Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Marion L. Hurst, a black male, has been employed with the Martin County school system since 1969. He presently holds an M.S. degree in Educational Administration and a Rank II certification in administration. Petitioner lacks two hours of graduate courses to add the subject of supervision to his certification. For the past nine years, in addition to teaching social studies classes, petitioner has held the position of team leader at Stuart Middle School, being responsible for the seventh grade reading, language arts and social studies programs. This involves approximately 350 students, six teachers and one or more teacher aides. The duties of a team leader include the scheduling and "levelling" of students, scheduling special assignments to teachers within the team, coordinating information and activities from the administration to the teachers, and weekly meetings with the school administrators. The petitioner adduced evidence that his teacher evaluations during his tenure at Stuart Middle School had been good to excellent overall. In contrast, the respondent presented evidence from several of his coworkers that petitioner occasionally has communication problems with the members of his team, receives complaints from the parents of his students regarding excess paperwork by the students as opposed to teaching by petitioner, and grammatical and spelling errors on petitioner's blackboard. While it is the team leader's responsibility to schedule students, petitioner has for the past several years utilized the reading teacher, Ms. Askeland, to perform that task. The petitioner has applied for many administrative positions in the school system. In April of 1977, petitioner, along with several other persons, applied for the position of assistant principal of Martin County High School -- the only high school in the county. The job description for that position required a Rank II certification with coverage in administration, supervision or curriculum. Petitioner did hold a Rank II certification in administration at the time of his application for the position. Another applicant, Wanda Yarboro, did not hold a Rank II certification with coverage in the required fields in April, 1977. Respondent Navitsky, Superintendent of the Martin County school system, recommended to the School Board that Ms. Yarboro receive the appointment as assistant principal of Martin County High School. Either because of a lack of funding due to the reorganization of the administration at Martin County High, or because Ms. Yarboro did not hold the certification required in the job description, the School Board originally failed to approve her appointment. During the summer months of 1977, a change was being effected in the School Board policy. The change allowed instructional administrators to acquire within twelve months of assignment a certificate covering the areas in which they are placed. Ms. Yarboro's appointment as assistant principal was approved by the School Board in August of 1977, and she received her certification in administration and supervision on September 28, 1977. Conflicting evidence was adduced at the hearing on the issue of whether Dr. Clifford Rollins, a person holding a higher ranked certificate and greater administrative experience than either Ms. Yarboro or petitioner, was also a candidate for the assistant principalship of Martin County High School in April of 1977. While his name appears on several lists of candidates for this position, the greater weight of the evidence leads to the finding that Dr. Rollins was not a candidate for that position. Superintendent Navitsky, though aware of Dr. Rollins desire to return to Martin County, did not consider him a candidate. Dr. Rollins testified that he was not a candidate for the position of assistant principal of the high school. While he did express an interest in returning to the community, he did not apply for this position because he was a former principal of that school and also because he was aware that other teachers and the department chairmen wanted Ms. Yarboro, who had been at the school for some time, to be promoted to the assistant principalship. Dr. Rollins had instructed the school personnel office to keep his application file active and this fact was offered in explanation of why his name appears on the list of candidates for the position. Ms. Yarboro had formerly occupied the position of department head of social studies at Martin County High School, which position became vacant upon her promotion to assistant principal. Although the school principal had recommended that Ann Crook be promoted to department head, Superintendent Navitsky called petitioner Hurst and offered him the position. This position involved responsibility for 33 teachers. Dr. David Anderson, a member of the Martin County School Board, received numerous telephone calls from other teachers at the high school in opposition to petitioner's appointment as department head of social studies. Dr. Anderson became concerned that petitioner was being "set up" in a hostile environment which would eventually lead to poor evaluations of petitioner and dismissal from his administrative position. Anderson believed that such an appointment may not be a good way for petitioner to begin his administrative career. Thereupon, Dr. Anderson arranged a meeting with Superintendent Navitsky, petitioner, himself and several other administrators. Dr. Anderson expressed his concerns at this meeting. Mr. Navitsky offered petitioner his support if he accepted the position. After discussing the matter, petitioner decided to withdraw his name as a candidate for the department head position. Superintendent Navitsky assured petitioner that declining the position would not adversely affect his candidacy for other positions. Petitioner believed that Navitsky was making him a promise that he would be appointed to the next administrative position. Gilbert Miller, the deputy superintendent for noninstructional services, was present at the meeting and recalled that Navitsky made no promise that petitioner would receive a specific appointment at a specific time in the future, but only an indefinite promise of a future administrative position. The next administrative position applied for by petitioner occurred in July of 1978. The former principal of Indiantown Middle School, located some twenty miles west of Stuart, resigned on short notice. Seven or eight persons applied for the position. Superintendent Navitsky interviewed all the candidates, including petitioner and Dr. Clifford Rollins. As noted above, Dr. Rollins had previously been the principal at Martin County High School. He had also been a principal at another Indiantown school and had most recently been a director of teacher education and the acting chairman of the department of education at a college in West Virginia. Dr. Rollins was recommended to the School Board by Superintendent Navitsky to fill the Indiantown Middle School principalship because of his past administrative experience and his previous service with and knowledge of the school district and the Indiantown area. The School Board approved the recommendation of Dr. Rollins. All witnesses, including petitioner Hurst, agreed that Dr. Rollins had better credentials than petitioner for this position. In August of 1978, the administrative position of curriculum coordinator at Murray Middle School became available. Seven or eight persons applied for the position, including the petitioner. The duties of a curriculum coordinator at a middle school include working with teachers to help develop curriculum and choose teaching material, evaluating testing and teaching techniques, assisting and scheduling students, evaluating teachers and a general knowledge of curriculum content at all levels. The principal at Murray Middle School, Edward Sheridan, personally interviewed all candidates for the position and developed a factoring or rating sheet for each candidate. He also discussed the candidates with his assistant principal, Quilley McHardy. The candidate receiving the highest rating was Joan Gallagher and Mr. Sheridan therefore recommended her for the position. Assistant Principal McHardy, a black, concurred in the recommendation. Superintendent Navitsky recommended her to the School Board because of Mr. Sheridan's recommendation and Ms. Gallagher was appointed as the curriculum coordinator at Murray Middle School. Joan Gallagher has been in the field of education for seventeen years. Until 1974, she taught at the elementary school level. Since 1974, she had been a sixth grade teacher at Murray Middle School and was the sixth grade team leader for a few months immediately prior to her appointment as curriculum coordinator. Two witnesses who were employed at Stuart Middle School had worked with both Ms. Gallagher and petitioner Hurst. The curriculum coordinator at Stuart testified that Ms. Gallagher was superior to petitioner Hurst in scheduling techniques. Ms. Askeland, the seventh grade reading and language arts teacher at Stuart who helped petitioner with scheduling at Stuart, testified that Ms. Gallagher had a better knowledge and understanding of curriculum concepts than petitioner. In the summer or fall of 1978, several members of the Young Men's Progressive Association, a civic organization of black businessmen and professionals, met with Superintendent Navitsky regarding the lack of black teachers in high school academics and in administration. According to two witnesses who attended the meeting, Mr. Navitsky acknowledged this problem, was sympathetic to their concerns, and agreed to do what he could to remedy this situation. While these witnesses felt there had been systematic discrimination in the school system, it was acknowledged that progress had been made in the promotion and recruitment of black teachers in Martin County due to the positive efforts of Superintendent Navitsky. Joint Exhibits 1A through 1D illustrate that during the period between 1974 and 1979, black persons received the appointment to an administrative position in those instances where they were candidates sixty percent of the time. In those instances where the only candidate was black, he or she received the appointment. Also, the percentage of black administrators to the total population of administrators in the Martin County school system increased from 13.6 percent in the 1974-75 school year to 19.2 percent in the 1979-80 school year. As of the date of the hearing in this cause, one-half of the ten available administrative positions in the 1979-80 school year were filled or offered to black candidates. In two of the instances where whites were appointed, there were no black candidates for the position.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that the Commission on Human Relations enter a final order finding that the respondents did not engage in unlawful employment practices in appointing Dr. Rollins to the position of principal of Indiantown Middle School or in appointing Ms. Gallagher to the position of curriculum coordinator of Murray Middle School; dismissing petitioner's petition for relief in this cause; and denying petitioner's motion for attorney's fees. Respectfully submitted and entered this 25th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Paul A. Gamba, Esquire Post Office Drawer 1016 1451 East Ocean Boulevard Stuart, Florida 33494 Douglas K. Sands, Esquire 300 Colorado Avenue Post Office Box 287 Stuart, Florida 33494 Marva A. Davis, Assistant General Counsel Florida Commission on Human Relations 2562 Executive Center, Cricle E Tallahassee, Florida 32301 Norman A. Jackson, Executive Director Florida Commission on Human Relations 2562 Executive Center, Circle E Tallahassee, Florida 32301
Findings Of Fact William Haynes Gandy, for 17 years a school teacher and coach, began his most recent stretch of employment with the Santa Rosa County School Board in the fall of 1978 at Jay High School. He coached football and taught girls' physical education and math courses during the 1978-1979 school year, even though he held a teacher's certificate in physical education only, at all pertinent times. Coaching assignments entail a certain amount of prestige and entitle their recipients to a salary supplement. In Santa Rosa County, school principals make coaching assignments in their unfettered discretion. LETTER NO FACTOR On July 1, 1979, Mary Cecelia Diamond Findley, assistant principal of Jay High School during the preceding school year, became principal. During Dr. Findley's first year as principal, Mr. Gandy taught math and science courses. In the fall of the year, a student asked petitioner to write a letter on her behalf, because she had been accused of a burglary. Dr. Findley's son had also been charged with this crime. On November 30, 1979, Mr. Gandy addressed the following letter "To Whom it May Concern" and gave it to the student's parents: I, W. H. Gandy, being employed by Santa Rosa County School Board as an in- structor at Jay High School do hereby give the following statement in behalf of Karen Cooley. I have known this student for several years. She was in my class last year and was an excellent student. I found her to be very cooperative, initiative [sic] and enthusiastic young student. Her capabilities and talents are unlimited if she applied herself. I know of no past conflicts or involvements in our community or school which would reflect on her character. In working directly with young people for the past 15 years, I have found that most all students need help at one time or another. Of course, their needs vary, from personal, emotional problems, school discipline problems, to problems with the laws of our society and state. I feel Karen realized what she did was wrong and now must face the consequences. She has already been subjected to the scrutiny of her classmates at school, to the embarrassment of hurting her parents and family, and to the fact that she took part in crime and now has a record which will remain with her the rest of her life. Karen cannot undo the wrong she has done, but certainly since this is her First Offense, and she has the ability and desire to mature into a useful citizen in our community, she should be given this opportunity. I hope and pray that she will be given some kind of a probation period and given the opportunity to finish school and start a meaningful life of her own. Petitioner's Exhibit No. 1 He told no one other than the Cooleys and Karen's attorney about the letter, at the time. Dr. Findley did not learn of the letter until this year. Dr. Findley's decision not to reappoint Mr. Gandy as assistant football coach, more than two and a half years after the letter was written, took place after discussions with the head football coach and had nothing to do with the letter or any other exercise by petitioner of his first amendment rights. TRANSFER Beginning with the 1979-1980 school term, Mr. Gandy has been on continuing contract as a teacher for respondent. On Dr. Findley's recommendation, at the close of the 1982-1983 school year, and that of Bennett C. Russell, respondent's superintendent, respondent transferred Mr. Gandy to the Gulf Breeze Middle School. Originally he was to teach health classes there, but he was assigned physical education classes after his request for formal hearing was filed. Respondent had taught some classes out of his field every year he was at Jay High School. Before the letter on behalf of Ms. Cooley was ever written, and, according to petitioner, before there were any ill feelings between Dr. Findley and himself, he was assigned exclusively math and science courses for the 1979-1980 school year. In 1980-1981, and again the following school year, Mr. Gandy taught a single physical education class and several math classes. He taught math courses exclusively during the 1982-1983 school year. By the spring of 1983, there were five teachers at Jay High School who had taught there shorter periods than the five years petitioner had taught at Jay High School. Of these, Oliver Boone, the band director, and Deborah Walther, who was certified in art and science, were retained. Desiree Jamar, who was certified in art, was transferred; and the two other junior teachers did not have their annual contracts renewed. One of these two, Deborah Gomillion, who is certified to teach exceptional education classes, was subsequently rehired to head the exceptional education program at Jay High School. Five of the 32 teachers at Jay High School for the 1982-1983 school year were certified in physical education, but, unlike respondent, some of them were certified to teach other subjects, as well. Respondent transferred another coach from Jay High School who was certified in social studies as well as physical education. There was only one teacher certified in mathematics for the 1982-1983 school year. Respondent hired a second certified mathematics teacher for 1983-1984 who was to teach five mathematics courses and coach football at Jay High School. On July 28, 1983, respondent hired a teacher certified in physical education to teach at Pace High School. Dr. Findley and Mr. Gandy had their differences. She believed him guilty of certain improprieties never formally established. He resented a notice of non-renewal Dr. Findley, under the erroneous impression that Mr. Gandy had not yet been awarded a continuing contract, sent in response to instructions so to notify all annual contract teachers who taught compensatory classes like the math classes he was teaching at the time. The low esteem in which Dr. Findley held petitioner was a factor in her recommending that he be transferred. The superintendent was aware of the friction, but he made his decision "because we were cutting back personnel at Jay High School and we had a position available at Gulf Breeze Middle School." (T. 129) Respondent's superintendent did not accept her recommendation that petitioner be transferred just to keep the peace. Dr. Findley herself was transferred from Jay High School for the 1983-1984 school year. The continuing contract of employment between the parties does not grant petitioner the right to teach in a particular school. Joint Exhibit No. The master contract in effect between Santa Rosa County School Board and the Santa Rosa Professional Educators provides: Involuntary transfer of teachers shall be made by the Superintendent and Board based upon: l) Santa Rosa County School District needs as determined by the Superintendent and the Board; 2) certification; 3) length of service in Santa Rosa County; and, 4) any other data. Petitioner's Exhibit No. 6, p. 8. Article IV of the same agreement establishes in detail a grievance procedure, but does not make it mandatory or exclusive.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent dismiss petitioner's request for hearing, without prejudice to his filing a grievance as regards his transfer. DONE and ENTERED this 27th day of September, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of September, 1983. COPIES FURNISHED: Philip J. Padovano, Esquire 1020 East Lafayette Street Tallahassee, Florida 32302 Paul R. Green, Esquire Post Office Box 605 Milton, Florida 32570
The Issue The issue is whether respondent's educator's certificate should be disciplined for the reasons cited in the administrative complaint filed on November 7, 1995.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Richard T. Vaughn, Jr., is licensed as a teacher having been issued Florida Educator's Certificate 678116 by the Department of Education. The certificate covers the area of sociology and was valid through June 30, 1995. When the events herein occurred, respondent was employed as a mathematics teacher at the Marion Regional Juvenile Detention Center (MRJDC) and The Phoenix Center in the Marion County School District. Based on conduct which occurred during school year 1993-94, on May 19, 1994, respondent was suspended from his teaching position by the Marion County School Board (Board). After an administrative hearing was held in December 1994, a final order was entered by the Board on March 31, 1995, terminating respondent for misconduct in office, incompetency, and willful neglect of duty. After learning of the Board's action, and conducting a further inquiry, petitioner, Frank T. Brogan, as Commissioner of Education, issued an administrative complaint on November 7, 1995, alleging that respondent's conduct also constituted a sufficient ground to discipline his teacher's certificate. The charges stem from incidents which allegedly occurred while respondent taught at MRJDC from September 1993 until April 7, 1994, and at The Phoenix Center from April 8, 1994, until May 17, 1994. In his request for a hearing, respondent has denied all material allegations. During most of school year 1993-94, respondent taught at MRJDC, which is a detention facility for students who are awaiting trial on criminal charges. As might be expected, the students at MRJDC "are very difficult to work with." At hearing, respondent's supervisor established that respondent had "difficulty" with his work, he was "uncooperative" with other faculty and staff, and he had "problems" with his peers. His behavior was generally described by all witnesses as being "bizarre" and "irresponsible." On some occasions, he would become angry with his students and "storm" out of his classroom leaving the students unsupervised. While respondent was teaching at MRJDC, it was necessary for the principal of the school's education center to meet with respondent because he would not speak to any of his colleagues. Respondent took the position that speaking with his peers was not in his job description, and thus it was unnecessary for him to do so. Although admonished by the principal to communicate with his peers, respondent continued to be abrupt and uncommunicative. During his tenure at MRJDC, respondent exhibited irrational and explosive behavior while teaching his classes. For example, he frequently engaged in screaming tirades against students who failed to meet his disciplinary expectations. In addition, it was not unusual for respondent to be confrontational with his students, and if threatened by one, he would challenge the student to carry out the threat, or to meet him outside the classroom to resolve the matter. Respondent's pattern of explosive behavior at MRJDC culminated on April 7, 1994, when the MRJDC superintendent was called to respondent's classroom to resolve an "emergency" situation. As it turned out, a student had thrown some pencil lead, hitting respondent in his glasses. Respondent began yelling at the student and challenging him to come outside the classroom and "take him on" to settle the score. When the superintendent arrived, she asked respondent to leave campus for the remainder of the day. However, respondent became abrupt and confrontational with the superintendent, initially refused to leave, and continued yelling at the student for another five minutes. Because of respondent's pattern of irrational and explosive behavior throughout the school year, and his loss of effectiveness as a teacher at MRJDC with both his colleagues and his students, a decision was made to transfer respondent to The Phoenix Center, an alternative education school, in order to give him one final opportunity. Effective April 8, 1994, respondent was reassigned to The Phoenix Center as an exceptional student education teacher. His class consisted of no more than four or five students. Despite the small number of students, respondent continually called the dean of students to resolve disciplinary problems which arose in his classroom. It can be reasonably inferred that respondent lacked the necessary demeanor and temperament to effectively manage and control his classroom. On May 3, 1994, respondent was described as being "incoherent" and "in a rage" while engaged in an altercation with a student who had threatened him. While the student was being led from the classroom to the principal's office by the dean of students, respondent became "agitated" and followed the student down the hallway continuing to challenge him to carry out his threat. Although ordered by the dean to return to the classroom, respondent initially refused to do so. Respondent's explanation for his conduct was that he was trying to prove a point with the student. For at least the second time that school year, respondent was instructed by the principal not to challenge students who had made threats. By engaging in the conduct described in the previous finding of fact, and that described in findings of fact 6 and 7, respondent intentionally exposed his students to unnecessary embarrassment or disparagement. On May 6, 1994, while coaching a school softball team, respondent became outraged over a call by the umpire and left the campus without permission. During his absence, the students were unsupervised. On May 17, 1994, respondent was returning to campus in his automobile when he approached a group of students in the roadway. One female student ignored her teacher's request to move and intentionally remained in the middle of the road. As he approached the student, respondent gunned his engine and drove straight for the student but hit his brakes stopping just short of her. Respondent later explained that he was merely trying to prove the point that if a student remained in the road with a car approaching, she would "be in trouble." By engaging in this conduct, respondent failed to make a reasonable effort to protect a student's physical safety. By virtue of his personal conduct over the school year at both MRJDC and The Phoenix Center, respondent's effectiveness as a classroom teacher has been seriously reduced.
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 Sections 231.28(1)(f) and (i), Florida Statutes, and Rules 6B-1.006(3)(a) and (e), Florida Administrative Code, revoking his certificate for one year, allowing him to reapply for an educator's certificate only upon certification by a mental health professional that he is competent and capable of performing his duties as an educator, and upon reemployment, placing him on probation for a period of three years. DONE AND ENTERED this 18th day of September, 1996, 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, SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1996. COPIES FURNISHED: Karen Barr Wilde, Executive Director Education Practices Commission 224-B 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 Carl J. Zahner, II, Esquire Department of Education Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Richard T. Vaughn, Jr. 1731 26th Street, South St. Petersburg, Florida 33712
The Issue The issue is whether Petitioner has just cause, within the meaning of Subsection 1012.33(6)(a), Florida Statutes (2007),1 to terminate Respondent’s professional services contract for the reasons alleged in a letter dated November 18, 2008.
Findings Of Fact Respondent has taught in the Polk County School System since 2000. For the first four school years, Respondent taught drama at the Rochelle School of the Arts. The next school year, Respondent taught English for one year at Kathleen Middle School. Beginning with the 2005-2006 school year, Respondent taught middle school English at Gause Academy until January 13, 2009. The allegations at issue in this proceeding pertain to the 2007–2008 school year at Gause Academy. By letter dated November 18, 2008, the superintendent of the Polk County Public Schools notified Respondent that the superintendent was recommending that Petitioner terminate the professional service contract of Respondent. On January 13, 2009, Petitioner followed the recommendation of the superintendent. The letter dated November 18, 2008, is the charging document in this proceeding. The letter notifies Respondent of the alleged grounds for termination of her employment and provides Respondent with a point of entry into the administrative process. In relevant part, the stated grounds for termination of employment are: . . . excessive absenteeism, dishonesty, and ongoing gross insubordination. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been followed in this case, and the next step of progressive discipline is termination. A preponderance of the evidence does not support a finding of excessive absenteeism during the 2007-2008 school year at Gause Academy. It is undisputed that the absences for Respondent during the 2007-2008 school year totaled 43 days, of which many were before or after a weekend and resulted in three or four consecutive days. However, it is also undisputed that absences were due to illness and the remaining 14 absences were suspensions or leave time imposed by Respondent’s employer. During the 2005-2006 school year, Respondent missed days due to illness, and Petitioner determined that Respondent was a good, dynamic teacher who related well with students and worked well in the classroom. Petitioner did not show by a preponderance of the evidence any credible and persuasive reason why 30 absences for sickness during the 2005- 2006 school year were acceptable to Petitioner, but that 29 absences for sickness during the 2007-2008 school year warranted termination of Respondent’s professional service contract. The medical reasons for Respondent’s absences during the 2005-2006 and 2007-2008 school years were the same. Respondent has suffered debilitating migraine headaches from a very young age. When Respondent suffers a serious migraine headache, it is difficult for her to function. However, Respondent has managed to control the effects of her migraines. A preponderance of the evidence does not explicate persuasive reasons why 30 absences during the 2005-2006 school year did not prevent Respondent from doing her job satisfactorily, but that 29 absences during the 2007-2008 school year justifies the termination of Respondent’s professional service contract. The allegation of dishonesty relates to a form, identified as an Employee Application for Leave, that Respondent completed for absences from October 1 through October 3, 2008. The form provides that Respondent was sick and unable to leave her bed from October 1 through 3, 2008. Respondent signed the form on October 6, 2008, and the school principal approved the form on October 7, 2008. Sometime after October 7, 2008, the principal received information that Respondent had been arrested on October 1, 2008. The testimony of the principal during the hearing shows that he has no knowledge of the circumstances of the arrest, including the time of the arrest and the time Respondent was released and returned to her home. Nor does the principal have any knowledge of whether Respondent was ill with a migraine from October 1 through 3, 2008. Local law enforcement officers arrested Respondent at her home at 6:00 a.m. on October 1, 2008, on a charge that Respondent had issued a bad check. The officers took Respondent to the courthouse, the amount was paid, and Respondent was back home by 9:00 a.m. Between 6:00 a.m. and 9:00 a.m. on October 1, 2008, Respondent’s mother called the school and told school officials that Respondent was ill and would not be in to work. Neither Respondent’s mother nor Respondent misrepresented Respondent’s illness. Respondent was ill with a migraine headache while she was at the courthouse and, upon her return home, was confined to bed for three days. The remaining allegation is that Respondent did not prepare adequate lesson plans. A preponderance of the evidence does not support a finding of inadequate lesson plans. At the conclusion of the 2006-2007 school year, the principal performed a Quality Performance Summary Assessment for Respondent, which is the equivalent of a year-end evaluation. The principal rated Respondent as “Needing Improvement” in the areas of Planning for Learning Communication and Professionalism and rated Respondent as “Unsatisfactory” in the area of Managing the Learning Environment. The principal indicated an appropriate Professional Development Plan (PDP) would be written for the 2007-2008 school year. The PDP was presented to Petitioner at the beginning of the 2007-2008 school year. The primary strategies identified for improving classroom planning included: maintenance of a plan book to be turned in at the end of each week to the assistant principal and participation in in-service training for expanded classroom strategies. The PDP identified a Professional Resource Team to assist Respondent in the implementation of the PDP. The team consisted of the assistant principal, guidance counselor, and dean of students. Lesson planning at Guase Academy is left to the discretion of individual teachers. There is no template for lesson plans. Each teacher is left to develop lesson plans in a manner that is appropriate for his or her purposes. The assistant principal and guidance counselor did not provide Respondent with meaningful assistance toward the PDP goals. The assistant principal instructed all teachers that they could use documents identified in the record as “curriculum maps” as lesson plans. Respondent relied on the assistant principal and utilized curriculum maps to develop her lesson plans. Respondent worked extensively with the dean of students to formulate and complete lesson plans in a manner that was satisfactory to the principal. Respondent also worked with three fellow teachers who evaluated Respondent’s lesson plans and found them to be sufficient. None of the lesson plans were ever satisfactory to the principal. Respondent met with the principal on numerous occasions during the 2007-2008 school year. At each meeting, the principal gave only a cursory review of the plans, concluded they were inadequate, and gave no explanation of a specific deficiency. Respondent never refused to provide lesson plans and never failed to submit lesson plans until after it was apparent that no lesson plan from Respondent would satisfy the principal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order reinstating Respondent’s professional services contract with back pay. DONE AND ENTERED this 20th day of August, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 20th day of August, 2009.
The Issue The issue posed for decision herein is whether or not the Respondent's teaching certificate should be suspended or revoked based on conduct which will be set forth hereinafter in detail as alleged by Petitioner's Petition for Revocation of Teacher's Certificate filed herein.
Findings Of Fact Based upon my observations of the witnesses and their demeanor while testifying, the documentary evidence received including the depositions Christine H. Ccates is the holder of Florida Teacher's Certificate No. 274453, Post Graduate, Rank II, valid through June 30, 1985, covering the areas of English, Middle English and Junior College. During times material, Christine E. Coates, Respondent, was employed in the Public Schools of Alachua County at Howard Bishop Middle School as an English teacher until her resignation effective June 15, 1978. The Professional Practices Council, Petitioner, received a report from Dr. James L. Scaggs, Assistant Superintendent for Internal Systems, Alachua County Schools, on June 5, 1978, indicating that there were allegations against Respondent concerning improper conduct with students. Pursuant thereto, and under the authority of Section 6A-4.37, Rules of the State Board of Education, Petitioner's staff conducted a professional inquiry into this matter and on August 14, 1978, made a report to the Executive Committee of the Professional Practices Council recommending that the Commissioner of Education find that probable cause exists to believe that Respondent was guilty of acts violative of Section 231.28, Florida Statutes, and Rule 6B-1.02(c) and (d), Florida Administrative Code. Based on a probable cause finding by the Commissioner of Education on August 22, 1978, the Recommendation was made that Respondent's teacher's certificate be suspended or revoked. The material allegations of the Petitioner's Petition for Revocation are: During the 1977-78 school year, on numerous occasions, Respondent engaged in sexual intercourse with a minor student of Howard Bishop Middle School. During the 1977-78 school year, Respondent allowed one or more minor male students from Howard Bishop Middle School to operate her automobile on the public highways of Florida without a driver's license. During the 1977-78 school year, Respondent provided alcoholic beverages to a minor male student from Howard Bishop Middle School. The Respondent also consumed alcoholic beverages in the presence of minor male students from Howard Bishop Middle School. During the 1977-78 school year, Respondent, on numerous occasions, allowed minor male students from Howard Bishop Middle School to smoke marijuana in her presence. On September 27, 1979, Petitioner's counsel took the depositions of Curtis, Charlotte, Jeffrey and Robert B. Alm, who had recently relocated from Gainesville, Florida, to Dallas, Texas. These depositions were received in lieu of live testimony since no objections were received, the witnesses were out of state, and Respondent's counsel was notified of the taking of said depositions. (Petitioner's Exhibits 1 through 4.) Wayne Gant, a sixteen-year-old male student, attended Howard Bishop Middle School during the 1977-78 school year in Gainesville, Florida. Student Gant knew Curtis and Jeffrey Alm, and Curtis Alm's relationship with Respondent. Student Gant testified that Curtis Alm drove Respondent's car in and around Gainesville on numerous occasions during the period January through May, 1978. Gant testified that Respondent purchased beer and marijuana for Curtis Alm during this period and that Respondent permitted Jeffrey and Curtis Aim to smoke marijuana at her apartment during this period. Vondell Robinson, Wayne Gant's mother, appeared and testified that her son was a friend of the Alms when they lived in Gainesville, Florida. Ms. Robinson recalled an incident wherein she returned from a weekend trip when she noted Respondent leaving her house with a glass of water. Ms. Robinson stopped Respondent and asked her what she was doing in her house, whereupon Respondent replied that Ms. Robinson's son and Curtis Alm gave her permission to go in and get a glass of water. Ms. Robinson noted that her son, Jeffrey and Curtis were leaving the house in Respondent's car as she was approaching. James L. Scaggs, assistant Superintendent for Employee Relations in Orange County, was formerly in charge of support services for Alachua County, Florida. Mr. Scaggs became familiar with the incident with Respondent on or about May 30, 1978, when he received a call from Mr. and Mrs. Alm involving the incident which occurred on May 30, 1973. The matter was discussed in great detail by Mrs. Alm, Curtis Alm, the Principal, Dr. Marcy and a Mrs. Themes. During his interview with Curtis Alm, Mr. Scaggs was told by Curtis that he had an ongoing relationship with Respondent from January through May, 1978. According to Scaggs, Respondent provided beer and marijuana to Curtis and Curtis and Respondent had sexual intercourse on numerous occasions during this period. The matter was brought to Respondent's attention during June, 1978, whereupon when confronted with the incidents as recounted by the Alms, Respondent offered her resignation. Respondent was then advised that the matter would be reported to Petitioner. An examination of the depositions of Jeffrey and Curtis Alm reveals that Respondent had an affair with Curtis Alm from January of 1978 through May of 1978, when the Alms relocated from Gainesville to Dallas, Texas. The record reveals that the Alms relocation was prompted in large part by the affair that was ongoing between Curtis Alm and Respondent. An examination of the deposition of Curtis Alm reveals that he was approximately fourteen years old when the subject incidents occurred and Respondent was his language arts teacher. Curtis testified that Respondent gave him money to purchase beer and marijuana and permitted him to drive her car, although he was not licensed at the time. The deposition of Jeffrey Alm is corroborative of Curtis' testimony which is also corroborative of the testimony of witnesses Wayne Gant, Vondell Robinson and James L. Scaggs. Based on the foregoing, the undersigned is of the opinion that the Respondent's acts and conduct with Curtis Alm, Jeffrey Alm and Wayne Gant during the period January through May of 1978, amount to conduct constituting immorality and moral turpitude and by its very nature, necessarily reduced her effectiveness as a School Board employee in violation of Chapter 231.28, Florida Statutes. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Respondent's teacher's certificate, No. 274453, be revoked for a period of three (3) years. RECOMMENDED this 11th day of December, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301 John R. Nettles, Esquire 14 East University Avenue, Room 102 Gainesville, Florida 32601 Ms. Christine E. Coates c/o Mr. Coates 2915 S.W. 1st Avenue Gainesville, Florida 32601 Professional Practices Council 319 West Madison Street, Room 3 Tallahassee, Florida 32301
The Issue The central issue in case no. 88-2368 is whether Respondent should be suspended for thirty workdays due to misconduct in office. The central issue in case no. 88-3315 is whether Respondent should be dismissed from employment due to misconduct in office, gross insubordination, and incompetency.
Findings Of Fact COPIES FURNISHED: Marlene Rodriguez 16333 Wood Walk Miami Lakes, Florida 33014 Frank Harder Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132
Recommendation Based on the foregoing, it is RECOMMENDED: With regard to case no. 88-2368, that the School Board of Dade County enter a final order affirming the administrative decision to suspend Respondent for a thirty workday period for misconduct in office. With regard to case no. 88-3315, that the School Board of Dade County enter a final order affirming the administrative decision to dismiss Respondent from employment for misconduct in office, incompetence, and gross insubordination. DONE and RECOMMENDED this 1st day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 1st day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2368, 88-3315 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted with the exception of George C. Clark, Mr. Clark's testimony was offered by deposition. Paragraph 2 is accepted. Paragraphs 3-4 are accepted. Paragraph 5 is rejected as a recitation of testimony, not specific facts adduced by such testimony; some of the recitation being without basis. It is found that Respondent did not follow school policies regarding the discipline administered to students, that Respondent was aware of the correct procedures, and that Respondent continuously had trouble regarding classroom management. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is accepted but is unnecessary to the conclusions reached in this cause. Paragraph 10 is accepted not for the truth of the matters asserted therein but as a indication of the student-teacher relationship between Respondent and one of the students she taught. Paragraphs 11, 12, and 13 are accepted. Paragraph 14 is accepted not for the truth of the matters asserted therein but see p.9 above. Paragraph 15 is accepted. Paragraph 16 is accepted not for the truth of the matters asserted therein but see p.9 above as it relates to the hearsay contents of the letter. Other portions of the paragraph which conclude respondent knew discipline procedures but did not follow them, or knew notice policies but did not follow them are accepted. Paragraphs 17 and 18 are accepted. Paragraphs 19,20,21, and 22 are accepted only to the extent addressed in findings of fact, paragraphs 7,8,9, and 10; otherwise, the proposed findings are rejected as contrary to the weight of the evidence or unsupported by admissible evidence. Paragraphs 23, 24, and 25 are accepted. With regard to paragraph 26, the first two sentences are accepted, the balance is rejected as hearsay or unsupported by the record in this cause. Paragraphs 27, 29, and 30 are accepted. (Petitioner did not submit a paragraph 28) In the future, proposed findings submitted which do not conform to the rules of the Florida Administrative Code will be summarily rejected. Petitioner is cautioned to review applicable rules, and to cite appropriately. RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted with the clarification that Clark's testimony was offered by deposition. Paragraph 2 is accepted. With regard to paragraph 3, according to the evidence in this case, Repodent taught at Miami Gardens Elementary School (Leon was her principal there) and North Carol City Elementary School (Sawyer and Brown were her principals there). Other schools may have been assigned during her periods of "special assignment" but the record is insufficient to establish Respondent's performance while on such assignments. The record is insufficient to make the legal conclusion addressed in paragraph 4, consequently, it is rejected. The Board addressed a recommendation to terminate Respondent's employment; however, the record does not establish final action was taken. The facts alleged in paragraph 5 are too voluminous to address in one paragraph. Petitioner's continued use of a recitation of the testimony does not constitute findings of fact. Pertinent to this case are the following facts adduced from Petitioner's paragraph 5: that Respondent's overall performance was unacceptable, that Respondent failed to direct students who were off task, that Respondent made an excessive number of referrals for discipline, and that the atmosphere in Respondent's class was not conducive to learning. With the exception of the last sentence in paragraph 6, it is accepted. The last sentence is rejected as contrary to the weight of the evidence. See finding made regarding paragraph 5, case no. 88-2368. Paragraph 8 is rejected as contrary to the specific evidence presented. Paragraph 9 is accepted. Paragraphs 10-14 are accepted. Paragraph 15 is rejected with the exception of the last sentence; the time sequence referred to is not specified in the record. The record does establish, however, that Respondent did not make progress in correcting noted areas of deficiency. Paragraphs 16 and 17 are accepted. Petitioner's proposed findings of fact have duplicate numbers for the following paragraphs: 15,16, and 17. The second set of these paragraphs are addressed below. Second paragraph 15 accepted not for the truth of the matters asserted but as an indication of the teacher-student relationship between Respondent and her student. Second paragraph 16 is accepted. Second paragraph 17 is accepted. Paragraph 18 is accepted. Paragraphs 19-22 are accepted.
Findings Of Fact The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M. After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly. Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension. THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS 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 30th day of January, 1985. COPIES FURNISHED: J. David Bolder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 33512 Perry Gall Gruman, Esquire 202 Cardy Street Tampa, Florida 33606
The Issue Whether or not the Respondent student, Rommel Luis Montes, should be assigned to the J. R. E. Lee Center, an opportunity school.
Findings Of Fact Respondent Rommel Luis Montes, age fifteen, was a student at Riviera Junior High School (Riviera) in Dade County, Florida, during the school years 1984-85, 1985-86, and 1986-87. During the 1984-85 school year Respondent's academic performance was very poor. He received five failing grades, passing only the subject of physical education with the grade of C. Also his ratings for effort during the four marking periods of that year were poor. The result of Respondent's lack of effort and poor academic performance was his not being promoted to the next grade. During the 1985-86 school year Respondent's academic performance was also poor. During that year he received poor ratings for effort, a D as a final grade in five subjects and the grade of F in two subjects. Respondent did not improve his academic performance during the 1986-87 school year. During the first grading period of that year, Respondent received grades of F in three subjects, grades of D in two subjects and one incomplete grade which subsequently was changed to an F. As before, Respondent's rating for effort was poor. Mrs. Carol Ann Golden, a math teacher, had Respondent as a student during the first marking period of the 1986-87 school year. While enrolled in that class, Respondent refused to do any work. Most of the time he would come to class without materials, he would rarely do homework and less than 10 percent of the time did he perform any class work. He had unexcused latenesses and out of forty-five school days he was absent twenty. In efforts to discourage tardiness, Mrs. Golden would issue detentions to Respondent (requiring him to stay in school after hours), but he would either serve them late or not at all, in defiance of school personnel authority. Those times when Respondent was issued indoor suspensions (CSI) as a disciplinary measure, he would refuse to do any work. Mrs. Deanna A. Villalobos, a history teacher at Riviera, also had Respondent as a student during the 1986-87 school year. Here again Respondent's behavior was the same: he would come to class without materials 70 percent of the time, hardly did any homework, performed approximately 5 percent of the work assigned in class, had approximately twenty absences (including one instance when he failed to return to class after lunch), was frequently tardy, would spend his time day dreaming and looking out the window, and as a result failed all the history tests administered. Respondent was also issued detentions by Mrs. Villalobos which he failed to serve. It is the practice at Riviera for teachers and school administrators to submit written reports relative to troublesome student behavior. Such reports are prepared on forms called Student Case Management Referral Forms (SCMRF) and are generally reserved for serious behavior problems. Mrs. Golden and Mrs. Villalobos each issued two SCMRFs on Respondent regarding, inter alia, his total lack of interest in school and failing grade average. In addition Respondent received five other SCMRFs from a different teacher. In addition to Respondent's lack of interest in school, these reports also complained of his skipping class, excessive talking in class, leaving class without permission, and simply refusing to do any work in class. As a counselor at Riviera, Mrs. Waizenhofer worked on a weekly basis with Respondent. From her testimony it was apparent that Respondent, although not a bad kid, was disinterested in school and was not responding to the various techniques used by teachers, counselors and administrators to make students more interested and improve their academic performance. During one counseling session Respondent, while in tears, promised Mrs. Waizenhofer to improve his school effort just a little. Twenty minutes later, Respondent was caught cutting class. One attempt at interesting Respondent in school, was to place him in the work experience program at Riviera. This consisted of securing employment for Respondent at Burger King on a part-time basis. Respondent was not able to hold the job for more than two weeks and he failed the program. Mrs. Thomas, assistant principal, and Mrs. Waizenhofer had numerous conferences with Respondent's mother. The parent, however, was not able to cause a change in Respondent's attitude toward school. It was recommended to both Respondent and his parent that assistance be sought at different community agencies, which could provide specialized counseling services at little or no cost. Despite the efforts made by the school administrators, no change was noted in Respondent. At Riviera, like other schools with regular school programs, the average number of students in a class is about thirty. Such schools are not geared to address peculiar student needs or provide individual students with continuous special attention. By contrast, at an opportunity school, such as the J. R. E. Lee Center, the ratio of teachers to students is about nine-to- one, students are the subject of individualized educational plans, and there are more counselors on staff, including a psychologist. The expert opinions of both Mrs. Thomas and Mrs. Waizenhofer was that the more structured environment at an opportunity school would be better for Respondent, as opposed to permitting him to remain in a regular school program where he was making no 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 Rommel Luis Montes to the J. R. E. Lee Center. DONE AND ORDERED this 17th day of March, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 17th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0294 Petitioner's proposed findings of fact 1-12, have been adopted in paragraphs 1-12, respectively. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Mrs. Estrella Montes 10030 Southwest 43rd Street Miami, Florida 33165 Dr. Leonard Britton, Superintendent Dade County Public Schools The School Board of Dade County, Florida 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Madelyn P. Schere, Esquire Assistant School Board Attorney Board Administration Building, Suite 301 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact At all times material hereto, Respondent was employed by the School Board of Dade County as a classroom teacher. During the 1980-1981 school year, Respondent was assigned to Southwood Junior High School as a science teacher. During that school year, Dr. E. L. Burck was the principal at Southwood. In August, 1980, Respondent applied for a part-time position teaching photography during the evenings at Robert Morgan Vocational Technical Institute. When Dr. John D. White, the vice principal at Robert Morgan, hired Respondent, he explained to Respondent that it would be necessary for Respondent to qualify for a teaching certificate in the area of photography. Respondent told White that he believed he was certifiable based upon his work experience and indicated to White that he would pursue the necessary steps to obtain his certification. At the time that White hired Respondent to teach part-time during the fall 1950 semester, White knew that Respondent was employed full-time at Southwood. During the fall 1980 semester, the administrators at Robert Morgan determined they wished a full-time program at Robert Morgan and decided that if enough students would be generated, they would need a full-time photography teacher in January, 1981. The possibility of a full-time position was discussed with Respondent. Respondent decided that if he could obtain a full-time position at Robert Morgan in January, he would pursue obtaining certification; however, if he could not obtain a full-time position, he would not pursue obtaining certification since it was difficult to teach full-time at Southwood in addition to part-time at Robert Morgan. During December, 1980, while enrollment was underway at Robert Morgan and it appeared probable that a full-time photography position would become available, Respondent spoke with Dr. Burck at Southwood regarding the possibility of transferring to Robert Morgan on a full-time basis beginning January 5, 1981, the first day of classes following the Christmas, 1980, vacation. Burck explained to Respondent the procedures relating to such a transfer of assignment and further explained that he needed to have definite information as soon as a final decision had been made so that he could initiate procedures for obtaining a teacher to replace Respondent. Just prior to Christmas vacation, Dr. White (as the potential "receiving principal") and Dr. Burck (as the potential "sending principal") discussed the possibility of the full-time photography class and the possibility of Respondent's transfer to Robert Morgan to teach that class. White explained that he did not yet know if the full-time class would materialize but that he would give Burck two weeks' notice in order that Burck could find a replacement teacher. Burck conveyed to Respondent the content of this conversation and advised Respondent that until such time as the class materialized and Respondent was replaced at Southwood, Respondent was still a staff member at Southwood and Burck expected to see him on January 5, 1981. Respondent did not report for work at Southwood on Monday, January 5, 1981, and failed to advise anyone at Southwood that he did not intend to return to teach his classes. Burck and another employee of Southwood attempted to locate Respondent. On January 6, 1981, White ascertained that there was sufficient enrollment for the full-time photography teacher's position at Robert Morgan. He instructed an employee at Robert Morgan to process the necessary paperwork to hire Respondent full-time. It was discovered that Respondent did not have, nor had he applied for, his vocational certificate covering the field of photography. Since White had told Respondent in August, 1980, to obtain certification and Respondent had apparently done nothing to do so, White gave to Respondent a deadline of Friday, January 9, 1981, to obtain verification of his ability to secure the proper teaching certificate. Also on January 6, 1981, White and Burck discussed Respondent's employment. White advised Burck that Respondent was teaching part-time at Robert Morgan and that there appeared to be a problem with Respondent's certification. Burck then talked with Respondent, and Respondent told Burck that he was teaching at Robert Morgan as a full-time instructor and that the certification problem would be resolved shortly. Burck told Respondent he needed an immediate resolution because Respondent's students at Southwood were without a regular teacher. Burck reminded Respondent that Respondent's assignment was at Southwood and that no transfer had been officially requested or granted. Burck contacted Dr. Thomas Peeler, South Area Director, and requested Dr. Peeler's assistance in resolving Respondent's status. On January 7, 1981, Dr. Peeler contacted White at Robert Morgan and advised White that Respondent was not reporting to work at Southwood. White had assumed that Respondent was reporting to his assigned school. Peeler instructed White to advise Respondent that he was to report to work at Southwood the following day. On January 7, White told Respondent to report to Southwood the following day. On January 8, White again advised Respondent that he was to report to work at Southwood. On January 9, White released Respondent from his part-time teaching assignment at Robert Morgan since Respondent had not achieved either obtaining the required certification or obtaining verification that he was in fact certifiable. Also on January 9, Burck contacted Respondent and advised Respondent that he had not been transferred and was still assigned to Southwood. On Monday, January 12, 1981, Dr. Peeler, the South Area Director, ordered Respondent to report to his teaching position at Southwood on Tuesday, January 13. Later that same day, Dr. Burck ordered Respondent to return to work on the 13th. Respondent told Dr. Burck that he would not return to work. On January 13, Dr. Peeler wrote Respondent, ordering him again to immediately report to his teaching assignment at Southwood. Peeler advised Respondent that his failure to report could result in suspension. In view of Respondent's continued refusal to obey orders, and in view of Respondent's advice to Burck the evening of January 12 that he would not report to Southwood to fulfill his teaching duties, a replacement teacher was located to fill Respondent's position as a science teacher at Southwood. Between January 5, 1981, and January 30, 1981, Respondent did not report to his assigned teaching position despite repeated orders from his superiors, Respondent knew that his place of employment had not been changed, and Respondent was absent from his teaching duties without leave. On January 30, 1981, a conference was held among Mr. Eldridge Williams, the Executive Director of the Office of Personnel for the Dade County Public Schools, Dr. Thomas Peeler, the South Area Director, and Respondent to discuss Respondent's repeated failure to report to work and Respondent's employment status. At that meeting, Respondent offered to return to work at Southwood on February 2, 1981; however, his position had been filled. Insofar as payroll status, Respondent was classified as absent without leave. No alternate position was available for placement of Respondent through the remainder of the 1980-1981 school year. On March 9, 1981, Patrick Gray, the Assistant Superintendent in the Office of Personnel, wrote Respondent regarding the south area supervisor's recommendation that Respondent be suspended or dismissed from employment. Gray's letter ordered Respondent to immediately return to Southwood or to resign or to retire in order that his employment status could be resolved. At the time he wrote that letter, Gray was not aware that Respondent's position at Southwood had been filled. In response to his letter of March 9, Gray received a letter from Respondent dated March 16, 1981, requesting another conference. A second conference between Respondent and Eldridge Williams was scheduled for April 2, but Respondent refused to meet with only Williams. Accordingly, a conference was scheduled for April 17, 1981, with Patrick Gray, Eldridge Williams, Dr. Peeler and Respondent. As a result of that conference, Respondent submitted a leave request dated April 22, 1981, requesting leave for the period of April 27, 1981, through the end of the school year in June, 1981. This request for leave was approved by Gray on August 7, 1981, retroactive for the period requested. A formal letter of reprimand dated October 13, 1981, was issued to Respondent as a result of his insubordination in refusing to report as ordered to Southwood Junior High School. During the 1981-1982 school year, Respondent was assigned to Redland Junior High School as a science teacher. Utilizing proper procedures, Respondent was absent on September 16, September 28, October 6, October 22, October 23, October 26, October 27, October 28, October 29, October 30, November 2, November 3, November 4 and November 5, 1981. On September 28 and October 6, Respondent utilized personal leave. On the other 12 days, he utilized sick leave. On November 5, 1981, Respondent advised Judy Cobb, Assistant Principal at Redland Junior High School, that he was looking for another job. Cobb advised Norman Lindeblad, Principal of Redland Junior High School, of this conversation with Respondent. On Friday, November 6, 1981, Respondent advised Lindeblad that he would not be returning to his teaching assignment at Redland Junior High School. Respondent told Lindeblad to fill Respondent's teaching position, and Lindeblad advised Respondent that he could not do so without receiving such directive in writing. Lindeblad advised Respondent that he expected Respondent to report to his teaching position on Tuesday, November 10, 1981, absent some other resolution of the problem such as approved personal leave or resignation. Late in the evening on November 9, 1981, Respondent telephoned Lindeblad at home and advised Lindeblad that he would not report on Tuesday, November 10, 1981, to teach his classes. On Tuesday, November 10, 1981, Respondent once again advised Lindeblad that he would not return to his teaching position at Redland. Respondent scheduled an appointment with Lindeblad on November 11 to finally resolve his status, and Lindeblad advised Respondent that unless verification of illness was provided, Lindeblad would commence recording Respondent's leave as leave without pay beginning on Friday, November 6, 1981. On November 11, 1981, Respondent appeared at Redland Junior High School and gave to Lindeblad a memorandum authorizing Lindeblad to replace Respondent in his science teaching position as of Wednesday, November 11, 1981. On November 16, 1981, the personnel office received an application for leave without pay from Respondent, which application was dated November 11, 1981, and which application requested leave effective November 11, 1981, due to Respondent's ill health. The portion of the application for leave requiring the signature and recommendation of the principal was not completed. Although the application required a statement from a physician justifying the request if the request were based upon ill health, Respondent provided only a short letter signed by a therapist possessing a degree in education stating that Respondent felt stress and frustration. No information regarding any physical symptoms, diagnosis or prognosis was volunteered. Since proper procedures require the principal's recommendation for extended leave, Lindeblad was asked to provide his recommendation to the personnel office. On November 18, 1981, Lindeblad sent a memorandum to the Office of Personnel stating that he did not recommend approval of leave for Respondent since no statement from a physician had been provided to verify Respondent's alleged ill health and because Lindeblad felt that the Respondent had begun unauthorized leave before he even requested leave. On November 19, 1981, Patrick Gray advised Respondent that Respondent's request for leave was not approved. Respondent was further advised that since he refused to carry out his teaching assignments for the second year in a row and since Respondent was simply attempting to obtain a teaching position in an area for which he was not certified and could not be certified, then Respondent's options were limited to either resignation or suffering suspension and dismissal proceedings. Respondent did not resign, and dismissal proceedings were initiated. Respondent was absent in accordance with proper procedures for the 14 days ending on November 5, 1981, as set forth in Paragraph numbered 24. Commencing on November 6, 1981, Respondent was absent without leave. Although Respondent eventually obtained verification of his work experience for the addition of photography to his teaching certificate, as of October 1, 1981, Respondent was still not certifiable for the reason that he still needed three full years of teaching experience and 14 semester hours of credit in vocational education courses. By the time of the final hearing in this cause, Respondent had still not obtained a teaching certificate enabling him to teach photography.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of gross insubordination, incompetency, willful neglect of duty and absence without leave; dismissing Respondent from employment by the School Board of Dade County; and denying Respondent's claim for back pay. DONE and RECOMMENDED this 21st day of January, 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 21st day of January, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Robert F. McKee, Esquire 341 Plant Avenue Tampa, Florida 33606 Leonard Britton Superintendent of Schools Dade County Public Schools Lindsay Hopkins Building 1410 NE Second Avenue Miami, Florida 33132
The Issue The issue is whether the allegations contained in the Second Amended Administrative Complaint filed by Petitioner are true, and if so, what discipline should be imposed.
Findings Of Fact The School Board has employed Dr. Whalen since 1997. She first worked as a teacher at Gladys Morse Elementary School. When Morse closed she was transferred to Taylor Elementary School, a new school. She continued teaching at Taylor Elementary School until January 19, 2005. Her employment was pursuant to a professional services contract. Dr. Whalen holds Florida Educator's Certificate No. 530568. Dr. Whalen has been confined to a wheelchair for almost 55 years. She cannot move her lower extremities and she is without feeling in her lower extremities. On January 19, 2005, she was approximately 58 years of age. During times pertinent Dr. Whalen taught a "varying exceptionalities" class. A "varying exceptionalities" class is provided for students who have a specific learning disability, or have emotional difficulties, or who have a physical handicap. She has been an exceptional student education teacher for about 20 years. She has never been disciplined by an employer during her career. In addition to her teaching activities she is also County Coordinator for the Special Olympics. The Commissioner of Education is the chief educational officer of the state and is responsible for giving full assistance to the State Board of Education in enforcing compliance with the mission and goals of the K-20 education system. The State Board of Education's mission includes the provision of certification requirements for all school-based personnel. The Education Practices Commission is appointed by the State Board of Education and has the authority to discipline teachers. Nonviolent Crisis Intervention Kathy Kriedler is currently a teacher at Taylor Elementary School. She is certified in teaching emotionally impaired children and has taught emotionally impaired children in Taylor County since 1983. She is an outstanding teacher who was recently named Taylor County Elementary School Teacher of the Year and Taylor County District Teacher of the Year. Ms. Kriedler is a master level instructor in Nonviolent Crisis Intervention, which is a program of the Crisis Prevention Institute. The use of skills associated with the program is generally referred to as CPI. CPI arms teachers with the skills necessary to de-escalate a crisis involving a student, or, in the event de-escalation fails, provides the skills necessary to physically control students. Ms. Kriedler has been the School Board's CPI teacher since 1987. CPI teaches that there are four stages of crisis development and provides four staff responses to each stage. These stages and responses are: (1) Anxiety-Supportive; (2) Defensive-Directive; (3) Acting Out Person-Nonviolent Physical Crisis Intervention; and (4) Tension Reduction- Therapeutic Rapport. The thrust of CPI is the avoidance of physical intervention when possible. The CPI Workbook notes that, "The crisis development model . . . is an extremely valuable tool that can be utilized to determine where a person is during an escalation process." It then notes, helpfully, "Granted, human behavior is not an orderly 1-4 progression." The CPI Workbook provides certain responses for a situation that has devolved into violence. CPI physical control techniques include the "children's control position" which is also referred to as the "basket hold." CPI also provides a maneuver called the "bite release" which is used when a child bites a teacher and the "choke release" which is used when a child chokes a teacher. CPI specifically forbids sitting or lying on a child who is lying on the floor because this could cause "positional asphyxia." In other words, an adult who lies upon a child could prevent a child from breathing. CPI holds are not to be used for punishment. The School Board encourages teachers to learn and apply CPI in their dealings with students. The use of CPI is not, however, mandatory School Board policy nor is it required by the State Board of Education. Dr. Whalen took and passed Ms. Kriedler's CPI course and took and passed her refresher course. She had at least 16 hours of instruction in CPI. She could not accomplish some of the holds taught because of her physical handicap. The alleged chain incident Ms. Amanda Colleen Fuquay taught with Dr. Whalen when both of them were teachers at Gladys Morse Elementary School. Ms. Fuquay, like Dr. Whalen, taught exceptional children. Ms. Fuquay's first teaching job after receipt of her bachelor's degree was at Morse Elementary School. At the time Ms. Fuquay began teaching, Dr. Whalen was also a teacher at Morse. The record does not reveal when Ms. Fuqua initially began teaching at Morse, but it was after 1997 and before August 2002, when Morse Elementary merged into the new Taylor Elementary School. During Ms. Fuqua's first year of teaching she entered Dr. Whalen's class. She testified that upon entry she observed a male student chained to a chair at his desk. The chain may have been about the size of a dog choker. She said that the chain ran through the student's belt loop and around the chair. Ms. Fuqua said that she inquired of Dr. Whalen as to the reason for the chain and she replied, in perhaps a joking way, that the student wouldn't sit down. The evidence does not reveal when this occurred or even in what year it occurred. The evidence does not reveal the name of the alleged victim. The evidence does not reveal the victim's response to being chained to the chair. The evidence does not reveal whether Dr. Whalen chained the child or if someone else chained the child or if it just appeared that the child was chained. Robin Whiddon was Dr. Whalen's aide for school years 1998-99, 1999-2000, and 2000-2001, and she testified at the hearing. She did not mention this incident. Ms. Fuqua could not discern if this was a serious matter or whether it was some sort of a joke. She said, "I didn't have a clue." Ms. Fuqua failed to report this incident because she was new to teaching and she had not, "learned the ropes." Dr. Whalen denied under oath that she had ever chained a student to a chair, and specifically denied that she had done it in 1999, which is within the time frame that Ms. Fuqua could have observed this. Moreover, she specifically denied having chains in her classroom. The Commissioner has the burden of proving the facts in this case, as will be discussed in detail below, by clear and convincing evidence. Undoubtedly, Ms. Fuqua saw a chain of some sort that appeared to be positioned in such a manner as to restrain the unidentified student. However, the lack of any corroborating evidence, the paucity of details, and the denial of wrong-doing by Dr. Whalen prevents a finding, by clear and convincing evidence, of maltreatment. The alleged incident involving S.A. On August 13, 1998, at Morse, Ms. Kriedler was called by Dr. Whalen to her class. When Ms. Kriedler entered the class she observed Dr. Whalen holding S.A.'s arms to his desk with her right hand and holding the hair of his head by her left hand. She stated to Ms. Kriedler that, "If he moves a quarter of an inch, I'm going to rip the hair out of his head." Dr. Whalen also related that S.A. had kicked her. Dr. Whalen also said to S.A., in the presence of Ms. Kriedler, "Go ahead and kick me because I can't feel it." This referred to her handicap. By this time S.A. was motionless. After a discussion with Ms. Kriedler, Dr. Whalen released S.A. and Ms. Kriedler took him to her classroom. Subsequently, Ms. Kriedler requested that he be transferred to her class and that request was granted. Ms. Kriedler reported this incident to Shona Murphy, the Taylor County School District Exceptional Student Education Administrator. Ms. Murphy stated that Ms. Kriedler reported to her that that S.A. was flailing about and kicking when Dr. Whalen threatened to pull his hair. Robin Whiddon was Dr. Whalen's aide on August 13, 1998. She recalls S.A. and described him as a troubled young man who was full of anger. He would sometimes come to school appearing disheveled. He had blond hair that was usually short. Ms. Whiddon has observed him lash out at others with his hands. Ms. Whiddon was not present in the classroom when the incident described by Ms. Kriedler occurred. However, upon her return to the classroom, Dr. Whalen informed her that she had grabbed S.A. by the hair until she could control him. Ms. Murphy discussed the incident with Principal Izell Montgomery and Superintendent Oscar Howard in late August 1998. As a result of the discussions, these officials decided to video-tape Dr. Whalen's classroom, and to take no other action. Dr. Whalen denied under oath that she grabbed S.A.'s hair. Despite Dr. Whalen's assertion to the contrary and upon consideration of all of the evidence, it has been proven by clear and convincing evidence that Dr. Whalen grabbed and held S.A.'s hair and threatened to pull it out. Grabbing a student's hair is not an approved CPI hold. However, at the time this occurred Dr. Whalen was not required to use CPI methods. Grabbing a student's hair is generally unacceptable conduct unless, for instance, it is done in self- defense, or in order to protect the student or others. It has been not been proven by clear and convincing evidence that grabbing S.A.'s hair was impermissible. Dr. Whalen told Ms. Kriedler that S.A. had been kicking her. This statement raises the possibility that the action was initiated as a self-defense measure. When one considers that Dr. Whalen has limited mobility, and that her aide was not present, she was permitted to take reasonable actions to defend herself. Grabbing a student's hair may have been reasonable under the circumstances and, in the event, the record does not provide enough evidence to permit a determination. The video-tape of November 20, 2002 A video-tape, that included audio, and which was made part of the record of the case, portrays events on the morning of November 20, 2002. The video-tape was brought to the attention of the school administration by a parent who had received the video-tape from Dr. Whalen. The picture quality of the video is satisfactory but the audio is derived from a microphone near Dr. Whalen's desk. Therefore, it is clear that the microphone did not record all of the words spoken in the classroom at the time and date pertinent. Accordingly, facts found as a result of viewing the video-tape are limited to those which are clearly depicted by it. The School Board had discussed the wearing of apparel with representations of the Confederate battle flag on them in a meeting immediately prior to November 20, 2002. Early in the morning of November 20, 2002, there was a discussion with regard to the School Board deliberations among some of Dr. Whalen's students. The discussion came close to degenerating into physical conflict. This was reported to Dr. Whalen's aide, Ruth Ann Austin. It was further reported that some students called some of their fellow students "rebels," and others called other students "Yankees" and "gangsters." Assistant Principal Verges visited the classroom at the beginning of the school day, at Dr. Whalen's request, and he explained the matters discussed at the School Board meeting. Upon the departure of Assistant Principal Verges, Dr. Whalen unleashed a torrent of criticism upon her students addressing the subject of name-calling. Dr. Whalen spoke to the students in a loud and threatening tone of voice. While delivering this tirade, Dr. Whalen traveled to and fro in her motorized wheelchair. The video-tape revealed that this wheelchair was capable of rapid movement and that it was highly maneuverable. The lecture was delivered in a wholly confrontational and offensive manner. The lecture continued for more than 30 minutes. This behavior was the opposite of the de-escalating behavior that is suggested by CPI. However, Dr. Whalen had never been directed to employ CPI. S.O. was a student in Dr. Whalen's class and was present on November 20, 2002. He was a student of the Caucasian race who had, prior to this date, displayed aggressive and violent behavior toward Assistant Principal Verges and toward Ruth Ann Austin, Dr. Whalen's aide. Some on the school staff described him, charitably, as "non-compliant." S.O. was quick to curse and had in the past, directed racial slurs to Ms. Austin, who is an African-American. Because of his propensity to kick those to whom his anger was directed, his parents had been requested to ensure that he wear soft shoes while attending school. On November 20, 2002, S.O. was wearing cowboy boots and a Dixie Outfitters shirt with the Confederate battle flag emblazoned upon the front. Subsequent to Dr. Whalen's tirade, S.O. slid out of his chair onto the carpeted floor of the classroom. Dr. Whalen instructed him to get back in his chair, and when he did not, she tried to force him into the chair. She threatened S.O. by saying, "Do you want to do the floor thing?" When S.O., slid out of his chair again, Dr. Whalen forcibly removed S.O.'s jacket. Thereafter, Ms. Austin approached S.O. Ms. Austin is a large woman. Ms. Austin removed S.O.'s watch and yanked S.O.'s boots from his feet and threw them behind his chair. Dr. Whalen drove her wheelchair into the back of S.O.'s chair with substantial violence. Thereafter, Ms. Austin removed S.O. from the classroom. Removing S.O.'s jacket, watch, and boots was acceptable under the circumstances because they could have been used as weapons. The act of driving the wheelchair into the back of S.O.'s chair, however, was unnecessary and unhelpful. A memorandum of counseling was presented to Dr. Whalen by Principal Ivey on December 2, 2002, which addressed her behavior as portrayed by the video-tape. The S.O. and C.C. incidents Reports from time to time were made to Assistant Principal Verges, and others, that Dr. Whalen engaged in an activity commonly referred to as "kissing the carpet." This referred to physically taking children down to the floor and sitting on them. During April 2003, Dr. Whalen reported to Assistant Principal Verges and Ms. Kriedler that she had recently put two students on the carpet. During the four years Mr. Verges was Dr. Whalen's Assistant Principal, Dr. Whalen reported a total of only about four instances of having to physically restrain students. Dr. Whalen has never told Mr. Verges that she has regularly restrained children on the floor. Dr. Whalen's agent for using physical restraint is her aide, Ms. Austin, because Dr. Whalen's handicap does not permit her to easily engage in physical restraint. Ms. Austin physically restrained children five or six or seven times during the four years she was Dr. Whalen's aide. On four occasions a child actually went to the floor while being restrained by Ms. Austin. One of the two students who were reported to have been physically restrained during the April 2003, time frame was S.M. During this time frame S.M. became a new student in Dr. Whalen's class. S.M. was unhappy about being placed in a "slow" class. It was Ms. Austin's practice to meet Dr. Whalen's students when they exited the school bus in the morning. Accordingly, she met S.M., the new student. S.M. was "mouthy" when she exited the bus and would not get in line with the other children. S.M. and the rest of the children were taken to the lunch room in order to procure breakfast. While there, S.M. obtained a tray containing peaches and other food and threw the contents to the floor. Ms. Austin instructed S.M. to clean up the mess she made. S.M. responded by pushing Ms. Austin twice, and thereafter Ms. Austin put S.M. in a basket hold. S.M. struggled and they both fell on the floor. Ms. Austin called for assistance and someone named "Herb" arrived. Herb put a basket hold on S.M. while Ms. Austin tried to remove S.M.'s boots because S.M. was kicking her. S.M. was almost as tall as Ms. Austin and was very strong. At the end of the day, Ms. Austin was trying to "beat the rush" and to get her students on the school bus early. She was standing in the door to the classroom attempting to get her students to form a line. She and Dr. Whalen had planned for S.M., and another student, with whom she had engaged in an ongoing disagreement, to remain seated while the rest of their classmates got on the bus. While the line was being formed, S.M. and her fellow student had been directed to sit still. Instead, S.M. rose, said that she was not going to wait, and tried to push by Ms. Austin. Ms. Austin responded by asking her to sit down. S.M. said she would not sit down and pushed Ms. Austin yet again. Ms. Austin tried to restrain her and told the other students to get to the bus as best as they could because she was struggling with S.M. and was having substantial difficulty in restraining her. Ms. Austin asked for help. She and S.M. fell to the floor. S.M. was on the carpet. Dr. Whalen slid from her wheelchair and attempted to restrain the top part of S.M.'s body. Ms. Austin held the bottom part of her body and attempted to remove her boots with which S.M. was kicking. S.M. was cursing, screaming, and otherwise demonstrating her anger. Dr. Whalen talked to her until she calmed down. They then released S.M. The actions taken by Ms. Austin and Dr. Whalen were appropriate responses to S.M.'s behavior. The S.M. affair precipitated the C.C. incident. C.C. was a large male student who had no history of violence. C.C. teased S.M. about having been "taken down" by Ms. Austin. C.C., teasingly, told Ms. Austin, that he did not think Ms. Austin could take him down. Ms. Austin said she could put him in a basket hold which she did. C.C. challenged Ms. Austin to put him on the floor and she did. This was considered a joke by C.C. and Ms. Austin. This incident was nothing more than horseplay. As the result of the comments made by Dr. Whalen, addressing the S.M. and C.C. incidents, to Ms. Kriedler and to Assistant Principal Verges, a memorandum issued dated April 7, 2003. It was signed by Principal Sylvia Ivey. The memorandum recited that Dr. Whalen's comments raised concerns with regard to whether Dr. Whalen was using appropriate CPI techniques. The memorandum stated that Dr. Whalen's classroom would be video-taped for the remainder of the school year, that Dr. Whalen was to document each case of restraint used, that she should use proper CPI techniques, and that she should contact the office should a crisis situation arise in her classroom. The J.R. incident On January 19, 2005, J.R. was a student in Dr. Whalen's classroom. On that date, J.R. was a ten-year-old female and in the third grade. J.R. had been a student in Dr. Whalen's classroom only since about January 10, 2005. Dr. Whalen did not know much about J.R.'s history on January 19, 2005. At the hearing J.R. appeared physically to be approximately as large as Dr. Whalen. A determination as to exactly who was the larger could not be made because Dr. Whalen was seated in a wheelchair. Assistant Principal Verges found that J.R.'s physical strength was greater than average for an elementary school student on an occasion when he had to restrain her after she bit another person. J.R. brought a CD player to class on January 19, 2005, and after lunchtime, Dr. Whalen discovered it and confiscated it. Dr. Whalen took possession of the CD player because school rules forbid students to have CD players in class. Dr. Whalen put it in a drawer by her desk. When this happened, in J.R.'s words she, "Got mad." A heated discussion between Dr. Whalen and J.R., about the dispossession of the CD player ensued, but after a brief time, according to Dr. Whalen's aide, Angela Watford, "the argument settled." Even though Ms. Watford's lunch break had begun, she remained in the room, at Dr. Whalen's request, until she was satisfied that the dispute had calmed. Subsequent to the departure of Ms. Watford, J.R. approached Dr. Whalen, who was seated behind her desk working. The configuration of the desk and furniture used by Dr. Whalen was such that she was surrounded by furniture on three sides. In order to obtain the CD player, it was necessary for J.R. to enter this confined space. J.R. entered this space, moving behind Dr. Whalen, and reached for the drawer containing the CD player in an effort to retrieve it. When Dr. Whalen asked her what she was doing, J.R. said, "I am getting my CD player and getting out of this f class." Dr. Whalen told J.R. to return to her desk. J.R. continued in her effort to obtain the CD player and succeeded in opening the drawer and grasping the headset part of the CD player. Dr. Whalen attempted to close the drawer. J.R. reacted violently and this surprised Dr. Whalen. J.R. attempted to strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and then put her arm around J.R. When J.R. pulled away, this caused Dr. Whalen to fall from her wheelchair on top of J.R.'s back at about a 45-degree angle. Immediately thereafter, J.R. bit Dr. Whalen several times. The bites broke Dr. Whalen's skin in three places and the pain caused her to cry. J.R. began cursing, screaming, and kicking. J.R. said she was going to "kick the s _ _ _" out of her teacher. In fact, while on the carpet, J.R. kicked Dr. Whalen numerous times. Dr. Whalen believed she would be in danger of additional harm if she allowed J.R. to regain her feet. This belief was reasonable. J.R. was in no danger of asphyxiation during this event because Dr. Whalen removed part of her weight from J.R. by extending her arms. Upon returning from lunch Ms. Watford spotted T.B., a boy who appears to be eight to ten years of age. T.B. was standing outside of Dr. Whalen's classroom and he calmly said to Ms. Watford, "Help." Ms. Watford entered the classroom and observed Dr. Whalen lying on top of and across J.R., who was face down on the carpeted floor, and who was cursing and kicking while Dr. Whalen tried to restrain her. Ms. Watford ran over to assist in restraining her by putting her legs between J.R.'s legs. J.R. thereafter tried to hit Ms. Watford with her right hand. Ms. Watford grabbed J.R.'s right arm and was severely bitten on the knuckle by J.R. The three of them ended up, Ms. Watford related, "in a wad." Within seconds of Ms. Watford's intervention, Frances Durden, an aide in the classroom next door came on the scene. She was followed by Takeisha McIntyre, the dean of the school, and Assistant Principal Verges. Ms. McIntyre and Mr. Verges were able to calm J.R. and safely separate her from Dr. Whalen. Then J.R. stated that Dr. Whalen had bitten her on the back. Dr. Whalen and Ms. Watford went to the school's health clinic to have their wounds treated. The wounds were cleaned and Ms. Watford subsequently received an injection. While Dr. Whalen and Ms. Watford were at the health clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was raised and the persons present observed two red marks between her shoulder blades. Dr. Whalen said that the marks must have been produced by her chin or that possibly her teeth may have contacted J.R.'s back. She said that she had forced her chin into J.R.'s back in an effort to stop J.R. from biting her. Ms. McIntyre took photographs of the marks. The photography was observed by Mr. Verges. The photographs reveal two red marks positioned between J.R.'s shoulder blades. The two marks are vertical, parallel, and aligned with the backbone. They are from one, to one and one half inches in length. The skin is not broken. There is no wound. Teeth marks are not discernible. A teacher who has many years of experience in the elementary or kindergarten education levels, and who has observed many bite marks, may offer an opinion as to whether a mark is a bite mark. Mr. Verges has the requisite experience to offer an opinion as to the nature of the marks on J.R.'s back and he observed the actual marks as well as the photographs. It is his opinion that the two marks were caused by a bite. Ms. McIntyre, who has also observed many bite marks in her career, and who observed the actual marks as well as the photographs, stated that the marks were consistent with a bite. Registered Nurse Cate Jacob, supervisor of the School Health Program observed Julia's back on January 19, 2005, and opined that the red marks on J.R.'s back were bite marks. J.R. reported via her mother, the day after the incident, that she had been bitten by a boy on the playground of Taylor Elementary School, by a black boy with baggy pants, possibly before the incident with Dr. Whalen. Facts presented at the hearing suggest that it is unlikely that J.R. was bitten on the playground under the circumstances described in this report. T.B. was the only nonparticipant close to the actual combat who was a neutral observer. He did not see Dr. Whalen bite J.R., but did see her chin contact J.R.'s back and he heard Dr. Whalen say words to the effect, "I am going to make you say 'ouch.'" Dr. Whalen denied biting J.R. She stated at the time of the event, and under oath at the hearing, that she forcibly contacted J.R.'s back with her chin. She stated that it was possible that in the heat of the struggle her teeth may have contacted J.R.'s back. The opinion of the school personnel as to the origin of the marks upon J.R.'s back is entitled to great weight. On the other hand, a study of the photographs exposed immediately after the incident, reveals no teeth marks and no broken skin. The marks could be consistent with pressing one's chin upon another's back or pressing one's teeth in one's back. In the latter case, whether J.R. was bitten may be a matter of definition. Generally, a bite occurs when the victim experiences a grip or would like that experienced by Ms. Watford or Dr. Whalen in this incident. Although J.R. asserted that the marks occurred because of the actions of, "a boy on the playground," given J.R.'s general lack of credibility, that explanation is of questionable reliability. The evidence, taken as a whole, does not lend itself to a finding of the origin of the marks on J.R.'s back. Because proof by clear and convincing evidence is required in this case, it is not found that Dr. Whalen bit J.R. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. It is clear that for many months Dr. Whalen's classroom was video-taped and until the November 20, 2003, incident, none of her actions caused attention to be drawn to her teaching methods. It is found that the assault on Dr. Whalen was sudden and unexpected. Any actions taken by Dr. Whalen were taken in permissible self-defense. J.R. was suspended from Taylor Elementary School for ten days following this incident. Miscellaneous Findings Sylvia Ivey has been the principal of Taylor Elementary for three years. She has evaluated Dr. Whalen three times. She has evaluated Dr. Whalen as "effective," which is the top mark that a teacher may receive. From approximately 1997, when the S.A. hair pulling allegedly occurred, until December 2, 2002, not a single document was created indicating dissatisfaction with Dr. Whalen's teaching methods. Dr. Whalen's normal voice volume is louder than average. She would often elevate her already loud voice, intimidate students and pound on her desk. The aforementioned activities are not part of CPI. On the other hand, these methods worked for Dr. Whalen for 20 years. She was not required to use CPI until subsequent to the memorandum of April 7, 2003. There is no evidence that she failed to use CPI once she was required to employ it. As revealed by the testimony of Dr. Whalen, Ms. Kriedler, Assistant Principal Verges, Ms. Austin, and others, some of these children would strike, kick, bite, throw objects, curse, and hurl racial epithets at their teachers. Teaching some of these children was difficult.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of Counts 3 and 4, that she be issued a reprimand, that she be placed on probation as that term is defined in Florida Administrative Code Rule 6B-11.008, for a period of one year. DONE AND ENTERED this 15th day of June, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
