The Issue The issues presented are whether Respondent's contact with a student during a physical education class on November 14, 2001, violates the terms of previous directives and written reprimands; and whether such conduct constitutes misconduct in office, gross insubordination, willful neglect of duty, or conduct unbecoming a public employee, within the meaning of Florida Administrative Code Rule 6B-4.009(3) and (4), for which Petitioner has just cause under Section 231.36(1)(a), Florida Statutes (2001), to dismiss Respondent from his position as a physical education teacher. (All references to statutes are to Florida Statutes (2001) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact The Orange County School Board (School Board) employed Respondent during the 2001-2002 school year as a physical education teacher, or "coach," at Westridge Middle School (Westridge), pursuant to Section 231.36 and a collective bargaining agreement between the School Board and the Orange County Classroom Teachers Association. Respondent had taught at Westridge in a similar capacity for approximately four or five years before the 2001-2002 school year. On November 14, 2001, Respondent had finished roll call for his physical education class, and students in the class were "dressing out" inside the boys locker room. Another coach had given candy to some students in his class for good behavior. The coach gave Respondent some of the candy to reward students in Respondent's class for their good behavior. Respondent began passing out candy to students in Respondent's class. R.S. was a student in the first coach’s class. R.S. approached Respondent and tried to take some candy from Respondent. Respondent refused to give any candy to R.S., explaining to R.S. that R.S. had already received candy from the other coach. R.S. ignored Respondent's instructions and persisted in his attempt to take candy from Respondent. At that point, R.S. was a disruptive student. Respondent told R.S. to "back off," but R.S. persisted. R.S. put his hands on Respondent's hands and in the candy in an attempt to reach the candy. At the same time, a group of students rushed toward Respondent to receive candy. The group of students were also disruptive. Respondent tried to separate himself from R.S. at the same time that Respondent backed away from the onrushing group of students. Respondent touched R.S. on the shoulder with an open hand and pushed R.S. away from Respondent. Respondent was neither angry nor agitated. The force that Respondent applied to R.S. caused R.S. to take a step or two backward into the adjacent lockers but did not injure R.S. or inflict pain on R.S. R.S. did not fall down. Other students began taunting R.S. They called R.S. a "wussy" and yelled that R.S. had been beaten up by Respondent. R.S. began to cry and left the locker room to get Principal Lorenzo Phillips. The school administration investigated the matter and, on November 27, 2001, relieved Respondent of his duties with pay. On December 17, 2001, Petitioner filed an Administrative Complaint seeking to dismiss Respondent from his teaching position. On November 14, 2001, Respondent faced a disruptive situation. It is undisputed that the situation in the locker room was a chaotic one that involved approximately 40 students in a cramped space. The risk of injury from students falling over each other or over benches in the locker room was great, and Respondent needed to restore order to a disruptive situation. Section 232.27 authorizes Respondent to keep good order in the classroom or other places in which the teacher is in charge of students. Section 232.27(1)(i) authorizes Respondent to use reasonable force to protect himself or others from injury. Respondent had statutory authority to use reasonable force to restore good order in the locker room on November 14, 2001, and to protect himself and others from injury during a chaotic and disruptive situation. The primary factual issue is whether the force used by Respondent for those lawful purposes was reasonable. Petitioner did not comply with the notice requirements in Section 120.57(1)(d) for similar fact evidence based on previous violations. It is undisputed that the force employed by Respondent did not injure R.S. The only evidence that the force used by Respondent was excessive is the testimony of the eyewitness students called by Petitioner. That testimony was inconsistent and less than credible and persuasive. E.S. testified that "everybody started jumping on Coach Packer." E.S. did not see Respondent make contact with R.S. because E.S. really wasn't paying attention. L.P. is a good friend of R.S. L.P. testified that the whole class crowded around Respondent and that Respondent jabbed R.S. with a closed fist from a distance of approximately six inches. However, R.S. did not lose his balance and was not in pain. Respondent is significantly larger and stronger than R.S. E.M. first testified that he did not see Respondent make contact with R.S. but saw R.S. fall on the floor. E.M. later testified that he saw Respondent push R.S. in the side. E.M. testified that he was in the cafeteria at the time rather than in the locker room. F.D. testified that Respondent merely touched R.S. and tried to calm him down. F.D. testified that Respondent applied no force to R.S. R.S. testified that he had his hand in the candy held by Respondent and that Respondent pushed R.S. back. R.S. fell back into the locker behind him. Respondent testified that he put an open hand on R.S. to separate from R.S. and that R.S. stepped back into the locker. R.S. was approximately three feet away from the lockers behind him. As the trier of fact and arbiter of credibility, the ALJ must resolve the evidential conflict regarding the degree of force employed by Respondent on November 14, 2001. Accordingly, the trier has carefully considered the substance of the testimony of the various witnesses, their respective demeanors, their possible biases, and determined the appropriate weight to be accorded to the testimony of each witness. The force used by Respondent to gain control of the situation was reasonable, within the meaning of Section 232.27, and was not excessive. Respondent used reasonable force for a lawful purpose under Section 232.27. The use of reasonable force for a lawful purpose did not violate Management Directive A-4, entitled "Physical, Emotional or Sexual Abuse of Students or Sexual Harassment of Adults by Employees of the School Board of Orange County, Florida." Management Directive A-4 states in pertinent part: No students of the Orange County Public Schools should be subjected to physical, emotional, or sexual abuse by an employee. Therefore, any principal, administrator, or work location supervisor who observes or receives a complaint that a student has been physically, emotionally, or sexually abused by an employee of the School Board of Orange County, Florida shall immediately notify the Employee Relations Department . . . . The force used by Respondent on November 14, 2001, was not abusive. Prior to November 14, 2001, Petitioner had issued three directives and two written reprimands to Respondent for touching students and failing to exercise reasonable care. Respondent did not challenge any of those disciplinary actions. Respondent's use of reasonable force for a lawful purpose on November 14, 2001, does not violate the terms of the prior directives and reprimands. Petitioner issued the first written directive to Respondent on May 18, 1999. The directive instructs Respondent to avoid touching students "except as absolutely necessary to effect a reasonable and lawful purpose." The reasonable force used by Respondent on November 14, 2001, for a lawful purpose complied with the express requirements of Petitioner's directive. The written directive issued on May 18, 1999, also prohibits Respondent from verbally intimidating a student. Respondent's instruction for R.S. to "back off" did not verbally intimidate R.S. R.S. ignored all verbal instructions from Respondent and persisted in his physical pursuit of candy leaving Respondent with little alternative but to physically separate from R.S. The written directive issued on May 18, 1999, also requires Respondent to report any incident immediately to the administration. Respondent did not have time to report the incident to the administration. R.S. reported the incident immediately while Respondent was still responsible for his class. The administration immediately investigated the report from R.S. On October 13, 1999, Petitioner issued another directive to Respondent after a physical confrontation between Respondent and two students. The directive was identical to the first directive except that it added: Touching a student in a manner that serves no educational or lawful purpose may encourage the appearance or use of force. On November 14, 2001, Respondent used reasonable force for a lawful purpose and did not violate the directive issued on October 13, 1999. On October 13, 1999, Petitioner also issued a written reprimand to Respondent, dated October 7, 1999. The written reprimand is effective for five years and states in part: On October 6, 1999, a meeting was held to discuss allegations of misconduct on your part. In that meeting we discussed two physical confrontations that took place between you and your students. In the first case you admitted thumping a student's chest in an incident. In the second incident you admitted to stepping on a student's foot to stop him from running, but could not recall how the student received a scratch on his neck. I am especially concerned about your conduct because you were clearly in violation of directives issued to you in the past. For this reason, this written reprimand is being issued along with a separate letter of directives. I am advising that if there is another confirmed complaint of a similar nature, a recommendation may be made to terminate your employment. The use of reasonable force on November 14, 2001, for a lawful purpose is not a "confirmed complaint of similar nature" within the meaning of the written reprimand dated October 7, 1999. On May 19, 2000, Petitioner issued another directive to Respondent dated May 18, 2000. The directive addressed negligent conduct by Respondent. The wording of the directive was almost identical to the two previous directives issued to Respondent. For reasons similar to those previously stated, the use of reasonable force on November 14, 2001, for a lawful purpose did not violate the directive dated May 18, 2000. On May 19, 2000, Petitioner issued a written reprimand to Respondent dated May 18, 2000. The written reprimand is effective for five years and states in part: This letter shall serve as a summary of our meeting on May 15, 2000, and as a letter of reprimand. In that meeting we discussed an incident in which two students fell to the ground while participating in an activity. You neglected those students in that you failed to determine if they were injured. Furthermore, your disregard was evident in a statement you made to another student when you told the student to "kick them up." It is my conclusion that you were negligent by failing to exercise reasonable care, and that you failed to appropriately perform your duties. I am especially concerned because this is not the first time I have had to issue directives or a reprimand regarding your conduct. I am now advising you that if there is another incident that rises to the level of a discipline. I may recommend your termination. . . . The reasonable force used by Respondent on November 14, 2001, for a lawful purpose was not an "incident that rises to the level of a discipline." The collective bargaining agreement between Petitioner and the Orange County Classroom Teachers Association applies in this case. Article XII of the collective bargaining agreement, entitled "Discipline," states at Section A1: An employee may be disciplined only for just cause, and discipline shall be imposed only for a violation of an expressed rule, an expressed order, an expressed policy or a reasonable expectation of management which should have been known to the employee. The collective bargaining agreement at Article XII, Section A2, further states, in relevant part: Any teacher may be suspended or dismissed at any time during the year, provided the charges brought against him are based on . . . misconduct in office . . ., gross insubordination, [and] willful neglect of duty . . . in accordance with Florida Statutes. Section 231.36(1)(a) applies to this proceeding. Section 231.36(1)(a) provides in part: Each person employed as a member of the instructional staff in any district school system . . . shall be entitled to and shall receive a written contract . . . [that] contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, the following instances, as defined by the rule of the State Board of Education: misconduct in office . . . gross insubordination, [and] willful neglect of duty. . . . The allegations in the Administrative Complaint are limited to misconduct in office, gross insubordination, willful neglect of duty, and conduct unbecoming a public employee. Rule 6B-4.009(3) defines misconduct in office, and Rule 6B- 4.009(4) defines gross insubordination and willful neglect of duty. Case law is the only authority cited by Petitioner to define conduct unbecoming a public employee. Rule 6B-4.009(3) defines misconduct in office as: a violation of the Code of Ethics of the Education profession as adopted in Rule 6B- 1.001, F.A.C. and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006 F.A.C. which is so serious as to impair the individual's effectiveness in the school system. The Code of Ethics of the Education Profession, as set forth in Rule 6B-1.001, in relevant part, requires that: [t]he educator values the worth and dignity of every person. . . [and] [t]he educator's primary professional concern will always be for the student. The Principles of Professional Conduct for the Education Profession are contained at Rule 6B-1.006 and state in relevant part: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. * * * Shall not intentionally expose a student to unnecessary embarrassment or disparagement. [and] Shall not intentionally violate or deny a student's legal rights. Rule 6B–4.009(4) defines "gross insubordination" and "willful neglect of duties" for instructional personnel. Gross insubordination and willful neglect of duty mean: a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. The use of reasonable force on November 14, 2001, for a lawful purpose did not constitute misconduct in office within the meaning of Rules 6B-1.001, 6B-1.006, and 6B-4.009(3). Respondent's primary concern was for the safety of other students within the meaning of Rule 6B-1.001. Respondent made a reasonable effort to protect his students from conditions harmful to their physical health and safety within the meaning of Rule 6B-1.006. Respondent did not intentionally expose R.S. to unnecessary embarrassment or disparagement or intentionally violate the student's rights. The use of reasonable force on November 14, 2001, for a lawful purpose did not constitute gross insubordination or willful neglect of duties within the meaning of Rule 6B-4.009(4). The use of such force did not violate the terms of any policy memorandum, prior directive, or written reprimand. Conduct unbecoming a public employee is conduct that falls below a reasonable standard or conduct prescribed by the employer. The use of reasonable force on November 14, 2001, for a lawful purpose is not conduct unbecoming a public employee. If Petitioner were to have prohibited Respondent from using reasonable force for a lawful purpose, it would have been an unreasonable standard that violated Section 232.27. The use of reasonable force on November 14, 2001, for a lawful purpose is not just cause within the meaning of Section 231.36(1)(a). The use of such force does not violate the terms of the collective bargaining agreement. Respondent arguably may have used poor judgment in deciding to pass out candy in the locker room on November 14, 2001. His action may have precipitated the chaos in the locker room. However, the Administrative Complaint does not charge either Respondent or the other physical education teacher with poor judgment in passing out candy. The Administrative Complaint is limited to allegations that unreasonable force by Respondent constituted just cause for dismissing Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order finding Respondent not guilty of the acts and omissions alleged in the Administrative Complaint and reinstating Respondent to his teaching position. DONE AND ENTERED this 4th day of November, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 4th day of November, 2002. COPIES FURNISHED: Amanda J. Green, Esquire James G. Brown, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Toby Lev, Esquire Egan, Lev & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802 Ron Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact During the 1993/1994 school year, the Respondent, Alan Davis, was in his 12th year teaching eighth grade science at Meadowlawn Middle School in St. Petersburg, Florida. He is on a professional services contract. He has a good record and reputation as science teacher at the school and no prior disciplinary problems (or even accusations against him.) The Respondent's classroom was located on the east wall of the school building, at the intersection of two interior hallways to the north and west of the classroom. There is a classroom door to the outside to the east, and the entire east wall of the classroom consists of windows looking across a walkway directly onto portable special education classrooms. There are vertical blinds that can be drawn across the windows and closed. The blinds usually are drawn but not closed. There is a classroom door to the hallway to the west of the classroom. Immediately across the intersecting hallway to the north of the classroom is the door to the teachers' lounge. Immediately past the intersecting hallway to the north is the door to the office of the school resource officer. Immediately past the resource officer's office, only approximately 25 feet from the door to the Respondent's classroom, is a suite of offices belonging to the school principal and other school administration personnel. Kim Wilder was an eighth grader at Meadowlawn during the 1993/1994 school year. She was in the Respondent's fourth period science class. Through about half of the year, she enjoyed a good record and reputation as a pupil of the school. Her grades were A's and B's, and she was not a disciplinary problem. However, several people noticed a change in her behavior in the middle of the school year. Her relationship with her parents deteriorated somewhat, and she sometimes displayed an attitude of not caring about family or school. The beginning of these changes in Kim roughly coincided with her friendship with a boy named Gilbert, who was a poor student, both in academics (he had to repeat grades) and in conduct. Gilbert also later began to spread rumors that he and Kim allegedly were sexually active. Such rumors came to the attention of interested and concerned teachers, one of whom alerted Kim's parents. Kim's parents became convinced that Gilbert was a bad influence on Kim and that she would be better off not seeing him. They refused to allow him to visit at their home, and they insisted that she stop seeing him. This created a conflict between Kim and her family. In the course of conversations with some girl friends approximately the end of March or beginning of April, 1994, Kim disclosed that she had been sexually assaulted by the Respondent. Initially, she told one of her friends only that the Respondent had "felt on" and "kissed" her. She told others additional details. But the first three friends she told did not recall any allegation that the Respondent performed oral sex on Kim. In later retellings, Kim added that allegation. In one later retelling, she added the allegation that the Respondent felt her breasts. Kim forbade her friends to tell anyone about her allegations. But one of her friends disclosed the allegations, and school authorities were informed on or about April 8, 1994. When Kim learned that the school authorities were investigating her allegations, she was very upset and angry at the friend who disclosed her confidences. When the school authorities confronted Kim, she maintained that her allegations were true, and the school authorities brought her home from school. Kim's parents were not home but her sister-in-law, who lived next door, was home and spoke with Kim. Based on the sister-in-law's testimony, it does not appear that Kim's statement to her was very detailed. Although Kim and her parents reported that they generally have an open and communicative relationship, Kim refused to discuss the allegations with them when they came home from work. Instead, she referred her parents to her sister-in-law. Through at least August 26, 1994, Kim had not discussed the details of her allegations with her parents. (They have, however, read statements she has written concerning the allegations.) Law enforcement interviewed Kim at her home on April 8, 1994, and memorialized the interview in a written statement. On June 21, 1994, Kim wrote an account of the alleged assault by the Respondent. Kim also recounted the entirety of the alleged assault twice during testimony at final hearing, once on direct and again on cross; parts were repeated once more on redirect. All of these statements are replete with rich detail, making them seem real. However, with one noteworthy exception, the consistent precision with which the details are repeated seems unnatural and could give the impression of being recited from a memorized script. Before her fourth period science class on Friday, December 10, 1993, the Respondent told her that her mother had telephoned the Respondent earlier that morning to inquire about the C on her report card for the second grading period (after getting an A for the first grading period) and that the Respondent had told Kim's her mother that Kim was missing seven assignments. The Respondent told Kim that she could get the assignments, together with the book she needed to do them, after school. (The required book would not be available until after school because the Respondent's classes shared the use of the same books during class.) Meanwhile, in the detailed versions of her allegations, Kim stated that she was jokingly bantering with a friend and the Respondent about whose "man" the Respondent was, as they did from time to time. She stated that, on this occasion, the Respondent informed them that he was "a dirty old man." She stated that she and her friend did not take the Respondent's statement seriously. Kim stated that, after school ended at about 3:50 p.m. on Friday, December 10, 1993, she went to the Respondent's class room to get the make-up assignments. She testified that she would have arrived at approximately 4 p.m. She said the Respondent was straightening desks and that she helped him finish before sitting in one of the desks. She stated that he then asked her if she had come by to see if he really was a "dirty old man." She made an off-hand comment to the effect, "I guess," or "whatever." He then walked to the classroom door and shut it. Several of the witnesses, including her friends and her sister-in-law, testified that, when Kim first told them what happened, she said that the Respondent locked the classroom door. The report of the law enforcement interview on April 8, 1994, also indicated that Kim told law enforcement that the Respondent locked the door. In fact, the classroom door does not lock from the inside. In her June 21, 1994, statement and in her testimony at final hearing, Kim stated that she thought the Respondent locked the door. Kim alleged that, after shutting (and, in the early versions, locking) the door, the Respondent put a poster with a monkey on it over the window portion of the door and dragged an easel with a flip chart in front of the door, apparently to block access to the classroom or, at least, to serve as an alarm to give him some time to react in the event someone tried to enter the classroom. There was indeed a poster of a monkey (or chimpanzee) on display in the Respondent's classroom that year, and there also was an easel in the classroom that would have been at the Respondent's disposal. But, in fact, the classroom door opens into the hallway, not into the classroom, and the placement of the easel in front of the door would not have been very effective. It is possible that it was the Respondent, not Kim, who overlooked the manner in which the door opened. But, even if the classroom door had been locked or blocked, the Respondent's classroom was adjacent to another science classroom, and there is a door between the two classrooms that does not lock. Ordinarily, it would not be uncommon for the Respondent's fellow science teacher, as well as a few students, to be in the adjacent classroom from 3:50 p.m. until as late as 4:05 p.m. In addition, administration personnel in the suite containing the principal's office and the other administration offices generally are occupied until 4:30 p.m., or later, even on a Friday. Custodians also circulated through the building after school (although they generally did not clean the Respondent's classroom until later.) Fortuitously, it has been possible to deduce, from some of the details provided in Kim's allegations, the precise day on which the alleged assault occurred--Friday, December 10, 1993. It so happens that Friday, December 10, 1993, was the last day of the school science fair. There were approximately 200 projects on display in the school gymnasium, which was just down the hall from the Respondent's classroom. Entrants in the fair were required to dismantle and remove their projects after school that day. As a result, although both students and teachers generally leave the school building promptly on Fridays, and fewer after school activities usually are planned for Fridays, more than the normal number of students would have been in the hallway during the time immediately after the end of school on that particular Friday. In addition, the Respondent's fellow science teacher in the connecting classroom adjacent to the Respondent's had arranged with a handful of his students to allow them to dismantle their projects earlier in the day and store them in his classroom. These students would have been in the connecting adjacent classroom between approximately 3:50 and 4:05 p.m. picking up their science projects. Kim alleged that, after securing the classroom door, the Respondent returned to her and asked whether she thought he was a "dirty old man." She stated that, when she answered, "no, I think you are a nice guy," he suggested, "maybe you should go now," and went over to remove the easel and open the door. But, she alleged, when she insisted that she had to stay in order to get her assignments, he again went to the door and repeated the steps he had just taken to secure the door. This time, when he returned to her, he backed her into a corner of the classroom, using gentle pressure on the shoulders, and (in each telling, "putting his arm around her neck") began kissing her. Kim stated that she did not resist the Respondent or call for help because the Respondent was not being violent, and she was afraid that he would become violent if she was not compliant, so she kissed him back. She alleged that he proceeded to lift her ankle-length "peach and black floral print skirt" (which she was wearing with a "black, long sleeve V-neck shirt"), remove her panties (and, in each telling, she stepped out of the panties "with [her] right foot" while he held her panties) and insert his finger into her vagina. She alleged that he pressed down on her shoulders until she was in a squatting position, lay on his back on the floor and positioned his head under her, and initiated oral sex. After this, he allegedly stood her up, and resumed kissing her, while unbuckling his belt and unzipping his pants. She alleged that he took her hand and placed it on his penis. She alleged that, when he removed his hand from hers, she removed her hand from his penis. When she allegedly thwarted his attempt to have intercourse with her, he allegedly turned her around to face the wall, bent her over (somehow, towards the walls she was facing), again pulled up her skirt, and (as best she could tell) again attempted intercourse, this time from the rear (she alleged that she "felt something hard against her vagina"). Then, she alleged, she detected movement from behind her and assumed that he was masturbating and ejaculating because, when she turned around after the movement stopped, he was wiping something off the floor with a yellow towel. (A yellow cloth, from which a piece had been torn or cut, was found in one of the closets in the Respondent's classroom during the School Board's investigation of the allegations. But it was not proven that the cloth which the Respondent allegedly used to clean the floor on the afternoon of Friday, December 10, 1993, had come from the cloth found in the closet in the Respondent's classroom.) Kim alleged that the Respondent apologized to her for what he did and begged her both never to come back to his classroom alone after school and not to tell anyone. She alleged that the Respondent made reference to a teacher who was being disciplined for sexual misconduct with a student 20 years ago and stated that he always would be afraid that she would disclose what he had done. (In fact, such a story had been reported in the local newspapers on December 8, 1993.) Kim alleged that she promised the Respondent she would not tell anyone. According to Kim, after the incident, which lasted a total of 20-30 minutes, she and the Respondent calmly and amicably left the school together. They allegedly exited through the classroom door into the hallway to the west of the classroom, crossed the intersecting hallway, immediately down which is located the door to the teachers' lounge, and continued walking down the hallway. Immediately past the intersecting hallway, they would have had to pass both the office of the school resource officer and the suite of offices belonging to the school principal and other school administration personnel. A little further down the hallway, they would have passed between the school cafeteria and the school gymnasium (the site of the science fair). Just past the cafeteria and gymnasium, they would have come to the door leading to the parking lot. Kim stated that no one saw them and that they did not see anyone on their way out of the building. Kim alleged that, before she left the building to walk home, she watched the Respondent walk across the parking lot and get in his pickup truck. The Respondent testified that, after learning the date on which it was deduced that the assault allegedly occurred, he realized that it would have been impossible for Kim to have witnessed him getting into his pickup truck on the day in question. He testified that he was having mechanical problems with the truck that week and was driving his wife's car across the bay bridge to work after dropping her off at her place of employment in Tampa, where they lived, while his truck was being repaired. He produced a cancelled check and was able to secure a computer printout from the bill he paid for the repairs when he picked the truck up the next day, Saturday, December 11, 1993. Kim also testified that the Respondent left the "monkey poster" on the door covering the window when they left the classroom. But the custodian who cleaned the Respondent's classroom each evening did not recall ever seeing the "monkey poster" anywhere but on the wall. The Respondent denied engaging in any of the alleged inappropriate behavior. He was able to reconstruct that he had bus duty on Friday, December 10, 1993, and would not have returned to his classroom until 4 p.m. He recalled that there was an unusual amount of activity in the hallways, especially for a Friday, but that probably was attributable to the school science fair. He recalled that, as he approached his classroom, he noticed several students in the adjacent connecting classroom with his fellow science teacher. He thinks he saw Kim there, too. In any event, Kim followed him into his classroom shortly after he unlocked it, opened the door and turned on the lights. He remembered that she helped him straighten desks and that he sat at a desk with her to go over the assignments. He did not recall whether he or she actually wrote the assignments down. He then gave her the book she needed, and she left. He testified that the entire process took approximately five minutes and that the door to the classroom never was closed during that time. Kim alleged that, although she never completed the missing assignments, the Respondent raised her grade from a C to a B. The Respondent testified that Kim completed four of the seven missing assignments. The Respondent normally would not either keep the make-up assignments nor, to prevent other students from copying them, return them to the student. Kim alleged that the Respondent gave her special privileges, like library passes, after the assault. But it was not proven that the Respondent gave more privileges to Kim after the alleged incident than before, or that he gave her privileges that he did not also give to other good students like Kim. Kim alleged that the Respondent often complimented her appearance. The Respondent admitted to affirmatively answering occasional direct questions from Kim as to whether she was pretty. He also recalled occasions when he told Kim and other female students that they were "pretty enough already" and did not need to (and should not) comb their hair and apply makeup in class. Kim alleged that, on one occasion, the Respondent commented that a low-cut blouse she was wearing was distracting. The Respondent recalled once reprimanding Kim for wearing a blouse that was revealing and in violation of school dress code. He admitted that he may have told her that it could be distracting to other students. The Respondent admitted to making an inappropriate comment to or about Kim on one occasion. The school assembled in the gymnasium one day for the introduction of a fund-raising campaign that featured a "money machine." The money machine consisted of a transparent booth with dollar bills inside. As part of the fund-raising campaign, students would be allowed to enter the booth while fans blowing air through holes in the floor of the booth blew the dollars bills off the floor and around inside the booth. The student inside had a limited period of time to grab as many dollar bills as possible. When volunteers were requested to demonstrate the "money machine," Kim thought better of it since she was wearing a skirt. The next day, in the Respondent's class, the Respondent asked Kim why she hadn't volunteered. When she answered that she was wearing a skirt and was concerned that air in the booth would have lifted her skirt, the Respondent commented aloud to the class, "that would have been interesting," or words to that effect. The Respondent was trying to be funny but admitted that the comment was not appropriate. It is noteworthy that, when the Respondent was told that Gilbert was spreading rumors to the effect that he and Kim had an intimate sexual relationship, the Respondent warned Kim to take appropriate steps to protect her reputation. It was revealed during the course of the investigation into Kim's allegations against the Respondent that Kim also has made allegations that, during the summer of 1993, she was forcibly raped at two in the morning, in the bathroom of a restaurant, by a 24-year old male acquaintance. Although Kim's mother thought she remembered Kim returning home upset after the alleged incident, she also testified that she may have learned about it after the allegations against the Respondent surfaced--long after the alleged rape. (Kim's mother, who has been terminally ill and on several medications for some time, seemed confused on this point.) Regardless when Kim revealed the alleged rape, both she and her mother agreed that Kim asked her mother not to tell anyone because Kim could "handle it" by herself. Kim did not receive any treatment or counseling for the alleged rape. Kim also did not mention the alleged rape to law enforcement during the investigation into the allegations against the Respondent. Although it is possible that the alleged rape or the Respondent's alleged sexual assault actually happened, both seem improbable. Yet, it is troubling that no obvious motivation for Kim to fabricate the allegations against the Respondent appears from the evidence. It is possible that she was seeking attention. It is possible that her mother's medical condition could have played a role in motivating such action. On the other hand, it could have had something to do with the relationship between Kim and Gilbert. Maybe she was upset with the Respondent for his role, minor as it was, in turning her parents against Gilbert. Maybe she was trying to deflect her parents' attention away from the bad influence that Gilbert might have represented by trying to make the point that acquaintances or even teachers could pose a worse threat. Maybe the alleged rape and the allegations against the Respondent arose from apprehension about how to explain feared consequences of sexual activity with Gilbert, as irrational as it might seem. Maybe there are other possible explanations in the nature of mental or emotional instability. Perhaps the most likely explanation is that Kim was simply making up a story to impress her girl friends and found herself committed to the story when one of them disobeyed Kim's command not to tell anyone. One can only speculate as to what the actual motivation could have been.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges and reinstating the Respondent with back pay. RECOMMENDED this 1st day of March, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 March, 1995. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-8. Accepted and incorporated. Rejected as not proven. Accepted and incorporated. First sentence, accepted and incorporated; the rest is rejected as not proven. Accepted and incorporated. 13.-29. Rejected as not proven. Accepted and incorporated. Rejected as not proven that she "volunteered." (She decided not to volunteer.) Rejected as not proven that he told Kim (privately, as opposed to as part of the class). Otherwise, accepted and incorporated. 32.-33. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13.-17. Accepted and incorporated to the extent not subordinate or unnecessary or argument. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301-4th Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638 J. Howard Hinesley Superintendent Pinellas County School System Post Office Box 4688 Clearwater, Florida 34618-4688
Findings Of Fact Respondent holds teaching certificate number 230805 issued by the State of Florida, Department of Education. Respondent's teaching certificate is valid through June 30, 1996. Respondent is certified in administration, supervision, and physical education. Respondent has been employed by the Orange County School District for approximately 20 years (the "District"). Respondent was employed as a physical education teacher at Hungerford Elementary School for approximately 13 years ("Hungerford") until 1991 when he was transferred to Orlando Vocational Technical Center. Respondent is currently the Dean of Students at Orlando Vocational Technical Center. While he taught at Hungerford, Respondent was respected by his peers and by his students. Students generally enjoyed Respondent's physical education classes. Respondent holds a black belt in karate and is a weight lifter. He routinely allowed several students at a time to jump on him during physical education class and wrestle with him. Respondent was a strict teacher at Hungerford. He believed strongly in discipline. Students in his classes were generally well-behaved. Physical Force Against Students At Hungerford, Respondent frequently used physical contact to gain the attention of misbehaving male students. He typically tapped boys on top of their heads, in the sternum with an open hand or fist, or in the rear end with a track baton. Respondent never intended to embarrass or disparage any of his male students. The vast majority of students recognized that Respondent was merely attempting to gain their attention or playing around. Respondent's discipline in karate gave him more than adequate control to prevent harm to any misbehaving student when Respondent used physical contact to gain their attention. Respondent never lost that control in his classes. No student was physically injured as a result of physical contact from Respondent. Respondent's physical contact was not calculated to cause misbehaving students any pain or discomfort. Respondent was criticized by some who thought he was too severe a disciplinarian. In 1987, some students lodged complaints against Respondent for alleged physical abuse. Two legal proceedings were brought by the Department of Health and Rehabilitative Services over allegations of physical abuse. Respondent successfully defended both proceedings. Sometime in 1988 or 1989, Respondent tapped Andre Hunter in the chest with an open hand. At the time, Andre was a third grade student at Hungerford. Respondent did not hurt Andre. Andre ". . . didn't feel nothing. It didn't hurt. It just felt like he tapped me." Transcript at 24. On separate occasions in 1988 or 1989, Respondent tapped Billy Washington on the head with his fist and hit him on the behind with a track baton. Billy was in Respondent's physical education class during the second, third, and fourth grades. When Respondent tapped Billy on the head, "It was funny. It didn't hurt." Transcript at 34. When Respondent hit Billy on the behind with a track baton, "It stung a little bit, but it didn't bother me." Id. Emotionally, Billy ". . . felt all right." He ". . . didn't think about it. It didn't bother me." Transcript at 35. On separate occasions in 1988 or 1989, Respondent tapped Bobby King in the chest with Respondent's fist. At the time, Bobby was in the first or second grade. It hurt Bobby and made him mad. Bobby did not understand why Respondent struck him. On September 22, 1989, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for using unnecessary physical force against a student on March 20, 1989. The letter directed Respondent to refrain from the use of threatening behavior and physical force against students. Attendance And Inadequate Supervision During the 1988-1989 and 1989-1990 school years, Respondent sometimes failed to properly supervise students in his class. Respondent was late to class a few times. A few times, he left the school campus prior to the end of the school day without permission. Respondent failed to let other school employees know that he would not be at school. However, his attendance record neither adversely affected his teaching effectiveness nor impaired his relationship with his colleagues or students. On February 14, 1990, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for leaving the school campus without permission from the principal, not adequately supervising his students on one occasion, and for acting in a threatening or intimidating manner toward the principal when confronted about Respondent's supervision of his students. Transfer To Vo-Tech On August 21, 1990, Respondent was removed from his classroom duties at Hungerford and placed on relief of duty status with full pay and benefits. The District took the action as a result of allegations of inappropriate discipline, leaving students unsupervised, and insubordination. Respondent was subsequently transferred to Orlando Vocational and Technical School. Respondent continues to enjoy wide respect as a teacher from parents, other teachers, and community leaders. As Dean of Students, Respondent currently holds a responsible position of employment with the District. Respondent functions effectively in that position. Deferred Prosecution Agreement On October 8, 1991, Respondent and Petitioner entered into a Deferred Prosecution Agreement. On or before October 8, 1992, Respondent agreed to successfully complete college courses in Assertive Discipline, Classroom Management, and Methods of Teaching Elementary Physical Education. Respondent further agreed to provide written verification that Respondent completed the required courses. Respondent failed to complete the required courses in a timely manner. Although Respondent ultimately completed the required courses, he had not supplied Petitioner with written verification as of the date of the formal hearing. If Respondent had timely complied with the Deferred Prosecution Agreement, this proceeding would not have been instituted. Respondent believed in good faith that his transfer out of the classroom to his position as Dean of Students made the courses on classroom techniques unnecessary. Respondent was notified in 1993 that he was in violation of the Deferred Prosecution Agreement. Respondent promptly enrolled in the required classes and completed them. Respondent has now complied with all of the conditions of the Deferred Prosecution Agreement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a Final Order finding Respondent guilty of the charge that he failed to make a reasonable effort to protect students from conditions harmful to their learning and not guilty of the remaining charges in the Administrative Complaint. It is further recommended that the Commission issue a letter of reprimand to Respondent and, pursuant to Section 231.262(6)(c), impose an administrative fine not to exceed $750. RECOMMENDED this 22d day of November, 1994, in Tallahassee, Florida. DANIEL MANRY 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 22d day of November, 1994.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges and, if so, the discipline, if any, that should be imposed against Respondent’s employment.
Findings Of Fact The Parties Petitioner is the authorized entity charged with the responsibility to operate, control, and supervise the public schools within Miami-Dade County, Florida. Respondent was hired by Petitioner as a school security monitor in March of 1993. Although Respondent was initially assigned to Miami Northwestern High School, he was transferred to Norland High in April 1994, where he remained until the incident that is the subject of this proceeding. Respondent's employment is governed by the collective bargaining agreement between Petitioner and United Teachers of Dade ("UTD"). Pursuant to Article XXI, Section 3.D of the UTD contract, Respondent may only be discharged for "just cause," which includes, but is not limited to, "misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude." The Allegations It is undisputed that during the 2009-2010 school year, an unknown number of students staged a series of unauthorized boxing matches1 at various locations on the grounds of Norland High. Of the multiple boxing incidents, this proceeding concerns only one: a match that took place in Norland High's wrestling room at some point between the beginning of the school year and February 2010. On that occasion, approximately 20 students gathered in the wrestling room (a location where the students were not authorized to be) during the second lunch period to view a match between D.L. and another student. Respondent, who was present2 during the entire incident, neither orally directed the students to stop fighting, nor did he physically intervene.3 A videotape of the incident, which was introduced into evidence during the final hearing, depicts the following: 00:07 - D.L. and unidentified student, both of whom are wearing boxing gloves, begin fighting. 00:19 - Several student "referees" separate D.L. and other participant. 00:30 - Respondent, wearing green golf- style shirt (the standard uniform for security monitors), standing in corner of room. 01:07 - Fighting resumes. 01:35 - D.L. and other participant broken up by students; match concludes. 02:00 - Respondent standing near unidentified student participant. 02:25 - Students begin to leave. 02:32 - Video ends. As the forgoing timeline indicates, D.L. and the unidentified student boxed for a total of 40 seconds. Although both students threw a number of punches during that span, most of the blows were wild and either missed or did not land cleanly. Nevertheless, the undersigned finds that the episode presented a condition that was potentially harmful to the physical health or safety of D.L. and the other student participant. Although the boxing incident detailed above is one that should have been reported, at no time did Respondent notify any member of Norland High's administration of what occurred. Respondent's explanation, which the undersigned credits with some reluctance, is that he unsuccessfully attempted to contact school administration upon discovering the incident, only to be informed by a front office worker that the administrators were in a meeting. After the students dispersed, Respondent went to lunch and forgot to follow up on the matter.4 Eventually, one of Norland High's assistant principals, Peter Melton, learned of the incident after a student told him to search YouTube for "Norland fights." Mr. Melton promptly notified the principal of Norland High, and an investigation ensued on or around February 2010. During the initial stages of the investigation, Petitioner suspected that Respondent had organized multiple boxing matches between students on Norland High's campus, charged admission, and awarded prizes to the winners.5 Ultimately, however, Petitioner determined that no probable cause existed to support such allegations, and instead charged Respondent with failing to intervene in the match involving D.L. and with not informing school administration of the incident. Although Norland High's administration faced some level of parental backlash as a result of the boxing incidents, Petitioner did not demonstrate that the backlash was attendant to the charges ultimately filed against Respondent, as opposed to the initial, more serious allegations that Petitioner could not substantiate. Petitioner failed to establish by a greater weight of the evidence that Respondent's effectiveness as a school security monitor has been impaired as a result of his conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order: (1) finding that just cause does not exist to terminate Respondent's employment; and (2) imposing an appropriate punishment other than dismissal based upon Respondent's failure to make reasonable effort to protect students from conditions harmful to their physical health or safety. DONE AND ENTERED this 6th day of April, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2011.
The Issue Whether Respondent's suspension and termination from employment as a teacher by the Franklin County School Board was justified and, if not, whether backpay and attorney's fees should be awarded.
Findings Of Fact At the time of the incident that gave rise to this proceeding, Respondent, Webster Bozeman, was a teacher employed under a continuing contract at Carrabelle High School, Franklin County, Florida. Respondent had been employed by the Franklin County School Board from August 1985, until he was suspended on November 1, 1991. The Respondent was assigned to teach Physical Education (PE) classes for the 1991-1992 school year at Carrabelle High School, by the principal, Dr. J. Krawchuk. The Respondent had previously taught Social Studies from 1985 until 1989, and taught special education classes for two years, during 1989-90, and 1990-91. His teaching certification with the Florida Department of Education was in Social Science, with a designation for middle school. Mr. Bozeman was assigned to teach the Physical Education classes for the 1991-1992 school year because those classes were very free maintain control and discipline in more standard regular and special education classes. On September 6, 1991, Respondent's doctor had changed his medication from Triavil, a combined antipsychotic and antidepressant. The Triavil contained Trilafon, or perphenazine which is an antipsychotic used to modify psychotic abnormal behavior. The medication was changed because there was no indication that Respondent was overtly psychotic. Respondent remained on an antidepressant. However, the withdrawal of such an anti cause uncharacteristic aggressive behavior and the recurrence of any psychosis which the medication had been controlling. Approximately a week and one half later, on September 17, 1991, during Respondent's sixth period physical education class in the gym at Carrabelle High School, a group of eighth graders were sitting on the bleacher throwing wadded up paper. Lance Bockelman, a student in the class, was seated on the bleacher behind Respondent. Bockelman threw a piece of paper that struck Respondent on the left side of the head in the area of his ear. Although the evidence at the hearing demonstrated that Respondent was only struck by a wadded up piece of paper, either because his medication had been changed or because Respondent's eardrum already was traumatized, Respondent believed that he had been struck with something hard like metal. Respondent became angry and upset over being struck. Respondent ordered Bockelman to follow him to the locker room and Bockelman complied. The door between the gym and the corridor leading to the locker room closed behind them. Respondent told Bockelman to go over to the wall on one side of the corridor. Bockelman did not threaten Respondent but thought the incident a joke and exhibited laughter. Bockelman was also moving around although he wasn't trying to get away. In an attempt to discover what had hit him and to focus Bockelman's attention, Respondent grabbed Bockelman around the neck and pushed him up against the wall by putting his hands around Bockelman's collarbone area. Respondent began to inquire as to what Bockelman had thrown and was shaking his index finger at Bockelman, occasionally poking him in the chest. At some point, Respondent drew his fist back in a threatening, angry manner, saying, "I'll knock the shit out of you." Billy Dalton, a tenth-grade student, came from the locker room area into the corridor and observed Respondent holding Bockelman in a firm grip. Respondent appeared to be mad. Bockelman by then had realized the seriousness of the situation and was on the verge of tears. Dalton intervened by placing himself between Respondent and Bockelman, grabbing or tapping Respondent's raised arm and telling Respondent to cool off. Respondent let go of Bockelman and returned to the gym. At the point of Dalton's intervention, Respondent's physical contact with Bockelman had been minor and Respondent only threatened to use corporal punishment on Bockelman; Respondent never in fact used any corporal punishment against Bockelman, primarily because Dalton intervened. A group of students had followed Respondent and Bockelman and had gathered around the gym door, which was then open, and witnessed Respondent's actions. After Dalton interevened, Bockelman left the area and ran to where the buses pick up students. Maxine Taylor, a bus driver, saw Bockelman crying and walked him to the office where he spoke with the principal. Later, Principal Krawchuk conducted a conference with Bockelman's mother and Respondent. At the time of the conference, Mr. Krawchuk did not observe any outward signs of injury to Respondent, though Respondent began to complain that his head was ringing. Respondent also complained of ear pain caused by the object Bockelman had thrown. At the conference Bozeman denied any wrongdoing. However, at the hearing, Respondent admitted that pushing Bockelman up against the wall was not necessary. Respondent also admitted that his reaction to Bockelman's misbehavior was inappropriate. After the conference, Respondent filled out worker's compensation forms and visited Dr. Leslie Wilson. Dr. Wilson found an inflammation of the ear drum and prescribed antibiotics and pain medication. At a follow Wilson decided Respondent did not need to see a specialist. Dr. Wilson opined that the injury was the result of trauma, but could not determine the cause. Dr. Wilson also determined that Mr. Bozeman's ear drum injury resulted from "something hitting the head or actually hitting the ear drum." The injury to Mr. Bozeman could not have resulted from being struck by a piece of paper. Dr. Wilson's opinion was based, in part, on the information he had received from Respondent. Mr. Krawchuk, the principal, conducted an internal investigation of the incident. The investigation included searching the gym for any evidence of a hard object that could have been concealed in the paper Bockelman had thrown. Mr. Krawchuk was unable to find any such objects in the gym area. He had students who witnessed the incident write statements concerning this event. 1/ Krawchuk concluded that Respondent's actions were improper and amounted to excessive force and that Respondent's effectiveness would be diminished "quite a bit." He testified that the ability to keep order in a classroom and discipline students relates to effectiveness and that if a teacher could not keep students in line, the teacher was ineffective. Krawchuk also testified that using force against a child is a breach of a teacher's duty to protect the child's safety and health and violated the Code of Professional Conduct. The effect is to embarrass and demoralize the child, and has an adverse effect on the child's peers. He knew of no justification for physically touching a student in this situation. The appropriate response was to verbally reprimand the student and refer him to the office for discipline. Based on his entire investigation, Krawchuk recommended that Respondent be suspended without pay and then terminated. Krawchuk felt that Respondent could no longer be effective in the classroom, because he did not "have it within him now to deal with children." Mr. Ponder, the superintendent, agreed with Mr. Krawchuk and concluded that Respondent violated the Code of Professional Conduct by failing to protect the health, safety, welfare and learning environment of the students and that Respondent should therefore be terminated. He also concluded that Respondent violated the code by failing to preserve students from embarrassment and disparagement. Mr. Ponder believed that Respondent's actions amounted to misconduct in office because there would be concern or fear on the part of children later in that class. He testified that Respondent's actions seriously impaired Respondent's effectiveness in the classroom because Respondent's conduct was unprofessional, the students would be afraid and would lose respect for Respondent. Mr. Ponder also testified that an appropriate response to being hit by an object would be to send the student to the office. Once the student stops his bad conduct, there would be no justification for striking, touching or hitting the child. On the other hand, none of the students who testified offered any competent substantial evidence that there would be any ill effect to the students caused by Mr. Bozeman returning to teach. Indeed, Bockelman told another student, Jonathan Tindell, that he was not trying to get Mr. Bozeman fired, and did not want him fired on his account. In fact, the evidence showed that Respondent at the time did not have the respect of the students and was not very good at maintaining order in his classes. However, the evidence showed that Respondent's behavior prevented him from regaining any student's respect, thereby continuing his ineffectiveness as a teacher. Therefore, the evidence did demonstrate that Respondent remained ineffective as a teacher at least due in part to his conduct towards Bockelman. Franklin County does use progressive discipline for employees. However, an assault on a student is a severe infraction and at a minimum merits suspension under Franklin County's progressive disciplinary code. On the other hand, Respondent's disciplinary record shows no serious discipline being imposed other than peer help in maintaining better order and discipline in his classes. Based on these facts, the school board has demonstrated that Respondent committed misconduct in office by threatening the use of excessive force against Lance Bockelman. The evidence showed that Respondent's conduct was serious enough to continue his impaired effectiveness as a teacher. Therefore, the Board could have taken disciplinary action against Respondent. Finally, there were no mitigating factors shown by the evidence. Therefore, given the severity of Respondent's attempted use of force which was thwarted only by a student's intervention, termination is an appropriate penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Respondent be found guilty of violating Chapter 231.36, Florida Statutes, (1991), by committing an act of misconduct in office which seriously impaired his effectiveness as an employee of the school board and that his suspension without pay be upheld as well as his dismissal. DONE AND ORDERED this 2nd day of August, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1994.
The Issue Whether Respondent is guilty of immorality and unprofessional conduct as is more specifically alleged in the Administrative Complaint dated February 25, 1991.
Recommendation Accordingly, it is RECOMMENDED that a final order be entered permanently revoking the Florida teaching certificate of Robert M. Dodd, Jr. DONE and ENTERED this 14th day of October, 1991, in Tallahassee, Leon County, Florida. K. N. AYERS 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 14th day of October, 1991. Copies furnished: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Robert M. Dodd 38124 Townview Avenue #106 Zephyrhills, Florida 33540 Jerry Moore, Administrator Professional Practices Services 325 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400
The Issue The issue in this case is whether a district school board is entitled to dismiss a paraprofessional for just cause based principally upon the allegation that she struck a disabled student on the head with her elbows.
Findings Of Fact Background The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Cynthia Thompson ("Thompson") had worked in the Miami-Dade County Public School System for approximately 16 years. From August 2002 forward, and at all times relevant to this case, Thompson was employed as an education paraprofessional at Neva King Cooper Education Center, where she provided educational services to students having severe developmental disabilities. The alleged events giving rise to this case allegedly occurred on January 6, 2006. The School Board alleges that on that date, in the cafeteria at around 9:00 a.m., as a breakfast session was winding down, Thompson used her elbows to strike one of the students in her charge, a profoundly mentally handicapped, 15-year-old female named K. P., on the head. This allegation is based on the account of a single eyewitness—— Latanya Stephenson, the school's assistant registrar.1 Thompson consistently has maintained her innocence, denying that she hit K. P. as charged. She claims——and testified at hearing——that she merely used her arms to prevent K. P. from getting up to rummage through the garbage can in search of food and things to put in her mouth. This, then, is a "she said——she said" case that boils down to a credibility contest between Thompson and Ms. Stephenson. If Ms. Stephenson's account is truthful and accurate, then Thompson is guilty of at least one of the charges against her. On the other hand, if Thompson's account is believed, then she is not guilty of misconduct. Given that the credibility determination drives the outcome, the undersigned will first, as a predicate to evaluating the evidence, set forth the two material witness's respective accounts of the incident in question, and then make determinations, to the extent possible, as to what might have happened. It is important to note, however, that the findings in the next two sections merely report what each witness said occurred; these do not necessarily correspond to the undersigned's findings about what likely took place in the cafeteria at Neva King Cooper Education Center on January 6, 2006. Stephenson's Story Ms. Stephenson recounts that on the morning in question, while on break, she went to the cafeteria to get a snack. She went through the line, bought a cookie, and, before leaving the building, stopped to chat with two custodians who were sitting in a closet that holds supplies. As she leaned against a wall, listening to the custodians' conversation, Ms. Stephenson looked back into the cafeteria and, at a distance of about 10 to 12 feet, saw Thompson interact with K. P. K. P. was sitting at a table, her chair pushed in close, hands in her lap. Thompson, whose hands were clasped in front of her body, approached K. P. from behind and——after "scanning" the room——struck her twice in the head, first with her right elbow and then, rotating her body, with her left elbow. Ms. Stephenson heard the blows, saw K. P.'s head move, and heard K. P. moan. Ms. Stephenson called out Thompson's name, and Thompson, apologizing, explained that K. P. repeatedly had tried to pick through the garbage can in search of things to eat. Thompson told Ms. Stephenson that she would not hit K. P. again, but that striking the student was an effective means of getting her to stay put. Ms. Stephenson did not check on K. P. to see if she were injured or in need of assistance. According to Ms. Stephenson, there were about 40 to 50 students in the cafeteria at the time, ranging in age from three to 22 years. There were also approximately 12 to 15 members of the instructional staff (i.e. teachers and paraprofessionals) present, meaning that, besides Thompson and Ms. Stephenson, about a dozen responsible adults were on hand at the time of the incident in dispute. Ms. Stephenson did not bring the incident to the attention of any of the teachers or paralegals who were in the cafeteria at the time. Thompson's Testimony Thompson was responsible for three students at breakfast that morning. The teacher under whose supervision she worked, Mr. Ibarra, was watching the other five students in the class. Mr. Ibarra was on one side of the table, Thompson the other. Thompson was feeding one of her students, "R.", while watching K. P. and a third student. R. did not want to eat, so to coax him into opening his mouth, Thompson was playing an "airplane game" with him, trying to make the feeding fun. Thompson had a plastic utensil in her right hand, with which she was feeding R. some applesauce (or similar food); in her left hand was a toy. At the time of the alleged incident, some students had finished breakfast and been brought back to their classrooms. Still, there were quite a few people in the cafeteria, 60 to 80 by Thompson's reckoning, including adults.2 K. P. was sitting at the table, behind Thompson; they had their backs to one another. Consequently, while feeding R., Thompson needed to look over her shoulder to keep an eye on K. P. Suddenly, Thompson noticed K. P. starting to rise from her chair. (K. P. has a history of darting to the garbage can, grabbing food and trash, and putting these things in her mouth to eat.) Thompson reached back with her right arm and, placing her elbow on K. P.'s left shoulder, prevented the child from getting up. K. P. then tried slipping out to her (K. P.'s) right, whereupon Thompson swung around and, with her left arm, blocked K. P.'s escape. Right after this happened, Ms. Stephenson spoke to Thompson, criticizing her handling of K. P. Thompson explained to Ms. Stephenson (who, as an assistant registrar, does not work directly with the children) that she simply had prevented K. P. from getting into the trash can. Ms. Stephenson walked away. Soon thereafter, Mr. Ibarra said, "Let's go." The children were escorted back to the classroom. Resolutions of Evidential Conflict The competing accounts of what occurred are sufficiently in conflict as to the crucial points that both cannot simultaneously be considered fully accurate. The fact- finder's dilemma is that either of the two material witnesses possibly might have reported the incident faithfully to the truth, for neither witness's testimony is inherently incredible, impossible, or patently a fabrication. Having observed both witnesses on the stand, moreover, the undersigned discerned no telltale signs of deception in the demeanor of either witness. In short, neither of the competing accounts can be readily dismissed as false. Of course, it is not the School Board's burden to prove to a certainty that its allegations are true, but only that its allegations are most likely true. As the fact-finder, the undersigned therefore must consider how likely it is that the incident took place as described by the respective witnesses. In her testimony, Ms. Stephenson told of an unprovoked battery on a defenseless disabled person. It is an arresting story, shocking if true. Ms. Stephenson appeared to possess a clear memory of the event, and she spoke with confidence about it. Nothing in the evidence suggests that Ms. Stephenson had any reason to make up the testimony she has given against Thompson. Nevertheless, some aspects of Ms. Stephenson's testimony give the undersigned pause. There is, to start, the matter of the large number of persons——including at least a dozen responsible adults, not to mention about 50 students——who were on hand as potential witnesses to the alleged misdeed. The undersigned hesitates to believe that Thompson would attack a child in plain view of so many others, particularly in the absence of any provocation that might have caused her suddenly to snap.3 The cafeteria would not likely have afforded Thompson a favorable opportunity for hitting K. P., were she inclined to do so. Next, it puzzles the undersigned that Ms. Stephenson did not immediately signal to someone——anyone——in the cafeteria for help. The undersigned expects that a school employee witnessing the beating of a disabled child under the circumstances described by Ms. Stephenson would promptly enlist the aid of other responsible persons nearby. Indeed, the undersigned can think of no reason (none was given) for Ms. Stephenson's rather tepid response to a violent, despicable deed——other than that it did not happen exactly the way she described it. Finally, Ms. Stephenson's incuriosity about K. P.'s condition after the alleged beating is curious. Having, she says, witnessed Thompson twice strike K. P. in the head with enough force that the blows could be heard over the din of dozens of children, and having heard K. P. moan, presumably in pain, Ms. Stephenson by her own admission made no attempt to ascertain whether the child was hurt or in need of attention. This indifference to the welfare of the alleged victim strikes the undersigned as inconsistent with Ms. Stephenson's testimony that Thompson attacked the child. Turning to Thompson's testimony, she, like Ms. Stephenson, has not been shown to have a motive for lying about the incident in question——assuming she is innocent of the charges, which the undersigned must do unless and until the greater weight of the evidence proves otherwise. Thompson is, however, a convicted felon, which is a chink in her credibility's armor. That said, there is nothing obviously discordant about her account of the relevant events. Her testimony regarding K. P.'s proclivity for diving into trashcans is corroborated by other evidence in the record, and the undersigned accepts it as the truth. Her testimony about the feeding of R. was not rebutted and therefore is credited. Her explanation for having used her arms and elbows (while her hands were full) to block K. P. from racing to the garbage is believable.4 If there is anything eyebrow-raising about Thompson's testimony, it is that the blocking maneuver she described, quickly twisting her body around from right to left, elbows and arms in motion, seemingly posed the nontrivial risk of accidentally hitting the child, possibly in the head. One is tempted to speculate that Thompson unintentionally might have struck K. P. in the course of attempting to keep her from engaging in a potentially harmful behavior, namely eating refuse from the garbage can.5 The undersigned does not, however, think or find that this happened, more likely than not, because of the "dog that didn't bark"6——or, more particularly, the teachers and paraprofessionals who never spoke up. Most likely, if Thompson had struck K. P. in the manner that Ms. Stephenson described, then the noise and commotion would have attracted the attention of someone besides Ms. Stephenson. There were, after all, approximately 12 other members of the instructional staff nearby in the cafeteria when this alleged incident occurred. Yet, no one in a position to have witnessed the alleged attack——except Ms. Stephenson——has accused Thompson of wrongdoing, nor has anyone come forward to corroborate the testimony of Ms. Stephenson. This suggests that nothing occurred which the instructional personnel, who (unlike Ms. Stephenson) regularly work directly with this special student population, considered unusual or abnormal. Taken as a whole, the evidence is insufficient to establish that, more likely than not, Thompson struck K. P. as alleged. Based on the evidence, the undersigned believes that, as between the two scenarios presented, the incident more likely occurred as Thompson described it; in other words, relative to Stephenson's account, Thompson's is more likely true. Accordingly, the undersigned accepts and adopts, as findings of historical fact, the statements made in paragraphs 6 and 9-15 above. The upshot is that the School Board failed to carry its burden of establishing, by a preponderance of the evidence, that Thompson committed a disciplinable offense. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Thompson is guilty of the offense of misconduct in office. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of gross insubordination. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's corporal punishment policy. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of unseemly conduct. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's policy against violence in the workplace.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (a) exonerating Thompson of all charges brought against her in this proceeding; (b) providing that Thompson be reinstated to the position from which she was suspended without pay; and (c) awarding Thompson back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 22nd day of December, 2006.
The Issue The issue in this case is whether just cause exists to sanction Respondent, Diana O'Neill (hereinafter "O'Neill"), for violation of Florida Statutes and Florida Administrative Code Rules governing the conduct of teachers in the State of Florida, and, if so, what sanction(s) should be imposed.
Findings Of Fact The Department is responsible for overseeing all teachers and staff members of public schools in the State of Florida. It is the duty and responsibility of the Department to ensure that all teachers follow the rules of professionalism and conduct set forth in the Florida Statutes and the Florida Administrative Code. The Department issues a teaching certificate to each instructor employed by a school and has the right to sanction teachers for wrongdoing. Sanctions may include revocation of the teaching certificate. At all times relevant hereto, O'Neill was employed by the School as a teacher for severely and profoundly mentally handicapped children. During the School Year, O'Neill had five or six students in her classroom. Relevant to the discussions herein, three of those students are identified as O., A., and T. O'Neill has a master's degree in curriculum and instruction, a bachelor's degree in science and education, and a certification in elementary and special education. She has been certified as a teacher in Florida for over 21 years. She was hired by the School in 1990 and taught mentally handicapped children there without interruption until January 29, 2008. In all the years O'Neill taught at the School, she received only superior evaluations and had never been subject to discipline. During the School Year, however, there were a number of complaints made against O'Neill by her classroom teacher's aides that resulted in O'Neill's suspension and removal from the classroom. Those allegations form the basis of the Department's decision to impose sanctions against O'Neill. The Students O. was seven years old during the School Year. At ten weeks of age, O. had been diagnosed with a genetic heart disorder which necessitated open-heart surgery. As a result, O. is developmentally delayed and has severe hearing loss and some negative vision issues. O. understands some of the things going on around her to a limited degree. She says only one word, "Go," and cannot generally communicate with others. She laughs at certain things, feels pain, and is only slightly ambulatory. O. is not toilet-trained and has no sense of danger or awareness of potential harm around her. A. was eight years old during the School Year. He has an atypical type of Downs Syndrome, i.e., while he does not have the physical appearance of a Downs Syndrome child, he does have the low muscle tone. A. was only beginning to learn to walk during the School Year, but he could see and hear well. He is not toilet-trained and needs assistance with all aspects of his daily activities. When he began walking, A. utilized a standard walker, then graduated to a pull-behind walker that helped him stand more upright. When A. would tire of walking, he would simply drop to the ground wherever he was at that moment. Due to some gastro-intestinal problems, A. had a G-Tube port surgically inserted in his stomach. The G-Tube port must be cared for in order to prevent infection. T. is a profoundly mentally handicapped girl, who was 11 years old during the School Year. She has a condition called hemimegalencephaly and experiences seizures. T. has only minimal vision and cannot walk or talk. She can hear sounds and directions and is able to move her hands and arms. When she was very young, T. underwent an operation called a hemispherectomy that resulted in a row of stitches across her entire skull. The area around the stitches is very sensitive, and T. dislikes having her head touched for any reason. During the School Year, T. was placed in a device called a "Stander" that allowed her to stand upright for limited periods of time. She seemed to like the Stander and her parents approved of it, but that device is no longer used at the School. Due to the extensive nature of her condition, all therapies for T. have been discontinued. The Classroom O'Neill's classroom during the School Year was set up so that she could deal with the various issues confronting severely mentally and physically handicapped children. The classroom contained restrooms for toileting the children and various equipment and furnishings to assist in their educational training. The primary focus for O'Neill was to develop as much independent functioning for the students as possible based upon their individual abilities. None of the students in O'Neill's classroom was able to understand even rudimentary academic work, so the focus was on various daily living needs. There were two teacher's aides in the classroom during the School Year: Cooke and Anderson. Cooke was basically trained as an aide, beginning with her first position in 2004. She attended college for three years, but did not graduate. She also worked with O'Neill during the 2006-2007 school year, i.e., the year immediately prior to the period at issue in this proceeding. Anderson had previously worked in O'Neill's classroom in the 2004-2005 and 2005-2006 school years. Anderson worked at a different school in the 2006-2007 school year. When Anderson elected to return to the School in 2007, O'Neill (who was the union representative at the School), provided her with some assistance. The degree or kind of assistance is disputed, but it is clear that O'Neill did not object to Anderson returning as her aide. Both aides in O'Neill's class respected her and believed she knew how to teach mentally handicapped children. Both admitted learning a lot from O'Neill. The aides, however, were somewhat intimidated by O'Neill, ostensibly due to O'Neill's status as a union representative. There does not appear to have been any social interaction between O'Neill and the aides outside of the school setting. It was the duty of the aides to assist O'Neill in the classroom. O'Neill gave them certain tasks and expected the aides to perform them independently and effectively. O'Neill created a kind of calendar setting forth each aide's duties on a weekly or monthly basis. The aides would perform many of the same tasks done by O'Neill, and there appears to have been a generally amiable relationship between the women during the first part of the School Year. In addition to the aides, there were other adult visitors to the classroom. One of the students had personal nurses who would come into the classroom on a regular basis to care for the child. Physical therapists, occupational therapists, speech and language pathologists, and other teachers, as well as the School principal would be in the classroom at any given time. The room itself had two doors, one that opened up to the hallway and one that connected the classroom with a large therapy room. Neither of the doors was kept locked on a regular basis, but sometimes the door to the hallway would be locked if someone forgot to physically unlock it in the morning. There was a window out to the hallway, but that window was covered up with equipment and the blinds closed at all times. O'Neill's Actions In the first half of October 2007, during the School Year, O'Neill decided to attempt the use of a gait belt on A., based on A.'s actions. He would often refuse to cooperate when moving from the classroom to another room, he would sometimes wander off, and he would often just sit down wherever he was. A gait belt is a strap that can be secured around the torso of an individual and used as a means of assisting the person when they are walking. Gait belts are used on physically handicapped individuals, the elderly, and children. A. had become less cooperative as he became more ambulatory, and he would often attempt to elope instead of returning to the classroom. O'Neill believed that a gait belt would be helpful in this regard. One day as the lunch period was ending and the class was preparing to return to the classroom, O'Neill wrapped the gait belt around A., just below his armpits. She did not put the belt lower, because she was being careful to avoid A.'s G-Tube site. As she held the door open for other children, she felt A. starting to slip away and held the belt taut so as to keep him from eloping. At this point, the descriptions of the event differ greatly between O'Neill and the aides. O'Neill says she felt the belt get taut, then looked down and saw that A. had lifted his feet off the ground by bending his knees. She then lowered him to the ground and directed him to stand. At the same time, she lifted up on the belt to assist him with rising up. Once he was off the ground, however, he refused to unbend his knees, and she was essentially holding him up in the air again. She lowered the belt and again ordered A. to stand up. She raised him up a third time, but he still would not cooperate. Frustrated, she removed the belt and got A. to return to the classroom by manually picking him up every time he dropped to the ground. Cooke remembers A. being placed in the gait belt. As O'Neill had said, A. was not being cooperative. However, in response to him falling to the ground, O'Neill began to yank the belt--and A.--up and down like a yo-yo, yelling at A. the entire time. The situation made Cooke very uneasy, and she thought O'Neill's actions were improper. Anderson remembers O'Neill warning A. that if he did not begin to walk back to the classroom, she (O'Neill) would get the gait belt. A. would sit, O'Neill would "boot him in the bottom," and he would only move a little. So, O'Neill eventually got out the gait belt and put it on A. She then started yanking A. up and down by the belt "like a yo-yo." Anderson told O'Neill to stop because she believed O'Neill's actions were improper. O'Neill laughed at Anderson, but she also stopped yanking on A. There was some evidence of abrasions or bruises on A. at about the time of the incident, but the testimony was insufficient to prove that the marks were caused by the gait belt. The testimony of the two aides is more credible based upon their corroboration of each other, their absence of pecuniary interest in the matter, and their demeanor. This is not to say that O'Neill does not remember the event exactly as she described it, only that the description provided by the aides seems more believable in consideration of all the testimony. During the School Year, O'Neill began to strike the students with various objects, e.g., a water bottle wrapped in a koozie, a tennis ball sleeve wrapped in carpet, a small catalogue or magazine, and a cardboard sign covered with a piece of carpet. O'Neill referred to the striking as a "bop" on the head or arm, done lightly and solely for the purpose of getting the child's attention or playing with them. Again, the aides' perception differs. They remember the strikes to be much heavier in nature, done in anger or frustration. There is no way to ascertain with any degree of certainty as to how O'Neill used the objects on the students. T. had one physical condition that is of significance to this matter. Due to her physical development, T.'s bottom lip would often become dry and flaky. It was necessary to keep ointment on her lip and to carefully cut off the dried skin at times. T.'s grandmother would often come to the school and take care of that task. On at least one occasion, but likely more than once, O'Neill pulled the dried skin off T.'s lip, rather than remove it with scissors. O'Neill admits to pulling the skin off during a school year prior to the year at issue. She says it was done because she did not want T. to go out in public with an aesthetically displeasing appearance. Cooke, however, remembers numerous instances during the School Year in which O'Neill would "yank [the skin] right off her mouth." T. would utter a cry of pain, and O'Neill would simply laugh as if it were a funny thing she had done. Cooke said T.'s mouth would bleed when this happened, but T.'s mother did not testify as to whether she saw evidence of bleeding when T. came back from school. O'Neill would also be somewhat caustic in her comments about the students. She often referred to O. as "Oblivia" and said T. was "just sitting there, using up oxygen" (or something to that effect). When an aide raised questions about striking the children with objects, O'Neill said something akin to, "So what, am I going to cause them brain damage?" O'Neill admits that her language was sometimes curt and that she used dark humor in order to deal with a very stressful job. She denies ever saying anything meant to harm or demean the students she taught. O'Neill struck one student, T., on one occasion, although the exact nature of the event is disputed. One day while attempting to instruct T. how to distinguish between food and drink, O'Neill got frustrated. Despite O'Neill's best efforts, T. would not cooperate by selecting the appropriate picture placed in front of her. After numerous attempts, O'Neill finally gave up and brushed her hand against T.'s head. O'Neill described the action as a soft brushing of T.'s hair; the aides remember it differently. They describe O'Neill actually hitting T. with a backhand motion, striking her with sufficient force to make T.'s head move suddenly. The aides saw that event as egregious enough to report immediately and went straight to the principal's office. The aides' reporting of the incident with T. was, in their view, necessary in order to prevent O'Neill from further inappropriate behavior. While they had been reticent to report O'Neill earlier because she was a union representative and held some degree of authority over them, they finally had seen too much. The aides had reported O'Neill's behavior to the school nurse earlier. After that report, O'Neill stopped her questionable behaviors for a while. The behaviors returned however, and apparently got worse. In response to the report, the principal placed O'Neill on administrative leave pending an investigation. She had been aware of prior alleged incidents involving O'Neill, but did not take any action at that time as it appeared the situation had been resolved by the aides' reporting to the nurse. However, the latest incident, an alleged assault on a student, required immediate action. As a result of her investigation, the principal then withdrew O'Neill permanently from the classroom. O'Neill has a long history of working with mentally handicapped students. She started work in this area while still a high school student and became enamored with the subject from the beginning. In addition to her teaching duties, O'Neill has also done extensive volunteer work with the special needs students. It is quite obviously her passion. O'Neill is married and has a stepson. Her mother now resides in the Sarasota area. She does not acknowledge any particular stressors in her life during the School Year, but her behavior indicated otherwise. Besides the aforementioned actions concerning her students, O'Neill's interaction with other professionals was also somewhat strained. At least one professional consultant who interacted with O'Neill during the School Year reported that she was less flexible and agreeable than in the past. O'Neill's aides saw a great difference in her demeanor and behavior in that year versus prior years. O'Neill denies feeling "burned out" during the School Year, but there are numerous indicators to suggest that her behavior had changed. The nature of her actions, vis-à-vis her students, who she seemed to love, suggests a high degree of stress. Her behaviors during the School Year were so different from her historical style that something must have been amiss in her life.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Dr. Eric H. Smith, Commissioner of Education, imposing upon Respondent, Diana O'Neill, the following penalty: Suspension of Respondent's teaching certificate through the end of the 2010-2011 school year, followed by two years of probation. DONE AND ENTERED this 27th day of April, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2011. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154 Anthony D. Demma, Esquire Meyer, Brooks, Demma and Blohm, P.A. Post Office Box 1547 Tallahassee, Florida 32302
Findings Of Fact The Respondent was a noninstructional employee of the School Board of Date County, Florida at all times material hereto, and was assigned to Thomas Jefferson Junior High School as a teacher's aide. The Respondent has six years' experience as a teacher's aide with the Dade County School System. He has a high school education and thirteen months of college, as well as twelve months of technical training, including studies in psychology. The Respondent has never, in all the time he has been employed in the Dade County School System, had any complaints lodged against him for aggressive or violent conduct and has never been previously involved in an incident in which he struck a student, although on one occasion he had to defend himself when a student attacked him. On September 22, 1980, the Respondent escorted some students to a physical education class on the school athletic field. While he was attempting to get the complaining student, Jose Velez, to return to the classroom, that student threatened him with violence and ultimately physically attacked the Respondent. Mr. Turnquist had to restrain the student and escort him to the school office for imposition of disciplinary measures regarding his behavior. The Petitioner's first witness, Gloria Randolph, is the Assistant Principal for Curriculum and Teacher Morale. She supervises the Exceptional Student Department, as well as the teachers' aides, and is acquainted with the protagonists in the subject incident. She observed the Respondent enter the school office with the student, Jose Velez, conversing in loud voices, both the Respondent and Velez appearing quite agitated. The Respondent told her that he "brought this boy up here and want something done about it." The Respondent and the subject student, at that time, were standing about five feet apart. She stepped between them, but the student kept advancing and she had to shove him back repeatedly. The student, Velez, acting in an aggressive, mocking manner, urged the Respondent to hit him, and threatened him with bodily harm. The tension between the two kept increasing, with the ultimate result that the Respondent struck the student with a light blow to the cheek. According to both Petitioner's witnesses, the student seemed relieved at that point and immediately calmed down. Witness Randolph acknowledged that the Respondent exercised good judgment, up until the point of striking the student, because he followed appropriate procedures in bringing the student to the office for disciplinary measures to be taken, and did not indulge in an argument with the student, although she did feel it was poor judgment for him to strike the student. The student, Jose Velez, is at least six feet in height and is considerably taller than the Respondent. Petitioner's witness, Marilyn Mattran, a teacher at Jefferson Junior High School, who was in the office and observed the subject altercation, established that Velez repeatedly threatened the Respondent with physical harm and that the student engaged in most of the yelling and in the aggressive behavior she observed. She corroborated the fact that when the Respondent actually struck Velez, that he immediately calmed down. She also corroborated the testimony of witness Randolph, as well as the Respondent's witness, Leah Alopari, that Jose Velez is an emotionally disturbed student who has an extensive history of aggressive, violent behavior and has made a practice of threatening students and teachers with physical violence and harm, even to the extent of threatening the use of a deadly weapon. He has, on occasion, done physical violence to other children. These three witnesses all acknowledged that the Respondent has never in the past, in their experience, demonstrated poor judgment in his conduct toward and transactions with students or teachers. Leah Aloari is the Respondent's supervising teacher. Jose Velez was one of her students, and she corroborated the fact, demonstrated by the other witnesses, that this particular student was aggressive, difficult to control and prone to engage in violent behavior. The Respondent assisted her in helping discipline her students, with the academic program and in escorting children to and from lunch, classes and the athletic field. She has never observed the Respondent engage in violent behavior in his relations with teachers or students, nor commit an act which exhibited poor judgment or misconduct in the course of his duties. As indicated above, the Respondent has had an exemplary record in his six years with the Dade County School System. Jose Velez, on the other hand, has been a constant disciplinary problem as acknowledged by the Petitioner's and Respondent's witnesses. The Respondent has a chronic neck injury involving a pinched nerve in the neck, and genuinely believed himself to be in danger of physical assault and harm by Velez when the incident occurred in the office. He believed it unwise to retreat in the fact of Velez's threats and aggressive advance upon him because he felt Velez was about to physically attack him. The Respondent did not feel that the other teacher and the Assistant Principal, who were the only other persons in the office at the time, could have restrained or adequately controlled Velez alone if he had retreated. There is no question, especially in view of the fact that the Respondent had already been assaulted by the student on the athletic field, that he genuinely believed that the situation called for him taking steps to defend himself. His act of self-defense in striking the student was itself marked by some restraint in the sense that he withheld striking the student with as much force as he was capable of. There is no evidence that he caused any permanent harm to the student. Indeed, even the Petitioner's witnesses established that it had the beneficial effect of calming the student down and preventing any further violent conduct on his part or possible injury to the students, the Respondent, others present, or possible damage to the Petitioner's property in the immediate vicinity. The undersigned considers it significant also that the student, although initially complaining of the Respondent's action, did not appear and testify at the hearing in furtherance of his complaint against the Respondent and that there was no significant physical injury inflicted upon Velez.
