nickel, with a small amount of blood. This observation upset him all over again, and he started walking quickly to the administrative offices, with Coach Rountree and Ms. Strunz following behind. D.O. made his way to Assistant Principal Bridget Payne’s office, with Coach Rountree and Ms. Strunz following behind. D.O. told her, “look at what one of your teachers did to me.” He proceeded to show her his arm and to tell her that Coach Ford had put him in a chokehold and threatened to put him in the hospital. Ms. Payne asked him to pull down his shirt, and he did so, showing that there was some redness below the Adam’s apple. Ms. Payne testified that the red area was about half an inch to three quarters of an inch wide, and that she could not see it until he pulled down his shirt. After D.O. finished telling his story to Ms. Payne, Ms. Strunz was asked to confirm it or say anything about it, and she confirmed D.O.’s story. The Aftermath Both Coach Rountree and Ms. Strunz were asked to write statements, and both did so. Only Ms. Strunz’s statement refers to a chokehold. Ms. Payne called D.O.’s mother and informed her of the incident, and D.O.’s mother, in turn, called the police. Ms. Payne then notified Coach Ford that the police were coming but did not talk to him about the incident. Ms. Payne also sent D.O. to Mary Blazek, the school nurse, who examined his arm and neck. She treated the arm with Bactine and a Band-Aid, which she described as “not major first- aid treatment.” Ms. Blazek also observed some redness on D.O.’s neck. She had been told that he was restrained around his neck so she was looking for redness. She did not inquire as to any other reasons that might have caused his neck to be red, and there was no evidence indicating that Ms. Blazek or anyone else observed scratches, welts, or bruising on his neck, or that the redness extended around to either side of his neck. Ms. Blazek filled out an incident report, but not until eight days after the incident when she was asked to do so. Oakleaf’s principal contacted Toni McCabe, the assistant superintendent for the District, and Ms. McCabe began an investigation into the incident. Coach Ford was suspended with pay on April 4, 2013, pending completion of the investigation. Ms. McCabe did not interview D.O. as part of her investigation and did not review his disciplinary referrals other than the one issued to him regarding his behavior the day of the incident. She only spoke to those staff members who were directly involved in the incident and could provide eyewitness testimony. Based upon her investigation, she recommended to the superintendent that Coach Ford be terminated, and although it is not clear when, Coach Ford eventually resigned. Ms. McCabe testified that when she spoke to Coach Ford, he stated that he had used a Safe Crisis Management (SCM) hold, and that a chokehold is not a SCM hold. SCM training is generally provided to administrators and those teachers working in special education. Coach Ford had taken SCM training but was not currently certified. P.E. teachers at Oakleaf had requested SCM training repeatedly, but it was not provided to them. Coach Ford denied stating that he used SCM in dealing with D.O., and denied using a chokehold. Tracey Butler is the Florida Education Association representative who attended both meetings Respondent had with Ms. McCabe regarding the incident with D.O. Ms. Ware, a District employee, took notes of the meetings, as did Ms. Butler. Ms. Butler did not recall Coach Ford ever telling Ms. McCabe that he used a SCM hold. The only mention of the term in her notes was one indicating Ms. McCabe asked if Coach Ford had SCM training. Her review of Ms. Ware’s notes indicated the same question and response, but no indication that Respondent stated he used a SCM hold. The undersigned finds that Coach Ford did not state to Ms. McCabe that he was using a SCM hold. The Criminal Proceedings As noted previously, the Clay County Sheriff’s Office also investigated the incident. The statements taken by Coach Rountree and Ms. Strunz were also provided to the Sheriff’s Office. On April 8, 2013, Coach Ford was arrested for child abuse/simple battery as a result of the incident. On May 6, 2013, he was officially charged with violating section 827.03(1)(b), Florida Statutes.5/ His case was docketed as Case No. 2013-CF-000686. On June 4, 2013, Respondent entered an agreement to go into a pretrial intervention program (PTI). Consistent with the requirements for entry into the program in the Fourth Judicial Circuit, he signed a document entitled “Plea of Guilty and Negotiated Sentence.” The State Attorney in the circuit required that in order to enter into a pretrial diversion program, defendants were required to sign a guilty plea agreement which would not be entered on the docket of the court. Upon successful completion of the requirements of the PTI, the State Attorney’s Office would dismiss the charges. However, if a defendant failed to complete the PTI requirements, the guilty plea would be filed and the defendant would be sentenced based on the guilty plea. The form that Respondent signed states in part: Specific Terms of Negotiated Sentence: My sentence has been negotiated in this case in that I will be: Adjudicated guilty Adjudication of guilt withheld And I will be sentenced to: (Please print) In the blank space provided, the following agreement is hand-written: Post-plea PTI: upon completion of anger management and no contact with the victim, D.O., the state attorney will dismiss charges. If unsuccessful, plea will be an open plea to the court. The entry into the PTI program was discussed in open court, but the evidence did not establish that the trial judge engaged in a traditional colloquy regarding the voluntary nature of the plea, and the document that Respondent signed was not docketed in the court record. On June 6, 2013, a Diversion Referral Notice was sent to the Clerk of Court by the Assistant State Attorney advising that the case was being referred to the Felony Pre-Trial Intervention Program, and that the State would file a final disposition at the time of successful completion. On July 19, 2015, the Director of the PTI program notified the Clerk of Courts that the case had been accepted into the PTI program. On October 10, 2013, the State Attorney’s Office filed a Diversionary Nolle Prosequi dismissing the charges. The Case Summary for Case No. 2013-CF-000686 indicates that the following documents were filed on the criminal docket: a notice to appear; a notice of cash bond; the affidavit for arrest warrant; warrant returned served; arrest and booking report; notice of appearance, waiver of arraignment, not guilty plea and demand for trial; information; state’s discovery exhibit and demand for reciprocal discovery; victim information form; diversionary program referral notice; diversionary program referral (accepted); cash bond release; and diversionary nolle prosequi. The document entitled Plea of Guilty and Negotiated Sentence was not filed on the docket in the criminal proceedings. The Nature of the Restraint Throughout these proceedings, Petitioner has referred to the restraint of D.O. as a chokehold. The unfortunate use of the term originated with D.O.’s comments to Ms. Payne. D.O. did not testify in this case. The only witnesses to the actual incident that testified in these proceedings are Coach Rountree, Coach Ford, and Ms. Strunz. Coach Rountree candidly stated that he did not see the entire incident. He demonstrated what he observed of the interaction between Coach Ford and D.O. His demonstration indicates that Coach Ford had his arm across D.O.’s upper chest. Jessica Strunz was described as being somewhere between three feet and 30 feet away from Coach Ford and D.O. Given the testimony regarding D.O.’s size and pace as he walked toward the gym, the most plausible conclusion is that she was somewhere between 10 and 15 feet behind him.6/ It is Ms. Strunz’s testimony that places Ford’s arm around D.O.’s neck. That testimony is not credited. First, Ms. Strunz is shorter than D.O. and possibly shorter than Coach Ford. If she was behind Coach Ford, who was behind D.O. when he started to go through the door of the gym, it would be difficult, if not impossible, for her to see where Coach Ford’s arm was located in front of D.O. Second, the height difference between Coach Ford and D.O. also weighs in favor of a restraint across the chest, as both Coach Ford and Coach Rountree demonstrated. Third, the redness on D.O.’s neck was reported to be just above his collarbone at the front of his neck. He had to pull down his shirt in order for the red mark to be seen. Had Coach Ford had D.O.’s neck in the crook of his arm, as Ms. Strunz testified, it seems that any redness would have extended to at least one side of his neck, and no one testified that was the case. Moreover, D.O. had been outside on a baseball field on a warm day. He was angry, had been yelling, had kicked a chair, and had thrown a chair in the 30 minutes leading up to this event. There is not clear and convincing evidence that the redness on his neck was caused by the restraint at all. The same can be said for the small scrape on his elbow. The more persuasive testimony indicated, and it is found, that Coach Ford restrained D.O. by placing his arm across the upper chest area. He did so not because D.O. had hurt himself or anyone else at that point, but based upon his concern that should this demonstrably angry young man enter the crowded hallway, the normally chaotic atmosphere with close to 100 waiting students would turn into a dangerous one with a real possibility of injury to D.O., to other students in the hallway, or both. Reasonable Use of Force The District has adopted a definition of the reasonable use of force for teachers, as required by section 1006.11, Florida Statutes. The District’s policy states the following: CLAY COUNTY SCHOOL BOARD POLICY 6GX-10-2.32 2.32 USE OF REASONABLE FORCE As provided by Florida Statute 1006.11, this policy establishes the standards for the use of reasonable force by Clay County school personnel. Such use shall be for the purpose of establishing and maintaining a safe and orderly environment and shall provide guidance to school personnel in dealing with disruptions to that environment. Definition of Terms: The following definitions apply to terms used in this policy: Learning Environment: All events and activities authorized by the School Board requiring an employee to be on duty in/out of the classroom setting. Orderly: Devoid of disruption or violence; peaceful. An orderly environment is one in which learning can take place. Disruption: An interruption of or impediment to the usual course of harmony. Reasonable Force: Appropriate professional conduct including reasonable force as necessary to maintain a safe and orderly learning environment. Safe: Preventing injury or loss of life, a safe environment is one in which persons are protected from injury or threat of injury. School personnel: Employee/individual hired by the School Board. Conditions that may require use of reasonable force: While use of physical force may be needed at times to ensure a safe and orderly learning environment, alternatives to such force should be attempted, time permitting. The use of reasonable force is permitted to protect students from: conditions harmful to learning; conditions harmful to students’ mental health; conditions harmful to students’ physical health; conditions harmful to safety; other conditions which, in the judgment of on-site employee(s), threaten the safety and welfare of students or adults. Guidelines for the determination of “reasonableness” of force: When school personnel employ physical force in order to maintain or restore safety and/or order to a situation, determinants as to the reasonableness of force shall include, but not be limited to: severity of the offense(s); size and physical condition of participant(s); patterns of behavior; potential danger; physical and other; availability of assistance; other circumstances surrounding the offense; and actions taken prior to use of physical force. Other factors: Reasonable force cannot be excessive or cruel or unusual in nature. Physical force being used should cease upon the restoration of a safe and orderly environment. Nothing in this policy should be construed as addressing Clay County School Board polic(ies) on corporal punishment. Use of these guidelines shall provide guidance to school personnel in receiving the limitations on liability specified by Florida Statutes. (Emphasis added). There was testimony that under Clay County’s policy on reasonable force, restraint should be used only in the most extreme cases, such as when a student is going to seriously injure himself or someone else. None of those espousing this view indicated that they had ever had 40 students on a P.E. field or had ever taught P.E. Ms. Payne and Ms. Zimmerman both acknowledged that they had never done so. While such an example is certainly covered by the policy, the plain language of the policy is not that restrictive. Coach Ford testified, and maintained consistently throughout the various inquiries related to this incident, that his concern was for the safety of both D.O. and the other students in the hallway, should D.O. enter this crowded area at the level of crisis he was exhibiting in the period immediately prior to his approach to the door. Every P.E. instructor who testified emphasized that student safety is their primary concern. Here, Coach Ford was concerned about anyone getting run over or injured given D.O.’s clearly agitated state. This concern fits squarely within the policy’s directive to “maintain a safe and orderly learning environment,” including an environment which is “devoid of disruption or violence” and where “persons are protected from injury or threat of injury.”7/ It is found that Coach Ford’s actions fell within the confines of, and was not prohibited by, the District’s policy on the use of reasonable force. The Alleged Threat Ms. Strunz testified that Coach Ford threatened D.O. almost immediately prior to the restraint, saying that if he found paint on his car, he would come look for D.O. and would put him in the hospital; and that D.O. did not know what he was capable of. Coach Ford adamantly denied this allegation. These alleged threats were supposedly made just moments after, according to Ms. Strunz, Coach Ford was telling D.O. he needed to make better choices and was trying to calm him down. That anyone, including Coach Ford, would make such a statement immediately after working repeatedly to calm D.O. and after talking to him about better choices, simply strains credulity. It was not clear where Ms. Strunz was when Coach Ford told D.O. that D.O. was not aware what teachers were allowed to do. It may be that she misinterpreted this statement as a threat. In any event, there is not clear and convincing evidence that Coach Ford made any threat to D.O. Diminished Effectiveness Petitioner presented evidence of news accounts of the incident, in support of the allegation that Respondent’s effectiveness had been reduced, along with the opinion of Ms. McCabe (who believed that Respondent had used a chokehold) to that effect. On the other hand, Bonny Lawrence, the department head for the P.E. department at Oakleaf, testified that she would “absolutely not” have a problem with Coach Ford coming back on her staff. Janet Rowe, the athletic director and a P.E. teacher at Oakleaf, considers Ford to be a highly-effective P.E. coach. Edward “Smitty” Huffman, who has taught physical education for most of his 20 years in education, considers Coach Ford to be one of the better teachers he has ever known. It is found that Petitioner did not establish by clear and convincing evidence that Respondent’s effectiveness as a teacher has been reduced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 28th day of September, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 28th day of September, 2015.
The Issue Whether the Respondent’s conduct of December 10, 11, and 12, 1996, on the Rosenwald Exceptional Education Center campus constitutes insubordination, conduct unbecoming a school board employee, and just cause for termination/discipline.
Findings Of Fact The Respondent, James Byrd, is employed by the Petitioner, Seminole County School Board, as an instructional assistant at Rosenwald Exceptional Education Center. The employment relationship between the school board and the Respondent is subject to the terms and conditions of collective bargaining agreement between the school board and the Seminole Educational Clerical Association (SECA), for the period July 1, 1995-June 30, 1998, as amended August 14, 1996. The applicable collective bargaining agreement does not require progressive discipline as a predicate to termination. Respondent had been employed by Petitioner since August 25, 1991. There were no incidents of discipline involving Petitioner prior to his arrival at Rosenwald. Respondent received satisfactory ratings in his performance evaluations during his employment with the Petitioner, including his current supervising teacher, Annette Hill. On September 30, 1996, Respondent had engaged in a dispute with another employee, LaCeina Walker, in the presence of a student. Respondent also engaged in inappropriate conduct regarding John Wyatt, a teacher at Rosenwald, relating to the incident regarding Respondent and Walker on September 30, 1996. At a meeting held by Dr. Michael Kahn (Kahn) with Respondent to discuss the incident of September 30, 1996, the Respondent became quite agitated and aggressive. Respondent accused Kahn of being racially unfair regarding the letter of reprimand. Kahn is the administrator in charge of the Rosenwald Exceptional Education Center. Respondent received a Letter of Concern for conduct relating to the September 30, 1996, incident from Kahn. The Letter contained a directive not to engage in verbal disputes with employees in the presence of students and that he was to make an effort to get along with other staff members. Walker was also given a similar letter. On December 10, 1996, Respondent received a two-day suspension for an incident involving Margie Robinson, which was a violation of the September 30, 1996, Letter and directive. The two-day suspension did not require school board action. The incident underlying the two-day suspension involved a dispute between Robinson and Respondent concerning a student’s point sheet. As a part of Rosenwald’s behavior management program, students earn points for certain positive behavior. The points are then used to earn rewards. Robinson thought that the Respondent had given a student points when they had not been earned. Upon meeting with the two employees, Robinson and the Respondent, Kahn concluded that the dispute was the result of a misunderstanding, primarily on the part of Respondent. Kahn resolved the misunderstanding and sent Robinson and Respondent on their way. After leaving Kahn’s office, Respondent became verbally abusive of Robinson. Respondent’s verbal confrontation of Robinson was a direct violation of the September 30th directive. On December 12, 1996, when Kahn attempted to discuss the incident concerning Robinson with Respondent, Respondent came to Kahn’s office. He refused to discuss the matter and then, without permission to leave, exited Kahn’s office and went to his classroom. After Respondent left Kahn’s office, Kahn followed Respondent to his classroom in an attempt to deliver the Letter of Suspension. Respondent refused to respond to Kahn’s statement, and Kahn then left the letter on Respondent’s desk in front of Respondent. Kahn then left the room. Respondent has engaged in disrespectful or confrontational conduct with other Rosenwald employees after joining the Rosenwald staff and before December 13, 1996. Respondent’s conduct on December 11 and 12, 1996, was insubordinate and conduct unbecoming a school board employee.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent’s action on the Rosenwald Exceptional Education Center on December 10, 11, and 12, 1996, constitutes insubordination and conduct unbecoming a school board employee, and that Respondent’s conduct constitutes just cause for termination. RECOMMENDED this 4th day of September, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1997. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County Public School Educational Support Center 400 East Lake Boulevard Sanford, Florida 32773 Ronald G. Meyer, Esquire Anthony D. Demma, Esquire Meyer and Brooks Post Office Box 1547 Tallahassee, Florida 32302 Dr. Paul J. Hagerty, Superintendent Seminole County School Board Educational Support Center 400 East Lake Boulevard Sanford, Florida 32773
The Issue Whether Respondent should be transferred to Jan Mann Opportunity School.
Findings Of Fact Respondent, Antwan Clark (Antwan), attended the sixth and seventh grades at Carol City Middle School during the academic years 1991-1992, and 1992-1993, respectively. On October 10, 1991, Antwan was suspended outdoors for three days for fighting. On October 22, 1991, Antwan was caught running in the school hallways by the assistant principal Don DeLucas. When Antwan was told to stop, he ignored the verbal request. Antwan was given a detention for his behavior. On November 5, 1991, Antwan was referred by his sixth period teacher to Assistant Principal DeLucas for being tardy to class, refusing to sign for detention, and walking out of class without a pass. Antwan was issued a reprimand/warning for his behavior and a conference was held with school administrators and his parents. After school was dismissed on March 10, 1992, the school principal Mary Henry walked toward the Carol City Elementary School while watching the students leave the middle school grounds. Antwan, across the street in a gas station parking lot, threw rocks across the street in the direction of Ms. Henry. Police Officer Christopher Burgain observed Antwan tossing the rocks. When Antwan saw the police officer, he moved to another group of students in the parking lot. Officer Burgain got Antwan and took him to Ms. Henry who told him to take Antwan back to the school. Ms. Henry called Antwan's parents. Antwan was suspended outdoors for two days for this incident. On March 16, 1992, Antwan's teacher, Ms. Viamonte, referred him to Assistant Principal DeLucas for getting out of his seat, coming to class unprepared, responding to the teacher when she asked for his daily progress report that she "was wasting his time" and threatening to tear up the daily progress report. Antwan was given a reprimand/warning and a conference was held with his parents. On April 16, 1992, Antwan cut his sixth period and was given a three- day indoor suspension. Another conference was held with his parents. On May 11, 1992, Antwan was caught gambling at a nearby senior high school. The assistant principal for the senior high school returned Antwan to Ms. Henry at the middle school. Antwan was suspended outdoors for three days. On July 22, 1992, Antwan was referred to Assistant Principal John Strachan for disciplinary action for telling a teacher that he didn't have to do what the teacher told him to do. Antwan was suspended outdoors for one day. During the 1992-1993 school year, Antwan was placed in the Student At Risk Program (SARP), which is a program designed for students who are at risk of dropping out of school. Students participating in SARP are given more attention than the students in the mainstream population. A counselor is assigned to the SARP program. On September 21, 1992, Ms. McGraw, Antwan's fifth period teacher referred Antwan to Assistant Principal Strachan for refusing to do his work, yelling at her about a pass to the office after she told him he could not have a pass, and refusing to give her a working telephone number for his parents so that she could call them. Antwan was given an indoor suspension until school administrators could meet with his parents. Antwan failed to stay in his class area during physical education class. His teacher, Janet Evans, would have to stop her class and call Antwan back into the class area. On September 24, 1992, Antwan left class without permission, and Ms. Evans found him and some other students outside the girls' locker room gambling by flipping coins. For these actions he was given a one- day indoor suspension. On October 29, 1992, Antwan was referred to Assistant Principal Strachan for excessive tardiness to school. Antwan refused direction by Mr. Strachan and was verbal and disruptive about being given a suspension. Antwan's mother was called to come and pick up him. Antwan was given a three-day outdoor suspension. On November 20, 1992, Teacher Golditch referred Antwan to the principal for shouting across the room to the extent that the teacher had to stop the class lesson and change what the class was doing. When Antwan got to the principal's office he got out of his seat, made noises, and went to the staff's counter when he was not supposed to do so. Antwan was given a one-day outdoor suspension for these actions. On January 6, 1993, Antwan and four other students were horseplaying in the cafeteria, resulting in the breaking of a window. He received a three- day indoor suspension for this behavior. On February 11, 1993, Antwan was walking around in Ms. Schrager's class and would not take his seat even though Ms. Schrager repeatedly asked him to do so. Antwan was distracting other students in the class, and Ms. Schrager had to stop the class to correct Antwan. Ms. Schrager referred the matter to Assistant Principal Strachan. A security officer was required to remove Antwan from the classroom. When asked by Mr. Strachan why he would not take his seat when asked by Ms. Schrager, Antwan responded that he wanted to sit where he wanted to sit. For this incident, Antwan received a five-day indoor suspension. Cheryl Johnson, Antwan's math teacher, had witnessed incidents in Ms. Schrager's class when Antwan would get out of his seat, walk around the classroom, and talk to other students, thereby disrupting Ms. Schrager's class. Ms. Johnson also had problems with Antwan in her classroom. Antwan would bring his drumsticks to class and tap on his desk. He was tardy to class, failed to do his homework assignments and participated very little in class. On March 8, 1993, Antwan and other students were throwing books at each other in Ms. Schrager's classroom during class. Ms. Schrager referred the incident to Mr. Strachan, who talked with Antwan. Antwan told Mr. Strachan that a student had hit him so he threw several books in retaliation. Other students were also written up for this incident by Ms. Schrager. Antwan received a five- day outdoor suspension for this episode. On March 23, 1993, Ms. Kramer, Antwan's language arts teacher, referred him to Mr. Strachan for disciplinary action for the following behavior: walking around the classroom, talking to other students, refusing to take his seat when asked to do so by his teacher, telling his teacher he didn't have to do what she was telling him to do, and rolling his eyes while continuing to move around. He received a detention. On April 21, 1993, Ms. Schrager observed Antwan showing his friend an object which resembled the outline of a gun. She asked Antwan to come talk to her. He began to walk toward her and then walked to the other side of the room. She called a security guard to come into the classroom but they were unable to find the object. Antwan was given a ten-day outdoor suspension which was reduced to a six-day suspension after school administrators talked with Antwan's parents. On May 7, 1993, Antwan was in the hallway and was fifteen minutes late for class. Mr. Strachan saw him and told Antwan to come to him. Antwan ran away from Mr. Strachan. When Mr. Strachan caught up with him, Antwan wanted to know what he had done wrong. Antwan received two detentions for the incident. On May 13, 1993, Antwan chased a female student into Ms. Arlene Shapiro's classroom. He grabbed the front of the girl's blouse trying to get a beeper which she had underneath her blouse. The girl called for help. Antwan was not Ms. Shapiro's student and was not supposed to be in her classroom. Ms. Shapiro told Antwan to let the girl go and he replied, "No. Make me." She put her hand on his back to guide him out of the classroom, and he told her not to touch him or he would hit her. She took her hand away. He punched her on her arm and then ran down the hall. Ms. Shapiro referred the matter to Assistant Principal DeLucas. Mr. DeLucas questioned Antwan about the incident and Antwan admitted hitting the teacher. Antwan received a ten-day outdoor suspension. Antwan was not doing well academically at Carol City Middle School. His report card for the school year ending June, 1993, showed final grades of four "F's" and three "D's." While at Carol City Middle School, Antwan received numerous group and individual counseling sessions with guidance counselors. Additionally, Ms. Henry, the principal, took Antwan "under her wing" and tried to counsel him. School administrators met with Antwan and his parents to discuss the problems that Antwan was having at school. However, these efforts to correct Antwan's disruptive behavior were unsuccessful. Additionally, as Antwan's disruptive behavior continued to escalate, resulting in more frequent conferences with his parents, Mr. and Mrs. Clark's attitude seemed to change from conciliatory to hostile and defensive. Antwan was reassigned to Jan Mann Opportunity School during the summer of 1993. The classes are smaller than the traditional school class. There are counselors and a full-time psychologist on staff. The focus at Jan Mann is to try build self-esteem, teach conflict resolution, develop social skills, and correct past behavior problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered affirming the assignment of Antwan J. Clark to the Jan Mann Opportunity School. DONE AND ENTERED this 18th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5483 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 3: The first two sentences are accepted in substance. The first part of the third sentence stating that Mr. Strachan personally removed Antwan from the classroom from five to ten times is rejected as not supported by the greater weight of the evidence. The remainder of the sentence is accepted in substance. Paragraph 4: Accepted in substance. Paragraph 5: Accepted in substance. Paragraph 6: The first three sentences and the first half of the fourth sentence are rejected as subordinate to the facts actually found. The second half of the fourth sentence and the last two sentences are accepted in substance. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: The first sentence is rejected as not supported by the greater weight of the evidence. Ms. Schrager saw an object which resembled a cap gun. The second sentence is rejected as not supported by the greater weight of the evidence. The first part of the third sentence is accepted in substance. The second part of the third sentence is rejected as constituting argument. The last sentence is accepted. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 12: The first sentence is rejected as constituting argument. The remainder of the paragraph is accepted in substance. Paragraph 13: The first sentence is rejected as constituting argument except the fact that Antwan threw rocks at Ms. Henry is accepted. The remainder of the paragraph is accepted in substance. Paragraphs 14-15: Accepted in substance. Paragraph 16: The first three sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 17-19: Accepted in substance. Paragraph 18: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts actually found. Paragraph 21: The two sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as constituting argument. Paragraph 5: Accepted in substance except to the extent that gambling occurred on only one occasion. Paragraph 6: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 7: The first two sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance. Paragraph 8: Rejected as constituting argument. Paragraph 9: Rejected as not supported by the greater weight of the evidence. Respondent's Exhibit 1 shows numerous counseling sessions between Antwan and his counselor and at least one conference between Antwan's parents and a counselor. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as not supported by competent substantial evidence. Paragraphs 12-14: Rejected as subordinate to the facts actually found. Paragraph 15: The first sentence is rejected as not supported by the greater weight of the evidence. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. I find that the parents' testimony is not credible. Paragraph 16: Rejected as not supported by the greater weight of the evidence. Paragraphs 17-19: Rejected as constituting argument. Paragraph 20: Rejected as irrelevant to this proceeding. Paragraph 21: Rejected as not supported by the greater weight of the evidence. Paragraph 22: Rejected as constituting argument. Paragraph 23: The first sentence is accepted in substance as it relates to early conferences with the parents and school officials. The remainder of the paragraph is rejected as constituting argument. COPIES FURNISHED: Anne G. Telasco, Esquire First Nationwide Building 633 NE 167th Street, Suite 304 North Miami Beach, Florida 33162 Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 3211 Ponce De Leon Blvd., Suite 210 Miami, Florida 33134 Mr. Octavio J. Visiedo 1450 Northeast 2nd Avenue, #403 Miami, Florida 33312-1308 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated sections 1012.795(1)(g) and 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(2)(a)1. and 6A-10.081(2)(c)1., as alleged in the Administrative Complaint; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Based on the evidence, testimony, and stipulated facts, the following Findings of Fact are made. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is then responsible for filing a formal complaint and prosecuting the complaint pursuant to chapter 120, if the educator disputes the allegations in the complaint. Respondent holds Florida Educator Certificate No. 834897, covering the areas of elementary education, English for Speakers of Other Languages (“ESOL”), and varying exceptionalities, which is valid through June 30, 2023. At the time of the allegations in the Administrative Complaint, Respondent was employed as an exceptional student education (“ESE”) teacher at Wyomina Park Elementary School (“WPES”) in the Marion County School District (“MCSD”). Ms. Miller has served as an elementary education teacher since the 2000-01 school year. Thus, she has a 20-year career with MCSD. From 2008 to 2018, Respondent taught third, fourth, and fifth grades at Reddick Collier Elementary (“Reddick Collier”’). Since she holds certification in ESE, she also taught ESE inclusion students in her general education classrooms. However, she has never taught a classroom of only ESE students. In 2018, Respondent’s value-added model (commonly referred to as VAM) scores rendered her ineligible to continue teaching at Reddick Collier because it was one of the District’s lowest performing schools. As a result, she was involuntarily transferred to WPES. Ms. Baxley testified that Respondent was initially assigned to teach students with academic issues, not behavioral issues. The initial assignment was consistent with her experience and previous work with ESE inclusion students. Respondent had maintained certification in ESE so that she could better serve academically low-performing ESE students in a general education inclusion environment. While Respondent had training in an inclusion environment, she did not have training or certification in Treatment and Education of Autistic and Communication Handicapped Children (“TEACCH”) or Crisis Prevention Intervention de-escalation techniques for use with students with behavioral issues. Ms. Baxley believed that Respondent had been trained to work with children with behavioral issues. After the initial assignment, students were reassigned between Ms. Miller and Patricia Poag. Respondent became responsible for only students with behavioral issues. Some of the students assigned to Respondent had extensive behavioral issues to the extent they required medication treatment. Respondent’s new assignment was a kindergarten through second grade self-contained ESE class of 12 to 13 students. Generally, a self- contained ESE classroom is a group environment with students who have special needs. Respondent’s students required increased supervision, structure, visuals, and very specific direct instruction. Respondent, Ms. Davis, and Ms. Poag testified that the classroom assignment was very “challenging, overwhelming, and distressing.” The new classroom structure included six or seven more students than previously assigned. Respondent had one paraprofessional to assist with supervision of the students. Respondent requested additional staff support, but never received it. In addition to learning to navigate the struggles with the student’s behavioral issues, Respondent was struggling with paperwork. Respondent made the effort to get help with completing necessary documents and learning how to complete IEP’s and behavior plans. She had no experience in completing these documents, or in working with “severe maladaptive behaviors” before being assigned to WPES. Allegations Involving Classroom Management As an ESE instructor, Ms. Miller’s primary responsibility was to ensure compliance with services or accommodations required for ESE students assigned to her classroom. Gina Gazzaniga is the MCSD ESE specialist. Her primary responsibility is to ensure compliance with services/accommodations required for all ESE students. Ms. Gazzaniga visited Respondent’s classroom. While in Respondent’s classroom, Ms. Gazzaniga observed students run on tables, throw items, and elope from the classroom unsupervised. Ms. Gazzaniga testified that while students were engaged in this conduct, Respondent did not intervene. Ms. Gazzaniga also testified that when students eloped from the classroom, they would typically go to the Guidance office or the Dean’s office. Ms. Gazzaniga had the Behavior Team (behavior tech, behavior specialist and analyst, and school academic coaches) assist with structure and behavior/classroom management strategies in Respondent’s classroom. The team implemented procedures to help prevent students from eloping. However, Respondent would change the practices the behavior team implemented. Respondent testified that some of the practices put into place were not effective. For example, when tables were lowered, the students increased their jumping from table to table. In addition, the assistance button was not within the reach of the teachers in the classroom. Ms. Gazzaniga’s overall assessment was that she saw “limited improvement, or refusal to follow taught strategies.” Other members of the WPES administration expressed concerns about Respondent’s classroom management. While visiting Respondent’s classroom, Ms. Baxley, along with Kendra Hamby, saw student W.H. pulling the hair of M.D. W.H., a male student, dragged M.D., a female student, by her hair as she screamed. Ms. Baxley testified that she heard Respondent say “stop.” Ms. Baxley then approached the students and removed W.H.’s hand from M.D. so that he would “stop pulling M.D. around like a caveman on the floor.” Ms. Baxley testified that Respondent did not intervene to help M.D., but rather “she just stood there.” Ms. Hamby testified that “Ms. Miller was standing there, not intervening, not saying or doing anything. So that was extremely concerning.” On another occasion, while in Respondent’s classroom, Ms. Baxley saw students hitting each other with containers. Ms. Baxley testified that Respondent did nothing to intervene. Respondent testified that she approached the students and instructed them to return the containers. Jennifer Foster was a paraprofessional assigned to Respondent’s classroom. On one occasion two students were running around the room, fighting, and chasing each other. Ms. Foster tried to “get in the middle to separate them and they both ran behind the big solid wooden table.” When Ms. Foster went in front of the table in an effort to separate them, the two students picked up the table and tossed it over on the side. Ms. Foster was able to move one foot out of the way, but the table landed on her other foot. Ms. Foster testified “I eventually got up and hobbled over to push the panic button and asked for assistance.” Her foot was injured as a result of the incident involving the students. Ms. Foster indicated that Respondent did not assist her. Allegations Involving Failure to Supervise Students In addition to concerns about classroom management, the Administrative Complaint alleged Respondent failed to supervise students. One of those incidents involved K.C. K.C. was one of Respondent’s kindergarten students. He is an ESE student with a medical condition. On September 6, 2018, a teacher informed Assistant Principal Troy Sanford that Respondent’s student, K.C., was found standing at the exit door of a hallway that opens to the playground. Mr. Sanford saw K.C. approaching the exit doors to the playground alone at 11:24 a.m. K.C. stood there alone until 11:29 a.m., at which time the teacher spoke to K.C. After consulting with another teacher, Ms. Hawthorne, about where K.C. belonged, the teacher took him to Respondent’s classroom. Respondent denied allowing K.C. to stand alone in the hallway for several minutes. She testified that while standing at her classroom door, awaiting the arrival of students coming from the restroom, K.C. began to walk from Ms. Davis toward her. This was customary for her students if children needed additional time in the restroom. As K.C. got close to Respondent, L.G.R. began climbing on the top shelf of a bookcase in the classroom. Since their routine was for the students to come into the classroom, she assumed K.C. would follow the customary practice and enter the classroom. Respondent testified that she made a judgment call to turn her attention to L.G.R. to ensure his safety and prevent harm to him. Instead of entering the classroom, K.C. walked down the hallway. Based on the totality of the circumstances, Respondent’s actions were reasonable. A second incident involved a different student. Two first-grade teachers, Nancy P. Neal and Ireina Hawthorne, were outside on the playground with their students. When recess was over, they were gathering their students and doing a head count to go back inside to their classrooms when they noticed there was “an extra child” in line. The student did not belong in their classroom. The student was nonverbal so they could not determine to which classroom he belonged. Ms. Hawthorne assumed that he belonged in Respondent’s class and took the student to Respondent’s classroom. When Ms. Hawthorne took the student to Respondent’s classroom, Respondent “ushered him into the classroom.” Respondent testified that she was in the hallway, counting her students before going to her classroom. She explained that she had a substitute paraprofessional, Ms. Foster, who did not know all of her students. In addition, this was the first time she had Ms. Foster serve as a substitute. To help remedy the issue regarding the student left outside, Respondent asked her assigned paraprofessional not to take breaks or lunch during recess. Whether Respondent was in her classroom (as stated by Ms. Hawthorne) or in the hallway, the student was left outside without her supervision, which could be harmful to the student’s safety. A third incident related to supervision involved student L.G.R. On October 19, 2019, L.G.R. entered Ms. Gazzaniga’s office and hid under a table. The evidence offered at hearing demonstrated that when the student eloped from the classroom, Respondent immediately followed the student into the guidance office. However, she did not see the L.G.R., so she continued to search for him. A minute or so later, Ms. Gazzaniga saw Respondent walk down the hallway towards the main office. Respondent later learned the student was in the guidance office at the time she initially searched that location. However, Ms. Gazzaniga did not alert Respondent that L.G.R. was in her office. Ms. Gazzaniga testified that she “kept an eye on him while he was there.” After a short time, Ms. Gazzaniga went over to L.G.R. and spoke to him. He came from under the table and went to the doorway of the office. At the same time, Respondent was walking back down the hallway and saw L.G.R. and took him back to her classroom. The credible evidence demonstrates that Respondent made reasonable efforts to locate the student by searching for him immediately after his elopement from the room. DP-3 Assessment On September 10, 2018, Ms. Scott gave Respondent a Developmental Profile Third Edition (“DP-3”) to complete for student A.M.S. Students who are developmentally delayed must have a DP-3 completed for re-evaluation to determine what ESE services need to be continued. A DP-3 is an assessment tool used to evaluate nonverbal or low achieving students that have not reached the cognitive level to take an IQ test. MCSD uses the DP-3 to assess the student’s level of achievement. The DP-3 assesses five areas of development, including the child’s cognitive functioning, physical development, communication skills, social, emotional, and adaptive skills. The assessment is completed by completing a series of questions on whether a student can or cannot perform a particular task. Respondent returned the DP-3 to Ms. Scott on September 25, 2018. Respondent circled items indicating a “yes” response. During the hearing, however, Respondent acknowledged the student would not be capable of performing the tasks. In addition, Ms. Scott did not believe A.M.S. could perform the skills for which Respondent answered yes. Based on the evidence offered at hearing, some of the responses Respondent provided on the DP-3 were inaccurate. Performance Assessments Throughout her career, Respondent had been assessed as progressing or effective related to instructional practice as an educator. For the 2018 informal classroom teacher instructional assessment performed by Ms. Baxley, Ms. Cino, and Mr. Sanford, Ms. Miller was assessed as unsatisfactory in multiple areas.1 However, in the areas of criticism, it was also noted that Ms. Miller was engaged in instruction of students. Interestingly, she was criticized for a child wandering to her desk, and then, criticized for leaving the group of students she was working with to redirect the wandering student. In another instance, the observers were critical of a Positive Behavioral Interventions Support plan but Ms. Miller was never trained in the area of behavioral management. For the 2019 informal classroom teacher evaluation, Ms. Miller was assessed effective in each category, including areas where she was assessed unsatisfactory in 2018. Disciplinary Action at WPES For the first time in her career, Respondent received disciplinary action while working at WPES. On or about September 10, 2018, Respondent was issued an oral reprimand for purported failure to supervise the students assigned to her. On or about September 26, 2018, Respondent was issued a written reprimand for misconduct for purported falsification of documents. On or about October 26, 2018, Respondent was issued a written reprimand for alleged failure to supervise a student assigned to her. On or about November 26, 2018, Respondent was issued Step One progressive discipline for substandard performance due to behavioral concerns in her classroom and failure to report grades. On or about December 11, 2018, Respondent was issued a Step Two verbal reprimand regarding substandard performance. 1 In 2018, Ms. Miller was assessed unsatisfactory in the following areas: 2b. establishing a culture for learning, managing student behavior; 3b. using questioning and discussion techniques; and 3c. engaging students in learning. On or about December 18, 2018, Respondent was issued a Step Three progressive discipline written reprimand regarding substandard performance. Respondent’s educator certificate has no prior discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that: Respondent violated the statues and rules as referenced above; Respondent be placed on probation for a period of two years, with conditions to be determined by the Education Practices Commission. DONE AND ENTERED this 31st day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2021. Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Lisa M. Forbess Interim Executive Director Education Practices Commission 325 West Gaines Street, Room 316 Tallahassee, Florida 32399 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues to be resolved in this proceeding concern whether the Respondent's teaching certificate should be subjected to sanctions based upon whether he engaged in personal conduct that seriously reduces effectiveness as a teacher; whether he violated the principles of professional conduct of the education profession; whether he intentionally exposed a student to unnecessary embarrassment or disparagement; and whether he failed to take reasonable efforts to protect the student from conditions harmful to learning and to the student's mental health or physical safety.
Findings Of Fact The Respondent holds Florida's Educator Certificate No. 533651, certifying him in the area of music. It is valid through June 3, 2004. At all times pertinent hereto, the Respondent was employed as a music teacher in the Citrus County School District. He has been a teacher for 14 years and began teaching in Citrus County in August of 1993. During the 1996-1997 school year C.C. was a seventh grade student. She was 12 years of age until May of 1997, when she turned 13. She had taken violin lessons from the Respondent during the 1996-1997 school year and the Respondent had been one of her teachers since she had been in the second grade. C.C. was admitted to the National Junior Honor Society (NJHS) when she was in the seventh grade because she had good grades and was a good student. One of the fund-raising projects for the NJHS was a pineapple sale. C.C. participated in this sale and asked the Respondent if he would like to buy a pineapple and he agreed. At that point he hugged her and told her he loved her. She became somewhat upset at being hugged by the Respondent and his telling her that and made a note in her diary for February 27, 1997, that "Mr. Wedebrock told me he loved me. I don't know what to make of it." This made her somewhat uncomfortable and embarrassed. The Respondent told C.C. he loved her several times over the early months of 1997. This made her feel uncomfortable since she was only 12 years old and did not think she needed to hear such comment from her teacher. She had never been spoken to by another teacher in that way and never saw Respondent tell any other students that he loved them in that way. It embarrassed her. The Respondent gave C.C. souvenirs from a trip to Disney World and marked two brochures from Disney World with his rankings of the many different rides or attractions. He gave her those brochures and gave her a key chain with her name on it and a pin. At the same time he gave her a note which said among other things "maybe some day we can go together" (referring to Disney World). The Respondent had called her into his office to give her the Disney World-related items. She had never seen the Respondent give presents to any other student. Near the end of the school year the Respondent wrote a note to C.C. and placed it in her violin case along with several pieces of music. The Respondent then told C.C. to go look in her violin case. When she did so she discovered the note along with "Music of the Night" a piece from Phantom of the Opera. The note read as follows: Please remember everything I told you this year. It's really true times a billion! Times infinity! Please just give me a chance. That's all I ask of you. You are my music of the night . . . I'll miss you (over) so much this summer! I'll miss seeing you in chorus next year. I'm sure you would have made All State! Did you know that you could be a peer counselor at CHS (hint hint). I just need to know how you feel about me. My love for you is so strong and deep. Should I just stop? Or do you think some day you'll love me? Have a great summer! Enjoy your new violin! I love you!!! (Emphasis from the original) C.C. thought the note was embarrassing and somewhat disgusting coming from a teacher. She showed the note to her sister who was one year younger than C.C. Her sister believed that C.C. should show the note to her mother and father. C.C. decided to tell her mother. Later, at a restaurant, C.C. placed the note in her mother's hands and then ran into the bathroom. After receiving the note, C.C. became quite withdrawn, having less interaction with others. When she gave her mother the note her mother noticed that she was extremely upset and teary-eyed and did not want to talk to her mother or step- father. This was unusual behavior for her. C.C.'s mother and step-father decided to notify the school about the note; however, at C.C.'s request they waited until the last day of class with the Respondent before revealing it to the school administration. C.C.'s mother and step-father went to the school and in Mr. Eldridge's absence they spoke to Ms. Staten, the assistant principal. They informed her of the situation with the Respondent and the note, although C.C. did not go with them because of her embarrassment. Both C.C.'s mother and step- father were very upset about the contents of the note and the Respondent's expressions towards C.C. After meeting with the parents Ms. Staten informed the principal, Mr. Eldridge, of the situation when he returned. Mr. Eldridge had a meeting with the Respondent that day and the next day Ms. Staten, Mr. Eldridge, and the Respondent met again. During the course of that second meeting the Respondent agreed to resign. Ms. Stiteler, the Director of Personnel for Citrus County Schools met with the Respondent on May 30, he admitted to her that he had given the note to C.C. He appeared rational and lucid during the course of that interview and told Ms. Stiteler that he did not know why he wrote the note in question but admitted having feelings for C.C. and said he had not intended to have those feelings. He said he was fond of her and that she was a special student and was very bright and musical. The Respondent acknowledged that he himself had noticed a change in C.C.'s behavior (withdrawal) after he had given her the note in question. The Respondent also wrote a note to C.C.'s parents which he gave to Ms. Stiteler. Among other things he promised in that note to never again express his feelings for C.C., but does not deny that he had the feelings previously expressed. The Respondent's actions damaged the trust that C.C.'s parents, C.C., and her sister had placed in him as a teacher. It also lessened the trust the administrators, such as Ms. Stiteler, Mr. Eldridge, and Ms. Staten, confided in him as well as their trust in his judgment. The Respondent has experienced weight problems much of his life and, in fact, during the relevant time period he was considered "morbidly obese." He strongly desired for obvious health reasons, to end his obesity and so on April 19, 1996, began seeing Dr. Azeele Borromaeo, M.D. Dr. Borromaeo prescribed the dietary drug combination of Phentermine and Fenfluoramine, commonly known as "Phen-fen." While he was taking Phen-fen the Respondent met regularly with Dr. Borromaeo. In the fall of 1996, he complained of mood swings, great irritability, forgetfulness, and other side effects, such as dry-mouth, frequent headaches, and sexual problems. In November of 1996, after such complaints, the doctor took him off Phen-fen for about a month. The side effects subsided at that time. During the time the Respondent had been on Phen-fen through November 1996, his weight decreased from 359 pounds to 289 pounds. Given that degree of success he decided to begin again taking Phen-fen in December of 1996. He noticed a return of the side effects almost immediately. The forgetfulness, confusion, nausea, sensitivity to light and sound, and irritability all returned and the Respondent says it got progressively worse through the first half of 1997 while he was taking Phen-fen. His wife described the effects as getting worse and worse. Beginning in about February of 1997 through May 1997, the Respondent wrote and said the inappropriate things to C.C. referenced in the above findings of fact. The Respondent candidly admits that he expressed these feelings, of an amorous nature, referenced in the above findings but professes not to know why he wrote or said those things to the student in question. He maintains he was confused, depressed, and suffering from the other referenced side effects of the drug at the time. The Respondent's professional peers, Mr. Eldridge and Ms. Staten, did not notice any abnormal behavior by the Respondent while he was working at school. They perceived him to be happy and in control of his personality. Ms. Staten was his supervisor during the school year and saw him almost daily, including in his classroom setting. She did not notice anything unusual about his behavior and found him personable and jovial. Neither C.C. nor S.G., a classmate, noticed any unusual behavior by the Respondent in the classroom, such as forgetfulness or excessive irritability. In his visits to Dr. Borromaeo and his primary care physician, Dr. Dwinelle, the Respondent noted the he was a little irritable and had some sexual problems and dry mouth from February through May of 1997, but did not, at least according to the doctors' notes, complain of any of the other side effects of Phen-fen. The Respondent did not mention any effects of the use of the drugs as a possible explanation for his conduct in his conversations with Mr. Eldridge, Ms. Staten, and Ms. Stiteler around the time of his resignation. Following his resignation from his teaching position, the Respondent underwent a neuro-psychological examination from Sidney J. Merrin, Ph.D., a psychologist in private practice in Tampa, Florida. A variety of psychological tests on the Respondent was performed, lasting approximately 15 hours. Dr. Merrin also conducted a counseling session with the Respondent. Dr. Merrin concluded as shown in his report, in evidence as the Respondent's Exhibit No. 1, including Exhibit A thereto, that: . . . There was nothing in his examinations that would support any contention he is an emotionally or mentally disturbed individual that would prompt him to invade the privacy of a young student or disturb the decency of normal interpersonal relationships. I see nothing in his examinations that would describe him in pathological terms. Consequently, should he have behaved as he described, in the manner he had, the basis for that behavior must then be ascribed to a temporary condition of short-term destabilization from which he has now very adequately recovered. In his deposition Dr. Merrin opined that whatever did occur in his estimation would have been unlike the Respondent's usual personality to the extent that something in the interim had to have changed his behavior or reduced his impulsivity controls. Dr. Merrin opined that it could have been the introduction of Phen-fen. Dr. Una D. McCann is an associate professor of psychiatry at Johns Hopkins University. She has conducted clinical and pre-clinical research on a variety of different amphetamine analogs, including Fenfluoramine, for over 10 years. Her interest in studying Phen-fen is that it is an amphetamine analog that happens to be neurotoxic. It has been shown in animals to damage certain brain cells which produce the chemical serotonin, related to mood. Her research has been directed to achieving understanding of the effect of Phen-fen and related drugs towards specific cells such as those that make serotonin in the brain. Thus Dr. McCann's primary interest as a psychiatrist has been to determine what happens to humans who take Phen-fen, whether the brain's serotonin neurons are damaged from taking the drug and whether and to what extent any psychiatric effects flow from that damage. There is no definitive study according to Dr. McCann's testimony, which shows that Phen-fen can cause such personality changes or behaviors as are involved in the Respondent's actions in this case. Dr. McCann is aware of some 30 case studies or histories of people who, while taking the drug combination called Phen-fen had exhibited aberrational psychiatric symptoms and behaviors. Dr. McCann did not examine and test the Respondent but upon being provided information of his circumstances and the actions he took at issue in this case, she concluded that his behavior toward the student could have been influenced by his use of Phen-fen. The Respondent is no longer taking Phen-fen and the evidence indicates he has returned to his baseline psychiatric state. He has exhibited no such abnormal and inappropriate behavior since abandoning the use of Phen-fen. The Respondent has an excellent teaching background, with excellent evaluations and no other disciplinary problems. He has been a teacher for 14 years and began teaching in Citrus County in August of 1983. He has been a very effective teacher with no personality traits or behaviors other than those in the time referenced-above which have caused any difficulties in his relationships with students, other teachers, or administrators. His family history is that of a stable marriage and of his being a loving father to his three children. There is little in the evidence of record to show any pattern to the objectionable behavior involved in this proceeding. Thus it would appear, with his history of exhibiting a stable personality and stability in his employment life and family life that, along with the rather scant available medical and scientific evidence, that there may indeed be some causal relationship between the Respondent's use of Phen-fen and his inappropriate actions towards the student in question. Persuasive evidence, however, has not been presented to show as through appropriate scientifically managed, and refereed that the use of Phen-fen abrogates such a person's exercise of free- will, that it abrogates his sense of reality nor that it prevents him from knowing what he is doing as he commits certain behaviors. It was not shown to prevent him from being able to control his own actions. Phen-fen may cause severe depression and the other symptoms and psychiatric problems referenced in the above findings of fact while the associated depression and other problems possibly, although not proven to have been caused by Phen-fen, may have caused a lowering of his impulse control which relates to the exercise of bad judgement, the clear and convincing evidence shows that at the time he committed the behaviors in question he was in touch with reality. Although he exhibited abysmally poor judgment on those occasions, he knew what he was doing at the time and in fact never denied it when interviewed by his superiors in the school system. Consequently, it cannot be found that the use of Phen-fen abrogated his responsibility for his actions.
Recommendation Accordingly, in consideration of the above findings of fact, including those of the mitigatory circumstances, it is therefore, RECOMMENDED that a final order be entered by the Petitioner Agency suspending the Respondent's teaching certificate for a period of three years, during which time he should engage in therapy and counseling from a qualified psychiatrist or psychologist with a view towards showing that he is mentally and emotionally recovered and able to work with children and otherwise perform the duties of a public school teacher. Upon his completion of such counseling and therapy, under a professionally-mandated schedule and regimen, he should be required to provide a written opinion of a qualified psychiatrist or psychologist to the Department of Education, establishing that he is mentally and emotionally able to work with children and otherwise perform the duties of a public school teacher before his licensure should be restored to active, unrestricted status. He should also be placed on probation for a period of five years following any such reinstatement, under such terms and conditions as the Education Practices Commissions may deem appropriate. DONE AND ENTERED this 6th day of December, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2000. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Issues for consideration in this case include whether there exists an adequate factual basis for Petitioner Duval County School Board (the Board) to terminate Respondent's employment as a principal and teacher for those violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida, 1941, as amended (the Act), which are alleged by the Board's Notice of Dismissal; and whether there exists an adequate factual basis for the Education Practices Commission (EPC) to revoke or suspend Respondent's teaching certificate or otherwise discipline Respondent for violations set forth in the Amended Administrative Complaint.
Findings Of Fact Respondent holds Florida Educator's Certificate number 263958, covering the areas of physical education and school principal (all levels). The certificate is valid through June 30, 2001. Respondent is a certified teacher who, on the basis of his long-term employment by the Board, has tenure as a result of the length of his service in a satisfactory capacity. Respondent was employed as the Principal at Sandalwood High School by the Board from 1988 through the spring semester of 1994. Commencing in the summer of 1994 and continuing through October 20, 1995, Respondent was employed by the Board as Principal at Forrest High School. Respondent has been removed from his position as Principal of Forrest High School, but continues as a salaried employee of the Board pending resolution of the charges which form the basis for this proceeding. During Respondent's tenure as Principal at Forrest High School, he supervised teachers Julie T. Lee, Kimberly L. Smith, Pamela W. Bean, and Karen E. Jones. Julie T. Lee, Teacher During the 1994-1995 school year, Lee was both the Student Activities Director and the Cheerleading Coach for Forrest High School. In addition, she taught two classes on the subject of ecology. As Student Activities Director, she had an office centrally located, apart from the classroom she used. In November of 1994, Respondent called Lee into his office. He shut and locked the door. He asked Lee to sit down in a chair that Lee noted had been turned and was out of place. She sat down. Respondent then went behind her and proceeded to rub her shoulders. Lee was uncomfortable and did not welcome or encourage Respondent's actions. On February 6, 1995, Respondent again called Lee into his office and shut and locked the door. After a conversation with Lee, Respondent approached Lee and said he need a hug. He proceeded to hug Lee without her consent. In May of 1995, while Lee was using the telephone in the Principal's office for a long distance call, Respondent returned unexpectedly, shut and locked the door, and sat down in a chair behind Lee. He proceeded to grab Lee about her hips and pull her down to sit in his lap. He told her if she would take care of him, she could have anything she wanted at the school. Lee got up, said she would take care of student activities and left. About a week later, Respondent encountered Lee outside her office and asked her if she had thought about his offer. Lee acted as if she didn't know what Respondent was talking about. Later, before the end of the school year, Respondent informed Lee that he was moving her office. The new location for Lee's job as Student Activities Director was a weight room near the school gym. The room was bright red, smelled of sweat, and was located in an out of the way place for purposes of student activities. Lee commenced using the new location prior to the end of the school year for a period of approximately four weeks. At the end of the four week period, Respondent came to Lee's office and told her that she had one hour in which to move. The new office was a former special education classroom at the other extreme end of the building, away from a central location, flooded with water and dirty. A few days thereafter, Respondent also told Lee that she would have to teach three out-of-field social studies classes in addition to the Cheerleading Coach and Student Activities Director jobs. Lee felt she could not do all three jobs under any circumstances. Further, she felt that teaching a majority of out- of-field classes would subject her to being surplussed the following year unless she became certified in those areas in the interim. Lee did not accept the justification that the additional class assignment was purely the result of budgetary constraints and felt that she was being subjected to retaliation for not meeting Respondent's sexual overtures. She talked with Mark Scott, a music teacher, about the matter on September 18, 1995. Scott had heard about difficulties that another teacher was having with Respondent. Scott revealed his discussion with the other teacher, Kimberly Smith, to Lee. Lee subsequently contacted Smith. Kimberly Smith, Teacher Sometime near the middle of the 1994-1995 school year, Respondent walked up behind Smith in the school library and massaged her shoulders. Smith did not welcome or invite Respondent's conduct. On or about June 14, 1995, Respondent asked Smith into his office and locked the door. After a conversation relating to her resignation as basketball coach, Respondent asked Smith for a hug. As Smith attempted to pull back from the hug, Respondent pulled Smith against his body and with his face on her neck told her that she smelled good. Respondent then told Smith to get out of there before he forgot who he was. The next school year, on September 18, 1995, Respondent approached Smith in the hallway near the library and after some conversation grabbed her arm, pulled her to him and requested that Smith come to his office and give him "some tender loving care." If she complied, Respondent promised to "see what I can do for you." Smith told Jon Nerf, an English teacher at Forrest High School, about the September 18, 1995 incident shortly after it occurred. Nerf's testimony establishes that Smith was emotionally upset by Respondent's action. Pamela W. Bean, Teacher In April of 1995, Respondent asked Pamela W. Bean, a teacher, to come into his office when she asked to talk with him. He closed the door. After she was seated and talking, Respondent told Bean that she "looked stressed." He stepped behind her and began to rub her shoulders. When Bean got up, Respondent told her that he "needed a hug." Bean, nonplussed by the unsolicited and unwelcome advance of Respondent, complied with a brief hug and left. The next day, a similar incident with Bean occurred in Respondent's office. Again, Respondent's back rub and hug overtures were unsolicited by Bean who complied again with Respondent's request for a hug. Karen Jones, Teacher In the spring of 1995, Karen E. Jones, another teacher, asked to speak with Respondent. He asked her into his office and closed the door. Respondent then told Jones "I need a hug" and proceeded to hug her. After hugging Jones, Respondent told her that "we need to do that more often." In the first half of September of 1995, Respondent asked Jones to come into a room near his office called "Trawick's Trough." After entering the room, he again asked for a hug and hugged Jones. Jones did not solicit or welcome the hug. Jones later confided prior to initiation of any formal charges against Respondent in her long-term friend, Susan Ingraham, who is a school board employee, regarding Respondent's overtures. Julie A. Gray, Teacher Julie A. Gray was a first year teacher of Spanish and the yearbook sponsor at Sandalwood High School during the 1991-1992 school year when Respondent was her supervisor and the Principal at that school. Respondent approached Gray in the hallway during the early part of that school term. Respondent told Grey that he liked to get hugs from his faculty members. Gray patted him lightly on the shoulders. Respondent then said,"oh, I didn't mean here. I meant in my office." Later in the school term, Gray went to report to Respondent that all the yearbooks had been sold. Gray found Respondent near the bookkeeper's office and started talking to him. He leaned over and tried to kiss her on the mouth. When she backed away, Respondent tried to hug Gray. She was embarrassed by the incident and informed Peggy Clark, a professional support staffer for new teachers, that Respondent had made remarks of a sexual nature to Gray. Gray's roommate was also informed by Gray regarding Respondent's attempt to kiss Gray. The Teachers As a result of Lee's conversation with Mark Scott, Lee subsequently compared experiences with Smith. Bean, assigned by Respondent to sit in the student activity office during one of Lee's social studies classes also had a discussion with Lee. The three, Lee, Smith and Bean, decided to lodge complaints with the school administration and did so in early October of 1995. Lee felt she had not choice if she did not want to lose her job. Smith would have reported Respondent's behavior toward her earlier, but felt that she was alone and could not succeed. Bean, likewise, had felt she was alone and would not be believed over the word of a principal. Jones learned about the other teachers and their grievances a couple of weeks following Respondent's last advance toward her and decided to join the others in making a complaint. Gray had considered bringing sexual harassment charges against Respondent in the spring of 1992, but felt it would simply be her word against Respondent. She decided to come forward with her allegations in response to requests by the Board's representative who had learned of Respondent's behavior in 1992 toward Gray. Based on their candor and demeanor while testifying, as well as the consistency of their testimony with earlier statements made by them to persons with whom they spoke following various incidents, the testimony of all five teachers, Lee, Smith, Bean, Jones, and Gray, is fully credited and establishes that Respondent's conduct toward them was intimidating and adversely affected their abilities and enthusiasm for teaching in such situations. Stefani Powell, Contract Manager Stefani Powell was a district supervisor for ARAMARK, the operator of the Board's food service in the school system during the 1994-95 school year. In her capacity, Powell managed 14 school cafeterias, including the one at Forrest High School. Respondent, as the Principal at Forrest, was a client of ARAMARK's, oversaw what happened in the cafeteria, and approved certain aspects of the cafeteria's functioning. In meetings with Powell in his office, Respondent began closing and later locking the doors, commencing in October of 1994. He initiated hugs with Powell at the end of these meetings. On approximately eight to 10 occasions, the last in January or February of 1995, Respondent hugged Powell. Initially, the hugs were light, but progressed and grew stronger with Respondent eventually placing his hand on Powell's back and pushing inward. On the last occasion, Respondent kissed Powell on the cheek. None of these attentions by Respondent was solicited by Powell and were unwelcome. Since Respondent's advances made Powell uncomfortable, she eventually confided in her supervisor who advised that Powell always take someone with her or ensure the presence of a third person at conferences with Respondent. Powell followed this practice with regard to future meetings with Respondent. After reading in the newspaper of the allegations of the teachers at Forrest High School, Powell told her mother, a school board employee, of her experiences with Respondent. As a result, Powell was put in touch with the Board's investigator and her complaint against Respondent followed. Due to her candor and demeanor at the final hearing, as well as consistency of her testimony with statements made by her to others, Powell's testimony is totally credited. Dishonesty In The Course Of Employment Carol Abrahams was a clerk one at Forrest High School during the 1994-1995 school year. She shared a social relationship with Respondent and his wife. In April of 1995, Respondent made Abrahams the Principal's secretary. Abrahams was a clerk one. A clerk three is the customary rating and higher paying position normally assigned duties as a Principal's secretary. Respondent sought to augment Abrahams' pay since she was paid less than a Principal's secretary would normally receive. Respondent directed the use of Community School funds to pay Abrahams for work after the normal school day hours. Commencing with the beginning of the 1995-1996 school year, Abrahams was paid $9.50 per hour for the hours of 3:30 p.m. to 6:30 p.m. each day that Community School functioned, Monday-Thursday, through September of 1995. Abrahams did not work during all the hours for which she claimed payment for the period of August 23, 1995 through September 28, 1995. Specifically, Abrahams went to an aerobics class conducted at Forrest High School from 3:30 until 4:30 p.m. almost every Monday, Wednesday and Thursday of each week during August and September, 1995. On three payroll hour certifications signed by Respondent, payment was made to Abrahams for a total of 16 hours during 16 days that were not actually worked at the times claimed. Respondent knew that Abrahams was attending the aerobics classes, but it was assumed by he and others that Abrahams would make up the missed hours. Abrahams testimony that she did school work at home, on weekends and at other times in an amount of hours sufficient to more than make up for the hours claimed on the subject pay roll certifications, while creditable, is not corroborated by any record of such "comp" time and cannot serve to extinguish the commission by Respondent of the technical violation of approval of those time sheets for subsequent payment when he knew those records were not accurate. Conduct And Effectiveness Respondent's misconduct, as established by the testimony of Lee, Smith, Bean, Gray, Jones and Powell, constitutes personal conduct reducing Respondent's effectiveness as an employee of the Board.
Recommendation Pursuant to provisions of disciplinary guidelines contained within Rule 6B-11.007, Florida Administrative Code, it is RECOMMENDED that a final order be entered by EPC revoking Respondent's teaching certificate for a period of two years, with recertification at the conclusion of that time conditioned upon Respondent's acceptance of a three year probationary period upon terms and conditions to be established by the EPC, and it isFURTHER RECOMMENDED that a final order be entered by the Board dismissing and discharging Respondent from his position of employment with the Board.DONE AND ENTERED this 13th day of December, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996. COPIES FURNISHED: Ernst D. Mueller, Esquire Office of the General Counsel City of Jacksonville 600 City Hall 220 East Bay Street Jacksonville, Florida 32202 J. David Holder, Esquire 14 South 9th Street DeFuniak Springs, Florida 32433 William J. Sheppard, Esquire Sheppard and White, P.A. 215 Washington Street Jacksonville, Florida 32202 Karen Barr Wilde, Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8154
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact: Claudio Senan, date of birth, September 18, 1967, was assigned to the Henry H. Fowler Jr. High School as an eighth grader during the 1982-83 school year. By letter dated March 16,1983, Petitioner, Claudio Senan's parent, Ms. Otero, was advised that the Petitioner was being assigned to the Jan Nann Opportunity School, North, based on a recommendation of the principal and a school screening committee of the Department of Alternative Education Placement based on the student's disruption of the educational process in the regular school program. Evidence reveals that during October through December, 1982, the Petitioner was continuously defiant which resulted in his being referred for indoor suspensions on more than three occasions. This pattern continued during the period January through March, 1983. In all of these incidents, Petitioner disrupted his school classroom activities. During early March, 1983, Petitioner was stopped by the Hialeah Police Department and assigned to truant officers. The Petitioner has received only minimal credits since his enrollment in the regular school program. As example, during the 1980-81 school year, Petitioner enrolled for 12 credits and earned 8 credits. During the 1981-82 school year, Petitioner again enrolled for 12 credits and earned 5. During the 1982-83 school year, the Petitioner earned no credits. Efforts to curb the Petitioner's disruptive activities while enrolled in the regular school program have not been successful. Further, Petitioner is not earning credits or otherwise benefiting from the education process being afforded him due to his disruptive conduct in the regular school program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent, School Board of Dade County, Florida enter a Final Order assigning the Petitioner, Claudio Senan, to an alternative educational placement. RECOMMENDED this 30th day of September, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 30th day of September, 1983. COPIES FURNISHED: Ms. Maria Otero 1140 W. 29th Street, Apt. 26 Hialeah, Florida 33012 Jesse J. McCrary, Jr. , Esquire and Mark Valentine, Esquire 300 Executive Plaza, Suite 800 3050 Biscayne Blvd. Miami, Florida 33137
