Findings Of Fact Respondent was reassigned to Douglas MacArthur Senior High School- North, an alternative school, on December 16, 1982, because of his unacceptable conduct in Grade 9 at North Miami Junior High School. Petitioner presented evidence of 16 incidents of conduct by Respondent which required disciplinary action in the year preceding his reassignment to the alternative education program. Additionally, his grades in all courses were unsatisfactory at the time of reassignment. Respondent did not accept the alternative school assignment and instead obtained employment at a restaurant. He is now living with his grandmother, Mrs. Helen Wood, who seeks his return to a regular junior high school program. She has discussed this proposal with the principal of Thomas Jefferson Junior High School and he apparently agrees with her. Respondent's evidence established that his family life was difficult and disruptive during the period of his misconduct. His situation has now stabilized and he is responsive to his grandmother's supervision. He should, therefore, be given an opportunity to return to the regular academic program (Grade 9) at Thomas Jefferson Junior High School.
Recommendation In consideration of the foregoing, it is RECOMMENDED that Petitioner enter a Final Order classifying Respondent as a disruptive student, but permitting him to attend the Thomas Jefferson Junior High School in a probationary status. ENTERED this 6th day of May, 1983, at Tallahassee Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Helen Ward 1000 Northwest 153rd Street Miami, Florida 33169 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the second amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Gary Lenczyk, held teaching certificate number 414678 issued by the Department of Education. The certificate covered the areas of mathematics, chemistry, physics and substitute teaching and was valid through June 30, 1994. When the events herein occurred, respondent was employed as a science teacher at Bronson High School (BHS) in Bronson, Florida. The school is a part of the Levy County School District. In this case, petitioner, Doug Jamerson, as Commissioner of Education, seeks to discipline respondent's teaching certificate for numerous alleged violations of the law. There is no evidence that respondent has been disciplined by petitioner on any prior occasion. Three days before the beginning of school year 1992-93, respondent was hired to teach at BHS. Among other things, he taught algebra II, earth science, physics and physical science. Based partly on conduct which forms the basis for the second amended complaint, respondent was suspended by the local school board from his teaching position on December 8, 1992. He later resigned from his position on April 26, 1993. Except for one charge, the second amended complaint stems from events which allegedly occurred during the first part of school year 1992-93. The complaint includes allegations, some duplicative in nature, that (a) respondent called eleven students such names as "liars," "dumb," and "punk," he characterized their questions as "stupid," and he told them to "shut up," (b) he "violently" yelled at eleven students and at least four staff members, (c) he called ten students names and belittled and disparaged them to other students and parents in their absence, (d) he called other teachers and staff "bitch," as well as other disparaging names, (e) he told at least ten students that he was "prejudiced," (f) he made "inappropriate sexual comments" to at least ten students, (g) he asked at least ten students to lie if they were asked about the foregoing comments, (h) he engaged in "violent arguments and screaming at his peer teachers and fellow teachers," and (i) he refused to answer questions from at least ten students and ignored their requests for help. The complaint further alleges that by virtue of the foregoing conduct, respondent's effectiveness as a teacher was seriously impaired. Finally, the complaint alleges that on August 23, 1990, respondent was arrested in Gainesville, Florida, for trespass after warning, disorderly conduct and resisting an officer without violence in conjunction with his refusal to be searched before entering the Alachua County Courthouse. The complaint goes on to allege that he later entered into a deferred prosecution agreement and the charges were dismissed. The issuance of the complaint prompted respondent to request a hearing. The Courthouse Incident On the morning of August 23, 1990, respondent entered the county courthouse in Gainesville, Florida. Pursuant to a county ordinance, all persons entering the courthouse were required to pass through a metal detector and submit to a search. Sgt. Yates, an Alachua County deputy sheriff who supervises courthouse security, heard a "heated" discussion near the metal detector and observed respondent in a conversation with two other deputies demanding to know their authority for conducting a search. Respondent told them that his father was a judge, and he did not have to be searched before entering the courthouse. When told by Sgt. Yates that he would have to be searched or leave the courthouse, respondent refused to do either. He was then arrested and charged with trespass after warning. When the deputies were forced to physically restrain him, respondent was also charged with disorderly conduct and resisting an officer without violence. All charges were misdemeanors. On November 7, 1990, respondent entered into a deferred prosecution agreement in which the prosecution of the charges was deferred for six months conditioned on respondent fulfilling the terms of the agreement. When the terms were satisfied by respondent, all charges were dismissed. Respondent acknowledged that he was arrested, but says he did not contest the charges because it was his word against that of three deputies. Even so, the factual allegations in paragraphs 3 and 4 of the amended complaint have been established. School Year 1992-93 Calling students names Until his suspension from BHS in December 1992, respondent taught earth science, physics, algebra II and physical science during the first part of school year 1992-93. Paragraph 5.a. of the complaint alleges that respondent called at least eleven students such names as "liars," "stupid," "dumb," "ignorant," "bitch," and "punk," called their questions "stupid," and told them to "shut up." Paragraph 5.c. further alleges that respondent called at least ten students "names" and belittled and disparaged students "to other students and parents in their presence." To support these allegations, petitioner presented the testimony of three former students, T. C., R. W. and Jason Ruppert. One student in his algebra II class was T. C., then a sophomore. According to T. C., respondent called her a "spoiled brat" after class one day when she refused to erase the blackboard. She had declined to do so for fear of being late to the next class. T. C. contended that a "couple of students" in her next period class, only one of whom was identified but did not testify, had heard the remark, and that it was "embarrassing" to her. The testimony as to this incident is accepted as being credible. On another occasion, T. C. says respondent called K. T., a male student in the same class, "stupid" or "dumb," and he would call other unidentified students "stupid" and then laugh about it afterwards in front of the entire class. However, another student in the same class, B. G., never heard any of these comments, and he specifically denied hearing K. T. being called a name. Respondent also denied that he made the remarks. The testimony of B. G. is accepted as being more credible on this issue. R. W. was a seventh grade student in respondent's earth science class during the first semester of school year 1992-93. In assessing the credibility of the student's testimony, it is noted that R. W. conceded she disliked respondent from the first day of class. She claims that on one occasion during class respondent called her a "liar," and on another occasion he called her "stupid" and "ignorant." However, she could not recall the circumstances surrounding the latter incident. Another student in the same class, B. B., denied that any of these events occurred, and given R. W.'s admitted bias towards respondent, her testimony is not accepted as being credible. A third student, Jason Ruppert, now graduated, was in respondent's physics class during school year 1992-93. The class had only eight students. Jason claimed that respondent sometimes called students a "liar" when they gave excuses for not having done their homework, and he corroborated T. C.'s contention that respondent called K. T. "stupid" in front of the class. However, T. was not a student in the physics class, and thus Jason could not have personal knowledge as to this latter issue. Another student in the same physics class, J. H., denied hearing respondent call anyone a name. He did agree that respondent sometimes told the class to "shut up" when it became loud or unruly but he did so in the same manner as did other BHS teachers. Finally, a data entry operator in the BHS guidance office stated that on one occasion, she observed respondent acting "inappropriately" with a student in a classroom when she was delivering a message. She could not recall the date, the class, or the particular student. Accordingly, her testimony has been discounted. In summary, the only proven allegation in paragraphs 5.a. and c. is that respondent told a student in the presence of one other student (her best friend) that she was a "spoiled brat." All other allegations should be dismissed. Violently yelling at students and staff Paragraph 5.b. of the complaint alleged that respondent engaged in "violently yelling" at eleven students and four staff members, and he was guilty of "intimidating, harrassing, embarrassing and threatening both, and using profanity in front of these students and staff." Paragraph 5.h. goes on to allege that respondent engaged "in violent arguments and screaming at his peer teachers and fellow teachers." To support these allegations, petitioner presented evidence concerning three incidents, two involving respondent's peer teacher in October 1992, and the third occurring at a faculty staff meeting in August 1992. The first incident occurred during the week of October 19, 1992, and involved Marilyn Pelletti, the former chairperson of the BHS science department and respondent's peer teacher during school year 1992-93. Ms. Pelletti was dissatisfied with respondent's performance, particularly since respondent had made insufficient progress in his science class by mid-October and was late in getting grades to the office for some or all of his classes. On Wednesday, October 21, 1992, she went to respondent's classroom during lunch hour when it was empty and presented respondent with a professional orientation program establishing certain goals. Respondent complained that the goals were too lofty and that the faculty was out to get him. Although Ms. Pelletti acknowledged that this was purely an academic argument, she says respondent began raising his voice until he was yelling, and his eyes enlarged in a threatening manner. She says she feared for her safety and backed out of the room and left when the bell rang. Ms. Pelletti immediately returned to her classroom in a "shaken" state and told an inquiring aide that she was all right. The next morning, respondent came to Ms. Pelletti's classroom around 7:35 a.m. and "started the same argument over again." This time, it lasted about fifteen or twenty minutes, and respondent engaged in "yelling and screaming" until Ms. Pelletti finally got him out of the classroom. She concedes that respondent never made any threatening remarks, and the entire confrontation was "argumentative" in nature. No profanity was used by respondent during either confrontation. Although the two arrived in the school parking lot the following morning at the same time, and respondent attempted to again broach the subject, no continuing argument occurred. The incident on October 21, 1992, was corroborated by a school data entry operator who heard loud voices and observed respondent approaching Ms. Pelletti in an "aggressive" manner, shaking his finger in her face and "yelling" in an unprofessional manner. Jason Ruppert, a student passing in the hallway at the same time, also described respondent as having a "raised voice" during the argument. In addition to the above incidents, a witness described respondent as being "argumentative" and "aggressive" when she explained grade book and absentee record policies to all teachers at a staff meeting at the beginning of the school year. There is no evidence, however, that he "violently" yelled or screamed at her, or that he otherwise used inappropriate language. There is less than clear and convincing evidence that respondent engaged in violent arguments with students, or that he was guilty of intimidating, harrassing, embarrassing, or threatening them, or that he used profanity in their presence. Calling other teachers and staff a "bitch" An allegation is next made in paragraph 5.d. of the complaint that respondent called at least four "other teachers and staff 'bitch' and other names belittling them and disparaging them to students and parents in their absence." The only testimony on this subject came from T. C., a former student, who recalled that, while talking with respondent at his desk one day, he called another teacher, Ms. Whitmore, a "puta," a Spanish word. When T. C. asked respondent if he really knew what that word meant, respondent replied "she's a real bitch." Although no other students heard these remarks, the testimony is deemed to be credible. Statements that respondent was prejudiced Paragraph 5.e. of the complaint alleges that respondent told at least ten students that he was "prejudiced." The only testimony concerning this allegation came from R. W., who was a seventh grader when certain alleged remarks occurred. According to R. W., respondent told his class on one occasion that he was "prejudiced." Assuming this to be true, the context in which the remark was made was not given, and thus the testimony has little, if any, probative value in resolving the issue. R. W. also suggested that respondent selected only white students to participate in classroom activities, but this testimony was adequately refuted by two former African-American students who testified that they perceived no racial bias or prejudice on respondent's part while attending his classes. Accordingly, it is found that there is a lack of evidence to support this charge. Making inappropriate sexual comments The complaint further alleges in paragraph 5.f. that respondent made "inappropriate sexual comments to (at least ten) students about his sexual past and sex in general." Two students offered testimony on this issue. According to R. W., who was a seventh grader at the time, respondent grabbed his crotch in class one day. When asked by a student what he was doing, he responded "Why don't you try it?" The context in which this incident occurred was not given. Another student in the same class denied that the incident even occurred. The allegation is accordingly not deemed to be credible. On another occasion, T. C., a former student, says she raised her hand to volunteer to answer a question and was told by respondent that "the only reason you want to go to the board is because you want the other students to look at you." Even if such a statement was made, it would not constitute an inappropriate sexual comment. Accordingly, there is less than clear and convincing evidence to sustain this charge. Asking students to lie Although paragraph 5.g. of the complaint alleges that respondent asked at least ten students to lie about his comments, if asked to testify about the same, there was no evidence to establish this misconduct. Refusal to help students or answer their questions The charge is also made in paragraph 6. that respondent "refused to help (at least ten) students and ignored students' questions." As to this charge, the only credible testimony on the issue came from J. H., a former student, who recalled that respondent would routinely defer answering a student's question until the end of the class if it did not relate to the subject matter then being taught. Respondent would, however, answer the questions at the end of the period. This was corroborated by respondent's testimony. Further testimony by a data entry operator that, while delivering messages to respondent's classroom, she observed him ignoring students' questions is deemed to be too vague and nonspecific to have probative value. Accordingly, it is found that the evidence is less than clear and convincing that respondent refused to help students or answer their questions as charged in the complaint. Loss of Effectiveness Finally, paragraph 8. of the amended complaint alleges that, by virtue of the misconduct described in the complaint, respondent has lost his effectiveness as a teacher in the school system. This allegation was supported by testimony from respondent's former principal at BHS during the fall of 1992. Based on a number of complaints received from parents, students and teachers, and after an internal investigation was performed, the principal issued a letter of reprimand to respondent on October 26, 1992. Later, a recommendation to dismiss respondent was made. Without contesting this proposed action, respondent resigned from the school effective April 26, 1993. The former BHS principal opined that, assuming "some or all" of the alleged charges were true, respondent's effectivness as a teacher at BHS had been seriously impaired. He did not testify with any specificity, however, as to whether the minor charges proven here were so serious as to impair respondent's effectiveness as a teacher. C. Miscellaneous Respondent presented the testimony of several teaching colleagues at BHS who never observed any improper conduct on respondent's part. It was also established that respondent occasionally substituted as a teacher at Newberry High School and Santa Fe Junior College (SFJC). The chairman of the SFJC math department described respondent as a good teacher, and that while he was vigorous in arguing for his beliefs, he always conformed to school policy and regulations. Similar testimony was given regarding respondent's conduct at Newberry High School. Evidence by both parties concerning respondent's teaching methods and competence as a teacher has been disregarded as being irrelevant since this subject is not raised in the amended complaint. According to petitioner's exhibit 2, respondent's teaching certificate was issued on December 17, 1992, or after the events herein occurred. Although petitioner failed to clarify under what authority respondent was teaching during the fall of 1992, respondent acknowledged during the hearing that he taught during that year and prior years under a teaching certificate of some type, and it may be fairly inferred that BHS would not have hired respondent had he not been properly licensed by the state or authorized to teach in the public schools.
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 respondent guilty of violating Subsection 231.28(1)(h), Florida Statutes, Subsection 231.28(1)(c), Florida Statutes, and Rule 6B-1.006(3)(e), Florida Administrative Code, as more specifically explained in the conclusions of law, for which he should be barred from reapplying for certification for three months. In all other respects, the charges against respondent should be dismissed. DONE AND ENTERED this 22nd day of February, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0151 Petitioner: 1-2. Partially accepted in finding of fact 1. 3-6. Partially accepted in findings of fact 4 and 5. 7-10. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Partially accepted in finding of fact 20. Partially accepted in finding of fact 23. 14-17. Partially accepted in finding of fact 15. 18-19. Partially accepted in finding of fact 16. 20. Rejected as being unnecessary. 21-24. Partially accepted in finding of fact 18. 25. Partially accepted in finding of fact 25. 26-27. Partially accepted in finding of fact 17. 28-29. Partially accepted in finding of fact 11. Partially accepted in finding of fact 17. Partially accepted in finding of fact 11. Rejected as being hearsay. Rejected as not being credible. See number 11. Rejected as being unnecessary. 35-40. Partially accepted in finding of fact 10. Partially accepted in finding of fact 23. Partially accepted in finding of fact 21. Covered in preliminary statement. 44-48. Partially accepted in finding of fact 26. 49. Rejected as being contrary to the evidence. Respondent: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 2. 5-22. Partially accepted in findings of fact 4-6. 23-31. Covered in preliminary statement. 32-41. Partially accepted in findings of fact 7-13. 42-51. Partially accepted in findings of fact 14-19. 52-57. Partially accepted in findings of fact 7-13. 58-60. Partially accepted in finding of fact 20. 61-63. Partially accepted in finding of fact 21. 64-66. Partially accepted in findings of fact 22 and 23. 67-68. Partially accepted in finding of fact 24. 69-72. Partially accepted in findings of fact 14-19. 73-76. Partially accepted in finding of fact 24. 77-84. Partially accepted in findings of fact 26 and 27. 85-87. Rejected as being unnecessary. 88. Partially accepted in finding of fact 10. 89. Partially accepted in finding of fact 28. 90. Rejected as being irrelevant. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible and persuasive evidence, unnecessary for a resolution of the issues, a conclusion of law, cumulative, or subordinate. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killearney Way, Suite G Tallahassee, FL 32308 Mr. Gary Lenczyk 4716 S. W. 47th Way Gainesville, FL 32608-4808 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following bindings of fact: The Respondent, Consuelo DeArmendi, holds a Rank I Florida teaching certificate #399385, expiring June 30, 1987, authorizing her to teach foreign languages in secondary education. The Respondent has been employed as a foreign language teacher by the Dade County school system for approximately eight (8) years beginning in 1978. Respondent was initially employed at Miami Palmetto Senior High School for the 1978-79 school and taught at Highland Oaks Junior High School for the 1979-80 school year. Beginning with the 1980-81 school year, Respondent taught Spanish and French at Miami Carol City Senior High School where she remained until her suspension on June 4, 1986. 1980-81 SCHOOL YEAR During the 1980-81 school year, the Respondent was late or absent from Miami Carol City Senior High School on many instances and failed to call the school office as prescribed in the Faculty Handbook. According to the handbook, which is provided to all teachers, a teacher is required to notify the school prior to leaving if the teacher is aware that he or she will be absent the following day. A teacher may also call a designated member of the clerical staff between 6:00 p.m. and 9:30 p.m. if they intend to be absent the following day but were unaware of the intended absence prior to leaving school. Finally, the teacher is allowed to report an unexpected absence to the school on the morning of the absence between 6:30 and 6:45 a.m. Advance notice of an absence allows the school to secure substitute teacher coverage for the class. For the 1980-81 school year, Respondent was observed and evaluated by her principal and rated "unacceptable" in preparation and planning, professional responsibility and supportive characteristics because of repeated absences and tardiness. On February 10, 1981, the principal placed the Respondent on extended annual contract for failure to improve her attendance at work and failure to comply with school policy regarding teacher absences. 1981-82 SCHOOL YEAR The classroom observation of Respondent conducted on November 11, 1981 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 1, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques; Category VI - Teacher-Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 18, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher-Student Relationships and Category VII - Professional Responsibility. The classroom observation of Respondent by Ms. Wally Lyshkov, the school district foreign language supervisor, conducted on April 15, 1982, resulted in an overall "unacceptable" rating. In particular, Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques and Category VI - Teacher-Student Relationships. Ms. Lyshkov's observation of Respondent's teaching techniques and materials revealed that Respondent had a multi- level class (Spanish II and III combined), but only used one set of lesson plans. The lesson plans did not include the variety of activities that are usually and normally found in a multi-level class. The students tended to ignore any directions that Respondent gave and there was little, if any, exchange with the students. There was almost no activity or active participation on the part of the students, and Respondent was generally unaware of what the students were doing. During the 1981-82 school year, the Respondent received assistance and recommendations from Ms. Lyshkov on handling multi-level classes and assistance in establishing various student-directed and teacher-directed activities. In Ms. Lyshkov's opinion, the Respondent did not demonstrate an ability to deliver quality education or instruction because of her ineffectiveness in transmitting her knowledge to the students. During the 1981-82 school year, the principal became concerned with Respondent's excessive number of absences and her failure to comply with the school's procedures for calling in and reporting absences. In addition, the principal had received several complaints from students and parents concerning Respondent's excessive absences. On March 8, 1982, the principal gave her a notice of not complying with procedures and requested a formal conference to discuss Respondent's excessive absenteeism and student complaints. On June 3, 1982, Respondent was officially observed in the classroom by the principal and received an overall rating of acceptable. However, Respondent was rated unacceptable in Category VIII - Professional Responsibility, because of her consistent failure to follow guidelines in reporting her absences and her excessive number of absences which negatively impacted on the continuity of instruction provided to her students. In the Respondent's Annual Evaluation Report for the 1981-82 school year, the principal recommended that Respondent not be re-employed. The Respondent was rated "unacceptable" in preparation and planning, classroom management, techniques of instruction, teacher-student relationships, professional responsibility and supportive characteristics (teacher contribution to total school program). Despite the principal's recommendation, Respondent was re-hired because she had already achieved continuing contract status. 1982-83 SCHOOL YEAR On January 26, 1983, the principal conducted a conference-for-the- record with Respondent. The conference was held because of Respondent's attendance record, lack of planning and failure to comply with instructions governing the reporting of absences. On several occasions, the Respondent failed to timely notify the school about her intention to be absent which resulted in difficulties obtaining a substitute teacher and often required another teacher to cover the Respondent's classes as well as his/her own class. In addition, teachers are required to have emergency lesson plans on file for use by substitute teachers when the primary teacher is absent. The Respondent did not have any emergency lesson plans on file. Respondent had been absent from her teaching assignment twenty-seven (27) days since the beginning of the 1982-83 school year. During the January 26, 1983 conference, Respondent informed the principal that she was taking medication (lithium) because of a manic-depressive disorder and that her most recent string of absences were due to a failure to take a proper dosage of the medication. The principal reminded Respondent of her responsibility to properly notify the school when she was going to be absent or tardy and referred her to the Employee Assistance Program. 1983-84 SCHOOL YEAR During October 1983, the Respondent was warned by the assistant principal on several occasions about her failure to properly inform the school regarding her absences. She was referred to the Faculty Handbook to review teacher's absences. Further, she was asked to prepare at least one week of emergency lesson plans to be used in her absence. Respondent did not prepare the emergency lesson plans as required. A classroom observation of Respondent conducted on November 22, 1983 by the assistant principal resulted in an overall "unacceptable" rating. In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning because she did not have adequate lesson plans for the subjects being taught. The lesson plans were not suitable for Respondent's mixed-level class because there was no distinction between student activities. Respondent was rated "unacceptable" in Category IV - Techniques of Instruction because there was no distinction in instruction provided to the different levels and groups of students. Respondent was rated "unacceptable" in Category V - Assessment Techniques because she did not follow school policy concerning grades which required at least one grade per week. There were only two or three grades on the roll book per student (this was the ninth week of school) and there was no rationale for the grades. Respondent did not maintain any records of student achievement other than what was on the roll book. Respondent was found "unacceptable" in Category VII - Professional Responsibility and Category VIII - Supportive Characteristics because of her excessive absences and her failure to follow proper procedure in reporting absences. The Respondent's excessive absences led to problems with continuity in student instruction as well as parental and student complaints. As a result of the observation on November 22, 1983, Respondent was given a prescription of planned activity which was designed to help her improve in these areas that had been rated unacceptable. On December 2, 1983, the Respondent was again warned by the assistant principal about reporting absences in a timely fashion. As was the case in most instances, the Respondent was absent and had failed to notify the school in a timely manner. A classroom observation of Respondent conducted on January 19, 1984 by the assistant principal resulted in an overall rating of "unacceptable". In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning; Category V - Assessment Techniques; Category VII - Professional Responsibility; and Category VII - Supportive Characteristics. For the 1983-84 school year, the principal rated Respondent as acceptable and recommended her for employment primarily because he had noted a sharp turnaround in Respondent's performance in the second half of the school year, starting in February, 1984. The principal knew that Respondent had been hospitalized in December 1983, and believed that as long as she was receiving medical attention and taking medication, she would be capable of performing in the classroom. 1984-85 SCHOOL YEAR At the conclusion of the 1984-85 school year, the principal rated the Respondent acceptable in all categories and recommended her for employment. 1985-86 SCHOOL YEAR On October 4, 1985, the principal held a conference for the record with Respondent to discuss her continued excessive absenteeism, failure to timely notify the school regarding her absences and numerous parent and student complaints regarding the instruction in Respondent's classroom. On October 4, 1985, the school year had been in session for students for twenty-two (22) days. The Respondent had been absent 10 days and had only completed one full week of school without an absence. At a conference on October 4, 1985 with the principal, Respondent indicated that she was under medication and that the problems she was experiencing would be corrected. On October 17, 1985, the assistant principal conducted an observation of Respondent's classroom. Respondent was rated overall as "acceptable", but was rated "unacceptable" in classroom management. Respondent was rated "unacceptable" in classroom management because of an apparent lack of control over the students in her classroom. When the assistant principal entered the classroom, the teacher was sitting at the desk and seemed to have little or no control over the students. Only four (4) or five (5) students were participating in the class discussion and the balance of the 25-30 students in the classroom were combing their hair, talking, eating or doing whatever they chose to do. When Respondent noted the presence of the assistant principal, she began to shout loudly at the class in an unsuccessful attempt to gain control. After the October 17 observation, the assistant principal gave Respondent a prescription for classroom management which required her to plan instructional activity to cover the entire hour of the class, establish a seating chart, separate talking students, plan activities with other Spanish teachers for instruction, work with the guidance counselor and make parental contacts with students who were disruptive in class. Respondent did not comply with or perform the planned activities set forth in the prescription. On November 6, 1985, the principal directed Respondent to provide a doctor's statement whenever she was absent because of illness. Respondent was absent after the directive and did not comply with it or provide an explanation for her absence. Between November, 1985 and early February, 1986, the Respondent took leave. She returned to work on February 14, 1986 and shortly thereafter continued her pattern of absences. In early March, 1986 the principal scheduled a conference for the record with Respondent for March 5, 1986 to discuss several student and parent complaints which the school had received. The Respondent was absent and did not attend the conference scheduled for March 5. Although the Respondent called the school to report an intended one day absence, the school did not hear anything from Respondent nor anything of her again until March 14, 1986. On March 14 a corrections officer contacted the school and stated that the Respondent was in the Women's Detention Center on a charge of battery and was being held pending a psychiatric examination at Jackson Memorial Hospital. Respondent was absent from her school assignment from March 5 until May 7, 1986. This absence negatively affected instructional continuity and the quality of education provided to the students in Respondent's classes. During the 1985-86 school year, Respondent was absent from her work assignment for at least eighty (80) days. At the conclusion of the 1985-86 school year, Respondent was evaluated by her principal as "unacceptable" and was not recommended for employment. Respondent was rated "unacceptable" in classroom management and professional responsibility. Throughout her period of employment, Respondent has undergone psychiatric medical treatment from at least five different physicians: Dr. Martinez, Dr. Garcia-Granda, Dr. Diaz, Dr. Metcalf and Dr. Vilasusa. Respondent has been diagnosed as a manic-depressive, characterized by periods of deep depression and/or extreme elation. It was uncontroverted that Respondent has an excellent command of her academic specialities--Spanish and French.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be issued sustaining Respondent's suspension and dismissing Respondent from employment with the School Board of Dade County, Florida. DONE and ORDERED this 22nd day of June, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2274 The following constitutes my specific rulings pursuant to Section 120.59 (2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner. 1. Adopted in Finding of Fact 2. 2. Adopted in Finding of Fact 3. 3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 9. 7. Adopted in Finding of Fact 11 8. Adopted in Finding of Fact 11. 9. Adopted in Finding of Fact 12. 10. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 12. 12. Adopted in Finding of Fact 13. 13. Adopted in Finding of Fact 13. 14. Adopted in Finding of Fact 14. 15. Adopted in Finding of Fact 15. 16. Adopted in Finding of Fact 15. 17. Adopted in Finding of Fact 16. 18. Adopted in Finding of Fact 17. 19. Adopted in Finding of Fact 18. 20. Adopted in Finding of Fact 19. 21. Adopted in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Adopted in Finding of Fact 25. Rejected as a recitation of testimony. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/orsubordinate. Rejected as a recitation of testimony and/orsubordinate. COPIES FURNISHED: Johnny Brown, Esquire Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 William DuFresne, Esquire 2929 S.W. Third Avenue Suite One Miami, Florida 33129 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132
The Issue The issue is whether Respondent School Board of Bay County (the “School Board”) has good cause under Section 1012.22(1)(a)2., Florida Statutes (2006), to reject the recommendation of Petitioner James E. McCalister, Sr., Superintendent of the Bay County School District (the “Superintendent”), to transfer the Intervenor Larry Bolinger (“Bolinger”) from the position of principal of Bay High School (“Bay High”) to the position of principal of Jinks Middle School (“Jinks”).
Findings Of Fact The Superintendent is the duly elected superintendent of the Bay County School District. He is serving his second consecutive term in that capacity. The School Board consists of five duly elected members: Thelma Rohan, Ron Danzey, Johnny Brock, Jon McFatter, and Donna Allen. Bolinger is an employee and former superintendent of the Bay County School District. The Superintendent defeated Bolinger for the superintendent’s office in the 2000 general election. Bolinger was principal at Merritt Brown Middle School (Merritt Brown) during the 2004-2005 school year. He was principal at Bay High for the 2005-2006 school year. His proposed reassignment from Bay High to Jinks for the 2006-2007 school year is the subject of this proceeding. Bay High, Jinks, and Merritt Brown are located in Panama City, Bay County, Florida. Florida has an “A+ Plan for Education” that grades schools based on student performance. The school grade is determined by student scores on the Florida Comprehensive Assessment Test (“FCAT”). Fred Goodwin was the principal at Bay High for 27 years. Mr. Goodwin’s final year at Bay High was the 2004-2005 school year. He retired after Bay High received a school grade of “D” for two consecutive years. Bay High’s 2004-2005 school score improved by 28 points over the score received during the previous year. The school would have received a grade of “C” for the 2004-2005 school term but for the failure of more than 50 percent of the lowest scoring 25 percent of Bay High’s students (“the lowest quartile”) to make gains on the FCAT exam. Relevant to the subject of Bay High’s performance on the FCAT in recent years, the School Board opened Arnold High School (“Arnold”) on Panama City Beach in 1998. The new high school resulted in a significant reduction in Bay High’s student population because all of the beach students previously had attended Bay High. In order to increase the student population at Bay High and the school’s academic performance, the School Board started a Magnet program at Bay High. Bay High was given $250,000 through a grant to get the Magnet program started. The School Board also provided Bay High with extra teaching units for every year of the Magnet program’s existence. Along with the Magnet program, the Advanced International Certificate of Education (“AICE”) program was initiated at Bay High. One purpose of starting the AICE program at Bay High was to attract high-performing students. Despite such efforts, Bay High received a school score of “D” during the 2003-2004 and 2004-2005 school years. In the years prior to Goodwin’s retirement, Bay High experienced significant problems in areas other than academics. The problems included, but were not limited to the following: (a) the school grounds and facilities were deplorable; (b) many students wandered campus during class time unattended; (c) teacher morale was low; (d) administrators, including Goodwin, were not visible on campus or at school events; (e) students and teachers were disciplined inconsistently; and (f) instructional class time was interrupted for nonacademic events. Knowing that the principal position at Bay high would be vacant after the 2004-2005 school year, the Superintendent advertised the position. Bolinger did not apply to fill the position. The general practice is that during the advertising process, some applicants for a position are screened out simply based upon an assessment of the application. A committee then selects and interviews five applicants. After the interviews, the committee sends the Superintendent the names of three applicants for the position advertised. In the case of the vacancy for principal at Bay High, the Superintendent did not select any of the top three applicants. Instead, he placed the applicants at other schools. On June 21, 2005, the Superintendent contacted Bolinger. The Superintendent requested Bolinger to meet at the Superintendent’s office. At the meeting, the Superintendent offered the Bay High principal position to Bolinger. The Superintendent’s offer did not foreclose Bolinger’s option to remain as principal at Merritt Brown. In the course of their discussion regarding the Bay High position, Bolinger told the Superintendent that he had four years left in the Deferred Retirement Option Program (“DROP”). Bolinger stated that he would take the job at Bay High with the understanding that he would be the Bay High principal for the remaining four years before his retirement.1/ The Superintendent agreed that Bolinger would be allowed to stay at Bay High until his time in the DROP program was complete. Bollinger also told the Superintendent that if he was going to Bay High as principal, he must have two assistant principals. The Superintendent agreed to this condition. Randall McElheney and William Harrison are businessmen in Panama City, Florida, with close connections to Bay High as alums, parents, and volunteers. For the 2005-2006 school year, Mr. McElheney and Mr. Harrison served as business partners in the Partnership to Advance School Success (PASS) program. The PASS program is a cooperative effort between the State, the School Board, Bay High, and the business partner to improve the academic status of individual schools. Prior to the June 21, 2005, meeting between the Superintendent and Bolinger, the Superintendent told Mr. McElheney that there was only one person that could turn Bay High around. That person was Bolinger. After Bolinger accepted the position at Bay High, the Superintendent contacted several other School Board members to inform them of his decision. The Superintendent told Mr. Danzey that Bolinger was the one person in the school district that could lead Bay High. The Superintendent told Ms. Allen that Bolinger was the best person for the Bay High job. Mr. McFatter understood the Superintendent to believe that there was no one else in the district other than Bolinger who could handle the Bay High job. All of the School Board members supported the Superintendent’s decision to transfer Bolinger to Bay High. Not everyone in the community agreed with the Superintendent’s decision. The Superintendent knew that some people, unidentified here, opposed the transfer in part for political reasons. The Superintendent also knew that Bolinger would “ruffle some feathers” and upset certain individuals as he made needed changes at Bay High. On or about June 23, 2005, the Superintendent transferred Bolinger from Merritt Brown to Bay High for the 2005-2006 school year. Bolinger started working at Bay High that same day. The School Board subsequently voted unanimously to approve the reassignment. Bolinger signed a one-year written contract with the School Board for the 2005-2006 school year. The written contract provides as follows in pertinent part: THIS CONTRACT entered into between THE SCHOOL BOARD OF BAY COUNTY, FLORIDA, party of the first part, hereinafter called “the School Board,” and Larry Bolinger (0061), party of the second part, hereinafter called “the Employee.” * * * The School Board agrees to employ the Employee in a position of PRINCIPAL for a period of 12 calendar months beginning July 1, 2005 (same being hereinafter referred to as the “employment period”) . . . . * * * 10. It is expressly understood and agreed by and between the parties hereto . . . that neither the Employee nor the School Board owes any further contractual obligation to the other after the last day of the employment period. The Superintendent has never recommended that the School Board contract with administrative personnel in excess of one year. During his first year at Bay High, Bolinger was able to resolve many of the school’s past problems. With the help of the PASS program business partners, the grounds and facilities were cleaned. The business partners also worked with Bolinger to implement incentive programs to motivate student academic achievement. Attendance improved and students were in class during instructional time. Bolinger established clear definitive roles for each administrator. Teacher and staff morale increased as a clear chain of command and written policies eliminated favoritism. Student discipline became consistent and non-discriminatory. Bolinger and other administrators were visible on campus and at school events. All administrators were accessible to faculty, students, and parents. The faculty was included in decisions regarding the school. Most important, during the 2005-2006 school year, Bay High improved its school score from a “D” to a “C”. The school was eligible to receive a score of “B” on the FCAT, with a numeric score that was 11 points higher than the score received in 2004-2005. However, because less than 50 percent of the lowest quartile made adequate gains on the test, Bay High received a “C”. Beginning around the start of 2006, Bolinger heard rumors that he was going to be removed from his position because he had ruffled some feathers at Bay High. Certain individuals had complained to the Superintendent when they became upset with Bolinger for changing the status quo. Through out the year, Bolinger frequently consulted with the Superintendent about problems at the school. The Superintendent always reassured Bolinger that he was “doing the right thing” and needed to “keep on track.” The Superintendent encouraged Bolinger to be sensitive to students, teachers, and staff, but to keep his focus on improving student performance, especially the performance of the lowest quartile. In May 2006, the Superintendent met with Bolinger. At the meeting, the Superintendent stated that he would recommend Bolinger back as a principal, but not at Bay High. Bolinger stated that he felt betrayed because he had been loyal to the Superintendent. The Superintendent stated that he did not see it that way. The Superintendent never gave Bolinger any other reason for the decision. Once the transfer became public knowledge, the Superintendent and School Board members received e-mails from Bay High students, staff, parents, and community members. A significant majority of these e-mails discussed the improvements that Bay High made under Bolinger’s leadership. They expressed support for his remaining at Bay High. School Board members also received telephone calls from the public for and against Bolinger’s impending transfer from Bay High. The School Board members and Bay High’s business partners questioned the Superintendent’s decision to remove Bolinger as principal at Bay High. The Superintendent would not give anyone a reason, except to say to a couple of people, “That man is going to do what I tell him to do.” Mr. McElheney, one of Bay High’s business partners, funded a radio and sign campaign advocating that Bolinger remain at Bay High. The radio messages urged the public to attend the School Board meeting on May 30, 2006. After speaking with the School Board members, the Superintendent instituted a teacher hiring freeze. The hiring freeze allowed teachers to interview for positions throughout the district but prohibited anyone from being hired. The Superintendent did not want a teacher being hired at a school expecting certain individuals to be the administrators and then change his or her mind after an administrative change. At the May 30, 2006, School Board meeting, the Superintendent recommended the retention of Bolinger, and several other principals and assistant principals, as employees of the School District for the 2006-2007 school year. The Superintendent’s recommendation did not identify the particular school to which Bolinger, or any other principal or assistant principal, would be assigned. This was a departure from the custom of making administrative recommendations, including the school assignment for each administrator. At the May 30, 2006, meeting, the School Board allowed for public comment. At times growing heated, 47 people, consisting of students, parents, teachers, staff, and community members, spoke at the meeting. Again, a significant majority spoke positively of Bolinger and the difference he was making at Bay High. Many people requested that the Superintendent reconsider his decision. After the public comment portion of the meeting, the Superintendent stated that he did not intend to reconsider his decision about transferring Bolinger and would not give a reason for his decision. The School Board then unanimously voted to approve the recommendations as submitted without school assignments and with the understanding that no principals or administrators would be transferred from their current assignments without School Board approval. The School Board met again on June 28, 2006. At that time, the Superintendent made a recommendation to the School Board to transfer five administrators, one of which was the transfer of Bolinger to the position of principal at Jinks. Once again, the Superintendent refused to give the School Board a reason for his decision to transfer Bolinger. The Superintendent would not reveal the name of the person who would replace Bolinger as principal at Bay High. Mr. McFatter made the following motion at the June 28, 2006 meeting: A transfer of the principal from Bay High School this close to the beginning of the school year, coupled with the Superintendent’s hiring freeze, will in a number of ways adversely affect the student and staff of Bay High School and will severely disrupt the operation of the school for the upcoming year. Given the history of Bay High School, it is particularly crucial that this not occur. It is a school that has experienced two “D” school years, and under Mr. Bolinger’s leadership, started down the right road to recovery becoming a “C” school for the 2005-2006 school year. This eleventh hour disruptive recommendation will have an adverse effect on student achievement at Bay High School for the 06-07 school year. Based upon these findings of good cause, I move that the School Board reject the Superintendent’s recommendation that Larry Bolinger be laterally moved from the principal-ship at Bay High to the principal-ship at Jinks Middle School. The School Board unanimously voted in favor of the motion and to reject the Superintendent’s recommendation to transfer Bolinger. This was the first time Mr. Brock, Ms. Allen, and Mr. McFatter had ever voted to reject an administrative personnel recommendation made by any school superintendent. Mr. Brock has served on the School Board for 10 years, Ms. Allen for four years, and Mr. McFatter for two years. Ms. Rohan voted to reject the recommended transfer because of her belief that the Superintendent breached his oral contract with Bolinger regarding Bolinger’s length of stay as principal of Bay High. At the meeting, Mr. McFatter voted to reject the recommended transfer of Bolinger for the following reasons: (a) the transfer would have occurred too close to the beginning of the school year and that, coupled with the hiring freeze, would adversely affect the students and staff at Bay High; (b) the transfer would interrupt operations at the school; and (c) improvement was made at Bay High under Bolinger’s leadership after it experienced two “D” years. During the hearing, Mr. McFatter stated that he voted to reject the recommendation because “everything [at Bay High] was positive in regard to the kids and their achievements. And to derail it without explanation was unacceptable and to my mind was good cause.” At the June 28, 2006, meeting, Mr. Danzey voted to reject the Superintendent’s recommendation to transfer Bolinger because there were improvements at Bay High under Bolinger. Mr. Danzey thought it was too soon for another change in principals at Bay High and that the leadership at the school needed to stay in place. Ms. Allen voted to reject the recommended transfer of Bolinger because keeping the leadership at Bay High was best for the future of the school, its students, and faculty. Ms. Allen did not believe that anyone but Bolinger could implement his plan for improvement of Bay High as well as Bolinger himself. Mr. Brock voted to reject the Superintendent’s recommended transfer of Bolinger because improvements were being made at Bay High, students were feeling better about themselves, and removing Bolinger would harm the students. Mr. Brock stated that the Superintendent’s action was the equivalent of “pull[ing] the carpet” out from under the Bay High students. At some point in time after recommending the transfer of Bolinger, the Superintendent proceeded to advertise the principal’s position at Bay High as open for the 2006-2007 school year. During his deposition and at the hearing, the Superintendent revealed for the first time that he considered two applicants to be qualified for the Bay High job: Bill Payne and Mackie Owens. At the time of the rejection of Bolinger’s recommended transfer, the School Board members were not aware that the Superintendent might consider one of these two individuals to be the principal of Bay High. Payne had applied for the same position in 2005 and had not been selected by the Superintendent. For the 2005/2006 school term, Payne served as an assistant principal at Bay High under Bolinger. If the School Board had approved the recommended transfer of Bolinger, the School Board members would not have had an opportunity to consider the assignment of a Bay High principal until the July School Board meeting. Due to the School Board’s rejection of the Superintendent’s recommended transfer, Bolinger remains principal of Bay High. The Superintendent has not revealed the name of the person he would recommend to be principal at Bay High should Bolinger be transferred. During his deposition and during the hearing, the Superintendent testified that there were multiple factors that precipitated his decision to transfer Bolinger. First, there was an incident that involved the announcing of Bay High’s Top ten seniors for 2006. In late April or early May 2006, the Superintendent requested that Bolinger delay announcing the ten seniors with the highest cumulative grade point average because one student erroneously believed that he should be valedictorian at Bay High. The student’s parents wanted an opportunity to appeal the issue to the School Board on the following Wednesday. The Superintendent and Bolinger agreed that the announcement would not be made until the end of the week after the School Board meeting. On Wednesday, the School Board listened to the parents’ appeal. The School Board took no action to change the decision of the school and the Superintendent that the student academically ranked third behind co-valedictorians. That evening after the School Board meeting, Ms. Rohan, Chairperson of the School Board, went to Bay High where some teachers and staff members were planning an awards ceremony for Thursday morning. Learning that the decision was final, the teachers requested permission from Bollinger to include the Top 10 announcement in the Thursday awards program. Bolinger agreed to make the Top 10 announcement on Thursday. He made this decision because he thought the issue regarding the identity of the valeditorian was resolved and because some of the Top 10 students were not going to be in school on Friday. On Thursday after the announcement, the Superintendent received a call from a parent of the disappointed student. The parent was upset because Bay High announced the Top 10 on Thursday instead of waiting until Friday as anticipated by the parent. The Superintendent contacted Bolinger to inquire about the decision to make the announcement on Thursday. Bollinger explained that it was just a spur of the moment decision. Bolinger offered to apologize to the student’s parents over any misunderstanding about the timing of the announcement. Shortly thereafter, Ms. Rohan informed the Superintendent that she had been to Bay High on Wednesday evening planning for the Top 10 announcement the next day. Ms. Rohan’s statement led the Superintendent to erroneously believe that Bolinger had lied when he said the announcement was a spur of the moment decision. The incident involving the Top 10 announcement was the biggest factor that the Superintendent considered when deciding to transfer Bolinger. If Bolinger had waited until Friday to make the academic awards, the Superintendent probably would have recommended that Bolinger return to Bay High for additional years. Another factor that motivated the Superintendent to transfer Bolinger involved a facilities improvement request from Bay High, which the Superintendent rejected. The Superintendent erroneously believed that Bolinger sent parents to pressure him to change his mind. In April 2006, Bay High’s PASS business partners spoke to the Superintendent about some needed facility improvements at Bay High. The Superintendent agreed to send the district’s Director of Facilities to review a list of suggested needs. One of the improvements was a new baseball dugout, with lockers and a batting cage, as requested by Bay High’s baseball boosters. The Superintendent asked the business partners to follow up with him about the dugout issue in the future. Bolinger, as principal of Bay High, approved the facilities request before sending it to the Superintendent. The Superintendent rejected any request for improvements that were not academically related. Bolinger did not request that the business partners pressure the Superintendent about his rejection of any part of the facilities request, much less a baseball dugout. Bay High’s business partners had a follow-up appointment with the Superintendent on the morning that Bolinger’s recommended transfer became public knowledge. The business partners intended to discuss alternative means of funding the construction of the new dugout. However, the sole issue addressed at the meeting was Bolinger’s transfer. There was no pressure applied to the Superintendent about his rejection of any improvement at Bay High. A third factor that the Superintendent considered was that he thought the district would be better served if Bolinger served as a middle school principal. According to the Superintendent, Bolinger had been very successful as principal at Merritt-Brown. The Superintendent knew Bolinger was a good disciplinarian and believed he could solve some alleged problems at Jinks. However, the Superintendent subsequently had a conversation with the principal at Jinks which resolved any such problems. During the hearing, the Superintendent presented the expert testimony of William Montford, former Leon County School Superintendent and currently Executive Director of Florida Association of District School Superintendents. Mr. Montford’s expert testimony is accepted, limited to his experience as a school superintendent. A school superintendent serves the role of Chief Executive Officer of the school district. For that reason, a superintendent needs control over district personnel and the discretion regarding the placement of those employees. In making those decisions, a superintendent should consider the input from school board members, teachers, parents, and student. Ultimately, it is the superintendent’s responsibility to recommend what he or she believes is best – in terms of personnel placement - for the entire school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board enter a final order rejecting the Superintendent’s recommendation to transfer Larry Bolinger. DONE AND ENTERED this 22nd day of January, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd of January, 2007.
Findings Of Fact Respondent was an employee of the School Board of Dade County, Florida, more particularly a Title One teacher at Miami Carol City Senior High School during the 1981-1982 school year. On May 6, 1982, John Cohn was a student in Respondent's fourth period class. Arnold Coats was a substitute teacher working with Respondent in Respondent's classroom on that day. After Respondent had given the students an assignment, Cohn requested and received permission to leave the classroom to go to the bathroom. While absent from the classroom, Cohn decided he wished to speak with Ronald Golemhieski, another teacher at Miami Carol City Senior High School. Cohn returned to Respondent's classroom to request permission. Coats came to the door and gave Cohn permission to go talk to Golembieski, but Cohn decided he should get permission from Respondent since Respondent was the teacher of the class. Cohn waited in the doorway of Respondent's classroom. When he finally got Respondent's attention, he beckoned with his finger, requesting Respondent to come to the doorway. Respondent went to the doorway, and Cohn requested Respondent's permission to go talk to Golembieski. Respondent grabbed Cohn, pulling him forcefully into the classroom. Commotion broke out in the classroom, and someone yelled for assistance. Golembieski heard the commotion, as did Victoria Bell, the hall monitor. When they arrived at Respondent's classroom, Respondent and Cohn were struggling with each other. They were face to face, and Respondent had his arm around Cohn's neck with his hand on Cohn's throat in a choking manner. Golembieski grabbed Cohn away from Respondent and, after separating them, took Cohn to his classroom to calm him down. Bell and Coats pushed the rest of the students back into their seats and restored order in Respondent's classroom. When the altercation ended, Cohn's shirt was torn and he had scratches on his chest. Just prior to Respondent's outburst, Cohn did nothing to provoke Respondent in any way and was not disrespectful to Respondent. When Cohn got Respondent's attention, Respondent both looked at Cohn and walked to the doorway in a normal manner, thereby giving no warning that he intended to touch Cohn in any way. Respondent interpreted Cohn's beckoning with his finger as an invitation to fight, although Respondent admits that Cohn said nothing to him indicating that he wished to fight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Notice of Charges, approving Respondent's suspension and dismissing him as an employee of the School Board of Dade County, and denying any claim for back pay. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
The Issue The issues to be determined are whether Respondent violated the provisions of Section 1012.795(1)(d), (g) and (j), Florida Statutes (2008), and Florida Administrative Code Rule 6B- 1.006(3)(a), (e), and (f); (4)(b); and (5)(a) and (h), as alleged in the Administrative Complaint, and if so, what penalty should be imposed for the proven violations?
Findings Of Fact Petitioner is the state agency responsible for the certification and regulation of public school teachers in the State of Florida. Respondent holds Florida Educator's Certificate number 807545, covering the area of varying exceptionalities, valid through June 30, 2014. At all times material to these proceedings, Respondent was employed as an exceptional education teacher at Crest School in the Citrus County School District (School District). She began her employment at Crest School in 2005. During her previous employment in Dade County, she had been named Teacher of the Year, and immediately prior to the incident at issue in this case, she was nominated as Crest School's candidate for Teacher of the Year in Citrus County. Crest School is a school limited to students with intellectual or behavioral disabilities. Safety Procedures at Crest School Students attending Crest School are exceptional education students who are required by state and federal law to have Individual Education Plans (IEPs) that are developed after an IEP meeting involving instructional staff and the student's parents. While an individual instructor can draft suggested changes in between IEP meetings conducted for a student, a teacher cannot unilaterally change a student's IEP. The student population at Crest School presents significant challenges in terms of student safety. The school has developed a "safe school plan" for which all personnel receive training. The safe school plan includes the use of "codes" for different levels of required intervention. A Code 1 signifies that the student is in control but is disturbing the educational process of other students. In this instance, the student is placed in time-out. Assistance is requested in order to have specific staff member(s), as opposed to a crisis intervention team, assist with the student. A Code 2 is called when a student is endangering himself or herself or others. In this instance, the Code 2 team is used, and Crisis Prevention Intervention (CPI) techniques are employed. A team approach is used, and decisions are formulated by the team as a group. The first priority is to ensure that everyone is safe, and then to use CPI techniques to, hopefully, diffuse the situation. Approaches used in response to a Code 2 include clearing the room of other students, and/or taking the disruptive student to a designated time-out area, which may be in the classroom or may be a separate Behavioral Transition Room (BTR), or a secured seclusion room. Respondent used the term "time-out" interchangeably, to reference use of any of the above-referenced locations. A Code requesting assistance is called by using handheld radios that most teachers, including Respondent, carried, or by pressing a call button in the classroom. Some if not all members of a Code 2 team should be able to respond in a minute or less. The CPI team response in a particular instance should be guided by the student's IEP, and what interventions are authorized for that student. In approximately April 2008, Crest School also adopted a policy that required signed parental consent before a student could be placed in a BTR. At the time of the incident at issue in this case, however, in practice, IEPs were not always followed because not all members of a CPI team were familiar with the IEP for the student whose behavior was at issue. Similarly, while parental consent forms were collected and kept in the office, whether an individual student's parents had given permission for use of a BTR would not necessarily be verified when an emergency situation arose. If a truly dangerous situation was at hand, the need for safety of all students would generally override the terms of an individual's IEP. There are no state or School District regulations regarding the use of seclusion areas like the BTR. The policies in place at Crest School were based on "best practices" bulletins received from the Department of Education. A BTR is a small room with no stimulation where a child could calm down. It has concrete walls, a tile floor and no furniture. Unlike a secured seclusion room, it can be opened from the inside. Each time a student is placed in a BTR, use of the room for the child is to be noted in a log book, and the parents of the student are supposed to be notified. Student R.K. R.K. is a student at Crest School who, at the time of the incident in January 2009, was twelve years old, about 5 feet, 6 inches tall, and described as very strong. R.K. suffers from Autism Spectrum Disorder, and is classified as severely autistic. R.K. can be aggressive and sometimes violent, especially toward staff. From approximately 2005 until late January 2009, R.K. was in Respondent's class at Crest School. When R.K. had a tantrum, he would often sit on the floor on his knees and rock back and forth. From that position, he would sometimes lunge at staff and hit, scratch or punch, usually directed toward a person's upper torso. Respondent was familiar with, and had often been the recipient of injuries as a result of, R.K.'s behavior. An IEP meeting was held for R.K. in March 2008. Among the participants at the IEP meeting were Respondent and R.K.'s parents, both of whom are medical doctors. During the meeting behavioral strategies were discussed. R.K.'s parents did not want time-out to be used to address R.K.'s behavior and did not consent to use of the BTR or to secured seclusion. Shortly after R.K.'s IEP meeting, a Behavior Support Plan was developed for R.K. The Behavior Support Plan is extensive, and acknowledges his "challenging" behaviors. The Plan does not include time-out, but relies heavily on "planned ignore" strategies, redirection and positive reinforcement. The Behavior Support Plan is very specific in terms of interventions to be used for challenging behavior, and provides the following: At the first signs of challenging behavior call for back up. Crisis Prevention Intervention (CPI) Use the most effective and least intrusive CPI technique, to manage the challenging behavior at hand. --Instructional Calm Down If [R.K.] has a tantrum use instructional control by briefly prompting him to 'calm down' or 'cool off'. If he does calm down on his own or following this prompt state 'that's better'. If the behavior should continue or escalate, be prepared to intervene per procedure. Often [R.K.'s] expression of challenging behavior will not escalate if he is given time and space. Remember to only prompt him, wait five minutes and then prompt again. This is done 4 times 5 minutes apart. If he is obviously irritated or agitated do not continue to prompt him. Leave him alone until he has been calm for at least one minute. If he is a danger to himself or others he should be removed to a safe area. --Return to task * * * If [R.K.] is physically striking out, such as pinching, at either an instructor or another person, he is to be blocked. If he is in his workroom setting the instructor is to remove him or herself from the immediate area. Planned ignore requires that the instructor maintain a watch on [R.K.] but not give eye contact during the inappropriate behavior. When [R.K.] has been calm for one minute the instructor is to return to the work area saying, 'That's better. Good calming down [R.K.]' in a neutral tone. If [R.K.] engages in behavior that places himself or another in danger he should be moved to a safe area. If [R.K.] is striking out in a hallway or other open area of the school, a verbal statement is used, '[R.K.], No, Stop, hands down.' Planned Ignore is used after a verbal prompt if [R.K.] is no longer putting himself or others at risk. If he continues to strike out, the instructor will call for backup to bring [R.K.] to a quiet area to calm down. He should be calm for 1 minute before he is prompted again to go to the original destination. . . . An exception is made ot [sic] the planned ignore rule if [R.K.] must be removed for safety reasons. (Emphasis supplied.) While the Behavior Support Plan is not signed by either parent or any member of the IEP team, persuasive evidence was presented that the parents knew of and were supportive of the plan. It was Dr. V.K.'s understanding that the quiet area referred to was a portion of the classroom that was separated from the rest of the room by a curtain, and identified as a sensory area. The sensory area was dark and contained little stimulation, so R.K. could retreat and calm down. Notwithstanding the terms of the Behavior Support Plan, there were at least two incidents prior to January 23, 2009, when R.K. was placed in the BTR. While Respondent insists that R.K.'s parents were notified, no competent, persuasive evidence was presented that demonstrates that R.K.'s parents were ever specifically notified that the BTR was used. The January 23, 2009, Incident On Friday, January 23, 2009, R.K. was in Respondent's classroom. Respondent left the classroom at approximately 12:29 p.m., leaving the students under the supervision of teacher aides, including Ms. Murphy. Ms. Murphy took R.K.'s backpack from him, a move which he resisted. R.K. then sat on the floor and began rocking back and forth. He continued to sit, rocking, for several minutes. At approximately 12:36 p.m., a female student passed by R.K. on the way to her desk. It is unclear whether she spoke to him, but R.K. lunged toward the female student, who remained standing in front of him. Respondent walked into the room as R.K. was moving toward the other student. Respondent immediately took R.K. by the arm and started pulling him toward the door, into the hallway, and ultimately to the BTR. R.K. remained on his knees all the way to the BTR. Respondent testified that she believed the female student was in immediate danger, and decided to take R.K. to the BTR because she had other, medically fragile, students in her room that made movement of those students problematic. However, Respondent made no attempt to follow any of the techniques described in R.K.'s Behavior Support Plan, and did not call a Code 2 in accordance with Crest School procedure. She moved R.K. directly to the BTR as her intervention of first resort. The lights in the BTR had to be turned on by someone who had a key, and Respondent did not have a key to the BTR room. As a result, R.K. was placed in a dark room by himself, with Respondent sitting outside the room, monitoring him through a small window on the door. Respondent did not call anyone to assist by turning on the lights in the room. R.K. was placed in the BTR at approximately 12:37 p.m. One minute later, Mr. Elliott, another staff member approached with a wheelchair-bound student, who was placed in the BTR with R.K. Mr. Elliott was not concerned about the second student's safety while in the BTR with R.K. because R.K.'s aggression is normally directed at staff as opposed to other students. Both teachers struggled with R.K. as they attempted to leave the BTR. After two minutes, the second student was removed from the BTR, and again R.K. struggled with Respondent while the student was removed. At that time, Mr. Elliott was concerned about Respondent's safety because R.K. was attacking her. He did not observe any injury to R.K. At approximately 12:41 p.m., R.K. was able to open the door partway, and Respondent closed the door. It appears from the surveillance video (Petitioner's Exhibit 14) that R.K.'s hand was caught in the door and may have been injured at that time. It is unclear at what point Respondent knew that R.K. was injured, but the more persuasive evidence indicates that by 12:46 p.m., when Matt McCraine, another teacher at the school, walked by, Respondent was aware that R.K. was injured. There is no evidence to indicate that she understood the extent of his injury. However, she had not called for any nursing assistance. Mr. McCraine asked who was in the BTR and why the lights were off. When he indicated that the lights needed to be turned on, and Respondent responded that R.K. would need to be moved away from the door because he had cut his finger. Mr. McCraine opened the door and turned on the light to the BTR. At that time, he observed blood on the door and on the floor of the room. Mr. McCraine called for a nurse, who arrived at approximately 12:48 p.m. 911 was called and at approximately 1:06 p.m., paramedics arrived to transport R.K. to the hospital. R.K.'s parents were notified of the injury and requested that someone who knew R.K. accompany him in the ambulance, and Respondent did so. R.K.'s finger was fractured and severely lacerated. He was required to undergo surgery to treat the finger, and required anesthesia for the placement of sutures and for their removal. Events Following the Incident Following the January 23, 2009, incident, there were questions regarding whether R.K.'s parents had consented to the use of the BTR, and whether a parental consent form had been obtained. Mr. Posta, the principal at Crest School, asked Respondent to provide several documents related to R.K., including the parental consent form for use of the BTR for R.K. Respondent could not find a signed copy of the form. She asked one of her teaching assistants, Ms. Murphy, to cut the signature of one of R.K.'s parents from another document in his file. Ms. Murphy did so, and Respondent pasted the parental signature onto a blank permission form, and turned in the doctored form to administration. Anita Moon, an assistant principal at Crest School, examined the form and did not believe that the signature was authentic, and upon comparison, the signature did not match the signature on other official documents on file. She went to Respondent's classroom and asked for R.K.'s working file. One document was sticking out of the file, and Respondent started to remove the loose document before handing the file to Ms. Moon. Ms. Moon told her she needed the complete file. When Ms. Moon examined the file, she found the loose paper to be a daily note from R.K.'s mother. The note stated: Dear Ms. Heather [R.K.] had a good weekend. Regarding the permission for inclusion/secured seclusion time out -- may be we will discuss it in the IEP meeting next mth. before consenting to it. Have a good day! Thanks The signature from the note was missing and had been cut out. Also included in the file were unsigned consent forms for use of secured seclusion and isolation time out. Soon thereafter, there was an investigation of the incident resulting in R.K.'s injury. As part of the investigation, Respondent was interviewed. She told the interviewer that she placed R.K. in the BTR because when she came in the classroom, he was physically on top of the other student. The surveillance video of the classroom clearly shows that this was not the case. She also stated that R.K.'s parents had given written permission for R.K. to be placed in the BTR. When confronted with the doctored note and asked to explain, she admitted that she had taken the signature from the parental note and pasted it to the parental consent form. Respondent also admitted making the doctored form when she testified at hearing. She claimed that R.K.'s parents had consented to use of the BTR, and that when she could not find the signed forms, she panicked. The more persuasive evidence supports a finding that no consent had been given to use the BTR for R.K. Respondent was terminated from her position at Crest School as a result of the events described above. The case received significant media attention in the local area, both in terms of print media and local television news coverage.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding Respondent guilty of violating Section 1012.795(1)(d), and (j), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a) and (f); (4)(b); and (5)(a) and (h), as charged in Counts 1-4 and 6-9 of the Administrative Complaint. As a penalty for these violations, it is recommended that Respondent's teaching certificate be revoked. DONE AND ENTERED this 15th day of July, 2010, 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 15th day of July, 2010.
The Issue The central issue in this case is whether the Respondent, Sean F. McKinney, should be placed in the Dade County School Board's opportunity school program due to his alleged disruptive behavior and failure to adjust to the regular school program.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: During the 1986-87 academic year; Respondent attended Miami Carol City Senior High School in Dade County, Florida. During the 1985-86 school year, Respondent attended junior high school and received failing grades in all of his academic courses. Respondent's promotion to Miami Carol City Senior High was done in error. Respondent's grades for the 1986-87 school year, the first two grading periods, were as follows: COURSE ACADEMIC GRADE EFFORT CONDUCT Mathematics 1st F 3 D 2d F 3 F Physical 1st F 3 F Education 2d F 3 F Language 1st F 3 F Arts 2d F 3 F Communications Social 1st F 3 D Studies 2d F 3 D Language 1st F 3 C Arts Readings 2d F 3 C Industrial Arts 1st F 3 F Education 2d F 3 F Science 1st F 3 F 2d F 3 F SYMBOLS: GRADE "F" UNSATISFACTORY EFFORT "3" INSUFFICIENT CONDUCT "C" SATISFACTORY CONDUCT "D" IMPROVEMENT NEEDED CONDUCT "F" UNSATISFACTORY Respondent was administratively assigned to the opportunity school on March 23, 1987. Respondent did not enroll at the opportunity school and did not attend classes. Consequently, Respondent's academic record for the 1986-87 term ends with the second grading period. When a student is disruptive or misbehaves in some manner, a teacher or other staff member at Miami Carol City Senior High School may submit a report of the incident to the office. These reports are called Student Case Management Referral forms and are used for behavior problems. During the first two grading periods of the 1986-87 school year Respondent caused nine Student Case Management Referral Forms to be written regarding his misbehavior. All incidents of his misbehavior were not reported. A synopsis of Respondent's misbehavior is attached and made a part hereof. Theresa Borges is a mathematics teacher at Miami Carol City Senior High School in whose class Respondent was enrolled. While in Ms. Borges' class, Respondent was persistently disruptive. Respondent was habitually tardy and/or absent from Ms. Borges' class. When Respondent did attend class he was ill- prepared and refused to turn in assigned work. When Respondent did attempt to do an assignment it was unsatisfactorily completed. The Respondent refused to work and would put his head down as if sleeping in class. On one occasion Respondent grabbed a female student between the legs. Respondent's disruptive behavior was exhibited on a daily basis in Ms. Borges' class. Larry Williams is an English teacher at Miami Carol City Senior High School in whose class Respondent was enrolled. Mr. Williams caught Respondent fighting with another student in class. Respondent failed to complete homework assignments for Mr. Williams and turned in only 3-5 percent of his work. Respondent was disruptive and would walk around the classroom talking to other students. Since Respondent was habitually tardy he would interrupt the class with his late arrival. William E. Henderson is the assistant principal at Miami Carol City Senior High School. Mr. Henderson received the Student Case Management Referral forms that were submitted for Respondent and counseled with him in an effort to improve Respondent's conduct. Additionally, Cora McKinney was contacted with regard to Respondent's discipline and academic needs. Respondent's behavior problems were discussed in-depth with Mrs. McKinney. Such conferences did not result in any changed behavior on Respondent's part. While Mrs. McKinney made a sincere and continuing effort to bring Respondent's grades and behavior into line, such efforts did not alter Respondent's lack of progress.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order affirming the assignment of Respondent to Douglas MacArthur Senior High School-North. DONE and ORDERED this 24th day of August, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1955 Rulings on Petitioner's Proposed Findings of Fact: Adopted in substance in FF #1. Adopted in substance in FF #3. Adopted in substance in FF #2. Adopted in substance in FF #6. Adopted in substance in FF #6. Adopted in substance in FF #6. Adopted in substance in FF #7. Adopted in substance in FF #7. Rejected as hearsay as to whether this student instigated the fight; otherwise adopted in substance in FF #7. Adopted in substance in FF #5 and attached Synopsis. Adopted in substance in FF #8. Adopted in substance in FF #8. Rejected as unnecessary. COPIES FURNISHED: Jaime Claudio Bovell 370 Minorca Avenue Coral Gables, Florida 33134 Cora McKinney 3450 Northwest 194th Terrace Carol City, Florida 33054 Mrs. Madelyn P. Schere Assistant School Board Attorney The School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 SYNOPSIS OF STUDENT CASE MANAGEMENT REFERRAL FORMS SEAN F. MCKINNEY DATE INCIDENT DISCIPLINE September 26, 1986 excessive absences counseled October 16, 1986 excessive unexcused tardies and absences from class (period) Three days SCSI October 28, 1986 not attending classes conference with mother 3 days SCSI December 11, 1987 fighting excessive tardies 10 days suspension January 13, 1987 disruptive behavior, [grabbed girl between legs] five days SCSI February 5, 1987 defiant, refused to leave school property after hours 5 day suspension March 17, 1987 defiant, in halls unapproved time, left office without permission conference with parent, initiated opportunity school processing March 20, 1987 not attending school 10 day suspension
Findings Of Fact The Respondent holds Florida Teaching Certificate 431123 issued by the Florida Department of Education including the subject areas of business education, mathematics and vocational education. During the 1981-82 school year involved in this proceeding, the Respondent was employed as a teacher at Brownsville Middle School in the Escambia County School District. The Petitioner is an agency of the State of Florida charged with licensing and enforcing the licensure standards embodied in its organic statute and rules and with regulating and enforcing the standards of professional practice of teachers licensed in the State of Florida, including the institution of disciplinary proceedings against teachers for alleged violation of those standards. During the month of April, 1982, the Respondent served as one of eight chaperones for the Pensacola High School senior class trip to various points of interest in the State of Florida, including Busch Gardens in Tampa. Transportation for the trip was provided by four busses with two chaperones assigned to each bus. While on the trip the group took a brief cruise off the east coast of Florida, visited the Kennedy Space Center on Saturday and returned to Tampa on Saturday afternoon. The group had dinner at the Kapok Tree Inn Restaurant on Saturday evening and then visited Busch Gardens on Sunday. The class then returned to Pensacola directly from Busch Gardens without staying overnight Sunday. They arrived back in Pensacola in the early hours of Monday morning. There were eight chaperones, three of whom were male. Senior student Joe Blake was among the students on the senior class trip. The Respondent knew Joe Blake prior to the senior class trip because she served as a substitute teacher during the Spring of 1979 for a class at Pensacola High School in which Joe Blake was enrolled. Deborah Greene is a learning disabilities teacher at Pensacola High School. She also served as a chaperone for the senior class trip and shared a hotel room with the Respondent. Prior to accompanying the seniors on their trip in April, 1982, Ms. Greene had never met the Respondent. Joe Blake rode the same bus that Ms. Greene and Ms. Holmes rode on the trip, and on which they served as chaperones. On the Saturday afternoon bus trip from the Kennedy Space Center to Tampa, Florida, the Respondent hugged Joe Blake by placing her arm around him while they were both standing in the aisle of the bus. This action was done in a joking, lighthearted manner at a time when both Blake and Respondent were surrounded by other students. The Respondent also sat with Joe Blake near the rear of the bus on the ride from Kennedy Space Center to Tampa. They were observed with two of their arms intertwined and listening to a large radio which they were holding across their laps. Petitioner's Exhibit 2B in evidence, shows that the Respondent took a nap for part of the bus trip across the state, and was photographed with her head resting on Joe Blake's shoulder. Upon arriving in Tampa on Saturday afternoon, the class and the chaperones had supper at the Kapok Tree Inn and thereafter returned to their hotel rooms. Both Ms. Greene and the Respondent spent a considerable amount of time that evening checking the student's rooms and monitoring the halls and ensuring that the students engaged in no misconduct, were not absent from their rooms and unaccounted for. Ms. Greene finally went to bed at approximately 2:30 a.m. Sunday morning and the Respondent went to bed sometime thereafter. On this evening Ms. Greene and the Respondent were sharing a hotel room. Respondent was not in the room when Ms. Greene went to bed. Ms. Greene testified that she awoke sometime later to sounds of kissing, moaning and other indistinct noises and she heard the Respondent say "Joe, quit, be quiet, be quiet." According to Ms. Greene, the Respondent was lying in a recumbent position on the bed with the student named Joe Blake. Ms. Greene believed that she was awake for about an hour and that she heard noises of what she assumed to be sexual intercourse during that time, describing the Respondent's tone of voice as "passionate." Ms. Greene awoke about 6:00 that morning and observed the Respondent leaving the room clad in her bathrobe. Joe Blake was asleep in the adjoining bed, unclothed from the waist up and covered otherwise. Ms. Greene went into the bathroom to get dressed and then stepped out into the hall, leaving the hotel room door partially open. Shortly thereafter Joe Blake got up and went to his room next door. At approximately that time, the Respondent explained to Ms. Greene that Joe Blake had come to her room, knocked on the door and she let him in to watch television, and that he had fallen asleep on her bed. The Respondent told Ms. Greene that she didn't know what to do about that so she just left him there explaining that she slept in a chair. The hotel room was in a darkened condition at the time Ms. Greene perceived the Respondent and Joe Blake in the room. Ms. Greene did not report the incident to anyone until the Spring of 1983, approximately one year later and on the occasion of a proposal to include the Respondent as a chaperone for the 1983 senior trip. Thus, at that time she discussed the matter with another teacher named Peggy Hess and ultimately reported the matter to Principal J. P. Cone, who obtained a written statement from Ms. Greene. Ms. Greene testified that she "really didn't know what to do about the situation." In any event, Ms. Greene was eventually questioned about the incident in September of 1983 by Pensacola High School Principal J. P. Cone. At that time she verbally related her observances to Mr. Cone and later provided him with a written Statement concerning the episode. After arising on Sunday morning, the senior class and their chaperones, including the Respondent and Dean Barbara Rose, another chaperone, visited Busch Gardens in Tampa. While Dean Rose observed the Respondent walking hand-in-hand with Joe Blake on one occasion while the class was visiting Busch Gardens, she did not consider that unusual under the circumstances. J. P. Cone, the Principal of Pensacola High School, received a report, concerning the incident involving the Respondent being observed holding hands with Blake at Busch Gardens, from Barbara Rose on September 13, 1983. Mr. Cone obtained a written statement from Debbie Greene concerning the incident in the hotel room on September 1, 1983. That written statement and the verbal statement made by Ms. Greene to Mr. Cone contained no reference to the fact that Ms. Greene allegedly heard sounds of sexual intercourse. An investigation was conducted by Mr. Cone and the Respondent ultimately was issued a reprimand. Mr. Cone also received a written report prepared by Margaret Hess, another chaperone on the trip which was introduced into evidence by Respondent. In that written statement, Ms. Hess acknowledged that she knew of the report made by Debbie Greene, but stated that she had observed nothing that would have indicated such an event had taken place based upon her observance of the Respondent and Joe Blake's conduct on the trip. Ms. Hess explained that she had seen the Respondent with Joe Blake and other students at Busch Gardens and observed them holding hands on one occasion but had not considered that in itself unusual. The Respondent is a 35-year old woman with two teen age sons. She took the stand in her own defense and stated that she had no contact of a romantic nature with Joe Blake, explaining that she considered such conduct ridiculous since she was approximately 17 years his senior. Ms. Holmes described Joe Blake as banging on the door of her hotel room and creating a disturbance on the night in question. When she opened it he appeared to be intoxicated. She maintains that although he made an advance and attempted to kiss her or hug her, including pulling her down beside him on the bed, that this was at his behest and not hers and that she resisted and discouraged his conduct immediately. Thereafter Blake fell asleep for the remainder of the night, and she stated that she spent the remainder of the night sleeping in a chair. She told the other chaperones the next morning that Blake was asleep in her room so that they would not be concerned about his whereabouts. Charles Franklin Beall is a minister at Trinity Presbyterian Church in Pensacola, Florida. The Respondent has been his parishioner for approximately twelve and one-half years and she has a good reputation in the community for truthfulness. Lucy Mitchell, an Occupation Placement Specialist at Pensacola High School has known the Respondent for approximately seven years and considers her to be "highly respected." Aside from the disciplinary measure of a reprimand imposed by Principal Cone, concerning this incident, the Respondent was not shown to have ever been subjected to disciplinary action in the past.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Administrative Complaint should be DISMISSED. DONE and ENTERED this 20th day of December, 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Donald Griesheimer, Executive Director Education Practices Commission The Knott Building Tallahassee, Florida 32301 Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
