Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Among these schools are Homestead Senior High School, South Dade Senior High School, and Dr. William A. Chapman Elementary School. The School Board provides 180 days of instruction for students during the regular school year. Respondent has been employed as a teacher by the School Board since 1983.1 She has a continuing contract of employment with School Board. From 1983 through the end of the 1992-93 school year, Respondent was assigned to Homestead Senior High School (Homestead). Respondent was reassigned to South Dade Senior High School (South Dade) for the 1993-94 school year. She remained at South Dade until 1997. At both Homestead and South Dade, Respondent taught mathematics. Donald Hoecherl was the principal of South Dade from 1994 until 1999. During his first year at South Dade, Mr. Hoecherl had "problems and concerns [regarding Respondent's] numerous absences from work and the fact that those absences seriously impacted the delivery of the education product" to Respondent's students. He reviewed Respondent's South Dade attendance records and discovered that there was a "pattern of absences": 102 absences during the 1993-94 school year and 74.5 absences during the 1994-95 school year, as of May 19, 1995. Mr. Hoecherl then prepared the following memorandum, and gave it to Respondent (on May 19, 1995), after discussing its contents with her: MEMORANDUM May 19, 1995 TO: Henrietta Dolega, Teacher FROM: Donald A. Hoecherl, Principal South Dade Senior High School SUBJECT: ABSENCE FROM WORK SITE DIRECTION Please be advised that you have been absent from the worksite during the 1994-95 school year for a total of 74.5 days. Additionally, during the 1993-94 school year you were absent from the worksite for a total of 102 days. The absences were listed as follows: sick-9, personal-1, contagious disease-7, leave without pay-24, hardship- 32, sick leave bank-18, and emergency leave- 11. Your absences from duty adversely impact the educational environment by: failing to provide support services for students, impeding the academic progress of your students, failure in providing a continuity of instruction and effective operation of this school. As a result of your continued absences from work you are advised of the following procedures concerning any future absences: Intent to be absent must be communicated directly to Mr. Hoecherl or Mr. Dawson and then to the appropriate secretary to secure a substitute in accordance with procedures delineated in the faculty handbook. Emergency lesson plans for twenty days on file with your department chairperson. Maintain the emergency lesson plans at 20 days upon return from absences. Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Hoecherl or Mr. Dawson upon your return to work along with a medical release to return to full duties. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. These directives are in effect upon the receipt of this notice and are necessary to prevent adverse impact to students and their academic progress, and to insure a continuity of the educational program. Additionally, these procedures are meant to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities. The directives contained in the memorandum were reasonable in nature and within Mr. Hoecherl's authority to give Respondent. Mr. Hoecherl required Respondent to have "[e]mergency lesson plans for twenty days on file with her department chairperson" because "there would often be that many [consecutive] da[ys] [that Respondent would be] out." On May 22, 1995, Mr. Hoecherl held a Conference-for- the-Record with Respondent to discuss Respondent's "excessive absences from work." Mr. Hoecherl subsequently prepared (on June 2, 1995) and furnished to Respondent (on June 7, 1995) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A conference for the record was held on May 22, 1995, in the office of the principal. The conference was attended by: Katrina Chinni, Union Steward, Henrietta Dolega, Teacher, Carol Brown, Assistant Principal and Donald A. Hoecherl, Principal. The conference as indicated in the notification dated May 19, 1995, addresse[d] your excessive absences from work. Please find attached the memorandum titled "Absence From [Work] Site Direction." The procedures outlined in that directive were reviewed during the conference. You are reminded that these procedures must be adhered to. Mrs. Chinni indicated that you felt two areas outlined in the absence from work site direction procedures were unreasonable and bordered on violating your contractual rights. The items were the requirement to have 20 days of emergency lesson plans on file with your department chairperson and direction to notify two people of your absences. After further review the established guidelines will remain as written in the "Absence From Work Site Direction." That memorandum, therefore is now a formal part of this summary of the conference for the record. Additionally, you were provided information regarding areas of assistance available to you through the Dade County Public School System. I am confident that the concerns identified can be corrected. You are reminded that you are entitled to attach a written response to be included as part of this process. In an effort to help Respondent improve her attendance, Mr. Hoecherl referred Respondent to the School Board's Employee Assistance Program on May 25, 1995. Respondent's attendance, however, did not improve. Furthermore, "she didn't always" follow the directives set forth in Mr. Hoecherl's May 19, 1995, memorandum. There were occasions when she did not have a 20-day supply of lesson plans on file with her department chairperson; neither did she consistently notify Mr. Hoecherl or Mr. Dawson of her intent to be absent. Accordingly, on December 19, 1995, Mr. Hoecherl held another Conference-for-the-Record with Respondent. Mr. Hoecherl subsequently prepared (on January 16, 1996) and furnished to Respondent (on February 28, 1996) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A conference for the record was held on December 19, 1995 at 9:05 A.M. in the office of the principal. The conference was attended by Katrina Chinni, Union Steward, Henrietta Dolega, Teacher, and Donald A. Hoecherl, Principal. The conference as indicated in the notification of the conference for the record dated January 15, 1995, addressed your continual absence from work. It was noted during this conference for the record that as of December 19, 1995 you have acquired twelve absences from work. It was noted that your absence disrupts the educational process for our students. Additionally, it was noted that as of December 19, 1995 you were out of all accrued sick leave. Also, you were reminded that on several occasions you failed to follow the prescription provided on May 19, 1995 in the Absence From Work Site Directi[on]. You were reminded that you must notify the Principal or the Principal's Designee in addition to Ms. Dafcik. Additionally, you were reminded that failure to comply with the guidelines outlined in the conference for the record and the Absence Form Work Site Directi[on] would result in additional administrative action. Please feel free to contact me if I may be of any help in providing any assistance in an effort to mediate this ongoing problem. You are reminded that you are entitled to attach a written response to be included as a part of this process. I am confident that the concerns identified in this conference can be corrected Ms. Chinni, on behalf of Respondent, submitted the following written response to Mr. Hoecherl's January 16, 1996, memorandum and requested that it be considered an "addendum" to the memorandum: In the summary of conference for the record for Henrietta Dolega held Tuesday, December 19, 1995, the following items were omitted: The conference was also attended by Ted Hennis, Assistant Principal. The union stated that Ms. Dolega had documentation for all of her absences and that she was actively trying to address her health problems. The union stated that Ms. Dolega had shown a pattern of intent to comply with the directive to inform Mr. Hoecherl when she was going to be absent. Respondent was absent a total a 46 days during the 1995-96 school year. From the beginning of the 1996-97 school year through October 24, 1996, Respondent had ten days of absences. Respondent also arrived late to work and failed to provide "emergency lesson plans" in accordance with Mr. Hoecherl's May 19, 1995, memorandum. Accordingly, on October 24, 1996, Mr. Hoecherl held another Conference-for-the-Record with Respondent to address these ongoing problems. Mr. Hoecherl subsequently prepared (on October 25, 1996) and furnished to Respondent (on October 28, 1996) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A Conference-for-the Record was held on Thursday, October 24, 1996 at 8:54 a.m. Present at the conference were Ted Hennis, Assistant Principal; Henrietta Dolega, Teacher; Donald A. Hoecherl, Principal; and Katrina Chinni, UTD Representative. This conference was held in compliance with the UTD Contract Article XXI and addressed: Absences from work. Lateness to work. Failure to provide emergency lesson plans as outlined in the work site directive. Absences from Work A review of your attendance indicated that in addition to your absences addressed during the Conference-for-the-Record held on January 16, 1996, you missed an additional twenty-seven (27) days for a total of 46 days during the 1995-1996 school year. As of this date, you have been absent a total of ten (10) days for the 1996-1997 school year. Additionally, you are currently out of accrued or personal leave. Furthermore, it has been noted that on several occasions you have been late to work. Your absences from duty and lateness to work adversely impact[] the educational environment by: failing to provide support services for students, impeding [t]he academic progress of your students, failure in providing a continuity of instruction and effective operation of this school Your failure to maintain the emergency lesson plan file is in direct disregard for the procedures established prior to and re- established during the Conference-for-the Record held January 16, 1996. In an effort to be clear, as this is a new school year, you are reminded that, as a result of your continued absences from work you are advised that you must continue to adhere to the following procedures concerning any further absences: Intent to be absent must be communicated directly to Mr. Hoecherl or Mr. Hennis and then to the appropriate secretary to secure a substitute in accordance with procedures delineated in the Faculty Handbook. Emergency lesson plans for twenty (20) days on file with your Department Chairperson and Mr. Hennis. Emergency lesson plans must be reviewed by Mr. Hennis prior to being placed in your emergency lesson plan file. Maintain the emergency lesson plans at a twenty (20) day level upon return from absences. Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Hoecherl or Mr. Hennis upon your return to work along with a medical release to return to full duty. Any absence not documented as indicated above and outside of your six (6) personal days will be listed as unauthorized leave without pay. If it is determined that future absences are imminent, leave must be requested and procedures for Board Approved leave implemented. In regard to [the] Gail L. Grossman, Attorney at Law, request to reschedule the Conference-for-the-Record as she was unavailable to attend and provide representation[,] [y]ou were reminded that Article XXIV of the UTD Contract states "An employee ma[]y not be represented by a minority/rival union or by an attorney in a Conference-for-the-Record. This administrator asked if you had any comments and you replied that in regard to the lesson plans provided during one of your absences that the Department Chairperson misunderstood your references to the mixed review, thus not providing an adequate lesson for the day. The directives established are in effect as of this conference and are necessary to prevent adverse impact to students and their academic progress and to [e]nsure a continuity of the educational program. Additionally, these procedures are necessary to maintain an effective worksite operation. Also be assured that assistance will continue to be provided upon your request. In conclusion, failure to comply with these directives will result in additional disciplinary action. You are apprised of your right to append, to clarify or to expand any information recorded in the conference by this summary. Mr. Hoecherl again referred Respondent to the School Board's Employee Assistance Program on October 24, 1996, in a continuing effort to help her improve her attendance. Respondent's attendance, however, continued to be a problem. By February 24, 1997, Respondent had accumulated 40 days of absences for the school year (nine days of sick leave, two days of personal leave, 25 days of authorized leave without pay, and four days of unauthorized leave without pay). By memorandum, dated February 25, 1997, to Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, Mr. Hoecherl requested a "determination of fitness" for Respondent. The memorandum read as follows: I am by way of this memorandum requesting the assistance of the Office of Professional Standards regarding Ms. Henrietta Dolega (employee # 143398). Ms. Dolega has a history of excessive absenteeism from the 1993-1994 school year to present. Ms. Dolega's attendance pattern has seriously impacted the students in her charge. At the present time, she is assigned to teach Algebra II for five class periods. Based on the information provided, I am requesting that a Determination of Fitness be conducted prior to Mrs. Dolega's return to South Dade High School. Please contact me at 247-4244 if you require any additional information. Appended to the memorandum was a "leave history that Mr. Hoecherl provided to Dr. O'Donnell" indicating the number and types of Respondent's absences from the 1993-1994 school year up to February 24, 1997. As of March 10, 1997, Respondent had been absent 28 consecutive days. On March 7, 1997, Respondent had requested, in writing, "a leave of absence without pay effective 2/24/97 through 3/10/97 (TENTATIVE)." On March 10, 1997, Mr. Hoecherl sent the following memorandum to the School Board's Leave Office requesting that Respondent's leave request be denied: I am requesting that the Leave Without Pay Request from Henrietta Dolega, employee #143398 be denied. As you can see from her request, Ms. Dolega is requesting leave from February 20 through March 10, 1997. Ms. Dolega has been absent from work a total of fifty (50) days this school year. Her latest absences began January 27, 1997, and as of March 10, 1997, continues for 28 consecutive days. This current request for Leave Without Pay comes to us after the fact. As a result, a permanent substitute could not be secured. Ms. Dolega continues to notify us on a weekly basis of her attendance status. Additionally, a review of Ms. Dolega's attendance history indicates that this is not a first time occurrence. . . . On March 14, 1997, Dr. O'Donnell held a Conference- for-the-Record with Respondent, at which it was agreed that Respondent would be placed on medical leave (without pay) until April 30, 1997. Dr. O'Donnell subsequently prepared (on March 19, 1997) and then mailed to Respondent a memorandum in which she summarized what had transpired at the conference. The memorandum read as follows: On March 14, 1997, a meeting was held with you in the Office of Professional Standards. In attendance were: Mr. Don Hoecherl, Principal, South Dade Senior; Ms. Julia Menendez, Director, Region VI; Ms. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade (UTD); and this administrator. This meeting was held to clarify your status in reference to returning to work and your future employment with Dade County Public Schools. Your attendance pattern over the past four years was reviewed as follows: 1993-94 102 total days absent 1994-95 75.5 total days absent 1995-96 46 total days absent 1996-97 55 total days absent as of 3-14-97 Despite the fact that you have provided documentation from your physician, your pattern of absences has caused serious problems with the delivery of an appropriate curriculum and the continuity of the educational program. You have been absent the past 35 consecutive days and you were notifying the school on a daily or weekly basis. Therefore, Mr. Hoecherl was not able to hire a full-time certified teacher to replace you. At this point, the following options were reviewed with you: be in attendance every day resign you position from Dade County Public Schools retire, if eligible request leave. Your pattern of absences and leaves is disruptive and must stop. A long term solution is vital. You agreed to request leave through April 30, 1997. By April 23, 1997, you will provide official written clearance by your physician or you will extend your leave through the end of the 1996-97 school year. Should you return this school year, Mr. Hoecherl will expect you to be in attendance every day. If you are absent, the school will take action. Also, you will be required to clear through the Office of Professional Standards prior to your return either in May or August 1997. You were reminded to follow the directive previously given you regarding absences. You must speak with Mr. Hoecherl or Mr. Hennis during work hours. Do not leave messages on answering machines or with anyone else. Further, you were directed to provide original notice from your physician rather than a fax. It is the desire of DCPS that you can resolve your health issues and return to work. However, if you cannot, a more permanent resolution must be reached. You agreed to provide to me the original leave form with an attached doctor's notice by March 24, 1997. Respondent, who suffered from adhesions, thereafter requested, and was granted, a series of extensions of her medical leave (without pay). After being on medical leave for three years, Respondent became depressed and started seeing a psychiatrist, Stephen Kahn, M.D. By letter dated March 30, 2001, Dr. Kahn "released [Respondent] to resume her position as full-time teacher without restriction." On April 25, 2001, Dr. O'Donnell held a Conference- for-the-Record with Respondent to discuss Respondent's return to the classroom. Dr. O'Donnell subsequently prepared (on April 26, 2001) and furnished to Respondent (on May 5, 2001) a memorandum in which she summarized what had transpired at the conference. The memorandum read as follows: On April 25, 2001, a conference-for-the- record was held with you in the Office of Professional Standards (OPS). In attendance were: Ms. Clemencia D. Waddell, Region Director, Region VI; Dr. Randy Biro, Bargaining Agent Representative, United Teachers of Dade (UTD); and this administrator. Service History As you reported in this conference, you were initially employed by Miami-Dade County Public Schools as a teacher in October 1983, and you were assigned to Homestead High School through June 1993. You were assigned to South Dade Senior High School from August 1993 through January 1997. You have been on Board approved leave since January 1997 through the present. You indicated that your teacher certificate is valid through June 30, 2004, in Elementary Education, Mathematics, and that you hold a Continuing Contract (CC) with the District. Conference Data Reviewed A review of your personnel file in the Office of Professional Standards reveals an extensive documentation of attendance and performance problems since 1984. On March 14, 1997 a conference-for-the-record was held in the Office of Professional Standards. On that date, your attendance pattern was reviewed from the prior four years and is as follows: Years Days Absent 1993-1994 102 days 1994-1995 78.5 days 1995-1996 46 days 1996-1997 55 days (prior to March 14th) At the March 14, 1997, conference-for-the- record held in the OPS, you were told that despite the extensive documentation provided from a variety of treating physicians, your absences are deemed to be excessive. You were advised that if you could not be in regular attendance to request a Board- approved leave of absence; which you did. A review of your leave history is as follows: Leave From Through Type October 8, 1992 December 16, 1992 Illness October 25, 1994 December 16, 1994 Illness February 2, 1994 May 31, 1994 Illness February 18, 1997 February 15, 2001 Personal As of this date, you have exhausted all leave options available to you through Miami-Dade County Public Schools and no further requests for any type of leave would be honored. You were asked if you understood this condition and you indicated that you did. You were told that your treating physician, Dr. Stephen Kahn, forwarded a statement which read, "Ms. Dolega is released to resume her position as full-time teacher without restriction." However, he did not respond to several requests from OPS to review the job descriptions for both elementary and secondary teacher. Dr. Randy Biro stated that you feel you can perform all of the responsibilities of a teacher. Ms. Clemencia Waddell informed the participants that you are assigned to William A. Chapman Elementary School with teaching duties within your area of certification. You were told that, from information provided by the payroll department, you would be granted four sick days upon your return. You were also told that taking into consideration your previous history with poor attendance that you would be referred to OPS if you were absent; you said that you understood. Action Taken You were reminded of the availability of services from the District's support referral agency. You were provided the option to resign your position with Miami- Dade County Public Schools. The following directives are herein delineated which were issued to you during the conference concerning future absences. Be in regular attendance and on time. Intent to be absent must be communicated directly to Ms. Paulette Martin, Principal, William A. Chapman Elementary. Site procedures for provision of lesson plans and material for the substitute teacher when absent must be adhered to in the event of any absence from the site. Should future absences exceed the number of days accrued, the absences will be considered LWOU and employment action will ensue. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to students and their academic progress, the operation of the work unit, and to insure continuity of the educational program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of disciplinary measures. During the conference, you were provided with a copy of School Board Rule 6Gx13-4A- 4E-1.01, Absences and Leave. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely affects this level of professionalism. Ms. Martin, Principal, was apprised as to your return to the worksite on April 30, 2001, to assume classroom duties. Action To Be Taken You were advised that the information prescribed in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region VI and the Principal of William A. Chapman Elementary School. Any noncompliance with the prescriptive directives issued would result in the recission of site disciplinary action and compel district disciplinary measures to include dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have such response appended to your record. The directives given to Respondent at the April 25, 2001, Conference-for-the-Record (and "delineated" in Dr. O'Donnell's summary of the conference) were reasonable in nature and given with proper authority. The "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent" at Dr. William A. Chapman Elementary School (Chapman Elementary) required each teacher to have a folder containing lesson plans for a five-day period for use by a substitute in the event of the teacher's absence. Respondent returned to the classroom after more than a four-year absence on April 30, 2001. She was assigned to Chapman Elementary to teach a third grade class with 13 or 14 students. Paulette Martin is now, and has been since the 2000-01 school year, the principal of Chapman Elementary. In early May of 2001, shortly after Respondent's return to the classroom, her younger brother passed away. Too upset to come to work, Respondent took off from work the following day. Her absence was covered by accrued leave and authorized. Respondent took off from work one other day during the 2000-01 school year following her return to work. Feeling "bad[ly]" about her brother's death and her failure to have attended his funeral (in Maryland), Respondent had trouble sleeping at night. It "got to a point" where Respondent believed that, for the sake of her health, she needed to take a day off from work. That day was June 7, 2001. This second absence following her return to the classroom was also covered by accrued leave and authorized. Respondent was not assigned to teach summer school following the 2000-01 school year. Respondent returned to Chapman Elementary for the 2001-02 school year. In September and October of that year she was absent a total 12 days (September 4, 14, 27, and 28, and October 1, 2, 3, 4, 5, 10, 22, and 23). Six of these days of absences (September 4, 14, 27, and 28 and October 1 and 22) were covered by accrued leave and authorized. The remaining days of absences were not covered by accrued leave and they were unauthorized. These absences "had a negative impact on [the students in Respondent's] class." On October 30, 2001, Ms. Martin prepared the following memorandum, which she subsequently gave to Respondent: SUBJECT: NOTICE OF EXCESSIVE ABSENCES September 4 Sick September 14 Sick September 27 Sick September 28 Sick October 1 Sick It has been determined that you have been excessively absent during the 2001-2002 school year. To date, you have been absent on the following days: October 2 LWOPU[2] October 3 LWOPU October 4 LWOPU October 5 LWOPU October 10 LWOPU October 22 Sick October 23 LWOPU Your absences total twelve (12) days, exceeding the number of days you have accrued. As stated in the Summary of the Conference-for-the-Record of April 25, 2001, you were advised of past absences and directed as follows: Be in regular attendance and on time. Intent to be absent must be communicated directly to the principal. Site procedures for provision of lesson plans and materials for substitute teachers when absent must be adhered to in the event of absence. Should future absences exceed the number of days accrued, absences will be considered Leave Without Pay (Unauthorized) and employment action will ensue. You were also advised that noncompliance with these directives would necessitate a review by the Office of Professional Standards for imposition of disciplinary measures. Please be advised that this memorandum is being submitted to the Office of Professional Standards and the Region Director for Personnel for review and subsequent action. Ms. Martin brought to Dr. O'Donnell's attention that "once again [Respondent] was experiencing attendance problems and had been excessively absent." Accordingly, on November 16, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent. Dr. O'Donnell subsequently prepared (on that same date) and furnished to Respondent a memorandum in which she summarized what had transpired at the conference. The memorandum read, in pertinent part, as follows: Conference Data Reviewed A review of the record included reference to the following issues: Attendance-to-date Leave/attendance history Previously issued attendance directives. You returned to the work site on April 30, 2001. You were absent two days before the end of the school year which ended on June 15, 2001. Your attendance for the current school year is as follows: Sick/Personal 6 Temporary Duty 1 Leave Without Pay 6 (Unauthorized) 13** **through October 23, 2001 15 days absence since your return from leave on April 30, 2001 You were asked if you wished to respond to this continuing pattern and you said that in reference to your absences last May, your brother passed away. You stated that you have had all of your teeth pulled and replaced and that is why you have been absent this school year. You were reminded of the directives regarding attendance that you have been previously issued. You were told that your dental problem should have been addressed during the summer or winter break or any time that would not interfere with the educational program of the students. You were then reminded of a meeting held with you in the Office of Professional Standards on March 14, 1997, which was held to review your absences and ability to return to work. The following options were reviewed with you at the meeting: Be in attendance every day Resign your position from Miami-Dade County Public Schools Retire, if eligible Request leave You effected a leave retroactive to January 1997 after the March 1997 meeting. You were reminded of your previous record of absences and leaves as reviewed at the conference- for-the-record held in the Office of Professional Standards on April 25, 2001 which was as follows: Years Days Absent 1993-1994 102 days 1994-1995 78.5 days 1995-1996 46 days 1996-1997 55 days** **through January 1997 when you effected leave. Leave From Through Type October 8, 1992 December 16, 1992 Illness October 25, 1994 December 16, 1994 Illness February 2, 1994 May 31, 1994 Illness February 18, 1997 February 15, 2001 Personal You were reminded that previously your absences had been deemed to be excessive. You were also reminded that you have exhausted all leave options and no further requests for any type of leave would be honored. You were asked if you wished to respond to this information and you declined comment. At the April 25, 2001 conference-for-the- record, which was held in OPS, your treating physician forwarded a statement which read in full, "Ms. Dolega is released to resume her position as full-time teacher without restriction." At that meeting, Dr. Randy Biro, your Member Advocate, stated that you are able to perform all teaching responsibilities. You were also reissued attendance directives. You have failed to comply with the directives which were issued to you by virtue of your six unauthorized absences during the current school year. Your actions are considered to be gross insubordination. You were asked if you had any statement to make regarding your continued pattern of excessive absences and you did not. Action Taken You were told that due to your history of excessive absences, you had been referred to OPS. On two previous occasions, as well as today's conference, you were issued the following directives: Be in regular attendance and on time. Intent to be absent must be communicated directly to Ms. Paulette Martin, Principal, William A. Chapman Elementary. Site procedures for provision of lesson plans and materials for the substitute teacher when absent must be adhered to in the event of any absence from the site. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay Unauthorized (LWOU) and employment action will ensue. Pending further review of this case and formal notification of the recommended action of disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact to the operation of the work unit and to the services provided to students, as well as to insure continuity of the program. Noncompliance with these directives will necessitate further review by the Office of Professional Standards for the imposition of (additional and immediate) disciplinary action. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely affects this level of professionalism. Ms. Martin was apprised as to your return to the worksite. You were advised to keep the information presented in this conference confidential and not discus this with students or staff. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Superintendent of Region VI, Assistant Superintendent in the Office of Professional Standards, and the Principal of William A. Chapman Elementary School. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include any of the following: a letter of reprimand, Domain VII (PACES Professional Responsibilities Component) Professional Improvement Plan (PIP) which could impact the annual evaluation decision, suspension, or dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have such response appended to your record. Respondent was not absent in November of 2001. Her next absence was on December 10, 2001. This absence was covered by accrued leave and authorized. A determination was made that Respondent "be recommended for dismissal for the following charges: gross insubordination, willful neglect of duty and incompetency." On December 12, 2001, Dr. O'Donnell held a Conference- for-the-Record with Respondent to discuss this recommendation. Respondent was given the option to resign or retire "in lieu of dismissal." Speaking through her union representative, Respondent declined the offer, claiming that her "absences were due to illness." On the days that she was absent following her return to the classroom on April 30, 2001, Respondent did not report to work because she believed that she was too ill to do so. Although she was well aware of the directive that she had been given to "[b]e in regular attendance," she felt that, because of her condition on these days, she was not able to come to work and properly discharge her classroom teaching responsibilities. At the beginning of the school year, Respondent cut her leg on her dishwasher and the wound did not heal properly. She consulted her physician, who prescribed two antibiotics for her. The antibiotics "knocked [her] for a loop" and she missed work as a result. Respondent also missed a day of work because she had a bout of diarrhea. On September 27 and 28, 2001, and October 1, 2, 3, 4, and 5, 2001, Respondent was recovering from oral surgery (the extraction of all of her remaining teeth) that was performed on her after school on Wednesday, September 26, 2001. She was absent on these days because she was "taking pain pills and [she] was really in pain." The surgery that resulted in her absences on September 27 and 28, 2001, and October 1, 2, 3, 4, and 5, 2001, was done to enable Respondent to receive full upper and lower dentures. Respondent had a long-standing need for such dentures. The dentures were necessary, as her dentist, Dr. Hans Sperling, testified (by deposition), because: [Respondent] ha[d] extensive decay in her mouth present to the point that the teeth were not restorable. She also had severe periodontal disease, extensive bone loss around the teeth, which will not render the teeth appropriate to use as [an] abutment to retain either a partial denture or fixed bridges. Dr. Sperling first noticed "extensive decay in [Respondent's] mouth" during her initial visit to his office on October 9, 1999. At that time, Dr. Sperling told Respondent that "she needed the extractions" and that they should be "done by an oral surgeon" because of the "extensive amount of teeth that need[ed] to be taken out." He further advised her "that she would need a complete exam before anything else was done." Respondent did not see Dr. Sperling again until April 6, 2001, when Dr. Sperling gave her a "complete exam," which revealed that she still had "severe decay in her teeth." Dr. Sperling also found that she had "severe periodontal disease." Respondent next saw Dr. Sperling on June 26, 2001. On that date, Dr. Sperling "took impressions of her lower and upper jaws," the first step in the process to provide her with dentures. Respondent was next scheduled to see Dr. Sperling on July 19, 2001, but she "broke[] this appointment." Respondent next saw Dr. Sperling on August 9, 2001. During this visit, Dr. Sperling "registered her bite so [he could] articulate the models on an articulator." Respondent's next visit to Dr. Sperling was on September 5, 2001, when she "tried . . . the [dentures] that she was going to be having." Her last pre-surgery visit to Dr. Sperling was on September 25, 2001, when she picked up the dentures that the oral surgeon was going to place in her mouth. Dr. Sperling advised Respondent that it would take approximately four days for her to recover from the oral surgery and suggested that she schedule the surgery for a Thursday so she would be able to return to work on the following Monday. Respondent scheduled the oral surgery for Wednesday, September 26, 2001. Respondent believed that, by having the surgery on this date, she would miss only two days of work and only one day with her students inasmuch as Friday, September 28, 2001, was a teacher planning day and she anticipated that she would be able to return to the classroom the following Monday, October 1, 2001. Respondent had enough accrued leave to cover this anticipated two-day absence. Respondent's recovery, however, took longer than anticipated and she was absent the entire workweek (Monday, October 1, 2001, through Friday, October 5, 2001) following the surgery. Dr. Sperling conducted a "post-operative evaluation" of Respondent on October 1, 2001. He observed that "the healing was within normal limits," although Respondent did complain to him that she was still experiencing pain. Respondent did not have the surgery done during the preceding summer, when she was not working, because she could not afford it at that time. The dentures that were placed in her mouth "are temporary[.] [E]ventually [she will] have implants." While Respondent's absences following her return to the classroom on April 30, 2001, were not contumacious acts, she did willfully disregard the directives given her that her "[i]ntent to be absent must be communicated directly" to Ms. Martin and that "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent must be adhered to in the event of any absence from the site."3 Respondent repeatedly failed to follow these directives despite having the apparent ability to do so (just as she had ignored similar directives when she was teaching at South Dade under Mr. Hoecherl's supervision). Respondent did not communicate her intent to be absent to Ms. Martin prior to any of her absences. Furthermore, Respondent did not maintain a folder containing lesson plans for substitute teachers to use in her absence. Respondent was verbally advised that she was not in compliance with the "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent." Nonetheless, to the detriment of the students in her class, she continued to wait until after the instructional day had begun (anywhere from 45 minutes to an hour and beyond) to provide (by facsimile transmission) lesson plans for the substitute teacher (rather than maintaining a folder with a five-day supply of lesson plans). At its January 16, 2002, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [her] from all employment by the Miami-Dade County Public School, effective the close of the workday, January 16, 2002, for gross insubordination; incompetency; and willful neglect of duty."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a continuing contract teacher with the School Board for her "gross insubordination" and "willful neglect of duty," as more specifically described above. DONE AND ENTERED this 7th day of June, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 7th day of June, 2002.
The Issue The issue for determination is whether Respondent's teaching certificate should be disciplined for alleged violation of various provisions of Section 231.28, Florida Statutes, and Rule 6B
Findings Of Fact Respondent Clayton McWilliams holds Florida teaching certificate number 653517, covering the area of substitute teaching, which is valid through June 30, 1994. He is 27 years of 1989, from Valdosta State College in Valdosta, Georgia. After a few brief months employment in retail sales in Tallahassee, Florida, Respondent returned to Madison, Florida, where he was born and lived prior to attending college. Respondent returned to Madison in August of 1989, after being contacted by the high school coach there regarding the possible employment of Respondent as an assistant coach at the high school from which Respondent graduated. He was employed in the 1989 County School Board. Subsequently, he was employed by the Board during the 1990 high school. Respondent served as an assistant coach during this period. While serving as a substitute teacher during the 1989 Respondent was responsible for a ninth grade science class. Female students M.B., R.B., J.D., and R.C., were in a group surrounding Respondent's desk, talking with Respondent. All the students in the group were curious about Respondent and asked him such questions as what are you going to coach, are you married, do you have a girl friend, and why did you come back to Madison? Respondent knew many of the students on a first name basis and, in the course of bantering with the group, responded at one point to the students' questions about his private life by asking the students about their social lives, if they kissed their boy friends with their mouths open, and if they used their tongues. There was general laughter from the students, although R.B. didn't think the question was "any of [Respondent's] business." This was the only question or comment that Respondent ever made that bothered R.B. R.B. regarded Respondent's conduct in the ensuing two years as "flirting" and "didn't ever think anything bad about it." The next year when R.B. was in the tenth grade (1990 photograph. Respondent later told R.B. that he stared at the photograph every night. When R.B. was in the eleventh grade and not a student in a class taught by Respondent, Respondent jokingly asked R.B. in the presence of D.C., her boyfriend at the time and an athlete with whom Respondent enjoyed a rapport, why she wanted to date such a "big, old dummy." There were other times that Respondent would see R.B., tell her that she looked nice, wink at her and blow her kisses. During the 1990 M.B., by asking her if she kissed with her mouth open, and would she teach Respondent how to do this. Respondent also told M.B. that she looked beautiful. M.B. was not a student in a class taught by Respondent. During the 1991-1992 school year, M.B. was a high school junior and a varsity cheerleader. Respondent continued to speak to M.B., although she was not his student, when he saw her on the school campus or at sporting events. He continued to ask M.B. about kissing with her mouth open, whether she would teach Respondent how to do this, and when could she teach him. M.B. declined to specify any time or place to meet with Respondent. M.B. did not disclose Respondent's behavior to anyone at this time. On one occasion, M.B. and other eleventh grade students, including her boyfriend, were in the high school library, ordering their class rings. Respondent became involved in conversation with the students and asked M.B. again about teaching him to kiss open would lose his job for M.B. Although he heard these comments, M.B.'s boyfriend considered Respondent to be joking. In the fall of the 1991 Wakulla County for a game which would determine whether the team could compete in the district championship playoff. Upon boarding the bus after the game for the trip home, Respondent was asked by M.B. if he was going to sit with her on the bus. He replied that he would if she saved him a seat. Respondent stored the athletic equipment which he was carrying, returned to the forward section of the bus and assumed the vacant seat beside M.B. Since the team had lost the game, most passengers on the bus were despondent. In the course of the trip, M.B. and Respondent leaned their heads against the back of the seat in front of them and Respondent talked about college and how being from a small high school had been difficult when he had attended the University of Florida before transferring to Valdosta State. Respondent had his hands between his knees as he talked and at one point placed it on M.B.'s knee or patted her knee. She, feeling discomfited by the gesture, brushed his hand away. This was the only time that Respondent touched a student where such touching was interpreted by a student to have sexual significance. Respondent testified that he patted M.B. because she acted as though "something had been bothering her" and characterized the pat as something he would give "football players or baseball players at school." Eventually, M.B. became sleepy and rested her head against the bus window. Respondent in a normal tone of voice offered to let her place her head on his shoulder, but M.B. declined. During the 1991 photographs. On the back of his photograph, Respondent wrote: M., I remember when I first saw you, you struck me as beautiful. I really think you are. You are truly special to me. Please know that I love you. Stay sweet and pretty. Love, Clayton. P.S., Please teach me sometime. Mary Rice, a teacher at the high school, began teaching there at approximately the same time as Respondent. Rice, like Respondent, was single. Rice, like Respondent, enjoyed informal relationships with some students, such as the cheerleaders for whom she served as staff sponsor. The cheerleaders, similar to many students who called Respondent by his first name, referred to Rice as "Mary". She became engaged in October of 1991 to Scott Alley, another teacher who occasionally substituted at the school. Rice and Respondent had a normal collegial relationship. Prior to Christmas of 1991, Rice and Respondent were in the school office discussing what they were getting their significant others for Christmas. Respondent told Rice that he would tell her what he was getting his girl friend for Christmas if Rice would have sex with him. Later in the day, Respondent got down on his knees in the hallway outside of Rice's classroom in the presence of students and asked Rice to "go with me before you get married". While Respondent meant that he wanted to have sex with Rice, he did not explicitly state such in the hallway. Later, Respondent sent Rice a note containing four blanks for letters. According to Rice, the note stated that Respondent would tell Rice what he was getting for his girlfriend for Christmas if Rice would " ". Rice assumed the four blanks to represent a sexually suggestive word. Rice stored the note in her desk drawer. She determined not to tell anyone about the note. In February of 1992, her fiancee, Scott Alley, discovered the note in the desk while he was substituting for Rice. He showed the note to Debra Wetherington, a school secretary, and later asked Rice about the note. Rice was startled that Alley had found the note and became upset. Later, in a telephone conversation initiated by Respondent, he discussed the note with Alley. Respondent apologized to Alley for any misunderstanding about the note, stating that he had written it merely to get a laugh from Rice. Respondent told Alley that he, Respondent, just flirted with everyone and that was "how I broke the ice with everyone." After Respondent's apology, the two men agreed to remain friends. Subsequently, the note was destroyed by Alley. Debra Wetherington, the secretary at the high school, frequently interacts with the teaching staff. Initially, Respondent and Wetherington enjoyed a good working relationship no different than those she shared with other teachers. She had known Respondent all of his life. Over a period of time, Respondent began to flirt with Wetherington, asking her about open mouth kissing. At these times, Wetherington ignored his remarks or laughed them off as a joke. When his behavior persisted, she told him that his conduct bothered her and that he should stop. She never told her husband or any one else about Respondent's attentions, hoping to resolve the matter without confrontation and embarrassment. On or about February 25, 1992, Respondent came into the school office and physically put his arms around Wetherington in a "bear" hug and, according to Wetherington, tried to put his tongue in her ear. Also present in the room were the school resource officer and another office worker. No eyewitness corroboration of Wetherington's allegation that Respondent attempted to put his tongue in her ear was offered at the final hearing and she had not reported this detail in an earlier affidavit regarding the incident. Respondent denies he attempted to put his tongue in her ear. Respondent's testimony is more credible on this point and it is not established that he attempted to put his tongue in Whetherington's ear. Wetherington later complained about Respondent's conduct to Lou Miller, the school principal. Miller called Respondent into her office, discussed the incident with him, and directed him to have no such contact with Wetherington in the future. Respondent apologized for his conduct, both to Miller and Wetherington. While Respondent and Wetherington had no further contact, Wetherington later asked another teacher, Tony Stukes, if Respondent was angry with her since she had not seen or heard from him lately. On or about March 24, 1992, Respondent saw M.B. in the hallway outside the door of his classroom while classes were changing. Respondent spoke to M.B. and told her that he had a dream about her. M.B. went to see Mary Rice, the cheerleading sponsor, who had earlier asked M.B. if she was having any problems with a teacher. Rice had taken this action following the discovery of Respondent's note in Rice's desk by Rice's fiancee. M.B. had confided in Rice about Respondent's previous flirtatious behavior toward her. Rice told her to write down future incidents. After relating to Rice the comment of Respondent about having a dream, M.B. was asked by Rice to go back to Respondent and find out more about the dream. M.B. went into Respondent's class where the students were working on a geography project. An overhead projector displayed the continent of South America on a board. Some students were tracing the projection on the board, preparatory to cutting the shape out of the board. Other groups were cutting out other continents. The lights in the room were turned on. Respondent was sitting at his desk, cutting out the Asian continent. M.B. went to a chair by Respondent's desk and sat down. M.B. was on her lunch break and was not a student in the class. However, in the context of the situation, her entry into the classroom was not that unusual. Respondent had on previous occasions entered an art class where M.B. was a student and had spoken with her or, on some of these occasions, had also spoken with the teacher in the class. After seating herself by his desk, M.B. asked Respondent to tell her about his dream. Respondent replied that he couldn't, but M.B. persisted. Finally, Respondent wrote on a piece of paper, "I had a dream about you and me." M.B. then wrote on the paper, "Well, what happened?" The rest of the written exchange is as follows: Respondent: "Well, all I remember is you were teaching me." M.B.: "Teaching you what?" Respondent: "Guess." M.B. "I don't know. Why don't you tell me what I was supposedly teaching you." Respondent: "How to kiss with my mouth open. I liked it, too. I woke up sweating and holding my pillow to my mouth." M.B. then took possession of the piece of paper on which she and Respondent had been writing, left the class and went back to see Mary Rice. M.B. discussed the matter with Rice. After this discussion, M.B.'s feelings about Respondent solidified and she determined that she detested Respondent. At Rice's suggestion, she then went to see Principal Miller. Miller and School Superintendent Eugene Stokes confronted Respondent with the note. Respondent stated he meant no harm by his conduct, recognized that he had a problem and needed help for his aberrant behavior. After a discussion of options, including suspension or resignation, Respondent thought about the matter overnight and submitted his resignation to Stokes on March 27, 1992. Respondent was told that the matter must be reported to the Professional Practices Commission. Respondent was, however, under the impression that his resignation would conclude the necessity for any further proceedings of a disciplinary nature. Until the time of his resignation, Respondent had received good evaluations. His contract was renewed annually. However, as expressed at final hearing by Miller and Stokes, they would not rehire Respondent in view of his past behaviors which now, in their opinion, would reduce his effectiveness as a teacher at Madison High School. Subsequently, Respondent was informed on May 28, 1992, that an investigation regarding alleged misconduct been instituted by the Professional Practices Commission. In August of 1992, Respondent sought and was appointed to a teaching position in Hawthorne, Florida, at the combined junior/senior high school in that city for the 1992 completion of course work for issuance of a five year teaching certificate from the State of Florida which he received in October of 1992. Dr. Lamar Simmons, the supervising principal at the school in Hawthorne, Florida, where Respondent is presently employed is acquainted with Miller. Simmons contacted Miller at the Madison High School, prior to employing Respondent. Miller informed Simmons that Respondent had been a satisfactory employee. Miller did not disclose Respondent's alleged misconduct to Simmons because she assumed Respondent was receiving professional help for his problem and that the issuance of Respondent's five year certificate indicated that further disciplinary proceedings by the Professional Practices Commission had been abandoned. Respondent later disclosed the instant disciplinary proceeding to Simmons. To date of the final hearing, Respondent continues to teach at the school in Hawthorne without apparent incident.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the third, fourth, and fifth count of the Administrative Complaint, and placing Respondent's teaching certificate on probation for a period not to exceed three years upon reasonable terms and conditions to be established by Petitioner, including the following requirements: That Respondent present himself for psychological evaluation by a qualified professional selected by Petitioner. That Respondent complete such course of psychotherapy as may be prescribed as a result of that evaluation. That Respondent assume the cost of such evaluation and subsequent therapy, if any. That Respondent enroll and complete a minimum of six hours of continuing education courses in the area of professional conduct for educators. That in the event that Respondent fails to comply with any of the terms and conditions of probation, Respondent's teaching certificate shall be subjected to a period of suspension not to exceed two years, and that compliance with these conditions of probation serve as the prerequisite for any reinstatement of Respondent's teaching certificate in the event that suspension for noncompliance with these conditions occurs. DONE AND ENTERED this 1st day of June 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 1st day of June, 1993. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following constitutes my specific rulings on proposed findings of fact submitted by the parties: Petitioner's proposed findings 1.-12. Accepted. Rejected as to D.C.'s feelings, hearsay. Accepted. (Note: this is the second finding numbered 13.) Rejected as to "two or three times", accepted as to touching on the knee one time, on the basis of resolution of credibility on this point. (Note: this is the second finding numbered 14.) Accepted. Accepted in substance, not verbatim. 16.-18. Accepted. Rejected as to tickling reference since no sexual significance was ascribed by M.B. to this action, she did not supply a point in time when this occurred and inclusion would imply a significance not proven at the final hearing. Rejected, unnecessary. 21.-23. Rejected, subordinate to Hearing Officer findings on this point. 24.-42. Accepted, but not verbatim. 43. Accepted as to bear hug, remainder rejected on basis of creditibility. 44.-57. Accepted, but not verbatim. Respondent's proposed findings 1.-20. Accepted, but not verbatim. 21. Rejected, unnecessary. 22.-23. Accepted, but not verbatim. Rejected, unnecessary. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Thomas E. Stone, Esquire Post Office Box 292 Madison, Florida 32340 Karen Barr Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practice Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Sidney H. McKenzie, Esquire General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact Bryce David Forrester attended 7th grade at Glades Junior High for the 1984-1985 school year until his alternative school assignment on May 18, 1985. Petitioner's witness Judy Cobb, Assistant Principal of Glades Junior High had no personal knowledge of Bryce David Forrester's behavior and was not the official record custodian of his records. Her testimony provided no information of probative value. Thomas Zelenak is presently Principal of Glades Junior High and was formerly assistant principal there during the 1984- 1985 school year. He had no personal knowledge of the referrals which allegedly culminated in the computer record of disciplinary referrals admitted as the School's business record (P-2). The discipline referral slips were not offered. All discipline referrals had been by teachers who were not present for hearing and all counseling of the student had been handled by retired Principal Skinner or former Assistant Principal Zahner, neither of whom were available for hearing. Mr. Zelenak also had no personal knowledge of the Respondent's alleged disruptive/ behavior which resulted in the referrals and referral slips which allegedly were behind the computer record. Mr. Zelenak did conduct a parent-administrator conference on April 1, 1985 with Respondent's parents and agreed to Respondent's continued placement at Glades Junior High School provided his behavior improved. Respondent's father testified that at this conference Mr. Zelenak told him that alternative school placement was not in the student's best interest. Mr. Zelanek denied saying this. It is significant that P-2 does not reflect this conference ever occurred even though both Mr Zelenak and Mr. Forrester agree it did occur and the occurrence of this conference is corroborated by other exhibits. Therefore, this entire computer record (P-2) is of doubtful credibility. Mr. Zelenak gave his opinion at hearing that although the student may possess the ability to become a productive student he was not doing so at Glades Junior High and that the student belongs in an alternative placement program because of his disruptive behavior and its effect on the children around him. However, there was no predicate established for Mr. Zelenek's forming this opinion. The official record of the student's final grades for the year indicates failure in three subjects on the date he was withdrawn by the parent, May 22, 1985. Respondent's position was that the School Board did not make appropriate parent contact so as to forestall the alternative school assignment and that the procedure by which School Board officials reviewed and acted upon the principal's(Mr. Skinner's) recommendation of alternative school placement was contrary to School Board Rules duly adopted and promulgated. The testimony of William R. Perry, Director of Alternative Education Placement and Donald Hollis, Coordinator, Alternative Education Placement, that the procedure by which the assignment was made was in substantial compliance with the School Board rules is accepted over a single late postmark offered by Respondent for one of the notifications.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Bryce David Forrester to an appropriate regular school program, preferably at Glades Junior High School. DONE and ORDERED this 27th day of September, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 27th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esquire 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Gary Forrester (Parent) 8340 S. W. 97th Street Miami, Florida 33130 Phyllis 0. Douglas, Esquire 1450 N. E. 2nd Avenue Miami, Florida 33122 Madelyn P. Schere, Esquire 1450 N. E. 2nd Avenue - Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact At all times pertinent to this hearing, Respondent was a public school teacher licensed by the State of Florida to teach English language at the secondary school level, and her teaching certificate was current and in full effect. The Respondent, Queen Bruton, is employed by the Duval County School Board and holds tenure under the Duval County Teacher Tenure Act. On November 22, 1982, Respondent was sent a Notice of Proposed Dismissal by the School Board indicating the Board's intention to dismiss her as a teacher upon a charge of professional incompetency. The grounds for such conclusion include an indication that Respondent received unsatisfactory evaluations of her performance for the 1980-81 and 1981-82 school years. The Duval County Teacher Tenure Act (TTA), Chapter 21197, Laws of Florida (1941), as amended, permits the discharge of a teacher for, inter alia, professional incompetency as a teacher if certain conditions are met and procedures followed. All teachers in the Duval County public schools are evaluated whenever necessary, but at least once a year. Under the rating system in effect during the 1980-81 and 1981-82 school years, an unsatisfactory rating is awarded when an evaluation contains eight or more deduction points. Ratings are: (1) satisfactory, (2) needs improvement, and (3) unsatisfactory. On the rating form in use during the time in issue here, an unsatisfactory rating results in two deduction points in Items 1 through 27, and one deduction point in Items 28 through 36. An evaluation of "needs improvement" does not result in any deduction points. The School Board of Duval County has not, in any formal way, defined professional incompetence. The evaluation process is but one tool in the management of teacher employment. An unsatisfactory evaluation is not, therefore, conclusive of professional incompetence, but is one factor in that judgmental decision. The procedure used by the School Board in evaluating teacher performance was not adopted in conformity with the Administrative Procedure Act. At the time of adoption, the School Board was operating under teacher working conditions that had been implemented after extensive bargaining between the School Board and the teachers' union. These working conditions contained extensive provisions involving "teacher evaluation." When a contract was finally agreed upon between the School Board and the teachers' union, it contained provisions concerning teacher evaluation identical to those which were in effect under the working conditions previous to the implementation of the contract. These provisions, therefore, do not constitute rules "as defined in Section 120.52, Florida Statutes," but instead constitute guidelines for the evaluation of teacher performance arrived at not by decision of the School Board under conditions which require public hearing but jointly by agreement of the parties to the negotiations of the teacher contract between the School Board and the union, a collective bargaining agreement. Warren K. Kennedy was in Respondent's sophomore English class at Forrest Senior High School in Jacksonville during the 1980-81 school year. At one point during the school year, Kennedy saw a series of approximately 22 sexually explicit words or phrases written on the blackboard in Respondent's room. Kennedy copied these words and notified the principal, who went to Respondent's classroom and saw them himself. These words were placed on the board by someone other than Respondent, with her permission, and consisted of a part of an exercise in outlining. As such, Respondent claims the words themselves mean nothing, but words of that nature, including "orgasms, sexual intercourse, French tickler, blow job, condoms, dildo, masturbation, orgy," and the like serve no legitimate purpose in, and are not a legitimate part of, a sophomore English class. Respondent's classroom that year was chaotic. Students did little work, but instead talked openly and freely. Respondent sat quietly at her desk doing paperwork unless the noise got so great as to disturb other classes. Students felt free to walk out of class with impunity. Cursing was prevalent in class, and discipline was nonexistent. Defacing of school property occurred on at least one occasion with Respondent taking no corrective action. As a result, several students and the parents of other students requested their transfer from Respondent's class to another. Respondent was also unreliable in submitting grades and reports in a timely fashion. Observations of Respondent in the classroom environment by several different individuals revealed she did not insist her students come to class equipped with the proper supplies for effective writing or textbook activity. She rarely utilized visual aids pertinent to the matter being discussed. Classroom discussion with students did not generally involve a broad sampling of the class, but was focused on only a few class members. Her questions to the students were often vague and confusing to the students. Respondent's principal during that school year, Ronel J. Poppel, at whose request the above observations were made, himself observed Respondent in the classroom on several occasions. As a result of the input from those requested observations and of his own observations, he prepared an evaluation form on Respondent on March 15, 1981, which bore an overall rating of unsatisfactory and reflected that her performance was declining. This report, which reflected 7 of 36 items as unsatisfactory (12 total deduction points), had 20 other items rated as "needs improvement" and contained such written-in suggestions as "needs classroom management techniques, needs better standards of behavior, needs to have long-range planning from the beginning of the year, needs to show more enthusiasm for teaching--needs more variety in methods of teaching," and "should use better judgment in selection of topics." As a result of this evaluation, the observations of her principal and others, and the several counseling periods during which Respondent's deficiencies were pointed out to her along with suggestions for improvement, Respondent was put on notice of her failing performance and afforded the opportunity to take advantage of teacher education counseling (TEC) and, while she did enroll in at least one improvement course, failed to take full advantage of the available opportunities. Poppel's evaluation of Respondent as an incompetent teacher is based on: His personal observation; Evaluation by other professionals; Parent complaint follow-up; Her demonstrated lack of effective planning; Her lack of enforcement of school policies; Her lack of or inability to motivate students; Observed and reported chaotic classroom deportment; Her failure to keep proper records; and Her failure to leave lesson plans for substitutes. Notwithstanding the above, Respondent was well versed in the subject matter she was to teach and had the subjective background to be an excellent teacher. Her shortcomings, as described above, however, far outweighed the positive aspects of her credentials. Respondent was transferred for the 1981-82 school year to Fletcher High School in Jacksonville where she was placed under the supervision of Dr. Ragans, Principal, to teach English. Dr. Ragans spoke to Mr. Poppel, her former principal, about Respondent's weak areas so that he could develop plans to help her in those areas. In an effort to prepare Respondent for the coming year and to ensure she was fully aware of school policies and standards, Dr. Ragans held an extensive conference with Respondent to discuss her previous year's unsatisfactory rating and to make plans to remedy or remediate those areas. On August 25, 1981, he wrote a letter to Respondent in which he reiterated the items discussed previously. Review of this letter reveals there could be little doubt of what Dr. Ragans expected. Nonetheless, when he personally observed her in her classroom less than a month later, he found many of the same weaknesses previously identified, such as a noisy classroom environment, talking by students without being called on, Respondent appearing preoccupied with desk work, and inadequate lesson plans. In the observation report, he made numerous suggestions for improvement and offered Respondent the opportunity to a conference which she did not request. Prior to that observation, however, on September 8, 1981, Dr. Ragans and Respondent met with Dr. Jeff Weathers, TEC consultant for the School Board, in a full discussion of her professional shortcomings, at which meeting a suggestion was made that Respondent enroll in certain university-level courses in classroom management and motivation. Respondent was somewhat reluctant to take these courses because she felt they might interfere with her planning and her preparation for classes. Nonetheless, she did attend one class. Dr. Ragans had advised her he would arrange for substitute teachers for her so that she could take available classes. She was also invited to meet with master teachers in the school to seek assistance and to observe them, and she did in fact do so. In addition, a program was set up for her lesson plans to be reviewed by experts at the School Board. Respondent denies she ever submitted these plans, but according to Judith B. Silas, a resource teacher at School Board headquarters who reviewed Respondent's plans in December, 1981, her plans were confusing and lacking a consistent format: the dates on the plans reflect they were from an earlier series of years; objective numbers did not refer to the 1981 Curriculum Guide and did not cross-reference; and some included material had no relationship to plans or lessons. Ms. Silas's comments, forwarded to the school in February, 1982, were discussed with Respondent. A follow-up letter dated September 25, 1981, outlining the substance of the joint meeting with Dr. Weathers, was forwarded to Respondent. Shortly thereafter, on October 29, 1981, Dr. Ragans prepared a preliminary evaluation on Respondent rated overall as unsatisfactory in which 13 items were rated that way and 12 more rated as "needs to improve." On November 25, 1981, Respondent was provided with a lesson presentation checklist drawn by Dr. Weathers for her to use along with a notice of several night courses available to Respondent and a notice of a proposed observation of another teacher by Dr. Weathers and Respondent on December 14, 1981. After this observation, Dr. Weathers and Respondent discussed the positive aspects of that teacher's operation that Respondent could and should emulate. A new classroom observation of Respondent was set for January, 1982. In the interim, in January, 1982, Dr. Ragans received at least one parent request for a student to be transferred from Respondent's class because the classroom environment was noisy, unruly, and not conducive to learning. As a result of this letter and other parent contacts of a similar nature, Dr. Ragans had several informal discussions with Respondent during this period. On February 23, 1982, Respondent requested a conference with Dr. Ragans on her upcoming evaluation which was, she understood, to be unsatisfactory from a letter to her on February 5, 1982, from Dr. Ragans. This rating, conducted on February 2, 1982, but not signed by Dr. Ragans until March 3, 1982, was unsatisfactory, containing 14 items so marked and 13 marked "needs to improve." At the conference, held the same day as requested, Dr. Ragans advised Respondent he still felt she had marked deficiencies previously indicated regarding classroom control, authority, respect, lesson plans coordination, classroom planning, her failure to provide purposeful learning experiences, no student motivation, and her apparent inability to be understood by her students. Also cited to her were the continuing parent complaints and those of other teachers that their classrooms, used by her (she was a traveling teacher with no room of her own), had been damaged by her students. Much of this had previously been outlined in Dr. Ragans' February 2, 1982, letter indicating his intent to rate Respondent as unsatisfactory. Both Dr. Weathers and another school district supervisor, Dr. Henderson, observed Respondent in the classroom situation in late January or early February, 1982. Both individuals identified the same deficiencies as previously noted by so many others, and both made recommendations for improvement which were passed on, intact, to Respondent. In early March, 1982, Dr. Ragans advised Respondent in writing of his intent to evaluate her on March 15, 1982, to see if she had made any improvement. He did this because of Respondent's feeling that the previous evaluation had not given her enough time to work out improvements. This latest evaluation was also overall unsatisfactory. Two days later, on March 17, 1982, Respondent indicated in writing that she did not accept this evaluation. On April 30, 1982, Dr. Ragans again visited Respondent's classroom so that, if she had markedly improved, he could try to extend her contract or change her evaluation before the end of the school year. However, he could observe no appreciable change. Shortly after this visit, on May 3, he discussed with Respondent complaints he had received from several parents about warnings she had sent out on some students which inconsistently showed both satisfactory performance and danger of failing on the same form. She explained this as all students, including straight "A" students, who had not taken the MLST (test) were in danger of failing. Dr. Ragans felt this excuse was feeble and unjustified and demonstrated poor judgment on her part. All this was confirmed in a letter on May 17. A complaint from a parent of one of Respondent's students, received on June 11, 1982, initiated an audit of the grades given by Respondent during the school year. Results of this audit revealed at least 68 errors involving 46 students, including three students who received passing grades when they, in fact, had failed and should have been in summer school. A total of 13 student grades had to be changed, requiring a letter of notification and apology from the principal. Respondent did not deny the inconsistencies shown in the audit, but defended them on the basis of, in many cases, their being the result of her exercising her discretion and prerogative to award a grade different from that supported by recorded achievement if, in her opinion, other factors so dictated. In any case, the number of inconsistencies requiring a grade change was substantially higher than is normal. During the 1981-82 school year, Respondent had not been assigned a classroom of her own, but instead met and taught her classes in the rooms assigned to other teachers. This situation, while not unique to Respondent and one which several other teachers had as well, is nonetheless a definite handicap to any teacher. In an effort to alleviate the impact of this situation, all Respondent's rooms were scheduled as geographically close together as possible, and she was assigned only one subject to teach. Therefore, though she may have had several class periods which progressed at different speeds, the planning and preparation was similar and much less an arduous task than if she had different subjects to prepare for. In any case, there is little relationship between this and discipline and control in the classroom. Dr. Mary Henderson, Director of Language Arts/Reading for the Duval County School Board, observed Respondent in the classroom during both the 1980- 81 and 1981-82 school years at two different schools. Recognizing that Respondent has definite strengths in her knowledge of the subject matter to be taught and her recognition of and communication to the students of the relationship of their lessons to the test requirements, Dr. Henderson still felt Respondent was not a competent teacher. On both occasions, she found Respondent's lesson plans to be inadequate, her techniques in classroom management were deficient, she failed to make effective use of the students' time, and she failed to effectively motivate her students to participate in the classroom activities. Throughout all this period, according to both supervisors and others who observed her, Respondent always maintained a pleasant, calm, positive, and cooperative approach to all with whom she came into contact. At no time did she show hostility or resentment. Also, there was never a question as to her knowledge of the subject matter. Respondent possesses a bachelor's degree in English and a master's degree in administration and supervision. She has sufficient credit hours to qualify for a major in Spanish. She has also taken several in-service courses in such subjects as linguistics, methods of curriculum and instruction, British literature, and school administration. She is certified to teach English, Spanish, and typing. She has been a teacher in several Florida school systems for 29 years, of which the last 21 years were in various Jacksonville area schools. She is tenured. She was selected for summer school employment in 1980, while at Forrest High School, even though tenure does not ensure selection to teach summer school. During the 1980-81 school year, Respondent was caring for the aunt who raised her and who was suffering from terminal cancer. This required frequent travel back and forth to another part of the state, and in addition to being a physical burden, constituted a severe strain on her mental state. During that year, she started out teaching only twelfth grade classes, but as a result of a reduction in class sizes during the school year, she was given some additional tenth grade classes for which she had not prepared. Respondent feels her classroom discipline was not so unusual as to be remarkable. She feels she maintained classroom discipline as well as required and contested the allegations that she rarely referred students to the administration for additional discipline. She made all reasonable effort to improve her performance by enrolling in some of the courses recommended by Drs. Weathers and Ragans, but had to wait until the second semester because she did not get the information on the first semester courses until after they had started. The classes she took urged the use of listening and negotiating skills rather than the authoritative method in dealing with students. She tried to implement what she learned in her classrooms and feels she succeeded regardless of what the testimony shows. In addition, she took a course dealing with self- concept and self-confidence and applied for admission to Jacksonville University's master of arts program in an effort to upgrade her skills. Respondent admits that at the beginning of the 1981-82 school year, she was not using formal lesson plans. She had been asked by the administration for plans on a weekly basis and had jotted down ideas on paper. To formulate these ideas, she used prior years lesson plans, but did not turn any of these in. This does not track with Ms. Silas's testimony that the Respondent's plans she reviewed appeared to be from prior years. I find that prior years' plans were used by Respondent extensively and how these plans were transmitted to Ms. Silas for review is immaterial. Respondent, based on the above, while possessing the necessary technical qualifications to perform as a teacher, while possessing the appropriate knowledge of her subject matter, and while possessing the desire to impart that knowledge to her students, is nonetheless incompetent to conduct a class, maintain proper discipline, and generate adequate student motivation to accomplish these desired ends.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be removed from classroom teaching duties and be assigned some other function within the school system until such time, unless sooner released for other good cause, as she can retire with maximum benefits. RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 1st day of September, 1983. COPIES FURNISHED: Gary E. Eckstine, Esquire Chief Administrative Hearings Section City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 William F. Kachergus, Esquire Maness & Kachergus 502 Florida Theatre Building Jacksonville, Florida 32202 Mr. Herb A. Sang Superintendent Duval County Public Schools 1701 Prudential Drive Jacksonville, Florida 32207
Findings Of Fact At all times relevant thereto, Respondent, Rolando Rodriguez (Rolando), was a student at Palm Springs Junior High School (Palm Springs) in Dade County, Florida, during school years 1983-84 and 1984-85. The school is under the jurisdiction of Petitioner, School Board of Dade County (Board). Rolando was born in Cuba on August 15, 1970. He and his mother came to the United States in 1980. His father remains in Cuba. Rolando enrolled in the fourth grade of the public school system in Dade County in 1980. Because of language difficulties, he was initially given some special assistance by his teachers. Even so, his school progress record, received in evidence as exhibit 2, reveals he repeated at least a part of the fifth grade due to academic problems. There is no evidence that he received bilingual education services from the public school system. While attending the sixth grade at Palm Springs in 1983-84, Rolando had isolated instances of misconduct during the first half of the school year. This included "disruptive behavior," "cutting class," and "assault and battery." He was given reprimands and warnings, and several conferences were held by school officials with Rolando and his mother. This is confirmed through testimony of witness Sweet and corroborated by Petitioner's exhibit 1 received in evidence. This exhibit is a copy of a computer print-out reflecting Rolando's case management history. It is not clear how the entries therein were prepared, or, whether the school personnel who observed the "incidents" gave the information directly to the computer program operator, or to another person who then summarized it for the operator. In any event, there is no documentation or the oral testimony evidencing any misconduct from January 1984 until the end of the school year. Rolando was then promoted to seventh grade even though he had done poorly in a number of subjects. Beginning in September 1984, Rolando's case management history (exhibit 1) reflects a series of actions which culminated in reprimands, warnings and being placed on probationary status. However, these entries on the computer print-out are hearsay in nature and the only witness appearing on behalf of Petitioner had no personal knowledge of the events. Indeed, the witness could not relate the details or circumstances surrounding the "incidents," but relied wholly on what she had been told by other school personnel, or what the computer print-out stated. Accordingly, there is no competent evidence concerning Rolando's alleged misconduct for school year 1984-85. Finally, exhibit 2 contains Rolando's grades from school year 1980-81 through school year 1983-84, but omits reference to the grades received in school year 1984-85. However, Rolando acknowledged he received at least one "F" during the year and that his overall grades were "not good." On June 26, 1985, Petitioner advised Respondent's parents that he was being reassigned to Jann Mann Opportunity School-North effective immediately because of Rolando's "disruption of the educational process in the regular school program and failure to adjust to the regular school program." It was not disclosed who participated in the decision or what specific information, other than that contained in exhibit 1, was considered in determining that reassignment was appropriate. During the first half of the school year 1983-84, the faculty and administration of Palm Springs attempted to help Rolando through parent and student conferences, developmental group counseling, a child study team, home units and employability skills instruction. Although exhibit 1 reflects similar assistance in 1984-85, there is no competent evidence to verify and confirm these hearsay declarations. Rolando is now attending Jann Mann, which is approximately thirty minutes from his home by bus. Both he and his mother desire a reassignment to Palm Springs because of its proximity to their home. Rolando acknowledged some of his disciplinary problems and specifically recalled three visits to the principal's office, but pointed out that he was unfairly charged with many other infractions even though he was merely an observer to and not a participant in these incidents. He stressed that where teachers have taken the time to provide extra assistance, he has done well in class, but fares poorly where the teacher does not provide such assistance. He views his reassignment to Jann Mann as a learning experience, and now wishes to return to his former school. Even though he testified in English, he attributes a part of his academic problems to a limited proficiency in the English language. Rolando's mother also acknowledged that she was notified on "several" occasions about Rolando's conduct. The dates of such notifications and the specific nature of his problems were not disclosed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be immediately reinstated to a traditional school program. DONE AND ORDERED this 13th day of November 1985, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building/ 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1985.
The Issue The issue is whether Respondent's teaching certificate should be disciplined.
Findings Of Fact At all times material here Respondent was, and continues to be, an employee of the Hernando County School Board (HCSB) as a member of the instructional staff. Respondent is employed under a "professional service contract." The origin of these proceedings occurred on December 5, 1996, when Respondent was arrested for allegedly engaging in inappropriate sexual conduct with a male, minor student. Apart from the allegations raised in this case, Respondent has been a satisfactory and effective employee of HCSB. Respondent began working for HCSB in 1989 at Powell Middle School as a science teacher with regular classroom duties. He eventually became the technology resource coordinator at Powell Middle School. As such, he no longer had regular classroom duties. Throughout his teaching career, Respondent frequently tutored and mentored students who needed help. Even without regular classroom duties Respondent continued to help students. Such help continues today. In fact, Respondent is known and respected by peers and parents for the mentoring and tutoring he gives to students and the success he has had with troubled students. Beginning in January 1995, Respondent served as director of an after-school program at Powell Middle School. HCSB and the local YMCA sponsored and funded the after-school program until sometime in the Spring of 1996 when the program was discontinued. Respondent was in large part responsible for the successful creation, organization, and operation of the after-school program. The after-school program began immediately after each school day and continued until 5:00 p.m. The program was staffed by Powell Middle School staff and other adults who taught different classes. Some of the after-school activities, like swimming lessons, took place on the premises of the YMCA. The after-school program participants enrolled in the off-campus activities rode a school bus from the school to the various activities in remote locations. Respondent directed the after-school program initially from his classroom in the science building of Powell Middle School and, subsequently, from a room used as a computer lab, adjacent to his former classroom. A number of school administrators and teachers were constantly walking in and out of the areas where Respondent worked each day because supplies for the after-school program were stored in the computer lab storage rooms. After school, teachers frequently visited Respondent's work station unannounced. Janitors and work details were on the school premises until 11:00 p.m. Bathrooms and a refrigerator for staff were located near Respondent's work station. Respondent's classroom in the science building had large windows along the outside wall. There were windows between the computer room and Respondent's classroom. There were windows between the computer room and another classroom in the same building. The only area which had any possibility of privacy was a walk-in storage closet in the computer room. The doors to the science classrooms, the computer room, and closet were never locked. During the summers, Respondent spent his time working at Camp Sangamon, a camp in Vermont for boys of all ages. He began working at the camp in 1980 as a regular counselor. Later he served as head of the activity trip program. Respondent worked as the camp's assistant director for about eight years. In the Summer of 1995, Respondent lived in a cabin with older boys who were counselors-in-training (CITs). However, he spent almost all of his time in the administrative office taking care of paperwork, planning activities, and supervising programs. He never went to his cabin in the middle of the day unless he was specifically looking for a CIT. Respondent's cabin was on a main trail through the camp in close proximity to other cabins and a basketball court. People were constantly walking by the cabin, especially in the middle of the day during a free activity period. The cabin did not have a lock on its door. It had large windows with no screens, which were usually propped open with a stick. The panels that formed the walls of the cabin were separated by approximately one inch. The spaces between the panels left the interior of the cabin visible during the day. As assistant director, Respondent could arrange for Florida boys to attend the camp at a reduced rate. Over the years, he made these arrangements for several boys. Respondent met C.B., a seventh grade student at Powell Middle School, in 1995. C.B. was a very troubled young man. He regularly skipped school, lied, and ran away from home. His home life included physical and mental abuse. His relationship with his parents was poor. His grades were very poor and he was on a track for dropping out of school. In 1995, C.B. was not one of Respondent's regular students. He was a participant in the after-school program. Initially, C.B.'s stepmother called Respondent to check on C.B.'s attendance in the after-school program. The stepmother and Respondent discussed C.B.'s problems, including his attempts to run away from home. During subsequent conversations, Respondent offered C.B. a scholarship to attend Camp Sangamon for three weeks in the summer of 1995. C.B.'s family was pleased that he would have an opportunity to go to camp. They accepted Respondent's offer and made final arrangements for C.B. to attend camp for three weeks at a reduced rate. When C.B. arrived at camp in 1995, he announced that he was going to stay at camp all summer. Despite his initial positive attitude, C.B. had trouble adjusting to camp life. He had problems interacting with other campers. He sometimes would curl up into a fetal position and cry uncontrollably. Respondent often helped C.B. get through these episodes. With help from his counselors and encouragement from Respondent, C.B. stayed at camp for eight weeks. Gradually, Respondent learned of C.B.’s troubled home life and felt sympathy for him and wanted to help. During the summer of 1995, Respondent assisted C.B. with the completion of a science project. C.B. had to complete the project in order to be promoted to the eighth grade. Respondent's cabin was always open with CITs coming and going. There was no reasonable expectation of privacy in the cabin at any time. C.B.'s testimony that, at Respondent's request, he masturbated Respondent's penis in the cabin during a free activity period just before lunch is not credited since C.B.’s multitude of statements regarding multiple alleged incidents of sexual activity between Respondent and himself were highly inconsistent and consisted of changeable details which showed the implausibility, if not impossibility, of such activity occurring. In fact, all of C.B.’s allegations suffer from this infirmity. After returning from summer camp, C.B. went boating with Respondent and several other people. The group enjoyed snorkeling and water skiing. However, C.B. and Respondent were never alone on a boat. C.B. was in the eighth grade at Powell Middle School in the Fall of 1995. Even though he was not in one of Respondent's classes, C.B. often received passes from his teachers to visit Respondent's classroom during the regular school day. C.B. participated in the after-school program activities both on- and off-campus. There was some indication that C.B. was not permitted to go home after school unless someone was present at the home. Respondent regularly drove C.B. home following the close of the after-school program. Respondent worked one-on-one with C.B. to improve his grades. Respondent also worked one-on-one with other students during the same time period. He set up a program for C.B. that required C.B. to obtain the signatures of his teachers on an attendance and work form. Two to three times a week, Respondent visited C.B.'s home to tutor C.B. C.B. also was tutored by Jen O’Connor during the after-school program. C.B.'s grades improved markedly and he made the honor roll during the first grading period of his 8th grade year. Respondent encouraged C.B. to set high school graduation as a goal which would cause C.B. to be the first in his family to remain in school and graduate. C.B. testified that during the after-school hours of the 1995-96 school year, he twice complied with Respondent's request to masturbate Respondent's penis on school grounds, either in the science classroom or the adjoining computer/storage room. This testimony is contrary to the greater weight of the evidence and again lacks credibility. On October 20, 1995, Respondent took C.B. to Disney World as a reward for his academic success during the first grading period. The Disney trip was an incentive for good progress which had been agreed to earlier that year by C.B.’s parents. Respondent and C.B. traveled in Respondent's pickup truck and shared the expenses of the trip. C.B. left with enough money to buy a one-day pass to one of the three Disney parks. Respondent and C.B. arrived at the Disney World parking lot before the amusement park opened. They parked in front of the ticket booth around 9:00 or 9:30 a.m. Other cars were also arriving. Parking attendants and people waiting to enter the entertainment area were in close proximity to Respondent's vehicle at all times. Disney was running a special promotion for Florida residents. For a small increase in the price, a Florida resident could purchase a pass to all three Disney parks for a year. Respondent wished to go to all three parks but could not do so unless C.B. was able to take advantage of the Disney promotion. Respondent and C.B. paid their entrance fee for all three parks with Respondent providing the difference in price. They entered one of the theme parks as soon as it opened for business. The evidence did not show that there was anything inappropriate about the ticket upgrade or Respondent making up the difference in price. The purchase of the pass was in no way harmful to C.B. With so many people around, there was no privacy or expectation of such in Respondent's truck. C.B.'s testimony that he masturbated Respondent's penis in the Disney World parking lot is not credited. During the 1995-96 school year, Respondent arranged for C.B. to attend a counseling session with a guidance counselor at Powell Middle School. Respondent made the appointment because he suspected that C.B. was the victim of abuse at home. On February 5, 1996, C.B. and his father had an argument. The father lost his temper and punched C.B. in the face and ear. C.B. did not go to school the next day. The school resource officer noticed bruises on C.B.'s face the following week at school. He reported his observations to an investigator from the Department of Children and Family Services. C.B.'s father admitted to the investigator that he hit C.B. in the face. The authorities took no legal action against C.B.'s father. At the end of his eighth grade year, C.B. was promoted to ninth grade and would be attending Springstead West High School. At the time, both C.B. and his parents expressed great appreciation over the help Respondent had given to C.B. That summer C.B., with the permission of his parents, again attended camp at a reduced rate. He went to Vermont early so that he could earn money working at camp before it opened. During his stay at the camp, Respondent "fronted" C.B. the money to buy a portable CD player, CDs, and some articles of clothing with the understanding that C.B. would repay Respondent later from the funds C.B. had in his camp account. In fact, C.B. did repay Respondent for these items. Additionally, Respondent permitted C.B. to use his credit card to order and purchase items from a catalog over the telephone. Again C.B. paid Respondent back. There was no evidence that these purchases were improper or harmed C.B. Mrs. Peady O'Connor, one of Respondent's friends, also went to camp in the summer of 1996 to work in the kitchen. C.B. stayed at camp all summer, returning home with Respondent and Mrs. O'Connor on August 16, 1996. There was no evidence the scholarships to camp Respondent provided during any of the summers at question here were improper. If anything, the scholarships benefited C.B. and the other boys who received them. Immediately upon his return to Florida, Respondent began having trouble with his truck. He took it to the shop on Saturday, August 17, 1996. He spent the rest of the day with a friend, Jackie Agard. Respondent did not go boating that weekend. School started on August 19, 1996, for the 1996-97 school year. Respondent returned to work at Powell Middle School as the technology resource coordinator. C.B. attended ninth grade at Springstead West High School. C.B. would occasionally contact Respondent for help. On Tuesday, August 20, 1996, Respondent leased a new sport utility vehicle. It did not have a pre-installed trailer hitch necessary for towing Respondent’s boat. The next Saturday, August 24, 1996, Respondent spent the day with friends from out-of-town. He did not go boating that weekend. On August 29, 1996, Respondent purchased a trailer hitch. He intended to install the hitch personally. That same day, Respondent and Chuck Wall, a scuba diving instructor, met with C.B. and his parents. The purpose of the visit was to sign C.B. up for scuba diving lessons. Respondent agreed to pay for the lessons as he had for those of other young people. Again, no evidence demonstrated that such lessons or the payment for scuba lessons were inappropriate or in any way harmful to C.B. On Saturday, August 31, 1996, Respondent took some of his friends to dinner and a movie in his new vehicle. He did not go boating that weekend. Respondent's boat was parked at the home of his parents all summer while Respondent was in Vermont. It was still there when Respondent installed the trailer hitch on his new vehicle on Labor Day, September 2, 1996. On September 3, 1996, Respondent took C.B. to his first scuba diving lesson. After the lesson, Respondent, C.B., and Mr. Wall took Respondent's boat to a marina at Crystal River. After launching Respondent's boat, Chuck Wall had difficulty getting the boat to run because it had not been used for such a long time. Respondent left his boat at the marina for the rest of the fall boating season. The greater weight of the evidence indicates that C.B. and Respondent never went boating alone. There was no inappropriate sexual conduct between C.B. and Respondent on Respondent's boat. On Saturday, September 7, 1996, Respondent took a group of students to Disney World. The trip was a reward for the students' involvement with a video yearbook project sponsored by Respondent. C.B. did not participate in the activity. The next Saturday, C.B.'s scuba diving lesson was cancelled. C.B. did not go boating with Respondent or have a scuba lesson that weekend because he was on restrictions at home. Respondent was invited to and attended C.B.’s stepmother’s birthday party on September 17, 1996. On or about September 18, 1996, C.B.'s parents became aware that C.B. was responsible for long distance phone calls to a girl that C.B. met at camp. The calls totaled about $300.00. Initially, C.B. had hidden the bill from his parents. C.B.’s stepmother discovered the bill. After a confrontation with his parents over the telephone bill, C.B. ran away from home. For the next few days, C.B. was living with friends. There was no evidence that Respondent knew where C.B. was staying or that once he discovered his whereabouts that Respondent withheld that information from anyone. Respondent was eventually asked to help locate C.B. On September 21, 1996, Respondent went to C.B.'s home. C.B.’s father asked Respondent what he thought should happen with C.B. regarding living at home. Respondent suggested that C.B.'s parents let C.B. live with the O'Connor family for a short period of time. He also suggested that C.B. receive counseling and agreed to arrange for the therapy. Mr. and Mrs. O'Connor and their son and daughter were close friends of Respondent. They are good, decent people. The son, Sean O'Connor, was away at college. The daughter, Jennifer or Jen, still lived at home. C.B.'s parents agreed to let C.B. live with the O’Connors on a trial basis provided that C.B. remain on restrictions within the O'Connor home for a period of time and pay back the telephone charges he had incurred. The O'Connors did not live within the Springstead West High School District. C.B. did not want to talk to his parents. Therefore, Respondent and the O'Connors worked together to provide C.B. with transportation to and from school. Further the parents did not provide C.B. any money for lunch while he was at the O’Connors. Again it was up to both Respondent and the O’Connors to provide C.B. with lunch money. C.B.’s parents were aware of the need for transportation and lunch money but did not offer to provide or provide any of these needs while C.B. was at the O’Connors. In fact, C.B.’s parents did not attempt to visit C.B., communicate with C.B., or be otherwise interested in C.B.'s well-being during his month long stay at the O’Connors. Respondent also purchased C.B. a beeper to facilitate communication between C.B. and Mrs. O'Connor. All of these provisions were reasonable for C.B. There was no evidence which showed these items were improper gifts on the part of Respondent or could reasonably be anticipated to cause harm to C.B. On the contrary, these "gifts" were beneficial, if not necessary, to C.B. After moving in with the O'Connors, C.B. was allowed to attend a football game. He did not meet Mrs. O'Connor after the game as he had been instructed. The police found C.B. and turned him over to C.B.'s stepmother. As soon as he got to the gate of his parent's property, C.B. got out of his stepmother's car and ran away again. The police eventually found C.B. at the home of his stepbrother's girlfriend on October 2, 1996. C.B.'s parents told the police to release C.B. to Respondent's custody. Respondent took C.B. back to live with the O'Connors. October 7, 1996, was an early release day at school. Respondent, C.B., and another student left from school to look for a lost anchor. Later that evening, Respondent dropped off C.B. at the O'Connors' residence then proceeded to take the other student home. October 8, 1996, was a hurricane day for the school district. Mrs. O'Connor was at home all day. Respondent and C.B. were never alone in the O'Connors' home. There is no persuasive evidence that Respondent ever performed anal intercourse upon C.B. at the O'Connors' home or at Powell Middle School in the storage closet of the computer room. During the time that C.B. lived with the O'Connors, Respondent arranged for C.B. to attend two counseling sessions with a school psychologist. On October 23, 1996, there was an ESE staffing meeting at Springstead West High School regarding C.B. The meeting was related to C.B.'s special education program. At some point prior to the meeting, the assistant principal was asked to investigate the fact that C.B. was living at the O'Connors and attending a school outside the zone in which the O'Connors lived. Normally, the principal would not be at a staffing meeting. He did not participate in any decision regarding C.B.'s education. Both Respondent and Mrs. O'Connor were invited to attend the meeting by C.B.'s stepmother. All three people attended the meeting along with appropriate education staff. The meeting grew heated over the issue of out-of- district attendance with Respondent becoming exacerbated with the principal and calling him a "liar" and addressing the principal forcefully while getting up out of his chair. The principal became verbally forceful with Respondent. Eventually, both calmed down. Forcefully stating a position is not coercion and the evidence did not show that either Respondent’s or the principal's behavior was either coercive or oppressive, especially since the principal later was instructed by the Superintendent to apologize to Respondent for his behavior during the meeting. During the meeting, C.B.'s stepmother decided it was time for C.B. to return home. She was prepared to take C.B. home that night after the meeting. She asked Respondent to leave her son alone. However, apparently her words were spoken out of exasperation since C.B., who was at the school, left with Respondent and Mrs. O’Connor at the conclusion of the meeting with C.B.'s mother's consent. C.B. had an appointment with a therapist that evening. C.B.'s father would pick C.B. up at the O'Connors the following day. On Thursday, October 24, 1996, C.B.'s father went to the O'Connors to pick up C.B. and move him back home. When the father arrived at the O'Connors' home, C.B. attempted to have a heart-to-heart talk with his father. C.B. wanted to know why his father always sided with his stepmother against him. He also told his father that he did not want to return home. His father told C.B. that he was coming home and that he could either come home the easy way or the hard way. When the father insisted that C.B. return home, C.B. went down the hall and ran out into the backyard of the O'Connors' home. C.B.'s father went out the front door and around the corner of the O'Connors' house. C.B.'s father caught up with C.B., grabbed him from behind, pulled him to the ground, straddled him and, while holding C.B. on the ground with a knee in C.B.'s pelvic area, repeatedly punched C.B. in the face with a closed fist and an overhead strike. C.B.'s father picked his son up by the collar and drug him over to a metal fence. C.B. was trying to push his father’s hands away. His father grabbed C.B. by the neck and slammed his head into the metal fence approximately three times. He struck C.B. about three more times in the face with a closed fist. At that point, a witness to the struggle grabbed C.B.'s father from behind in a half nelson and pulled him off of C.B. Once the father had released his grip and stepped back, the witness let go of C.B.'s father. During the first part of the struggle, C.B.'s father was calling his son a "fucking asshole" and "dirty little bastard." C.B. was yelling that he wanted to kill himself, wanted to get this over with, and hated himself. The father's response was that he could help his son end his life, that he had a gun back at the house, and "you know, we can get this on right now, let's kill you, let's get it over with." Almost immediately after being pulled off, C.B.'s father attacked his son again, grabbed him by the collar and struck him several more times in the face with a closed fist and slammed his head into the ground several times. The witness grabbed C.B.'s father again and tried to pull him off. C.B.'s father did not want to disengage and resisted the witnesses' efforts. The witnesses forced C.B.'s arms off his son and held him. At some point during the struggle, Mrs. O'Connor had come into the backyard. C.B. grabbed Mrs. O'Connor around the ankles and would not let go. C.B. was crying saying he wanted to die and "stop it, stop it, please." Mrs. O'Connor was yelling at C.B.'s father to stop. C.B.'s father still had C.B. by the belt loop and the neck. He had one knee in C.B.'s back. He was grinding C.B.'s head into the ground. The witnesses was forcing C.B.'s father's arms off C.B. Mrs. O'Connor told her daughter, Jen, to call the police. At that point, C.B.'s father let go of C.B. and ceased his attack. All of the blows which the father hit his son with were full force punches. C.B. was bloodied and bruised by his father. Photographs taken show extensive bruising on C.B.'s face. Incredibly both C.B. and his stepmother deny the physical effects of the struggle that night. C.B.'s father was arrested and taken to jail. The next day, C.B.'s stepmother filed a police report alleging that Respondent had sexually abused C.B. After his father was arrested, C.B. spent one night with his stepbrother. His stepmother told him not to attend school the next day. She wanted C.B. to go with her to talk to the authorities and to get C.B.'s father out of jail. Despite these instructions, C.B. rode to school with Jen O'Connor. When C.B.'s stepmother discovered that he was at school, she went to pick him up. When she arrived at school, C.B. refused to go home with or meet with her alone. Because he would not meet with his stepmother alone, he met with her in the presence of the school resource officer. Because C.B. refused to go home, C.B. was taken to a youth shelter in Pasco County, known as the Run-Away Prevention (RAP) house. C.B. ran away from the shelter that night at about 1:00 or 2:00 a.m. C.B. turned to the only adults he knew who could safely contact for help. C.B. called the O'Connors from a pay phone at a mini market in Pasco County. Respondent was at the O'Connors at the time. Both Respondent and Mrs. O'Connor went to pick up C.B. Respondent drove because Mrs. O'Connor did not drive. They picked C.B. up at the mini market in Pasco County. Both discussed with C.B. where he could go. Because of the incident with C.B.'s father, C.B. could not return to the O'Connors' house. Respondent suggested that he return home. However, C.B. rejected that suggestion, saying he would immediately run away again. Additionally, Respondent and Mrs. O'Connor very reasonably believed it would not be physically safe for C.B. to return home. All decided that C.B. would go to the home of another teacher. When they arrived at the teacher's home, some discussion occurred about C.B.'s predicament. There was some discussion about emancipation, but the discussion was purely theoretical. C.B. was given the number for the Domestic Violence Hotline so that he could call and report his father and perhaps obtain some protective services from the state. Neither the teacher nor her roommate, who was also a teacher, reported C.B. to the police or advised his parents of his whereabouts. They did not so report because they reasonably feared for his safety. This was the last time that Respondent had any material contact with C.B. The next day C.B. left the teacher's house and stayed with a friend that he generally stayed with when he ran away. The friend was known to his parents and the friend' house was within a mile of C.B.'s home. Interestingly, C.B. continued to sporadically attend school while on runaway status until he was prevented from riding the bus to school by a bus driver. During the time C.B. was on runaway status, no one asked Respondent if he knew where C.B. was or if he could guess where he might be. Moreover, under these facts, Respondent did not have the duty to report any such information about C.B. On October 29, 1996, and November 6, 1996, a deputy sheriff interviewed C.B. about the allegations raised by his stepmother. On both occasions, C.B. denied that Respondent had ever engaged in or attempted to engage in inappropriate conduct with him. On November 8, 1996, a sheriff's detective, Detective Baxley, and a worker from the Department of Children and Family Services each questioned C.B. C.B. again denied ever having any sexual contact with Respondent. In November 1996, C.B. returned to live with his parents. On November 13, 1996, the day that C.B.'s father made his first court appearance, with some direction on what needed to be said to the state attorney from Detective Baxley, C.B. told the state attorney, in the presence of both parents, that he did not want to press charges against his father and that the "fight" was his fault. The charges were subsequently dropped. On November 18, 1996, Detective Baxley and Detective Cameron interrogated C.B. Towards the end of the interview, C.B. accused Respondent of having inappropriate sexual contact with him on two occasions. C.B. alleged that he had masturbated Respondent's penis in Respondent's cabin at camp in the summer of 1996.1 C.B. also alleged that he had masturbated Respondent's penis on Respondent's boat in Crystal River sometime in the early Fall of 1996, within weeks of the beginning of school. The detectives had C.B. call Respondent. They taped the conversation without Respondent's knowledge. C.B. told Respondent that the police had given him a polygraph when in fact they had used a computer voice stress analyzer. Respondent told C.B. he had nothing to worry about as long as he told the truth. The police interrogated C.B. again on November 27, 1996. During this interview, C.B. accused Respondent of inappropriate sexual conduct involving masturbation of Respondent's penis in Respondent's science classroom or the computer room at Powell Middle School during after-school hours of the 1995-96 school year. Respondent was arrested on or about December 5, 1996. In January of 1997, C.B. alleged for the first time that he masturbated Respondent's penis in the parking lot at Disney World on October 20, 1995. On March 27, 1997, C.B. accused Respondent of having anal sex with him at the O'Connor residence during a "hurricane day" in October of 1996. On April 16, 1997, C.B. accused Respondent of having anal sex with him in the walk-in closet of the computer/storage room at Powell Middle School on two occasions in September or October of 1996. None of these various accusations were credible. Finally, there was no credible evidence that Respondent interfered with the relationship between C.B. and his parents in a manner which could reasonably be foreseen to harm C.B. Moreover, there is nothing in the statutes or rules of DOE which, absent harm, purports to make interference with a parent's custody or ignoring a parent's wishes a violation of those rules subject to discipline. Respondent met A.P., a sixth grade student at Powell Middle School, in 1995 as a participant in the after-school program. A.P. was a very out-going person, who demanded attention. He was also known for lying, especially when seeking attention. At times, Respondent, as director of the after-school program, had to discipline A.P. A.P. did not find Respondent to be strong, mean, violent, or scary. He never heard Respondent swear, tell dirty jokes, talk dirty, or threaten anyone. During his sixth grade year, A.P. would routinely visit Respondent's classroom during the school day even though Respondent was not one of his teachers. A.P. often visited Respondent during the after-school program. Respondent frequently gave A.P. a ride home after the after-school program. Respondent offered A.P. a scholarship to attend Camp Sangamon in the Summer of 1995. With the consent of his parents, A.P. attended camp at a reduced rate for three weeks that summer. In the Fall of 1995, A.P. was in the seventh grade. He was in a science class taught by Respondent. He continued to attend the after-school program. Respondent worked on computers during the times that A.P. and other students visited in the computer room. There is no persuasive evidence that pornographic pictures of nude males on the Internet ever appeared on the computer monitors while Respondent was operating a computer in A.P.'s presence. In January of 1996, A.P. continued to visit Respondent in Respondent's classroom or in the computer room after school. Respondent did not at any time ask A.P. to touch Respondent in a sexually inappropriate manner. Respondent never masturbated A.P.'s penis on school property. Respondent developed a plan for A.P. to work and earn money so that he could attend camp during the Summer of 1996. A.P. did not follow through with the plan. Consequently, he did not attend camp for the second time. In the Fall of 1996, A.P. entered the eighth grade at Powell Middle School. A.P. continued to visit Respondent in the computer room after school up until the police arrested Respondent. Just before Respondent's arrest, Detective Baxley interviewed several of Respondent's students. One of those students was A.P. Of his own accord, Detective Baxley went to A.P.'s home to interview him. During the interview, A.P. told the detective that Respondent had shown him pornographic pictures from the Internet in the school's computer room. A.P. also claimed that, on one occasion, A.P. declined Respondent's request for A.P. to touch Respondent's penis. On another occasion, Respondent allegedly masturbated A.P.'s penis. According to A.P., the latter two incidents took place in the computer room. At one point, A.P. also admitted to a teacher and a guidance counselor that he had lied about these incidents. Again the greater weight of the evidence shows that Respondent did not engage in any sexual activities with A.P. or engage in any improper behavior or relationship with A.P. Respondent never harmed A.P. in any way. J.K. was another student attending the after-school program at Powell Middle School. He went to school with both C.B. and A.P. He also attended Camp Sagamon during the summer for at least one summer. While at camp, J.K. testified that one time Respondent, while sitting on the porch of his cabin, asked him about what he thought about two men being together. However, J.K. does not remember what the specific words were. J.K. did not particularly respond and left. Nothing was said about anybody having sex. The statement did not have a sexual connotation. Clearly, no violation of the statutes and rules is supported by such a vague, out-of-context statement. J.K. also recalled one incident when Respondent accidentally bumped into J.K. while he was in the storage room. The incident occurred when J.K. came out from behind the door to the storage room while Respondent was entering. The back of Respondent's hand brushed J.K.'s groin area. Respondent was startled by the encounter, jumped back and said excuse me to J.K. Again, nothing in this incident even remotely supports a violation of statute or rules. Finally, J.K. testified about Respondent teasing him about not skinny-dipping while at summer camp. The episode occurred while J.K. and Respondent were on Respondent's boat with a group of other people. None of the others overheard the conversation or were in a position to overhear the conversation. There is nothing in the episode which suggests that the teasing was overbearing or disparaging. Again, no violation of the rules or statutes was shown.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Education enter a final order finding Respondent not guilty of any violations alleged in the Administrative Complaint and dismissing the Administrative Complaint. Jurisdiction is reserved over the issue of attorney fees should the parties not be able to agree on such. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 24th day of June, 2002.
The Issue Whether the Respondent should be reassigned to the Opportunity School.
Findings Of Fact Alejandra entered Rockway Junior High on March 19, 1984. Prior to entering Rockway, Alejandra had been an attendance problem at her former school. Three days after starting at Rockway, on March 21, 1984, Alejandra was picked-up for truancy. On April 9, 1984, Alejandra was again truant and was placed in the indoor suspension program. On April 10, she was warned about her behavior in the indoor suspension program, and on April 11, she was caught smoking cigarettes. On April 12, she disrupted indoor suspension and, therefore, was suspended from school. Her father was contacted concerning Alejandra's behavior. On April 23, 1984, a conference was held with Alejandra's father. At that time he explained that he had only had temporary custody of Alejandra and that Alejandra was again living with her mother. It was determined that the mother did live in the Rockway Junior High district and that Alejandra should transfer to West Miami Junior High School. On April 24, 1984, Mr. Plate found Alejandra on the school grounds. Mr. Plate initially testified that Alejandra was "trespassing" on school property because she was still suspended from school. He later changed his testimony because the suspension was for 10 days and the last day of the suspension was April 22, 1984. Mr. Plate testified that he saw Alejandra in the late afternoon and she was not appropriately dressed for class. Mr. Plate told Alejandra that she should have her mother come to the school and fill out the forms necessary to accomplish Alejandra's transfer. He also informed Alejandra that she no longer belonged at Rockway and she should not return. At no time did school personnel verify that Alejandra was living with her mother or verify the mother's address. Mr. Plate thought that the visiting teacher had been sent to the home, but he did not know whether contact had ever been made with Alejandra's mother. On May 21, 1984, Alejandra was referred to HRS because of her truancy, and on June 22, 1984, she was recommended for transfer to Opportunity School. Alejandra's last day in school was April 12, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered disapproving the assignment of the Respondent to the opportunity school program at Youth Opportunity School South and assigning the Respondent to the appropriate regular school program. DONE and ENTERED this 16th day of August, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, 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 16th day of August, 1985 COPIES FURNISHED: Mark A. Valentine, Jr., Esq. Assistant School Board Attorney McCrary and Valentine, P.A. 3050 Biscayne Boulevard Miami, Florida 33137 Phyllis Douglas, Esq. 1410 N.E. 2nd Avenue Miami, Florida 33132 Madelyn P. Schere 1410 N.E. Second Avenue Miami, Florida Mr. and Mrs. Julio Guerra 3331 S.W. 90 Avenue Miami, Florida 33165 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
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
The Issue The issues are whether Respondent has violated Sections 231.28(1)(b), 231.28(1)(f), and 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida teaching certificate number 335745. He is certified to teach Social Science Education through June 30, 1998. The Duval County School District employed Respondent as a teacher at Highlands Middle School for the 1993-1994 school year. Respondent taught geography during his first period class at the middle school. On or about February 10, 1994, a student in Respondent's classroom, C. L., was talking to a student in an adjacent classroom through a hole in the wall. Respondent lost his temper and threw a geography book at C. L., hitting him in the head. Respondent's testimony that the book slipped from his hand is not persuasive. After the book-throwing incident, the Duval County School District transferred Respondent from Highlands Middle School to the district's book depository. Two months later, the school district transferred Respondent to Joseph Stilwell Middle School for the remainder of the 1993-1994 school year. The principal of Highlands Middle School, George Reynolds, prepared Respondent's annual evaluation on March 1, 1994. Mr. Reynolds found that Respondent's performance was unsatisfactory in the following two areas: (a) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; and (b) shows sensitivity to student needs by maintaining positive school environment. These ratings resulted in a deduction of four points and an overall "unsatisfactory" evaluation. Mr. Reynolds, however, inadvertently marked Respondent's overall evaluation as "satisfactory." The Duval County School District transferred Respondent to Landon Middle School for the 1994-1995 school year. Within weeks, it became apparent that Respondent had difficulty controlling the students in his classes. In September 1994, Respondent called one of his student's a "trashy kid." During a subsequent parent-teacher conference, Respondent referred to his students as "bad" kids. As to classroom control, he stated that "a teacher can only do so much" and that "his hands were tied." After the parent-teacher conference, the Landon Middle School principal, Elaine Mann, had a conference with Respondent. During this conference, Respondent stated again that he had trouble maintaining classroom control because he had a number of bad students. Ms. Mann and Respondent agreed that she would observe his second period class on October 3, 1994. Ms. Mann observed Respondent's sixth grade World History class on the agreed date. Respondent's performance during this observation was unsatisfactory in the following ways: (a) Respondent allowed students to spend too much time on one activity; (b) Respondent's lesson did not include a way to evaluate classwork; (c) Respondent's lesson did not include an introduction or summary; (d) Respondent's lecture was disjointed; and (e) Respondent's stated objectives were not appropriate. In a memorandum dated October 6, 1994, Ms. Mann described Respondent's strengths and weaknesses and included recommendations to improve his teaching techniques. Ms. Mann conducted a conference with Respondent on October 10, 1994, to discuss her observations and recommendations. Ms. Mann observed Respondent's eight grade U.S. History class on November 14, 1994. For the second time, Ms. Mann found that Respondent's performance was unsatisfactory. A memorandum dated November 16, 1994, lists the following weaknesses: (a) Respondent did not require students to be in class on time; (b) Respondent wasted instructional time; (c) Respondent permitted students to sleep in class; (d) Respondent did not introduce the lesson or use a handout appropriately; (e) Respondent's lecture/discussion lacked organization; (f) Respondent turned his back to one side of the room for most of the period; and (g) Respondent only interacted with six students. Ms. Mann provided Respondent with a written memorandum dated November 16, 1994, setting forth his strengths, weaknesses, and recommendations for improvement. She advised Respondent that she would request assistance for him from the Professional Development office. Ms. Mann wanted that office to establish a support team to work on a "success plan" to improve Respondent's performance. Ms. Mann set a goal for Respondent to achieve a satisfactory evaluation by March 15, 1995. On January 3, 1995, Ms. Mann observed Respondent's class informally. She found that the students were not under control. Their behavior towards Respondent was disrespectful. Ms. Mann and Respondent signed a written success plan on January 11, 1995. The plan included strategies to meet the following objectives: (a) demonstrate effective classroom management skills; and (b) demonstrate effective presentation of subject matter. A member of the support team, Marlene Rasmussen, observed Respondent on January 19, 1995 and January 23, 1995. The focus of the observations was Domain Four, presentation of subject matter. Based on her observations, Ms. Rasmussen recommended that Domain One, lesson planning, be added to Respondent's success plan. Ms. Rasmussen also recommended that Respondent attend a workshop to learn effective teaching behaviors. Ms. Mann arranged for Respondent to attend this three-day workshop. On January 13, 1995, Ms. Mann received a complaint that Respondent used the word "shit" in addressing a student in his class. Ms. Mann admonished Respondent regarding his inappropriate language in a written memorandum dated January 30, 1997. Peggy Clark, a member of the in-service support cadre, provided assistance to Respondent beginning in February 1995. She worked with Respondent in the area of lesson planning. Ms. Clark observed Respondent's classroom performance on two occasions. She conducted two post-observation conferences with Respondent. Ms. Clark was unable to complete her duties in assisting Respondent because of his absences. Louise Peaks, the eight-grade house administrator, was a member of Respondent's success team. As a resource person, she assisted him, on an informal basis, by providing him with feedback from his student disciplinary referrals. She counseled him during casual conversations in the hallway and in his classroom. Respondent never implemented any of the advice or suggestions that Ms. Peaks gave him. Ms. Peaks received complaints from Respondent's fellow teachers concerning his failure to follow school procedures. He allowed his students to come and go as they pleased. His classroom was very disorganized. Pat Barker, the sixth-grade house administrator, was a member of Respondent's success team. She observed him on March 10, 1995, and March 13, 1995. Ms. Barker found that Respondent's students were disorganized. She saw no evidence of classroom management. According to Ms. Barker, Respondent appeared to be unaware whether certain students were in or out of the room. Ms. Barker observed that a majority of the students were uninvolved in Respondent's lesson. Some of the students were asleep. Respondent was not alert to student misbehavior. Ms. Mann issued her annual evaluation of Respondent on March 15, 1995. She found that his over-all performance was unsatisfactory. Specifically, Respondent's performance was unsatisfactory in the following areas: (a) demonstrates ability to plan and deliver instruction; (b) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (c) shows sensitivity to student needs by maintaining positive school environment; (d) demonstrates abilities to evaluate instructional needs of students; and (e) shows evidence of professional characteristics. On May 26, 1995, Ms. Mann received a written complaint from the teacher whose classroom was located above Respondent's classroom. The complaint concerned disturbing noise from Respondent's room on May 25 and 26, 1995, days during which standardized tests were being administered. Following receipt of Ms. Mann's evaluation, Respondent requested a transfer to another school for the 1995/1996 school year. In response to this request, the Duval County School District transferred Respondent to Paxon Middle School. On August 24, 1995, Respondent's new principal, Quentin Messer, held a private conference with Respondent to develop a plan to improve Respondent's teaching performance. That same day, a written success plan was signed by Respondent and Mr. Messer. The objective of the plan was to provide Respondent with assistance in demonstrating effective classroom management skills and effective presentation of subject matter. The success plan identified support team members, outlined strategies to meet the objectives, and set timelines for completion of proposed activities. Ms. Arnette Smith was a cadre assistant and trainer from the Professional Development office during the 1995/1996 school year. On September 18, 1995, Ms. Smith received a request to assist Respondent in improving his lesson planning skills. Ms. Smith met with Respondent and Dr. Ben Titus, assistant principal, on September 22, 1995. During this meeting, Ms. Smith reviewed Respondent's success plan and arranged a time for an informal observation in Respondent's classroom. In a subsequent meeting, Respondent and Ms. Smith discussed the ways she could assist him with his lesson plans. Respondent expressed a negative attitude toward his students during his conversations with Ms. Smith. He told her that his students did not have values and did not want to learn. Ms. Smith observed Respondent informally on October 11, 1995. After the observation, Ms. Smith discussed her suggestions with Respondent and provided him with a copy of her notes, which outlined specific recommendations. Ms. Smith offered to demonstrate the planning and teaching methods that Respondent could use to enhance his classroom effectiveness. Principal Messer observed Respondent formally and informally through out the 1995/1996 school year. Most of his informal observations were in response to complaints from students, parents, and other teachers. On October 25, 1995, Mr. Messer conducted his first formal observation of Respondent. Mr. Messer found that Respondent's performance was at the lowest or next to the lowest level in 17 out of 24 criteria. Mr. Messer found that Respondent's lesson plan, consisting of one word, was inadequate. Respondent wasted valuable class time collecting papers, sharpening pencils, and arguing with students. Mr. Messer noted that there was no rapport between Respondents and his students. Ms. Smith, personnel development cadre assistant, met with Respondent again on November 7, 1995. The purpose of the meeting was to prepare for her observation of Respondent's class at a later time. Ms. Smith and Respondent reviewed the planning- data form in detail. She advised Respondent to have the form complete prior to the planned observation on November 9, 1995. After observing Respondent on November 9, 1995, Ms. Smith found that Respondent needed improvement in thirteen of twenty-four indicators. Respondent had not adopted or followed any of Ms. Smith's suggestions. He was inadequately prepared and had not completed the planning documents. Ms. Patricia Downs, house administrator of the sixth grade, provided Respondent with assistance in the 1995/1996 school year. She conducted formal and informal observations of Respondent in November 1995, in the area of classroom management, Domain Two. Classroom management was an area of concern due to the number of complaints received from students, parents, and faculty regarding the noise and confusion in Respondent's classroom. Ms. Downs observed Respondent's sixth grade social studies class on November 13, 1995. During that observation, Respondent exhibited a total of 10 effective behaviors and 44 ineffective behaviors. For example, she observed that students were sleeping, working off-task, and otherwise not participating in the lesson, while Respondent proceeded as if those students were not present. The following day, November 14, 1995, Ms. Downs reviewed her findings with Respondent. She discussed specific incidences showing Respondent's lack of classroom control and made suggestions to improve his classroom management. On December 4, 1995, Mr. Messer made a written suggestion that Respondent contact the Duval County School Board's Wellness Center because he appeared nervous and disoriented. On February 6, 1996, Mr. Messer conducted his second formal observation of Respondent. Mr. Messer concluded that Respondent's performance was only marginally satisfactory. That same day, Mr. Messer advised Respondent that if his performance was not elevated to an acceptable level by March 15, 1996, he would be given an unsatisfactory evaluation for the 1995/1996 school year. Mr. Messer continued to observe Respondent informally after February 6, 1996. Based on these informal observations, Mr. Messer concluded that Respondent had not improved over the course of the school year in any of his areas of deficiency. Principal Messer asked Dr. Titus, assistant principal of Paxon Middle School, to assist Respondent with his success plan. Dr. Titus coordinated cadre support for Respondent. On March 7, 1996, Dr. Titus observed Respondent in his classroom. When Dr. Titus arrived for the observation, three students in the hall said that Respondent would not let them enter the room. Respondent explained that he closed the door because the students were late. During his observation, Dr. Titus noted a lack of order, confusion, and negative interaction between Respondent and his students. A majority of the students were off-task because Respondent had no apparent system for classroom management. Respondent's performance was very unsatisfactory. Ms. Downs, sixth-grade house administrator, observed Respondent for the second time on March 8, 1996. She again concluded that Respondent's performance was unsatisfactory. Ms. Downs reviewed her observations with Respondent on March 13, 1996. During that meeting, Respondent told Ms. Downs that he considered the school to be a "cesspool." He also stated that the students were impossible to teach. On March 29, 1996, Mr. Messer issued an overall unsatisfactory annual evaluation for Respondent. This decision was based on the results of Mr. Messer's formal and informal observations and the input he received from Dr. Titus, Ms. Smith, and Ms. Downs. Pursuant to a resignation agreement with the Duval County School District, Respondent resigned his employment effective June 12, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order revoking Respondent's teaching certificate for one year. DONE AND ENTERED this 1st day of June, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1998. COPIES FURNISHED: J. David Holder, Esquire 14 South Ninth Street DeFuniak Springs, Florida 32433 Francis W. Keefe 6176 Fordham Circle Jacksonville, Florida 32217 Kathleen M. Richards, Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-2500 Jerry W. Whitmore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
