The Issue Whether just cause exists for Petitioner to terminate Respondent's employment as a teacher.
Findings Of Fact Based on the parties' stipulations and the competent substantial evidence adduced at the final hearing, the following findings of fact are made: The Parties Petitioner, Broward County School Board, is charged with the duty to operate, control, and supervise free public schools in Broward County pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes. Respondent has been employed by the District as a physical education teacher since 2004. His last teaching assignment was as a physical education teacher at Crystal Lakes Middle School in Pompano Beach, Florida. Administrative Charges The alleged conduct giving rise to this proceeding occurred on or about May 18, 2018. The Administrative Complaint alleges that on that day, Respondent did not fully cover his early morning duty in the school cafeteria, did not fully attend his assigned homeroom, and did not attend his first period class, thereby leaving his students unsupervised for part of those periods; and reported to work under the influence of controlled substances——specifically, alcohol and cocaine. As a result of this alleged conduct, Petitioner has charged Respondent, in the Administrative Complaint, with violating Florida Administrative Code Rule 6A-5.056(2), (3), (4), and (5), and specified provisions of school board policies 2400, 4008, and 4.9, discussed in greater detail below. Events Giving Rise to this Proceeding On the morning of May 18, 2018, Respondent reported to work under the influence of alcohol and cocaine, both of which are defined as "controlled substances" by school board policy. As a result, Respondent did not fully cover his early morning cafeteria duty, did not fully attend his assigned homeroom, and did not attend his first period class. A fellow physical education teacher, Cindi Ancona, was forced to cover Respondent's first period class. During the portions of the periods in which Respondent was not present in his classroom and in which Ancona was not covering his class, his students were left unsupervised. Ancona saw Respondent at the beginning of second period. When she questioned Respondent regarding his whereabouts during first period, she noticed that he appeared confused and off— balance and that his eyes were glassy, so she sent a text message to Sabine Phillips, the Principal at Crystal Lake Middle School, regarding Respondent's demeanor and appearance. Phillips and Assistant Principal Ben Reeves responded to Ancona's text message. Reeves entered the boys' locker room and found Respondent lying down in his office outside of the locker room. Phillips then entered the locker room and told Respondent that he needed to go to the office with her and Reeves. In the course of questioning Respondent about where he had been during his first period class, Phillips surmised, and informed Respondent that she had reasonable suspicion, that he was under the influence of controlled substances. Phillips contacted the District's Special Investigative Unit to request that Respondent be subjected to testing to determine whether he was under the influence of controlled substances. Phillips followed the designated procedures, which entailed completing and transmitting a completed Incident Report Form to the designated District personnel. The Risk Management Department determined that the requested testing was warranted and transmitted an Anti—Drug Program Passport to Phillips, who delivered it to Respondent. The Anti—Drug Passport informed Respondent that he would be subjected to controlled substances testing, and that the testing would be performed at Crystal Lakes Middle School. Respondent consented to the drug and alcohol testing. The Risk Management Department sent an employee health testing collector to Crystal Lake Middle School, where she conducted a breath alcohol and urine test on Respondent. The breath alcohol testing indicated that Respondent had blood alcohol levels of .101 and .095, both of which exceed the blood alcohol level of .04 that Petitioner has adopted as the threshold for being under the influence of alcohol. Petitioner's third—party contractor confirmed that Respondent had a blood alcohol level of .095 at the time he was tested. Julianne Gilmore, an environmental health testing specialist with the District's Risk Management Department, contacted Phillips and Respondent, notifying them both that Respondent was being placed on Administrative Reassignment and was to remain at home——i.e., not report to work——pending the result of the drug testing. This informal contact was followed by a letter dated May 21, 2018, confirming that Respondent had been placed on Administrative Reassignment and directing him to stay home pending further notice.1/ Gilmore also advised Respondent of the availability of the District's Employee Assistance Program ("EAP"), participation in which was not mandatory.2/ The results of Respondent's drug test were received by the Risk Management Department on or about June 1, 2018. Respondent tested positive for cocaine. Respondent does not dispute that he was under the influence of alcohol and cocaine while at school on May 18, 2018, and also does not dispute accuracy of the results of the blood alcohol and drug tests. Upon receiving the results of Respondent's drug test, it was determined3/ that Respondent's employment with the District should be terminated, notwithstanding that the next step in sequential progressive disciplinary process ordinarily would be suspension. A significant consideration in this decision was that Respondent had left his students unsupervised, placing their safety at risk. No evidence was presented that the students in Respondent's class were actually physically or psychologically injured or harmed as a result of Respondent being absent from his classroom on May 18, 2018. Prior Discipline Petitioner has a policy (Policy 4.9, discussed below) of imposing discipline in a progressive manner, which means that discipline typically is imposed in sequential steps in order to afford the employee the opportunity to correct his/her conduct and performance before he/she is suspended or terminated. The progressive discipline policy authorizes sequential disciplinary steps to be skipped for sufficiently severe misconduct. Petitioner previously has disciplined Respondent. On April 21, 2016, Petitioner issued a Summary of Conference memo, memorializing a conference in which Respondent was verbally admonished for having briefly left the students in his class unattended while he took an injured student to the physical education office to tend to his injury, during which time some of the students physically assaulted other students in the class. On February 10, 2017, Petitioner issued a Verbal Reprimand to Respondent, reprimanding him for being tardy to, and absent from, work without following the proper protocol for entering an absence. On December 1, 2017, Petitioner issued a Written Reprimand to Respondent, reprimanding him for continuing to be tardy to, and absent from, work without following the proper protocol for entering an absence. On February 14, 2018, Petitioner issued another Written Reprimand to Respondent, reprimanding him for consistently failing to follow absence/tardy—reporting procedures, resulting in his students being left unsupervised. He was informed that if he again failed to adhere to the appropriate procedure, he would be subject to further discipline, including possible termination of his employment. Other Key Considerations in this Proceeding Respondent was forthright in admitting that he suffers from a substance abuse problem. In 2016, Respondent sought help for his substance abuse issue through the District's EAP program at Phillips' suggestion, but did not complete the program——in part because he did not find its methods helpful in dealing with his problem, and in part because he believed that he could overcome his problem on his own as he always had done in his life. Respondent has come to realize that he cannot overcome his substance abuse problem on his own and that there is no shame in asking others for help in dealing with his problem. To that end, Respondent participated in, and has completed, the Evolution substance abuse program, which consisted of counseling sessions three to four days a week, for a three—to— four—month period, and attending therapy classes and meetings each week. As a condition of participation in Evolution, Respondent was subject to random substance abuse testing. He did not test positive for alcohol or drug use during his participation in the program. The spiritual counseling and substance abuse trigger counseling that Respondent received in the Evolution program have resonated with him and have helped him successfully address his substance abuse problem.4/ In order to avoid backsliding, Respondent remains in weekly contact with one of his therapists at Evolution, and attends meetings three to four times a week, to place himself in an environment that enables and fosters his success in fighting his substance abuse problem. Since commencing Evolution, Respondent has not engaged in alcohol or drug use. Respondent expressed remorse at his behavior and poor judgment at having reported to work under the influence of controlled substances on May 18, 2018. He testified that he did so because he previously had been reprimanded for being absent, and was concerned about missing more school. He recognized that his choice to go to school in that condition was "bad thinking at the time." Respondent credibly testified that he greatly enjoys teaching and that he chose teaching as a career because he loves working with kids, relates well to them, and believes he can help them. His colleague, Tyrell Dozier, testified that Respondent gets along well with his students and is a caring, effective teacher. Findings of Ultimate Fact As noted above, the Administrative Complaint charges Respondent with having violated State Department of Education rules and specified school board policies. Specifically, Petitioner has charged Respondent, pursuant to rule 6A—5.056, with misconduct in office, incompetency, gross insubordination, and willful neglect of duty. Petitioner also has charged Respondent with violating school board policies 2400(1) and (3); 4008 B.1., 3., and 8. and certain provisions of Policy 4.9. Whether the charged offenses constitute violations of the applicable rules and policies is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985)(whether there was a deviation from the standard of conduct is not a conclusion of law, but instead is an ultimate fact); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether a particular action constitutes a violation of a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, and policies is a question of ultimate fact). Based on the foregoing, it is found, as a matter of ultimate fact, that Respondent violated some, but not all, of the rules and school board policies charged in the Administrative Complaint. By engaging in the conduct addressed above, Respondent committed misconduct in office under rule 6A—5.056(2), which includes violating Florida Administrative Code Rule 6A— 10.081(2)(a), by having left his students unsupervised. By engaging in the conduct addressed above, Respondent engaged in conduct constituting incompetency under rule 6A—5.056(3). By engaging in the conduct addressed above, Respondent engaged in conduct constituting gross insubordination under rule 6A—5.056(4). By engaging in the conduct discussed above, Respondent engaged in conduct constituting willful neglect of duty under rule 6A—5.056(5). Respondent violated Policy 2400(1) by reporting to work while under the influence of controlled substances. However, no evidence was presented that Respondent was in possession of, or used, a controlled substance while on school board property or at a school—sponsored activity. Rather, the evidence establishes that Respondent consumed alcohol and used cocaine in a social setting the night before he reported to school on May 18, 2018. Therefore, the evidence does not establish that Respondent violated Policy 2400(3), as charged in the Administrative Complaint. Policy 4008, subsections (B)1. and 8., requires school board employees to comply with State Board of Education rules and school board policies. As discussed above, the evidence shows that Respondent violated rule 6A—5.056(2), (3), (4), and (5), and rule 6A—10.081(2)(a). In violating these rules, Respondent violated Policy 4008, subsections (B)1. and 8. However, the evidence does not establish that Respondent violated Policy 4008B, subsection 3., as charged in the Administrative Complaint. This policy imposes on instructional personnel the duty to "Infuse in the classroom, the District's adopted Character Education Traits of Respect, Honesty, Kindness, Self—control, Tolerance, Cooperation, Responsibility and Citizenship." While Respondent's conduct in reporting to school under the influence of controlled substances on May 18, 2018, may not have constituted self—control or respect for his duties as a teacher on that specific day, no evidence was presented regarding Respondent's behavior in the classroom—— whether on that day or on any other day. To the contrary, as discussed above, the evidence established that Respondent is a caring and effective teacher in dealing with his students. Accordingly, it is determined that Respondent did not violate Policy 4008, subsection B.3. The evidence establishes that Respondent violated Policy 4008(C), which requires instructional personnel to be on duty for a minimum of 7.5 hours on an instructional day. However, the evidence does not establish that Respondent violated the provision in Policy 4008, "Miscellaneous" section, which states that "all members of the instructional staff shall be expected to teach a full schedule of classes, unless prior approval from the area superintendent or superintendent is obtained." Policy 4008 establishes the overarching responsibilities and duties of Principals and instructional personnel in the context of performing their employment contracts. In this context, the "full schedule of classes" provision refers to a teacher's instructional schedule assignment for the school year rather than a specific per—hour requirement. In fact, to read this provision as urged in the Administrative Complaint would render it redundant to the statement (also in the "Miscellaneous" section) that "instructional personnel must be on duty a minimum of seven and one—half hours (7 1/2) hours daily. The Administrative Complaint also charges Respondent with having violated the District's progressive discipline policy, Policy 4.9. As more fully discussed below, it is found that Respondent that did not violate this policy. Based on the foregoing, it is found, as an ultimate fact, that although Respondent violated the rule and many of the school board policies charged in the Administrative Complaint, under the progressive discipline policy set forth in Policy 4.9, the appropriate penalty that should be imposed on Respondent in this case is suspension without pay for the entire period during which he has been reassigned from the classroom. Additionally, Respondent should be required to submit to random drug and alcohol testing, at his personal expense, as a condition of his continued employment by Petitioner.5/ This penalty is appropriate based on the fact that Respondent has not previously been subject to suspension without pay under the progressive discipline policy, and takes into account several relevant considerations: specifically, that Respondent has a substance abuse problem for which he actively sought——and finally has been able to obtain——real, effective help in overcoming; that he has an approximately 14—year employment history with Petitioner that only, in the last two years, entailed discipline as the result of conduct that was caused by his substance abuse problem; that he is remorseful, understands that he made poor choices, and has obtained the counseling and therapy he needs in order to correct his performance problems through overcoming his substance abuse problem; that he is a caring and effective teacher who loves children and enjoys his teaching job; and, importantly, that no students were injured or otherwise harmed by Respondent's conduct on May 18, 2018. This penalty also is sufficiently severe to deter Respondent from committing future violations of rules and school board policies, and sends the message that this is truly his last chance.
Conclusions For Petitioner: Douglas G. Griffin, Esquire Broward County School Board Office of the General Counsel 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 For Respondent: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order suspending Respondent from his teaching position without pay commencing on the date on which he was reassigned from the classroom; reinstating Respondent to his teaching position; and requiring Respondent to submit to random drug and alcohol testing, at his personal expense, as a condition of his continued employment. DONE AND ENTERED this 17th day of July, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 17th day of July, 2018.
Findings Of Fact Charles Duhart resides at 956 Forest Ridge Court, Apartment 202, Lake Mary, Florida. His residence is a condominium, which he owns. He has resided there for 10 months. Mr. Duhart was married to Mary Duhart in April, 1974. The Final Judgment of Dissolution of Marriage entered October 25, 1988, which terminated their marriage, states: The parties shall have shared parental responsibility for the minor children of the marriage. The Wife is designated as the primary residential custodian of the minor children of the marriage. The non-custodian parent, the Husband, shall have liberal and reasonable contact and visitation with the children of the marriage, subject to reasonable notice by the Husband to the Wife. . . . Mary Duhart resides at 121 Wildwood Drive, Sanford, Florida. She and Mr. Duhart jointly bought the property in 1985, and she was awarded the property in the Final Judgment of Dissolution of Marriage. The two children in question are Katisha, who is 15 years old, and Serita, who is 14 years old. Both girls, together with a third child aged eight years, were born of the Duhart's marriage. During the 1988-89 school year, Katisha, who was in ninth grade, attended Lake Mary High School, and Serita, who was in eighth grade, attended Greenwood Lakes Middle School, as well as special programs at Lake Mary High School. Greenwood Lakes Middle School is in the Lake Mary High School attendance zone. Both girls enrolled in Lake Mary High School at the beginning of the 1989-90 school year. During the 1988-89 school year, the two children lived with their grandmother part of the time and their mother the remainder of the time. Their grandmother lived in the Lake Mary High School attendance zone. Mr. and Mrs. Duhart caused the grandmother to be appointed the legal guardian of the children, pursuant to Letters of Guardianship of the Person entered November 28, 1988. By so doing, under a procedure no longer available, the children could attend the schools whose attendance zone serves the grandmother's residence. This guardianship has never been dissolved or terminated. At the beginning of the 1989-90 school year, the two children went to live with their father, whose condominium is in the Lake Mary High School attendance zone. Although they spend the weekends with their mother and infrequent nights with their grandmother or at friends' homes, Katisha and Serita regularly reside with their father each weeknight from Sunday through Thursday nights, inclusive. Since the beginning of the 1989-90 school year began, the children primarily have lived with their father. Since the beginning of the 1989-90 school year, Mr. and Mrs. Duhart have reduced the child support payments required of Mr. Duhart by the Final Judgement of Dissolution of Marriage. Although Mr. Duhart continues to pay the usual amount through the clerk's office, Mrs. Duhart returns to him approximately one half of the support money in recognition of the fact that he now has two of the three children most of the time. By letter dated September 27, 1989, Respondent informed Petitioners that it had determined that Katisha and Serita were attending Lake Mary High School in violation of Policy 4.003. Consequently, the children had been administratively withdrawn from Lake Mary High School and administratively enrolled at Seminole High School, which serves their correct attendance zone, according to the letter.
Recommendation Based on the foregoing, it is hereby recommended that the School Board of Seminole County, Florida enter a Final Order enrolling Katisha and Serita Duhart in Lake Mary High School. RECOMMENDED this 22nd day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5898 Treatment Accorded Proposed Findings of Respondent 1-4: adopted. 5: rejected as subordinate. 6-10: adopted. 11: first sentence adopted as to children spending weekends with Mrs. Duhart and rejected as unsupported by the greater weight of the evidence as to the suggestion that they do not spend the remainder of the time with their father, with the possible exception of isolated overnight visits with friends or their grandmother. Remainder rejected as subordinate. 12: adopted. 13: rejected as irrelevant. 14: rejected as irrelevant and subordinate. 15: rejected as subordinate. 16: rejected as irrelevant. COPIES FURNISHED: Harry L. Lamb, Jr. Perry & Lamb, P.A. 135 Wall St., Ste. 200 Orlando, FL 32801 Ned N. Julian, Jr. Stenstrom, McIntosh, Julian, et al. P.O. Box 1330 Sanford, FL 32772-1330 Robert W. Hughes, Superintendent The School Board of Seminole County, Florida 1211 Mellonville Avenue Sanford, FL 32772 Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
The Issue Whether just cause exists for Petitioner to terminate Respondent’s employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times material to this case, Respondent was employed by the School Board as a physical education teacher at Riverglades Elementary School (“Riverglades”), pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes (2014). At all times material to this case, Respondent’s employment with the School Board was governed by Florida law and the School Board’s policies. 2007-2008 School Year On February 13, 2008, the executive director of the School Board’s Professional Standards and Special Investigative Unit issued to Respondent a written reprimand based upon allegations of assault and battery. On February 13, 2008, the principal of Village Elementary School, Respondent’s employer at the time, held a meeting with Respondent at which time Respondent was directed to: 1) “follow the school wide discipline plan”; 2) “take a class in Behavior Management and/or Classroom Management, such as ‘Champs’”; 3) “discipline with respect”; and 4) “not to yell at children” 2012-2013 School Year On March 7, 2013, Barton Christopher Duhart, interim principal at Riverglades, met with Respondent and directed that his: [l]anguage with all students be kept professional at all times. Please refrain from using language that is abusive or may be easily misconstrued as being abusive toward any students regardless of their behavior. 2013-2014 School Year On January 15, 2014, JoAnne Seltzer, interim principal at Riverglades, held an informal conference with Respondent regarding an alleged incident involving S.W., a fifth-grade student in Respondent’s physical education class. At that time, it was alleged that Respondent had grabbed S.W.’s arm, yelled at her in her ear, told her “to shut up,” and made inappropriate remarks about the way she talks. In the conference summary report issued on January 21, 2014, Principal Seltzer directed Respondent to refrain from touching, embarrassing, screaming at, or demeaning students in the future. The School Board proposed to suspend Respondent based on the alleged incident involving S.W. Respondent requested an administrative hearing to challenge the School Board’s proposed action. On August 24, 2015, following a one-day hearing, Administrative Law Judge F. Scott Boyd issued his Recommended Order in the case of Broward County School Board v. Robert Konnovitch, DOAH Case No. 14-2696TTS. Based on the evidence presented at the May 22, 2015, final hearing, Judge Boyd found, in pertinent part: On January 10, 2014, Respondent was attempting to move his students inside after their time on the playground. One student, S.W., was talking loudly and frustrating Respondent’s efforts. In response to this, Respondent pulled down on S.W.’s arm or wrist and screamed “Be quiet!” in her ear. S.W. was not physically harmed by this incident and did not cry. However, when asked about how the incident made her feel, she testified “not good.” As a result of Respondent’s conduct involving S.W. and evidence presented at that hearing, Judge Boyd concluded that Respondent was guilty of misconduct in office, incompetency, and insubordination, and recommended that Respondent’s employment be suspended for ten days without pay. Subsequently, the School Board entered a final order adopting Judge Boyd’s Recommended Order. The incident giving rise to the School Board’s proposed termination of Respondent in the instant case occurred on April 1, 2014. On April 1, 2014, M.Z. was a fifth-grade student in Respondent’s physical education class. Shortly before class ended, M.Z. was misbehaving and got out of line. In response to M.Z.’s misbehavior, Respondent became angry and threatened to punch M.Z. in the face. Respondent, who was standing very close to M.Z., turned around and yelled at M.Z.: “If you don’t get in line, then I will punch you in the face.” M.Z. was not physically harmed by this incident and did not cry. However, he was scared by Respondent’s threatening comment and got back in line. Respondent made the threatening comment in front of the entire physical education class. Respondent’s conduct was inappropriate and verbally abusive. Respondent could certainly have projected authority and corrected M.Z.’s behavior without the need to resort to a physical threat of violence.2/ The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A-5.056. By verbally threatening M.Z. with physical violence, Respondent violated Florida Administrative Code Rules 6A-10.081(3)(a) and (e) by failing to make reasonable effort to protect his students from conditions harmful to learning and intentionally exposing a student to unnecessary embarrassment or disparagement. Respondent also violated rules 6A-5.056(2)(d) and (e) by engaging in conduct which disrupted the students’ learning environment and reduced Respondent’s ability to effectively perform duties. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of incompetence in violation of rule 6A-5.056(3). By verbally threatening M.Z. with physical violence, Respondent failed to discharge his required duties as a teacher as a result of inefficiency. Respondent was inefficient by failing to perform duties prescribed by law and by failing to communicate appropriately with and relate to students. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of gross insubordination in violation of rule 6A-5.056(4) by intentionally refusing to obey a direct order, reasonable in nature, and given by and with proper authority. By failing to comply with the specific directives detailed above, Respondent intentionally refused a direct order, reasonable in nature, and given by and with proper authority. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of immorality in violation of rule 6A-5.056(1). The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of violating School Board Policy 4008(B). No such policy was offered into evidence at the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order upholding the termination of Respondent’s employment.3/ DONE AND ENTERED this 8th day of January, 2016, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 8th day of January, 2016.
The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1999.
The Issue The issue in the case is whether the Orange County School Board (Petitioner) had just cause for termination of the employment of Michele O'Neill (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed under a professional services contract by the Petitioner as a classroom teacher at Lakemont Elementary School, a unit of the Orange County Public School System. At all times material to this case, Dr. Susan Stephens was the principal of Lakemont Elementary School. The Petitioner has adopted a "Drug-Free Workplace" policy (the Policy) that in relevant part provides as follows: No employee shall use, possess, manufacture, distribute, or be under the influence of controlled substances or alcohol while on duty or on school board property, except when he/she is using a controlled substance in conformance with the instructions of a physician. The Policy provides for "Reasonable Suspicion testing" and provides that such tests may be performed "based on a belief that an employee is using or has used alcohol or drugs" in violation of the Policy, and further provides as follows: Reasonable suspicion testing must be based on specific, contemporaneous documented objective and articulable observations and circumstances which are consistent with the long and short term effects of alcohol or substance abuse; including, but not limited to, physical signs and symptoms, appearance, behavior, speech and/or odor on the person. Supervisors who have Reasonable Suspicion that an employee may be under the influence while on duty are required to immediately direct the employee to submit to testing as provided for by the board. Reasonable Suspicion shall be in accordance with training provided to managers, and will require confirmation by two trained managers. One of the two managers may include the supervisor, if trained. A refusal to submit to testing will result in a recommendation to terminate the employee. The Policy includes an "observation checklist" of characteristics indicative of potential alcohol or controlled substance use, which "includes, but is not limited to" slurred speech, confusion/disorientation, odor of alcohol on breath or person, rapid/continuous eye movement or an inability to focus, and improper job performance and/or violation of authority. Dr. Stephens has received training in "Reasonable Suspicion" observations. During the 2002-2003 school year, the Respondent was seriously injured in an automobile crash that required an extended absence from the classroom. She eventually returned to teaching about a year later, but continued to suffer the after- effects of the injuries, including an altered and uneven manner of walking. For the vast majority of the Respondent's employment with the Petitioner, her performance has been evaluated as "effective," and she was regarded as a good teacher. There is some evidence that, after the Respondent's post-accident return to teaching, there were concerns related to the Respondent's job performance. A letter from Dr. Stephens to the Respondent dated February 25, 2005, specifically addressed a number of issues, including collaboration with co-workers, anger management, and focusing on academic instruction during classroom time. Also subsequent to the Respondent's return to the classroom, a small number of parents whose children were being taught by the Respondent expressed various concerns about the education the students were receiving. For various reasons, some parents asked that their children be transferred to the classrooms of other teachers. Late in the school day on Friday, September 30, 2005, a parent contacted Dr. Stephens and reported that during a classroom meeting with the Respondent, the parent detected the odor of alcohol on the Respondent. The parent asked that the child be transferred to another teacher's classroom. Dr. Stephens attempted to locate the Respondent at that time, but the school day was finished and the Respondent had apparently left the campus. On Monday, October 3, 2005, Dr. Stephens came to the Respondent's classroom to discuss the requested transfer, and during the meeting, Dr. Stephens detected the odor of alcohol emanating from the Respondent. Dr. Stephens returned to her office and asked the school's assistant principal, Randall Hart, to go to the Respondent's classroom and talk to her. He did so and then returned to Dr. Stephens' office where he reported to her that the Respondent smelled of alcohol. Dr. Stephens contacted the Petitioner's Employee Relations department to inquire as to how to proceed, and was provided the names of several school board personnel who had received training in "Reasonable Suspicion" observations. From the names provided to Dr. Stephens, she contacted Dr. Suzanne Ackley, principal of Brookshire Elementary School in Winter Park, and asked her to come to Lakemont Elementary School and observe a teacher for indications of being under the influence. Dr. Ackley arrived shortly after being contacted by Dr. Stephens. Dr. Stephens and Dr. Ackley went to the Respondent's classroom and met with the Respondent. No students were present in the room at the time. Dr. Stephens identified Dr. Ackley as the principal of Brookshire Elementary. Dr. Ackley engaged the Respondent in a conversation about curriculum issues. During the meeting, Dr. Ackley detected the odor of alcohol emanating from the Respondent, and believed that the Respondent's speech sounded "slurred." After meeting the Respondent, Dr. Ackley and Dr. Stephens returned to the school office. Dr. Ackley told Dr. Stephens that she had detected the odor of alcohol while talking to the Respondent. Dr. Ackley then left the Lakemont campus. Shortly after Dr. Ackley departed, and in accordance with the Policy, Dr. Stephens informed the Respondent that there was concern related to possible alcohol use. Dr. Stephens ordered the Respondent to accompany her to a facility used by the school board for alcohol and controlled substance testing. Although the Respondent initially agreed to accompany Dr. Stephens to the facility and to submit to the test, within a few minutes, the Respondent changed her mind and refused to travel with the principal to the testing facility. The Respondent stated that she wanted to go home prior to going to the testing facility, ostensibly to retrieve some prescription medications that she wanted to take to the facility. The Respondent testified that she had not been using alcohol on October 3, 2005. She offered vague testimony about an immaterial personal matter, the import of which was that the Respondent went to an emergency room on October 1, 2005, where she received prescriptions for medications including Flexeril, a muscle relaxant. She asserted that she did not refuse to submit to the test, but that she merely wanted to drive herself home to retrieve the prescription medications prior to continuing on to the drug testing facility, to establish that the behaviors exhibited were related to the use of the medications prescribed at the hospital. The Respondent's testimony is not credible and is rejected. The Respondent offered the expert testimony of Dr. Rahn Shaw, who opined that the prescribed medications could have accounted for some of the Respondent's physical presentation on October 3, 2005; however, there is no evidence that use of the referenced medications could create an odor of alcohol on or about a person taking the medications. Dr. Stephens declined to permit the Respondent to go home before submitting to the test, and continued in attempting to convince the Respondent to accompany her to the testing facility. Dr. Stephens specifically and repeatedly advised the Respondent that failure to comply with the request would jeopardize the Respondent's employment status, but the Respondent refused to comply. The Respondent decided to leave the school grounds. She went to her car and began to drive the vehicle from the campus, but did not get far from her parking space. The Respondent was prevented from doing so by the school's D.A.R.E. officer, who arrived after being contacted by school personnel concerned about the Respondent's ability to operate the vehicle. The D.A.R.E. officer is also a uniformed police officer. The officer testified that she eventually persuaded the Respondent to exit the vehicle and escorted her to an office in the school where students, who were passing in the vicinity, would not see the Respondent. The officer further testified that Respondent smelled of alcohol at the time the officer intervened in the situation. The Respondent insisted that she was not under the influence of alcohol, and in response, the officer performed a gaze nystagmus test and a "finger-to-nose" test, after which the officer concluded that the Respondent was not capable of driving herself home. Several of the Petitioner's witnesses testified that they were concerned about the Respondent's ability to transport herself home in her personal vehicle. The refusal to permit the Respondent to transport herself to her home or to the testing facility was clearly reasonable based on the observations of the Respondent's behavior. It should also be noted that Dr. Shaw testified that persons using Flexeril "shouldn't be driving or operating machinery because it makes everybody I know drowsy and lethargic" and that "you could qualify for a DUI in this state by taking that medicine and driving most of the time." A cab was called, and the Respondent was taken home in the cab on October 3, 2005. Prior to leaving the campus, Dr. Stephens again attempted to convince the Respondent to submit to the testing and advised that the Respondent's employment was in jeopardy, but to no avail. Dr. Stephens had been in communication with the Employee Relations department during the incident, and had been told to direct the Respondent to contact the Employee Relations department on Tuesday, October 4th, if she chose not to comply with the testing directive. After determining that the Respondent would not comply with the directive and prior to the Petitioner's departure from the school grounds on October 3rd, Dr. Stephens instructed the Respondent to contact the Employee Relations department on the next day. The Respondent later returned to the school grounds and retrieved her vehicle. The Respondent failed to contact the Employee Relations department on October 4, 2005. At the close of that day, and after the Respondent had failed to make contact, Shonda Von Schriltz, senior manager for the Petitioner's Employee Relations department, sent two letters by express mail to the Respondent. The first letter gave notice of a meeting scheduled for October 10, 2005, to discuss the incident. The second letter advised that the Respondent would be placed on "Relief of Duty" with pay, and that the Respondent was required to remain available to school personnel during school hours while on the paid relief period. Attempts to deliver the letters apparently failed for reasons that are unclear. In any event, there was no communication between the Respondent and the Petitioner until October 13, 2005. On that date, a predetermination conference, which was arranged based on an October 12, 2005, request from a teacher's union representative, was held. During the meeting, at which Ms. Von Schriltz was present, the Respondent denied that she had used alcohol on October 3, 2005, or that she had been requested to submit to testing. She had no recollection of having been told anything by Dr. Stephens, and was unable to offer a rationale for leaving campus early on October 3rd. During the October 13th meeting, the Respondent was directed to maintain contact with the Employee Relations department, but after the meeting ended, there was no contact until November 8, 2005, when the Respondent answered one of several telephone calls that had been placed to her number by Ms. Von Schriltz. During the November 8th conversation, the Respondent had no recollection of Ms. Von Schriltz or of the October 13th meeting, and instructed Ms. Von Schriltz to contact the Respondent's legal counsel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of Michele O'Neill. DONE AND ENTERED this 16th day of June, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2006. COPIES FURNISHED: Joseph Egan, Jr., Esquire Egan, Lev & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Elizabeth F. Swanson, Esquire Egan, Lev and Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
Findings Of Fact Respondent, Lester Nathaniel Johnson, is the holder of teacher's certificate number 384068 issued by the State Department of Education. It is valid until June 30, 1990. He is a 1975 graduate of Bethune-Cookman College where he majored in history and sociology, and from Nova University in 1981 where he received a master's degree. Johnson first began teaching in the Dade County Public School System in September, 1975 and has taught in the System since that time. During school years 1981-82 and 1982-83 he was an instructor at Miami Lakes Junior High School (MLJHS) teaching social studies and history. During school year 1982-83 first period at MLJHS began at 8:45 a.m. and ended fifty-five minutes later at 9:40 a.m. Classes then changed and "homeroom" activities began at 9:45 a.m. and lasted ten minutes. At 9:55 a.m. a bell rang and students had five minutes to go to second period class which began at 10:00 a.m. The allegations in the notice of charges and administrative complaint relate to an alleged incident which occurred on the morning of March 23, 1983 on the school premises. As clarified by testimony in this cause, the "incident" could not have occurred any earlier than around 9:57 a.m. that morning in respondent's classroom during the break between homeroom and second period. The testimony also shows that after the incident, which took no more than a minute, the complainant would have had to leave the classroom, talk briefly with her girlfriend in the hallway, and still have time to reach a street adjacent to the school building approximately two hundred yards away in a minute or so, or by 9:59 a.m. Michelle Pinson was a thirteen-year-old seventh grader of MLJHS during the 1982-83 school year. According to Pinson, on the morning of March 23, 1983 she left her homeroom after the bell rang at 9:55 a.m. to attend her second period class, English. She related that she had to walk past respondent's classroom to get to her second period class, and that it normally took her around a minute to a minute and a half to reach Johnson's classroom. At the final hearing, Michelle claimed that while walking past his classroom that morning, he pulled her inside the room, which was empty, shut the door and began "kissing all on (her)" including her neck and face, and "feeling on (her)" including her breasts and genital area. However, some two weeks after the "incident", she had told an assistant state attorney under oath that Johnson had kissed her only on the neck and had not touched her in the genital area. When she started to leave the room, Pinson stated Johnson grabbed her right buttocks and told her not to tell anyone. According to Pinson, the whole incident took no more than a minute. Testimony from a non-interested witness, Arthur Diamond, a science teacher at MLJHS, confirmed the fact that Johnson went to the restroom after the 9:55 a.m. bell rang, chatted for a minute or two with Diamond, and could not have returned to his classroom until around 9:57 a.m. Therefore, if such an incident did in fact occur, it could not have happened until after 9:57 a.m. After leaving the classroom, the first person Michelle saw was Natalie Blackwell, a longtime friend and classmate, and related to her what had happened. Natalie attempted to corroborate Michelle's story, and stated that she saw a hand grab Michelle's buttocks as she left the classroom, and as she passed by the classroom she saw the hand belonged to Johnson. Natalie's version of the story must be tempered by several considerations. First she testified the incident occurred after lunch rather than in the morning. Secondly, she was a student in Johnson's class and had just been suspended for ten days for fighting. When she returned Johnson refused to allow her to do makeup work for the time she was suspended and consequently she received a failing grade. For this, Natalie had threatened to "get" Johnson. Finally, Natalie had also received several detentions from Johnson prior to the "incident" and was dating Michelle's brother at the same time. Therefore, her testimony is not found to be credible, and has been disregarded. "A little bit before" 10:00 a.m., Michelle was found walking down Ludlam Avenue by an instructor some two hundred yards or so from the main building. Michelle had walked that distance after she claimed the "incident" had occurred and after she had spoken to Natalie. The undersigned finds it highly unlikely that Michelle could have had an encounter with Johnson after 9:57 a.m., which lasted no more than a minute, then talked briefly with her friend in the hallway, and then walked some two hundred yards from the building, all within a span of a minute or so. After being stopped by the instructor on Ludlamd Avenue, Pinson returned to the main building and was seen by the assistant principal several minutes after 10:00 a.m. wandering in the hallway. He immediately approached her and noted she had tears in her eyes and was sobbing. Pinson told the assistant principal that she had an encounter with Johnson. Both went to the principal's office where an interview was conducted with Pinson, and later with Johnson. After conducting an investigation, school authorities turned the mattter over to petitioners, School Board of Dade County and Education Practices Commission (EPC), who then initiated these proceedings. Respondent denied the incident occurred and that he had not even seen Michelle during the break between homeroom and second period class. On the morning in question, Johnson had supervised a breakfast program for students from 8:00 a.m. to 8:40 a.m. in the cafeteria, taught a first period class form 8:45 a.m. to 9:55 a.m. When the bell rang to change classes, the students departed the classroom and Johnson then left his classroom to visit the restroom down the hall. As noted earlier, this was confirmed by another teacher, Arthur Diamond, who testified that Johnson followed him into the restroom right after the bell rang where they briefly chatted and then both departed, returning to their respective classrooms around 9:57 a.m. The evidence is sharply conflicting in this proceeding but it is found that no encounter between Johnson and Pinson occurred on the morning of March 23, 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED and that he be reinstated and given back-pay retroactive to April 20, 1983. DONE and RECOMMENDED this 8th day of February 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1984. COPIES FURNISHED: Jesse T. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 W. Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N.E. 2nd Avenue Miami, Florida 33132 Mr. Donald Griesheimer Executive Director Education Practices Commission Knott Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Did Respondent leave the Southside Middle School campus without permission in the 1989-90 school year; in that same year, did Respondent make a threatening complaint in writing to Vice Principal, Peggy Williams; in that same year, did Respondent fail to submit a written report of a fight between students; did Respondent use profanity in the school year 1990-91 while employed at Southside Middle School; did Respondent leave campus without permission and leave his classes unattended in the school year 1991-92 while employed at Lake Shore Middle School; did Respondent engage in inappropriate conduct with students by grabbing a male student, M.F., by the shoulders and squeezing that student's shoulders and making that student go to his knees in the school year 1992-93 while employed at Lake Shore Middle School; did Respondent in that same year grab and hit A.H. in the chest and in the stomach; did Respondent in that same year pull the student, J.W.'s ear; did Respondent in that same year plan a field trip to Walt Disney World, Florida, without approval from the Duval County School District; did Respondent fail to follow district procedures for purchasing t-shirts and sweatshirts for students; did Respondent in the school year 1993-94 while employed at the Lake Shore Middle School fail to comply with guidelines in submitting a "no show" list related to student attendance; and did Respondent engage in profanity in the presence of students in that same year?
Findings Of Fact At times relevant to the inquiry Respondent has held Florida teaching certificate number 638543 covering the areas of health, biology, and physical education. In the fall of 1989, Respondent began employment with the Duval County, Florida, School Board in a teaching position at Southside Middle School. While serving as a teacher at Southside Middle School, Respondent broke up a fight between two students that was occurring in a hallway. Following the incident his obligation was to file a written report detailing the facts. That report was due immediately. The Respondent had to be reminded twice before rendering the report. The report was rendered before the students met with a school hearing officer to resolve the incident. In the fall of 1991, Respondent voluntarily transferred to an assignment at Lake Shore Middle School. That school is also part of the Duval County School District. On one occasion while Respondent was employed at Lake Shore Middle School, Timothy Hamel, another teacher at that school, observed that Respondent's class had been left unattended from approximately 3:40 p.m. until 4:00 p.m. On another occasion, while Respondent was employed at Lake Shore Middle School, Respondent left campus at a time when he did not have classes and did not return until after school had concluded for the day. As a consequence, he missed instruction periods for some classes that he was responsible for teaching. This circumstance was established through testimony from Arlene Guthrie, Assistant Principal for Curriculum at Lake Shore Middle School. The proof submitted at hearing did not satisfactorily demonstrate that the Respondent had made arrangements to cover classes which he missed on this occasion. In the spring of 1993, Respondent was interested in taking some students on a field trip to Walt Disney World, Florida. A conversation was held between the Principal at Lake Shore Middle School and the Respondent concerning this field trip. The principal was persuaded that it was too late in the year to schedule a field trip. Nonetheless, Respondent replied that he was going on the field trip and would rent a van on his own to transport the students, separate and apart from school sanctioned transportation. In the conversation concerning the field trip, the principal asked Respondent if he had obtained parent/guardian permission slips for the students to attend the outing. Respondent replied in the affirmative. A permission information sheet directed to the parents or guardians pertaining to the nature of the field trip was prepared on the Lake Shore Middle School letterhead and signed by Respondent, as sponsor for a school club known as Manhood, Achievement, Community Service. That information sheet indicated that the trip would take place on May 28-30, 1993. Further, it indicated that expenses would be taken care of, except for meals and spending money for the students. The correspondence went on to indicate that the parents or guardians would be informed of the hotel address after receipt of confirmation of room reservations. The information sheet indicated the departure and return time. Respondent confirmed the knowledge of the parents about those details by having them sign the information sheet. As discussed between Respondent and the principal, there was no mention in the information sheet about Respondent arranging for transportation on his own by renting a van. When the principal asked Respondent about the duration of the trip, Respondent indicated that it was more than a single-day trip. The principal wanted to know if Respondent had made arrangements for a place to stay. At that time, Respondent replied that no such arrangements had been made but that Respondent would obtain a place to stay. The principal was not convinced that the parents and guardians were sufficiently apprised of the nature of this outing and told Respondent that Respondent could not take the trip. After the conclusion of the conversation between the Respondent and the principal, Respondent still insisted that he was going on the field trip to Walt Disney World. In the conversation between the principal and Respondent concerning the field trip, the issue related to the payment for the trip was addressed. The principal was concerned that there was not enough money to pay for the trip and asked the Respondent how the balance of the money was to be paid. Respondent replied that the parents would pay. When the principal asked if Respondent had consulted with the parents concerning this additional cost, the answer was no. The conference between the principal and Respondent was held two or three days before the trip was to take place. When it became obvious that the school district, from the principal's perspective, did not wish to sanction the trip, matters were left in the posture that if the Respondent wanted to go on the trip as an adult in charge of those children, then that arrangement would have to be carried out between Respondent and the parents. In that setting of a private trip the school district did not want the Respondent to create the appearance that the trip was a trip sanctioned by the school district. Eventually correspondence was given to the Respondent from Gerlieve R. Oliver, Assistant Superintendent, Middle Schools, Duval County School System, confirming that the Respondent did not have permission to take an official school trip to Disney World. The correspondence also informed the Respondent that he could not take a non-school related trip, given that the written communications to parents concerning the trip was made on school letter head, thus creating the appearance of being a school sponsored trip. This appearance caused the school district to instruct the Respondent that he could not take a non-school trip either. This communication dated May 26, 1993, informed the Respondent that the parents or guardians of the students who were to be taken on the trip would be made aware of the telephone conversation between the Respondent and Ms. Oliver concerning the field trip. The conversation between Respondent and Assistant Superintendent Oliver was instigated by Respondent. It is that telephone conversation that led to the preparation of the correspondence. The correspondence from the assistant superintendent to the Respondent reminded the Respondent that if he failed to follow the directions that he might put himself in jeopardy concerning employment with the district and admonished Respondent to be more careful in adhering to directions. The correspondence from Ms. Oliver to Respondent also mentioned that if Respondent were more careful about following procedures in the future that this would result in the Respondent being able to provide opportunities for his students. This is taken to mean opportunities such as field trips. While Respondent was employed at Lake Shore Middle School there was a policy related to what is referred to as a "no show" list. In particular, at the commencement of the school year a given school counts the number of students in attendance as a means of determining the amount of money the school is entitled to for conducting its operations. The expectation is that the individual school teacher will document this count by calling a roll each day and turning in a slip to the administrative offices verifying the students who did not attend school on that day. Respondent did not comply with that requirement. While Respondent was teaching at Lake Shore Middle School an incident occurred between male students K.A. and M.F. in the school lunch room. K.A. and M.F. were arguing. Respondent came over and broke up the argument by grabbing both of the students by their respective shoulders. On two other occasions while Respondent was in the lunch room with the students, he grabbed A.H. around the neck in the first encounter and the second encounter grabbed that student by the shoulder. When Respondent grabbed A.H. around the neck the student winced and frowned. The reason for that initial encounter between the Respondent and A.H. is not clear. On the second occasion Respondent grabbed A.H. by the shoulder, A.H. had similar expression in that he winced and frowned. Again it is unclear concerning the reason for Respondent's actions. In the experience of K.A., while attending a class taught by Respondent, he observed Respondent curse in class on a somewhat frequent basis. That frequency was as much as four times a day, three days a week. On one occasion K.A. observed Respondent grab D.A. around the neck and tell D.A. to sit down or Respondent was going to be "kicking his fucking ass." Other curse words that K.A. heard the Respondent use were words like "ass", "damn", and "asshole". According to Ms. Guthrie, an expert in education, cursing in front of students, using inappropriate discipline such as grabbing necks and shoulders of students and leaving the class unattended on more than one occasion, constitutes a circumstance in which the Respondent has lost his effectiveness as a teacher. That opinion by Ms. Guthrie is accepted.
Recommendation Based on the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that a Final Order be entered finding Respondent in violation of the four counts in the Administrative Complaint and suspending the Respondent's teaching certificate for thirty (30) days. DONE AND ENTERED this 24th day of March, 1995, in Tallahassee, Florida. CHARLES C. ADAMS 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 24th day of March, 1995. COPIES FURNISHED: Nathan L. Bond, Esquire 2121 Killarney Way, Suite G Tallahassee, Florida 32308 J. David Holder, Esquire 1408 Piedmont Way Tallahassee, Florida 32312 Steven A. Williams 6200 South Barnes Road, P-20 Jacksonville, Florida 32216-5633 Karen Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
