The Issue Whether Respondent, a teacher, committed the violations alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent has held Florida Teaching Certificate 720034 at all times material to this proceeding. His certificate covers the area of sociology and is valid through June 30, 2002. The Broward County School Board (School Board) employed Respondent as a classroom teacher pursuant to a professional service contract at all times material to this proceeding. Respondent began his employment with the School Board on February 14, 1992. On March 8, 1999, Respondent was placed on administrative leave. On July 20, 1999, the School Board suspended Respondent's employment without pay. On August 17, 1999, Respondent requested a formal administrative hearing, and the matter was referred to DOAH. Petitioner offered no evidence as to the outcome of the DOAH proceeding or as to Respondent's current employment status with the School Board. 1/ Respondent's first teaching assignment was at Apollo Middle School, a public school in Broward County, where he taught for three years. His performance was evaluated several times during his tenure at Apollo. Each evaluator found Respondent to need improvement in the area of classroom management. Respondent was transferred to Attucks Middle School, a public school in Broward County, where he was working during the 1998-99 school year. Respondent's assignment for that school year was to teach a class of seventh-grade students who had behavioral problems in other settings. Respondent, a former college and professional basketball player who is approximately 6'7" tall, believed he was given that assignment, in part, because his stature would intimidate the students in that class. On or about November 25, 1998, D. S., a male student in Respondent's class, was misbehaving. Respondent chased D. S. around the classroom, shoved him into a wall, and physically threw him out of the classroom. During the 1998-99 school year, Respondent encouraged the students in his class to settle their differences by fighting, using the expression "fight till you die, death row." He also permitted the students in his class to gamble by flipping coins and playing cards. On or about March 8, 1999, Respondent was placed on administrative leave by the School Board. While on administrative leave, Respondent worked as a counselor for an after-school program located at the Whiddon-Rogers Education Center (Whiddon-Rogers). The City of Fort Lauderdale administered that after-school program and employed the staff for the program. The City of Fort Lauderdale employed Respondent while he worked for the after-school program. K. F. J. is a married female. At all times material to this proceeding, K. F. J. was dually employed as a counselor at Whiddon-Rogers and as a teacher's assistant. The School Board employed K. F. J. during the part of the day that she worked as a teacher's assistant. The City of Fort Lauderdale employed K. F. J. during the part of the day that she worked at the after-school program. K. F. J. testified that her duties as a counselor at Whiddon-Rogers were ". . . to play with the kids with different recreations [sic], ping pong, volleyball, basketball, different games, stuff like that." The after-school program at Whiddon- Rogers was a child care program. Petitioner failed to establish that the after-school program was an educational activity. While he was employed at Whiddon-Rogers, Respondent repeatedly sexually harassed K. F. J. This behavior regularly consisted of unsolicited sexual advances and offensive behavior implying Respondent's sexual desires. K. F. J. emphatically rebuffed Respondent's advances. Respondent created a hostile, intimidating, abusive, offensive, or oppressive environment for K. F. J., who was justifiably afraid of Respondent. On April 28, 1999, Respondent made sexually inappropriate comments to K. F. J., asking her to give her a hug and to let him grab her "ass." K. F. J. became very angry and an argument ensued. Respondent made vague threats against K. F. J. and her husband. C. C., a seventeen-year-old male student, interceded between Respondent and K. F. J., telling Respondent to leave her alone. James Parrish was the head custodian at Whiddon-Rogers in April 1999. Mr. Parrish heard the verbal exchanges between Respondent and K. F. J., and he saw C. C. intercede between the two of them. Later that afternoon, Respondent came to believe that C. C. had punctured a tire on Respondent's automobile. Respondent saw C. C. leaving Whiddon-Rogers and ran after him. Mr. Parrish and a male counselor named Dennis ran after Respondent. Respondent caught C. C., grabbed him by the neck, and was about to strike C. C. when Mr. Parrish and Dennis physically restrained Respondent. Petitioner filed the Administrative Complaint that underpins this proceeding on July 20, 2000. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law set forth herein. The final order should revoke Respondent's teaching certificate. DONE AND ENTERED this 6th day of September, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of September, 2001.
The Issue The issue in this case is whether a veteran teacher should be dismissed for having drawn and displayed a kitchen knife while quieting a noisy class.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. As of the final hearing, Respondent Lynn Deering ("Deering") had been a teacher for about 34 years. She holds a certificate to teach in Florida. During the 2004-05 school year, Deering was employed as a science teacher at Marjory Stoneman Douglas High School, which is a public school in Broward County. For reasons that will soon be apparent, it is pertinent to note that Deering contracted polio at a young age and as an adult has suffered from post-polio syndrome. As a result of these illnesses, Deering's upper-body is weak, the range of motion of her upper extremities is limited, and she has little grip strength in her right hand, which is dominant. Since 1985, Deering has been confined to a wheelchair.1 The incident giving rise to this case occurred on March 2, 2005. When the bell rang that day to start Deering's sixth period anatomy and physiology class, the students were excited and talkative. As was her practice, Deering raised her hand to signal that she was ready to begin teaching; this gesture usually quieted the class. This time, however, the students continued to talk, and the classroom was noisy——too noisy for Deering to be heard. So Deering, who was sitting (in her wheelchair) in front of a demonstration table located at the head of the classroom, hitched up her right shoulder, reached back behind her body, and grabbed a utensil from the top of the table. She then used the utensil to tap on a glass beaker——which was filled with water and flowers——to get the students' attention. The "utensil" in question happened to be a knife. It was a chef's knife,2 bearing the Chefmate™ brand on its blade. Measured from butt to point, the knife was approximately 10 and one-half inches long. From heel to point, the blade was roughly five and three-quarters inches in length; it was no wider than about three-quarters of an inch from edge to spine. The knife was in Deering's classroom at the time because she had been using it to slice flowers and potatoes for demonstrations in her biology class.3 Upon hearing the distinctive "tap, tap, tap" of blade on beaker, most of the students stopped talking. Some in the back of the room, however, perhaps being out of earshot, continued to converse. Two were especially oblivious. Presently, Deering wheeled over to their lab table, still holding the knife in her right hand, between her thumb and fingers. When she reached the students' table, Deering turned the knife over in her hand, so that the point was down and the edge faced away from the students (toward Deering herself). Deering leaned over the table, in front of the where the two students were sitting, raised the knife an inch or two above a couple of sheets of paper that were lying on the tabletop, and, loosening her grip, let gravity pull the knife down between her fingers.4 Driven by the knife's own weight, the point punched through the papers, leaving small slits in them, and scratched the surface of the tabletop. Now gripping the knife's handle more tightly (for had she let go the knife would have fallen), Deering said, "Hello!"——which she pronounced "Heh-LOW!"——"Do I have your attention?" She did. The students stopped talking. Some were startled or frightened; others were amused or nonplussed. None, however, reacted as one might when facing a genuine threat of harm, e.g. by screaming or fleeing. As she returned to the front of the classroom, Deering joked, "Don't mess with a postmenopausal woman . . . with a knife!" This was meant to be humorous and was not uttered in a threatening tone of voice. Following this incident, Deering taught her lesson as usual, and the class unfolded in routine fashion. Her use of the knife, in other words, produced no discernible immediate fallout. At least a few students, however, were sufficiently upset by Deering's conduct to report the matter to the administration, and they did.5 The students' report not only set in motion an internal investigation, but also prompted the administration to call the police. Somehow, as well, the incident rapidly made its way into the local news. At least one local TV station aired a brief, 35-second story on the incident, which was short on facts, long on sensationalism, and notably unbalanced, in that Deering's side was not shown. The undersigned cannot comment on the contents or accuracy of other media reports, for they are not in evidence. In due course, the Broward County Sheriff's Office commenced an investigation that brought forth a criminal charge against Deering, who found herself accused of having improperly exhibited a dangerous weapon. The crime of improper exhibition, which is a misdemeanor, is defined in Section 790.10, Florida Statutes, as follows: If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self- defense, the person so offending shall be guilty of a misdemeanor of the first degree[.] Deering ultimately pleaded no contest to the criminal charge and was sentenced by the county court to three months' probation and a $30 fine. Meantime, the School Board decided that Deering should be fired, voting at its regular meeting on August 2, 2005, to accept the superintendent's recommendation that she be suspended without pay pending termination of employment. Following her suspension, Deering accepted a teaching position at the Upper Room Christian Academy, where she was working as a science and math teacher at the time of the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Deering without pay pending dismissal and (b) awarding Deering the back salary, plus benefits, that accrued during the administrative proceedings, together with interest thereon at the statutory rate. DONE AND ENTERED this 31st day of July, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 July, 2006.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent from his employment contract.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control and supervise the public schools within Manatee County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22 (1)(f), Fla. Stat. At all times relevant to this proceeding, Respondent was employed by the School District. Mr. Gagnon has been in the education field for approximately 23 years, and has been with the School District since 2002. Mr. Gagnon served as an assistant principal at Lakewood Ranch High School and as principal at Palmetto High School, both of which are in Manatee County. Mr. Gagnon was the principal at MHS beginning with the 2007-2008 school year. Mr. Gagnon served as the MHS principal until he transitioned to the position of assistant superintendent for Curriculum and Instruction for the School District in January 2012. Mr. Gagnon served as the interim superintendent for approximately one month in September/October 2012 and then returned to the assistant superintendent position when another person was appointed interim superintendent. In 2005 the School District posted a position for a specialist in the OPS to investigate alleged School District employee misconduct. The then superintendent wanted to establish a standardized method of investigating employee misconduct. Ms. Horne interviewed for the position, and was appointed as the first OPS specialist. As there were no School District policies or rules in place when she started, Ms. Horne assisted in writing the School District’s OPS policies. Sections 39.201 and 39.202, Florida Statutes, are incorporated into the School District’s policies and procedures as Policy 5.2(1), Policies and Procedures Manual, School Board of Manatee County (2013), which provides: Mandatory Duty to Report Suspected Child Abuse. All employees or agents of the district school board who have reasonable cause to suspect abuse have an affirmative duty to report it. Employees or agents so reporting have immunity from liability if they report such cases in good faith. This includes suspected child abuse of a student by an employee. Ms. Horne provided the training on this policy and other policies to School District employees. As the OPS investigator, Ms. Horne was to “investigate alleged employee misconduct and other matters as assigned” to her by her supervisor. Ms. Horne never had the authority to determine whether or not someone had engaged in misconduct or to make any recommendations as to what may or may not have happened. Her role was to simply gather the information, prepare a report of her findings, and provide that report to her supervisor. In November 2012, Mr. Martin was the School District’s assistant superintendent for District Support, and Ms. Horne’s direct supervisor. During her eight-year tenure as the OPS specialist, Ms. Horne investigated over 800 cases of employee misconduct. The School District uses a progressive discipline model for its employees. Should an employee exhibit behaviors that could be considered inappropriate or misconduct, the School District has a step-by-step method of taking disciplinary action, from simply talking with the employee up to termination of employment. If it is an egregious action, such as sexual conduct with a student, immediate termination is an option. The discipline begins on-site by the site-based managers where the incident occurs. Those site-based managers could have that simple conversation, and if need be, it could progress to a verbal directive, a memorandum of conference, and/or a written reprimand. Site-based managers include principals, assistant principals, directors, and assistant directors.3/ In those instances where the disciplinary action could lead to days without pay or termination, actions that could only be taken by the School Board, OPS would open an investigation. During the first two weeks of November 2012, Mr. Rinder was approached by several MHS teachers regarding concerns for their students. When Mr. Rinder spoke with Mr. Sauer, MHS’s principal, about those concerns, Mr. Sauer asked Mr. Rinder to type up the list (Rinder’s List) and give it to Mr. Sauer. Mr. Sauer, in turn, forwarded Rinder’s List to the OPS. Rinder’s List: [1.] One staff member reported a phone call to a female student during class. The student was upset by the call and told the staff member that Mr. Frazier had asked her if “she had gotten her period and did she need him to go to the drug store for her.” [2.] One staff member reported that Mr. Frazier repeatedly called for a female student during class. When asked if it was important, Mr. Frazier said “yes”. [sic] When the staff member asked the student what the problem was, the answer was “My mom wanted to take me to lunch and he helped me do it”. [sic] [3.] Male student was failing a core class. He told the teacher that “Frazier told me that he will change the grade”. [sic] [4.] A female student was observed getting into Mr. Frazier’s vehicle after school hours and was transported. [5.] Female student told a staff member that she overheard students talking about several meetings in the park late at night with Mr. Frazier. She stated that Mr. Frazier placed and [sic] empty water bottle between her legs as she was walking down the sidewalk. [6.] Female student was observed sitting on Mr. Frazier’s lap eating cake off his fork. [7.] Female student reported to a staff member that Mr. Frazier made a comment to a student in the hall that he had put her on skype [sic] and she took a picture and has it saved on her cell phone. She is scared that he will retaliate if she tells. [8.] Female student told a staff member that Mr. Frazier had made comments to her at the Tiki Bar that she was old enough to be there and they could talk. When she refused to talk with him, she started having issues with Mr. Frazier at school. She transferred to LIFE program to get out. [9.] Female student was reported to a staff member by several students who stated that she was having a relationship with Mr. Frazier. She transferred schools. This conversation was overheard by two teachers in the hall. [10.] The Math Department this week was discussing Mr. Fraziers [sic] questionable activities. Upon receipt of Rinder’s List, Ms. Horne was directed to open an investigation into the allegations contained therein. The subject of the investigation was an MHS parent liaison4/ and assistant football coach named Roderick Frazier. In a very general sense, the allegations involved misconduct by a teacher. Rinder’s List initiated the Frazier investigation. However, Rinder’s List contains blatant hearsay which cannot form the basis for a finding of fact without corroboration. There was no testimony provided by any students mentioned in items 2, 3, 5 (first sentence), 7, 8, or 9 above; hence, it is impossible to verify what occurred. Item 10 merely indicates that an entire department at MHS discussed “questionable activities” by an individual, but it provides no specific activities. There was no credible, non-hearsay evidence in this record to substantiate any of these allegations (items 2, 3, 5 (first sentence), 7, 8, 9 or 10). On November 14, 2012, an email with an attached letter from then-Superintendent David Gayler, was sent to Mr. Sauer around 8:40 p.m., advising him that Mr. Frazier was to be placed on paid administrative leave (PAL) on Thursday, November 15. Mr. Sauer notified Mr. Frazier appropriately. The School Board’s policy regarding placing an employee on PAL is dependent upon whether there is a potential for harm to any student and/or the employee could incur a suspension or termination from employment. Due to an on-going investigation at a different school, Ms. Horne did not arrive at MHS to begin the investigation until the afternoon of Thursday, November 15. Ms. Horne first interviewed Mr. Rinder, as Rinder’s List did not contain any names of teachers or students who were allegedly involved. Upon obtaining the names of the teachers who had expressed concerns, Ms. Horne interviewed most of the teachers on November 15. By the time Ms. Horne completed her teacher interviews, the students had been dismissed from school and were no longer available. At some time, Mr. Rinder observed a female student getting into Mr. Frazier’s car after school (Rinder’s List, Item 4). Mr. Rinder was not alarmed by this sight, but merely thought it was Mr. Fazier’s son’s girlfriend getting a ride. There was no testimony that Mr. Rinder ever brought this information to Mr. Gagnon’s attention. Ms. Aragon brought two concerns about Mr. Frazier to Respondent’s attention: 1) she thought that girls were sitting too close to Mr. Frazier in golf carts at MHS; and 2) Mr. Frazier had called her classroom telephone to talk with a female student. Neither Ms. Aragon nor Mr. Gagnon were absolutely certain as to when these concerns were brought to Mr. Gagnon’s attention: Ms. Aragon thought they were brought to his attention during one conversation, and Mr. Gagnon thought there were two separate conversations approximately a year apart, based on the actions that he took to address them. Mr. Gagnon’s testimony is more credible. Upon being told of the golf cart issue, Respondent immediately went to the MHS courtyard and observed Mr. Frazier with a female student sitting in his golf cart. At the same time, Respondent observed two other assistant principals with students of the opposite sex sitting in their golf carts. Respondent addressed Mr. Frazier first, and then issued a directive to his discipline staff that no one was to allow a student to just sit in a golf cart. Respondent directed that if there was a legitimate reason to transport a student, that was fine, but students were no longer to just sit in the golf cart. With respect to the telephone incident (Rinder’s List Item 1), Mr. Frazier called Ms. Aragon’s classroom and bullied his way to speak with the female student. After the student hung up the phone with Mr. Frazier, she appeared to be upset. Ms. Aragon immediately questioned the student, and Ms. Aragon understood that Mr. Frazier had inquired about the student’s menstrual cycle. Ms. Aragon thought it was “inappropriate” for Mr. Frazier to be speaking with a female student about her menstrual cycle, but Ms. Aragon testified that she did not know if the conversation impacted the student’s day. Ms. Aragon was not privy to the actual conversation between the student and Mr. Frazier, and the student with whom the conversation was held did not testify. The actual telephone conversation is hearsay. Ms. Aragon sought guidance from the teacher’s union president as to what to do. When Ms. Aragon spoke with Mr. Gagnon about Mr. Frazier’s telephone call, Mr. Gagnon immediately turned the issue over to an assistant principal for investigation. Based on the report from the assistant principal, Mr. Gagnon was not concerned that anything inappropriate or sexual was happening.5/ At some point in time, Ms. Coates overheard two female students comment about Mr. Frazier. Although Ms. Coates asked the students to tell her directly the basis for their comment, the students declined. (Neither student testified at hearing.) Shortly thereafter, Ms. Coates told Respondent the students’ comment. Ms. Coates heard Mr. Gagnon respond that something was going around on Facebook. Mr. Gagnon did not remember Ms. Coates telling him of the students’ comment. However, Mr. Gagnon routinely reviewed the disciplinary records for the three parent liaisons and was satisfied that Mr. Frazier was not showing favoritism in his discipline to one group of students over another. It is not uncommon for students to perceive that a teacher is showing favoritism towards a student or group of students. At the conclusion of the teacher interviews on November 15, Ms. Horne understood that the allegations had occurred a year or two before they were reported in Rinder’s List. This thought process was reinforced when Ms. Horne met with some of the MHS administrators in Mr. Sauer’s office where they had a telephone conference with Mr. Martin. Following the telephone conference, Ms. Horne returned to the School District’s main office and again conferred with Mr. Martin for directions. On November 15 or 16, 2012, Ms. Horne had a brief conversation with Mr. Gagnon at the School Board building. Mr. Gagnon asked about the Frazier investigation. Ms. Horne responded that the only issues she was hearing had previously been addressed, and that Ms. Horne would be returning for other interviews. Additionally, Mr. Martin had a brief conversation with Mr. Gagnon about the Rinder List allegations. Mr. Gagnon maintained that the allegations were old and had been dealt with appropriately. Ms. Horne shared with Mr. Martin that the Rinder List allegations were old and had been dealt with previously. Based on this information, Mr. Martin, in his sole discretion, determined to remove Mr. Frazier from PAL on November 16, 2012, and return him to work. Ms. Horne was surprised by this, as her investigation was incomplete. Ms. Horne interviewed Mr. Frazier as well as one other teacher, on November 16, 2012. Although Ms. Horne had the name of an alleged victim, Mr. Martin directed her not to interview that student at that time. In January 2013, a former MHS female student, D.K., wrote a letter to MHS alleging that Mr. Frazier did various inappropriate acts towards her while she was a student at MHS during the 2010-2011 and 2011-2012 school years. In her letter, D.K. stated that she became close to Mr. Frazier during her two years at MHS. D.K. met Mr. Frazier at a park near her home, but during her second year at MHS (2011-2012), Mr. Frazier “started being weird with [her] and saying inappropriate things to” her. D.K. admitted that she frequently rode in Mr. Frazier’s golf cart around the school, and that Mr. Frazier put a water bottle (Rinder’s List Item 5, second sentence) in between her legs (between her knees and crotch) as they were sitting in the bleachers at the softball field and while sitting in a golf cart. D.K. came forward with the letter because she had heard of the Frazier investigation and that it was being closed. Several days after D.K.’s letter was received in OPS, Ms. Horne interviewed D.K., who was accompanied by her mother. Ms. Horne was unable to confirm D.K.’s credibility completely because Ms. Horne left OPS prior to the conclusion of the Frazier investigation. The most disturbing part of D.K.’s testimony came when D.K. admitted, and Ms. Peebles confirmed, that during the 2010- 2011 school year, Ms. Peebles walked into Mr. Frazier’s office unannounced and observed D.K. sitting on Mr. Frazier’s lap holding a piece of cake (Rinder’s List Item 6). Ms. Peebles immediately instructed D.K. to get off Mr. Frazier’s lap and to sit in a chair on the other side of his desk. Mr. Frazier appeared to be unfazed by Ms. Peebles entering his office unannounced and witnessing this scene. Mr. Frazier proceeded to handle the disciplinary matter that Ms. Peebles had brought to him. Ms. Peebles reported the observation to an assistant principal, Matthew Kane, but not to Respondent. Ms. Peebles did not believe there was abuse on-going, but thought it was “not appropriate” for Mr. Frazier to have a student sitting on his lap. D.K. testified that “after he [Mr. Frazier] got in trouble he started getting me [D.K.] in trouble for things that I had been getting away with the whole time I was there [at MHS].” D.K. did not provide a time-frame or what “trouble” Mr. Frazier had gotten her into while D.K. was at MHS, and no evidence was provided otherwise. Further, D.K. never told Mr. Gagnon of any issues involving Mr. Frazier. D.K. was enrolled at a different local high school when Mr. Frazier was placed on PAL. Ms. Peebles relayed another issue regarding Mr. Frazier; however, it involved hearsay and was not corroborated by the student who initially reported the issue to Ms. Peebles. The absence of direct, non-hearsay testimony precludes a finding of fact as to that issue. In late January 2013, Ms. Horne transferred to an assistant principal position at a school district elementary school. Both Ms. Horne and Mr. Martin confirmed that the Frazier investigation had not been completed when Ms. Horne left OPS. Ms. Horne had not submitted a written report to her supervisor which would have signaled the completion of the Frazier investigation. The specialist position in OPS remained vacant until July 2013 when Mr. Pumphrey assumed the position. Mr. Pumphrey confirmed that there “had been an ongoing investigation both at the School District level and law enforcement surrounding Rod Frazier.” In an effort to gain speed in his investigation, Mr. Pumphrey reviewed the Frazier investigation file and became aware that the School District “had stalled their investigation pending the outcome of the criminal investigation.” Mr. Pumphrey reviewed Mr. Frazier’s personnel file and determined there was “no documentation of any discipline to Mr. Frazier.” Additionally, Mr. Pumphrey pulled all the published information including media accounts and police reports, and reviewed them. As Mr. Martin had been instrumental in hiring Mr. Pumphrey, the two spoke several times “because this thing [the Frazier investigation] was all over the place.” Several days after re-starting the Frazier investigation, Mr. Pumphrey expressed to the superintendent his concern about the close proximity of Mr. Pumphrey’s office to that of Mr. Gagnon and requested that Mr. Gagnon6/ be placed on PAL. The superintendent did so. During the course of the Frazier investigation, Mr. Pumphrey considered that Mr. Gagnon’s actions or inactions during the course of the Frazier investigation constituted “administrative negligence and/or intentional misconduct.” Mr. Pumphrey broadened the Frazier investigation to determine whether district administrators “had prior knowledge of complaints by female students and faculty regarding inappropriate conduct involving Frazier and, if so, why the complaints were not timely addressed.” There is no credible, non-hearsay evidence in the record to substantiate that Mr. Gagnon failed to investigate or report inappropriate conduct by a faculty member. When apprised of questionable or suspect conduct, Mr. Gagnon took the steps necessary to inquire. The absence of direct, non-hearsay testimony precludes a finding that Mr. Gagnon acted in the fashion alleged in the administrative complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 30th day of June, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 June, 2014.
The Issue This is a case in which the Petitioner seeks to suspend and terminate the Respondent's employment on the basis of allegations of misconduct set forth in a Notice of Specific Charges. The allegations of misconduct charge the Respondent with immorality, misconduct in office, and gross insubordination.
Findings Of Fact At all times material to this proceeding, the Respondent, Chico J. Arenas, was employed as a teacher by the Dade County Public Schools pursuant to a professional services contract. At the time of the hearing in this case, K. F. was a fifteen-year-old student in the 10th grade. She is a former student of the Respondent. At the time of the hearing, E. W. was a fifteen-year-old student in the 10th grade. She is also a former student of the Respondent. Both K. F. and E. W. are females. Shortly after Halloween in 1990, one day when the Respondent and K. F. were alone in a classroom, the Respondent asked K. F. whether a male student named M. was "getting action." At that time M. was a close friend of K. F. The term "getting action" was a reference to sexual intercourse. When K. F. answered the question in the negative, the Respondent repeated the question and also made statements to the effect of, "M. is lucky," that he had "heard Jamaicans are wicked in bed," and that "older guys will show you more." The Respondent also told K. F. that she made him "excited." K. F. construed these statements as being sexual in nature. As a result of these statements by the Respondent, K. F. lost the trust she had in her teacher and never went back to his class. The incident involving K. F. resulted in the Respondent being made formally aware of the School Board's policies with regard to inappropriate statements to female students containing expressed or implied sexual references and the Respondent was specifically directed to avoid sexual harassment of female students. Beginning in February of 1992, on three separate Saturdays, at approximately 11:00 a.m. on each of those days, the Respondent telephoned E. W. at her home. At that time E. W. was one of the Respondent's students. On each of those occasions the Respondent's statements to E. W. were of a personal nature and had nothing to do with the fulfillment of Respondent's duties as a teacher. On the first of the three telephone calls to E. W., the Respondent identified himself, but there was very little other conversation. Shortly after the Respondent identified himself to her, E. W. told him that she was doing something and asked if he could call back later. During the course of the second telephone call, the Respondent made statements to E. W. to the effect that he "liked" her and that he had "feelings" for her. The Respondent also told E. W. that she was "a beautiful young lady" and that she "had a nice shape." After just a few such statements, E. W. told the Respondent to call back later and she hung up. The Respondent's statements during the second telephone conversation led E. W. to believe that the Respondent had a romantic or sexual interest in her. During the course of his third Saturday telephone call to E. W., the Respondent repeated statements to the effect that he liked her, that she had a beautiful shape, and that she was a beautiful young lady. He went on to also tell her such things as that "he wanted to wrap his hands around [her] and hold [her] tight," that "he wanted to give [her] things," that her boyfriend "didn't have to know what was going on," and he also told her "not to tell her mamma [she] was talking to him on the phone." The Respondent also asked E. W. to meet him in the library near her home and to otherwise skip school so that she could be with him. The Respondent also made comments to the effect that he could do more for E. W. than her boyfriend could and that she was "a beautiful young lady, and [she] deserved beautiful things." As a result of the statements during the third Saturday telephone call, E. W. became convinced that the Respondent wanted to have a sexual relationship with her and she began taking steps to avoid the Respondent. As a student, E. W. was doing well in the Respondent's class. If she had had any personal problems that came to the attention of the Respondent, it would have been his responsibility to have referred her to one of the school counsellors. The Respondent is not certified as a counselor or as a psychologist. At the time of the telephone calls to E. W. described above, the Respondent did not have any school related business which required him to call E. W. at home, nor was he trying to reach E. W.'s mother. When the events described above were reported to school officials, the Respondent was removed from a school based employment site and reassigned to work elsewhere. The reassignment and the reasons for it became known to a number of administrators, teachers, parents, and students. The disclosure of information about the matter resulted in part from statements the Respondent made to others. The Respondent's effectiveness as a teacher has been impaired as a result of his conduct with E. W. and his prior principal would be reluctant to rehire him as a teacher. The Respondent's conduct with E. W. also constitutes misconduct in office and is a breach of his professional relationship of trust with students because it exposed a student to embarrassment and disparagement. The Respondent's conduct with E. W. also constitutes immorality.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case concluding that the Respondent is guilty of immorality, misconduct in office, and gross insubordination as charged in the Notice of Specific Charges and, on the basis of those conclusions, terminating the Respondent's employment. DONE AND ENTERED this 10th day of January 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 10th day of January 1994. APPENDIX The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties: Findings of Fact submitted by Petitioner: Paragraphs 1, 2, and 3: Accepted in substance with some details modified in the interest of clarity. Paragraph 4: Rejected as irrelevant because the conduct described here was not charged in the Notice of Specific Charges. Paragraphs 5, 6, 7, the unnumbered paragraphs following 7, 8, and 9: Accepted in substance with some details modified in he interest of clarity and accuracy. Paragraphs 10 and 11: The essence of these paragraphs has been accepted, but most details have been omitted as unnecessary. Findings of Fact submitted by Respondent: By way of clarification, it is noted that the Respondent submitted two post-hearing documents in support of his positions on the issues: one titled RESPONDENT'S MEMORANDUM IN SUPPORT OF HIS PROPOSED ORDER RECOMMENDING REINSTATEMENT, and the other titled RESPONDENT'S PROPOSED FINDINGS OF FACT AND ORDER. The first of these two documents includes an extensive summary of the testimony, which summary has been carefully reviewed by the Hearing Officer. However, because those summaries do not constitute proposed findings of fact, they are not specifically addressed below. Here, as in the usual course of events, it would serve no useful purpose to recite at length the extent to which the summaries are or are not accurate and to do so would add to this Recommended Order voluminous subordinate and unnecessary details; details which have been carefully considered during the fact-finding in this case. Specifically addressed below are the paragraphs contained in the "Findings of Fact" portion of the RESPONDENT'S PROPOSED FINDINGS OF FACT AND ORDER. Paragraphs 1, 2 and 3: Rejected as contrary to the greater weight of the evidence. (This disposition of the proposed findings is, in any event, irrelevant in view of the Hearing Officer's disposition of the immorality charge). Paragraph 4: Rejected as contrary to the greater weight of the evidence. The evidence is sufficient to prove the acts alleged by a preponderance of the evidence. Paragraph 5: Rejected as contrary to the greater weight of the evidence and as constituting a proposed conclusion of law, rather than proposed findings of fact. (On the basis of Johnson v. School Board of Dade County, 578 So.2d 387 (Fla. 3d DCA 1991), the Hearing Officer has reached a conclusion different from the one proposed here.) COPIES FURNISHED: David Rothman, Esquire Thornton, Rothman and Emas, P.A. 200 South Biscayne Boulevard Miami, Florida 33131 James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Dr. Joyce Annunziata, Director Office of Professional Standards Dade County Public Schools 1444 Biscayne Boulevard Miami, Florida 33132 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue #403 Miami, Florida 33132-1308 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33122 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
