The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Emmamaria Silva, currently holds Florida teaching certificate number 466263, covering the areas of early childhood education and elementary education, which is valid through June 30, 1994. Respondent has been employed as a teacher by the Dade County School District since 1980, and was so employed at all times pertinent to these proceedings. During the 1990-91 school year, respondent was employed as a kindergarten teacher at South Miami Heights Elementary School and taught English for Speakers of Other Languages (ESOL). Such class was designed to immerse the students in the English language through intense visual and auditory stimulation, and demanded of the teacher strong demonstrative or acting skills in addition to sound educational skills. Essentially, a teacher, such as respondent, would "bombard" the students with the English language and through various techniques, including demonstrations, achieve a level of comprehension without resort, if possible, to the children's native language. Necessarily, such a teacher, as respondent, is quite animated and demonstrative during the course of the program, and must evidence a caring and conscientious attitude. Here, petitioner charges that during the 1990-91 school year respondent used inappropriate techniques or physical force to discipline or control her students. With minor exception, the proof fails to demonstrate any significant transgression. First, petitioner charges that respondent "tied up" many students to a chair as punishment. In this regard the proof does demonstrate, with regard to the students Eric Lluis (Eric), Adrian Gonzalez (Adrian), Alexander DuQue (Alexander), Frankie and Yency, that the respondent did, on at least one occasion during the school year, wrap a jump rope around their chest and upper arms, as they were seated in their chair with their arms at their side. The rope was not, however, tied, but wrapped so loosely that it did not significantly restrain them. Such demonstrative act on respondent's part was responsive to those students moving away from their desks or walking around when they should have been seated and paying attention to her instruction. Apart from Adrian "feeling sad" because of his experience, none of the other students expressed any adverse reaction to respondent's action, and none were harmed. Apart form the foregoing, there is no proof that respondent ever "tied up" a student, with one exception. In this regard the proof demonstrates that on one occasion she bound Eric to a chair momentarily in response to his having "tied up" Adrian. According to respondent, she used such technique, and explained her action to Eric, to demonstrate the impropriety of his conduct. In her proposed recommended order respondent concedes, on reflection, that such action was not an appropriate method of discipline. Finally, petitioner charges that at some point during the 1990-91 school year respondent hit Eric and Adrian with her shoe, put soap in the mouths of Eric and Adrian for using "bad words," and put tape on the mouths of some students. The proof offered at hearing regarding these incidents failed, however, to reasonably explicate the circumstances surrounding the incidents, was vague and at times conflicting, and lacked sufficient detail from which a conclusion of impropriety could clearly be drawn. For example, regarding the accusation that respondent hit Eric and Adrian with her shoe, Adrian denies having been hit and no proof was offered regarding the circumstances surrounding the occasion Eric was purportedly hit to show how he was hit, why he was hit, or how hard he was hit. With regard to the accusation that respondent put soap in the mouths of Eric and Adrian for using "bad words," neither of these students was asked about the incident at hearing and the proof offered was less than compelling. Finally, with regard to the accusation that respondent put tape on the mouths of some students, the proof fails to identify such students or to demonstrate when, where, how or why such event occurred. Under such circumstances a conclusion of impropriety cannot clearly be drawn, and respondent's testimony that she never engaged in such punative conduct is credited As a consequence of the Dade County School District's investigation into the matter, respondent has received a letter of reprimand for using inappropriate disciplinary techniques on a student, and counseling regarding inappropriate disciplinary techniques. Apart from the incidents in this case, respondent has received satisfactory performance evaluations, and she continues to teach at South Miami Heights Elementary School without apparent further incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered finding respondent guilty of violating the provisions of Section 231.28(1)(h), Florida Statutes, and Rule 6B- 1.006(3)(a) and (e), Florida Administrative Code, as heretofore found, dismissing all other charges against respondent, and imposing the penalty set forth in paragraph 12, supra. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of April 1993. WILLIAM J. KENDRICK 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 19th day of April 1993.
The Issue Whether the Respondent, Alan T. Polite (Respondent), committed the violations alleged and should be disciplined as set forth in the Notice of Specific Charges filed on December 21, 2004.
Findings Of Fact At all times material to the allegations of this case, the Petitioner was the state entity charged with the responsibility of operating and supervising the public schools within the Miami-Dade County, Florida School District. Such responsibility includes the personnel matters such as the one at hand. At all times material to the allegations of this case, the Respondent was employed by the School District as a custodian assigned to work at Miami Park Elementary School. On or about December 11, 2003, the Respondent attended a staff meeting conducted at Miami Park Elementary School. At that time the Petitioner’s “Drug-Free Workplace Policy” was distributed and reviewed. The Respondent does not deny attending the meeting and does not dispute the existence of the Petitioner’s policy regarding drugs and alcohol in the workplace. On February 20, 2003, after the Respondent’s supervisor observed him behaving in an unusual manner, the Respondent was asked to submit to a drug and alcohol test. The Respondent was uncharacteristically disruptive, loud, and confrontational. When asked to take a drug/alcohol test, the Respondent refused unless the supervisor also agreed to submit himself for testing. The Respondent was called to the office and provided with the pertinent forms for drug/alcohol testing. The Respondent refused to acknowledge the forms, refused to sign the forms, and refused to submit himself to the testing. After the refusal was deemed a positive result, the Respondent was prohibited from returning to work until he complied with the return-to-duty requirements of the “Drug- Free Workplace Policy.” The procedures and directives followed the School District policy. On February 28, 2003, a conference-for-the-record (CFR) was conducted to address the refusal to take the drug/alcohol test. At that time the Respondent was given a referral to the Employee Assistance Program (EAP) and was informed that his progress and participation with the EAP would be monitored by the Petitioner’s Office of Professional Standards (OPS). The OPS is responsible for tracking employees so that the Petitioner can be assured that the “Drug-Free Workplace Policy” is being followed. On or about March 19, 2003, the Respondent entered the EAP. On April 10, 2003, the Respondent agreed to subject to unannounced testing for drug/alcohol use. For 60 months following his return to duty, the Respondent agreed to submit to testing on a random basis. It was anticipated that there would be no fewer than six screenings within the first 12 months. Based upon the foregoing, the Respondent was granted permission to return to work and did so on or about April 11, 2003. On June 8, 2004, the Respondent was selected for a random, unannounced follow-up test. The Respondent presented for testing at the prescribed location (an approved laboratory). The alcohol test administered to Respondent produced a positive result. The Respondent does not dispute the result of the test. The Respondent did not dispute that a consumption of alcohol caused the result. On June 22, 2004, another CFR was conducted in the OPS to review the test result with Respondent. At that time, based upon a complete review of the Respondent’s work record, the OPS recommended disciplinary action be taken against the Respondent for a second violation of the “Drug-Free Workplace Policy.” There is no allegation that the Respondent consumed alcohol while on the job at Miami Park Elementary School on June 8, 2004. There is no allegation that on June 8, 2004, the Respondent exhibited any outward sign that he was performing his duties under the influence of alcohol. The Respondent attends church at the Friendship Missionary Baptist Church. The Respondent makes meaningful contributions to the church and is perceived as a sober role model among the congregants. If the Respondent demonstrates he can remain sober for a period of five years, and show appropriate work history for that time frame, he may be eligible to be rehired by the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be terminated from his employment with the School District. The suspension without pay must be sustained. S DONE AND ENTERED this 27th day of April, 2005, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 27th day of April, 2005. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Pamela Young-Chance, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 Alan T. Polite 827 Northwest 118 Street Miami, Florida 33168
Findings Of Fact At all times material, Respondent Michael Eric Pose, age fifteen, was a student at West Miami Junior High School (West Miami) in Dade County, Florida. Respondent's academic performance during the 1986-1987 school year was very poor. He received the grade of "F" in every class. His grades for conduct were also mostly "Fs." In addition, he received the lowest grade for effort (3). Respondent's poor academic performance, lack of effort, and unacceptable conduct resulted in his rot being promoted to the next grade. During the first three marking periods of the 1986-1987 school year, Respondent was enrolled in Louise Johnson's math class, where he was marked absent about 58 times and late 12 times. When Respondent did attend classes he would come without materials and refused to do work when materials were provided by his teacher. He failed to complete 99 percent of his homework assignments and refused 95 percent of the time to perform any class work. On at least two occasions, Respondent was caught sleeping in class by Ms. Johnson. The grades he received in that class for academic performance, effort and conduct were "F- 3-F" (scholarship-effort-conduct). Ms. Harriet Wade, physical education teacher, also had Respondent as a student during the 1986-87 school year. In that class, he was absent 60 times and late 8 times. He refused to wear his gym clothing to the physical education class, refused to participate in games or perform exercises, and frequently engaged in activities which disrupted the class, such as talking to other students and wandering over to talk to other groups. He earned "F-3-F". Ms. Wade's normal form of discipline is to assign detentions and/or the running of laps. Respondent refused to serve either punishment on each occasion it was assigned. Respondent's mother offered as an excuse for Respondent's failure to meet the physical education requirements that he had dislocated his hip when he was four years old. However, she also stated that the surgery was deemed successful and it is clear that the proper medical excuses or records were never submitted to school personnel. There is no competent medical opinion that Michael is presently disabled from normal sports or participation in other school activities. In the same school year, Respondent was also a student of Ms. Tania Martinez-Cruz, English teacher. He was absent from her class 64 times and late 6 times. He refused to do classwork 98 percent of the time and never turned in any homework assignments. After it became apparent that Respondent would not bring materials to class, Ms. Martinez-Cruz kept materials in her classroom for him so that he would have no excuse to avoid working in her class. This method failed. Moreover, during the times he did attend class, Respondent spent 90 percent of the class period sleeping, even though she placed him in the front of the class and required him to participate in classwork as much as possible. Student Case Management Referral Forms (SCMRFs) generally reserved for serious behavior problems, were issued on Respondent's behavior by Ms. Johnson, Ms. Wade, and Ms. Martinez-Cruz due to his lack of interest in school, poor behavior, absences, and tardies. In addition, Respondent received five other SCMRFs from different teachers and/or administrators, all of whom complained of his disinterest in school and unacceptable behavior. One such complaint involved breaking in to a teacher's automobile. Because Respondent was frequently engaged in conflicts of a disruptive nature, he was suspended five times during the 1986-87 school year. Mr. Sotolongo, Assistant Principal, had numerous conversations with Respondent's mother regarding his excessive absences, poor behavior and lack of progress. However, to date the mother has not been able to improve Respondent's interest in school. After numerous attempts at counseling the mother and Respondent, a child study team report was made and conference thereon was held. This report and conference resulted in the administrative assignment of Respondent to J.R.E. Lee Opportunity School. The opinions of the Assistant Principal and the other teachers and administrators who had conferences regarding Respondent was that the more structured environment of an opportunity school would be better for him, as opposed to permitting him to remain in the regular school program where he was making no progress.
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated January 16, 2003, and in the Notice of Specific Charges filed February 27, 2003, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is 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. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002).3 At the times material to this proceeding, Mr. Lefkowitz taught emotionally handicapped and seriously emotionally disturbed students in North Miami Beach High's Bertha Abbess exceptional student education program. He has been employed by the School Board since 1993, and is currently employed under a professional services contract. At the times material to this proceeding, Mr. Lefkowitz and at least one other person were making a music video for a course they were taking at Florida International University. Alvarro Gutierrez was working with Mr. Lefkowitz on the video, and Mr. Gutierrez had chosen the girl who would sing and would choreograph the dances for the video. Mr. Gutierrez did not, however, have any dancers, and Mr. Lefkowitz told Mr. Gutierrez that he knew some girls "from school" who were dancers and that he would ask them if they wanted to dance in the video. J.D. was, at the times material to his proceeding, an 11th-grade student at North Miami Beach High, although she was not a student of Mr. Lefkowitz. Rather, J.D. met Mr. Lefkowitz in a school hallway, while she was selling candy for her French class, and they apparently had several conversations during school hours. In one of these conversations, Mr. Lefkowitz mentioned that he was filming a music video for a college class. J.D. asked if she could be in the video, and Mr. Lefkowitz agreed and asked J.D. if she had any friends who could also dance in the video. J.D. introduced Mr. Lefkowitz to her friend N.F. N.F. was, at the time, an 11th-grade student at North Miami Beach High, but she did not know Mr. Lefkowitz until J.D. introduced them. Mr. Lefkowitz did not know at the time he met her that N.F. was a student at North Miami Beach High. J.D. also introduced Mr. Lefkowitz to Glamour Legros, whom she knew because she and Ms. Legros attended the same church. Prior to introducing Mr. Lefkowitz to Ms. Legros, J.D. had told him on a number of occasions how much Ms. Legros wanted to meet him.4 Ms. Legros and N.F. shared an apartment. Ms. Legros was not a student at the times material to this proceeding, and she was older than N.F. and J.D. J.D., N.F., and Ms. Legros agreed to dance in the music video and went to Mr. Lefkowitz's apartment several times to discuss, rehearse, and shoot the video. Mr. Lefkowitz picked up J.D., N.F., and Ms. Legros and drove them to his apartment on the occasions when they were working on the video. Mr. Lefkowitz also took J.D. and her friends home on these occasions. M.D., J.D.'s brother and a student at North Miami Beach High at the time, went to Mr. Lefkowitz's apartment once, and H.D., another student at North Miami Beach High, was at Mr. Lefkowitz's apartment on at least one occasion, when she danced for the music video. These two students also rode with Mr. Lefkowitz in his car on at least one occasion. In addition to her visits to Mr. Lefkowitz's apartment and her rides in his car, J.D. spoke with Mr. Lefkowitz numerous times on the telephone. When working on the video, J.D. went to Mr. Lefkowitz's apartment with her friends. She was alone with Mr. Lefkowitz once, after her friends left Mr. Lefkowitz's apartment; Mr. Lefkowitz took her home after about an hour. Mr. Gutierrez did not observe Mr. Lefkowitz engage in any improper behavior with J.D. or her friends at Mr. Lefkowitz's apartment during the time they were discussing, rehearsing, and shooting the music video. On April 21, 2003, Ms. Legros called the police and she and N.F. reported that Mr. Lefkowitz had come to their apartment, beat on the door, and threatened them verbally. According to the police incident report, the police were dispatched at 10:09 p.m. and arrived at Ms. Legros's and N.F.'s apartment at 10:12 p.m. Mr. Lefkowitz had outpatient surgery on April 18, 2002. Mr. Lefkowitz's mother was with him at his apartment from April 18 through the morning of April 22, 2002, the day he returned to work. According to Ms. Lefkowitz, Mr. Lefkowitz was in bed, asleep, on the night of April 21, 2002. On April 22, 2002, Raymond Fontana, the principal of North Miami Beach High, received a telephone call from a woman who identified herself to Mr. Fontana's secretary as J.D.'s aunt and who told Mr. Fontana that an exceptional student education teacher named "Neil" was having a relationship with J.D., a student at North Miami Beach High; the caller also reported that the teacher had been involved in an "incident" that had been reported to the police. Ms. Legros was the person who called Mr. Fontana.5 Mr. Fontana called Allyn Bernstein, an assistant principal at North Miami Beach High, into his office and asked her to look into the allegations made by the caller. Dr. Bernstein called Mr. Lefkowitz into her office and, before she could say anything, Mr. Lefkowitz told her that he knew why she had summoned him, that an ex-girlfriend had threatened to make trouble for him because he wouldn't give her money. When Dr. Bernstein questioned Mr. Lefkowitz about his relationship with the student J.D., Mr. Lefkowitz denied knowing her. Dr. Bernstein also called J.D. into her office. In response to Dr. Bernstein's questions, J.D. denied knowing Mr. Lefkowitz. She stated that she did not have a social relationship with any teacher outside of school and that she had never met any staff member outside school. After Dr. Bernstein reported to Mr. Fontana that she believed that there might be "something there,"6 Mr. Fontana reported the matter to the school district personnel, who referred the matter to the Miami-Dade School Police Department, and an investigation was initiated. Once the investigation was initiated, Mr. Lefkowitz was placed on alternate assignment at his home effective May 3, 2002. The investigator, Detective Victor Hernandez, interviewed N.F., Ms. Legros, J.D., H.D., M.D., and Mr. Lefkowitz. During the course of his investigation, Detective Hernandez was told that Mr. Lefkowitz and N.F. had dated and that they had had sexual intercourse. When Detective Hernandez interviewed Mr. Lefkowitz, Mr. Lefkowitz denied that he knew either J.D. or N.F. In a report dated September 2, 2002, Detective Hernandez described his investigation and set forth the substance of the statements given by the witnesses. Detective Hernandez concluded that the charges that Mr. Lefkowitz had violated Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, and School Board Rules 6Gx13-4.109 and 6Gx13-4A-1.21 were substantiated. A Conference-for-the-Record was held on October 2, 2002, with Paul Greenfield, District Director, presiding. Mr. Lefkowitz attended the Conference-for-the-Record, together with the School Board's Director of Region II and Mr. Fontana. Mr. Lefkowitz requested that his attorney be allowed to attend, but this request was denied.7 Mr. Greenfield reviewed Mr. Lefkowitz's history with the Miami-Dade County public school system and presented the results of the investigation. Mr. Lefkowitz denied having met J.D. and N.F. and denied that they were ever in his apartment. After the Conference-for-the-Record, Mr. Fontana recommended to the Superintendent of Region II that Mr. Lefkowitz's employment be terminated. Mr. Lefkowitz lied to Dr. Bernstein, to Detective Hernandez, and to the participants in the Conference-for-the- Record about his relationships with J.D. and N.F. because he knew it was improper for the students to be in his apartment and for him to associate with students outside of school. Mr. Lefkowitz expressed remorse at his behavior and acknowledged that his conduct was not appropriate. J.D. testified that she and Mr. Lefkowitz never dated or had sexual intercourse. Ms. Legros testified that she did not know whether Mr. Lefkowitz and J.D. had had sexual intercourse. She claimed, however, to have observed Mr. Lefkowitz and J.D. at Mr. Lefkowitz's apartment hugging and kissing and acting like "boyfriend and girlfriend to me."8 Ms. Legros has no personal knowledge that Mr. Lefkowitz had sexual relations with N.F., but testified that N.F. told Ms. Legros that she had had a relationship with Mr. Lefkowitz. An 11th-grade student testified at the hearing that he considered Mr. Lefkowitz to be a good teacher, a role model, and a teacher that he would remember after high school. Mr. Fontana testified that he thought Mr. Lefkowitz's effectiveness as a teacher had been impaired because of the "manner in which he dealt with students, having students come to his apartment, dealing with students that are out of the realm of his teaching responsibilities." Mr. Fontana observed that "once you breach that student/teacher relationship and you lose that professionalism I don't think you can ever go back and have the same degree of effectiveness as a teacher."9 In making his decision to recommend that Mr. Lefkowitz be terminated from his employment as a teacher, Mr. Fontana considered Mr. Lefkowitz's employment history with the Miami- Dade County public school system. Mr. Lefkowitz was twice referred for evaluation as to his medical fitness to perform his duties as a teacher and was twice found fit to perform these duties. Mr. Lefkowitz was the subject of three allegations of battery on a student, one in February 1995, one in February 1999, and one in March 1999; the February 1995 charge was substantiated,10 and Mr. Lefkowitz was given a verbal warning; the remaining two charges were unsubstantiated. Finally, in August 1995, Mr. Lefkowitz had an unacceptable annual evaluation, was given a TADS Category VII prescription in the area of Professional Responsibility, and successfully completed the prescription within the specified time. Summary The greater weight of the credible evidence presented by the School Board is insufficient to establish that Mr. Lefkowitz dated either J.D. or N.F. or that Mr. Lefkowitz had sexual intercourse with N.F. The School Board presented no direct evidence establishing that J.D. and Mr. Lefkowitz had a romantic relationship or that N.F. and Mr. Lefkowitz had a sexual relationship. The School Board relied exclusively on Ms. Legros's testimony to establish that these relationships existed,11 and most of her testimony was based on hearsay, not personal knowledge. Ms. Legros had no personal knowledge that N.F. had sexual relations with Mr. Lefkowitz, and the only behavior that Ms. Legros testified that she personally observed was Mr. Lefkowitz and J.D. in Mr. Lefkowitz's apartment hugging and kissing and, in Ms. Legros's estimation, acting like boyfriend and girlfriend. Ms. Legros is found not to be a particularly credible witness, and her uncorroborated testimony is not sufficiently persuasive to establish that Mr. Lefkowitz and J.D. more likely than not were dating or that the hugging and kissing, if she indeed observed such behavior, was sexual in nature. Both J.D. and Mr. Lefkowitz denied having a romantic relationship, but it is difficult to credit fully their testimony, given that both J.D. and Mr. Lefkowitz lied to School Board personnel about knowing one another and that Mr. Lefkowitz lied to School Board personnel about being acquainted with N.F. However, on reflection and after a careful review of the evidence, the testimony of J.D. and Mr. Lefkowitz is credited over that of Ms. Legros. The greater weight of the credible evidence presented by the School Board is not sufficient to establish that Mr. Lefkowitz telephoned N.F. on April 21, 2002, and threatened her or that he went to the apartment shared by Ms. Legros and N.F. on the night of April 21, 2002, and made threats to harm them. Mr. Lefkowitz's mother testified unequivocally that she was with Mr. Lefkowitz from April 19 through the morning of April 22, 2002, and that he was recovering from surgery and sleeping on the night of April 21, 2002. The School Board presented no evidence that Mr. Lefkowitz telephoned N.F. and threatened her, and Ms. Legros was the only witness to testify that Mr. Lefkowitz came to her apartment and made threats. The testimony of Mrs. Lefkowitz is credited over that of Ms. Legros.12 The evidence presented in this case is sufficient to establish that Mr. Lefkowitz failed to exercise the best professional judgment, failed to maintain the highest ethical standards, and used his position as a teacher to his personal advantage by recruiting young women students to perform as dancers in the music video he was filming as part of a college assignment. Mr. Lefkowitz admitted that he had engaged in inappropriate conduct: He had had a personal relationship outside of school with both J.D. and N.F.; J.D. and N.F. danced in a music video he made for a college project; J.D. and N.F. were in his apartment several times; and he drove J.D. and N.F. in his car to and from his apartment. The contents and tone of the written statement Mr. Lefkowitz adopted as his testimony supports an inference that he was on very familiar terms with both J.D. and N.F., and with Ms. Legros as well.13 Mr. Lefkowitz's poor judgment in developing significant social relationships outside of school with two female students at North Miami Beach High and his inappropriate behavior in having these students as guests in his car and in his apartment reflect poorly on him as a teacher employed by the School Board. Mr. Lefkowitz also failed to exercise the best professional judgment and to maintain the highest ethical standards with respect to his dealings with the School Board during the investigation of his conduct. Mr. Lefkowitz lied to Dr. Bernstein and Detective Hernandez and at the October 2, 2002, Conference-for-the-Record when he said he did not know J.D. or N.F., and he admitted at the final hearing that he lied because he knew that he should never have involved these students in making the music video, should never have given these students rides in his car, and should never have invited the students to his apartment. Mr. Lefkowitz's lack of truthfulness reflects poorly on him as a teacher employed by the School Board. The evidence presented by the School Board is also sufficient to establish that Mr. Lefkowitz engaged in one instance of inappropriate behavior involving students M.D. and H.D. Mr. Lefkowitz admitted that, on one occasion, he picked up these two students in his car and drove them to his apartment, where H.D. danced in the music video and M.D. observed Mr. Lefkowitz and cohorts filming the music video. Mr. Lefkowitz did not have repeated out-of-school contacts with these two students, as he did with J.D. and N.F., but his behavior with M.D. and H.D. reflected poorly on him as a teacher employed by the School Board. The evidence presented by the School Board, which consisted only of Mr. Fontana's conclusory and general statements, is not sufficient to establish that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami- Dade County public school system. The evidence presented by the School Board is, however, sufficient to permit an inference that Mr. Lefkowitz's effectiveness as a teacher was impaired. Mr. Lefkowitz encouraged students to develop personal relationships with him and to spend significant amounts of time with him in his apartment. Even though J.D., the young woman with whom he was primarily involved, was not a student in his class, his willingness to become involved with this student and her friends brings his personal and professional judgment into question and necessarily affects the school administration's assessment of his fitness for supervising high school students. It may also be inferred that Mr. Lefkowitz's effectiveness as an employee of the School Board was also impaired because he lied to the principal and assistant principal of his school and to the regional superintendent of the Miami-Dade County public school system about even knowing J.D. By not being truthful with the school system administrators, Mr. Lefkowitz diminished his credibility as a professional educator.
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; Finding that Neil D. Lefkowitz is guilty of having committed misconduct in office and of violating School Board Rules 6Gx13-4-1.09 and 6Gx13-4A-1.21; Suspending Mr. Lefkowitz without pay for a period of 24 months, retroactive to the date on which the School Board suspended him from his employment without pay; and Imposing such conditions on Mr. Lefkowitz upon his return to employment as the School Board deems appropriate. DONE AND ENTERED this 31th day of July, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31th day of July, 2003.
The Issue Whether the Respondent committed the violations alleged in the Second Amended Notice of Specific Charges filed by the Petitioner on March 15, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is 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. Article IX, Florida Constitution; Section 230.03, Florida Statutes. At all times material to this proceeding, Ms. McElrath was employed as a teacher by the School Board and assigned to Miami Jackson, where she taught for almost 13 years. Ms. McElrath taught English, and she was the coach of the Miami Jackson debate team for one year and the advisor for the student newspaper for six years. She has consistently been rated acceptable in teaching and in professional responsibility in her annual evaluations at Miami Jackson. Ms. McElrath is employed by the School Board under a professional service contract. Prior to the incident that is the subject of these proceedings, Ms. McElrath had never been the subject of a School Board personnel investigation. She was known to her colleagues as a friendly person and had never displayed violent behavior. Thomas Rolle is a computer specialist employed by the School Board and assigned to Miami Jackson. Mr. Rolle's duties include trouble-shooting and maintaining the computers at Miami Jackson and administering the computer network. Mr. Rolle is blind in his left eye and is severely hearing impaired. He wears hearing aids in both ears; he can also read lips and understand a speaker in a face-to-face conversation. About three weeks prior to February 23, 2000, Mr. Rolle was conducting a computer survey at Miami Jackson to determine which computers needed to be configured for the school's Internet connection. When he arrived at Ms. McElrath's classroom, the class was watching a video on television, and the classroom was dark. Mr. Rolle also noticed that the computer and the Internet connection drop were on opposite sides of the classroom. Ms. McElrath told Mr. Rolle that she would move the computer closer to the Internet connection drop and that he should come back later to work on the computer. About ten days later, Ms. McElrath passed Mr. Rolle in the hallway, and Ms. McElrath told Mr. Rolle that she had moved the computer in her classroom. Ms. McElrath asked that Mr. Rolle come to her classroom to configure the computer. Ms. McElrath felt that her class was getting behind because there was no Internet connection in her classroom. Mr. Rolle did not go to Ms. McElrath's classroom as she had requested. Shortly before 11:00 a.m. on February 23, 2000, Ms. McElrath went to Dr. Choate, Mr. Rolle's supervisor, and asked if Dr. Choate could expedite Mr. Rolle's visit to her classroom to configure her computer. While Ms. McElrath was in Dr. Choate's office, Dr. Choate paged Mr. Rolle, and he immediately called back. Dr. Choate asked Mr. Rolle if he could go to Ms. McElrath's classroom; he told her that he was working in Room 137, the Language Arts lab, but that he would be finished soon and would go to Ms. McElrath's classroom in about 30 minutes, after he had finished a few tasks on the first floor of the school building. Dr. Choate gave Ms. McElrath this information. Ms. McElrath left Dr. Choate's office and went directly to Room 137. She was frustrated because Mr. Rolle had told her before that he would configure her classroom computer but had not done so. Ms. McElrath thought that if she went to Room 137 and waited for him, Mr. Rolle would be more motivated to go to her classroom immediately. When Ms. McElrath entered Room 137, Mr. Rolle was helping Ludgerte Jean-Baptiste, a school paraprofessional, create a school map for a job career fair. Both Ms. Jean- Baptiste and Mr. Rolle were facing away from the door to the room. At first, Ms. McElrath looked for some novels she had seen previously in the Language Arts lab, but they weren't there. She jiggled her keys to make noise so Mr. Rolle and Ms. Jean-Baptiste would notice her. Mr. Rolle did not turn around, but, after a few moments, Ms. Jean-Baptiste turned around and asked if she could help Ms. McElrath. Ms. McElrath told her she was waiting for Mr. Rolle. Ms. Jean-Baptiste touched Mr. Rolle on the shoulder, and he turned around. Ms. McElrath asked him to come with her to her classroom to configure the computer for the Internet. Mr. Rolle told her that he needed to finish helping Ms. Jean- Baptiste and would go to Ms. McElrath's classroom within 30 minutes. Ms. McElrath was very persistent and repeatedly inquired as to why he could not come to her classroom immediately. Ms. Jean-Batiste told Mr. Rolle that she could finish with the map if there was something else that he needed to do. Mr. Rolle got up to leave Room 137, and Ms. McElrath asked Mr. Rolle if he was ready to go to her classroom. Mr. Rolle told Ms. McElrath that he would go to her classroom within 30 minutes, that he needed to go to his office to get the computer software, the configuration information, and the drivers before he went to her classroom. Ms. McElrath was annoyed. She became confrontational and blocked Mr. Rolle's path to the door of Room 137. When Mr. Rolle moved to his left to go around her, Ms. McElrath moved to her right to block his path. She continually asked him why he could not go to her classroom "now," and she persisted in moving to block his path to the door. Mr. Rolle stated several times to Ms. Jean-Baptiste that she should watch, that she was a witness. When Mr. Rolle reached the door, Ms. McElrath's back was to the door. Mr. Rolle tricked Ms. McElrath by feinting in one direction and actually moving in the other direction. As he stepped to his right to go through the door, Mr. Rolle moved his left arm between his body and Ms. McElrath's, pushed her aside, 3/ and opened the door with his right hand with sufficient force that the door hit the outside wall. Ms. McElrath was startled when Mr. Rolle pushed her, and she took a step back; she and Mr. Rolle pivoted as he moved through the doorway, so that she was facing the patio outside and Mr. Rolle was facing her. While the door was open, and without any further provocation from Mr. Rolle, 4/ Ms. McElrath raised her keys and sprayed a substance into Mr. Rolle's face from a canister on her key ring. The door closed, and Mr. Rolle fell to his knees, holding his eyes. Ms. Jean-Baptiste, who was inside Room 137, saw Ms. McElrath spray the substance into Mr. Rolle's face, and she went to help him to the bathroom to flush out his eyes with water. Ms. McElrath fled upstairs to her classroom. At least five students and one staff member observed this incident. Immediately after the incident, Ms. McElrath and Mr. Rolle were summoned to the principal's office. Ms. McElrath completed a written statement in which she asserted that she had sprayed Mr. Rolle with a fluid she used to clean her dry-erase board. In her statement, Ms. McElrath stated only that she had a heated discussion with Mr. Rolle, that she had felt threatened when he said that he would not be responsible for what he might do to her, 5/ and that he had shoved her. Mr. Rolle suffered temporary damage to his eyes and was required to wear dark glasses for several weeks. His eyes were blurry and watery and light-sensitive for about a week, and he had difficulty doing his work. He also had to drop several classes he was taking at Florida International University because he missed several classes as a result of the injury to his eyes. A Conference-for-the-Record was held on May 1, 2000, to discuss with Ms. McElrath the Preliminary Personnel Investigative Report of the incident involving Mr. Rolle, in which it was concluded that the charge that Ms. McElrath assaulted Mr. Rolle was substantiated, and to discuss Ms. McElrath's violation of School Board policy and rules, as well as her future employment status with the Miami-Dade County school system. Ms. McElrath was advised at the Conference-for- the-Record that she would be notified of the "recommended action or disciplinary measures to include any of the following: a letter of reprimand, a TADS Category VII prescription for the Professional Responsibilities Component infraction which could impact the annual evaluation decision, suspension or dismissal." At this conference, Ms. McElrath conceded that the substance she had sprayed in Mr. Rolle's face was actually pepper spray. She stated that she was seeing a counselor recommended to her by the Employee Assistance Plan. She acknowledged that her actions were precipitated because she perceived that Mr. Rolle was ignoring her and that there was no excuse for her actions toward Mr. Rolle. The first time Ms. McElrath alleged to the School Board that Mr. Rolle had moved his hands to her throat and that she was fearful that he intended to attack her was in a letter dated July 26, 2000, which she wrote "to clarify, explain, and/or respond" to the information contained in the summary of the May 1, 2000, Conference-for-the-Record. In this letter, Ms. McElrath stated that she sprayed Mr. Rolle with pepper spray because she was defending herself; he had shoved her and was bringing his hands up to her throat, and she felt threatened. Ms. McElrath asked that this letter be included as part of her record. Summary It is uncontroverted that Ms. McElrath sprayed Mr. Rolle in the face with pepper spray and that she lied when she asserted in the statement she gave immediately after the incident that the chemical she sprayed in Mr. Rolle's face was a solution she used to clean her dry-erase marker board. The disputed factual issues that are presented for resolution in this case are whether Ms. McElrath conducted herself in her employment as a teacher in a manner that failed to reflect credit on herself and the school system; whether Ms. McElrath committed misconduct in office and thereby impaired her effectiveness in the school system; whether Ms. McElrath committed violence in the workplace; and whether Ms. McElrath acted in self-defense when she sprayed Mr. Rolle with pepper spray. Having considered all of the evidence submitted with respect to Ms. McElrath's conduct during the incident involving Mr. Rolle, the undersigned finds that Ms. McElrath was acting in the course of her employment as a teacher and that her conduct certainly did not reflect credit on her. In making this finding, consideration has been given to Ms. McElrath's actions in blocking Mr. Rolle's path as he tried to leave Room 137 and in repeatedly demanding to know why he would not go directly to her classroom, after he had explained that he needed to obtain materials necessary to configure her computer for the Internet, as well as to her spraying Mr. Rolle with pepper spray. The undersigned further finds that Ms. McElrath committed misconduct in office. Ms. McElrath did not value Mr. Rolle's worth as an employee of the School Board entitled to make judgments regarding his professional responsibilities or Mr. Rolle's dignity as a person. Furthermore, Ms. McElrath used exceedingly poor professional and personal judgment both in spraying Mr. Rolle with pepper spray and in her actions toward Mr. Rolle as he was trying to leave Room 137. The evidence presented by the School Board is not sufficient, however, to establish that Ms. McElrath failed to sustain the highest degree of ethical conduct, that she interfered with Mr. Rolle's exercise of his political and civil rights, or that she used coercion to influence Mr. Rolle's professional judgment. Having considered all of the evidence presented on which findings of fact can be based, the undersigned finds that Ms. McElrath's actions with respect to Mr. Rolle were so serious that they impair her effectiveness in the school system. In making this finding, the undersigned is mindful that, based on the record herein, during her tenure as a teacher in the Miami- Dade County public schools, Ms. McElrath has not been the subject of any other disciplinary action and that she has consistently received "acceptable" annual evaluations, the highest overall rating a teacher in the Miami-Dade County school system may earn. Nonetheless, the lack of control Ms. McElrath exhibited in her behavior towards Mr. Rolle raises serious and disturbing questions regarding her ability to resolve in a reasonable manner those frustrating situations that sometimes occur when one works with busy colleagues, her ability to respond in an appropriate manner to the stresses of classroom teaching, and her ability to appreciate the consequences of her actions. Without question, the act of spraying someone in the face with pepper spray is an act of violence that, the evidence herein establishes, took place at Miami Jackson, the public school in which Ms. McElrath worked as a teacher. The greater weight of the evidence is sufficient to establish that Mr. Rolle pushed Ms. McElrath aside as he was moving to open the door to leave Room 137, but Ms. McElrath testified that Mr. Rolle's "shove" did not harm her but merely startled her and did not precipitate her action in spraying Mr. Rolle with the pepper spray. Rather, Ms. McElrath asserts that she took this action in response to Mr. Rolle's moving his hands upward to grab her throat. Having carefully considered all of the evidence on which findings of fact can be based, the undersigned finds that Ms. McElrath did not have a reasonable basis for believing that Mr. Rolle was about to attack and choke her. It is notable in this regard that, as far as can be discerned from the record herein, Ms. McElrath did not, as one would expect, immediately explain her action as self-defense but, rather, waited approximately five months before presenting this justification to the School Board. The testimony of Andrea Zuniga, the only witness who corroborated Ms. McElrath's claim that Mr. Rolle was moving his hands up to grab her throat, has been considered and found not sufficiently persuasive to outweigh the testimony of Ms. Jean-Baptiste, Diane McKnight, and Mercedes Thompson that they saw no such action by Mr. Rolle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Mary Jane McElrath without pay be sustained and that her employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 3rd day of August, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2001.
Findings Of Fact At the administrative hearing which was scheduled for the time and place shown above, Mr. Carlos Viciedo, Sr., father of the minor student named as Respondent herein, announced that his son, Carlos Viciedo, Jr., had been moved to Los Angeles, California, by his Mother. The student, Carlos Viciedo, Jr., has been enrolled in the school system of Los Angeles, and removed from the Dade County School system. The principal at South Miami Junior High School where Carlos Viciedo, Jr., was enrolled prior to the transfer to Douglas MacArthur Senior High School -- South, verified that papers have been received from the Los Angeles, California, school system to demonstrate that the student has requested a transfer from the schools in Dade County to the schools in Los Angeles. Mr. Carlos Viciedo, Sr., plans to join his family in Los Angeles, and the enrollment of his son in the school system there is permanent.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County dismiss the proceeding it initiated to effect a transfer of the Respondent, Carlos Viciedo, Jr., from South Miami Junior High School to the Alternative Education Program at Douglas MacArthur Senior High School -- South. THIS RECOMMENDED ORDER entered on this 17th day of February, 1983. 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 17th day of February, 1983. COPIES FURNISHED: Michael J. Neimand, Esquire Suite 300 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Carlos Viciedo, Sr. 1122 Southwest 134th Place Miami, Florida 33183 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public School 1410 Northeast 2nd Avenue Miami, Florida 33132 Dade County School Board 1410 Northeast 2nd Avenue Miami, Florida 33132
Findings Of Fact Respondent was an employee of the School Board of Dade County, Florida, more particularly a Title One teacher at Miami Carol City Senior High School during the 1981-1982 school year. On May 6, 1982, John Cohn was a student in Respondent's fourth period class. Arnold Coats was a substitute teacher working with Respondent in Respondent's classroom on that day. After Respondent had given the students an assignment, Cohn requested and received permission to leave the classroom to go to the bathroom. While absent from the classroom, Cohn decided he wished to speak with Ronald Golemhieski, another teacher at Miami Carol City Senior High School. Cohn returned to Respondent's classroom to request permission. Coats came to the door and gave Cohn permission to go talk to Golembieski, but Cohn decided he should get permission from Respondent since Respondent was the teacher of the class. Cohn waited in the doorway of Respondent's classroom. When he finally got Respondent's attention, he beckoned with his finger, requesting Respondent to come to the doorway. Respondent went to the doorway, and Cohn requested Respondent's permission to go talk to Golembieski. Respondent grabbed Cohn, pulling him forcefully into the classroom. Commotion broke out in the classroom, and someone yelled for assistance. Golembieski heard the commotion, as did Victoria Bell, the hall monitor. When they arrived at Respondent's classroom, Respondent and Cohn were struggling with each other. They were face to face, and Respondent had his arm around Cohn's neck with his hand on Cohn's throat in a choking manner. Golembieski grabbed Cohn away from Respondent and, after separating them, took Cohn to his classroom to calm him down. Bell and Coats pushed the rest of the students back into their seats and restored order in Respondent's classroom. When the altercation ended, Cohn's shirt was torn and he had scratches on his chest. Just prior to Respondent's outburst, Cohn did nothing to provoke Respondent in any way and was not disrespectful to Respondent. When Cohn got Respondent's attention, Respondent both looked at Cohn and walked to the doorway in a normal manner, thereby giving no warning that he intended to touch Cohn in any way. Respondent interpreted Cohn's beckoning with his finger as an invitation to fight, although Respondent admits that Cohn said nothing to him indicating that he wished to fight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Notice of Charges, approving Respondent's suspension and dismissing him as an employee of the School Board of Dade County, and denying any claim for back pay. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
The Issue The issue presented is whether Respondent is guilty of the allegations contained within the Amended Notice of Specific Charges, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact The School Board finds that the contents of the student's notebook constituted "abnormal" activity within the parameters outlined in Respondent's training sessions and therefore, the Respondent should have reported the discovery of the notebook to an administrator. (T-37, 38, 39, 42, 43). The School Board finds that Respondent had an affirmative duty to report his contact with the student and that Respondent was aware of this duty via training sessions that he attended. (T-43, 45). The School Board finds that Respondent's actions in telephoning the student constituted poor judgement. (T-34, 38, 39, 40). The School Board finds that the Respondent's act of showing the notebook to his fellow security monitors constituted poor judgement which did not reflect credit upon himself. MODIFICATIONS TO HEARING OFFICER'S CONCLUSIONS OF LAW The Hearing Officer, in her Conclusions of Law, paragraph 13, found that Respondent had no duty to report his contact with the student to his immediate supervisor. Based upon a review of the entire proceedings, the Board concludes that the Hearing Officer was in error regarding Respondent's duty to report. The Board finds that Respondent's contact with the student was of a sufficiently serious nature as to place upon him an affirmative duty to report these incidents to his immediate supervisor. (T-31, 32, 34, 37, 42, 43, 45, 46). Pursuant to School Board Rule 6Gx13-4A-1.21(1), all persons employed by The School Beard of Dade County, Florida are representatives of the School Board. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. The above-referenced actions by the employee did not reflect credit upon himself and, therefore, constitutes conduct unbecoming a School Board employee. IT IS FURTHER ORDERED AND ADJUDGED, that the School Board, based on Respondent's conduct in telephoning the student, visiting the student's home, showing the diary to other security monitors, and failing to report the student's conduct to an administrator, modifies the Hearing Officer's Recommended Order and dismisses the Respondent from all employment with the School Board, based upon poor judgement which did not reflect credit upon himself, and therefore constitute conduct unbecoming a School Board employee. The Respondent's actions violate School Board Rule 6Gx13-4A-1.21. DONE AND ORDERED this 5th day of January 1994. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA Betsy H. Kaplan, Chairperson ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, 1994 BERNARD PEART, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED. vs. THE SCHOOL BOARD OF DADE DOAH CASE NO. 93-2424 COUNTY, FLORIDA, CASE NO. 94-115 Appellee. / Opinion filed June 7, 1994. An Appeal from the School Board of Dade County, Florida. Du Fresne and Bradley, and William Du Fresne, for appellant. Gerald A. Williams, for appellee. Before BARKDUFF, JORGENSON, and GERSTEN, JJ. PER CURIAM. Affirmd. S 120.57(1)(b)10, Fla. Stat. (1993); Reese v. Department of Professional Regulation, 471 So. 2d 601, 603 (Fla. 1st DCA 1985); Ford v. Bay County Sch. Bd., 246 So. 2d 119, 121- 22 (Fla. 1st DCA 1970).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained within the Amended Notice of Specific Charges filed against him in this cause and reinstating Respondent to his position as a school monitor with full back pay. DONE and ENTERED this 18th day of November, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 18th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2424 Petitioner's proposed findings of fact numbered 2-8 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 9-16 have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's proposed finding of fact numbered 1 has been accepted in substance in this Recommended Order. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Gerald A. Williams, Esquire Mack and Bernstein 1450 North East 2nd Avenue, Suite 562 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley 2929 South West Third Avenue Miami, Florida 33129
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent has been a mathematics teacher at Miami Killian Senior High School for the last 27 years. For the last 15 years he has tutored students in math for a fee. During the 1991-92 and 1992-93 school years, he tutored Beth Sullivan, a student attending a different school than Killian. During the summer of 1993, Beth's mother contacted Respondent and inquired about the math courses Beth could take when she started the 11th grade at Killian that fall. They discussed the options. Respondent advised her that if Beth took analytical trigonometry, Respondent could tutor her for a fee. However, if Beth took Respondent's pre-calculus course, Respondent could not tutor her for a fee. Beth enrolled in his pre-calculus class and was Respondent's student during the 1993-94 school year. When she encountered difficulty, Respondent told her to come to the public library where he tutored students and, if she would help him by grading papers for him, he would help her with her math while he was working with his paying students. She did, and he did. During the 1993-94 school year, Mrs. Sullivan did not give Respondent money for tutoring Beth. She did, however, give Beth $35 in cash to give to Respondent each time Beth went to the library for tutoring. During the 1987-88 school year, Ganene Cooper was a student in Respondent's Algebra II class. She was a senior in high school at the time. Ganene was a "B" student during the first semester of Algebra II. However, her grades "deteriorated" during the second semester. Respondent asked Ganene why her grades were falling, and she told him she had problems at home with additional responsibilities which prevented her from studying. He suggested that she come to his classroom during the lunch period when he assisted students who needed help in math. Although she began attending the lunch study sessions almost daily, she did not actively participate and did not ask questions. She started coming to the library where Respondent was tutoring, sometimes just walking past the room he used for his tutoring sessions and sometimes telling him that she needed to talk to him, which he was unable to do since he was busy tutoring. After her graduation in June 1988, she continued to come to the library where Respondent tutored, and she began appearing unannounced and uninvited at his apartment. In August 1988 Respondent and Ganene began engaging in sexual activity in his apartment and in her car. After a month or so, Respondent insisted their relationship was over, but Ganene wanted it to continue. She threatened to go to his principal if he refused to see her. She told him she was pregnant although she was not. She called every night. If Respondent would not talk to her, she showed up at his apartment and knocked on the door for hours. She came to the school to see him. She obtained Respondent's ex- wife's home address from her place of employment and drove by Respondent's ex-wife's home a number of times. She told Respondent's ex-wife about Ganene's relationship with Respondent. She wrote a note threatening his job and other forms of "payback". When she came to the school to see him, he told her to leave. He went with her to see her psychologist twice. He contacted Ganene's family to enlist their aid. Her grandmother came to Respondent's apartment to pick up Ganene when Respondent telephoned her to say Ganene was at his apartment and would not leave. In July 1989, Ganene called a crisis intervention service and threatened to kill herself because Respondent did not want to see her. Dade County Public Schools conducted an investigation into her allegations. After that, Respondent continued to insist to Ganene that he had no reason to speak with her now that everything was public. Yet, she continued to come to the school, asking him to speak to her, and continued to call his home and come to his apartment trying to see him. In October or November 1989 Ganene came to Respondent's apartment. Respondent called the police who came and arrested Ganene. She was sentenced to six months' probation and ordered to stay away from Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 17th day of October, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1997. COPIES FURNISHED: Bruce P. Taylor, Esquire 501 First Avenue, Suite 600 St. Petersburg, Florida 33701 Patricia M. Kennedy, Esquire United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 8 Tallahassee, Florida 32399-0400
