The Issue The issue in this case is whether the Respondent, Angel Guzman, committed the violations alleged in a Notice of Specific Charges filed by the Petitioner, the School Board of Miami-Dade County, Florida, on November 14, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Miami-Dade County School Board (hereinafter referred to as the "School Board"), is a duly- constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; and Section 230.03, Florida Statutes. At all times material to this proceeding, Angel Guzman was employed as a teacher by the School Board and assigned to Miami Edison Middle School (hereinafter referred to as "Edison"). Mr. Guzman is and has been employed by the School Board pursuant to an annual service contract. Prior to his employment by the School Board, Mr. Guzman was employed by New York City as a teacher assistant for three years and as a teacher for four years. He has been employed as a graphic communications teacher by the School Board since 1998, approximately two and a half years. Prior to the incidents that are the subject of this proceeding, Mr. Guzman had never been the subject of a School Board personnel investigation. The February 16, 2001, Incident On February 16, 2001, Mr. Guzman was handing out reading logs in a FCAT preparation class at Edison. The students in the class were seventh graders. Sherwin JeanPierre, a student in the class, and another student asked their fellow student, Maurice Barnhill to get their reading logs from Mr. Guzman. Maurice picked up the logs, but was confronted by Mr. Guzman who, when he learned that Maurice was picking up logs for others, snatched the logs out of his hands and told him to return to his seat. An argument between Mr. Guzman and Maurice ensued. The teacher and student yelled at each other, Mr. Guzman forcefully pushed Maurice on the shoulder, and Mr. Guzman said "coño" to Maurice, which means "damn" in Spanish. Mr. Guzman eventually became so angry that he grabbed a wooden stool located between him and Maurice, swung it toward Maurice, and hit Maurice on the leg with the stool. While the stool hurt Maurice, he suffered no significant injury. The Second February 2001 Incident Following the February 16, 2001, incident, Mr. Guzman and another student were involved in a verbal confrontation. The situation was defused by Theron Clark, an Assistant Principal at Edison, and a security monitor. Following the confrontation, Mr. Clark and Dr. Peggy Henderson Jones, another Assistant Principal, met with Mr. Guzman. At this meeting, Mr. Guzman indicated that he was very stressed and did not want to return to his class. Mr. Guzman was allowed to go home the day of the incident and was subsequently referred to the Employee Assistance Program. Disciplinary Action Against Mr. Guzman for the February 16, 2001, Incident A conference-for-the-record (hereinafter referred to as the "conference") was held with Mr. Guzman on March 6, 2001, by Ronald D. Major, the Principal at Edison. The conference was attended by Mr. Major, Mr. Theron, Eduardo Sacarello, a United Teachers of Dade representative, and Mr. Guzman. The purpose of the conference was to discuss Mr. Guzman's non-compliance, during the February 16, 2001, incident with Maurice Barnhill, with school rules, School Board Rules 6Gx13-5D-1.07, dealing with corporal punishment, and 6Gx13-4A-1.21, dealing with employee conduct, and the Collective Bargaining Agreement between the School Board and the United Teachers of Dade. During the conference, Mr. Guzman was advised that a letter of reprimand would be issued, and he was directed to immediately implement procedures for the removal of disruptive students consistent with the faculty handbook. Mr. Guzman was also warned that any recurrence of the type of violation committed by him during the February 16, 2001, incident would result in further disciplinary action. A written reprimand to Mr. Guzman was issued on March 7, 2001, by Mr. Major. In the reprimand, Mr. Major again warned Mr. Guzman that any recurrence of the infraction would result in additional disciplinary action. The April 25, 2001, Incident On April 25, 2001, during a class under Mr. Guzman's supervision, Mr. Guzman caused a document to be printed from a class computer. A student took the paper and gave it to another student in the class, Ian Lightbourne, who asked for the paper. Ian placed the paper, even though it did not belong to him, in his book bag. When Mr. Guzman came to retrieve the paper he had printed, found it was gone, and asked if anyone knew what had happened to it. Although no one answered, Mr. Guzman suspected Ian and asked him to open his book bag. Ian complied and Mr. Guzman found the paper. Mr. Guzman became irate and began yelling at Ian to "not touch my things." Mr. Guzman then grabbed Ian by the arm and started to pull him toward the front of the classroom. Ian, who was sitting on a stool, lost his balance and fell to his knees. Mr. Guzman continued to pull Ian, who began to cry and yell, "Let me go," the length of the classroom on his knees. Mr. Guzman pulled Ian to a corner of the classroom where he banged Ian's arm against a metal darkroom door. Ian had previously broken the arm that Mr. Guzman grabbed and had only recently had the cast removed. Although the incident did not result in any serious injury to Ian, it was painful and caused his mother to seek medical attention for her son. On April 27, 2001, as a result of the April 25, 2001, incident, Mr. Guzman was assigned to alternative work at his residence, with pay. Mr. Guzman was not allowed to have any contact in his assignment with students. On August 14, 2001, the County Court in and for Dade County, Florida, entered a "Stay Away Order" in Case No. M0130143 requiring that Mr. Guzman stay away from, and have no contact with, Ian. Disciplinary Action Against Mr. Guzman for the April 25, 2001, Incident On August 29, 2001, another conference-for-the-record (hereinafter referred to as the "second conference") was held. The second conference was attended by Julia F. Menendez, Regional Director, Region IV Operations of the School Board; Sharon D. Jackson, District Director; and Mr. Guzman. The second conference was held at the School Board's Office of Professional Standards. The second conference was conducted to discuss Mr. Guzman's performance assessments, non-compliance with School Board policies and rules regarding violence in the workplace and corporal punishment, insubordination, noncompliance with site directives regarding appropriate use of discipline techniques, violation of the Code of Ethics and Professional Responsibilities, and Mr. Guzman's future employment with the School Board. At the conclusion of the second conference, Mr. Guzman was informed that his alternative work assignment would be continued, that his actions would be reviewed with the Superintendent of Region IV Operations, the Assistant Superintendent in the Office of Professional Standards, and Edison's principal, and he was directed to refrain from touching, grabbing, hitting, or dragging any student for any reason. Subsequent to the second conference, the School Board's Office of Professional Standards concluded that Mr. Guzman had violated School Board and state rules. Therefore, an agenda item recommending dismissal of Mr. Guzman was prepared for the School Board to consider. That agenda item was discussed with Mr. Guzman on October 16, 2001, and was considered at the School Board's meeting of October 24, 2001. At its October 24, 2001, meeting, the School Board suspended Mr. Guzman without pay and approved the initiation of dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Angel Guzman without pay be sustained and that his employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 27th day of March, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 27th day of March, 2002. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Frank E. Freeman, Esquire 666 Northeast 125th Street Suite 238 Miami, Florida 33161 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Petitioner, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of August, 2018.
The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 11th day of October, 1999.
The Issue Whether just cause exists to suspend Respondent’s employment for the reasons set forth in Petitioner’s Notice of Specific Charges.
Findings Of Fact Petitioner is a duly constituted School Board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida. At all relevant times, Respondent was employed by Petitioner as a school security monitor at Hialeah Middle School ("Hialeah"), and was subject to the collective bargaining agreement between Petitioner and the United Teachers of Dade, which provides Petitioner with the authority to suspend or dismiss Respondent. Respondent’s Disciplinary History Prior to the events that are the subject of this case, Respondent has received multiple reprimands based on his conduct in the workplace. On November 10, 1994, Respondent received a reprimand for insubordination, specifically, for his refusal to attend meetings, repeated tardiness, and falsification of payroll documents. On May 25, 1995, Respondent received a reprimand for failing to remain in his assigned area of supervision on 26 occasions, being tardy to work 16 times, failing to return to work from lunch on seven occasions, failing to properly supervise the parking lot, and failing to respond to radio calls directed to his attention on 13 occasions. On October 16, 1995, Respondent received a reprimand for failing to report to work on time on nine occasions. On September 15, 1997, Respondent received a reprimand for contacting a student at her home by telephone and in person on several occasions. Respondent was directed to refrain from contacting the student, refrain from socializing with students on or off campus, and refrain from inappropriate actions in the course of his employment. On June 5, 1999, Respondent was issued a Summary of Conference for threatening a co-worker with violence and using profanity in the presence of students. On January 12, 2001, Respondent received a reprimand for using abusive and profane language in the workplace and refusing to comply with a reasonable direct order from an administrator. On January 12, 2005, Respondent received a reprimand for creating a hostile work environment, inciting a volatile situation for students, and creating an unsafe environment for the students, staff, and parents who were present. On February 22, 2006, Respondent received a reprimand for creating a hostile work environment, inciting a volatile situation for colleagues, and an unsafe environment for the staff who were present. Respondent’s Interaction with A.G. Ms. Mederos is a language arts teacher at Hialeah, where she worked with Respondent during the 2019-2020 school year. A.G. was a student in Ms. Mederos’s class for the 2019-2020 school year. At the time of the hearing, A.G. was thirteen years old. On February 28, 2020, A.G. testified that she left Ms. Mederos’s class to go downstairs and purchase a bag of chips. When A.G. was downstairs, Respondent approached her and told her that her mom was "pretty" and had a "nice figure." Respondent also initiated a "fist bump" with A.G. Although it was credible standing alone, A.G.’s testimony was corroborated by Ms. Mederos, who witnessed the conversation between A.G. and Respondent. Ms. Mederos could not hear the content of the exchange, but saw the "fist bump" between the two and observed that A.G. appeared to be uncomfortable. Respondent denied that the incident with A.G. occurred, and testified that he had never met or seen A.G. or her parents as of February 28, 2020. Respondents’ testimony on this subject was not credible and is rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The School Board of Miami-Dade County, Florida, enter a Final Order suspending Respondent’s employment with the School Board for ten workdays without pay. DONE AND ENTERED this 20th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Michele Lara Jones, Esquire S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2021. Samuel Dean School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue, Room 430 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 681 Northwest 78th Terrace, Number 106 Pembroke Pines, Florida 33024 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Did Petitioner, Gregory K. Adkins, as Superintendent for the Board of the School District of Lee County, Florida (Superintendent), prove just cause to terminate the employment of Respondent, Orlando Torres?
Findings Of Fact The Superintendent, on behalf of the School Board of Lee County (Board), is responsible for hiring, overseeing, and terminating, all employees in the school district. At all times material to this case, the Board employed Mr. Torres as a security specialist at East Lee County High School (East Lee). Mr. Torres also sometimes served as an assistant coach and/or substitute athletic trainer. Mr. Torres has worked for the Board since August 5, 2011. For the 2011 through 2015 school years Mr. Torres’ received a final Performance Evaluation with a score of “Effective” in all areas assessed. The "Manager Comments" on Mr. Torres' Final Performance Evaluations consisted of the following: "Mr. Torres is an integral part of the MLE [Mirror Lakes Elementary] team. He has been a great addition to our staff [2014-2015 Evaluation]”; "Mr. Torres is a very valuable asset and is well respected and supported as an integral part of the MLE team [2013-2014 Evaluation]"; "Orlando performs various duties at East: security and coaching. He has done a good job with both. Orlando was accepting of taking on the night security position until a candidate was hired [2012-2013 Evaluation]"; and "Orlando is a team player and is always willing to go above and beyond to help staff and students [2011-2012 Evaluation]." Mr. Torres is a member of SPALC and was a member during all periods relevant to this matter. On February 4, 2016, the Board’s Department of Professional Standards and Equity (PS&E) received reports that on several occasions Mr. Torres made inappropriate comments and sexual remarks in the presence of or to female high school students. The comments included suggestions that Mr. Torres was interested in sex with the students. The comments caused the students extreme discomfort and embarrassment and created an inhospitable learning environment. The Board investigated. The information it collected caused the Board to terminate Mr. Torres’ employment. PS&E Coordinator, Andy Brown, conducted an investigation that included interviews of several students and of Mr. Torres. When Mr. Torres met Mr. Brown for his interview, Mr. Torres did not know the reason for the interview. Mr. Brown advised Mr. Torres that he was the subject of an investigation and asked him if he knew what it was about. Mr. Torres said: “When I meet with a female, I always have another female present.” This was not true. Mr. Torres’ spontaneous and dishonest statement in response to simply being asked if he knew what the investigation was about is persuasive evidence that he had improper conversations with female students and is a contributing factor to concluding that his testimony denying the charges is not credible. In November and December of 2015, and January 2016, Mr. Torres made several sexually charged, inappropriate comments to students. Five of the incidents involved N.M., who was an eleventh grade student at the time. N.M.’s mother worked at the school. Consequently, N.M. stayed at school after classes until her mother left work. N.M.’s mother arranged for N.M. to assist Mr. Torres in his training tasks after school. This is how she met Mr. Torres. The arrangement lasted about a week. Around November 2015, Mr. Torres gave N.M. a “high-five.” He prolonged the contact by grabbing her hand and intertwining his fingers with hers. In a separate incident, while giving N.M. a “bandaid” for a scratch, Mr. Torres asked her if she would ever get involved with a married man. She said no and walked away. On another occasion, N.M. encountered Mr. Torres while she was walking to lunch. N.M. was wearing what she described as a “burgundy semi-see-through” shirt. Mr. Torres told her to cover up her “goodies” or her “girls,” referring to her breasts, so nobody else could see them. N.M.’s testimony used the word “girls” while her statement in February 2016 said “goodies.” This minor discrepancy is understandable given the passage of time and the stresses of an interview and testimony. On yet another occasion, Mr. Torres remarked in Spanish, when N.M. bent down, “I like ass.” Mr. Torres spoke to N.M. after she had been called to the school office to provide a statement about a conflict that Mr. Torres had with another student. When he learned the purpose of the request for a statement from N.M., Mr. Torres said, “I thought I was gonna get in trouble for flirting with you; thank god we didn’t take it to second base.” In early February, N.M. was walking with her then- friend S.S., when Mr. Torres exited a room and saw them. He said “you look delic . . ., beautiful,” to N.M., shifting from “delicious” to “beautiful” when he noticed S.S. Mr. Torres also made a comment about wishing N.M. was 18. Another Security Specialist, Russell Barrs, who N.M. considered a friend, overheard bits of a conversation between N.M. and S.S. about the encounter. He asked N.M. about it. She replied with generalities A day or two later N.M. met with Mr. Barrs and provided complete information about Mr. Torres’ comments to her. Mr. Barrs reported this to Assistant Principal Edward Matthews. Mr. Matthews launched the investigation. It is noteworthy that S.S., whose friendship with N.M. ended, still testified to the same events as N.M. did. The two had a falling out sometime in 2016. The testimony of S.S. was not a matter of loyal support for a friend. In fact, the tone and body language of both students gave the distinct impression that the end of the friendship was not pleasant. N.M.’s mother had just started working at the school. N.M. did not immediately report Mr. Torres’ advances to her mother or other adults. When she did report them, her initial statements were incomplete and vague. She just told her mother she was not comfortable being in the room with Mr. Torres. She also told her mother that Mr. Torres “says things.” Later, after speaking to Mr. Barrs, N.M. provided her mother a complete description of the comments. After classes, Mr. Torres spent a good deal of time in the training room where first aid supplies and ice are stored for student-athletes. The training room was divided into two smaller rooms separated by a door that was usually shut. One room contained the ice machine, other equipment, and supplies. The other part of the room served as an office for Mr. Torres. Students, including N.M. and C.P., assisted or visited with Mr. Torres in the training room at times. C.P. was a female student who served as one of the managers for the girls’ basketball team. Once while observing her prepare an ice pack by sucking air out of it, Mr. Torres said words to the effect of “like how you suck a boy’s dick.” C.P. was a ninth grader at the time. Mr. Torres also told her that he would like to marry her when she turned 18. Another time, Mr. Torres tried to hug C.P. Mr. Torres also told C.P. that they should not talk in the hall because the security video cameras may record them. Another time, after overhearing a discussion in Spanish by several female students about sexual activity, Mr. Torres told C.P. that if he ever had sex with her he would break her. Two or three times Mr. Torres told C.P. that she was beautiful and he wanted to marry her after she graduated. The comments made C.P. extremely uncomfortable and unsure of what to do. She was scared. She quit her position as manager to avoid contact with Mr. Torres. Like N.M., C.P. was slow to report the comments to an adult. When she first told her step-mother she described Mr. Torres’ comments as coming from a substitute teacher. C.P. was scared and did not want to get involved. When she did, the details understandably came out in bits and pieces. Mr. Torres’ improper familiarity with students N.M. and C.P. and his sexually charged comments were frequent and varied. They were improper and detrimental to the emotional and mental health of the students. The crux of Mr. Torres’ defense is that none of the testimony about his actions is true. His testimony is not as credible as that of the students who testified to his offenses. One reason, mentioned earlier, is Mr. Torres’ spontaneous statement when Mr. Brown met him for the interview that he was never alone with a female. It manifests guilt and anxiousness that would not be present without his being aware of his improper behavior. Another reason is that the testimony of the students is sufficiently consistent to provide credibility. And N.M., C.P., and S.S. all made reports within a few months of Mr. Torres’ comments. A third reason is that N.M.’s testimony was supported by S.S. at hearing even though their earlier friendship had ended. A fourth reason is that there is no evidence of a motive for N.M., S.S., and C.P to fabricate their reports. For the time period when Mr. Torres made the comment to C.P. about “breaking her,” several students offered differing testimony about who was in the room when and whether Mr. Torres was giving a student instruction on a trumpet. This testimony is not sufficient to impeach the credibility of N.M. and C.P. Those were not the students to whom the offending remarks were made. The details of that day would not have been noteworthy to them at the time. Similarly, given the nature of Mr. Torres’ comments, the details of exactly who was present when would have been secondary to N.M. and C.P. Finally, Mr. Torres made one particularly transparent and deliberate effort to manipulate the truth during cross-examination that undermines relying on Mr. Torres’ testimony. Early in the hearing, in Mr. Torres’ presence, the Board attempted to enter evidence that during prior employment as a detention officer with the Sheriff of Lee County, Mr. Torres reacted to teasing by other officers by drawing his service pistol. The objection to the evidence was sustained. Later Mr. Torres testified that the testimony against him was not credible because he would never take such risks at a school where his wife was also employed, his children were students, and N.M.’s mother was employed. This testimony opened the door to the pistol drawing incident as evidence of Mr. Torres taking risky actions at work. The exchange about the incident, starting at page 329 of Volume II of the Transcript, follows: Q: But you engaged in risky behavior in your two law enforcement jobs prior, did you not? A: I don’t consider that risky behavior. Q: Well, you don’t consider pulling your service revolver as risky behavior? [objection and ruling] A: I have never carried a revolver. Q: Your service weapon, sir? ALJ: You said you never carried a revolver. Have you ever carried a pistol? A: Yes sir. ALJ: Next question. Q: Would you consider pulling your service pistol in an inappropriate manner risky behavior, sir? A: Yes, sir. Mr. Torres testified with full knowledge from the earlier attempt to introduce evidence of the incident to what the question referred. His answer was hair-splitting at best and demonstrated a willingness to shade, if not evade, the truth that significantly undermines his credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order finding just cause to terminate the employment of Respondent, Orlando Torres, and dismissing him from his position with the Lee County School District. DONE AND ENTERED this 31st day of October, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 31st day of October, 2016.
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.
Findings Of Fact Roland C. Foote, Respondent, holds Florida teaching certificate number 107445, Graduate, Rank II. He served as Principal of Webster Elementary School (formerly Webster Junior High), hereinafter called Webster, from 1968 until he was replaced in late 1978. He has been employed in the Florida school system for more than twenty-five years. On May 8, 1978, Respondent sent a letter (Exhibit 10) to the Sumter County School Superintendent recommending the suspension of James Constable, one of the teachers at Webster. This was referred to the PPC for investigation by the Superintendent. By letter dated May 16, 1978 (Exhibit 12) some 11 teachers at Webster signed a letter to Ms. Angela J. Peterson, an investigator for the PPC, requesting an audience to discuss several urgent matters relating to Webster. Constable was one of the signers of this letter. Some of those who signed were aware the purposes was to complain of the manner in which Respondent ran Webster; others thought the purpose was to assist Constable. The first meeting with the PPC representative was held on June 6, 1978. Some eight teachers attended this meeting, discussed with Ms. Peterson several situations of which they were aware involving possible improper conduct by Respondent, and agreed to provide PPC with testimony and facts necessary to prepare charges against Respondent. Numerous additional meetings were held by this group, some with PPC representatives and others without PPC representation, for the purpose of reconstructing the dates of the incidents complained of and to ascertain who had knowledge of the incidents. Prior to discussing the specific charges preferred against Respondent and the evidence relating thereto, additional background information gleaned from the testimony and the exhibits admitted into evidence is first presented. Sumter County is predominantly a small-farm agricultural area as opposed to an urban society, with the socioeconomic level below that of most of the larger counties in Florida. In addition to those permanent residents who live and work on farms, there are migrant workers who appear at harvest time. The population mix is about 1/3 black and that is also the school population mix. Several of these students are classified as educationally mentally retarded and qualify for supplemental education programs. About 7 of the 25 teacher faculty at Webster are black and no evidence of any faculty racial tensions or frictions was presented. Friction has existed at Webster between some faculty members and Respondent for a long time. In school year 1974-75 a special workshop was conducted at Webster to improve the communications between the faculty and the administration. The workshop met with mixed success. Some of the teachers at Webster mad minor complaints to various supervisors over the years but none was ever willing to reduced a complaint to writing and present it to the Superintendent. As a result, the Superintendent on one occasion told the faculty at Webster that he was tired of hearing complaints about Webster and for them to work out their problems at the school. The principal at smaller schools, where assistant principals or deans are not provided, is the primary as well as final, authority in the discipline of students and in particular in the administering of corporal punishment. In addition to a wooden paddle or two, Respondent had provided himself with a leather strap which he also used to administer corporal punishment. The strap used by Respondent was admitted into evidence as Exhibit 20. At the time it was used, a metal slat was inserted between the two pieces of leather comprising the strap to provide additional stiffness. The addition of this metal slat did not make the strap a more sinister punishment tool. Straps similar to Exhibit 20 are sold in tack shops and are called bats. They are approximately 18 inches long and are comprised of two pieces of leather one-eight inch thick, sewed together. The bat is about one inch wide through the first foot of its length and then flares out to two inches wide at the end. The two pieces of leather at the flared end are not sewn and they clap together making a louder noise when something is struck with the bat than would occur with only a single piece of leather. It is this flared part of the bat that contacts the backside of a pupil who is administered corporal punishment. This strap or bat will cause less injury to a student than a wooden paddle if each is used with the same degree of force. While the immediate sting from the bat may be as great as the sting from a paddle, the former is much less likely to bruise a child than is the paddle. Some of the implications of the material allegations, as well as the opinions of some witnesses, are that the use of a leather strap for administering corporal punishment is itself cruel and unusual. So long as corporal punishment is authorized, these implications and opinions are without foundation. The material allegations preferred against Respondent will be discussed in chronological order. It is to be noted that the two earliest incidents were familiar to many people at the time they occurred, but no action was taken until 1978. Material Allegation 3 alleges that on or about March 1, 1972 at 8:30 a.m. Larry James, a ten-year old black student at Webster, received an eye injury resulting in the loss of sight in the injured eye when a nail he was attempting to drive was deflected by the hammer and became impaled in his right eye. James was attempting to repair a loose leg on a chair which his teacher had told him to get the custodian to fix. While the teacher was out of the room, James attempted to repair the chair and the accident ensued. James pulled the nail from his eye and ran to the bathroom. His teacher, Mrs. Batten, took him to the office. Respondent was not at school on March 1, 1972 and did not see James until after James returned to school several days later. Petitioner presented five witnesses, including James, the doctor who treated him, his mother, and Mr. and Mrs. Donahue, who were teachers at Webster to whom James was taken by the teacher, Mrs. Batte. None of these witnesses saw Respondent on the day of the accident. James was not sent to a doctor and spent most of the day in Mrs. Donahue's class until the school bus took him home, presumably after 2:45 p.m. His mother testified she had James taken to a doctor that day, which she identified as 2 March, two days after her youngest child was born on 28 February 1972. 1972 was a leap year and February that year contained 29 days. James was referred to the hospital in Ocala by his family doctor, Dr. Wiley. The medical records show James was admitted at 3:56 p.m. on March 2, 1972. It is doubtful James could have reached home on the bus before 3:15 p.m. or reached Dr. Wiley's office before 4:00 p.m. The only time and date certain was the date and time admission to the hospital. The parties stipulated that school records would show Larry James was absent from school on March 2, 3 and 4, 1972. Accordingly, the accident obviously occurred March 1, 1972. The evidence was undisputed that on March 1, 1972, Respondent Foote was in Leesburg attending the closing on the residence he was purchasing. Respondent's testimony to this effect was corroborated by the bank closing officer and documents executed at closing (Exhibit 43). Respondent testified that he first learned of James' injury the following day when he returned to school. Material Allegation 11 alleges that in school year 1971-72 or 1972-73 Respondent struck Louise Weddell, a student, in the face knocking her to the ground. The date of the incident was not established with any degree of certainty. Louise Weddell, now 20 years old, testified that she was 15 and in the seventh grade when the incident occurred. According to Louise, she was fighting with another girl outside the building when Respondent came out with a paddle in his hand to break up the fight. Louise testified that Respondent slapped her with his left hand, knocking her to the ground; that she got up, called him a black mother fucker and ran away. She denied spitting in Respondent's face. For running away she was suspended for 10 days. Several witnesses observed the incident. All except Respondent testified to the slapping and one saw Foote wipe his face with his handkerchief after Louise ran away. Respondent's testimony was that while he was stopping the fight Louise called him the name and spit in his face. He admitted only "pushing" her in the face with his left hand. Material Allegation 10 alleges that during the 1974-75 school year Respondent paddled Gralyn Dorsy numerous times on the buttocks, legs, sides and hips while calling him "a sorry nigger on food stamps and welfare." The evidence is undisputed that Respondent paddled Dorsey several times during that school year (Exhibit 45). The incident leading to the allegation occurred on March 3 1975 when Dorsey was brought to Foote by Mrs. Jones for a discipline problem she did not know how to handle. It appears that the previous day while Foote was away from school Dorsey had committed some vulgar act, the nature of which was not disclosed at the hearing, with another boy in the bathroom. Mrs. Jones expected Respondent to counsel Dorsey. Instead, Dorsey was given a paddling. Mrs. Jones does not remember if James Constable was also present. She testified that she counted 13 licks. Exhibit 45, the paddle list, shows 5 licks given to Dorsey. James Constable testified he also observed the paddling of Dorsey and that after Dorsey had been given 2 or 3 hard licks he started to get up. Respondent pushed him back over the chair saying "I'm not through with you, boy", appeared to lose control and began flailing away while calling Dorsey a sorry nigger on food stamps and welfare. According to Constable, Dorsey received 12 or 13 licks and, while squirming around, some of the blow landed on the side of Dorsey's hip and one landed on his hand. Mrs. Jones was upset over the severity of the paddling. Neither she nor Constable made a complaint until after May, 1978. The school secretary, Doris Brank, whose desk was just outside Foote's office, recalls two paddlings of Dorsey, one at which he was given 3 licks. She never heard Respondent make racial slurs to children while disciplining them. Material Allegation 2 alleges that in the spring of 1976 Herbert Brown, a student, injured his ankle on the playground before school and Respondent wouldn't allow Mrs. Miriam Jones, his teacher, to take him home or to the doctor but required he remain in school. On 2 February 1976 Herbert Brown, a twelve-year old black student, injured his ankle while playing before school. Mrs. Jones took roll call in Herbert's room and learned his ankle was hurting him. She took him to Respondent and asked permission to take him home. Respondent examined the ankle, saw it was slightly swollen and had his secretary, Mrs. Branch, call the phone number on Herbert's records. No answer was received. Respondent refused Mrs. Jones' request to take Herbert home. The ankle continued to swell. Mrs. Branch also called the doctor, whose office was closed. When school was out, Mrs. Jones drove Herbert home. His mother took him to Dr. Lehrer, who examined Herbert's ankle in the emergency room at the hospital and diagnosed the injury as a sprain. No medication was prescribed, as the pain did not appear sufficient to warrant treatment. The doctor has no independent recollection of the incident but, because he prescribed no medication, would assume the sprain was not severe. Material Allegation 9 alleges that on or about January 6, 1977 Respondent paddled Greg Christian while stating that people in the "subs" did not tell "this white man" what to do. When taken to Respondent for disciplining by his teacher, Molly Jo Teters, Greg told Respondent his brothers said Foote was not to paddle him any more and to run home if he did. Mrs. Teters testified that Respondent, while paddling Greg, told him "people in the subs don't tell this white man what to do." Greg's testimony was that following his remarks about Foote not paddling him, Foote held up a clenched fist saying, "This is black power", covered it with his right hand and said, "This is white supremacy." Daniel Lee Christian, Greg's father, recalled Greg telling him of the paddling and of Foote's gestures and remarks about white power over black power. Foote denied all allegations of using racial slurs to students while disciplining them or otherwise. Material allegation 7 alleges that on May 13, 1977 Respondent paddled Joanne Williams with a leather strap, hitting her on her bottom and later on the front of her body as she turned; and that, during the paddling called her a nigger and made comments about welfare, free lunches and food stamps. Mrs. Simpson, Joanne's teacher, took Joanne to Foote for discipline because she had stolen money from another student, spent it and failed to repay the money as directed by Mrs. Simpson. Foote had her bend over a chair and paddled her with the leather strap. After the first blow, Mrs. Simpson testified Joanne turned over and Foote continued to strike her on the front portion of her body while appearing to lose control. During this time, Mrs. Simpson testified, he said Joanne's family was on food stamps, free lunches and had everything given to them and when not given, they stole. Exhibit 45 shows 4 licks awarded to Joanne by Foote. Foote denies making the remarks and Mrs. Branch, who was immediately outside the office, heard no such remarks made. Mrs. Simpson was upset following the incident and vowed never to take another child to Foote for discipline. However, on April 25, 1978, she sent one of her students, James Jackson, to Foote for discipline after Jackson had been paddled by her and continued his misconduct. Material Allegation 8 alleges that in the fall of 1977 Respondent paddled Bobby Clemons with a leather strap and, while so doing, called him a "no-good nigger". Nancy Gridley took Bobby Clemons to Foote for authority to discipline him for being a "smart-mouth". While talking to Bobby, a ten-year old black student whose mother is a teacher at Webster, Mrs. Gridley testified Foote became angry, picked up his strap and gave Bobby three licks while yelling that Bobby was a nigger who would end up in prison if he kept getting into trouble. Bobby confirmed that he was called a nigger by Foote and told he would end up in jail if his conduct didn't improve. Mrs. Clemons was told of the incident by Mrs. Gridley and when she asked Bobby about it, he confirmed the incident. All witnesses agreed that Bobby was a discipline problem. Respondent acknowledged the paddling, denied the racial slur and testified he told Bobby he needn't expect to get away with misbehavior because his mother was a teacher. Mrs. Branch confirmed Foote's testimony. Material Allegation 6 alleges that Respondent on February 22, 1978 paddled Jeannie Barnes, a fifth grade student, with a leather strap in the library in front of students. James Constable witnessed the paddling, which consisted of three blows with the leather strap. The paddling took place in the library which was serving as the temporary office while the old offices were being renovated. Constable's testimony that a class was being held in the library at the time constituted the only testimony that classes were held in the library. Respondent recalled no other student being present when this punishment was administered. Material Allegation 5 was that during February or March, 1978, Respondent paddled one of the Roper twins in the workroom of the library without an adult witness present, striking the student on the sides, back and legs. Mrs. Newell testified she came into the room while Respondent was paddling Landis Roper with a paddle. Landis was lying on the floor, Foote had hold of his wrist and blows were landing on back, legs and arm. She also testified that Roper was screaming his head off and threatening to kill himself if Foote didn't stop. As Mrs. Newell walked in, Mrs. Stevens and Mrs. Hodges were exiting the room. Mrs. Newell is the only witness to testify the other Roper twin was also present. Mrs. Newell took Landis outside after the paddling. Mrs. Stevens was in the library when Foote came in, got his paddle and paddled Roper. She was in the room while the paddling was going on but didn't watch. She was upset because so many licks (about 10) were given to a special education child. Mrs. Hodges did not testify that she was in the library at any time during the Roper incident. Both Respondent and Mrs. Branch recalled the paddling of Roper and that three licks were given. Landis had been reported for fighting in the cafeteria that morning by Mrs. Carter, whose glasses he had accidentally knocked off while swinging at his opponent. Mrs. Carter inquired later if Mr. Foote had seen Landis and was advised no. After lunch Foote sent for Landis, and after talking to him a short while started to paddle Roper. When several children appeared in the hall, Foote then took Roper into the workroom, leaving the door open while the paddling took place. Mrs. Branch testified no other child was present. Foote's testimony was that he gave Roper three licks with the paddle just inside the workroom door and that no other child was present. Material Allegation 4 alleges that on May 16, 1978 Respondent administered corporal punishment to Kenny Robertson with a leather strap without an adult witness present. Kenny Robertson testified that he was paddled with a leather strap by Foote for fighting, that nobody else was in the room, and that Mrs. Branch was at her desk just outside the door. Molly Jo Teters testified she was in outer office, did not see Mrs. Branch, but heard Foote yell at Kenny that he was not to pull girls off bars and to keep his shirt tucked in. Shortly after the last blow she walked by the door, saw Foote returning the strap to his desk and saw only Foote and Robertson. Mrs. Sellers had bus duty May 16, 1978 and saw a boy whose name she didn't know push a girl off the monkey bars. She took him to Foote and observed the paddling. Mrs. Branch testified that Mrs. Sellers brought Kenny Robertson to Foote because of some problem on the playground and that both she and Mrs. Sellers witnessed the paddling given Robertson. Mrs. Branch didn't see Mrs. Teters in the office at that time. Material Allegation 12 alleges that in May 1978 Respondent paddled Ronald Hise, using excessive force, in the lunchroom in front of second and third grade classes. Frances Simpson witnessed Foote paddle Ronnie Hise in the lunch room in May 1978 after a teacher had told Foote Ronnie was misbehaving in the lunch line. Foote picked up his paddle, pulled Ronnie out of the line and gave him three "hard" licks. Theresa Lee, another teacher, also witnessed the Hise paddling. Her version was that another teacher brought Ronald to Foote for discipline because he misbehaved in the lunch line and Foote paddled him there. She thought the blows "too severe" for the "very thin, pale child." Foote acknowledged that from time to time he has paddled children in the lunchroom because he found that this procedure often had a therapeutic effect in calming down a noisy lunchroom. Material Allegation 1 alleges that in May 1978 Herschell Bellamy seriously injured his eye during physical education in the afternoon, that his mother was notified and was coming to pick him up, but Respondent instructed he be put on the school bus to go home at the end of the day. Herschell Bellamy fell on the monkey bars near the end of his physical ed period and cut his eyelid. His P.E. teacher, James Constable, took him to his office, cleaned and bandaged the eye using a large eye patch. Constable then went to the office with Herschell, who remained there, got Herschell's folder and called the phone number there listed for emergencies, which phone belonged to the next-door neighbor. The neighbor advised that she would tell Herschell's mother to come for him. The neighbor later called back to the school office to advise that Herschell's mother was enroute to pick him up. James Constable, Patricia Newell, and Dorothy Stevens all testified that shortly before time for the buses to leave they were in the office with Herschell Bellamy and Foote, from his inner office, asked what the commotion was about. Someone advised him that Bellamy had hurt his eye. Foote then asked if he was white or black and when told Herschell was black, said "Put him on the bus". Foote's testimony, corroborated by Mrs. Branch, was that he returned to school from a meeting in the county office just at the bell was ringing to end the school day. As he entered the building he passed a lady taking a small boy with a bandage over his eye out of the building. He denied making any comment regarding Herschell's race. Herschell and his mother both testified. When Herschell fell on the monkey bar and hurt his eye, Coach Constable put a bandage on it and took him to the office where he waited a long time before his mother came to pick him up. He didn't hear Mr. Foote say anything but testified Foote was in the office when his mother came to pick him up. Herschell's mother testified she came to school in response to the message that her son had been hurt and that she arrived just as the children were about ready to get on the bus to go home. She saw Foote, but he said nothing to her or look at Herschell. She took Herschell to Dr. Wiley, who treated Herschell for a lacerated upper eyelid, a minor injury. Wayne Ham, a supervisor in the Sumter County school system, acknowledged that he had received complaints from Mrs. Simpson, Mrs. Jones and Mrs. Teter regarding Foote's use of the leather strap to discipline children. They considered use of the strap constituted too severe punishment. Ham doesn't recall if he passed these complaints to his superior. He denied telling Mrs. Teter not to show to anyone a written complaint she had prepared. Bernard Shelnutt, the other Sumter County supervisor, who functions similar to Ham, had never heard a complaint against Foote of brutality, failure to get medical attention for children, or use of racial slurs. In addition to denying the allegations preferred against him, Respondent presented numerous witnesses who testified to Foote's good reputation in the community, to their satisfaction with the job Foote was doing as principal, to Foote's administrative capabilities, and to lack of knowledge of any irregularities at Webster until the charges here considered were published in the newspaper. Two principals of Orange County schools, for whom Respondent had worked before coming to Webster, attested to his capability and competence as well as to their conclusion that the job of principal is the most difficult in the field of education. The principal is the one primarily responsible for the discipline in the school and the manner in which punishment is administered. Corporal punishment policy is usually left to the sound judgment of the principal at each school, subject however to statutory restrictions, and prescribed school board policies. None of the four elected Sumter County school board members who testified on behalf of Respondent had ever received any complaints against Respondent, prior to the investigation by the PPC, involving medical neglect, severe punishment or racial slurs, nor had complaints been received from the black community. They considered Respondent a good administrator with a good reputation. The only complaints they had received involved minor administrative matters such as school bus schedules, and teacher complaints that Respondent worked them too hard. Several witnesses for Petitioner admitted that they were not happy with Respondent's requirement that all teachers attend PTA meetings unless they had a good excuse for being unable to do so. Eighteen teachers, former teachers, substitute teachers, and speech clinician called by Respondent had never seen or heard Respondent medically neglect, abuse, or use racial slurs to students at Webster. Most, if not all of these witnesses, had never hear of the complaints against Respondent before reading them in the newspapers shortly before the fir trial. The chiefs of police of Webster and Center Hill attested to Respondent's good reputation in their communities and that they had never received a complaint that Respondent had abused a student. Five parents whose children now attend or had attended Webster testified that Respondent had provided proper treatment to their children, their children had never complained of medical or physical mistreatment or abuse by Respondent, and that when children had been neglected by other teachers a call to Respondent corrected the situation. Two employees, other than Mrs. Branch, who had worked at Webster for many years had never seen or heard Respondent medically neglect, physically abuse, or direct racial slurs towards children at Webster. They first became aware of complaints when they read in the news that charges had been preferred against Respondent. No direct testimony was presented that the misconduct here alleged to have been committed by Respondent seriously reduced his effectiveness in the school system. It is perhaps significant that approximately one week in May 1978 (May 8- 16) provided one-third of the twelve material allegations preferred against Respondent. Coincidentally, Respondent's letter recommending James Constable for dismissal was dated 8 May 1978 and the letter to the PPC signed by eleven teachers was dated May 15, 1978. It is further noted that two of the material allegations involve incidents occurring 6 or 7 years ago.
The Issue Whether just cause exists to uphold the dismissal of Tirso Valls ("Respondent") from employment with the Miami-Dade County School Board ("School Board" or "Petitioner").
Findings Of Fact Based on the record and the evidence presented, the undersigned makes the following findings of fact: At all times relevant to this case, Petitioner was charged with the duty to operate, control, and supervise all public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, § 4(b), Florida Constitution, and section 1012.23, Florida Statutes. Respondent was employed as a physical education teacher at Cutler Ridge Elementary School ("CRES"). Respondent first arrived at the school in August 2017 at the start of the 2017/2018 school year. Shortly after his arrival, Respondent began exhibiting odd behavior, which was noticed by the administration and other staff members. The principal, Wright-Mullings, found that it was difficult to communicate with Respondent and he appeared disheveled in his dress and appearance at times. Early in the 2017/2018 school year, fifth-grade students also began complaining about Respondent's behavior. In response, three separate investigations were initiated into Respondent's conduct based on specific reports by several students. The first concerned allegations that Respondent was making insulting comments, screaming, and poking students; the second concerned Respondent allegedly snatching a jump rope from a female student, injuring her hand; and the third allegation concerned Respondent referring to a female student in a demeaning manner and calling her derogatory names. Pet. Exs. 3-5. These allegations gave the principal cause for concern because she wanted students and their parents to feel comfortable with teachers at the school. She also felt that these allegations raised safety concerns. After investigation by the school police, probable cause for three separate violations of School Board Policy 3210, Standards of Ethical Conduct, were found.2/ Taking exception to the investigative results, Respondent requested that a supplemental investigation be conducted. This was done. However, the outcomes of the initial investigations did not change. Pet. Exs. 6 and 7. Respondent was not formally disciplined for the allegations or findings made in these investigations, since the disciplinary process was never fully completed. However, as a result of these investigations, Respondent was removed from CRES and placed in an alternative assignment at the regional office on September 1, 2017, followed by placement at the District's Federal and State Compliance Office on September 19, 2017. The principal remained concerned that despite completion of the three investigations and disciplinary process, the safety of the students could still be in jeopardy if Respondent returned to the school. Suffice it to say, that in addition to these three investigations, multiple and repeated instances of odd and bizarre behavior by Respondent occurred at school and around the students he was charged to protect and educate. These are outlined in detail in Petitioner's Exhibit 14. They occurred primarily from August 18 through September 1, 2017. Some of the odd and abnormal behavior by Respondent was witnessed by the principal herself. Other behavior was reported by staff members and supplemented or explained what the principal had seen. For several months, and during the course of the investigations, the principal had expressed her ongoing concerns about Respondent to Pina, district director of the Office of Professional Standards. They also discussed the need to refer Respondent for a medical fitness for duty evaluation. Pina shared the principal's concerns regarding Respondent's odd behavior and conduct. This was based, in part, on her own observations of Respondent. She too was concerned for the safety of the students. When Pina brought the results of the investigations regarding Respondent before the Disciplinary Review Team for review and action, it was decided that discipline would be deferred while the School Board proceeded with a fitness for duty evaluation of Respondent. Pina instructed the principal to monitor and record Respondent's behaviors and maintain the results in writing. Wright-Mullings contacted her staff and had some of them write statements regarding their observations of Respondent. Pet. Exs. 10-13. Wright-Mullings compiled her own written summary containing her observations of Respondent's conduct, as well as conduct and actions by Respondent that her staff had observed and reported. Pet. Ex. 14. These observations by her and the staff included, among other things, Respondent's inability to understand directives and to communicate; repeatedly asking the same questions or asking for clarity on points made to him; the inability to understand sample lesson plans; a disheveled appearance that included holes in his shirts and body odor; suppressed anger when questioned about uncompleted tasks; illogical explanations concerning his actions; a nervous laugh; odd facial expressions; staring blankly at coworkers; speaking very close to people in their personal space and becoming agitated. These behaviors and the incidents giving rise to the investigations were carefully evaluated, weighed, and considered by Wright-Mullings. They gave the principal reasonable cause for concern, and she was uneasy with the prospect of Respondent coming back to work at CRES. Other teachers and staff members at CRES also expressed discomfort regarding Respondent's odd and abnormal behaviors.3/ Pursuant to School Board Policy 3161--Fitness for Duty--and Article XXI, Section (2)(F), of the Collective Bargaining Agreement between the United Teachers of Dade Labor Union and the School Board ("UTD Contract"), Pina held a Conference for the Record ("CFR") with Respondent on April 11, 2018, to address concerns about his fitness for duty. Pet. Ex. 19. At the conference, Respondent was advised of the troubling nature of his behavior and conduct, and the need of the School Board to do a fitness for duty evaluation of him. Pet. Ex. 19. On April 16, 2018, Respondent was again advised of the basis for a fitness for duty evaluation in writing. He signed a release to have the results of that evaluation sent to Pina. Pet. Exs. 16 and 17. As permitted by School Board policy, Respondent reviewed and selected a licensed psychologist from a list provided to him. Thereafter, a request for an evaluation of Respondent was sent to the doctor he selected, Dr. Theodora "Teddy" Tarr, on April 17, 2018. Pet. Exs. 18 and 19. Dr. Tarr had two clinical sessions with Respondent. She also reviewed Respondent's work history at Miami-Dade County, as well as Respondent's prior written responses to the complaints at the elementary school. Respondent also completed an intake form and a self-inventory on certain issues that were of concern to the doctor, both of which were reviewed and considered by her. Pet. Ex. 20, p. 57. After an examination and testing of Respondent, Dr. Tarr prepared a confidential assessment report. In essence, her report concluded that Respondent was not fit for duty as a teacher. More specifically, the report from Dr. Tarr stated: Refer Mr. T.V. for therapy. He needs social skill training and further assessment. He is incapable or unwilling to correct negative behaviors evidencing poor communication skills for self-control. It is not advisable he return to a teaching environment without identifying inappropriate behaviors and correct boundary, communication and social skill issues. Mr. T.V. is not qualified to return to his position in the MDC School System due to poor insight, poor boundaries, difficulty communicating, and confusing body language. (Emphasis added). Pet. Ex. 20, p. 57. Dr. Tarr provided the report to Pina. Subsequently, Pina held another conference with Respondent on April 30, 2018. At the conference, it was explained to Respondent that he had the option to seek a second fitness medical opinion pursuant to the UTD Contract, and that he could take a medical leave of absence, resign, or retire. Pet. Ex. 21. Respondent was required to give Pina his decision by May 3, 2018. Respondent gave no response by the May 3, 2018, deadline. He also never sought a second medical opinion despite having the rest of the school year and summer months to do so. On August 1, 2018, Pina held another meeting with Respondent and advised him that since he had not exercised any of the options available to him, and based on the doctor's report and his conduct and actions to date, the School Board would be dismissing him at the School Board meeting of August 15, 2018. Pet. Exs. 22 and 23. On August 16, 2018, Respondent was sent a final memorandum informing him that he had been dismissed by the School Board. Pet. Ex. 25.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Miami-Dade County School Board upholding Tirso Valls' dismissal from employment with the School Board. DONE AND ENTERED this 12th day of March, 2019, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 12th day of March, 2019.
