The Issue Did Respondent, Yolie Bauduy, violate section 1012.795(1)(g), Florida Statutes (2018)?1 Did Respondent, Yolie Bauduy, violate section 1012.795(1)(j)? 1 All citations to the Florida Statutes are to the 2018 codification unless otherwise noted. Did Respondent, Yolie Bauduy, violate Florida Administrative Code Rule 6A-10.081(2)(a)1.?
Findings Of Fact Parties Petitioner, Richard Corcoran, is the Commissioner of Education. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Ms. Bauduy holds a Florida Educators Certificate covering the areas of Autism Spectrum Disorder, Elementary Education, English for Speakers of Other Languages (ESOL), Exceptional Student Education (ESE), and Middle Grades Integrated Curriculum. It is valid through June 30, 2025. Ms. Bauduy teaches at Gotha Middle School in the Orange County School District and did at the time of the events alleged in the Administrative Complaint. During the period during which the alleged acts occurred, Ms. Bauduy taught students with autism. She has served students with disabilities of Orange County as an educator in ESE programs for 16 years. She taught at Gotha Middle School for 14 of those 16 years. Other than discipline for the incidents that are the subject of this proceeding, the District has never disciplined Ms. Bauduy. The school has recognized Ms. Bauduy as an effective teacher. For instance, an evaluation resulting from seven days of in-class observation in November 2020 concluded that she was applying all four expected classroom strategies and behaviors. The Education Practices Commission has never disciplined Ms. Bauduy. Gotha Middle School and Ms. Bauduy's Class During the 2018-2019 school year, all of Ms. Bauduy's students had disabilities that required more assistance and support than needed by students in the general population. Because of their disabilities, Ms. Bauduy's students required a modified curriculum that was less rigorous than the standard curriculum. The modified curriculum included social, skills, personal skills, and independent function skills. Teaching those skills helps students learn to manage their behavior and become more independent. All of Ms. Bauduy's students had Individual Education Plans (IEP). These plans identify a student's disabilities, their effect, and behavior that may arise from them. They establish goals for the student in light of the student's disabilities. And they identify strategies for helping the students accomplish the established goals. The demands of teaching students with disabilities required additional staff in the classroom to assist Ms. Bauduy. The school determined that properly caring for and teaching the children required a three to one student teacher ratio. The students' IEPs also required this staffing ratio. For that reason, the school assigned two paraprofessionals to assist in Ms. Bauduy's class of ten people. This was in addition to Ms. Edoo, who was assigned to student E.K. one-on-one. Thus, the proper staffing complement for Ms. Bauduy's class was four adults. Throughout the 2018-2019 school year, Gotha Middle School experienced chronic staffing shortages. One paraprofessional position in Ms. Bauduy's class was vacant the entire year. The school engaged a long- term substitute. That person often did not show up for work. In those instances, the school sought, often unsuccessfully, to engage fill-ins from a temporary staffing agency. In addition, the school usually did not provide staff to cover the paraprofessionals' breaks and lunches. Throughout the year, Ms. Bauduy had to juggle staffing shortages as best she could. During the representative month of September 2018, Ms. Bauduy's class was short one adult seven full days and four partial days. On September 11, 2018, Ms. Bauduy's class was down two professionals. When the paraprofessional staff took their breaks or lunch periods, the staffing deficiencies worsened. Ms. Bauduy repeatedly advised the administration about the staffing deficiencies, sought assistance, and expressed her concerns about not complying with students' IEP requirements. Her communications included a September 5, 2018, email advising that a substitute had not arrived, a September 11 email forwarding an email from a paraprofessional advising she was not coming in, and a September 26 email advising that a substitute once again failed to arrive and asking for assistance. In January 2019, despite the chronic understaffing, the school transferred two students, T.M. and N.A., from other classrooms to Ms. Bauduy's class. These students' disabilities were more profound and required more supports than the other students. They were regular elopers, required diaper changes, and required individual nearly one-on-one prompting for tasks. Among other things, T.M.'s disabilities required having someone hold his hand during transitions. Placement of T.M. and N.A. in Ms. Bauduy's class was not appropriate. Ms. Bauduy continued sending emails expressing her concerns and frustrations about understaffing. She also repeatedly, without effect, sought to get the school to change mandatory meetings to her planning period or after school because the meetings caused her to leave the classroom and exacerbated the staffing problems. Between October 25, 2018, and March 4, 2019, Ms. Bauduy sent 17 emails requesting full staffing and advising of staff absences. Ms. Bauduay could not rely upon prompt responses when she called for assistance or additional staffing to put her room back in compliance with the required student/adult ratio. Sometimes she received a quick response. Sometimes no one came. Often there was a 20 to 30-minute delay before assistance arrived. Even when management responded to Ms. Bauduy's request for a schedule of when behavior staff would be available to support her students, management's response was conditional. For instance, Laura Fogarty, ESE Curriculum and Instruction Team Instructional Coach, conditioned the schedule of available staff that she provided as follows. Please remember, however, that this schedule is in a perfect world. The behavior support team's first priority is to respond to radio calls and have other responsibilities that don't always make it possible for them to be in your room for the times listed below. They may also have to leave to respond to a behavior call when they are in there. Below is the ideal, if everything goes right and there are no behavior calls or other areas that require their attention. The world in which Ms. Bauduy taught was neither perfect nor ideal. Ms. Bauduy's testimony about staffing difficulties and insufficient responses to requests for assistance differs from testimony of school representatives. Ms. Bauduy was more credible and persuasive than the school representatives. Four of the reasons for this judgment are Ms. Bauduy's sincere demeanor, documents such as emails and logs consistent with her testimony, the admission in Ms. Fogarty's email that even scheduled availability of support was not reliable, and the corroborating testimony of a paraprofessional who worked in Ms. Bauduy's room, Lauren Mueller. K.C. K.C. was a male sixth grade student in Ms. Bauduy's class. K.C.'s IEP specified that K.C. should always be supervised. It stated, "He requires continuous supervision as he is very impulsive and responds aggressively and or obscenely." K.C. also had a Behavioral Improvement Plan (BIP). It too noted a need for intensive intervention to address inappropriate touching of and advances toward female students. The BIP provided, among other things, "If outside the classroom, one on one supervision must be provided." The BIP went on to state that K.C.'s transitions out of the classroom should be limited to necessary transitions and that a staff member should provide one-on-one supervision during all transitions. Ms. Bauduy was aware of the contents of the IEP and BIP. At each day's end, Ms. Edoo usually escorted K.C. from class to the transportation loading area, after escorting her assigned student to the transportation area. This did not happen on September 11, 2018. This was one of the many days when Ms. Bauduy's room was short-staffed. Because of a vacant position and a paraprofessional not showing up, Ms. Bauduy was down to two adults, including herself, of the staff that should have been in the room. This excludes Ms. Edoo who was responsible for providing one-on- one care for a single student. The afternoon of September 11 the substitute paraprofessional was to escort the students, in shifts, to the transportation area. The substitute took a student to the transportation area and did not return. This left Ms. Bauduy the sole adult in the room, responsible both for getting the children to the transportation area and supervising students in the classroom. Ms. Edoo called Ms. Bauduy on the radio and said to release K.C. Ms. Bauduy thought that meant Ms. Edoo was returning to the classroom and would meet K.C. in the hall. Although her room had a telephone and a two-way radio, Ms. Bauduy knew from experience a response to a request for help would be slow, if there even was one. Faced with confounding choices, Ms. Bauduy explained to K.C. that she would release him to go directly down the hall to meet Ms. Edoo. K.C. did not go straight down the hall to Ms. Edoo, and Ms. Edoo was not in the hall. K.C. went to the bathroom that opened on the hall. A student, K.M., found K.C. laying naked, save for his socks, on the bathroom floor, masturbating. This scared and confused K.M. He went home and told his mother about the incident. She called the school. The next day a guidance counselor met with K.M. to discuss the incident and reassure him. Shortly after K.M. left for home, an ESE clerk, Elizabeth Elkholi, saw K.C. naked in the bathroom, through the open door. She called for Shantell Johnson, a behavior trainer. Ms. Johnson did not wish to enter the bathroom because K.C. was naked. A substitute, Stephen Harnishfeger, and Deputy Luna, a school resource officer, joined Ms. Elkholi and Ms. Johnson. Between them, these four adults kept K.C. in sight. K.C. got dressed in a stall. Ms. Johnson escorted him back to Ms. Bauduy's classroom. Ms. Bauduy was not aware of this activity until K.C. was returned to her room. K.C. could have left the school grounds during the period that he was unsupervised. Eventually the substitute reappeared and declared she was leaving for the day. Ms. Bauduy convinced the substitute to escort K.C. to the transportation loading area before leaving. The school suspended Ms. Bauduy for five days without pay for this incident. T.M. T.M. was a student on the autism spectrum that the school transferred to Ms. Bauduy's class in January. T.M.'s previous classroom, Ms. Franklin's, was adjacent to Ms. Bauduy's classroom. On February 25, 2019, the school had again failed to staff Ms. Bauduy's classroom in compliance with the requirements of her students' IEPs. That day the school required Ms. Bauduy to participate in an IEP meeting, scheduled for 30 minutes, during her planning period. The meeting took two hours, running through her lunch period and ending at 4:00 p.m. When Ms. Bauduy returned to the classroom, she realized none of her paraprofessionals had taken a break. So, she released them one at a time for a short break. While one paraprofessional was gone on break, the remaining one left the room with a student to go to the restroom and change a diaper. This left Ms. Bauduy alone with the students. At that time, Ms. Bauduy was providing directions to a group of students. She heard the door slam. She looked for T.M. and did not see him in the classroom. T.M. had slipped away from Ms. Bauduy's classroom out into the hall. He left through the classroom's only door. Ms. Bauduy immediately went to the doorway to look for him. She knew T.M. had a history of leaving the classroom but waiting just outside the door. She did not see him. Then Ms. Bauduy took a few steps outside the door of her classroom into the hall. To the left of Ms. Bauduy's classroom the hall met double doors just yards away that led to the outside and a nearby road. Ms. Bauduy was in the hall approximately 23 seconds seeking to ensure that T.M. had not gone to the left toward the double doors. During these 23 seconds there was no adult inside Ms. Bauduy's class room. She however was just feet from the only door. One of the students could have done something destructive or harmful. But the brief period of time that Ms. Bauduy was outside the classroom, her proximity to the door, and the very short distance she was from her students made that risk minimal. Ms. Bauduy saw the door to Classroom B104 close. This was T.M.'s former classroom, which was next to Ms. Bauduy's room. This reassured her that T.M. was safe. She ran back to her classroom. The students had spent the 23 seconds without incident. Then Ms. Bauduy called for assistance. A staff member came to return T.M. to Ms. Bauduy's room. When T.M. slipped away, Ms. Bauduy had no good choices. In the time it would take to call for assistance and wait for it to arrive, if it did, T.M. could have been out the doors and in the road. Ms. Bauduy's experience taught her that assistance was often slow to arrive and sometimes did not arrive at all. Stepping out in the hall to quickly see where T.M. went left the eight remaining students without direct adult supervision for 23 seconds. But Ms. Bauduy was just outside the only door out of the classroom. She made a reasonable choice, one that most reduced the risk of a bad outcome to T.M. and his classmates. The school suspended Ms. Bauduy for five days without pay because of this incident. F.O. F.O. was a student in Ms. Bauduy's class. F.O. was non-verbal and deaf. She was working on pre-academic skills. F.O. was a joyful and social student. She, however, was defiant. She did not like to be corrected. She wanted to be on her own, basically following her own schedule. When corrected, F.O. would shake her head, point her finger, and stick her tongue out. The school regularly delivered breakfast and lunch to the class. On September 11, 2019, F.O. ate breakfast around 10:00 a.m. After breakfast, F.O. and the other students had a short lesson and went to PE. After they returned to class, they had another short lesson. Afterwards, Ms. Bauduy gave the class another short break. Around 11:30 a.m., the lunch cart's arrival signaled the beginning of lunch to the class. The lunch service procedure began with placing meals on tables for students who could feed themselves. Then Ms. Bauduy and the paraprofessionals assisted students who needed help eating. F.O.'s lunch was placed in front of her. It was time for F.O. to pick up her toys and eat. She refused. Ms. Bauduy tried prompting F.O. several ways. Ms. Bauduy's efforts to persuade F.O. to put her toys up included gestures, pantomiming the desired actions, and modeling the actions by picking up some toys herself. This did not work. Ms. Bauduy took F.O. out of the classroom to see if a change in environment would help. Ms. Bauduy then took F.O. to the behavior specialist's classroom down the hall. But it was not staffed. They returned to Ms. Bauduy's classroom. There Ms. Bauduy tried to get F.O. to comply with simple directions like "put it down." F.O. would not respond. Also, F.O. continued to refuse to pick up her toys and eat lunch. Ms. Bauduy concluded that F.O.'s refusal to eat lunch was a defiance issue. Ms. Bauduy learned a behavior management strategy called "First – Then" in her applied behavior classes at the University of Central Florida. Ms. Bauduy kept a graphic depicting this strategy posted in her classroom. Other teachers and paraprofessionals in the school also used this strategy. It was a system where the "Then" was something the child wanted or wanted to do and the "First" was a task the child was resisting. After F.O. continued to play with toys and ignore her lunch. Ms. Bauduy decided to use the "First—Then" strategy by withholding F.O.'s lunch until she picked up her toys. She asked a paraprofessional, Ms. Lewis, to remove the food. Ms. Lewis refused. Ms. Bauduy then placed the lunch on a shelf so that other students would not eat it or play with it. Around 2:00 p.m., snack time, F.O. had put up her toys. Ms. Bauduy gave her the lunch. Ms. Bauduy's log for the day, sent home with each student each day, advised F.O.'s parents that F.O. would not listen or follow directions most of the day and that "lunch was delayed till she showed more compliance." Withholding lunch was not a proper use of the "First – Then" strategy. Meals are a regular part of the day and necessary for nutrition, although in this case the student repeatedly declined food. Withholding a meal, as opposed to withholding a treat, is not proper. Also, since F.O. was not interested in eating lunch, making lunch the "Then" was not a well-reasoned use of the strategy. Ms. Bauduy, however, did not withhold lunch as a punishment. But withholding lunch was not a reasonable behavior management strategy. The school suspended Ms. Bauduy for five days for this instance.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent, Yolie Bauduy, violated section 1012.795(1)(j), Florida Statutes, by violating Florida Administrative Code Rule 6A- 10.081(2)(a)1., and imposing a reprimand upon Respondent, Yolie Bauduy. DONE AND ENTERED this 24th day of November, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2021. Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether cause exists to terminate the Respondent's employment by the Pinellas County School Board based on the allegations set forth in the Superintendent’s letter dated May 6, 1997.
Findings Of Fact Kay Kennedy (Respondent) has been employed as a teacher by the Pinellas County School Board (Board) since October 3, 1977, under a continuing contract of employment pursuant to Section 321.36(4)(c), Florida Statutes. Since 1990, the Respondent has taught at Safety Harbor Middle School. By all credible accounts, the Respondent has been an effective and capable teacher throughout her career. The Test Review The Pinellas County School District administers a Comprehensive Test of Basic Skills (CTBS) test to middle school students. The CTBS test measures the skill level of individual students within their grade levels and is used to compare the District’s students to similiar students in other Florida school districts and in other states. The compiled math and language arts scores of each District school are published in the local newspaper to permit local school-by-school comparison. Individual student scores are not released. Teachers are encouraged by school officials to prepare students for the examination. The District provides review materials in math and language arts to each middle school. Teachers in each school review the material with students in the days immediately prior to administration of the test. Reviews may take as much as a full week of class time to complete. Teachers in subject areas other than math and language arts also provide subject matter review to students although the District provides no review materials for those review sessions. The Respondent has provided a general social studies review during the seven-year period she was employed as a geography teacher at Safety Harbor Middle School. Other teachers in non- math and non-language subject areas offer their own reviews. During the review period, the Respondent initiated discussions with her classes about general social studies topics. Because the District provides no materials, the Respondent was left to determine the topics for her review. In the 1996-97 school year, the Respondent taught five geography classes. She used the first period time as a planning period and taught her classes beginning in the second period. Teachers who had first period classes administered the 1997 CTBS test. Because the Respondent did not have a first period class, she was not involved in the administration of the 1997 CTBS test. After the test was completed, some of the Respondent’s students believed that in her review, the Respondent had given them the answers to the social studies section of the CTBS test. The students relayed their belief to parents. One student’s father, a principal at another Pinellas County School, was already concerned with the Respondent and had complained to her superiors about her teaching. He immediately contacted the Safety Harbor Middle School principal. There is no evidence that the Respondent’s teaching fails to meet minimum standards. To the contrary, the Respondent’s teaching evaluations appear to be completely acceptable. Shortly thereafter, the Safety Harbor principal also heard from another parent, and from a teacher who overheard students discussing the matter. The Safety Harbor principal contacted district officials and initiated an inquiry into the matter. Based upon the allegations, representatives of the school and the District interviewed the children, and came to the conclusion that the Respondent had provided answers to specific questions contained in the social studies section of the CTBS test. The CTBS test is kept under secure and locked conditions. Teachers receive test materials immediately prior to administration of the test. The materials are bar-coded and individually scanned to assure that all materials distributed are returned. Although the evidence is unclear as to how many versions of the CTBS test exist, multiple versions of the exam exist. It is reasonable to assume that the District would annually rotate versions of the test to prevent students from sharing test content with students who will be tested the next year. The Respondent administered the CTBS test during the 1994-95 school year. There is no evidence that she made or kept a copy of the test. There is no evidence that she made or kept any personal notes as to what was on the test. There is no evidence that the Respondent had access to the 1997 CTBS test. There is no evidence that the 1997 exam was the same test administered by the Respondent in 1994. There is no evidence that the Respondent had knowledge regarding the questions contained in the social studies section of the CTBS test. There is no evidence that the Respondent knew which version of the exam would be administered in the 1997 school year. There is no evidence that there is any benefit whatsoever to a teacher who provides test answers to a student. The results of the CTBS tests are not used in teacher performance evaluations, in matters related to salary, or in any other employment issues. There is no evidence that the Respondent’s students, having supposedly been told the answers to the social studies section of the CTBS test, scored higher than other students in the school who took the same exam and answered the same questions. The Respondent’s students were re-tested using another version of the CTBS social studies test after the allegations of improper test preparation were raised. There is no evidence that the Respondent’s students scored higher the first time they were tested than they did when they were re- tested. At the hearing, students acknowledged discussing the matter. At the time the initial accusations were made, some students discussed using the allegations as grounds to have the Respondent’s employment terminated for apparently personal reasons. Again, there is no evidence that the Respondent had access to the 1997 CTBS test, knew which version of the CTBS test would be administered, or had any personal gain to realize from providing answers to students. Absent any supporting evidence, the testimony of the students in this case is insufficient to establish that the Respondent provided specific answers to the social studies portion of the 1997 CTBS exam to her students. Assistance During the Exam At the time of the 1997 CTBS exam, R. M. was a student at Safety Harbor Middle School. He had not been in the school for very long, was not proficient at speaking English, and had never before taken an exam like the CTBS test. The Respondent was present during the time R. M. was taking the math portion of the CTBS test to momentarily relieve the teacher responsible for administration of the test. The Respondent saw R. M. filling in boxes on his test answer sheet and believed him to be doing so in a random manner known as “Christmas-treeing” the test. A student who does not know test answers may choose to randomly fill in the answer sheet in hopes that at least some of the guesses will be correct. The Respondent approached R. M. and advised him to work the problems instead of guessing. She worked a problem similar to those on the test to demonstrate how to perform the task. At the hearing, R. M.’s testimony regarding the incident was inconsistent. It is insufficient to establish that the Respondent provided answers to the math questions actually appearing on the test. Although the evidence fails to establish that the Respondent provided test answers to R. M., the provision of test assistance to R. M. during the examination was inappropriate. Working a demonstration problem for a student taking a standardized examination is improper, and is unfair to students who do not receive such assistance. At the hearing, the Respondent acknowledged that she should not have assisted R. M. with the exam. Prior Reprimands The May 6, 1997, letter states that the Respondent has “received four reprimands for leaving your classroom unsupervised, lack of judgment, kicking a student and misrepresenting the truth.” The evidence establishes that in 1990, the Board prosecuted the Respondent for such allegations and attempted to impose an unpaid three-day suspension. After an administrative hearing was held, the charges were dismissed. The prior allegations provide no basis for any current disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a Final Order reprimanding Kay Kennedy for providing assistance to a student during an examination and dismissing all remaining allegations set forth in the Superintendent's letter of May 6, 1997. DONE AND ENTERED this 23rd day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1998. COPIES FURNISHED: C. Wesley Bridges II, Esquire Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779 Mark Herdman, Esquire Herdman & Sakellarides, P. A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770-2942 Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner is entitled to a consumer’s certificate of exemption from sales and use tax.
Findings Of Fact Petitioner is a Florida not-for-profit corporation. At all material times, Petitioner has qualified as a Section 501(c)(3) organization under the Internal Revenue Code. Since March 1992, Petitioner has also held the sales and use tax exemption that it seeks in this case. Pursuant to a change in law requiring all exempt organizations to reapply, Petitioner submitted an Application for Consumer’s Certificate of Exemption dated February 1, 1997. By stipulation, the parties agree that, for the purpose of this case, the sole legal basis for the application is Section 212.08(7)(o), Florida Statutes, and, if Petitioner fails to prevail in this case, it may immediately file an application seeking the same exemption under another statute, such as Section 212.08(7)(n). Petitioner was incorporated in 1989. It was first incorporated in 1975, but its corporate status lapsed. Petitioner has been in operation for 40 years. In broadest terms, Petitioner’s purpose is to assist social-studies education in Florida. Petitioner’s major activities involve training teachers of social studies. The most important annual activity of Petitioner is to sponsor a statewide conference that gives social-studies teachers a chance to receive inservice training. This inservice training satisfies, in whole or in part, each teacher’s requirement to obtain inservice training credits in order to maintain her teaching certificate. Petitioner conducts the conference in October during inservice days on which public-school teachers statewide are generally relieved from classroom duties. Between 600 and 1200 teachers participate in this annual conference. The conference runs two days, but Petitioner offers preconference institutes for a day or two prior to the start of the conference. These institutes, which are held at the same location as the conference, provide social-studies teachers with more specialized training in social studies. Petitioner also assists four regional affiliates in conducting inservice training to social-studies teachers. These affiliates are the Southwest Florida Coalition for the Social Studies, Big Bend Council for the Social Studies, Central Florida Coalition for the Social Studies, and Northeast Florida Council for the Social Studies. Petitioner works with various organizations, including the Florida Department of Education, ensuring that these organizations are aware of the interests of social- studies teachers and that the teachers are aware of the activities of these organizations. Petitioner quarterly publishes Trends in Social Studies, which provides useful, current information to social- studies teachers. Petitioner sells advertising space in the journal, mostly to educational publishers. Petitioner provides free space to the Florida Department of Education, state universities, state community colleges, the Holocaust Center, and African-American educational centers. Partly through the use of an endowment fund, Petitioner also provides additional funding for the development of social-studies teachers and the promotion of social-studies education. Petitioner provides awards, including small monetary sums, for exceptional social-studies teachers in Florida, and recognizes, at the annual conference, the outstanding social-studies teacher from each of Florida’s 67 districts. Petitioner’s major sources of income are membership fees and conference registration fees. Individual teachers pay membership fees. Conference registration fees are paid by checks from individual attendees, school districts, archdioceses, and the State of Florida. Educational vendors pay Petitioner fees for the privilege of showing their products and services at the conference. Vendors’ fees typically make up the margin by which Petitioner’s revenues exceed expenses for the conference. Petitioner does not have any paid employees. Dr. Theron Trimble, who started teaching social studies in Florida in 1966, is the executive director of Petitioner and has been associated with Petitioner for 30 years. Dr. Trimble’s full-time employment is in the Collier County School District, where he is director of Fulltime Equivalents and Resource Allocations. All persons working for Petitioner are, like Dr. Trimble, volunteers with full-time educational employment throughout Florida. Petitioner pays small sums to instructors or presenters at the annual conference and pre- conference institutes, but these payments are strictly for their services in conducting their seminars. Petitioner intends to continue helping social- studies teachers meet students’ changing needs in social- studies education. For example, Petitioner recently sponsored an inservice program designed to help teachers incorporate computers in social-studies education. At a time of reduced state involvement, Petitioner has tried to fill the gaps in funding and curriculum control. Petitioner’s funding efforts are directed toward schools and teachers, rather than school districts. Three years ago, Petitioner started an endowment fund to establish a long-term mini-grant program for social- studies teachers. According to the Webster’s New Collegiate Dictionary, the first definition of “office” is “a special duty, charge, or position conferred by an exercise of governmental authority and for a public purpose: a position of authority to exercise a public function and to receive whatever emoluments may belong to it <hold public ~> [and] a position of responsibility or some degree of executive authority.” The fourth definition is “something that one ought to do or must do: an assigned or assumed duty, task, or role [and] the proper or customary action of something: FUNCTION.” The fifth definition includes: “a place in which the functions (as consulting, record keeping, clerical work) of a public officer are performed [and] the directing headquarters of an enterprise or organization.” The last definition is “a major administrative unit in some governments <British Foreign Office [and] a subdivision of some government departments <Patent Offices>.” According to the American Heritage Dictionary of the English Language, the second and third definitions of “office” are “[a] duty or function assigned to or assumed by someone: “the maternal office was supplied by my aunt (Gibbon) [and] “[a] position of authority, duty, or trust given to a person, as in a government, corporation, or other organization: the office of vice president.” However, the fourth definition is: “[a]ny of the branches of the Federal government of the United States ranking just below the departments [and a] major executive division of the British national government, often headed by a cabinet minister.” And the fifth and seventh definitions are “[a] public position: seek office" [and] [o]ften plural[; a]n Act performed for another, usually beneficial: a favor: 'The projected duel . . . was halted by the offices of friends on both sides.' (Katherine Anne Porter).” Webster’s second and third definitions of “administration” are “performance of executive duties: MANAGEMENT [and] the execution of public affairs as distinguished from policymaking.” The fourth definition includes “a governmental agency or board.” American Heritage’s first definition of “administration” is “[t]he management of affairs.” However, the second definition is “[t]he activity of a sovereign state in the exercise of its powers or duties.” The fourth definition is “[t]he management of any institution, public or private.”
Recommendation It is RECOMMENDED that the Department of Revenue enter a final order granting Petitioner’s application for a consumer’s certificate of exemption from sales and use tax. DONE AND ENTERED this 10th day of April, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 10th day of April, 1998. COPIES FURNISHED: Dr. Theron Trimble 3710 Estey Avenue Naples, Florida 34104 Kevin J. O’Donnell Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Linda Lettera, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Larry Fuchs, Executive Director Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue The issues to be determined in this proceeding are whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2013), and Florida Administrative Code Rule 6A-10.081(3)(a) and (e), as alleged in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent holds Florida Educator's Certificate 1011542, covering the areas of Elementary Education and Social Science. Her certificate is valid through June 30, 2018. At all times relevant to these proceedings, Respondent taught sixth-grade social studies at Bob Graham Education Center (Bob Graham) in the Miami-Dade County School District (the School District). Respondent was employed by the School District for approximately eight years. This case involves events that happened while a substitute teacher was in charge of Respondent's class, and Respondent's reaction to those events upon her return to school. Respondent was absent from school on Tuesday, November 26, 2013, and left lesson plans for the substitute teacher handling her classes. The substitute teacher assigned to her classroom was a young male teacher. The substitute teacher gave the students an assignment to complete, and told them that once all of the students in the class completed their work, they could have free time. During the free time, students engaged in a variety of activities typical of sixth graders. Some played games on the computers in the room, some watched prank videos played by the substitute, some danced, some sat or stood on desks, some wrote on the smart board, and some played with the cheerleading pom poms stored in the room. At least one student used her phone to take pictures and gave her phone to another student to take a picture of girls standing on the desks. Apparently one of the girls, who did not testify, posted one or more of the pictures on social media. The social media posts were seen by Respondent. The students who testified recognized that their behavior that day was not in keeping with the strict behavioral standards maintained at Bob Graham. One student described the prank videos as not appropriate for school, and another acknowledged that use of cell phones during the day was prohibited. No one maintained that it would be appropriate to stand on a desk. As affirmed by one student, the substitute lost control of the classroom. When Respondent returned to school the following day, she became aware of what had happened in her classroom that Tuesday. The more credible evidence supports the conclusion that she saw the pictures posted on social media. While Respondent claimed that her room was in disarray when she returned, each of the students who testified denied that they left the room in that condition. Only three students testified, C.C., S.G., and N.C., and these students were all students in Respondent's second period class. It is possible that the room was in disarray based on the behavior of students in other class periods. Respondent was unhappy with the condition of her room and with the reported behavior of her students during her absence. N.C. testified that on Wednesday morning, before the second period class, word had circulated around school that Ms. Rosa knew what they had done in class the day before, so the students believed that they were going to get in trouble. When class began, Ms. Rosa told the students that she was upset with their behavior from the day before. Descriptions from the students varied, one describing her as acting like she was happy they were all going to get in trouble, and threatening them all with detentions or in-school suspensions, while another student described her as yelling at the class as a whole, but not yelling at individual students. Whether she actually raised her voice at them or whether the students were reacting to the message she was delivering is not clear. In any event, the more persuasive evidence indicates that Respondent called each child's name and asked what they had done the day before. After hearing from each student, she had some of the students line up and go to the principal's office. How many students actually went to the office is also unclear: the description ranged from all but three to only a few. At the office, the students met with Assistant Principal Jesus Mesa, who apparently issued in-school suspensions to some and detentions to others.1/ These were students who had never been in significant trouble before. Getting an in-school suspension meant that they would not be permitted to participate in clubs or remain in the National Junior Honor Society. It appeared that this consequence of the punishment they received is what upset the students the most. There were reports that Ms. Rosa used the words "stupid," and "ratched," as well as "shit" while she was talking to the students. N.C. testified that she told the class as a whole that they were stupid for thinking she would not find out what happened. There was no testimony that she described any one student as stupid. All three students testified that she used the term "ratched," although one of them acknowledged that his written statement to that effect was based upon what others told him, as opposed to hearing the term himself. None of the students knew what the term meant, other than it had a negative connotation, and none identified the context in which the word was used. The principal, Yecenia Martinez-Lopez, described the term as meaning someone was "low class" or trash. Urbandictionary.com, referred to by Ms. Rosa in Respondent's Exhibit 1, defines the word as being slang for "wretched." With respect to the use of the word "shit," C.C. did not testify that the word was used. S.G. stated that he had heard Respondent use the term, but did not testify that she used it on the day in question, and said it had never been directed toward him. He did not identify when or to whom the word was used. Similarly, N.C. testified that Respondent had used the term, but also did not give any context for its use and her written statements did not reference the term. N.C. claimed that she just remembered the use of the term while reading her statements during the hearing. Given that the incident occurred more than four years before her testimony, this claim is not plausible or persuasive. No student testified that they were embarrassed or humiliated by Respondent's behavior that day. One student described Respondent's behavior as "rude and unacceptable," and another indicated that she was scared about explaining to her parents the possibility that she would not be able to participate in clubs. The more persuasive testimony was that students felt the punishment they received (ironically, from Mr. Mesa as opposed to Respondent) was out of proportion for what happened, and were concerned with the effect an in-school suspension would have on their ability to participate in extracurricular activities. Several students went home and complained to their parents about what happened that day. Whether they were complaining about Ms. Rosa's treatment of them, about the punishment they received, or about being reported to the front office is not clear. Likewise, the reaction of the various parents is also somewhat unclear. N.C. testified that she knew the parents were talking amongst themselves, and that the parents thought that there should be consequences for the students' behavior, but that an in-school suspension was a whole other step. From N.C.'s view, the parents' concern went from concern about the level of punishment to a complaint about Ms. Rosa. What any of the parents actually thought or said remains a mystery, because no parent testified at hearing. However, on Monday, December 2, 2013, following the Thanksgiving weekend, approximately 20 parents of students in Respondent's class went to the school and met with the principal, Ms. Martinez-Lopez, demanding that their students be removed from Ms. Rosa's class. As a result of their complaints, which are identified only by hearsay in this proceeding, the punishment for some, if not all, of the students affected was downgraded to a detention. Ms. Martinez-Lopez contacted the School District's north region office to report the incident. Ms. Martinez-Lopez was directed that the matter should be handled as an administrative review, meaning she should investigate it as opposed to having it investigated by the School District, and forward her findings to the School District. Ms. Martinez-Lopez collected statements from the students in Respondent's class and prepared a report of her findings. As a result of her investigation, Respondent was issued a reprimand, and moved from teaching sixth grade to teaching second grade. No other discipline was imposed. There are two sets of statements related to this incident: one set collected by Ms. Martinez-Lopez from December 4, 2013, through December 11, 2013, and a second set collected by the Department of Education on October 10, 2014. There was no evidence presented regarding the method Ms. Martinez-Lopez used to collect the first set of statements. With respect to the second set of statements, S.G. testified that multiple students were in the same room filling out the statement at the same time. N.C. testified that she, C.C., and S.G. were called out of their English class and went to the office together, but were not in the room together when they made the statements, and did not talk to each other about what was happening. S.G.'s description of the events was the more credible of the two. Respondent is no longer teaching in the School District. She took a leave of absence after the 2013-2014 school year, and then left the School District to take a position with United Teachers of Dade. She denies that she used profanity toward the students in her class, and contends that the events as described by the students did not happen. She does acknowledge asking each student what they had done the day before and having many of the students go to the principal's office.2/ Respondent was clearly upset by the events that took place in her classroom and expressed her displeasure to her students. There is persuasive evidence that she told them in no uncertain terms that there would be punishment imposed for their behavior. There is not clear convincing evidence that Respondent embarrassed, mocked, and disparaged students, or directed profanity toward them. Likewise, it was not demonstrated by clear and convincing evidence that Respondent's conduct reduced her effectiveness as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission dismiss the Administrative Complaint. DONE AND ENTERED this 30th day of March, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2018.
Findings Of Fact The Respondent, Mary L. Martin, has been a Gadsden County school teacher with a continuing contract of employment since August 18, 1967. For almost all of her teaching career, the Respondent has been a full-time elementary school teacher. During a number of her years teaching, the Respondent also taught some evening adult education courses, but she has not done so since the 1983/1984 school year. Numbered paragraph 4 of the Respondent's Continuing Contract of Employment with the School Board provides in pertinent part: The County Board may, upon recommendation of the County Superintendent, transfer and assign the Teacher to a similar position in any other school of the county, provided that the duties shall be similar to the duties originally assigned and the salary shall be in accordance with the salary schedule. Gadsden County School Board Rule 4.113, provides in pertinent part: TRANSFERS.--The assignment of an employee shall be the responsibility of the Board upon recommendations of the Superintendent. Employees who desire a change in assignment involving a transfer to another school or position shall file a written statement of such desire . . .. * * * (2) In order to meet the staffing needs of the district, it is occasionally necessary to transfer an employee involuntarily. Such transfer shall be effective after consultation with and notice to the employee involved. Article VII, Section C., of the Collective Bargaining between the School Board and the Gadsden County Classroom Teachers Association in effect from 1992 through 1995, governing Transfer and Reassignment, provides in pertinent part: The Board and the GCCTA recognize that the transfer of employees shall be the responsibility of the Board upon recommendation of the Superintendent. Any teacher who desires a change in grade and/or subject assignment in the following year or who desires to transfer to another school in the following year shall file . . . a written request to that effect . . .. * * * In making transfers, the Board will first review requests of volunteers. . . .. During the 1991/1992 and 1992/1993 school years, the Respondent was teaching third grade at the Stewart Street Elementary School in Quincy. During those years, the Respondent suffered from a certain amount of stress, and she made her complaints of stress known to her principal, Douglas Black, as well as to some of her coworkers and, during the spring of 1992, to Harold Henderson, who was a member of the School Board at the time, but who also was running for election as School Superintendent. Henderson won the election and became the Gadsden County School Superintendent. From approximately the time that Harold Henderson became School Superintendent, Douglas Black began asking him to transfer the Respondent to another school in order to resolve certain difficulties he was having at the school that involved the Respondent. One less than satisfactory aspect of the Respondent's performance as an elementary school classroom teacher in recent years was that she frequently was tardy. Out of 196 work days in the school year, the Respondent was tardy 64 days in 1990/1991, 60 days in 1991/1992, and 105 days in 1992/1993. Since she had the key to her classroom, children in her class would have to wait in the hall for her to arrive, and other teachers would have to leave their classrooms unattended to either monitor the children in the hallway or to get a master key to let the children into the Respondent's classroom. The tardiness of course came to Black's attention, and conflicts developed between the Respondent and Black when Black tried to enforce his policies against tardiness. (These conflicts certainly also contributed to the Respondent's stress.) The Superintendent denied Black's initial requests that the Respondent be transferred, but major new problems developed during one lunch period in February, 1993, when a fellow teacher, Juanita Austin, attempted to prevent children from the Respondent's class from cutting in front of Austin's class in the lunch line. Accusations of misconduct flew between the Respondent and Austin, and at least the children from the Respondent's class became embroiled in the controversy. Unable to resolve the problem between the two teachers any other way, Black was reduced to having change the lunch schedules of the two teacher's classes. But, when he instructed Austin to take her class to lunch earlier than the Respondent's, the Respondent accused Black of favoritism. The principal thought that he was doing the best he could to deal with the problems the two teachers were having and felt that the Respondent was being obstinate and difficult in opposing his proposed solution to the problem. As a result of the lunchroom dispute and its aftermath, all three became embroiled in ongoing disputes and arguments that were disruptive and that detracted from their performance of their assigned work. In addition, the Respondent began to accuse Black of other misconduct, including the alleged use of vulgar language. 1/ The situation was brought to the attention of the Superintendent and his staff. By the end of the 1992/1993 school year, Superintendent Henderson decided that it would be best for all concerned if he transferred the Respondent out of Stewart Street Elementary. He approached Black and confirmed that Black still was interested in having the Respondent transferred. He had Black put the request in writing. Black put his request for the transfer in writing on June 3, 1993. The next day, Superintendent Henderson formally granted the request in writing and initiated the mechanics of a lateral transfer at the same salary as for her previous position as elementary school teacher. The first step the Superintendent's staff had to take to implement the transfer was to locate a position to which to transfer the Respondent. The staff was able to identify an opening in its Adult Education Program for a teacher to provide education services at the adult mental health services center operated by Apalachee Community Human Services at a facility near the Gadsden Memorial Hospital. There was no evidence of any other teachers volunteering to transfer to this position, and no special certifications were required for the position so that the Respondent's certifications for the position fully qualified her for the job. (As noted, she had taught in the School Board's adult education program in the past.) When the opening was brought to the Superintendent's attention, he approved it. The new position would entail only two or three hours of actual classroom teaching a day, and class size would average only approximately 15 students per class, instead of approximately 30 elementary school children in each of the Respondent's elementary school classes. The Superintendent felt those differences between the two positions would help reduce the Respondent's job stress. In addition, in the new position, the Respondent would work much more independently than as an elementary school teacher. No School Board supervisors or administrators are housed at the adult mental health services center, and the Respondent would not be monitored very closely. Since, during the course of a normal work day, the Respondent would encounter no School Board personnel other than possible the two part-time teachers, the Superintendent felt that the new position would help minimize the personality conflicts the Respondent was encountering at Stewart Street Elementary. Finally, if the Respondent is tardy for class in the new position, it would not cause the same kinds of discipline and administrative problems as it did at Stewart Street Elementary. The School Board would not even monitor the Respondent for attendance and timeliness at the adult mental health services center, which the Superintendent felt also would serve to reduce the Respondent's job stress. The preliminary steps having been taken, the Superintendent made the transfer official by including it in a July 20, 1993, list of recommended transfers to be presented to the School Board for consideration at its July 27, 1993, meeting. Meanwhile, the Assistant Superintendent, Corbin Scott, telephoned the Respondent and informed her the next day that the transfer had been recommended. The Respondent objected to the transfer. The transfer was considered at the July 27, 1993, meeting of the School Board. The Respondent appeared at the meeting and spoke in opposition to the transfer. Over the Respondent's objection, the School Board voted to transfer the Respondent, as recommended by the Superintendent, effective August 9, 1993. The Respondent's salary in the new position is the same as for her previous position as elementary school teacher. At her new position, the Respondent's "students" actually are clients of the mental health services center. Most suffer from a mental or emotional condition that debilitates them in some way and makes it difficult for them to achieve academically; some also suffer from drug or alcohol dependence. Based on the evidence, there does not seem to be much semblance of continuity in the course of instruction the Respondent is able to give. There does not necessarily seem to be any educational logic or continuity to when they begin the mental health center's education program or when they discontinue it (sometimes when they destabilize mentally and have to be institutionalized.) When students are "enrolled," neither the Respondent nor the Gadsden County School Board seems to have any control over whether the "students" attend the classes offered to them; control over is left to the mental health services center. Nor does the Respondent have any real control over her "students" while they are in class with her. While "class" is in session, the "students" are free to do as they choose. They can pay attention or ignore the Respondent, sit down or stand up, and come or go as they choose. The Respondent is instructed not to attempt to discipline the "students" for not attending to and participating in class, or to attempt to require them to attend to or participate in class, primarily because there is the risk that the Respondent's actions could cause them to destabilize while they are in class with the Respondent. The Respondent's new position as a teacher at the adult mental health services center certainly is not identical to her former position as an elementary school teacher. In some ways, the positions are similar, but there also are significant differences between the two positions. Whether the two positions are "similar" for purposes of this case is a mixed question of both fact and law. There was no direct testimony or evidence on the question whether the Respondent's new position as a teacher at the adult mental health services center has the same "professional prestige" as the position of elementary school teacher. The answer to the question has to be inferred from evidence as to the nature of the two positions. It is found that, as compared to the elementary school teaching position the Respondent had, the adult education teaching position to which the Respondent was transferred does not have "similar professional prestige."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Gadsden County enter a final order: (1) either reinstating the Respondent, Mary L. Martin, to her former position as elementary school teacher at Stewart Street Elementary School or transferring her to a similar position at the same salary; but (2) denying her claim for the award of attorney fees and costs. RECOMMENDED this 28th day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1994.
Findings Of Fact During October, 1980, the staff of Polk Community College prepared a cost analysis for the 1979-80 school year in accordance with requirements imposed by the State Board of Education. One of the purposes of this annual cost analysis is to allow comparison of costs among community colleges. The cost analysis for the 1979-80 school year indicated that Polk Community College had high instructional costs per full-time student in comparison to other community colleges. The District Board of Trustees of Polk Community College accordingly requested that the college staff conduct further studies to examine the cost effectiveness of the instructional program. These further studies revealed that Polk Community College employs more full-time instructors in various academic fields than there are classes available for the instructors to teach. This situation is the apparent result of a shift in student demand. The social science grouping of academic subjects is among those which has been overstaffed with instructional personnel at Polk Community College in recent years. When the number of instructional personnel available to teach in the social science area is considered against an optimum class size of thirty- five students and compared to the number of students who actually took courses in a social science area, it is apparent that the social science grouping had 2.8 more faculty members for the academic year which began in September, 1977, than were needed. For the academic year which began in September, 1978, the social science area was overstaffed by 2.9 instructors. For 1979 and 1980, the area was overstaffed by 3.5 and 3.7 instructors respectively. Projections for the 1981 academic year indicate that the social science grouping will again be overstaffed by 3.7 instructors. The Sociology Department within the social science grouping has been consistently overstaffed since the academic year which began in September, 1977. For the academic year which began in September, 1980, the sociology Department was overstaffed by 1.1 instructors, and projections indicate that the same overstaffing will occur for the full academic year which began in September, 1981. The Political science/American studies Department within the social science grouping has been consistently overstaffed by 1.4 to 1.8 instructors since the academic year which began in September, 1977. Overstaffing of instructional personnel such as has consistently occurred in the sociology and Political Science/American studies Departments results in several inefficiencies. In order that instructional personnel can carry course loads as required by law, it is necessary to allow some courses to be taught with fewer students than is considered efficient. Alternatively, faculty members are given special projects to complete in lieu of teaching a course. These special studies have very little value to the community college. Furthermore, by maintaining excessive instructional staffs to teach academic subjects where student demand is decreasing, the college is unable to hire instructional personnel to teach subject areas where student demand is increasing. At Polk Community College, there has been increased student demand for courses in data processing. The college administration desires to reallocate its resources to provide more faculty members to teach data processing courses rather than courses in sociology and political science for which student demands have decreased. The administration has accordingly recommended to the college's District Board of Trustees that one sociology instructor and one political science/American studies instructor be terminated. The Respondent, Larry L. Roush, is a sociology instructor at Polk Community College. The college administration has recommended that his employment be terminated due to the overstaffing in the Sociology Department. In making this recommendation, the administration considered the following factors: cost effectiveness, demand for courses and future curriculum needs, efficiency, level of degree, versatility, field, length of service, and type of contract. Mr. Roush was evaluated by the administration vis-a-vis other sociology instructors in these areas. All of the sociology instructors are on continuing contract status and have been employed at the community college for many years. Supervisory and student evaluations of the sociology instructors, including Mr. Roush, are not conclusive. Each of the instructors has received favorable evaluations, and differentials among them are neither consistent nor so disparate as to be significant. The administration contends that Roush is the least cost effective of the sociology instructors because since the academic year which began in September, 1977, he has had more weak or cancelled sections than the other instructors. Weak sections are those classified as having fewer than fifteen students. Cancelled classes are those for which there was so little interest that the scheduled course was cancelled. A "weak and cancelled section matrix" is not a valid means of determining the cost effectiveness of an instructor. Instructors at Polk Community College have never been advised that weak or cancelled classes would be used in this manner. Furthermore, the fact that a class runs weak, or is required to be cancelled, can be the result of matters which reflect favorably upon an instructor. For example, if an instructor is asked, or through his own initiative seeks, to develop an experimental class, student demand for it may be low. Furthermore, if an instructor teaches courses beyond the introductory sort, there is likely to be less demand for the courses. The Respondent Roush, for example, taught a new sociology course during the academic years which began in September, 1977, and September, 1978. While student demand was light, that does not reflect upon the validity of his effort to develop the course. He requested that the course be cancelled due to the light demand for the academic year which commenced September, 1978. He was requested, however, by the administration to offer the course. If this single course which the Respondent taught during several academic sessions is deleted from consideration as a weak and cancelled section, he would have the least weak and cancelled classes of any instructor in the Sociology Department. In addition to the fact that counting weak and cancelled sections does not necessarily reflect unfavorably upon an instructor, the existence of weak and cancelled sections can be the result of factors totally beyond the instructor's control. The time of day, for example, that a course is offered can have a dramatic impact on whether the course is in high or slight demand. The administration of Polk Community College develops schedules for faculty members. Instructors do not develop their own schedules. The administration has contended that the Respondent Roush has the weakest educational qualifications of instructors in the Sociology Department because he holds a master's degree while the other instructors hold doctorates. While it is true that the ultimate degree obtained by the Respondent Roush is not so lofty as that obtained by his cohorts, it affirmatively appears that the Respondent Roush has considerably more hours directly in the substantive area of sociology than do the others. Thus, while he may be considered less qualified than the others generally, he is more qualified to teach the specific courses that he and the others have been called upon to teach. The administration has asserted that the Respondent Roush is the least efficient and versatile instructor in the Sociology Department because he has pursued fewer continuing education or seminar type programs than have the other two sociology instructors. While it is true that the Respondent Roush has not requested funds or leave time to attend educational conferences to the extent that his cohorts have, it does not appear that this reflects adversely upon his qualifications. Most of the outside education activities that his cohorts have attended have been in the nature of conventions which may not reflect at all upon their qualifications. The Petitioner has conceded that the only factors leading to the recommendation to terminate the employment of Roush were cost effectiveness based upon the number of weak and cancelled courses that he has taught, his efficiency and versatility as demonstrated by his not requesting funds or leave time to attend outside educational activities, and the fact that he has a lesser degree than do his cohorts. The Petitioner has failed to establish that Roush is less able than his cohorts based on these factors. Furthermore, it appears that the Respondent Roush is qualified to teach courses in economics, cultural anthropology, and American studies. The Petitioner has not established that there is no need for additional instructors in these areas, and it affirmatively appears that some sections in these areas have been taught as "overload" courses. Overload courses are taught under circumstances where there are not sufficient instructors available on a regular basis to teach them. The Respondent, Carrie Mae Oldham, is a political science instructor at Polk Community College. The college administration has recommended that her employment be terminated due to the overstaffing in the Political Science/American Studies Department. The administration considered the same factors in making this recommendation as were considered in connection with the Respondent Roush. Mrs. Oldham was evaluated vis-a-vis other political science instructors in the areas of cost effectiveness, demand for courses and future curriculum needs, efficiency, level of degree, versatility, field, length of service and type of contract. The administration determined that she was the weakest in the areas of cost effectiveness, demand for courses and future curriculum needs, and level of degree. She was not considered weaker than her peers in the other areas. All of the political science instructors are on continuing contract, and have been employed at the college for a number of years. Each has received favorable evaluations and differentials in their evaluations are neither consistent nor so disparate as to be significant. Mrs. Oldham has engaged in numerous continuing education type programs and has been very active in the community. She would appear superior to her cohorts in those areas. The administration evaluated Oldham's cost effectiveness based upon the same weak and cancelled class analysis that was applied to the Respondent Roush. Since the academic year which began in September, 1977, Oldham has the highest number of weak and cancelled class sections of instructors in her department. Use of this analysis to consider cost effectiveness of an instructor is inappropriate because of the same general deficiencies of such an analysis discussed with respect to the Respondent Roush. The administration contends that Oldham is the weakest political science instructor when demand for courses and future curriculum needs are considered because her primary area is American Studies, and there has been a dramatic decrease in demand for American studies courses. This contention is not supported by the evidence. Mrs. Oldham is qualified to teach a broad spectrum of political science courses, plus courses in several other areas: lawyer's assistance courses, United States history, criminal justice, black studies, geography, and psychology of self. It has not been demonstrated that there are no courses in these other areas available to be taught by Mrs. Oldham. Oldham has taken the fewest academic courses of instructors in the political Science/American Studies Department. She has received a Master of Arts degree. All of her cohorts have taken courses beyond the masters level or obtained more advanced degrees. Given the facts that Mrs. Oldham has considerable educational experience as a teacher and has actively pursued continuing education courses, the level of her academic background is not a significant factor. Both Respondents have contended that inappropriate factors were considered by the administration in recommending that they be terminated. They contend that the reasons given by the administration are a subterfuge being used in order to get rid of the Respondents for inappropriate reasons. These contentions are not supported by the evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, hereby RECOMMENDED: That the District Board of Trustees of Polk Community College enter a final order rejecting the recommendation that the Respondent, Larry L. Roush, be terminated from his position as an instructor at the community college. That the District Board of Trustees of Polk Community College enter a final order rejecting the recommendation that the Respondent, Carrie Mae Oldham, be terminated from her position as an instructor at the community college. RECOMMENDED this 24th day of July, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1981. COPIES FURNISHED: Donald Wilson, Jr., Esquire Boswell, Boswell and Conner Post Office Box 1578 Bartow, Florida 33830 Jack T. Edmund, Esquire Edmund and McDaniel Post Office Box 226 Bartow, Florida 33830 Jesse C. Barber, Esquire One Scenic Central Building Suite 202 Lake Wales, Florida 33853 Mr. Frederick T. Lenfestey President, Polk Community College Winter Haven, Florida 33880 ================================================================= AGENCY FINAL ORDERS ================================================================= POLK COMMUNITY COLLEGE DISTRICT BOARD OF TRUSTEES POLK COMMUNITY COLLEGE and the DISTRICT BOARD OF TRUSTEES, Petitioner, vs. DOAH CASE NO. 81-635 LARRY L. ROUSH, Respondent. /
The Issue The issue for consideration was whether the Respondent's teacher's certificate in elementary education and middle school social studies should be disciplined because of the misconduct alleged in the Administrative Complaint.
Findings Of Fact At all times pertinent to the issues herein, Petitioner was the state official responsible for the licensing and regulation of school teachers in Florida. Respondent, Virginia R. Purdy, was licensed as an elementary school and middle school social sciences teacher in Florida under certificate # 265007, issued on May 12, 1984, and which expired on June 30, 1989. During the school year 1988 - 1989, Respondent was employed as a social studies teacher for the 6th grade at W. D. Suggs Middle School in Bradenton, Florida. She had worked there as a teacher for approximately 14 years. Over the latter years of her tenure at Suggs, Respondent was involved in repeated incidents of improper use of alcohol, but under the prior administration, little if any corrective action was taken. However, with the arrival of Judy Bills as Principal in January, 1988, closer attention was paid to the Respondent's performance. Ms. Bills' preliminary efforts here aimed at assisting Respondent to seek professional help for her alcohol problem. At first, Respondent resisted any outside assistance. However, her performance continued to deteriorate. She frequently appeared in class in a disorganized manner, having difficulty standing erect, and demonstrating erratic and emotional behavior. Review of Respondent's record book revealed she failed to give her students any scores upon which the end of grading period grade could be based. She frequently failed to prepare lesson plans for her own use or the use of substitute teachers called in to replace her when she was absent. In that regard, during that school year she was absent 45 days, of which 31 were for hospitalization in the Genesis program as a result of her alcohol problem. In addition, she routinely failed to call in in advance of her absences which is a requirement by school policy. Her teaching performance was erratic and she frequently strongly smelled of alcohol. She routinely failed to take control in her classroom and provide the appropriate leadership to her students. As a result, the students could not and did not have the appropriate course materials presented, and she was, in addition, an unsatisfactory role model. Contrary to the school's rules, she frequently transported students in her private automobile to her home for swim parties. This is prohibited by the school due to the potential liability problems increased, in Respondent's case, by her alcohol problem. Also, in contravention of good teaching practices, she treated her students as her equals, allowing them to comb her hair, polish her nails, and rub her back in class. While she related well to her students and, for the mcst part, they loved her, she did not maintain an appropriate teacher-student relationship with them. On at least two occasions during that year, she failed to attend parent conferences, explaining that she had to do lesson planning. This was no justification and the evidence shows she frequently failed to do that in any case. On one occasion, Ms. Bills had to relieve Respondent of her duties because of her confusion and disorganization in class. At that time, Respondent claimed she had merely lost her contact lenses, but because she was inebriated and in no condition to drive, another teacher had to drive her home. On another occasion, Ms. Bills went to Respondent's classroom 15 minutes after the start of the class period to find Respondent had not yet begun teaching. She was still taking roll and doing preliminary matters. On the morning of September 13, 1989, Respondent had a conference with a parent. After the conference, at which Respondent was loud and disoriented and comported herself inappropriately in both action and comments, Ms. Bills, consistent with prior warnings given the Respondent, had her taken for a blood alcohol test to a lab of the Respondent's choosing. The result of that test, done on blood taken at 9:00 AM that morning, indicated a blood alcohol level of 0.420 on a test wherein an alcohol level greater than .200 is considered clinically toxic. No traces of drugs were found on this occasion. There is no direct evidence to establish that Respondent drank alcoholic beverages on school property. Evidence of an arrest for DWI, and of an admitted overdose of valium and wine are considered not probative and irrelevant since they occurred too far in the past. However, during the 1988-1989 school year, Respondent had numerous altercations with other teachers. If she felt that she or one of her students had been wronged by another faculty member, she would chastise that person in front of her students. This is inappropriate behavior. In the opinion of her principal, her department chairman, and the Director of Personal Services for the school system in which she taught, Respondent's obvious drinking problem diminished her effectiveness as a teacher; her actions were harmful to her students' ability to learn and to their safety; and she was not honest in her professional dealing with faculty and staff. It is so found. In addition, her use of emotional pressure on her colleagues in an effort to get them to support her and not report her deficiencies, may have resulted in several years' delay in identifying and rectifying the problem. Ms. Purdy resigned her position with the Manatee County Schools on September 20, 1989 and has not been employed within the system since that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case revoking the Respondent's teacher's certificate and her eligibility for a teacher's certificate in Florida. RECOMMENDED this 5th day of July, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1991. COPIES FURNISHED: Lane Burnett, Esquire 331 E. Union Street, Suite 2 Jacksonville, Florida 32202 Virginia R. Purdy 3616 62nd Street Bradenton, Florida 34209 George A. Bowen Acting Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL - 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent should be dismissed from her employment with Petitioner based on the allegations contained in Petitioner's letter to Respondent dated October 25, 2002.
Findings Of Fact Shouse was employed by the School Board as a teacher's assistant for nearly three years. Her duties included administering tests to students who were in the Exceptional Student Education (ESE) program at North East High School. Most of the ESE students had difficulty reading, and it was Shouse's responsibility to assist them in reading the examinations and other materials which could be used in taking the examinations. Jayme Klapperich (Mrs. Klapperich) and Arnold Klapperich (Mr. Klapperich) taught earth science at North East High School. On October 7 and 8, 2002, Shouse was assigned to administer the first quarter earth science examination for the ESE students in Mr. and Mrs. Klapperich's classes. The examination was a 110-question, multiple-choice test, which was divided into 11 sections. Each section represented a chapter in the textbook, and each section was divided into two subsections. Each subsection consisted of five definitions followed by five vocabulary words. The students were to match the definitions to the correct vocabulary word. Shouse had administered similar examinations for the Klapperichs in the past. Part of each student's classwork in the Klapperichs' classes included the preparation of a notebook which was divided by chapters of the textbook. Each chapter section was supposed to include vocabulary words and definitions, questions and answers on the materials in the chapter, and quizzes and tests that had been given on that chapter. The quality of the notebook varied by student, and some of the students' notebooks were incomplete. The students were allowed to use their notebooks during the first quarter examination, but each student could use only the notebook which that student had prepared. The examination was administered in a conference room where other examinations were also being administered by another teacher's assistant. The Klapperich students sat at a long table with Shouse seated at the end of the table and the students seated on each side. Shouse administered the examination to ten ESE students in Mr. Klapperich's class on October 7, 2002. She went to Mr. Klapperich's class to get the students who would be taking the examination in the conference room. She was present when Mr. Klapperich advised the students that each student was to use only his or her own notebook during the test. During the administration of the examination to Mr. Klapperich's students, the students were loud and were shouting out the answers to one another. Shouse would read the question, and some of the students would raise their hands or just shout out an answer. If the answer was incorrect, Shouse would give them the correct answer. Eventually, Shouse began to give the correct answers to the students. The ten ESE students in Mr. Klapperich's class who took the test administered by Shouse on October 7 made "A's" on their examination. Many of the students missed the same questions.1 Shouse administered the examination to eight ESE students in Mrs. Klapperich's class on October 8, 2002. As in the examination for Mr. Klapperich's class, the students were allowed to use only their own notebook. One of the students did not have his notebook with him during the examination. The normal time for taking the examination would have been at least an hour. The ESE students to whom Shouse administered the examination on October 8 finished the examination in 15 to 25 minutes. Mrs. Klapperich commented to one student on the short amount of time it took the students to take the test. During the examination, Shouse read the examination questions to the students as a group. She then read the answer from one student's notebook. Shouse testified that she checked each student's notebook before reading the answer to make sure that the student had the correct answer in his or her notebook. Her testimony is not credible. One student did not have his notebook. By her own admission, the writing in many of the notebooks was practically illegible. It would not have been possible to read 110 questions, to find the answers in the notebook, and to check the notebooks of eight students for each question to make sure the student had the definition in his notebook in the span of 25 minutes. The students taking the examination on October 8 made "A's" on their examinations. All the students gave the same incorrect answers for questions 14, 15, 69, and 70. Mrs. Klapperich became suspicious because all the students made "A's" and they all gave the same incorrect answers to four questions. Additionally, six of the students had grade averages of "F" prior to taking the test. Her suspicions were further aroused when she confiscated a note immediately after the test which was written to a classmate by one of the students who had taken the examination with Shouse's assistance. The student admitted at the final hearing that she wrote the note and that the note concerned the earth science examination administered by Shouse on October 8. The note stated in part: I wrote. She read the questions -n- gave us the answers. * * * (101) Should have gone it was the easiest thing I've done all year. Mrs. Klapperich discussed her suspicions with her husband, and they agreed to report the situation to school administrators. An investigation ensued. The students were required to retake the examination in November. Because many of the students no longer had their notebooks, the students were allowed to use their textbooks in the examination. Eight of the students in Mr. Klapperich's class retook the examination. The time these students took in taking the test ranged from 80 to 150 minutes. Four of the students made "A's." Three students made "B's," and one student made an "F." Five of the students in Mrs. Klapperich's class retook the examination. The time for taking the examination for these students ranged from 65 to 135 minutes. One student made an "A," one student made a "B," two students made "C's," and one student made a "D." The School Board had adopted disciplinary guidelines for employees of the School Board. School Board Policy 8.25(1)(v), provides that the penalty range for misconduct or misconduct in office is from caution to dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Kari E. Shouse guilty of misconduct in office and dismissing her from employment with Petitioner. DONE AND ENTERED this 15th day of August, 2003, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 15th day of August, 2003.
