The Issue The issue is whether the district school board has just cause to suspend an instructional employee for three days without pay, where it has alleged that the teacher verbally and physically abused two of her exceptional education students.
Findings Of Fact The School Board is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant, it was Shvank’s employer. As an instructional employee of the School Board, Shvank holds an annual contract, and she may be dismissed or suspended during the term of the contract only for just cause. Shvank is certified to teach exceptional student education, and during the relevant school year, 2019-2020, she was assigned to Dania Elementary School, where she taught a first-grade class composed of nine students with autism. In this proceeding, the School Board seeks to suspend Shvank for three days without pay based upon three separate incidents, which occurred in her classroom on September 18, 2019. Two of these incidents involved a student named M.S., while the third was an interaction with L.G., another student. The only evidence against Shvank having any meaningful probative value in the judgment of the fact-finder are videos recorded by a college student who used his iPhone to film Shvank while observing her class pursuant to his own studies as an education major. He later edited the raw footage, which was reduced to three brief clips, hereafter the “Chin Segment,” the “Words Segment,” and the “Dance Segment.” Before turning to these clips, some findings about how the videos came to be made are in order. In September 2019, Diego Balin was a student at Broward College in his final year of a program leading to a degree in education. As part of his studies, Mr. Balin needed to complete a practicum, whereby he would be placed in a classroom to observe an experienced teacher in action. Mr. Balin was assigned to Shvank’s classroom. As a student teacher, Mr. Balin was present in Shvank’s classroom on two different days, the first being a date before that of the subject incidents. There is some dispute as to how long Mr. Balin stayed that first day, but he saw enough to conclude that Shvank was too aggressive with the students for his taste. It should be added that the two other adults in the classroom (besides Shvank and Mr. Balin), namely a paraprofessional and a speech- language pathologist, did not observe any questionable behavior on Shvank’s part, either that day or at any time. The next time that Mr. Balin was in Shvank’s classroom turned out to be September 18, 2019. Within about ten minutes after arriving, Mr. Balin saw what he perceived as aggressive behavior by Shvank, so he began secretly video recording her using the iPhone in his shirt pocket as a concealed body camera. In total, Mr. Balin recorded approximately two hours’ worth of footage, capturing about half of his time in the classroom that day. Reviewing the video later, Mr. Balin identified three incidents that bothered him. He reported his concerns to Kelly Walker, the professor overseeing his practicum, and told her that he had made a video recording. Professor Walker asked for a copy of the video. Mr. Balin edited the footage by cutting out three short clips, as mentioned, which together comprise about three and a half minutes of playing time. The Chin Segment is 23 seconds long. The Words Segment runs for one minute, 23 seconds. The Dance Segment is one minute, 46 seconds in duration. Mr. Balin sent these clips to Professor Walker. After seeing the video clips, Professor Walker reported her suspicion of possible child abuse to, among others, the principal of Shvank’s school and the Department of Children and Families’ abuse hotline. The District’s case depends almost entirely upon the persuasiveness of these three clips. For that reason, the undersigned notes that, as a fact- finder, he must interpret the videos, which do not convey an obvious, unambiguous meaning. Indeed, these videos are neither objective nor definitive. Heavily edited for length, thereby potentially depriving the viewer of important context, they afford only one visual perspective, which is sometimes obstructed, making it impossible to know what is being missed or possibly misperceived. Crucially, the most relevant actions of Shvank, i.e., the ones which the District contends are disciplinable, take place literally within fractions of a second, a mere blink of the eye. It is not an overstatement to say that a viewer can see what he or she wants to see in these video clips. With that in mind, the undersigned notes, further, that as a fact- finder, he is troubled by the provenance of these clips. There is a narrative at work here, which the undersigned believes might tend to bias some viewers against Shvank, making them more likely to “see” abuse in the videos. To begin, we have the apparently altruistic whistleblower, Mr. Balin, who is shocked by what he perceives as child abuse which no one else seems to notice, impliedly because the classroom “regulars” have grown accustomed or indifferent to Shvank’s aggressive manner. He is appalled, but instead of reporting his concerns to the school administration, which could have investigated the matter in the ordinary course if the allegations warranted such attention, Mr. Balin decides unilaterally that there is a reasonable basis for an investigation, which he will personally carry out. To gather evidence, Mr. Balin conducts covert electronic surveillance of Shvank, effectively deputizing himself as an undercover agent of the District. This was a questionable decision for several reasons, and one the District should be hesitant to condone. Some of the reasons are legal in nature, others practical. From a legal standpoint, the question as to whether the secret recording of Shvank constituted an illegal interception under section 943.03, Florida Statutes, is one that could be fairly debated. Because Shvank did not object pursuant to section 934.06 to the admission of the videos into evidence, however, the question need not be decided here. Even if the covert interception of her oral communications was legal, however, as it might have been, there is something unsavory about secretly videotaping a teacher on a fishing expedition for evidence of wrongdoing that has yet to occur, based on suspicions that have not been vetted for reasonableness, either by the teacher’s supervisors or by law enforcement. Another legal issue arising from these circumstances is whether Mr. Balin’s videos constitute education records subject to the privacy protections afforded under the Family Educational Rights and Privacy Act. See 20 U.S.C. § 1232g. There are, after all, identifiable student images in these video clips. The students shown in the clips, moreover, are enrolled in the District’s special education program, which means that the videos might also come under the confidentiality provisions of the Individuals with Disabilities Education Act. See 20 U.S.C. § 1417(c). These issues need not be decided here. The point is that the decision to covertly videotape Shvank and her students is one that Mr. Balin should not have made on his own authority, and it is one that the District might want to distance itself from, given that the lawfulness of such surveillance is not free from doubt. Practically speaking, this case might have a chilling effect on teachers’ willingness to welcome student teachers into their classrooms. Shvank had a spotless record until the student teacher arrived. But then, her life was upended by Mr. Balin’s brief appearances in her classroom. In addition to this disciplinary action, the Balin videos wound up in the news, generating bad publicity for Shvank, which surely damaged her professional reputation. She was forbidden from entering a classroom to teach for nearly one and a half years. None of this would have happened if Shvank had refused to let the student teacher observe her at work. Considering Shvank’s experience, it takes no imagination to foresee that, in the future, some teachers might think twice about hosting a student teacher. (In the absence of evidence to the contrary, of which there is none, the undersigned presumes that a teacher would not be required to host a teaching student if he or she preferred not to.) None of the foregoing factors impugn the credibility of the video clips per se, but they do shed light on Mr. Balin’s credibility. Mr. Balin is not, in the fact-finder’s view, as disinterested a witness as he appears to be at first blush. Rather, Mr. Balin was a motivated witness, as shown by the fact that he decided personally to gather evidence of anticipated wrongdoing on Shvank’s part. While there is no evidence that he had any preexisting animus towards Shvank, Mr. Balin secretly recorded her because he wanted to find proof that she was being abusive with her students, to corroborate his own perception of Shvank’s conduct. As stated above, if, like Mr. Balin, you want to see abusive behavior in these videos, then that is what you will likely see. Mr. Balin testified credibly as to his opinion about what the video clips show. Mr. Balin, however, sincerely and honestly believed before September 18, 2019, that Shvank was overly aggressive with her students, and, to repeat, he wanted his surveillance videos to prove him right. Mr. Balin, therefore, was primed to see abuse in the footage he shot. Mr. Balin’s evident sincerity and obvious conviction, moreover, may have primed other viewers to see what he sees in the videos. The undersigned, in watching the videos, has made a conscious effort neither to expect to see, nor to ignore, evidence of wrongdoing. The Chin Segment. At the beginning of this clip, Shvank is standing behind her desk. She looks up and sees M.S. doing something that attracts her attention, whereupon she walks briskly over to the student. Standing before M.S., Shvank exclaims, “Didn’t I say ‘no’?” As she speaks, she reaches out and places her finger under M.S.’s chin, lifts the finger, and wags it in a gesture signaling “no, no, no.” As this happens, M.S.’s head jerks backwards. The District contends that Shvank snapped M.S.’s head back by forcefully pushing his chin upwards. A casual viewer might agree with the District. The entire “head snapping” episode takes place within the eight-second mark of the video clip. It happens fast, and M.S.’s head does appear to jerk backwards. Unfortunately, the video does not afford a clear line of sight, and the angle of the shot is less than ideal. By watching the clip in slow motion, frame by frame, however, the undersigned has determined that Shvank did not likely snap M.S.’s head back. For one thing, her fingertip barely touches his chin, doing so only glancingly at best. For another, there is simply little or no visual evidence of exertion or use of force on Shvank’s part, sufficient to produce M.S.’s reaction. Neither her hand nor her arm moves with the kind of sudden, propulsive force that would be required to transfer enough energy to M.S.’s chin to propel his head backwards. In contrast, M.S.’s shoulders appear to shrug simultaneously, a flinching movement consistent with the theory that M.S. jerked his head back under his own power, perhaps because he was startled or surprised. It is found that, more likely than not, M.S. himself threw his head back when Shvank placed her finger under his chin. After this, the video shows Shvank repositioning M.S. in his chair so that he is sitting upright with his arms on the desk. While doing this, Shvank says, “Now, close your mouth, I’m going to watch you.” The District contends that Shvank “manhandle[d]” M.S. as she situated him at his desk. The undersigned sees no persuasive evidence of such rough treatment in the video. Rather, Shvank appears to be making sure that M.S. is properly seated. Shvank testified credibly that she had observed M.S. pushing his chair away from the desk, which caught her eye because he did this sort of thing ahead of engaging in self-injurious behavior, i.e., head banging. So, she rushed over to stop him. Because M.S. is nonverbal and low-functioning, Shvank put her finger under his chin as a signal for him to look up at her and pay attention. She repositioned him at the desk to prevent him from trying again to harm himself. Shvank’s testimony is consistent with the video clip and is credited as truthful. The Words Segment. This clip shows Shvank working one-on-one with M.S. to teach him “B” words such as “bus” and “bird.” She and the student are sitting in chairs next to each other at a round table. Shvank speaks a word, e.g., “bus,” and instructs M.S. to touch the flashcard having a picture of a bus. Shvank’s voice is loud, but the classroom is a noisy environment, and she is clearly trying to keep the student’s attention focused on the exercise. The District argues that Shvank was “yelling” at, and being “aggressive” with, M.S., but the undersigned finds that she was merely instructing M.S. in a raised voice appropriate to the setting and the purpose. At one point, Shvank says, “This is working. You don’t want to hear it?” M.S. appears to have leaned away from the flashcards and stopped participating in the exercise. Shvank puts her arm around M.S.’s shoulder and then pats his head, pulling him closer, so that he can get back to the lesson. The District contends that Shvank slapped M.S.’s head out of frustration, but the video clip does not support such a finding. When the clip is viewed frame by frame, Shvank’s gestures are seen, not as aggressive, but as affectionate. She was not frustrated but, rather, was trying to redirect M.S. and put him back on task. The Dance Segment. In this clip, Shvank is dancing with the students to a recording of the Mexican Hat Dance. She is standing behind, and dancing with, L.G. Most of this video is unremarkable. At about the one minute, 30 second mark, L.G. drops from view, having flopped to the floor. Shvank gets him up and they continue with the dance, until L.G. does something with his hands that the camera fails to capture. Possibly, L.G. reaches out for the student next to him. Whatever L.G. has done, Shvank reprimands him, saying, “No! No food.” Shvank testified that this meant she would withhold L.G.’s snack as a punishment. When she tells L.G. “no,” Shvank cups his cheeks with her open hands and points his face upwards to look at her. The District contends that Shvank “grab[bed] L.G. under the jawline and yank[ed]” his head up. The video does not support this characterization. To the contrary, the video shows that Shvank’s hand did not grab or otherwise take hold of L.G.’s face. Her hands are open, fingers straight ahead. Shvank’s touch was appropriate to the situation and not aggressive or punitive. The District claims that L.G. immediately covered his ears after Shvank touched him, implying that Shvank had hurt his ears. L.G. does indeed briefly cover his ears, but the video does not support a finding that he did so because Shvank injured him. There is little or no visual evidence that Shvank made any contact with L.G.’s ears, much less sufficient contact to cause harm. The undersigned credits Shvank’s testimony that L.G. covered his ears in reaction to being told that he would not be receiving a snack, a gesture meaning he did not want to hear that message. DETERMINATION OF ULTIMATE FACT The School Board has failed to prove its allegations against Shvank by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order exonerating Halyna Shvank of all charges brought against her in this proceeding and awarding her back salary and benefits as required under section 1012.33(6)(a). DONE AND ENTERED this 11th day of May, 2021, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2021. COPIES FURNISHED: Andrew Carrabis, Esquire Broward County School Board 600 Southeast Third Avenue, Eleventh Floor Fort Lauderdale, Florida 33301-3125 Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605 Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, Tenth Floor Fort Lauderdale, Florida 33301-3125 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue for determination at hearing was whether just cause exists to sustain Respondent’s dismissal from employment with the Miami-Dade County School Board (“School Board” or “Petitioner”).
Findings Of Fact At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida (“School District”), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.23, Florida Statutes. At all times material hereto, Respondent was employed as an elementary school teacher at Van E. Blanton Elementary School (“Blanton”) by the School Board and held a professional services contract. She began working for the School District as a substitute teacher in 1994 and has been employed as a full-time teacher for 14 years. On April 20, 2016, Respondent was issued a Professional Responsibilities Memorandum regarding student discipline. The purpose of the memo was to remind Respondent of how to properly treat children who are misbehaving after she was observed sending two students to stand in the corner after blurting out answers. On or about April 25, 2016, Respondent hit a student with her hand on the student’s arm, leaving the student’s arm visibly red and welted. A summary of a conference-for-the-record from May 18, 2016, was admitted into evidence. Pedro Cedeno, the principal at Blanton for the past three years, stated that he considered the current incidents similar in nature to this prior incident from 2016. On May 19, 2016, Respondent was issued a written reprimand relating to the April 25, 2016, incident. On April 18, 2017, the Education Practices Commission (“EPC”) filed an Administrative Complaint against Respondent based on the April 25, 2016, incident under EPC Case No. 17-0457-RT. On December 14, 2017, a Final Order was entered in the EPC case, adopting the parties’ Settlement Agreement, which issued Respondent a letter of reprimand and placed her on one year’s probation. Throughout Respondent’s tenure with the School Board prior to the instant matter, the only discipline she received was the reprimand described above. Three incidents, occurring on March 8, 13, and May 23, 2019, respectively, gave rise to these proceedings. Respondent worked at Blanton as a first-grade teacher. On March 8, 2019, Mr. Cedeno was standing near the main office when he saw Respondent and her class coming in from the hallway. Mr. Cedeno saw Respondent pull a student, C.J., who was kneeling on the ground at the back of the line. Respondent said something to the student, but Mr. Cedeno could not hear it. Mr. Cedeno saw Respondent pull the student by the arm. He testified that Respondent was “pulling her to move her whole body over to the back of the class … it was more of a pull, which is what caught my attention.” Mr. Cedeno approached Respondent and asked, “What’s going on?” He also told Respondent that they cannot pull students like that. He advised Respondent it would be better to leave the child there and call for attention or assistance. Apparently, the video cameras were not working on March 8 because no video footage was available for Mr. Cedeno, Respondent, or the undersigned to review after the incident or at hearing. On March 13, 2019, Mr. Cedeno saw via video that Respondent had her students lined up as they were coming or going into the classroom. Mr. Cedeno observed Respondent grab and pull a student into the class. That caught his attention. It was not an appropriate way for Respondent to have handled the situation. Both the March 8 and 13, 2019, incidents involved C.J. The March 13, 2019, video showed that C.J. was moving slowly in the hallway while the rest of Respondent’s students were already in the classroom. Respondent waved at C.J. and said something to the effect of “let’s go.” When C.J. did not respond, Respondent went to C.J., took her by the arm, and walked her into the classroom. While the video does not show excessive force being used to pull C.J. up from the floor where she was tying her shoe, it did show more than Respondent reaching out her hand, then waiting for C.J. to take her hand to be led. There was a small amount of force involved in getting C.J. up and moving. Respondent testified she was not mad at C.J., but she was firm in telling C.J. she needed to get going and into the classroom. From the video, C.J. did not seem embarrassed and was not crying when she was physically urged up and into the classroom. The video does not evidence violence, anger, or aggression. It does evidence a teacher pulling a young student up from the floor and walking her briskly into the classroom. At hearing, however, C.J. testified credibly that she was both embarrassed and sad by the incident. Following the March 13, 2019, incident, Mr. Cedeno filed a personnel investigative form with the School District’s Office of Professional Standards. No action was taken to remove Respondent from her position or to impose any discipline. J.E., a student, testified regarding the May 23, 2019, incident. He said Respondent was his teacher during the prior school year. He watched the video of the incident and identified both himself and Respondent in the video. J.E. had asked Respondent if he could go to the bathroom. Respondent did not allow J.E. to use the bathroom at that time. Then, J.E. tried to get into the classroom to use the bathroom and Respondent pushed J.E. The video shows Respondent push J.E. J.E. fell and then got up. His leg was hurting and it made him feel mad. J.E., a large child for his age, appeared somewhat distracted while testifying, and his mother had to prompt him once or twice to pay attention to the questions being asked and to give audible answers. However, his recollection of the May 23, 2019, incident was clear. He admitted that he was acting up, which was confirmed by Respondent, but was “mad” at being pushed into the classroom where he landed on one of his classmates. He was only mildly injured and did not require first aid or medical care as a result of his fall. Respondent noted that J.E. was a disruptive student who is disobedient, bigger than the rest of the students in the class, and is known for pushing and bullying the other students. Respondent testified that on May 23, 2019, rather than entering the classroom when he was supposed to, J.E. doubled back, grabbed another student, and spun the student around, which caused that student to cry. Respondent was obviously frustrated by J.E.’s behavior and gave him a push into the room. J.E. bumped into his best friend, which sent the two of them sprawling onto the ground. According to Respondent, J.E. fell to the ground laughing and clowning around, after which they all sat down and started class. J.E. did not appear embarrassed or upset by the incident, Respondent testified. The May 23, 2019, incident was captured on video and was personally witnessed by a teacher, Alissa Bennett, who was coming down the hall with her class at the time. Ms. Bennett is a fifth-grade teacher at Blanton and was employed as such during the incidents giving rise to these proceedings. Ms. Bennett knows of Respondent but does not know Respondent personally. Ms. Bennett testified regarding the May 23, 2019, incident and reviewed the video of the incident during her testimony. On May 23, 2019, Ms. Bennett was walking her class to lunch. It was about 11:30 or 11:35 a.m. She came out of the stairwell and saw a big commotion in front of her. There was a lot of yelling and kids in the hallway. When Ms. Bennett walked closer, she saw Respondent push a student into the classroom. Ms. Bennett kept walking and heard one of her students exclaim, “[w]ow, that teacher just pushed that student.” Ms. Bennett said, “I was kinda like, oh, my God. Did that just happen? Did I just see that?” She recognized this as a serious incident. She took her students to lunch. Later that night, she told her boyfriend about the events she witnessed at school. She was a new teacher and was not sure what to do about it. Her boyfriend encouraged her to report the incident. The following day, on May 24, 2019, Ms. Bennett reported the incident via text to the counselor. She also spoke to Mr. Cedeno about what she saw. Mr. Cedeno acknowledged speaking with Ms. Bennett about the incident. He explained that Respondent could have avoided the situation by using a call button, an emergency button that immediately notifies the office, or she could have asked another person in the hallway for assistance. For example, there are always security and staff in the hallway, and they are present in the video evidence submitted. The security and other staff members have radio access. Mr. Cedeno testified that there was no excuse, based upon what he saw in the video, for Respondent to push J.E. The School Board and the United Teachers of Dade, the classroom teachers union, have agreed to be bound by the principle of progressive discipline, and that discipline imposed shall be consistent with that principle. Accordingly, they have agreed that the degree of discipline shall be reasonably related to the seriousness of the offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Respondent for ten days without pay and awarding her back pay from the date her employment was terminated, except for the ten days of suspension. DONE AND ENTERED this 4th day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 4th day of December, 2020. COPIES FURNISHED: Cristina Rivera, Esquire Miami-Dade County School Board Office of the School Board Attorney 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Michele Lara Jones, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Room 430 Miami, Florida 33132 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Respondent's alleged conduct establishes just cause for her dismissal as a teacher in the Polk County School District.
Findings Of Fact Respondent, Pamela Martin ("Respondent"), is a teacher certified by the State of Florida, holding a Professional Service Contract with the Polk County School Board ("School Board"). Respondent has been employed as a teacher by the School Board since August of 1990. She has taught at Alta Vista Elementary School (Alta Vista) since 1996. Mr. Luis Alvarez became Principal at Alta Vista at the beginning of the 2000-2001 school year. During Mr. Alvarez's first year as Principal at Alta Vista, Respondent, a kindergarten teacher, was frequently late to work. Mr. Alvarez estimated that Respondent failed to be at work on time at least two days per week. The Principal spoke to Respondent on several occasions regarding her failure to be at work on time. However, because it was his first year at the school, Mr. Alvarez chose not to make too many changes. Moreover, he realized that Respondent had a young infant at home. Principal Alvarez counseled with Respondent three or four times during that first year regarding her tardiness, and he received a number of complaints from parents who requested that their children be removed from her class. After Respondent continued to be late for work, the Principal gave her a formal verbal reprimand which was confirmed by a letter dated May 14, 2001. The 2001-2002 school year began for teachers on August 2, 2001. Respondent was late for work almost every school day and her failure to be at work on time continued from the very first of the following school year. On August 29, 2001, and again on September 20, 2001, Principal Alvarez wrote a letter to Respondent, notifying her that on each occasion that she was late she would be charged one-half day of her annual sick leave as a result of her failure to be on time. In late September 2001, Principal Alvarez called a meeting with Respondent to discuss her failure to be at work at the beginning of the school day. At that time, Respondent was responsible for approximately 25 kindergarten students who were four to five years old. To avoid those students being unattended in the morning, other kindergarten teachers and para- professionals were assigned to cover Respondent's class until she arrived. On September 28, 2001, Principal Alvarez gave Respondent a formal written reprimand regarding her failure to arrive at work on time. In the letter, he noted that this caused concern among parents and was disruptive for the other teachers. The letter specifically indicated that it was a formal reprimand and constituted Step 2 of progressive discipline under the applicable provisions of the Collective Bargaining Agreement. Principal Alvarez again told Respondent that a teacher's work hours were 7:45 a.m. until 3:30 p.m. On October 12, 2001, Respondent received a second letter of reprimand from Assistant Principal Patti McGill. This reprimand pertained to Respondent's failure to maintain her plan book in her classroom, and the difficulties that were created when she was absent from work and the substitute teacher had no lesson plans for the class. The letter of reprimand specified three different occasions when this occurred and again advised Respondent that the progressive discipline procedures had been implemented. Despite the informal and formal reprimands and numerous counseling sessions with Principal Alvarez, Respondent continued to be late for work. As a result of this conduct, a conference was held between Respondent, the Polk Education Association representative, Assistant Principal McGill and Principal Alvarez. At this meeting Principal Alvarez and Assistant Principal McGill discussed with Respondent the well-being and education of the students, the concerns of the parents, and the difficulty created for the other teachers. In an effort to assist Respondent, Principal Alvarez directed her to participate in the School Board's Employee Assistance Program, and to provide documentation that she had entered and completed the program. Respondent was provided a Notice of Certification authorizing her to participate in the Employee Assistance Program. Principal Alvarez was notified by the School Board's Human Resource Department that Respondent failed to attend seven different appointments that were set up for her to participate in the Employee Assistance Program. Despite the aforementioned efforts and action by Alta Vista's administration, Respondent continued to arrive at work late. Principal Alvarez consulted with the Superintendent of Schools (Superintendent) and on November 20, 2001, he wrote to the Superintendent concerning Respondent. Specially, in the letter, Principal Alvarez explained that Respondent had been continuously late during the school year, the difficulties that situation created, and the previously issued formal written reprimands. Principal Alvarez also indicated that he had met with the Polk Education Association representative and that Respondent had been referred to the Employee Assistance Program, but that she failed to appear for several appointments. Based upon these facts and in compliance with the progressive discipline plan, Principal Alvarez recommended that Respondent be suspended three days without pay. The Superintendent adopted Principal Alvarez' recommendation, and Respondent was suspended without pay on November 29 and 30, and December 3, 2001. After Respondent returned from her suspension, her pattern of coming to work late continued. Principal Alvarez then consulted with Mr. Robert Hartley, the School Board's Director of Employee Relations, regarding what actions should be taken. Even though the next step in the progressive discipline plan following suspension without pay was termination, it was decided that Principal Alvarez would recommend a second suspension without pay. On February 14, 2002, Principal Alvarez wrote to the Superintendent relating Respondent's history of tardiness and the on-going efforts that had been taken in response to her conduct. It was recommended that she be given another three-day suspension without pay. The Superintendent adopted that recommendation, and by letter dated February 21, 2002, Respondent was suspended without pay on February 25, 26, and 27, 2002. In his letter, the Superintendent reminded Respondent that her failure to arrive at work at the scheduled time placed her students in an unsafe environment and created an undue hardship on other staff members. Also, Respondent was specifically told that the next step in progressive discipline was termination. Following her suspension, Respondent's pattern of not being at work on time continued. Before any further disciplinary action could be taken, Respondent took a leave of absence under the Family Medical Leave Act and did not work the balance of the 2001-2002 school year. Respondent returned for the 2002-2003 school year; the first day for teachers was July 31, 2002. Because of his prior experience with Respondent, Principal Alvarez asked Assistant Principal McGill to record the times Respondent arrived for work. That record was maintained on Respondent's ”absentee calendar" which is normally used for the purpose of recording employee's use of personal and sick leave days. However, on this document Assistant Principal McGill and the school secretary noted the times when Ms. Martin arrived. Those records establish that Ms. Martin was late most days during the first three weeks of school although she always arrived prior to the students' arrival time. On August 19, 2002, Respondent called in sick less than 20 minutes before she was to be at work. Assistant Principal McGill went to cover Respondent's class and there was no lesson plan book, substitute plans, or teacher reading manual in the classroom. After having followed the progressive discipline plan, including additional opportunities and steps which had been extended to Respondent, Principal Alvarez concluded that it was appropriate to take the final step and recommend Respondent's termination. In a letter to the Superintendent dated August 19, 2002, Principal Alvarez recommended that Respondent be terminated. The letter also stated the following: "We have continued to ask Respondent to arrive on time and to be prepared in case she needs to be out. She has not complied with our request." Principal Alvarez' recommendation was adopted by the Superintendent. By letter dated August 21, 2002, the Superintendent informed Respondent that she was being suspended with pay until August 26, 2002, and that he would be recommending to the School Board that she be terminated on September 10, 2002. Prior to challenging her termination, there is no indication in the record that Respondent ever filed a grievance or otherwise disputed the facts upon which the various disciplinary actions taken against her were based. Respondent did not challenge any of the suspensions or reprimands she received during the 2001-2002 school year because she knew that she was having difficulty getting to school on time and the discipline was justified. Although Respondent had been employed at Alta Vista since the 1996-1997 school year, her problem of being late did not occur until the 2000-2001 school year. Moreover, throughout Respondent's employment at Alta Vista, she has been and is a good teacher. During the first semester of the 2000-2001 school year, Respondent's child suffered a series of illnesses. He was hospitalized twice, and had a constant battle with ear infections that resulted in tubes being placed in his ears in April 2001. These problems required constant trips to the doctor's office. During this time, Respondent's husband was working at UPS on a shift that ran from 4:00 a.m. to 9:00 a.m., when he would leave for a second job. As a result of Respondent's difficulties, she was excessively absent and late for work from the beginning of the 2001-2002 school year until March 2002 when she took leave under the Family Medical Leave Act to stay home with her child. Respondent candidly admits her attendance and tardiness were excessive from August 2001 through March 2002. In the summer of 2002, Respondent and her husband decided he would change his work schedule to take some of the pressure off Respondent in the mornings. By the summer of 2002, Respondent's baby had gotten older and, with the tubes in his ears, his health had improved. By August 2002, Respondent felt the burden of her home life situation had improved and Respondent was looking forward to returning to work. When Respondent returned to work, she kept a card with her arrival times to help ensure she would get to work on time. Although on some days Respondent was a few minutes late, she always arrived prior to the students' arrival time. During the first two weeks of August 2002, no school administrator said anything to Respondent about her arrival times. On August 16, 2002, Respondent was a few minutes late because her child had diarrhea and had to be attended to. She attempted to speak with the Principal on the 16th but he would not talk to her. As of the end of the school day on August 16, 2002, no school administrator had talked with Respondent about her arrival times or whether any discipline was being considered. Assistant Principal McGill was primarily responsible for documenting Respondent's arrival times in August 2002. As such, Assistant Principal McGill was directly involved with Principal Alvarez in making decisions regarding Respondent's employment status and recommendations to the Superintendent regarding Respondent's continued employment. As of August 16, 2002, Principal Alvarez and Assistant Principal McGill were aware of Respondent's difficulties and her arrival times, but had not spoken to her about her tardiness. Moreover, neither Principal Alvarez nor Assistant Principal McGill had advised Respondent of Principal Alvarez' intention to recommend any disciplinary action to the Superintendent regarding Respondent for anything that had occurred from the beginning of the 2002-2003 school year up to and including August 16, 2002. On August 17, 2002, Respondent injured her foot and went to the emergency room for x-rays. As a result of the injury, Respondent's leg became infected and swollen, causing her to use crutches. On Monday, August 19, 2002, Respondent called the school to tell them what had happened and that she would not be able to come to work. Over the weekend of August 17th and 18th, 2002, Respondent had taken her lesson plans home to work on them. On the morning of August 19th, Assistant Principal McGill called Respondent at her home to inquire about the lesson plans. That night Respondent took the completed lesson plans to her classroom and put them on her desk.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Polk County School Board enter a final order adopting the Superintendent's recommendation and terminating the employment of the Respondent as an employee of said Board. DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 31st day of March, 2003. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Box 30 Bartow, Florida 33830-4620 R. J. Thornhill, Superintendent Polk County Schools Post Office Box 391 Bartow, Florida 33831-0391 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street Turlington Building, Room 1244 Tallahassee, Florida 32399-0400
Findings Of Fact The School Board of Dade County, Florida is a duly constituted school board established by Article IX of the Constitution of the State of Florida, and is charged with the duty to operate, control and supervise all free public schools within the Dade County school district pursuant to Article IX and Section 230.03 Florida Statutes. (Prehearing stipulation filed 6/12/86) At all times material, the Respondent, Bobby Anderson, was employed by the School Board of Dade County as a non-instructional employee, a school resource specialist. (Prehearing stipulation filed 6/12/86, and corrected at transcript, "tr.", page 7) Mr. Anderson was continually employed by the school board from 1976 when he was hired as a school monitor at North Miami Junior High. At the time of his suspension in 1986 he was working as a school resource specialist at Carol City High School. (tr-105,106) School resource specialists are non-law enforcement employees of the School Hoard's special investigative unit. They are assigned to a school on a full-time basis and supervise school monitors, patrol the halls, report violations of rules and law, and generally maintain a safe learning environment for students and a safe working environment for the staff. (tr-53, 107) Sometime in November 1985, the Carol City High School Principal and the School Board special investigative unit commenced an investigation of theft of school property and drug usage at the school. (tr-16, 57,75) Daniel McPhaul, the school's audio-visual technician, admitted to the use of cocaine and marijuana at school and the theft of approximately $12,000 to $13,000 of computers, televisions and video equipment from Carol City High School. (tr- 16,18) During the investigation Daniel McPhaul mentioned the names of several teachers and non- instructional staff at the school with whom he claimed to have used drugs. Bobby Anderson was one of the individuals he mentioned. (tr-19) Of the approximately nine individuals investigated, all were either recommended for disciplinary action or voluntarily resigned. (tr-77) Daniel McPhaul claims that he used cocaine on two occasions at Carol City High School with Bobby Anderson: the first occasion was in early 1985, and the second was approximately two months later. On both occasions Mr. Anderson allegedly brought the cocaine unsolicited to the audio-visual room near the library where Daniel McPhaul was working. On both occasions the alleged activity took place behind the locked door of that room, with no other persons present. (tr-20-28,47) Bobby Anderson and Daniel McPhaul were friends only in the sense that they saw each other frequently at school and talked about sports. They never socialized together outside the work environment. (tr-36,37,119,120) Daniel McPhaul admits that he is a frequent cocaine and marijuana user. He was in a drug rehabilitation program prior to employment at Carol City High School and has been back in a program since the investigation exposed his problems. He has been charged with grand theft but no criminal charges are pending as to the drugs. (tr-25, 29,31,33,50) In the approximate ten years of Bobby Anderson's employment with the Dade County School Board, Daniel McPhaul's allegation is the first complaint of any kind the School Board has received regarding this employee. (tr-65) Mr. Anderson unequivocally denies the allegations. He has never been arrested and has not been contacted by the State's attorney's office with regard to any criminal charges. (tr-118,120-121) The School Board, whose entire case rested on Daniel McPhaul's testimony at hearing, never elucidated why Bobby Anderson might risk his livelihood and reputation by sharing cocaine on school premises. No monetary motive was suggested, and the two men were not particularly buddies. Mr. McPhaul thinks, but is not sure, he mentioned to Bobby Anderson that he was a cocaine user. (tr-43) On the other hand, Daniel McPhaul admitted to his motive for getting Bobby Anderson. He erroneously believed that Bobby Anderson reported him to the Assistant Principal for smoking marijuana with a student and that this was the cause of the investigation and Mr. McPhaul's ensuing problems. (tr-46-48) This admission and the failure to explain Mr. Anderson's alleged action fatally eroded his credibility.
The Issue Should discipline be imposed against Respondent's Florida Educator's Certificate in accordance with the allegations set forth in the Amended Administrative Complaint, Case No. 989- 3045-C before the State of Florida, Education Practices Commission?
Findings Of Fact Respondent holds a Florida Teaching Certificate. At times relevant to the inquiry Respondent worked for the Duval County School District as a Media Specialist. As of the hearing date Mr. Bobby Dean Powell had served as the principal for Jefferson Davis Middle School, Duval County School District for approximately eight years. Mr. Powell came to Jefferson Davis Middle School in 1993. Respondent was a Media Specialist when Mr. Powell took the principal's position. Respondent was assigned to Jefferson Davis Middle School in 1988. Principal Powell had supervisory responsibilities for Respondent. As her supervisor Mr. Powell observed Respondent in the performance of her duties as Media Specialist at the middle school. Over the years these observations were made at least twice a year. When Mr. Powell began to observe Respondent her performance was satisfactory. Sometime during the school year 1994-95 Respondent's performance began to deteriorate. Mr. Powell observed employee problems related to Respondent. Media equipment was not sorted out. Old equipment was not taken out of circulation. Books were not being sorted properly. Mr. Powell discussed the problems with Respondent who expressed the opinion that she was doing a better than average job. She offered excuses for her failings as opposed to recognizing a problem and responding to the problem. For example, the principal felt that the old equipment in the media center was not needed. His opinion was met with the response, "Well, we might need this." In addition, Respondent was having problems with other teachers to the extent that teachers did not want to go to the library. Seven or eight of the faculty wrote notes to Mr. Powell about their concerns with Respondent. Problems existed with students. Mr. Powell talked to Respondent on two or three occasions about his concern that Respondent was being "a little too harsh on students." Respondent "would kind of go off if they talked a little bit loud in the library." Respondent was observed to be a little loud, abrasive, and inappropriate. On March 9, 1998, Mr. Powell performed an evaluation of the professional growth of Respondent as a teacher in the Duval County School District. The evaluation pertained to Respondent's position as librarian for Jefferson Davis Middle School. The evaluation was designed to rate Respondent in various competencies. The findings were as follows: Key to Ratings: S=Satisfactory U=Unsatisfactory COMPETENCY 1: Demonstrates ability to plan and deliver instruction. S U COMMENTS: 'Mrs. Wendenland does not adequately address the needs of the students.' COMPETENCY 2: Demonstrates knowledge of subject matter. S U COMMENTS: 'Mrs. Wendenland has difficulty in planning and organizing the needs of the library.' COMPETENCY 3: Demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline. S U COMPETENCY 4: Shows sensitivity to student needs by maintaining positive school environment. S U COMMENTS: 'Mrs. Wendenland has difficulty in maintaining rapport with colleagues.' COMPETENCY 5: Demonstrates abilities to evaluate instructional needs of students. S U COMPETENCY 6: Demonstrates willingness to assume noninstructional responsibilities. S U COMPETENCY 7: Demonstrates a commitment to professional growth. S U COMMENTS: 'Mrs. Wendenland attended workshops and college classes.' COMPETENCY 8: Shows evidence of professional characteristics. S U COMMENTS: 'Mrs. Wendenland has difficulty in making decisions necessary for her position.' OVERALL EVALUATION S U PRINCIPAL'S COMMENTS: 'Mrs. Wendenland does not demonstrate the ability to provide the leadership necessary needed to operate a library.' In summary Respondent was rated unsatisfactory in Competencies 1, 2, 4, and 8, and as to the overall evaluation. The evaluation which Mr. Powell performed was in accordance with standards of the Duval County School District. Respondent was sent to Paxon High School, Duval County School District, following the unsatisfactory evaluation she received while assigned to Jefferson Davis Middle School. Her position with Paxon High School for the school year 1998-99 was as Media Specialist. She was supervised by Mr. James Arthur Williams, Sr., Principal at Paxon. As required by the Duval County School District Mr. Williams developed a success plan for Respondent to assist her in improving her performance. The date of the memorandum identifying the success plan was September 16, 1998. It set forth Respondent's assignments and responsibilities leading up to the concluding evaluation for the school year. The terms of the success plan were as follows: SUCCESS PLAN: 1998-99 ASSIGNMENTS AND RESPONSIBILITIES FOR 1999 EVALUATION Initial Meeting: 21 August 1998 Based on our 21 August 1998 meeting, I am outlining the following specific assignments in the Media Center for which you are responsible and accountable: Develop, submit for approval, and implement a formal collection development policy. Using this policy as a guide, submit a complete listing of recommend [sic] titles to be weeded and a detailed prioritized list of titles for purchase in each classification area. Strategies to Meet Objectives: Read Information Power, chapter 6. Research other professional sources for additional information related to collection development policies. Submit policy for approval by 15 October 1998. Identify the specific criteria used to determine the status of each item recommended for weeding. Identify review sources along with all ordering information for each title recommended for purchase. Support Members Assist: Lana Monk, Sandra McMichael, and James Williams Proposed Completion Date: 5 January 1999 Competency Level of Objectives Met/Not Met: Date of Completion: Plan, submit for approval, implement, and evaluate the Read to Succeed program for 1998-99 (including quote/saying for marquee by 30 September) Strategies to Meet Objectives: Seek input from colleagues regarding possible successful activities. Review professional literature as a source for possible activities. Submit proposal by 25 September 1998. Include implementation steps, participants, responsibilities, and evaluation criteria for each activity. Implement and evaluate each activity as planned. Support Members Assist: Lana Monk, Sandra McMichael, and James Williams Proposed Completion Date: 1 March 1999 Competency Level of Objectives Met/Not Met: Date of Completion: Develop, submit for approval, implement and evaluate three Learning (Media) Center goals (two short term and one long term) for 1998-99. Strategies to Meet Objectives: Conduct an Informal needs assessment to determine Learning (Media) Center strengths and weaknesses. Submit goals on district form by 1 October 1998. Implement and evaluate each goal as planned. Support Members Assist: Lana Monk, Sandra McMichael, and James Williams Proposed Completion Date: 15 March 1999 Competency Level of Objectives Met/Not Met: Date of Completion: Complete annual Inventory of entire collection following established district procedures. Strategies to Meet Objectives: Review inventory guidelines in Duval County Media Specialist Handbook. Review inventory directions in Circulation Plus manuals. Conduct complete inventory as directed. Support Members Assist: Lana Monk, Sandra McMichael, and James Williams Proposed Completion Date: 15 March 1999 Competency Level of Objectives Met/Not Met: Date of Completion: Manage all interlibrary loan transactions, maintain all related records, and submit annual resource sharing report to SUNLINK. Strategies to Meet Objectives: Prepare and submit all patron requests for loan from other libraries. Prepare and mail all materials requested by patrons at other libraries. Notify borrowing libraries of all overdues. Retrieve and return all borrowed materials on time. Log all interlibrary loan transactions. Support Members Assist: Lana Monk, Sandra McMichael, and James Williams Proposed Completion Date: 15 May 1999 Competency Level of Objectives Met/Not Met: Date of Completion: Maintain periodical collection: check in and shelve all new periodicals on the day of arrival secure designated periodicals prior to shelving shelve latest issue only of all periodicals on main reading room shelves properly file back issues of periodicals in workroom maintain accurate accounting of all periodical subscriptions, both current and future--report missed issues, early arrival of new titles designated to begin delivery 1 January, and new titles not received as of 1 January publish and maintain current list of all periodical subscriptions Strategies to Meet Objectives: Secure copies of 1998 and 1999 periodical orders. Follow all procedures as outlined above. Support Members Assist: Lana Monk, Sandra McMichael, and James Williams Proposed Completion Date: 1 February 1999 Competency Level of Objectives Met/Not Met: Date of Completion: Maintain video collection: evaluate weed based on consultation with Ms. Monk establish purchase priorities monitor expiration dates on taped programs distribute programming and planning information to teachers monthly maintain taping schedule tape, properly label and shelve requested programs inform teachers of completion of requested tapings publish and maintain current annotated listing of videos by department Strategies to Meet Objectives: Follow all procedures as outlined above. Support Members Assist: Lana Monk, Sandra McMichael, and James Williams Proposed Completion Date: 15 March 1999 Competency Level of Objectives Met/Not Met: Date of Completion: Plan at least three research units with teachers and instruct and assist students and teachers in locating and effectively using appropriate media resources, including databases and communication technologies. Strategies To Meet Objectives: Use manuals, tutorials, and hands-on to become comfortably familiar with all resources in the collection. Read The Skillful Teacher, chapter 8. Complete a lesson plan for the instructional portions of each research unit. Submit lesson plans to Dr. Williams at least three days in advance of all instruction dates. Support Members Assist: Lana Monk, Sandra McMichael, and James Williams Proposed Completion Date: 15 March 1999 Competency Level of Objectives Me/Not Met: Date of Completion: Use appropriate communication skills that evidence sensitivity to students' needs and maintain rapport with teachers. Strategies To Meet Objectives: Read The Skillful Teacher, chapter 5 Support Members Assist: Lana Monk, Sandra McMichael, and James Williams Proposed Completion Date: Competency Level of Objectives Met/Not Met: Date of Completion: Use sound judgement in making professional decisions. In addition, I expect you to adhere to all district guidelines pertaining to Media Specialists' responsibility for the daily operation and maintenance of the Media Center. All of the listed tasks are within the knowledge base of your certification. If there are tasks for which you feel less prepared, please let me know. I will either provide mentoring for you or refer you to course work at a local post- secondary institute. You, Ms. Monk, and I will meet monthly to answer your questions and assess your progress. Mr. Williams went over the details of the plan with Respondent in the course of a meeting conducted on September 16, 1998. Subsequent to the meeting, Respondent signed the success plan. The success plan became the guidance for Respondent's performance of her duties during the school year. In addition to the preparation of the success plan and the initial meeting concerning that plan, Mr. Williams had occasion to observe Respondent in performing her duties at Paxon. Measured against the expectations of the success plan, Mr. Williams observed Respondent's performance to be unsatisfactory. In particular, Respondent did not properly institute a collection policy in the media center. Respondent failed to meet the standards of someone who was certified as a Media Specialist. Respondent did not know how to perform a collection policy. Respondent did not carry out the assignment of looking at the present collection of items in the media center, analyzing those items, weeding out old books, and ordering new books. On March 12, 1999, Mr. Williams performed the evaluation of professional growth of Librarian/Media Specialist in relation to Respondent. This was a function of the Duval County School District. Through this evaluation Mr. Williams determined that Respondent's overall competency was unsatisfactory premised upon unsatisfactory ratings in relation to a number of discrete competencies measured by the evaluation. Those findings were as follows: Key to Ratings: S=Satisfactory U=Unsatisfactory Competency 1: Manages Media Program S U Comments: 'Knowledge level unsatisfactory.' Competency 2: Develops and manages collection S U Comments: 'Does not manage collection without hands on guidance.' Competency 3: Manages instruction cooperatively with faculty S U Comments: 'Only on one occasion asked teacher if she could help incoming class.' Competency 4: Shows sensitivity to student needs by maintaining a positive school environment S U Comments: 'Borderline - infrequently asks students how she can help.' Competency 5: Demonstrates ability to impact student instruction S U Comments: 'See comments above' Competency 6: Demonstrates ability to communicate with Parents S U Competency 7: Demonstrates willingness to assume Non-instructional responsibilities S U Competency 8: Demonstrates a commitment to professional growth S U Comments: 'Has worked very hard to improve.' Competency 9: Shows evidence of professional characteristics S U Overall Evaluation: S U Pertaining to Competency 2, Mr. Williams described how Respondent was unable to manage the collection of books without someone helping her to do so. In relation to Competency 3, Mr. Williams explained that a Media Specialist works with a teacher coming into the library to set aside a set of books the teacher can use with his or her class. In the one instance where Respondent helped an incoming class it was at the prompting of the teacher rather than Respondent laying out the materials. While in the media center, Mr. Williams observed Respondent seated at her desk seemingly oblivious to anything going on around her at a time when students were looking for help in using the media center materials. Several times Mr. Williams observed Respondent asleep at her desk in the media center, to which Respondent replied "I wasn't asleep I was just resting my eyes or just had my head down for a few minutes." Mr. Williams noted that the relationship between Respondent and the students who came to the media center was non-existent. Mr. Williams observed that at times Respondent was almost lethargic, and at other times if he asked her a question or said something to her Respondent would be almost belligerent. As a result of the second unsatisfactory evaluation following reassignment to a new school Respondent retired from employment with the Duval County School District.
Recommendation Based upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a final order finding Respondent in violation of Section 231.28(1)(b),(f) and (i), Florida Statutes, and Rule 6B- 1.006(3)(a), Florida Administrative Code, and revoking Respondent's Teaching Certificate for a period of three years subject to reapplication under existing requirements for certification by the State Board at the time the revocation expires. DONE AND ENTERED this 14th day of June, 2001, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 14th day of June, 2001.
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division of Real Estate (Division) was the state agency in Florida responsible for licensing real estate brokers and salespersons and for the regulation of the real estate profession in this state. Respondent was licensed as a real estate broker, but his license had been suspended effective October 13, 1996 On May 17, 1994, after Respondent had requested but failed to appear at an informal hearing on his alleged misconduct, the Florida Real Estate Commission (Commission) issued a Final Order in which it ordered Respondent be reprimanded and pay a $500.00 administrative fine within thirty days of the filing of the order on pain of suspension of his broker's license until the fine was paid. In addition, the Commission placed Respondent's license on probation for one year with the requirement that, inter alia, he enroll in and satisfactorily complete a sixty hour post-licensure education course for brokers within one year of the filing of the order. Though in collateral communications to Petitioner's counsel, to an investigator, Ms. May, and to the prior Judge assigned in this matter, all of which are a part of the file in this case, Respondent claimed not to have received the Final Order in issue, Mr. James, another investigator for the Department of Business and Professional Regulation (Department), in his visit to Respondent's office on June 28, 1995, found a copy of the order in Respondent's office files. The prior misconduct by Respondent bears on the instant case only in so far as it supports the action taken with respect to it by the Commission. As it appears, Respondent failed to file his monthly escrow account reconciliation on the required form though he had received and had a copy of the required form in his file. He claims, in his correspondence, and there is no evidence to refute his claim, that because of his poor memory at the advanced age of eighty years, he forgot the new form had become required and continued to use the previously approved form he had used over his prior twenty-eight years in the real estate business. It appears that when that discrepancy was found by the former investigator, Ms. Mays, Respondent was issued a citation calling for a fine of $100.00 and 30 hours of continuing education, but considering that proposed penalty too severe for a "minor" offense resulting from a lapse of memory, especially when no loss was occasioned to any client, he rejected the citation and demanded a hearing. He then did not attend the informal hearing scheduled. Thereafter, the commission entered the Final Order alleged in the instant Administrative Complaint, the terms of which were described above. The required $500.00 administrative fine has not been paid nor has the required post-licensing education been completed. Respondent still contends the fine is too severe and because of his age and inability to drive at night, he is unable to take the required course. On June 28, 1995, Mr. James, an investigator for the Department, acting on a report that Respondent was continuing to operate his brokerage even though his license had been suspended, went to the Respondent's office located at 56 Harvard Street in Englewood, Florida. At that address Mr. James found Respondent operating two businesses from the same office. One was Englewood Realty and the other was a dry ice company. During the interview held on June 28, 1995, Respondent admitted he had received the Final Order but considered it unfair. Respondent also admitted he was actively engaged in the practice of real estate and wanted to keep the brokerage open until he could sell his own property, and "just in case something else came up." While Mr. James was at the Respondent's office, Respondent was visited by a female representative of an advertising publication who spoke with him about his advertisement for the sale of some real estate. Also during the visit, as James recalls, Respondent received at least one telephone call which seemed to relate to the sale of real property. In both cases, however, it appeared to Mr. James that Respondent was referring to his own property. James did not discover any reference to sales or dealing relating to property owned by anyone other than Respondent. James also reviewed Respondent's books for the brokerage and it appeared to him that Respondent was operating at a loss. Nonetheless, at no time did Respondent fail to identify himself as a real estate broker either to the advertising representative or in response to the telephone call. In light of Respondent's refusal to comply with the earlier suspension, his apparent unwillingness to cease operations as directed until it suited his purpose, and his unfavorable financial position as to the brokerage, the Petitioner recommends only that Respondent's license as a real estate broker be revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Florida Real Estate Commission enter a Final Order in this case revoking Respondent's license as a real estate broker in Florida. RECOMMENDED this 2nd day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1996. COPIES FURNISHED: Raymond J. McGinn Englewood Realty 56 Harvard Street Englewood, Florida 34223 Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether Respondent, Lucille Stuart Foster (Respondent), violated provisions of Florida law governing teachers and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, as the Commissioner of Education, is responsible to investigate and prosecute complaints against persons who hold a Florida Educational Certificate, and are alleged to have violated provisions of law related to the education profession in the State of Florida. See §§ 1012.79 and 1012.795, Fla. Stat. (2010). Respondent holds a teaching certificate in Florida, Certificate Number 383630, that covers the areas of reading, mathematics, and music. Respondent's certificate is valid through June 30, 2015. At all times material to the allegations of this case, Respondent was employed by the Collier County School District (District) and worked as a music teacher at the elementary school level. Prior to the allegations encompassed within this case, Respondent had not been disciplined by the District. Respondent was employed by the District from 1976 through the 2009-2010 school year. With the exception of one year, Respondent's performance evaluations have been acceptable until the allegations of this matter arose. Prior to the 2008-2009 school year, Respondent was assigned to one school on a full-time basis. Beginning in 2008, Respondent was assigned to be an "itinerant" teacher. As such, Respondent was directed to teach at three different elementary schools and to move among the schools during the school week, as her schedule dictated. The three schools were Corkscrew Elementary, Golden Terrace Elementary, and Big Cypress Elementary. An administrator at each of the schools was assigned supervision and evaluation duties for Respondent's job performance. All of the administrators required that Respondent prepare and submit lesson plans for review. All of the administrators observed Respondent in the class setting. All of the administrators found deficiencies in Respondent's job performance. At the conclusion of the 2008-2009 school year, the District returned Respondent from her continuing contract status to an annual contract. More critical to this case, however, is the fact that the District put Respondent on a prescriptive plan for improvement so that she could address the deficiencies in her work performance. The District offered support services to encourage Respondent to make the improvements needed. Respondent did not acknowledge, and does not acknowledge, that her work performance during the 2008-2009 school year was unacceptable. Respondent maintained that one of the administrators harassed her and then wrongly sought to discipline her. When the 2009-2010 school year began, Respondent was directed to complete remediation so that the problem areas of her job performance could improve. Specifically, Respondent was to prepare and timely submit appropriate lesson plans. She was to follow the plans in the teaching of her students. She was to maintain classroom decorum so that students would remain on task and not disrupt or interfere with the learning experience. In recognition of the difficulty of teaching at three different schools, Respondent was allowed to prepare one lesson plan that could be implemented at all three locations. It was expected that music students would prepare for and publicly perform at designated school functions. In the past, Respondent successfully led her students in many performances that demonstrated an appreciation for music and musical achievement. During the 2009-2010 school year, however, Respondent's ability to focus on the improvements sought by her administrators diminished. As her frustration level grew, her civility toward one of the administrators waned. Respondent was convinced that efforts to assist her were not genuine. Principal Lettiere, Respondent's supervisor at Big Cypress Elementary School, identified the following deficiencies in Respondent's job performance: Failure to have lesson plans; Failure to timely submit adequate lesson plans; Insufficient delivery of lesson plans to the class; Failure to tie the lesson plan to the lesson taught; Failure to timely report for work; and Failure to provide an accommodation for a student with disabilities during the music lesson. Principal Lonneman, Respondent's supervisor at Corkscrew Elementary School, identified the following deficiencies in Respondent's job performance: Failure to keep students engaged during class time; Failure to include musical instruments into the music curriculum; Failure to timely prepare lesson plans; and Failure to incorporate the music curriculum within lesson plans. Principal Glennon, Respondent's supervisor at Golden Terrace Elementary School, observed Respondent multiple times during the 2008-2009 school year. Principal Glennon documented the following deficiencies in Respondent's job performance: Failure to keep students on task; Lack of classroom management skills; Failure to have a structured lesson; and Failure to follow adequate lessons. Principal Glennon tried to meet with Respondent to go over the deficiencies, but Respondent did not timely comply with his requests for a conference. Instead, Respondent has steadfastly and resolutely claimed her teaching skills to be adequate, if not superior. In February 2009, Principal Glennon cited Respondent for failure to report to work; failure to provide a classroom management plan, as he had requested; and failure to redirect students who engaged in off-task behaviors. In March 2009, Respondent was advised that she would be returned to annual contract status at the end of the school year. Respondent received a contract for the 2009-2010 school year, but began the year with a plan for her improvement in the classroom. Respondent was afforded 90 days within which to improve her performance. Mr. Glennon hoped that by outlining the areas that needed to be improved, Respondent would soldier on and make the necessary corrections. When Respondent failed to address the concerns outlined by her improvement plan, her school administrators, with the consent and authorization of the District superintendent, removed her from the schools. Respondent was placed in the status of "pool" teacher and completed the 2009- 2010 school year in that assignment with benefits and salary. At the end of the year, Respondent's contract was not renewed. Respondent is a talented musician who played with a local symphony for many years. Early in her career, Respondent was effective as a music teacher. Respondent was praised by former administrators who worked with her during those times. None of the former administrators observed Respondent during the periods of time critical to this case. It is unknown whether during those earlier years the requirements regarding lesson plans, classroom management, and curriculum were the same or similar to the requirements of the 2008-2009 and 2009-2010 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent's teaching certificate be suspended for a period up to one year during which time Respondent be required to successfully complete continuing education courses to address Respondent's deficiencies in classroom management, lesson plans, and professionalism. DONE AND ENTERED this 30th day of November, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2012. COPIES FURNISHED: Peter James Caldwell, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew K. Foster, Esquire Brooks, LeBoeuf, Bennett, Foster and Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the Respondent, Andy Comacho, should be assigned to J.R.E. Lee Opportunity School.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. Respondent, Andy Comacho, was an eighth grade student at W. R. Thomas Middle School (the "School") during the school year 1990/1991. The School is part of the Dade County, Florida, School District. During the first three grading periods of the 1990/1991 school year, Respondent's academic performance was poor. He had straight F's in three of his seven classes and had F's the last two grading periods in two of his other four courses. Respondent's effort ratings during this time period were extremely low. His academic performance during the 1990/1991 school year reflects a significant deterioration in academic performance from the preceding 1989/1990 school year. During the last part of the 1989/1990 school year, the Respondent's conduct began to deteriorate. His disruptive behavior continued throughout the 1990/1991 school year. Between January 3, 1990 and February 26, 1991, Respondent has received twelve disciplinary related referrals. During the 1990/1991 school year, Respondent has often been disruptive and disrespectful in class and his behavior has not only precluded him from scholastic progress but has also had a negative impact on the learning experience of other students in his classes. In his English class during the 1990/1991 school year, Respondent has rarely participated in any class activity, has seldom brought his books to class and often lacks other required class room materials. He has only submitted about a third of the homework assignments and he has frequently disrupted the class. On one occasion, he kicked over a desk during class. In his History class during the 1990/1991 school year, Respondent has failed to turn in approximately 80% of the homework assignments, has seldom brought materials to class and is often defiant of his teacher's authority. He has frequently been verbally abusive to other students and on one occasion he suggested to a female student that she perform an oral sexual activity with him. On another occasion, he stuck a girl with a pen and on still on another occasion, the teacher was forced to call security after Respondent jumped another student. Respondent was involved in at least three fist fights during the school year. As a result of his disruptive conduct, Respondent was given numerous detentions, many of which he failed to serve. He also received five outdoor suspensions and two indoor suspensions. The School attempted several ways to try to get the Respondent more interested in his school work and/or to correct his behavioral problems. Respondent received extensive one-on-one counseling. Respondent was also referred to an intervention program known as "To Reach Ultimate Success Together" (the "T.R.U.S.T. Program.") This program was an alternative to suspension and required the Respondent to attend counseling sessions once a week for about two hours after school. It also required his parents participate in at least some of the counseling sessions. The T.R.U.S.T. counselor tried to impress upon Respondent and his parents the necessity of active participation in the program. Nonetheless, Respondent skipped most of the sessions and his parents never showed up for any of the meetings. All the disciplinary and counseling strategies available to the School were attempted in an effort to assist Respondent in correcting his behavior. Notwithstanding these efforts, Respondent's behavior has not improved and his conduct has been detrimental to the learning environment for other students. The average number of students in a class at the School is approximately 30. The School does not have the resources to address peculiar student needs nor provide individual students with continuous attention. There are approximately twelve students to a class at the opportunity school and individualized educational plans are developed for the students. There are also more counselors on staff, including a psychologist. Respondent needs the increased structure and discipline that is available to students at an opportunity school. That program should assist him academically.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the assignment of Respondent, Andy Comacho, be assigned to a disciplinary program established pursuant to Section 230.2316(4)(d), Florida Statutes. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of June, 1991. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner has submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Petitioner. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 1. 2. Adopted in substance in Findings of Fact 2. 3. Adopted in substance in Findings of Fact 4. 4. Adopted in substance in Findings of Fact 5. Rejected as unnecessary. Adopted in substance in Findings of Fact 8. 7. Rejected as unnecessary. 8. Adopted in substance in Findings of Fact 6. 9. Adopted in substance in Findings of Fact 3 and 7. 10. Adopted in substance in Findings of Fact 9. 11. Adopted in substance in Findings of Fact 10 and 11. COPIES FURNISHED: James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Mrs. Mercedes Urquiza 1721 Southwest 137th Place Miami, Florida 33175 Octavio J. Visiedo Superintendent of Schools Dade County Public Schools Board Administration Building Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Sydeny H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
