Findings Of Fact The Respondent, Robert Ressler, holds Florida Teaching Certificate No. 396920 covering the areas of social studies, history, physical education, administration and supervision, which is valid through June 30, 1991. The Respondent was employed as a teacher at the Land O'Lakes High School in the Pasco County School District from 1984 until April, 1990. The Respondent is currently 43 years of age and weighs 215 pounds. During the years of the '88-89, and '89-90 school year, he taught three mainstream classes and two alternative education classes as a part of the Alternative Education Program at Land O'Lakes High School. There were approximately 80 students in his combined classes. The Alternative Education Program was a program at Land O'Lakes High School for students that lacked motivation, were poor in attendance, were failing courses, and had low self-esteem. One evening, in February of 1989, a mainstream class student, Wes Harden, and others, vandalized the Respondent's home and van by throwing eggs at it. Subsequently, the Respondent heard rumors that Harden was the individual who vandalized his home and van. Later, when Harden came into the Respondent's class, he took him in the hallway and angrily told him that he did not ever want to see him on his property again. After class, the student, Harden, went to an administrator, Mr. Broadbelt, and reported the incident. He initially lied about his involvement in the vandalism, and alleged that Respondent threatened to break every bone in his body, and would kill him if he ever saw him around Respondent's neighborhood again. The next day, Respondent discussed the incident with Assistant Principal Broadbelt, and no disciplinary action was taken against Respondent following this event. In August, 1989, just prior to the beginning of the school year, teacher, Viginia Lupo, complained that she had a disagreement with Respondent, and that Ressler showed disapproval toward her and the school administrators. Ressler went to Ms. Lupo's classroom to retrieve some world history textbooks. Lupo first denied that she had the textbooks, but after searching, she found them. Lupo admitted that she had mixed up Mr. Ressler with Mr. Russell, and thought that she had already given the books away. During this episode, Respondent became angry, loud, and excited, but did not degrade her. In October, 1989 at an open house for Alternative Education parents, Ressler became angry and raised his voice toward Virginia Lupo for allowing students to sit on the desks and the floor in his classroom. Lupo was upset by Respondent's conduct. Lupo complained to two school administrators regarding Respondent's conduct, but no disciplinary action was initiated against Respondent. On October 17, 1989, Respondent brought a student, Michael Moore, into Assistant Principal Carolyn Fabal's office, for extreme misbehavior, including spitting, throwing food, and making obscene gestures toward him. Respondent had written up disciplinary referrals several times on Michael Moore prior to this incident, and the student had previously been suspended, and otherwise disciplined on grounds of defiance of authority and misconduct. While in Carolyn Fabal's office, Michael Moore raised his voice, and was extremely angry. Respondent was also angry, and raised his voice in order to be heard over the student and inform Fabal about what happened. During the course of this incident, Respondent demonstrated the obscene gesture which was made by Michael Moore toward him by grabbing his crotch. This was inappropriate behavior on the part of Respondent when attempting to discipline a student. Robert Ressler did not fill out disciplinary forms in connection with the Michael Moore incident on the day in question. Respondent had also complained regarding his perceived lack of support from the administration, and that he had asked for support from Ms. Fabal regarding policies in school suspensions. Shortly thereafter, Ms. Fabal wrote an informal "letter of clarification" regarding these incidents directed to Respondent which was not placed in his file. During that same school year on December 5, 1989, the Respondent attended a Land O'Lakes High School varsity girls basketball game as an assistant coach. During the game, two technical fouls were called on the opponent's head coach, and one technical on his team's head coach. At the conclusion of the game, the Respondent expressed his dissent concerning the calls made during a game by approaching one of the officials and stating that he had done a really poor job, and that both head coaches from each school felt that way. He asked the official to make sure he put his name in the score book. As a result of this exchange with the official, the principal of the school, Albert Bashaw, received a letter from Fred Rozelle, the Executive Secretary for the Florida High School Athletic Association. This letter reproached the Respondent for acts unbecoming a coach. The letter charged that, "the Respondent's conduct tended to incite the spectators and players, and showed a poor example of good sportsmanship." The letter went on to state, "under no circumstance shall a coach attempt to publicly criticize, berate, or intimidate the official which should be shown the utmost courtesy, dignity, and respect." Upon receipt of the letter, the principal discussed its contents with Mrs. Marion Ressler, the girls varsity coach. He did not talk with Respondent or give him a copy of the letter. There was no competent evidence to support these allegatoins. During the 1988-89 and 1989-90 school year, the Respondent frequently allowed the students in his Alternative Education classroom to use inappropriate language; to-wit, cursing between themselves and occasionally between himself and his students. Respondent did not encourage inappropriate language in his classroom, and did reprimand and write-up students who swore excessively. Respondent tried to handle the problem himself by either talking it through, or by using humor. The Administrator at Land O'Lakes High School received some complaints from parents and students regarding the Respondent's use of vulgar language in the classroom. During the 1988-89 school year, an Administrator, Peter Kennedy, at Land O'Lakes gave him a written warning which the Respondent signed regarding his inappropriate use of language when he brought a student to the office for discipline. The administration of Land O'Lakes High School never made any mention of these allegations concerning the use of profanity or inappropriate language in Respondent's evaluations. An Alternative Education class requires informality. Foul language may sometimes be overlooked, since the goal is to get these students, who are disinterested and disruptive, to stay in school and learn. Behavior, not language, is the appropriate focus of the Alternative Education classroom. During the 1988-89 school year, Respondent became angry and began shouting when he caught two EH students using the back of the school to go back and forth between classes. An EH teacher, Ms. Monique Vinski, had received permission for her students to pass behind the school. Because the Administration had a general rule which prohibited students from going in this area between classes, Respondent did not accept her statement that the students had permission to use that route and was visibly angry. Ms. Vinski was subsequently told by the Administration to take her students through the hallway. Respondent was never formally or informally disciplined for this event, nor was there any record of the event in his personnel file. During the same period of time, Respondent stopped another emotionally handicapped student for being in an inappropriate area. Respondent became very angry, and was shouting at the student. During the '89-90 school year at Land O'Lakes, the Respondent had in his class an Alternative Education student by the name of Billy Eviston. During a discussion on racism and abortion, in American History class, Eviston expressed an opinion that was opposed by the Respondent. Whereupon the student felt that Respondent had demeaned him, and he reported his recollection of the event to the Administration. No disciplinary action was taken for this incident. During the 1989-90 school year, Sgt. Richard Thiel, who was a recruiter in the National Guard, taught employability skills classes at the different high schools in Pasco County. Sgt. Thiel had scheduled months in advance a classroom presentation to several classes, including Respondent's class, through the Occupational Specialist, Woody Wall. Thiel and his assistant walked into Respondent's class in civilian clothes, pushing a cart with a movie projector on it. He did not identify himself. Upon the Sgt.'s entry into the classroom, the Respondent said he did not know who Sgt. Thiel was, and that he was expecting Woody Wall to teach the class. Whereupon Respondent exited the classroom in a futile search to find Wall. Thiel felt that Respondent's attitude toward him was very arrogant and he decided he would not teach the class that day. He and his assistant left Respondent's classroom prior to the return of Respondent. There was no altercation between Respondent and the Sgt. and his assistant. No disciplinary action was taken in connection with this incident. In March of 1990, an Alternative Education student, Terekita Brown, date of birth, 9/2/72, was in the Respondent's 10th grade class. She was a disruptive student, who had a history of poor grades, high absenteeism, and disruptive and rude behavior. Brown came late to class with an admit slip for readmittance into the ecology class which she gave to the Respondent, who questioned it's authenticity. Miss Brown became angry and responded by saying "fuck you." When other students became agitated with her, she swore at the other students as well, and made vulgar comments to Respondent about his wife, and continued to repeat "fuck you" in a loud and angry manner. Finally, to diffuse the situation, Respondent tried to use humor and said to Brown, "right here in front of the class?". Respondent did not return profanity toward Brown, or the students that day. The mood in the room was laughter, and Brown was also laughing concerning the interchange. When the class quieted down, Respondent taught the remainder of the class, and Terekita Brown finished out the remainder of the class without incident. The entire incident lasted between two to five minutes. Following the class, the incident was reported to the Administration who assigned James Davis, Director of Instructional Employees Relations to investigate. Davis concluded the Respondent did not call Brown a prostitute directly, but did so by implication, and should be disciplined. The method used by Respondent to diffuse the Brown situation was an acceptable technique in alternative education. Each assessment evaluation for the period of 1984 to 1990 rated Respondent as a very satisfactory teacher. The March 7, 1990 evaluation, performed by an assistant principal and signed by the principal, classified Respondent "as a very fine teacher and a credit to Land O'Lakes High." On or about April 4, 1990, the Respondent was suspended without pay by the District School Board of Pasco County. On or about May 2, 1990, the Respondent's employment contract with the District was terminated as a result of their finding of misconduct in office, gross insubordination, and neglect of duty.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued finding that Robert Ressler did not violate the provisions of Sections 231.262(6) and 231.28(1), Florida Statutes, and Rule 6B-1.006(5), Florida Administrative Code, but did violate Rule 6B-1.006(3), Florida Administrative Code, due to his loss of temper. It is further RECOMMENDED that a Final Order be issued reprimanding Respondent for the above violations. DONE AND ENTERED this 20th day of November, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 20th day of November, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,6,7 (in part), 8 (in part), 9 (in part), 10, 11, 13 (in part), 18, 19 (in part), 20, 22 (in part), 23 ( in part), 24, 25, 26, 28 (in part), 29, 30, 31, 32, 33 (in part), 34, 35, 37, 38, 42, 43, 46, 47, 49, 54, 56 Rejected as against the greater weight of evidence or irrelevant: paragraphs 7(in part), 8(in part), 9(in part), 12, 13(in part), 14, 15, 16, 17, 21, 22 (in part), 23 (in part), 27, 28 (in part), 33 (in part), 36, 39, 40, 41, 44, 45, 48, 50, 51, 52, 53, 55 Rejected as subsumed or conclusions of law: paragraphs 57, 58, 59, 60, 61, 62, 63, 64, 65 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,6,9 (in part), 11, 12, 13, 14, 16, 18, 20, 21, 22, 23, 24, 25, 27 (in part), 29, 30, 32, 33 (in part), 34 (in part), 36, 37 (in part), 39, 41, 42 (in part), 43, 44, 45 46 (in part), 47, 48, 56, 58, 59, 60, 61 (in part), 62, 63 Rejected as subsumed, irrelevant or argument: paragraphs 7, 8, 9 (in part), 10, 15, 17, 19, 26, 27 (in part), 28, 31, 33 (in part), 34 (in part), 35, 38, 40, 46 (in part), 49, 50, 51, 52, 53, 54, 55, 57, 61 (in part), 64, 65 Copies furnished: Lane Burnett, Esquire 331 E. Union Street, Ste #2 Jacksonville, Florida 32203 Lorna Sills Katica, Esquire 1950 NCNB Plaza 400 N. Ashley Drive Tampa, Florida 33602 Karen Barr Wilde Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(j), Florida Statutes (2013), and Florida Administrative Code Rule 6A-10.081(3)(a) and (3)(e) with respect to her treatment of an autistic child in her classroom. If so, then the appropriate penalty for her conduct must be determined.
Findings Of Fact Respondent is a teacher in the State of Florida. She holds Florida Educator’s Certificate 952211, covering the areas of elementary education, English for speakers of other languages (ESOL), and exceptional student education. Respondent’s certificate is valid through June 2016. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an autism spectrum disorder (ASD) teacher at Maplewood. Ms. Newton has been involved in teaching in Marion County since 1999. She started as a teaching assistant, then substitute taught while putting herself through school, then obtained her bachelor’s degree in varying exceptionalities and began teaching full time. She also received her master’s degree in 2007 in the area of interdisciplinary studies in curriculum and instruction. With the exception of an internship at Oak Crest Elementary, all of Ms. Newton’s teaching experience was at Maplewood. Her performance evaluations from the 2004-2005 school year through the 2012-2013 school year all contain at least satisfactory ratings, with the majority of the recent evaluations rating her as highly effective or outstanding, depending on the evaluation tool used. The majority of her evaluations reference her excellent classroom management skills. At the beginning of the 2013-2014 school year, Maplewood received an entirely new administrative team. Laura Burgess was the new principal, Claire Smith and Brian Greene were newly- appointed assistant principals, and Doris Tucker was the new dean. The new administration started at Maplewood in July, approximately a month before the beginning of the school year. Ms. Newton had been teaching and continued to teach autistic students. At the beginning of the school year, she was assigned six students in her self-contained classroom, and had the assistance of one teacher’s aide, Susanne Quigley. Ms. Newton believed strongly in the value of a structured, disciplined classroom, especially when dealing with autistic students. She believed that establishing the rules and routine for the classroom created an environment where any child could be taught, but that without structure and adherence to routine, chaos would result and impair the learning process. Her classroom management skills were well known and in past years, well respected. Both Ms. Newton and Ms. Quigley testified about the assistance she was asked to give to other teachers and students with respect to class management and discipline. Their testimony is credited. After the start of the school year but before September 3, 2013, Laura Burgess, Maplewood’s principal, was notified by the Social Services Education Team (SET team) for the District that Maplewood would be receiving a new student, B.L., who had moved to the area from North Carolina. She also received an Individualized Education Program (IEP) for B.L., which listed his disability as autism spectrum disorder. B.L.’s IEP also indicated that he had problematic behaviors that could impede his learning, including oppositional defiance disorder, tantrums, attention deficit disorder, and extreme violence. The documentation provided to her did not include a behavioral intervention plan, and Ms. Burgess was concerned that B.L.’s placement at Maplewood did not match the needs identified in the IEP. However, she determined that Ms. Newton’s class would be the best placement for B.L., because Ms. Newton had a reputation for having a structured and disciplined classroom, and perhaps B.L. would benefit from that kind of structure. Ms. Burgess saw Ms. Newton that morning and told her that she would be receiving a new student. Ms. Burgess described the issues with the child, and said that if he ended up in Ms. Newton’s class, she should document his behaviors in case he needed to be moved to a therapeutic unit for behaviors (TUB unit). Ms. Newton understood from the conversation that Ms. Burgess believed B.L. should be in a TUB unit, which did not exist at Maplewood. However, later in the day Ms. Newton and her aide, Susanne Quigley, were supervising her students on the playground when she was approached by Claire Smith, one of the new assistant principals. Ms. Smith informed her that B.L. would indeed be placed in her class and gave her a copy of his IEP, with certain portions related to his behavior highlighted. Ms. Newton expressed surprise at the placement, thinking that he would be going to the TUB unit. Ms. Smith had met with B.L. and his mother earlier in the day and felt that he could benefit from Ms. Newton’s structured classroom. She also talked to Ms. Newton about documenting his behaviors should a change be necessary. Ms. Newton was concerned about the addition to her classroom because she already had six autistic students and, with respect to B.L.’s identified behaviors, “we’ve never had a child like that at Maplewood.” Nonetheless, B.L. was placed in her classroom on September 3, 2013. Consistent with her usual practice, Ms. Newton began to teach B.L. the rules of her classroom. For the first two days, there were no major problems. There were instances where B.L. did not want to comply with the directions she gave him or follow the rules of the classroom, but with some coaxing, she was able to get him to comply. Ms. Newton did not see the need to call the front office for assistance on either of the first two days B.L. was in her classroom, but then, Ms. Newton had never called the front office for assistance with any child. At the end of the first day, she had the opportunity to speak with B.L.’s mother briefly when she picked him up from school. After Ms. Newton introduced herself, B.L.’s mother basically confirmed the contents of the IEP. According to what B.L.’s mother told Ms. Newton, B.L. had lived previously with his father and there had been issues both at school and at home with disruptive and violent behavior. Ms. Newton told her they were going to “wipe the slate clean” and asked if there was anything that B.L.’s mother wanted Ms. Newton to work on, and she identified B.L.’s behaviors as an area for improvement. Ms. Newton told B.L.’s mother that Maplewood was a great school, and “that would happen.” B.L.’s third day at Maplewood did not go well. At the very beginning of the day, B.L. would not follow directions to stand with the rest of his classmates at their designated spot after getting off the bus. Instead, he plopped down in the middle of the walkway, in the midst of the area where children were trying to walk to their classes. He had to be coaxed all along the way to get to class, and once there, refused to unpack and sit down. He refused to follow any direction the first time it was given, instead responding with shuffling feet, shrugging shoulders, talking back, calling names, and wanting to lay his head down on his desk instead of participate in class. When it was time for the students in the class to go to art, Ms. Quigley normally took them while Ms. Newton attended to other responsibilities. According to Ms. Quigley, B.L. did not want to go to art class, and had to be coaxed to walk with the others to the art room. Once he got there, he did not follow directions, did not want to participate, and did not want to move from the back of the room. Normally, Ms. Quigley might have let him stand and watch if he remained quiet, but he was not being quiet: he was touching things and grumbling and getting angry. Ms. Quigley knew from prior experience that students with autism tend to mimic the bad behavior exhibited by others, and one child’s actions could cause a chain reaction of bad behaviors. She felt that if she did not remove him from the art room, the other children would also start to misbehave, and she did not want them to follow B.L.’s example. Ms. Quigley took B.L. out of the art classroom and went back to the classroom in search of Ms. Newton. Ms. Newton was not in the classroom, as she was attending to other responsibilities. Ms. Quigley then took B.L. to the office, but again, found no one there to assist her. B.L. was not happy during any of these travels, and again had to be coaxed all along the way. Once she got back to the art class, Ms. Quigley had B.L. stand in the back of the classroom. She was trying to watch him and also attend to the other students, but one of the other students knocked everything off the art table, so Ms. Quigley added clean-up to her responsibilities. At that point, Ms. Newton came into the art room. Ms. Newton took both B.L. and the other misbehaving child back to the classroom while Ms. Quigley stayed with the remaining students for the rest of the art period. What remained of the afternoon became a battle of wills between Ms. Newton and B.L.: Ms. Newton was trying to establish the ground rules for behavior in her classroom with B.L., and B.L. was determined not to follow those rules. The result was Ms. Newton spending the bulk of the afternoon with B.L. and Ms. Quigley attending to the needs of the other students in the class. For at least part of this time, Ms. Newton placed B.L. in time-out, with directions that he was to stand still with his hands to his sides. For Ms. Newton, the purpose of time-out is for a student to gather his or her thoughts, to get himself or herself together, and to remind the student of the rules of the classroom. She wants a student to have time to think about his or her actions, and wants to discuss with the student the nature of the problem presented by his or her behavior and how the problem should be resolved. If a child stops behaving, time-out may begin again. Ms. Newton put B.L. in time-out because he was not following her directions to him. She talked to B.L. about the rules of the classroom and where they are posted in the room, and told him what he needed to do. B.L. is very verbal and able to talk about his issues. Ms. Quigley described him as very high-functioning and not on the same level as other children in the classroom. Instead of responding appropriately, B.L. was calling names, talking out, and using curse words; flailing his arms and legs, wrapping himself in his sweatshirt so that his arms were in the body of the sweatshirt as opposed to in the armholes, and covering his face so that he could not see obstacles in his environment; wandering around instead of staying still; kicking things in the classroom, including a box and a door; throwing objects on the floor, rolling around on the floor and spitting; and generally resisting any instruction. During the course of the afternoon, Ms. Newton attempted to show B.L. what she wanted from him. For example, she demonstrated how she wanted him to stand in time-out by holding his arms in the area close to his wrists to demonstrate standing still with his hands down. B.L. repeatedly resisted this direction and tried to break away from Ms. Newton. B.L. was not only resisting her, but at times appeared to be butting his head against her and kicking her. He was at other times rubbing his hands against his face. Ms. Newton told B.L. he needed to stop rubbing his hands over his face, or she would remove his glasses so that he did not hurt himself with them. When B.L. continued his resistant behaviors, she removed his glasses and eventually put them in his backpack. B.L. continued to lightly slap his face with both hands. Ms. Newton did not physically intervene, but testified that she gave B.L. consistent verbal direction to stop hitting himself. Although he clearly continued to slap his face for some time, Ms. Newton testified that the movement was more like a pat than a slap, and she did not believe that he was hurting himself. Her testimony is credible, and is accepted. Ms. Newton also told B.L. to quit flailing his arms and putting his jacket over his head. She was concerned that he could hurt himself given that he was standing (not still, as directed) near the corner of a table. Ms. Newton told him if he did not stop she would take his jacket from him. He did not and she removed his jacket and placed it on a table in the classroom. She did not give B.L. the jacket back when he wanted it, because she wanted B.L. to understand that there are consequences to not following directions. With approximately 30 minutes left to the school day, Ms. Newton asked Ms. Quigley to call the front office for assistance. Ms. Tucker, the dean at Maplewood, came to her classroom. Before Ms. Tucker’s arrival, Ms. Newton was trying to get B.L. to stand in the back of the room. He was not following directions and had gone over to sit in a chair near the center of the room. The chair was near a free-standing easel with teaching implements attached to it, and it is reasonable to assume, given B.L.’s behavior, that Ms. Newton did not want him near the easel because of the potential for harm. Each time he went to the seat, Ms. Newton directed him away from it. When Ms. Tucker arrived, he once again sat in the chair he had been directed not to use. Ms. Newton removed him from the chair and told him again he was not to sit in it. B.L. immediately went to another chair in the same vicinity and sat down. Ms. Newton, took him by the arm and away from the chair, and took him out of the room. From Dean Tucker’s perspective, B.L. was just trying to sit in a chair. From Ms. Newton’s perspective, this was just one more instance in a litany of instances where B.L. was refusing to follow her directions. Dean Tucker was outside the room with B.L. when the door closed. B.L. starting kicking and beating on the door, screaming that he wanted in, and opened the door. Ms. Newton placed her arm on his chest and pushed against him to keep him from entering the room, and asked Ms. Tucker to lock the door from the outside, which she did. B.L. continued to kick and beat at the door, and Dean Tucker called assistant principal Greene to assist her. When Mr. Greene arrived, B.L. was still kicking at the door. He kept saying that he wanted in the classroom but would not say why. Eventually Mr. Greene was able to calm B.L. enough to find out that he wanted his backpack. Because it was close to the end of the day, Mr. Greene took B.L. to the office but instructed Ms. Tucker to retrieve his backpack from Ms. Newton’s classroom. Ms. Tucker returned to Ms. Newton’s classroom to retrieve the backpack. Ms. Newton expressed frustration at the decision to return the backpack to B.L., saying that meant “he won.” From Ms. Tucker’s and Mr. Greene’s perspectives, returning the backpack to him made sense, in part because they were not aware of the exchange related to the backpack earlier, and in part because it was close to the end of the day and B.L. would not be returning to the classroom that day. From Ms. Newton’s perspective, the backpack had been taken from B.L. because she had told him she would take it if he did not comply with her directives, and he did not do so. She felt that returning the backpack to him at that point was ensuring that B.L. had no consequences for his bad behavior. After completing their end-of-day responsibilities, Mr. Greene and Ms. Tucker returned to the classroom to speak to Ms. Newton about B.L. Ms. Newton told them that he had been out of control all day, kicking boxes, pushing chairs, and a danger to himself and others. She stated that it was only B.L.’s third day in the classroom and it would take some time to live up to expectations, but that he knew the rules and knew how to follow them. Mr. Greene felt that Ms. Newton was clearly upset with both him and Ms. Tucker with respect to how B.L. was handled. Ms. Newton asked whether B.L.’s parent had been called, and felt that his parent should have been contacted as part of addressing B.L.’s behavior. After speaking to Ms. Newton, Mr. Greene and Ms. Tucker pulled the videotape for the afternoon in Ms. Newton’s classroom. After scanning through the tape, Mr. Greene went to Ms. Burgess and asked her to view it because the tape’s contents concerned him. Once she did so, Ms. Burgess called Lisa Krysalka, the head of human resources for the District, and after discussion with her, called both the Department of Children and Families and the local sheriff’s office. She also spoke to Ms. Newton and told her she was to report to the District office the following day, and called B.L.’s parent. Rose Cohen investigated the matter for the District, which included speaking to Ms. Burgess, Mr. Greene, Ms. Newton, Suzanne Quigley, and a Ms. Ballencourt, and watching the video. Adrienne Ellers, the lead behavior analyst for the District, was asked to watch the video and to identify any deviations from the TEACH program for student management accepted by the District. Ms. Cohen recommended to the superintendent that Ms. Newton’s employment be terminated, and the superintendent presented that recommendation to the School Board. Ms. Newton appealed the recommendation and a hearing was held before the School Board, which included a viewing of the video of her classroom. The School Board rejected the superintendent’s recommendation for termination by a 3-2 vote. However, Ms. Newton did not return to Maplewood. No evidence was presented to indicate that the Department of Children and Families determined that there was any basis for a finding of child abuse or neglect. Likewise, no evidence was presented indicating that law enforcement took any action against Ms. Newton. There was also no evidence to indicate that B.L. was harmed. The focus of much of the evidence in this case dealt with the video from Ms. Newton’s classroom. The video, Petitioner’s Exhibit 1, is approximately two hours long. It is from a fixed position in the classroom and it shows some, but not all, of Ms. Newton’s classroom. It has no sound. There are parts of the video where, due to lighting deficiencies and similar skin color tones, it is difficult to tell exactly what is transpiring. There are also times when either Ms. Newton or B.L., or both, are not fully within the view of the camera, and sometimes they are not visible at all. With those parameters in mind, the video does show some of the interaction between Ms. Newton and B.L. What is clear from the video is that Ms. Newton spends a great deal of time talking to B.L., and that she remains calm throughout the day. B.L. does appear to comply with direction for short periods in the video, but never for very long. The video shows Ms. Newton holding B.L. by the arms; pulling him up both by the torso and by his arms; removing (but not “snatching”) his eyeglasses; removing his jacket with some resistance from him; blocking his access to his jacket; and kicking his backpack away from his reach. It also shows B.L. kicking items in the room, including a large box near where he is standing; rolling around on the floor; flailing his arms and legs around when he is clearly being directed to be still; and generally resisting any attempt at correction. The video also shows that during the time Ms. Newton is focused on B.L., the other students are engaged in learning, and Ms. Quigley is able to work with them without assistance. The Administrative Complaint alleges that “Respondent and B.L. engaged in a tussle which resulted in B.L. falling to the ground.” A more accurate description would be that B.L. resisted Ms. Newton’s attempts to show him how she wanted him to stand, and in his struggling, he went to the ground. It appeared to the undersigned that Ms. Newton was attempting to prevent his going down, but was unable to do so safely. The Administrative Complaint also alleges that Respondent “grabbed B.L. by the back of the neck and gripped B.L.’s neck for approximately 10 seconds.” A more accurate description would be that Respondent placed her hand at the back of B.L.’s neck and guided him with her hand at the base of his neck for approximately 10 seconds. She did not grab him by the neck or hold him that way; it appeared that she was protecting him from falling backwards, as he pulled away from her. Respondent did not, as alleged in the Administrative Complaint, drag B.L. across the floor. She did attempt to get B.L. to stand one of the many times that he flopped on the floor, and he resisted her attempt. In that process, the two of them did move across the floor a short distance, which appeared to be due to B.L.’s pulling away from her, but she was not dragging him across the floor. All of Ms. Newton’s actions were taken in an effort to either instill the rules of the classroom in order to create for B.L. an atmosphere for learning, or to prevent harm to either herself, B.L., or property in the classroom. Ms. Quigley, who was present in the classroom during most of the interchange depicted on the video, was more focused on the other students in the class than she was on B.L. She has seen a portion of the video since the incident. Ms. Quigley recalls hearing parts of the conversation between B.L. and Ms. Newton, and testified that Ms. Newton never lost control with B.L., and understood from what she heard that Ms. Newton was trying to get B.L. to follow the rules. Nothing Ms. Quigley saw or heard caused her any concern. Barbara O’Brien and Christine Spicoche are both parents of former students who testified on Ms. Newton’s behalf. Both acknowledged that they had not seen the interaction between Ms. Newton and B.L.,2/ but both have been in her classroom on numerous occasions during the years that their children spent with Ms. Newton: Ms. O’Brien’s son was in Ms. Newton’s class for six years, while Ms. Spicoche’s son was there for three years. Both expressed a great deal of gratitude for the positive effect Ms. Newton and her teaching methods have had on their sons’ lives. With respect to both children, the mothers testified that their sons went from children who were out-of-control to children who were able to function appropriately both in the classroom and in other places. As stated by Ms. Spicoche, “It would be best for him to be at a strong hand of a loving teacher who cares, who wants the best for him than being at the fist of the legal system later.” At all times, Ms. Newton’s focus was to establish the rules of the classroom so that B.L., like the other students in her classroom, would be able to learn. B.L. was different from the other students in her classroom, and she admitted he was a challenge. However, Ms. Newton’s actions in this case are consistent with her general philosophy for teaching: to be firm, fair, and consistent at all times. Ms. Newton believes that if you do not follow these principles, you have chaos in the classroom, and where there is chaos, no one is learning. With a disciplined, structured environment, Ms. Newton believes every child can learn, and the atmosphere observed in her classroom is consistent with her philosophy. Ms. Burgess chose Ms. Newton’s classroom for B.L. precisely because of her reputation as having a disciplined structured classroom. However, in her view, Ms. Newton should have just given B.L. his backpack when he wanted it; should have given him his glasses; should have let him just walk around the room when he wanted to; and should have just let him kick the door, rather than ever putting a hand on him. Ms. Burgess did not explain (nor was she asked) how many children in the classroom should be allowed to do what B.L. was doing, and whether learning could still take place should each of the children be allowed to wander, kick, and be disruptive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Education Practices Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of November, 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 25th day of November, 2015.
Findings Of Fact The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M. After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly. Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension. THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS 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 January, 1985. COPIES FURNISHED: J. David Bolder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 33512 Perry Gall Gruman, Esquire 202 Cardy Street Tampa, Florida 33606
