The Issue Whether Patrick M. Hill, Respondent, is guilty of immorality and misconduct in office as more specifically alleged in letters of April 6, 1990 and May 18, 1990.
Findings Of Fact At all times relevant hereto, Patrick M. Hill held a professional services contract with the Polk County School Board as a remediation teacher at Lakeland High School. He also served as wrestling coach and cross country coach at Lakeland High School. During the spring break of the 1989-90 school year, Respondent told some students they could earn some extra money if they helped him paint his house. Erik Greatens, an 18 1/2 year old senior, agreed to help, and he, with a 25 year old man, John, and Respondent, worked all day painting. Around noon that day when all were hot and thirsty, Respondent told them there was beer in his refrigerator. Both Erik and John accepted the offer. Erik had one beer. When they stopped painting around 5 p.m., Respondent told them he would order pizza if they wanted to return later. Erik accepted and went home to shower and change clothes. He returned around 6:30 p.m. and shared pizza with Respondent. Erik testified that he had only the one beer that day at Respondent's home and that his father permitted him to drink an occasional glass of wine at home. He did not drink beer or any other alcoholic beverage while at Respondent's home that evening. Around 8:30 p.m., Erik left Respondent's residence and went to the Publix parking lot to meet some friends. At the parking lot that evening with his friends, Erik consumed 11 or 12 cans of beer before driving the four or five blocks to his home. When he arrived, his mother was up and considered her son was inebriated and that he had received the beer at Respondent's home. At the time, Erik told her he had only the one beer at Respondent's home, but, from his condition, the mother was sure he had drunk more than one beer. The following day, Mrs. Greatens called the Superintendent's office to complain about Respondent providing Erik with beer. Based upon that complaint, Respondent was suspended from his position as teacher at Lakeland High School. The professional Practices Council of the State Department of Education was notified of the charge so they could institute an investigation to determine if Respondent's state certificate should be disciplined. To date, no charges have been brought by the Department of Education. Subsequently, Petitioner learned that Respondent had pleaded guilty in New Jersey to a charge of contributing to the delinquency of a minor in 1973. A copy of this court record was admitted into evidence as Exhibit 3. In 1973, Respondent was a tenured teacher in the school district of the Township of Pemberton, Burlington County, New Jersey. Charges were preferred against Respondent by the Board of Education, and an administrative hearing was held to determine if the charges and circumstances surrounding the charges warranted dismissal of Respondent from his position as a tenured teacher. Following that hearing, the hearing examiner submitted a report recommending the charge and evidence insufficient to warrant a dismissal or reduction in salary. The Commissioner of Education adopted the finding and recommendation of the hearing examiner. In the instant proceedings, Respondent testified to the facts regarding the 1973 incident. That testimony is essentially the same as found by the hearing examiner in 1973 reported in Exhibit 4 as follows: The testimony offered by the Superintendent of Schools and respondent's building principal was that respondent is a good teacher, as evidenced by his past evaluations, and his record has been unblemished since his employ- ment by the Board. This matter has been brought to the attention of the Commissioner solely because of an incident which occurred on March 8, 1972, and that incident alone is the basis for the Board's action. On the evening of March 8, 1972, respondent was returning to his home after working late at his school on some extra curricular project. The record shows that Respondent was very active in the school community, and that he coached sports activities, served on the executive board of the local P.T.A., and served as President of the Pemberton Township Police Athletic League, in addition to his regular teaching duties. Respondent testified that it was a rainy night. On his way home, he picked up a hitchhiker who told him that he had a job in north Jersey and was on his way to visit his father in the Tuckerton area (approxi- mately thirty miles away). Because of the late hour and the poor weather conditions, Respondent offered the hitchhiker a place to spend the night in his home and told him he would drop him off at the inter- section of Routes #9 and #37 the next morning on his way to school. The hitchhiker accepted the offer and spent the night in respondent's home. Respondent testified that he also offered the use of his telephone so the hitchhiker could call his father, but that he refused saying that he was not expected anyway. He testified fur- ther that nothing untoward happened that night and that he dropped the hitchhiker off at the named intersection the follow- ing morning on his way to school. Respon- dent did not know that the hitchhiker was a minor; neither his appearance, nor his conversation about holding a job in north Jersey, nor having a drink and avoiding the police, lead (sic.)Respondent to conclude that the hitchhiker was a minor. (Tr. 19-22) None of this testimony is refuted by the Board, nor were any witnesses pre- sented by the Board to give any other version about what allegedly occurred on the evening of March 8, 1972. The Board, however, grounds its action against Respondent on his subsequent arrest by the police and his later indictment by the Grand Jury of Ocean County. A change of plea to that indictment reads in pertinent part as follows: (P-1) The State moved under Rule 3:74 to amend the third count of the indictment to read `did contribute to the delinquency of a minor by permitting him to remain overnight without parental consent'. The Court so ordered. Patrick Hill sworn. (sic.) As a result of plea bargaining, the Defendant retracted his former plea of Not Guilty and entered a plea of Guilty to the amended third (3rd) count of [the Indictment). * * * In the hearing examiner's judgment, it would be wrong to speculate why Patrick Hill made the plea (P-1) rather than pursue some other defense of the original charges made against him. He testified that he made the change of plea because he did allow the youth to stay in his home overnight. Suffice it to say that he was represented by counsel and the record must now speak for itself. Respondent entered a plea of guilty (P-1) which the Commissioner must con- sider in making his determination. N.J.S.A. 2A:96-4 reads as follows: A parent, legal guardian or person having the legal custody or control of a child, who by any continued negligence or willful act, encourages, causes or con- tributes to the child's delinquency, or any other person who by any wilful act encourages, causes or contributes to a child's delinquency, is guilty of a misdemeanor. The hearing examiner found that the unrefuted testimony of respondent, and the absence of any proof of conduct unbecoming a teacher by the Board, leads to the conclusion that the only fact before the Commissioner is that respondent knowingly permitted a minor to remain in his home overnight without the consent of the minor's parents. Respondent testified without contradiction that he was told by his attorney that the conviction would be expunged and he could forget it. Accordingly, Respondent concluded, albeit erroneously, that he never would need to reveal this record. Respondent moved to Florida and was employed as a junior high school teacher at St. Joseph's School, Lakeland, Florida, from 1979 to 1986 when he was employed by the Polk County School Board to teach at Lakeland High School. While at St. Joseph's, Respondent continued his extracurricular activities similar to those in New Jersey coaching children in wrestling and track, and he was involved in national and statewide wrestling programs for children. When he started teaching at Lakeland High School, Respondent continued his coaching activities and his work with children. He has been involved with helping troubled adolescents at the Polk Correctional Institute, served on the Governor's Council on Health, Physical Education and sports, was awarded man of the year honors for the AAU Wrestling Division, took a group of young wrestlers to Germany two years ago (1988) in a cultural exchange program and coordinated a return visit of German youth wrestlers to Florida in 1989. Respondent has excellent rapport with his students and with the student's parents. The letters admitted into evidence in Exhibit 5 extolling the virtues of Respondent as a teacher, coach and individual are not the pro forma, perfunctory letters of recommendation usually presented, but clearly indicate heartfelt esteem, appreciation and admiration. Respondent has had no prior disciplinary actions brought against him while teaching in Florida schools.
Recommendation Considering the reputation of Respondent, his rapport with students and peers, the time he has devoted to developing children into responsible adults and the conclusions that the acts complained of do not constitute immorality but are minor infractions coming under the definition of misconduct in office, it is recommended that Patrick M. Hill be found guilty of misconduct in office and suspended without pay for four months. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Florida. K. N. AYERS 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 20th day of August, 1990. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Post Office Box 391 Bartow, FL 33830 Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, FL 33806 John A. Stewart Superintendent of Schools Post Office Box 391 Bartow, FL 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
Findings Of Fact At all times material to the facts alleged in the Administrative Complaint Respondent has been employed by the School Board of Broward County, Florida, as a teacher on continuing contract at Crystal Lake Middle School. Notice of the final hearing was sent to Respondent on January 4, 1983 to her address at 5225 North Dixie Highway, Ford Lauderdale, Florida 33334. The Notice of Hearing which was sent from the Division of Administrative Hearings was not returned as undelivered by the United States Postal Service. The record does not reflect that Respondent made any attempt to contact either counsel for the Petitioner or the Hearing Officer concerning a continuance of these proceedings or providing any explanation for her failure to appear at the final hearing. On May 15, 1980 Ms. Belcher failed to report for work as a classroom teacher without advance notice to the administration of Crystal Lake Middle School as required by school policy. She was absent the entire day and her failure to appear caused considerable administrative difficulty in securing a replacement teacher without prior notification. Her principal at that time, Ms. Jean Webster, sent a memorandum to Ms. Belcher which stated the following: On Thursday, May 15, 1980, you were absent from your job and failed to report that you were going to be absent either to your department head or to me. This is less than responsible action on your part and will be considered an act of insubordination should it happen again. This memo may be considered a written reprimand and will be placed in your personnel folder. The memorandum was received and acknowledged by Ms. Belcher. On October 14, 1982 Respondent was absent from her teaching assignment without leave. She failed to give any prior notice of her absence to the school principal or any other supervisor as required by school policy. The absence of Ms. Belcher was not discovered until one of her students went to another teacher's room to report that Ms. Belcher's unattended students were misbehaving and throwing objects at each other. As a result of the second unauthorized leave of absence without prior notice, her new principal, Mr. Thomas J. Geismar recommended to the Assistant Superintendent of Personnel that Ms. Belcher's contract of employment be terminated. Mr. Geismar's decision to request Ms. Belcher's termination was influenced by her prior conduct on September 23, 1980 when she was discovered by a member of the administration to be falling asleep in front of her class during a regularly scheduled class period. During that time her students were out of control. They made disparaging remarks about Ms. Belcher appearing to be either high or on drugs. The incident was reported to Mr. Geismar who, upon interviewing Ms. Belcher, determined that she was either intoxicated or drugged and was in no condition to teach a class of middle school students. At the time Ms. Belcher attributed her condition to having taken cold medicine. She was sent home in order to recover from whatever was affecting her. On numerous instances, Ms. Belcher fell asleep while on duty in front of her students during the school year 1981-1982. When Ms. Belcher fell asleep her unsupervised students became boisterous and threw things at each other. Prior to falling asleep Ms. Belcher frequently received a back and neck rub from one of her students. After Ms. Belcher's last absence without leave or prior notice on October 14, 1982, it appears that the administration at Crystal Lake Middle School solicited negative comments about Ms. Belcher's teaching behavior. This inference is raised by four letters all dated October 19, 1982 addressed to Mr. Geismar from respectively, J. Kay Betzoldt, Jo Nell Stevenson, Jan Mascia and Walter S. Tilgham. The most serious incident about Ms. Belcher's behavior was raised by Ms. Betzoldt. During fifth period in the last quarter in the 1981-1982 school year, Ms. Betzoldt saw Ms. Belcher in front of her class receiving a "back rub" from one of Ms. Belcher's students. The student was observed standing behind Ms. Belcher reaching forward massaging her breasts. It appeared that Ms. Belcher was not aware of what was happening. When the student realized that Ms. Betzoldt was observing him, he moved his hands to the shoulders of Ms. Belcher. Ms. Betzoldt did not report the incident to the school administration until her letter of October 19, 1982. The contents of the other teachers' letters dated October 19, 1982, were corroborated by the authors' live testimony at the final hearing. They support the allegations against Respondent that on numerous occasions she has slept in the presence of her students when she should have been teaching them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board of Broward County, Florida, enter a Final Order dismissing Ms. Saundra Belcher as a continuing contract teacher and cancelling her contract of employment. DONE and RECOMMENDED this 6th day of April, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1983. COPIES FURNISHED: William S. Cross, Esquire 4540 North Federal Highway Fort Lauderdale, Florida 33308 Saundra Belcher 5225 North Dixie Highway Fort Lauderdale, Florida 33334 William T. McFatter Superintendent of Schools Broward County School Board 1320 Southwest 4th Street Fort Lauderdale, Florida 33312 Donald J. Samuels, Chairman School Hoard of Broward County 1320 Southwest 4th Street Fort Lauderdale, Florida 33312
The Issue The issue is whether Respondent, a non-instructional employee of the School Board, is guilty of violating School Board Policy 6.37, and if so, whether termination of her employment is an appropriate sanction.
Findings Of Fact Background The School Board is responsible for hiring, overseeing, and terminating employees in the school district. Respondent is a non-instructional (support) employee at Explorer K-8 School (Explorer) in Spring Hill. She began working at Explorer as a Custodian I in school year 2014-2015 and was assigned the night shift, 3:45 p.m. to 11:30 p.m. Before coming to Explorer, Respondent was a custodian at Hernando High School in Brooksville, but left to fill a vacancy at Explorer, which was closer to her home. She was hired at the recommendation of Homer Lawson, an African American male and head custodian at Explorer. Barbara Kidder is principal at Explorer and has ultimate supervisory responsibility for all employees at the school, including the custodial staff. Lillian DiTucci is the assistant principal and also has supervisory duties over the custodial staff. Custodians at Explorer are assigned to either the day or night shift. Lawson, as head custodian, is responsible for supervising all custodians, regardless of the shift assignment. Eric Harris is the night custodian supervisor and is next in the chain of command below Lawson. Although Lawson works the day shift, he is present for approximately one hour of the night shift and meets with Harris prior to the start of that shift to go over various issues, including performance of custodial staff. Lawson is the first person to arrive at Explorer the next morning and conducts walk-throughs to ensure the areas have been cleaned by the night shift. As head custodian, Lawson is also in charge of custodial supplies at Explorer. If a custodian is out of supplies, Lawson requires the custodian to write on the board the supplies he or she needs for the next day and then he processes the request. The supplies usage is documented in a log book, with notation of the custodian's name and the date the supplies were issued. If the documentation shows one custodian is going through more supplies than the others, Lawson inquires of the custodian. Because of strict budgetary concerns, Lawson is vigilant in tracking the use of supplies. He does not deny necessary supplies, but he will give direction to be more responsible. The School Board has adopted Policy 6.37, which establishes standards for the separation, discipline, and discharge of non-instructional employees, including Respondent. Paragraph (5)(d) recognizes three categories of offenses and a guide for recommended penalties. Relevant to this proceeding are the offenses and recommended penalties for Groups II and III. The penalty for Group II offenses ranges from a written reprimand for the first offense to discharge for a third offense. Group III offenses are the most serious and carry a recommended penalty of "up to discharge" for the first violation. The School Board has charged Respondent with violating two Group II offenses, referred to as items in the policy: Item 7 - Creating or contributing to unsafe, unsanitary or poor housekeeping conditions; and Item 13 - Incompetency or inefficiency in the performance of duties. Respondent is also charged with violating five Group III offenses: Item 1 - Insubordination; Item 4 - Interfering with the work of other employees or refusal to perform assigned task; Item 12 - Violation of a posted or otherwise known Board or departmental rule, procedure, order, regulation of any State or County statute or ordinance which is related to the employee's employment; Item 14 - Improper racial or sexual comments, harassment or acts; and Item 23 - Refusal to work overtime or hours as assigned. The Inappropriate Conduct Which Led to the Charges From the very beginning of her employment with Explorer, Respondent exhibited numerous performance issues, including the complete failure to perform assigned tasks, which resulted in a high volume of complaints from teachers and staff throughout the fall term and required multiple meetings with, and direction from, supervisors. On September 4, 2014, or a few days after she began working at the school, Harris met with Respondent regarding her cell phone usage during work hours. Harris witnessed and received complaints from other school employees that Respondent was on her cell phone "a lot," which resulted in less productivity and caused a distraction because she often kept her phone on speakerphone. Respondent responded that she would shut it off and use it only for emergencies. Respondent was assigned to clean the classroom of Michele Hann, an Exceptional Student Education (ESE) teacher at Explorer. On Thursday, September 18, 2014, Hann emailed Lawson and stated that her classroom had not been properly cleaned in a manner that was acceptable for ESE students, some of whom had medical needs requiring a very clean environment. She also noted that food from the day before was still on the floor, the paper towels by the sink had not been replaced since the previous Friday, and her Terminator bottle (containing a disinfectant) was empty. Harris was given a copy of Hann's email and discussed these complaints with Respondent. Among other responsibilities, Respondent was required to restock paper towels in the classrooms that she cleaned. On September 19, Lori Linauer, a teacher at Explorer, emailed Lawson that the bathroom in her classroom had been out of paper towels since the day before. Based on these complaints, Respondent was assigned a new area that required less responsibility, but the complaints regarding her performance deficiencies continued. One of her new assignments was cleaning the school's locker rooms. A few days later, Harris received a complaint that the locker rooms were not being cleaned. It takes "at least a half hour [to clean] each locker room to do a good job," and the night shift ends at 11:30 p.m. Harris observed that on September 22 and 23, Respondent did not begin cleaning the locker rooms until around 10:45 p.m. and 11:10 p.m., respectively. These observations enabled Harris to confirm that Respondent was doing her work "quick at the end of the night," without properly cleaning the rooms. Harris discussed this concern with Respondent and even assisted her with cleaning the locker rooms on several occasions. Custodians are instructed to place their carts in the custodial closet at the end of their shifts. On September 25, Harris met with Respondent after she continued to leave her cart and radio in the recreation hall at the end of her shift. Respondent gave no credible reason why she ignored this requirement. On September 29, Harris received another complaint that the locker rooms were not properly cleaned. When he confronted Respondent about this complaint, she explained that other rooms were messy and she had "meetings," implying that she had insufficient time to finish her work. Because Respondent had still not secured her assigned badge that would allow her access to the locker rooms (once they were electronically locked in the evening), Harris had to unlock the boys' locker room at 11:30 p.m. and then retrieve her cleaning materials so that she could finish the job. On October 21, Harris checked the boys' gang bathroom (a multi-use bathroom with six or more stalls) and found the toilet bases filthy and not wiped down. Harris met with Respondent to discuss this concern. The next day he noticed that Respondent failed to properly clean the toilets and mirrors in the girls' gang bathroom. Harris once again met with Respondent to discuss these concerns. Respondent told Harris that she needed a brush with a stick on it to make the job easier. Harris told her that she should clean the toilets the way everyone else did, by bending down and wiping them clean. On October 24, Respondent telephoned the principal's secretary at 4:15 p.m. and said she would be late because she had to pick up her employee's badge. However, Respondent did not pick up her badge that day. On October 28, Joanne Yarin, a Media Specialist at the school, informed Lawson by email that the women's restroom in the media center ran out of paper towels the afternoon before. Yarin had asked Respondent to refill the paper towels, but Respondent told her she wasn't sure if there were any more in the supply room. When the paper towels were not restocked by the following morning, Yarin contacted another custodian who promptly complied with her request. On October 29, Karen Federico, a music teacher at Explorer, complained to Lawson by email that Respondent failed to vacuum her classroom or take out the trash the night before. She also complained that the concession area women's bathroom had no paper towels. On November 3, Tammy Ashurst, a behavior specialist at the school, emailed Lawson regarding her concerns about Respondent's performance. A copy of the email was forwarded to Kidder and Harris. Ashurst pointed out that Respondent's failure to sweep or vacuum the floors was a recurring problem. When she entered her classroom that morning, Ashurst found a large section of the floor dirty and sticky and she had to ask another custodian to clean it. Ashurst asked Lawson to speak with Respondent regarding this issue. On November 5, Respondent telephoned the principal's secretary to say if she was not at work by 5:00 p.m. that day she was not coming in. She did not show up for work. Whether Respondent turned in a leave form for that day is not of record. Beside the performance issues, Respondent did not interact well with other staff at Explorer. On November 7, she was involved in a verbal altercation with another custodian, Haley Carson, whose car (with the Carson baby inside) was nearly struck by Respondent's car the prior evening when Respondent sped out of the parking lot at the end of their shifts. Respondent also had a verbal altercation with another co-worker in the parking lot after parking at an angle and into the adjacent parking space used by the co-worker. Respondent told the co-worker that she (Respondent) always parked like that and to move her car if she didn't like it. On November 7, Harris received a complaint from another school employee, Mr. Baroudi, whose position is unknown, that the garbage in his room had not been emptied on two occasions and food sat in the trash can for days. On November 18, Juliet Figueroa, another night shift custodian who had just started work the day before, was given the rundown on her job (a "411") by Respondent. During the conversation Respondent asked Figueroa if "you know the manager Homer [Lawson]? I don't call him that I call him nigger." During the same conversation, Respondent referred to a former co-worker, Mundreanu, who is Romanian, as a "communist." She also asked Figueroa if she was a Puerto Rican, since Respondent thought she looked like a Mexican. Figueroa was "taken aback" by these comments and reported the incident to Kidder. At hearing, Respondent claimed that Figueroa misunderstood her and that she actually used the word "negro," which means black in Spanish, and not the word "nigger." However, Figueroa understands Spanish and knows the difference between "nigger" and "negro." Respondent's assertion that she did not use this language has not been accepted. On or about November 19, during his morning walk- through, Lawson observed feces in the stalls and soap scum on the walls of the girls' gang bathroom near the school cafeteria that should have been cleaned by Respondent. Lawson spoke with Harris and told him to direct Respondent to take care of it. Harris directed Respondent to clean the area, but she failed to comply with his instructions. Lawson then informed DiTucci. On November 20, DiTucci met with Respondent to discuss these latest performance deficiencies. Respondent refused to attend the meeting unless Lawson was not present, claiming she did not consider him to be her supervisor and he had "disrespected" her at work. At the meeting, Respondent argued the substance was chocolate and not feces, but the areas should have been cleaned regardless of the substance. By then, DiTucci had checked it out and confirmed Lawson's initial findings. Respondent also contended that she was not given sufficient supplies to finish her work, even though she sometimes used three times the amount of supplies as other custodians. Finally, she claimed that Lawson had accused her of stealing supplies but there is no credible evidence to support this assertion. The meeting ended with Respondent threatening to hire an attorney to respond to the charge that she was stealing supplies. On November 21, Harris documented that Maggie, another school custodian, witnessed Respondent's cart not moving for more than an hour earlier in the day. Each room typically takes 15 to 20 minutes to clean, and the cart is parked outside the room for easy access. Harris testified that this may have explained why Respondent's areas were not being properly cleaned. The same day, without seeking permission, Respondent told Harris she was leaving early, saying she "forgot to punch out for lunch goodnight." Custodians are required to punch out for "lunch" from 7:30 p.m. to 8:15 p.m., a paid break. There is no option available to employees to work through lunch period and leave work earlier at the end of the shift. As of November 25, Respondent had still not cleaned the feces off the girls' bathroom wall. As a result, Kidder asked Harris to again direct Respondent to clean the girls' bathroom. She also asked Harris to remind Respondent to turn in a leave form for November 21, and to explain that she must punch in and out for lunch. Respondent finally complied with the directive to clean the girls' bathroom wall after DiTucci and Harris accompanied her to the bathroom, showed her the feces, and directed her to clean the area. On December 1, Stacy Tarbox, a paraprofessional at the school, emailed Lawson and Harris regarding Respondent's failure to clean the girl's locker room. Tarbox noted that it was dirty, the lockers had a thick layer of dust on top, the walls had not been cleaned, and the floors had not been pressure washed for some time. This was the same locker room Harris had previously talked to Respondent about in September. On December 2, Figueroa filed a bullying and harassment complaint against Respondent based on the November 18 incident in which Respondent made disparaging remarks about Lawson and Mundreanu. The essence of the complaint was that these comments created a hostile working environment. That afternoon, Kidder conducted a conference with DiTucci, Lawson, Respondent, and her union representative to discuss the bullying complaint and allegations that Respondent's conduct constituted a violation of three Group III offenses (items 7, 14, and 23) and one Group II offense (item 7). In response to these charges, Respondent initially said she could not remember using any racial terms when speaking with Figueroa but later labeled Figueroa as a liar and threatened to sue her. She claimed that she did not know what a "commie" meant and again called Figueroa a liar. She also said she never saw feces on the bathroom wall. If that was the case, she should have asked Harris where it was rather than doing nothing. In response to the charge that she refused to meet with her supervisor, Lawson, she claimed that he had accused her of stealing supplies, disrespected her, and hindered her in performing her work. Finally, she contended that before she left work on November 21 (without punching out for lunch), she told Harris that she was not feeling well. At the conclusion of the meeting, Kidder twice asked Respondent if she had any further response to the allegations and what it would take to change things. Respondent refused to respond. Respondent also declined to say if she intended to return to work at her assigned time and perform her duties. Kidder ultimately determined on December 18 that the bullying and harassment complaint was unfounded since it was an isolated incident, but concluded that Respondent's use of the offensive language was a violation of item 14 in Group III, which prohibits the use of improper racial comments. Beside the performance issues, Respondent's behavior at school offended other custodians. According to one co- worker, Respondent made the work environment feel "hostile" and "tense." There was testimony that co-workers had confrontations with Respondent about her work ethic and that Respondent gave a minimal effort to complete tasks. Also, there were nights when co-workers had to help her complete her assignments. Finally, the record shows that Respondent was always complaining about work and how she did not like her job. In short, there was a "bad atmosphere" at school among the custodians. Given the myriad of performance deficiencies, Lawson recommended to Kidder that Respondent be terminated, as her performance had steadily gone "downhill." Harris agreed with this assessment and pointed out that when compared with other custodians, Respondent's job performance was "poor to fair." Notably, the number of complaints about Respondent far exceeded those received for any other custodian. Kidder decided to make a recommendation at the school level to terminate Respondent. Her recommendation was based on Respondent's gross insubordination, a failure to perform assigned tasks, and violations of policy 6.37. This recommendation was supported by the fact that there were numerous emails and documents from teachers and staff outlining Respondent's issues as well as a series of meetings to address the concerns, none of which resulted in an improvement in Respondent's performance. In accordance with school protocol, a pre- determination meeting was held by Kidder on December 10, 2014, for the purpose of allowing Respondent to respond to not only the charges discussed at the December 2 meeting, but all offenses that had occurred since September. Respondent attended the meeting with a union representative. During the meeting, she refused to take responsibility for her actions and offered only excuses. She was argumentative with School staff and her union representative. Based on her lack of remorse and caustic attitude towards supervisors and co-workers, Kidder determined that termination was the appropriate action. On January 7, 2015, the Superintendent recommended that Respondent should be terminated, and pending final action by the School Board, she should be suspended, with pay. After Respondent filed a letter appealing this proposed action, the Superintendent recommended that the School Board suspend Respondent, without pay and benefits, pending an administrative appeal to DOAH. The recommendation was accepted by the School Board and the matter was referred to DOAH. At hearing, Respondent failed to present any credible evidence to rebut the charges or the evidence presented. She simply offered excuses like Lawson was difficult to work with, she was assigned a difficult area to clean due to high use, her co-workers did not help her clean, and she did not get sufficient supplies. While a former custodian testified that she also had problems getting sufficient supplies from Harris, neither spoke directly with Lawson to remedy this situation. Moreover, the evidence shows that Respondent used far more supplies than necessary and far more than other custodians.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Hernando County School Board enter a final order terminating Respondent's employment for violating the following offenses in School Board Policy 6.37: items 7 and 13 in Group II and items 1, 4, 12, 14, and 23 in Group III. DONE AND ENTERED this 13th day of July, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 13th day of July, 2015.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent from his employment contract.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control and supervise the public schools within Manatee County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22 (1)(f), Fla. Stat. At all times relevant to this proceeding, Respondent was employed by the School District. Mr. Gagnon has been in the education field for approximately 23 years, and has been with the School District since 2002. Mr. Gagnon served as an assistant principal at Lakewood Ranch High School and as principal at Palmetto High School, both of which are in Manatee County. Mr. Gagnon was the principal at MHS beginning with the 2007-2008 school year. Mr. Gagnon served as the MHS principal until he transitioned to the position of assistant superintendent for Curriculum and Instruction for the School District in January 2012. Mr. Gagnon served as the interim superintendent for approximately one month in September/October 2012 and then returned to the assistant superintendent position when another person was appointed interim superintendent. In 2005 the School District posted a position for a specialist in the OPS to investigate alleged School District employee misconduct. The then superintendent wanted to establish a standardized method of investigating employee misconduct. Ms. Horne interviewed for the position, and was appointed as the first OPS specialist. As there were no School District policies or rules in place when she started, Ms. Horne assisted in writing the School District’s OPS policies. Sections 39.201 and 39.202, Florida Statutes, are incorporated into the School District’s policies and procedures as Policy 5.2(1), Policies and Procedures Manual, School Board of Manatee County (2013), which provides: Mandatory Duty to Report Suspected Child Abuse. All employees or agents of the district school board who have reasonable cause to suspect abuse have an affirmative duty to report it. Employees or agents so reporting have immunity from liability if they report such cases in good faith. This includes suspected child abuse of a student by an employee. Ms. Horne provided the training on this policy and other policies to School District employees. As the OPS investigator, Ms. Horne was to “investigate alleged employee misconduct and other matters as assigned” to her by her supervisor. Ms. Horne never had the authority to determine whether or not someone had engaged in misconduct or to make any recommendations as to what may or may not have happened. Her role was to simply gather the information, prepare a report of her findings, and provide that report to her supervisor. In November 2012, Mr. Martin was the School District’s assistant superintendent for District Support, and Ms. Horne’s direct supervisor. During her eight-year tenure as the OPS specialist, Ms. Horne investigated over 800 cases of employee misconduct. The School District uses a progressive discipline model for its employees. Should an employee exhibit behaviors that could be considered inappropriate or misconduct, the School District has a step-by-step method of taking disciplinary action, from simply talking with the employee up to termination of employment. If it is an egregious action, such as sexual conduct with a student, immediate termination is an option. The discipline begins on-site by the site-based managers where the incident occurs. Those site-based managers could have that simple conversation, and if need be, it could progress to a verbal directive, a memorandum of conference, and/or a written reprimand. Site-based managers include principals, assistant principals, directors, and assistant directors.3/ In those instances where the disciplinary action could lead to days without pay or termination, actions that could only be taken by the School Board, OPS would open an investigation. During the first two weeks of November 2012, Mr. Rinder was approached by several MHS teachers regarding concerns for their students. When Mr. Rinder spoke with Mr. Sauer, MHS’s principal, about those concerns, Mr. Sauer asked Mr. Rinder to type up the list (Rinder’s List) and give it to Mr. Sauer. Mr. Sauer, in turn, forwarded Rinder’s List to the OPS. Rinder’s List: [1.] One staff member reported a phone call to a female student during class. The student was upset by the call and told the staff member that Mr. Frazier had asked her if “she had gotten her period and did she need him to go to the drug store for her.” [2.] One staff member reported that Mr. Frazier repeatedly called for a female student during class. When asked if it was important, Mr. Frazier said “yes”. [sic] When the staff member asked the student what the problem was, the answer was “My mom wanted to take me to lunch and he helped me do it”. [sic] [3.] Male student was failing a core class. He told the teacher that “Frazier told me that he will change the grade”. [sic] [4.] A female student was observed getting into Mr. Frazier’s vehicle after school hours and was transported. [5.] Female student told a staff member that she overheard students talking about several meetings in the park late at night with Mr. Frazier. She stated that Mr. Frazier placed and [sic] empty water bottle between her legs as she was walking down the sidewalk. [6.] Female student was observed sitting on Mr. Frazier’s lap eating cake off his fork. [7.] Female student reported to a staff member that Mr. Frazier made a comment to a student in the hall that he had put her on skype [sic] and she took a picture and has it saved on her cell phone. She is scared that he will retaliate if she tells. [8.] Female student told a staff member that Mr. Frazier had made comments to her at the Tiki Bar that she was old enough to be there and they could talk. When she refused to talk with him, she started having issues with Mr. Frazier at school. She transferred to LIFE program to get out. [9.] Female student was reported to a staff member by several students who stated that she was having a relationship with Mr. Frazier. She transferred schools. This conversation was overheard by two teachers in the hall. [10.] The Math Department this week was discussing Mr. Fraziers [sic] questionable activities. Upon receipt of Rinder’s List, Ms. Horne was directed to open an investigation into the allegations contained therein. The subject of the investigation was an MHS parent liaison4/ and assistant football coach named Roderick Frazier. In a very general sense, the allegations involved misconduct by a teacher. Rinder’s List initiated the Frazier investigation. However, Rinder’s List contains blatant hearsay which cannot form the basis for a finding of fact without corroboration. There was no testimony provided by any students mentioned in items 2, 3, 5 (first sentence), 7, 8, or 9 above; hence, it is impossible to verify what occurred. Item 10 merely indicates that an entire department at MHS discussed “questionable activities” by an individual, but it provides no specific activities. There was no credible, non-hearsay evidence in this record to substantiate any of these allegations (items 2, 3, 5 (first sentence), 7, 8, 9 or 10). On November 14, 2012, an email with an attached letter from then-Superintendent David Gayler, was sent to Mr. Sauer around 8:40 p.m., advising him that Mr. Frazier was to be placed on paid administrative leave (PAL) on Thursday, November 15. Mr. Sauer notified Mr. Frazier appropriately. The School Board’s policy regarding placing an employee on PAL is dependent upon whether there is a potential for harm to any student and/or the employee could incur a suspension or termination from employment. Due to an on-going investigation at a different school, Ms. Horne did not arrive at MHS to begin the investigation until the afternoon of Thursday, November 15. Ms. Horne first interviewed Mr. Rinder, as Rinder’s List did not contain any names of teachers or students who were allegedly involved. Upon obtaining the names of the teachers who had expressed concerns, Ms. Horne interviewed most of the teachers on November 15. By the time Ms. Horne completed her teacher interviews, the students had been dismissed from school and were no longer available. At some time, Mr. Rinder observed a female student getting into Mr. Frazier’s car after school (Rinder’s List, Item 4). Mr. Rinder was not alarmed by this sight, but merely thought it was Mr. Fazier’s son’s girlfriend getting a ride. There was no testimony that Mr. Rinder ever brought this information to Mr. Gagnon’s attention. Ms. Aragon brought two concerns about Mr. Frazier to Respondent’s attention: 1) she thought that girls were sitting too close to Mr. Frazier in golf carts at MHS; and 2) Mr. Frazier had called her classroom telephone to talk with a female student. Neither Ms. Aragon nor Mr. Gagnon were absolutely certain as to when these concerns were brought to Mr. Gagnon’s attention: Ms. Aragon thought they were brought to his attention during one conversation, and Mr. Gagnon thought there were two separate conversations approximately a year apart, based on the actions that he took to address them. Mr. Gagnon’s testimony is more credible. Upon being told of the golf cart issue, Respondent immediately went to the MHS courtyard and observed Mr. Frazier with a female student sitting in his golf cart. At the same time, Respondent observed two other assistant principals with students of the opposite sex sitting in their golf carts. Respondent addressed Mr. Frazier first, and then issued a directive to his discipline staff that no one was to allow a student to just sit in a golf cart. Respondent directed that if there was a legitimate reason to transport a student, that was fine, but students were no longer to just sit in the golf cart. With respect to the telephone incident (Rinder’s List Item 1), Mr. Frazier called Ms. Aragon’s classroom and bullied his way to speak with the female student. After the student hung up the phone with Mr. Frazier, she appeared to be upset. Ms. Aragon immediately questioned the student, and Ms. Aragon understood that Mr. Frazier had inquired about the student’s menstrual cycle. Ms. Aragon thought it was “inappropriate” for Mr. Frazier to be speaking with a female student about her menstrual cycle, but Ms. Aragon testified that she did not know if the conversation impacted the student’s day. Ms. Aragon was not privy to the actual conversation between the student and Mr. Frazier, and the student with whom the conversation was held did not testify. The actual telephone conversation is hearsay. Ms. Aragon sought guidance from the teacher’s union president as to what to do. When Ms. Aragon spoke with Mr. Gagnon about Mr. Frazier’s telephone call, Mr. Gagnon immediately turned the issue over to an assistant principal for investigation. Based on the report from the assistant principal, Mr. Gagnon was not concerned that anything inappropriate or sexual was happening.5/ At some point in time, Ms. Coates overheard two female students comment about Mr. Frazier. Although Ms. Coates asked the students to tell her directly the basis for their comment, the students declined. (Neither student testified at hearing.) Shortly thereafter, Ms. Coates told Respondent the students’ comment. Ms. Coates heard Mr. Gagnon respond that something was going around on Facebook. Mr. Gagnon did not remember Ms. Coates telling him of the students’ comment. However, Mr. Gagnon routinely reviewed the disciplinary records for the three parent liaisons and was satisfied that Mr. Frazier was not showing favoritism in his discipline to one group of students over another. It is not uncommon for students to perceive that a teacher is showing favoritism towards a student or group of students. At the conclusion of the teacher interviews on November 15, Ms. Horne understood that the allegations had occurred a year or two before they were reported in Rinder’s List. This thought process was reinforced when Ms. Horne met with some of the MHS administrators in Mr. Sauer’s office where they had a telephone conference with Mr. Martin. Following the telephone conference, Ms. Horne returned to the School District’s main office and again conferred with Mr. Martin for directions. On November 15 or 16, 2012, Ms. Horne had a brief conversation with Mr. Gagnon at the School Board building. Mr. Gagnon asked about the Frazier investigation. Ms. Horne responded that the only issues she was hearing had previously been addressed, and that Ms. Horne would be returning for other interviews. Additionally, Mr. Martin had a brief conversation with Mr. Gagnon about the Rinder List allegations. Mr. Gagnon maintained that the allegations were old and had been dealt with appropriately. Ms. Horne shared with Mr. Martin that the Rinder List allegations were old and had been dealt with previously. Based on this information, Mr. Martin, in his sole discretion, determined to remove Mr. Frazier from PAL on November 16, 2012, and return him to work. Ms. Horne was surprised by this, as her investigation was incomplete. Ms. Horne interviewed Mr. Frazier as well as one other teacher, on November 16, 2012. Although Ms. Horne had the name of an alleged victim, Mr. Martin directed her not to interview that student at that time. In January 2013, a former MHS female student, D.K., wrote a letter to MHS alleging that Mr. Frazier did various inappropriate acts towards her while she was a student at MHS during the 2010-2011 and 2011-2012 school years. In her letter, D.K. stated that she became close to Mr. Frazier during her two years at MHS. D.K. met Mr. Frazier at a park near her home, but during her second year at MHS (2011-2012), Mr. Frazier “started being weird with [her] and saying inappropriate things to” her. D.K. admitted that she frequently rode in Mr. Frazier’s golf cart around the school, and that Mr. Frazier put a water bottle (Rinder’s List Item 5, second sentence) in between her legs (between her knees and crotch) as they were sitting in the bleachers at the softball field and while sitting in a golf cart. D.K. came forward with the letter because she had heard of the Frazier investigation and that it was being closed. Several days after D.K.’s letter was received in OPS, Ms. Horne interviewed D.K., who was accompanied by her mother. Ms. Horne was unable to confirm D.K.’s credibility completely because Ms. Horne left OPS prior to the conclusion of the Frazier investigation. The most disturbing part of D.K.’s testimony came when D.K. admitted, and Ms. Peebles confirmed, that during the 2010- 2011 school year, Ms. Peebles walked into Mr. Frazier’s office unannounced and observed D.K. sitting on Mr. Frazier’s lap holding a piece of cake (Rinder’s List Item 6). Ms. Peebles immediately instructed D.K. to get off Mr. Frazier’s lap and to sit in a chair on the other side of his desk. Mr. Frazier appeared to be unfazed by Ms. Peebles entering his office unannounced and witnessing this scene. Mr. Frazier proceeded to handle the disciplinary matter that Ms. Peebles had brought to him. Ms. Peebles reported the observation to an assistant principal, Matthew Kane, but not to Respondent. Ms. Peebles did not believe there was abuse on-going, but thought it was “not appropriate” for Mr. Frazier to have a student sitting on his lap. D.K. testified that “after he [Mr. Frazier] got in trouble he started getting me [D.K.] in trouble for things that I had been getting away with the whole time I was there [at MHS].” D.K. did not provide a time-frame or what “trouble” Mr. Frazier had gotten her into while D.K. was at MHS, and no evidence was provided otherwise. Further, D.K. never told Mr. Gagnon of any issues involving Mr. Frazier. D.K. was enrolled at a different local high school when Mr. Frazier was placed on PAL. Ms. Peebles relayed another issue regarding Mr. Frazier; however, it involved hearsay and was not corroborated by the student who initially reported the issue to Ms. Peebles. The absence of direct, non-hearsay testimony precludes a finding of fact as to that issue. In late January 2013, Ms. Horne transferred to an assistant principal position at a school district elementary school. Both Ms. Horne and Mr. Martin confirmed that the Frazier investigation had not been completed when Ms. Horne left OPS. Ms. Horne had not submitted a written report to her supervisor which would have signaled the completion of the Frazier investigation. The specialist position in OPS remained vacant until July 2013 when Mr. Pumphrey assumed the position. Mr. Pumphrey confirmed that there “had been an ongoing investigation both at the School District level and law enforcement surrounding Rod Frazier.” In an effort to gain speed in his investigation, Mr. Pumphrey reviewed the Frazier investigation file and became aware that the School District “had stalled their investigation pending the outcome of the criminal investigation.” Mr. Pumphrey reviewed Mr. Frazier’s personnel file and determined there was “no documentation of any discipline to Mr. Frazier.” Additionally, Mr. Pumphrey pulled all the published information including media accounts and police reports, and reviewed them. As Mr. Martin had been instrumental in hiring Mr. Pumphrey, the two spoke several times “because this thing [the Frazier investigation] was all over the place.” Several days after re-starting the Frazier investigation, Mr. Pumphrey expressed to the superintendent his concern about the close proximity of Mr. Pumphrey’s office to that of Mr. Gagnon and requested that Mr. Gagnon6/ be placed on PAL. The superintendent did so. During the course of the Frazier investigation, Mr. Pumphrey considered that Mr. Gagnon’s actions or inactions during the course of the Frazier investigation constituted “administrative negligence and/or intentional misconduct.” Mr. Pumphrey broadened the Frazier investigation to determine whether district administrators “had prior knowledge of complaints by female students and faculty regarding inappropriate conduct involving Frazier and, if so, why the complaints were not timely addressed.” There is no credible, non-hearsay evidence in the record to substantiate that Mr. Gagnon failed to investigate or report inappropriate conduct by a faculty member. When apprised of questionable or suspect conduct, Mr. Gagnon took the steps necessary to inquire. The absence of direct, non-hearsay testimony precludes a finding that Mr. Gagnon acted in the fashion alleged in the administrative complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 30th day of June, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2014.
Findings Of Fact At all times pertinent to this hearing, Respondent was a public school teacher licensed by the State of Florida to teach English language at the secondary school level, and her teaching certificate was current and in full effect. The Respondent, Queen Bruton, is employed by the Duval County School Board and holds tenure under the Duval County Teacher Tenure Act. On November 22, 1982, Respondent was sent a Notice of Proposed Dismissal by the School Board indicating the Board's intention to dismiss her as a teacher upon a charge of professional incompetency. The grounds for such conclusion include an indication that Respondent received unsatisfactory evaluations of her performance for the 1980-81 and 1981-82 school years. The Duval County Teacher Tenure Act (TTA), Chapter 21197, Laws of Florida (1941), as amended, permits the discharge of a teacher for, inter alia, professional incompetency as a teacher if certain conditions are met and procedures followed. All teachers in the Duval County public schools are evaluated whenever necessary, but at least once a year. Under the rating system in effect during the 1980-81 and 1981-82 school years, an unsatisfactory rating is awarded when an evaluation contains eight or more deduction points. Ratings are: (1) satisfactory, (2) needs improvement, and (3) unsatisfactory. On the rating form in use during the time in issue here, an unsatisfactory rating results in two deduction points in Items 1 through 27, and one deduction point in Items 28 through 36. An evaluation of "needs improvement" does not result in any deduction points. The School Board of Duval County has not, in any formal way, defined professional incompetence. The evaluation process is but one tool in the management of teacher employment. An unsatisfactory evaluation is not, therefore, conclusive of professional incompetence, but is one factor in that judgmental decision. The procedure used by the School Board in evaluating teacher performance was not adopted in conformity with the Administrative Procedure Act. At the time of adoption, the School Board was operating under teacher working conditions that had been implemented after extensive bargaining between the School Board and the teachers' union. These working conditions contained extensive provisions involving "teacher evaluation." When a contract was finally agreed upon between the School Board and the teachers' union, it contained provisions concerning teacher evaluation identical to those which were in effect under the working conditions previous to the implementation of the contract. These provisions, therefore, do not constitute rules "as defined in Section 120.52, Florida Statutes," but instead constitute guidelines for the evaluation of teacher performance arrived at not by decision of the School Board under conditions which require public hearing but jointly by agreement of the parties to the negotiations of the teacher contract between the School Board and the union, a collective bargaining agreement. Warren K. Kennedy was in Respondent's sophomore English class at Forrest Senior High School in Jacksonville during the 1980-81 school year. At one point during the school year, Kennedy saw a series of approximately 22 sexually explicit words or phrases written on the blackboard in Respondent's room. Kennedy copied these words and notified the principal, who went to Respondent's classroom and saw them himself. These words were placed on the board by someone other than Respondent, with her permission, and consisted of a part of an exercise in outlining. As such, Respondent claims the words themselves mean nothing, but words of that nature, including "orgasms, sexual intercourse, French tickler, blow job, condoms, dildo, masturbation, orgy," and the like serve no legitimate purpose in, and are not a legitimate part of, a sophomore English class. Respondent's classroom that year was chaotic. Students did little work, but instead talked openly and freely. Respondent sat quietly at her desk doing paperwork unless the noise got so great as to disturb other classes. Students felt free to walk out of class with impunity. Cursing was prevalent in class, and discipline was nonexistent. Defacing of school property occurred on at least one occasion with Respondent taking no corrective action. As a result, several students and the parents of other students requested their transfer from Respondent's class to another. Respondent was also unreliable in submitting grades and reports in a timely fashion. Observations of Respondent in the classroom environment by several different individuals revealed she did not insist her students come to class equipped with the proper supplies for effective writing or textbook activity. She rarely utilized visual aids pertinent to the matter being discussed. Classroom discussion with students did not generally involve a broad sampling of the class, but was focused on only a few class members. Her questions to the students were often vague and confusing to the students. Respondent's principal during that school year, Ronel J. Poppel, at whose request the above observations were made, himself observed Respondent in the classroom on several occasions. As a result of the input from those requested observations and of his own observations, he prepared an evaluation form on Respondent on March 15, 1981, which bore an overall rating of unsatisfactory and reflected that her performance was declining. This report, which reflected 7 of 36 items as unsatisfactory (12 total deduction points), had 20 other items rated as "needs improvement" and contained such written-in suggestions as "needs classroom management techniques, needs better standards of behavior, needs to have long-range planning from the beginning of the year, needs to show more enthusiasm for teaching--needs more variety in methods of teaching," and "should use better judgment in selection of topics." As a result of this evaluation, the observations of her principal and others, and the several counseling periods during which Respondent's deficiencies were pointed out to her along with suggestions for improvement, Respondent was put on notice of her failing performance and afforded the opportunity to take advantage of teacher education counseling (TEC) and, while she did enroll in at least one improvement course, failed to take full advantage of the available opportunities. Poppel's evaluation of Respondent as an incompetent teacher is based on: His personal observation; Evaluation by other professionals; Parent complaint follow-up; Her demonstrated lack of effective planning; Her lack of enforcement of school policies; Her lack of or inability to motivate students; Observed and reported chaotic classroom deportment; Her failure to keep proper records; and Her failure to leave lesson plans for substitutes. Notwithstanding the above, Respondent was well versed in the subject matter she was to teach and had the subjective background to be an excellent teacher. Her shortcomings, as described above, however, far outweighed the positive aspects of her credentials. Respondent was transferred for the 1981-82 school year to Fletcher High School in Jacksonville where she was placed under the supervision of Dr. Ragans, Principal, to teach English. Dr. Ragans spoke to Mr. Poppel, her former principal, about Respondent's weak areas so that he could develop plans to help her in those areas. In an effort to prepare Respondent for the coming year and to ensure she was fully aware of school policies and standards, Dr. Ragans held an extensive conference with Respondent to discuss her previous year's unsatisfactory rating and to make plans to remedy or remediate those areas. On August 25, 1981, he wrote a letter to Respondent in which he reiterated the items discussed previously. Review of this letter reveals there could be little doubt of what Dr. Ragans expected. Nonetheless, when he personally observed her in her classroom less than a month later, he found many of the same weaknesses previously identified, such as a noisy classroom environment, talking by students without being called on, Respondent appearing preoccupied with desk work, and inadequate lesson plans. In the observation report, he made numerous suggestions for improvement and offered Respondent the opportunity to a conference which she did not request. Prior to that observation, however, on September 8, 1981, Dr. Ragans and Respondent met with Dr. Jeff Weathers, TEC consultant for the School Board, in a full discussion of her professional shortcomings, at which meeting a suggestion was made that Respondent enroll in certain university-level courses in classroom management and motivation. Respondent was somewhat reluctant to take these courses because she felt they might interfere with her planning and her preparation for classes. Nonetheless, she did attend one class. Dr. Ragans had advised her he would arrange for substitute teachers for her so that she could take available classes. She was also invited to meet with master teachers in the school to seek assistance and to observe them, and she did in fact do so. In addition, a program was set up for her lesson plans to be reviewed by experts at the School Board. Respondent denies she ever submitted these plans, but according to Judith B. Silas, a resource teacher at School Board headquarters who reviewed Respondent's plans in December, 1981, her plans were confusing and lacking a consistent format: the dates on the plans reflect they were from an earlier series of years; objective numbers did not refer to the 1981 Curriculum Guide and did not cross-reference; and some included material had no relationship to plans or lessons. Ms. Silas's comments, forwarded to the school in February, 1982, were discussed with Respondent. A follow-up letter dated September 25, 1981, outlining the substance of the joint meeting with Dr. Weathers, was forwarded to Respondent. Shortly thereafter, on October 29, 1981, Dr. Ragans prepared a preliminary evaluation on Respondent rated overall as unsatisfactory in which 13 items were rated that way and 12 more rated as "needs to improve." On November 25, 1981, Respondent was provided with a lesson presentation checklist drawn by Dr. Weathers for her to use along with a notice of several night courses available to Respondent and a notice of a proposed observation of another teacher by Dr. Weathers and Respondent on December 14, 1981. After this observation, Dr. Weathers and Respondent discussed the positive aspects of that teacher's operation that Respondent could and should emulate. A new classroom observation of Respondent was set for January, 1982. In the interim, in January, 1982, Dr. Ragans received at least one parent request for a student to be transferred from Respondent's class because the classroom environment was noisy, unruly, and not conducive to learning. As a result of this letter and other parent contacts of a similar nature, Dr. Ragans had several informal discussions with Respondent during this period. On February 23, 1982, Respondent requested a conference with Dr. Ragans on her upcoming evaluation which was, she understood, to be unsatisfactory from a letter to her on February 5, 1982, from Dr. Ragans. This rating, conducted on February 2, 1982, but not signed by Dr. Ragans until March 3, 1982, was unsatisfactory, containing 14 items so marked and 13 marked "needs to improve." At the conference, held the same day as requested, Dr. Ragans advised Respondent he still felt she had marked deficiencies previously indicated regarding classroom control, authority, respect, lesson plans coordination, classroom planning, her failure to provide purposeful learning experiences, no student motivation, and her apparent inability to be understood by her students. Also cited to her were the continuing parent complaints and those of other teachers that their classrooms, used by her (she was a traveling teacher with no room of her own), had been damaged by her students. Much of this had previously been outlined in Dr. Ragans' February 2, 1982, letter indicating his intent to rate Respondent as unsatisfactory. Both Dr. Weathers and another school district supervisor, Dr. Henderson, observed Respondent in the classroom situation in late January or early February, 1982. Both individuals identified the same deficiencies as previously noted by so many others, and both made recommendations for improvement which were passed on, intact, to Respondent. In early March, 1982, Dr. Ragans advised Respondent in writing of his intent to evaluate her on March 15, 1982, to see if she had made any improvement. He did this because of Respondent's feeling that the previous evaluation had not given her enough time to work out improvements. This latest evaluation was also overall unsatisfactory. Two days later, on March 17, 1982, Respondent indicated in writing that she did not accept this evaluation. On April 30, 1982, Dr. Ragans again visited Respondent's classroom so that, if she had markedly improved, he could try to extend her contract or change her evaluation before the end of the school year. However, he could observe no appreciable change. Shortly after this visit, on May 3, he discussed with Respondent complaints he had received from several parents about warnings she had sent out on some students which inconsistently showed both satisfactory performance and danger of failing on the same form. She explained this as all students, including straight "A" students, who had not taken the MLST (test) were in danger of failing. Dr. Ragans felt this excuse was feeble and unjustified and demonstrated poor judgment on her part. All this was confirmed in a letter on May 17. A complaint from a parent of one of Respondent's students, received on June 11, 1982, initiated an audit of the grades given by Respondent during the school year. Results of this audit revealed at least 68 errors involving 46 students, including three students who received passing grades when they, in fact, had failed and should have been in summer school. A total of 13 student grades had to be changed, requiring a letter of notification and apology from the principal. Respondent did not deny the inconsistencies shown in the audit, but defended them on the basis of, in many cases, their being the result of her exercising her discretion and prerogative to award a grade different from that supported by recorded achievement if, in her opinion, other factors so dictated. In any case, the number of inconsistencies requiring a grade change was substantially higher than is normal. During the 1981-82 school year, Respondent had not been assigned a classroom of her own, but instead met and taught her classes in the rooms assigned to other teachers. This situation, while not unique to Respondent and one which several other teachers had as well, is nonetheless a definite handicap to any teacher. In an effort to alleviate the impact of this situation, all Respondent's rooms were scheduled as geographically close together as possible, and she was assigned only one subject to teach. Therefore, though she may have had several class periods which progressed at different speeds, the planning and preparation was similar and much less an arduous task than if she had different subjects to prepare for. In any case, there is little relationship between this and discipline and control in the classroom. Dr. Mary Henderson, Director of Language Arts/Reading for the Duval County School Board, observed Respondent in the classroom during both the 1980- 81 and 1981-82 school years at two different schools. Recognizing that Respondent has definite strengths in her knowledge of the subject matter to be taught and her recognition of and communication to the students of the relationship of their lessons to the test requirements, Dr. Henderson still felt Respondent was not a competent teacher. On both occasions, she found Respondent's lesson plans to be inadequate, her techniques in classroom management were deficient, she failed to make effective use of the students' time, and she failed to effectively motivate her students to participate in the classroom activities. Throughout all this period, according to both supervisors and others who observed her, Respondent always maintained a pleasant, calm, positive, and cooperative approach to all with whom she came into contact. At no time did she show hostility or resentment. Also, there was never a question as to her knowledge of the subject matter. Respondent possesses a bachelor's degree in English and a master's degree in administration and supervision. She has sufficient credit hours to qualify for a major in Spanish. She has also taken several in-service courses in such subjects as linguistics, methods of curriculum and instruction, British literature, and school administration. She is certified to teach English, Spanish, and typing. She has been a teacher in several Florida school systems for 29 years, of which the last 21 years were in various Jacksonville area schools. She is tenured. She was selected for summer school employment in 1980, while at Forrest High School, even though tenure does not ensure selection to teach summer school. During the 1980-81 school year, Respondent was caring for the aunt who raised her and who was suffering from terminal cancer. This required frequent travel back and forth to another part of the state, and in addition to being a physical burden, constituted a severe strain on her mental state. During that year, she started out teaching only twelfth grade classes, but as a result of a reduction in class sizes during the school year, she was given some additional tenth grade classes for which she had not prepared. Respondent feels her classroom discipline was not so unusual as to be remarkable. She feels she maintained classroom discipline as well as required and contested the allegations that she rarely referred students to the administration for additional discipline. She made all reasonable effort to improve her performance by enrolling in some of the courses recommended by Drs. Weathers and Ragans, but had to wait until the second semester because she did not get the information on the first semester courses until after they had started. The classes she took urged the use of listening and negotiating skills rather than the authoritative method in dealing with students. She tried to implement what she learned in her classrooms and feels she succeeded regardless of what the testimony shows. In addition, she took a course dealing with self- concept and self-confidence and applied for admission to Jacksonville University's master of arts program in an effort to upgrade her skills. Respondent admits that at the beginning of the 1981-82 school year, she was not using formal lesson plans. She had been asked by the administration for plans on a weekly basis and had jotted down ideas on paper. To formulate these ideas, she used prior years lesson plans, but did not turn any of these in. This does not track with Ms. Silas's testimony that the Respondent's plans she reviewed appeared to be from prior years. I find that prior years' plans were used by Respondent extensively and how these plans were transmitted to Ms. Silas for review is immaterial. Respondent, based on the above, while possessing the necessary technical qualifications to perform as a teacher, while possessing the appropriate knowledge of her subject matter, and while possessing the desire to impart that knowledge to her students, is nonetheless incompetent to conduct a class, maintain proper discipline, and generate adequate student motivation to accomplish these desired ends.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be removed from classroom teaching duties and be assigned some other function within the school system until such time, unless sooner released for other good cause, as she can retire with maximum benefits. RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1983. COPIES FURNISHED: Gary E. Eckstine, Esquire Chief Administrative Hearings Section City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 William F. Kachergus, Esquire Maness & Kachergus 502 Florida Theatre Building Jacksonville, Florida 32202 Mr. Herb A. Sang Superintendent Duval County Public Schools 1701 Prudential Drive Jacksonville, Florida 32207
Findings Of Fact The Respondent, Raymond Grosneck, is a teacher at Safety Harbor Middle School in Pinellas County. He has been a teacher there for 26 years and has been on continuing contract since August, 1970. (However, his active teacher certificate expired on or about June 30, 1992, and has not been renewed, so he is not teaching during the 1992/1993 school year as of this time.) While a teacher at Safety Harbor, the Respondent's only discipline has been a written reprimand in 1985. See Finding 11, below. On or about March 6, 1992, towards the end of one of the Respondent's classes, two female pupils asked the Respondent if they could "clap" the classroom's chalky blackboard erasers. The Respondent gave them permission. As usual, the pupils bent down and leaned out the classroom window and began clapping the erasers, both against each other and against the side of the outside of the building. While they were doing this, the Respondent warned them not to get any chalk dust on the bricks to either side of the window, as opposed to on the white, painted stucco directly below the window. When they finished, the Respondent walked over to the window to check and saw chalk dust on the bricks. The Respondent angrily confronted the pupils in a loud voice about the chalk and about having disobeyed his instructions. (It is not clear whether he gave his instructions to the two pupils before or after they already got the chalk on the bricks; in any event, both he and other school authorities previously had given the students those instructions.) He asked which of the two did it. When they both denied it, he angrily and in a loud voice ordered the one he suspected to come to the window, where he still was standing, and look at the chalk marks, which he viewed as the proof that she was lying. When the pupil hesitated, he walked over to her and grabbed her upper arm in a motion that had the effect of a combination slap, which made an audible slapping sound, and grab. He then pulled the pupil over to the window, using a jerking motion. The episode resulted in a temporary reddening of the skin of the pupil's upper arm where it had been "slap/grabbed." The Respondent's words and actions upset the pupil. When tears began to well up in her eyes, and the Respondent knew she was about to cry, he told her to go get the assistant principal responsible for the class. Instead, the pupil went, crying on the way, to the nearest washroom to wipe her tears and try to regain her composure. There, she saw another pupil who asked her what happened. When she told him that the Respondent had hit her, he went to get the assistant principal. The assistant principal was not there, but a counselor was, and she was led to the washroom. Soon after, the Respondent came looking for the pupil, as she had not yet returned to the classroom with the assistant principal. When he joined the group, the counselor informed him of the pupil's accusation that he had hit her. The Respondent denied hitting the pupil and insisted on going directly to the assistant principal to resolve the matter once and for all. The assistant principal still was not in his office when the group arrived. In ensuing discussion with some other pupils in the class who had gone looking for the pupil after the period ended to see how she was, some of the other pupils contradicted the Respondent's version of what happened. Angrily, the Respondent stormed out of the office, slamming the door hard enough to jar loose a picture hanging from the office wall. On his way out, the Respondent was heard to say words to the effect that he did not "need this job." During the lunch period that followed, some of the pupils discussed the events that had transpired. About a week later, the Respondent and his attorney met with school administrators and other education officials in the school principal's office concerning the incident. At the meeting, the Respondent was informed as to what the school's investigation of the incident had revealed to that point and as to the charges being considered. As the Respondent and his attorney exited the office, while still in the area of the administrative offices suite, the Respondent was heard by three pupil aides to ask his attorney rhetorically, "was that a bunch of bullshit, or what?" The Respondent did not know that the students were there, but he knew pupil aides ordinarily work there, and he asked the question in a normal tone of voice, not giving thought to the possibility that it would be overheard by pupils at the school. As a result of these incidents, the Respondent's rapport with at least some of his pupils, who began to think that he was "mean," temporarily was impaired. Within a short time, however, he reestablished a good teaching relationship with most, if not all, of his pupils. 1/ For a short time after the incident, the school principal felt it necessary to monitor the Respondent more closely to insure against a repetition. The evidence is not clear whether closer monitoring actually occurred. In any case, no further problems involving the Respondent were observed. The use of corporal punishment by a teacher is against the official policies of the Pinellas County School Board. It also is against the official policies of the Pinellas County School Board for a teacher to lay hands on students to control their movement except as necessary to prevent physical injury to themselves or others. The 1985 reprimand indicates that the Respondent was accused of getting angry and yelling in the face of a pupil for getting chalk dust on several desk tops and then denying doing it. He also was accused of angrily tipping over the desk in which the pupil was sitting and leaning backwards. At the time, the Respondent denied tipping the desk over backwards but admitted losing his temper and losing control of the situation. He agreed to apologize to the pupil for losing his temper. It was not determined whether the Respondent in fact tipped the desk over backwards. Some of the witnesses to the incident said he did, but about the same number said he did not.
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 reprimanding the Respondent, Raymond Grosneck, for the matters referred to in Conclusions 18 and 19, but refraining from suspending him. RECOMMENDED this 20th day of October, 1992, 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 20th day of October, 1992.
The Issue In Case No. 92-6291 the Petitioner seeks the revocation or suspension of the Respondent's teaching certificate, or other administrative penalty, on the basis of allegations of misconduct set forth in an Amended Administrative Complaint. The general nature of the charges against the Petitioner are that he engaged in certain criminal conduct, was found guilty of certain criminal conduct, failed to disclose information about his criminal record on his applications for employment and for a teaching certificate, on various occasions improperly touched several female students, and on one occasion used unnecessary force to discipline a male student. In Case No. 93-1227 the Petitioner seeks to suspend and terminate the Respondent's employment as a teacher with the Dade County School Board on the basis of allegations of misconduct set forth in an Amended Notice of Specific Charges. The general nature of the charges brought by the School Board is essentially the same as the allegations in Case No. 92-6291, although there are some differences in the specific details alleged.
Findings Of Fact Background and introductory matters The Respondent currently holds Florida teaching certificate number 286698, covering the areas of physical education and health education. The Respondent's certificate is valid through June 30, 1998. At all times material to this proceeding, the Respondent, John N. Pilla, was employed by the School Board of Dade County. He was initially employed as a Teacher Aide in January of 1969 and continued to work for the School Board of Dade County in several capacities through the 1977-78 school year. Following the 1977- 78 school year, the Respondent worked for other employers for several years. In 1984 he again applied for employment with the School Board of Dade County and was hired as a Substitute Teacher for the 1984- 85 school year. He was rehired in that capacity for the 1985-86 school year. After a break in service of several months, the Respondent was reinstated as a Substitute Teacher in October of 1986. In December of 1986 the Respondent was hired as a Teacher and he continued to be employed as a Teacher until the date of his suspension and termination from employment on February 17, 1993. As noted in more detail in some of the findings which follow, the Respondent was on several occasions given instructions or directives to the effect that he should avoid improper touching of students. Those instructions and directives were always qualified or modified in some way, so that the essence of the instructions and directives given to the Respondent was that he should avoid improper touching, or unnecessary touching, or touching not required by his teaching duties. The Respondent was never given an unqualified order that he was not to touch students under any circumstances. 5/ It has been a policy of the Dade County School Board at all times material to this proceeding that teachers are prohibited from engaging in inappropriate physical contact with students. The Respondent was aware of that policy. Events during the 1976-77 school year During the 1976-77 school year, the Respondent was employed as a teacher at North Miami Junior High. His principal at that school was Freddie Pittman. During the course of that school year several complaints were made to the effect that the Respondent had engaged in inappropriate conversations with female students and that he had engaged in inappropriate physical contact with female students. Mr. Pittman sought authorization to have those complaints investigated and shortly thereafter an investigation was conducted by School Board investigators. Several of the complaining students were interviewed and reported various instances of inappropriate conversations and inappropriate touching. 6/ The Respondent was interviewed by the investigators and denied all allegations of misconduct. The parents of all of the complaining students were advised of the investigation. All of the parents declined to press charges. Several weeks after the conclusion of the investigation, a conference was conducted on April 29, 1977, at which time Mr. Pittman and an Area Director met with the Respondent, reviewed with him the student allegations that had prompted the investigation, and then issued four directives to the Respondent. Those directives were reiterated in a memorandum to the Respondent dated May 2, 1977, as follows: You should refrain from any physical contact with your students unless it is required as part of your teaching duties. You should refrain from any conversations with your students that could be construed as improper, having sexual connotations or could cause the student to be embarrassed. You should refrain from inviting students to your home or to accompany you on personal trips without prior permission of the parent(s) or legal guardian(s). You should refrain from a display of affection towards your students such as holding hands, caressing, walking arm-in-arm, etc. The memorandum of May 2, 1977, also reminded the Respondent that: "It was stated emphatically that strong disciplinary action will be taken if the above directives or their intent are breached." The 1984 application for employment On March 21, 1984, the Respondent signed an Application for Instructional - Instructional Support Employment seeking reemployment with the Dade County Public Schools. The application included the following question: "Have you ever been convicted of anything other than a minor traffic violation?" The Respondent checked the "No" box in response to that question. The Respondent's answer of "No" appears to have been truthful. 7/ In connection with that same application for reemployment, on March 21, 1984, the Respondent also signed a form titled Security Check Authorization And Waiver Of Confidential Records. That form included a question as to whether the Respondent has ever been ". . . convicted, fined, imprisoned, or placed on probation in a criminal proceeding?" In response to that question, the Respondent checked the "No" box. Immediately above the Respondent's signature the form included a statement that "the above entries are true, complete, and correct to the best of my knowledge and belief. . . ," and ended with the following statement: "I understand that a knowing and willful false statement on this form may result in immediate dismissal." For reasons discussed below, the Respondent's "No" answer on the form titled Security Check Authorization And Waiver Of Confidential Records was untrue. At the time the Respondent gave that untrue answer he knew his answer was untrue. He gave an untrue answer because he feared that disclosure of the truth would jeopardize his employment prospects. The 1988 application for educator's certificate On May 11, 1988, the Respondent signed an Application For Educator's Certificate for the purpose of renewing his teaching certificate. The application included the following question: Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges now pending against you other than minor traffic violations? If yes, you must give complete details for each charge. Please attach a separate sheet if additional space is needed. The Respondent checked the "No" box in response to that question and did not provide any details about any criminal charges. Immediately above the Respondent's signature the application included the following language: I understand that Florida Statutes provide for revocation of an educator's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct and complete. For reasons discussed below, the Respondent's "No" answer on the Application For Educator's Certificate was untrue. At the time the Respondent gave that untrue answer he knew his answer was untrue. He gave an untrue answer because he feared that disclosure of the truth would jeopardize the issuance of his certificate. The Respondent's criminal record In 1982 the Respondent was arrested for misdemeanor trespass as a result of an altercation that took place between himself and his ex-wife's boyfriend in front of the ex-wife's house. On September 29, 1982, the Respondent entered a plea of nolo contendere to the charge of trespass in the Circuit Court of Broward County, Florida. By order issued that same day, the court withheld adjudication of guilt and placed the Respondent on six months of non-reporting probation. On May 15, 1984, the Respondent was arrested and charged with the following violations: (a) leaving the scene of an accident with injuries in violation of Section 316.027, Florida Statutes; (b) culpable negligence in violation of Section 784.05(2), Florida Statutes, and (c) driving on a revoked driver license in violation of Section 322.34(2), Florida Statutes. On May 24, 1984, a two-count information was issued against the Respondent. Count One charged him with leaving the scene of an accident with injuries in violation of Sections 316.027(1) and (2), and 316.062, Florida Statutes. Count Two charged him with driving while license is revoked or suspended (misdemeanor) in violation of Section 322.34, Florida Statutes. The Respondent went to trial on the charges in the information and on August 8, 1984, was found not guilty of Count One and guilty of Count Two. On September 6, 1994, the Respondent was sentenced to two years in prison, an enhanced sentence which was based on prior uncounseled convictions. 8/ The Respondent appealed and on November 6, 1985, the appellate court reversed the sentence and remanded the case for resentencing. On January 17, 1986, the trial court resentenced the Respondent to 30 days time served. Events during the 1989-90 School Year During the 1989-90 school year, the Respondent was employed by the School Board of Dade County as a physical education teacher at Biscayne Elementary School. His Principal at that school was Carlos Fernandez. Near the beginning of that school year, as a result of complaints from two parents, Principal Fernandez had a conference with the Respondent during which he told the Respondent that he should be careful dealing with the female students. Later during that same school year (toward the end of February) three female students sent notes to the Principal's office in which they mentioned either than the Respondent had touched them or they had witnessed the Respondent touch someone else. Once again Principal Fernandez had a conference with the Respondent and told him again that he should be careful dealing with the female students and stressed that allegations of improper touching were very serious matters that could have very serious consequences. Neither of the Principal's conferences with the Respondent were reduced to a written directive. The purpose of the two conferences seems to have been primarily to warn the Respondent to be more careful when he was around female students. 9/ The essence of Principal Fernandez' comments on these two occasions was that the Respondent should be more careful to avoid any touching that could be misconstrued as improper touching. Principal Fernandez did not direct the Respondent that he should never touch any of the female students. Later that same school year, on April 20, 1990, three female students went to the Principal's office and reported that the Respondent had touched one of them on her private parts and that the other two had witnessed it. The matter was reported to several outside agencies, including the local police. The police commenced a criminal investigation, which generated a great deal of publicity about the incident. On or about April 24, 1990, the Respondent was assigned to an alternate work position which did not involve student contact. He remained in that position while the allegations of April 20, 1990, were being investigated. On June 15, 1990, the Respondent was arrested and was charged with three counts of lewd and lascivious assault on a child. The Respondent posted $15,000 bond and was released. His arrest was widely publicized in television and newspaper coverage. On June 28, 1991, the State Attorney dismissed all of the criminal charges against the Respondent. The School Board conducted an internal investigation and concluded that the allegations that formed the basis for the Respondent's arrest were unfounded. The Respondent was returned to a teaching position in the summer of 1991. Events during the 1991-92 school year For the 1991-92 school year the Respondent was assigned to teach a split shift at two schools, Parkway Elementary School and Madie Ives Elementary School. The Principal at Parkway was Jack Silberman. The Principal at Madie Ives was Sally Blonder. During the 1991-92 school year, Principal Silberman met with the Respondent and told him that he should not touch any students in any improper manner and went on to emphasize that the Respondent should watch himself and make sure he did not touch any students in an improper way. In February of 1992 several students at Madie Ives Elementary School complained that the Respondent had touched them improperly or in a manner which they found to be offensive. During the 1991-92 school year there were no such complaints at Parkway Elementary School. One of the students who complained in February of 1992 was S. K. On one or more occasions during the 1991-92 school year the Respondent placed his hands on S. K.'s shoulders 10/ and turned her around in line when she was facing the wrong way. In doing so, the Respondent did not touch S. K.'s breasts, nor was there anything else improper about the manner in which he touched her. The act of turning S. K. around in line was a reasonable act under the circumstances and was within the scope of the Petitioner's duties as a teacher. One of the other students who complained in February of 1992 was M. C. On one occasion during that school year, M. C. walked up behind the Respondent, who was at that time busy watching some other students. M. C. stood quietly behind the Respondent waiting for an opportunity to ask him a question. The Respondent did not know that M. C. was standing behind him. The Respondent took a step backward and accidentally stepped on M. C.'s foot. The Respondent immediately (without looking around behind himself) reached out behind himself with one hand and instinctively tried to prevent himself and whoever he had stepped on from falling down. In doing so, his hand touched M. C. somewhere in the general area of her low back, hip, or buttocks. This touching of M. C. was entirely accidental. The Respondent did not grab, squeeze, or fondle M. C.'s buttocks, nor did he engage in any other improper touching of M. C. On another occasion during that school year, M. C. walked off of the soccer field with a severe limp. The Respondent, concerned that she might have a serious injury, told M. C. to sit down on the sidelines and he asked her where it hurt. She indicated the shin area of one leg, just above the ankle. The Respondent touched her shin to determine whether there was any palpable injury. He did not feel any indication of a serious injury. Thereupon, he suggested that M. C. rub the injured area with her fingers and briefly demonstrated what he was suggesting. The Respondent's actions of touching and rubbing S. K.'s shin was a reasonable act under the circumstances and was an act that was within the scope of the Respondent's teaching duties or, if not technically within his duties, was an act which it was reasonable for him to believe was within the scope of his teaching duties. There was nothing improper about the manner in which the Respondent touched M. C.'s shin. Pending an investigation of the February 1992 allegations, the Respondent was reassigned to teach only at Parkway Elementary School. The Respondent continued to teach at Parkway Elementary School without incident until sometime in mid-April of 1992, when a television station filmed the Respondent and broadcast a news story about the then-pending allegations and the Respondent's prior arrest on charges of lewd and lascivious conduct. A local newspaper also published a story about the pending allegations, prior allegations, and the prior arrest on charges of lewd and lascivious conduct. As a result of the television coverage and pressure from parents, in mid-April of 1992 the Respondent was reassigned to work in a position that did not involve contact with students. He continued to work in that position until February 17, 1993, when the School Board suspended the Respondent and initiated dismissal proceedings against him.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that in Case Number 92-6921, a Final Order be issued to the following effect: Dismissing the charges set forth in Counts Two, Four, Seven, Eight, and Nine; Concluding that the Respondent is guilty of the charges set forth in Counts One, Three, Five, Ten, Eleven, and Twelve; and Imposing the penalty of revocation of the Petitioner's teaching certificate. On the basis of all of the foregoing, it is RECOMMENDED that in Case No. 93-2723, the Dade County School Board issue a Final Order in this case concluding that the evidence is insufficient to establish any of the charges in the Amended Notice of Specific Charges and dismissing all charges against the Respondent. DONE AND ENTERED this 15th day of November, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 15th day of November, 1994.
The Issue Whether Respondent engaged in the conduct alleged in the Superintendent of Schools' Notice of Suspension and Recommendation for Dismissal from Employment. If so, whether such conduct provides the School District of Palm Beach County with "just cause" to take disciplinary action against Respondent pursuant to Section 231.36, Florida Statutes. If so, what specific disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida. Respondent's Certification Respondent previously held a temporary, non-renewable teaching certificate (Certificate Number 618674) issued by the Florida Department of Education certifying that he was eligible to teach biology in grades six through twelve in the State of Florida. The certificate's "validity period" was July 1, 1995, through June 30, 1997. Respondent's Employment with the School District At all material times to the instant case, Respondent was employed by the School District as a biology teacher in the ESOL program at Atlantic Community High School. The ESOL program is designed to meet the special needs of students whose native language is not English. The Collective Bargaining Agreement As a teacher employed by the School District, Respondent was a member of a collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (CTA) and covered by a collective bargaining agreement between the School District and the CTA (CTA Contract), effective from July 1, 1995, to June 30, 1997. Article II, Section M, of the CTA Contract addresses the subject of "discipline of employees." It provide as follows: Without the consent of the employee and the Association [CTA], disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative. An employee against whom action is to be taken under any Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, 1/ progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve months of the action/inaction of the employee which led to the notation. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and receiver of the Megha P. suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with provisions of this Agreement, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken include either a suspension or dismissal, the grievance shall be initiated at STEP TWO. Megha P. was a student at Atlantic Community High School during the 1995-96 and 1996-97 school years. Megha was a ninth grader during the 1995-96 school year. Respondent was Megha's biology teacher during the first semester of that school year. On the day of her final examination in Respondent's class, Megha arrived at school early, approximately three hours before the examination was scheduled to commence. Shortly after her arrival at school that day, she was approached by Respondent, who asked her to accompany him to his classroom to help him with some paperwork. Megha complied with Respondent's request. After Megha and Respondent walked into the classroom, Respondent closed the classroom door behind them and told Megha to sit on his lap. Megha refused. Respondent then forced her to sit on his lap. While Megha was on his lap, Respondent fondled her buttocks and breasts. Megha tried to stand up and walk away, but Respondent physically restrained her and she was unable to escape his grasp. As he was restraining her, Respondent demanded that Megha give him "hugs and kisses." Megha told him "no." Respondent, however, persisted. He told Megha that "all the girls" give him "hugs and kisses" and that she should do the same. Megha responded that she did not care what "all the girls" did. Despite Respondent's persistence, Megha never gave Respondent the "hugs and kisses" he had requested. Megha was involved in another incident with Respondent during the first semester of the following school year. She was not a student of Respondent's at the time. On this subsequent occasion, Megha went to Respondent's classroom to purchase a bagel. (Respondent was selling bagels at school to raise money for a class trip.) When Megha entered the classroom, Respondent commented to her that she always wore loose fitting pants without a belt. Megha replied that she did not like wearing belts. Respondent then suddenly pulled down Megha's pants. Megha quickly pulled up her pants and left the classroom. Following this incident, Respondent, on several occasions, invited Megha to his classroom, but Megha declined his invitations. Suchi H. When she was in the ninth grade at Atlantic Community High School, Suchi H. was a member of a student organization (the Asian Club) sponsored by Respondent. On a club outing to the beach, during the taking of a group photograph, Respondent, who was standing next to Suchi, put his hand on the side of her breast and kept it there. Respondent's uninvited advance made Suchi feel very uncomfortable. Lovely R. During the first semester of the 1996-97 school year, Lovely R. was a student in Respondent's class. She was in eleventh grade at the time. Lovely was once late to Respondent's class on the day of an examination and Respondent told her to come back to the classroom later in the day to take the examination. Lovely did as she was told and returned to Respondent's classroom later that day. Upon entering the classroom, she locked the door behind her pursuant to Respondent's instructions. Respondent then gave Lovely a copy of the examination, along with the answer key. When asked by Lovely why he had given her the answers to the examination, Respondent replied that he was her friend and would do anything for her. Acting without Lovely's consent, Respondent thereupon moved his hands down her body, touching her neck, shoulders, breast and buttocks. He also tried to kiss her on the face, but was unsuccessful as Lovely turned her head away from him. Not wanting to be subjected to any more of Respondent's advances, Lovely told him that she had another examination she had to take (a story she made up) and left the classroom. Before this incident, Lovely had been receiving A's for her work in Respondent's class. After the incident, she received, undeservedly, F's from Respondent. Alexis G. During the first semester of the 1996-97 school year, Alexis G. was a tenth grade student in Respondent's class. One day during the semester, Respondent asked Alexis to stay after school so that she could show him a homework assignment she had done. He told her that if she did not see him after the end of that school day, she would not receive any credit for having done the assignment. At the end of the school day, Alexis went to Respondent's classroom. After she entered the room, Respondent locked the door behind her. He then directed Alexis to a table in the back of the room and told her to lie down on it. Following Respondent's instructions, Alexis got on the table and laid down on her stomach. Respondent proceeded to caress Alexis' back, breasts and buttocks and press his body against hers. He then asked Alexis to take her clothes off. Alexis told him "no" and screamed at him to get off of her. Respondent responded by moving away from Alexis. With Respondent off of her, Alexis stood up and left the classroom. On a subsequent occasion, acting in accordance with Respondent's instructions, Alexis visited Respondent in his classroom before her sixth period class. When she arrived, Respondent was alone. Following Respondent's directives, she gave him a massage. Chrisly A. In 1996, when she was in tenth grade, Chrisly A. was a student in Respondent's class. One day in class, Respondent approached Chrisly and told her that he wanted to speak to her during sixth period that day to discuss her grades. When Chrisly expressed concerns about missing her sixth period class, Respondent gave her a pass to show to her sixth period teacher. Chrisly went to Respondent's classroom after her fifth period class that day as Respondent had asked her to. After Chrisly entered the classroom, Respondent locked the door behind her. He then began to talk with Chrisly about her grades, as he had said he would earlier that day when he had requested her to meet with him. After a short period of time, however, he abruptly changed the subject of their discussion when he told Chrisly that he liked her and that he wanted to be her boyfriend and have sex with her. In addition, he asked Chrisly when she had her menstrual period. Respondent then forced Chrisly to sit in his lap. While Chrisly was on his lap, he stroked her neck, breasts and stomach and made her kiss him. He asked Chrisly to take off the shirts she was wearing so he could see her body, but she refused. Chrisly tried to get up from Respondent's lap, but Respondent held on to her and would not let her go. Finally, after someone knocked on the classroom door, Respondent permitted Chrisly to leave. Effectiveness By engaging in the conduct described above with Megha, Suchi, Lovely, Alexis, and Chrisly, Respondent has impaired his effectiveness as a teacher in the school system and as a member of the community. Aftermath Neither Megha, Suchi, Lovely, Alexis, nor Chrisly immediately reported Respondent to school authorities. Respondent's highly inappropriate conduct with these students, however, was ultimately brought to the authorities' attention. Following an investigation conducted by the School Board's Police Department, the School Board's Department of Employee Relations determined, based upon the findings of the investigation (which were contained in a written report prepared by the investigating officer), that a pre-disciplinary meeting should be held with Respondent. Such a pre-disciplinary meeting was held on April 7, 1997. Present at the meeting were representatives of the School District, a representative of the Palm Beach County Teachers Association, Respondent and his attorney. During the meeting, Respondent declined the opportunity to make a statement. On or about April 8, 1997, the Superintendent of Schools sent Respondent a Notice of Suspension and Recommendation for Dismissal from Employment, which read as follows: Based upon substantial information presented to me, I hereby inform you that I have found probable cause sufficient to warrant recommendation for your suspension without pay and dismissal from employment with the School District as an ESOL instructor. You are charged with committing misconduct sufficient to constitute just cause under the 1995-1997 collective bargaining agreement between The School District of Palm Beach County, and the Palm Beach County Classroom Teachers Association, based upon your repeated inappropriate behavior with students. Specifically, on numerous occasions you made sexual advances towards female students. Such conduct constitutes a violation of Section 231.36(1)(a), Florida Statutes (1995), School Board Rules and Regulations, and the Code of Ethics for the Education Profession in Florida, Chapter 6B- 1, Florida Administrative Code. Please be advised that I will recommend at the April 23, 1997, meeting of the School Board of Palm Beach County, Florida, that the School Board suspend you without pay effective April 24, 1997, and that termination of employment will become effective upon the expiration of fifteen (15) days thereafter. This action is taken in accordance with Sections 230.23 and 230.33, Florida Statutes. The April 23, 1997, School Board meeting will be held in the Board Room at 3300 Forest Hill Boulevard, West Palm Beach, Florida at 5:00 p.m. You or your representative have the right to attend this meeting and present an oral statement or documentation to show why you should not be suspended without pay and/or terminated. If you intend to speak before the School Board, please immediately notify Ms. Alicia Bell, Clerk, at (407) 434- 8139, of your intention to make a presentation at that meeting. Pursuant to School Board Policy 3.27, you have the right to request a formal hearing contesting the recommendation for your suspension without pay and dismissal. If you desire to request a formal hearing, you must put your request in writing and submit it within fifteen (15) days from receipt of this letter to Cynthia S. Prettyman, General Counsel, School District of Palm Beach County, 3318 Forest Hill Boulevard, C-302, West Palm Beach Florida 33406-5813. Failure on your part to timely request a hearing will be deemed a waiver of your right to a hearing on the matter, and all material allegations and charges made against you shall be deemed true by the School Board for purposes of entering a final order in this matter. By letter dated April 22, 1998, Respondent, through counsel, requested a hearing on the matter. The letter from Respondent's counsel read as follows: Our office has been retained for the purpose of representing Mr. Prakash Pathmanathan before the School Board of Palm Beach County, Florida with respect to the issues raised in the Superintendent's letter dated April 8, 1997, charging Mr. Pathmanathan with inappropriate behavior with students. Mr. Pathmanathan denies that there is any basis to support the Superintendent's recommendation for suspension without pay, and contests the recommendation for his dismissal. Mr. Pathmanathan requests that a hearing be conducted with respect to all issues raised by the charges described above and his defense to the charges, and requests that the hearing be conducted pursuant to the provisions of Section 120.57(1), Fla. Stat., before an Administrative Law Judge appointed by the Division of Administrative Hearings. Neither Mr. Pathmanathan, I, nor any other representative for Mr. Pathmanathan will make a presentation at the School Board meeting scheduled for April 23, 1997, when the Board will consider the propriety of the recommendation for suspension without pay, and recommend Mr. Pathmanathan's dismissal from employment. Accordingly, we request that the matter be placed on the Board's consent agenda. The matter was subsequently referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing Respondent had requested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing him as an employee of the School Board. DONE AND ENTERED this 4th day of December, 1998, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1998.
The Issue Whether Respondent, Derek E. Andrews, should be terminated for his absence without leave from April 12, 2007, until the end of the 2006-2007 school year.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter the following Findings of Facts are made: Respondent, Derek E. Andrews, is a school teacher employed by the School Board of Seminole County, Florida. William Vogel is, and has been, Superintendent of Public Schools for the School District of Seminole County, Florida, for all times material to the occurrences relevant to this case. Pursuant to Section 4, Article IX, Florida Constitution, and Sections 1001.30, 1001.31, 1001.32, 1001.33, 1001.41, and 1001.42, Florida Statutes (2006), the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. The relationship of the parties is controlled by Florida Statutes, the collective bargaining agreement, and School Board policies. Respondent's supervising principal for the 2006-2007 school year was Dr. Shaune Storch. Respondent had been granted a leave of absence that expired on March 30, 2007. Respondent's leave for the period March 16, 2007, through March 30, 2007, was an extension of a previous leave as requested by Respondent. Subsequent to the expiration of Respondent's leave on March 30, 2007, Respondent's supervising principal attempted to contact Respondent regarding his intentions for the remainder of the 2006-2007 school year. Respondent did not meet with his supervising principal or otherwise respond to her letter of April 5, 2007. Article XVI, Section I.2. of the collective bargaining agreement, provides that any teacher who is willfully absent from duty without leave shall forfeit compensation for the time of the absence and be subject to discharge and forfeiture of tenure and all other rights and privileges as provided by law. Respondent was absent without leave from April 2, 2007, through the end of the school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent, Derek E. Andrews, guilty of the allegations stated in the Petition for Termination and that his employment be terminated. DONE AND ENTERED this 20th day of September, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 20th day of September, 2007. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Derek E. Andrews Post Office Box 62 Tangerine, Florida 32777-0062 Dr. Bill Vogel Superintendent of Schools Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Honorable Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in the case is whether the Polk County School Board (Petitioner) has just cause for terminating the employment of Respondent, David McCall.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner under a professional services contract as a classroom teacher at Lake Region High School, a unit of the Polk County Public School System. On Wednesday, October 3, 2007, a student entered the Respondent’s classroom approximately ten minutes after class had commenced. The student’s tardiness was apparently related to her participation as a donor in a blood drive occurring at the school on that date. At the time the student entered the classroom, the Respondent was engaged in administering a standard quiz, and the time allotted for the quiz was about to end. The Respondent directed the student to remain outside the classroom and take the quiz. The student advised the Respondent that she donated blood and, feeling dizzy, had hit her foot on a doorway. She told the Respondent that she injured her toe and requested that she be allowed to go to the school clinic. The Petitioner presented a statement allegedly written by the student asserting that her toe was bleeding at the time the Respondent observed the toe. The student did not testify, and the written statement is insufficient to establish that the toe was bleeding at the time she entered the classroom. The Respondent testified that he observed the toe and saw perhaps a minor abrasion but saw no evidence of serious injury. The Respondent declined to refer the student to the clinic and again instructed the student to remain outside the classroom and complete the quiz. The student remained outside the classroom and presumably began taking the quiz. Shortly thereafter, another teacher walking in the hallway observed the student sitting outside the Respondent’s classroom with a paper towel under her foot. The teacher observed the student shaking and blood on the towel and asked the student about the situation. The student advised the teacher of the circumstances, stating that she felt like she was going to “pass out.” The teacher, with the assistance of a third teacher, obtained a wheelchair, retrieved the student’s belongings from the Respondent’s classroom, and advised the Respondent that the student was being taken to the clinic. After the student was transported to the clinic, her mother was called. The mother came to the school and retrieved her daughter, observing that the toe was bloody and swollen. The mother subsequently took her daughter to a doctor and testified that the student was referred for x-rays of the injured toe. Later on October 3, 2007, the student’s mother contacted the school principal, Joel McGuire, to inquire as to the manner in which the matter had been handled by the Respondent. The principal advised the mother he would follow up on her inquiry. On Thursday morning, October 4, 2007, Principal McGuire sent an email to the Respondent and asked him to come to Principal McGuire’s office during a planning period or after 2:30 p.m. “to confirm some information” about the student. The Respondent did not respond to the email and did not comply with Principal McGuire’s request to meet at that time. After receiving no response from the Respondent, Principal McGuire left a copy of the email in the Respondent’s mailbox at approximately 2:30 p.m. on Thursday, October 4, 2007, with a handwritten note asking the Respondent to come to the principal’s office on the following Friday morning “before school.” The Respondent did not respond to the note left in the mailbox and did not appear at the principal’s office prior to the start of Friday classes. Based on the lack of response, Principal McGuire sent another email to the Respondent on Friday, October 5, 2007, and asked him to come to the principal’s office at 6:30 a.m. on Monday. The email advised that the meeting was “to discuss the situation which occurred on Wednesday, October 3rd” so that the principal could respond to the mother’s inquiry. Although the Respondent was routinely present on the school campus by 6:30 a.m. on school days, the Respondent replied to the principal and declined to meet at that time, stating that the “proposed meeting time is not within my contracted hours.” The principal thereafter emailed the Respondent and requested that he come to the principal’s office at 10:30 a.m. on Monday, October 8, 2007. The email stated as follows: Mother is really needing information concerning the situation which took place in your class. I do need to meet with you and provide a response to her. I believe 10:30 a.m. is during your planning period. Thanks for coming by my office. The principal received no response to this email and the October 8, 2007, meeting did not occur. The principal thereafter sent a letter to the Respondent dated October 12, 2007, which stated as follows: I am requesting a meeting with you Monday, October 15, 2007, at 8:00 a.m. I will provide a substitute in your classroom in order for you to meet with me. The meeting will be very brief. I need some information about [student], a student you had in 2nd period geometry, in order to inform her mother. This is the sixth request for a meeting. Failure to comply with my request will be deemed insubordination and will require additional actions. The Respondent attended the meeting, but refused to provide any information, stating, “I am not going to respond to you.” By letter dated October 22, 2007, the Respondent received a written reprimand for his “refusal to assist in the investigation of an incident involving [student] on October 3, 2007." The letter advised that the first step of progressive discipline, a verbal warning, was being omitted because of the “seriousness of your actions and the possible consequences.” In relevant part, the letter provided as follows: Attached to this letter is my memorandum setting forth the events and facts as I have best been able to determine. As indicated, you have been uncooperative in our effort to investigate the facts surrounding this incident. Most significantly, when we were finally able to meet in my office on October 15, 2007, you refused to discuss the circumstances surrounding [student’s] situation and you stated specifically, “I am not going to respond to you.” This situation involved an injured student and our school’s response to that incident. Your refusal to assist or participate in the investigation is contrary to your obligation as a teacher to respond suitably to issues of a student’s health and welfare, is adverse to the school’s obligation to address concerns of the parents, and is completely contrary to your obligations as an employee of the Polk County School Board. Please understand that this letter of reprimand is addressed solely to your refusal to participate, cooperate or assist in the investigation of this incident. Should the outcome of the investigation indicate that your conduct in dealing with the student was inappropriate, I am reserving the right to request further disciplinary action by the Superintendent. Please note that a suspension without pay is the next step in progressive discipline as set forth in the Collective Bargaining Agreement. In conclusion, the letter directed the Respondent to prepare a signed “full written report” of the incident, including “your recollections and observation of the events and your justification for your actions you took in response to this incident.” The letter directed the Respondent to deliver the report within five days of the Respondent’s receipt of the letter and, further, stated that “refusal to take such action and to cooperate in the investigation may have serious consequences regarding your employment.” The memorandum attached to the letter provided a chronology of events identifying all participants and specifically referencing the principal’s multiple attempts to obtain information from the Respondent. The Respondent failed to provide the written statement as required by the October 22, 2007, letter of reprimand and failed to otherwise provide information to the Petitioner. By letter dated November 15, 2007, from Principal McGuire to Superintendent Dr. Gail McKinzie, the principal requested that the superintendent issue a five-day suspension without pay to the Respondent for “gross insubordination.” The letter misidentified the date of the incident as October 4, 2007. By letter dated November 29, 2007, the superintendent suspended the Respondent without pay for five days. The letter, repeating the misidentification of the date of the incident, stated in relevant part as follows: On October 4, 2007, you denied a student’s request to go to the school clinic. It was determined that the student had a broken toe. Your administrator, Joel McGuire, has made six verbal requests and two written requests for information on this incident. The last request was made on October 22, 2007, in a formal letter of reprimand which stated “your refusal to take such action and to cooperate in this investigation may have serious consequence for your employment. This recommendation for a five day suspension without pay is provided for in Article IV section 4.4-1 of the Teacher Collective Bargaining Agreement and is a result of your continued insubordination and refusal to follow the requests of your immediate supervisor. Please be advised that future incidents of this nature may result in additional disciplinary action. The letter of suspension advised the Respondent that the suspension would be in effect from December 5 through 7, 10, and 11, 2007, and that he should report back to work on December 12, 2007. The Respondent served the suspension without pay. In a letter dated December 13, 2007 (“Subject: October 4, 2007, incident”), from Principal McGuire, the Respondent was advised as follows: I have made repeated verbal and written requests from you for your explanation of the events in which you participated on October 4, 2007, involving a student requiring medical attention. This is my final request to you for a written explanation of those events. You are herby directed to report to my office at 10:30 a.m. on Monday, December 17, 2007, and you are instructed to have with you at that time a written explanation of the events in question. You shall also be prepared to answer any questions regarding what occurred on that day and the actions you took. You should not have any classes at that time, but I will provide coverage for you if for any reason that is required. Please understand that this is a very serious matter, and you have previously received a five day disciplinary suspension. The next step in progressive discipline is termination, and insubordination can be just cause for termination. I hope that you will conduct yourself appropriately, if you wish to remain an employee of the Polk County School Board. On December 17, 2007, the Respondent appeared at the principal’s office at the appointed time, but asserted that he had not been involved in any incident on October 4, 2007, and declined to otherwise provide any information. Although the date of the incident, October 3, 2007, had been misidentified as October 4, 2007, in the referenced series of letters, there is no evidence that the Respondent was unaware of the specific event about which the information was being sought. It is reasonable to presume that the Respondent was fully aware of the matter being reviewed by Principal McGuire. In response to the December 17, 2007, meeting, Principal McGuire issued a letter dated December 18, 2007 (“Subject: October 3, 2007, incident”), essentially identical in most respects to the December 13, 2007, letter and correcting the referenced date. The letter scheduled another meeting for 10:30 a.m. on December 19, 2007. On December 19, 2007, the Respondent appeared at the principal’s office at the appointed time and declined to answer any questions, stating that he was invoking his rights under the Constitutions of the State of Florida and the United States of America. By letter to Superintendent McKinzie dated January 2, 2008, Principal McGuire recommended termination of the Respondent’s employment. Principal McGuire restated the chronology of the October 3, 2007, incident and wrote as follows: I have made repeated verbal and written requests of Mr. McCall to provide an explanation of the circumstances in order to include them in our investigation of the events. He refused to comply with each of those requests. He received a formal letter of reprimand and a five-day suspension without pay for his gross insubordination. Since his suspension, I have made written requests of Mr. McCall to provide an explanation of those events, and he has blatantly refused to do so. By letter also dated January 2, 2008, Superintendent McKinzie notified the Respondent that he was being suspended with pay and that she would recommend to the full school board that his employment be terminated. The letter set forth the grounds for the termination as follows: Since the incident on October 3, 2007, you have refused repeated verbal and written requests by the school administration to provide an explanation of the events which occurred on that date or to otherwise participate in the investigation of those events. As a result of your refusal to provide an explanation or participate in the investigation, you have received a formal written reprimand and a five-day suspension without pay. Since your suspension, you have again refused specific requests by your principal to provide an explanation of these events. Based on these facts, it is my opinion that you have intentionally violated the Principles of Professional Conduct of the Education in Florida by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and/or safety (Rule 6B-1.006 FAC). Further you have engaged in ongoing, gross insubordination by repeatedly refusing to take certain actions which are a necessary and essential function of your position as a School Board employee. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been followed in this case, and the next step of progressive discipline is termination. Therefore, it is my conclusion that "just cause" exists for your termination as an employee of the Polk County School Board. The Respondent requested a formal administrative hearing to challenge the termination, and the Petitioner referred the matter to the Division of Administrative Hearings. Prior to the instant hearing, the Respondent made no effort to provide any information to the Petitioner regarding the events of October 3, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of David McCall. DONE AND ENTERED this 20th day of May, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 20th day of May, 2008. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 David McCall 3036 Spirit Lake Drive Winter Haven, Florida 33880 Dr. Gail McKinzie, Superintendent Polk County School Board Post Office Box 391 Bartow, Florida 33831-0391 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
