The Issue Whether the teaching certificate of Respondent John Eugene Armstrong should be suspended, revoked or annulled.
Findings Of Fact The Petitioner Professional Practices Council seeks to revoke Respondent John Eugene Armstrong's teaching certificate based on a recommendation filed September 20, 1976, by Hugh Ingram, Administrator of the Council. The Council alleges that the Respondent is guilty of gross immorality and that he failed to perform his duties as educator as required by Section 231.09, Florida Statutes. Pursuant to the raising of the issue of fairness and constitutional guarantees by the hearing panel of the Professional Practices Council and without admitting the validity of the issue, the Council relinquished jurisdiction of the cause and requested that jurisdiction be assumed by a Hearing Officer from the Division of Administrative Hearings. The Petition for the Revocation of Teacher's Certificate filed by the Petitioner on October 7, 1976, contended that Respondent John Eugene Armstrong: "1. On August 16, 1967, at 4:00 p.m. made two threatening phone calls to Mr. Claude O. Hilliard, former principal, using pro- fane language; On or about January 14, 1975, made an obscene gesture with his fingers to Linda Rhodes, a student; On or about June 20, 1975, confronted Mrs. Marilyn H. Bagby, Coordinator EMR, in a classroom and made threatening remarks; On or about November 10, 1975, entered the girls' locker room when the girls were dressing out for class as observed by Coach Ruth Stevens and Coach Geraldine Williams; On or about November 10, 1975, in rela- tion to the incident in Number 4, threatened Ms. Ida L. Shellman, Administrative assistant; On or about December 10, 1975, fondled the upper portion of Gwendolyn Lowe's, a student's, body; On January 29, 1976, in the presence of Mr. R. L. Ballew, Director, Area I, made accusations against Mr. Milton Threadcraft, principal, in a threatening manner; On March 3, 1976, struck Lavern White, a student, on or about his neck causing bruises; On March 12, 1976, struck Johnny Hill, a student lacerating his upper lip; The Respondent Armstrong was first employed by the Board of Education in the public schools of Duval County, Florida, in 1952. He holds valid Florida Teaching Certificate Number 401436. In 1973 he was assigned to Northwestern High School to teach industrial arts and was assigned to teach classes of educable mentally retarded (EMR) students. He taught special education industrial arts classes consisting of seventh and eighth grade students. Respondent stated that he had attempted to obtain a transfer from the Northwestern School on a number of occasions both because of dissatisfaction with the facilities and because of harassment he received from the administration. He stated that discipline was a major problem among EMR students. Various witnesses were called to testify and findings in regard to the aforementioned charges are as follows: The charge that Respondent made threatening phone calls to Mr. Claude O. Hilliard, former principal, using profane language was not proved. The charge that Respondent made an obscene gesture with his fingers to Linda Rhodes, a student, was denied by the Respondent who stated that he did not know what an obscene gesture meant. The student testified that he "shot a bird" at her and demonstrated by position of her fingers. She was a member of Respondent Armstrong's class two years ago and was advised by her counselor, Mrs. Shellman, to write out a complaint against Respondent. Upon observing the demeanor of the witnesses, I find the Respondent did make such a gesture to Linda Rhodes, a sixteen year old student. Considering the testimony of the Respondent and of Mrs. Marilyn H. Bagby, the Hearing Officer finds that Respondent was upset and did in fact make remarks to her concerning a report she made subsequent to her observation of Respondent's teaching and room atmosphere which he had not received and that the witness Bagby was in fact frightened by the presence of the Respondent in her room alone, his close proximity and his tone of voice on or about June 20, 1975. She verbally reported the incident to her supervisors and later made a written report of the incident. Respondent testified that if he threatened her he did not recall it. The Respondent admitted that he did in fact enter the girls locker room when the girls were dressing out for class on or about November 10, 1975. The evidence does not show that the entrance into the girls locker room was for an immoral purpose although he knew or should have known he should not have entered when the girls were in various stages of undress. Considering the testimony of the Respondent and Mrs. Ida L. Shellman, Administrative Assistant, concerning the locker room incident, the Hearing Officer finds that by Respondent's presence with his hands in his pockets, his remarks and his general tone of voice, Mrs. Shellman was in fact threatened and frightened. Respondent testified that he did not recall his conversation relative to the incident as being threatening. The charge that on or about December 10, 1975, Respondent fondled the upper portion of Gwendolyn Lowe's, a student's, body was not proven by the evidence. The charge is that on January 29, 1976, in the presence of R. L. Ballew, Director, Area I, Respondent made accusations against Mr. Milton Threadcraft, the principal, in a threatening manner. The testimony of Mr. Threadcraft is believable when he testified that Respondent accused him of being incompetent and said that he, Respondent, was not going to put up with it. The remarks of Respondent were subsequent to a commotion in the school room in which wood was being thrown about and the Respondent had taken a student by the arms to discipline him. The principal, Threadcraft, was called by other students to witness the actions of Respondent. Respondent was relieved of his duties for the remainder of the day after a later confrontation with the principal and director. The testimony and evidence supports the charge. Charge Number 8 that Respondent struck Lavern White on March 3, 1976, on or about his neck causing bruises was proven by the testimony of the student, Lavern White, and also by a fellow student, Johnnie Hills. Sufficient evidence was not shown that Respondent in fact did strike Johnnie Hills on March 12, 1976, lacerating his lip although the evidence shows that Respondent did use corporal punishment by pushing the student against the wall to discipline him. Respondent attempted to discipline students through physical restraints. The Respondent was dissatisfied with his teaching position in the school to which he was assigned. He had asked to be transferred, he testified, about ten times in three years. The students were a discipline problem. The method of discipline of the students was to use force which, among other things, caused the students to be dissatisfied with their classwork. Order was not kept in the class and objects were thrown about the class from time to time. The Respondent was feared by some of the other teachers and by some of the students. From the general comments of the students of Respondent and the adult staff members, it is evident that the classes of Respondent did not reflect an atmosphere for optimum learning. Respondent appeared resentful of his professional status and uncooperative toward the other members of the educational community. He displayed no interest in the education of his students.
Recommendation Suspend the teaching certificate of the Respondent Armstrong for a period of time not to exceed three (3) years. DONE and ORDERED this 29th day of June, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David A. Barrett, Esquire Post Office Box 1501 Tallahassee, Florida 32302 Donald Nichols, Esquire 320 East Adams Street Jacksonville, Florida 32202
The Issue Whether Respondent violated the Florida Statutes and Florida Administrative Code rules, as charged in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, the Commissioner of Education, is responsible for determining whether there is probable cause to warrant disciplinary action against an educator's certificate and, if probable cause is found, for filing and prosecuting an administrative complaint pursuant to chapter 120. Respondent holds Florida Educator's Certificate No. 803275, valid through June 30, 2021, covering the areas of elementary education, exceptional student education, middle grades integrated curriculum, and social science. At the time of the final hearing in this proceeding, Respondent had taught for approximately 17 years. The Complaint The Complaint alleges that Respondent spoke ill of student E.J.'s work on an assignment in front of the whole class, including, but not limited to, calling it pathetic. As a result, E.J. was embarrassed. Additionally, the Complaint alleges that Respondent spoke ill of student A.S.'s work on an assignment in front of the whole class, including, but not limited to, calling it pathetic. As a result, A.S. was embarrassed. The Complaint also alleges that Respondent criticized student J.P.'s work on an assignment, including, but not limited to, saying he had not put any work into it. As a result of this alleged conduct, the Complaint charges Respondent with having violated section 1012.795(1)(j), and rules 6A-10.081(2)(a)1. and 6A-10.081(2)(a)5. Evidence Adduced at the Final Hearing Respondent began teaching in the St. Lucie County School District ("District") on August 1, 2016. At the time of Respondent's conduct that is alleged to violate section 1012.795 and rule 6A-10.081, Respondent was employed as an eighth grade social studies teacher at West Gate K-8 School ("West Gate"), in the District. The 2018-2019 school year for the District began on August 13, 2018. September 14, 2018, was Respondent's last day of employment with the District. The alleged conduct giving rise to this proceeding occurred at some point between August 13, 2018, and September 14, 2018. On or about September 14, 2018, the District initiated an investigation into Respondent's conduct while she had been employed at West Gate. E.J. was a student in Respondent's eighth grade history class. Respondent assigned the students to complete a history project. After E.J. turned in his project, Respondent called him up to her desk and told him, in the front of the class, that his work on the project was "lazy" and "pathetic." Other students in the class saw Respondent's conduct and heard her comments to E.J. E.J. testified, credibly and persuasively, that he was embarrassed and hurt by Respondent's comments, and that he went back to his desk in tears. The credible evidence establishes that after seeing E.J.'s reaction to her comments, Respondent called E.J. outside of the classroom and apologized. Respondent testified, credibly, that she felt "terrible" about making E.J. cry, and that she had made the comments because she was frustrated with the quality of the students' work on the project. E.J.'s father, Jermaine Jones, who had picked him up from school on the day of the incident, confirmed that E.J. was upset by Respondent's comments on his project. Jones immediately set up a meeting with Assistant Principal Guzman and Respondent for the following day. At that meeting, Respondent apologized to E.J.'s parents and said she was having a stressful day when she made the comments to E.J. According to Jones, the incident made E.J.—who normally is quiet— further withdrawn, and he became, in Jones's words, "a little depressed." According to Jones, following the incident, E.J. did not want to go to Respondent's class. Other student witnesses testified at the final hearing, credibly and consistently, that they saw and heard Respondent's comments directed at E.J., and that E.J. was upset by her comments and started to cry. Another student, J.P., testified that he had been unable to complete the project for Respondent's class because his grandfather was ill and had been hospitalized, and that he and his family had been spending time at the hospital. J.P. took a note from his mother, to Respondent, on the day the project was due, explaining the reason why J.P. had been unable to complete his project. J.P. testified, credibly, that Respondent told him, in front of the class, that she really did not care about the note, and if he did not turn in the completed project by the following day, he would receive a grade of "zero." J.P. credibly testified that other students in the class heard Respondent's comments to him, and that he was "very shocked" and felt "very embarrassed." J.P. did not turn in a project. Student A.S. testified, credibly, that Respondent told him that his work on the project was unacceptable and "pathetic." Respondent made these comments in front of the entire class. A.S. testified, credibly, that he felt "very embarrassed and upset." He testified, credibly, that Respondent did not apologize to him. Respondent testified on her own behalf. She acknowledged calling E.J.'s work "lazy" and "pathetic," but testified that she had not intended to hurt his feelings, and when she realized that she had, she "felt terrible about it." She acknowledged that she has "a deep voice, and I come off harsher than I mean to." She called E.J. outside to explain that she had not intended to hurt his feelings, and there would be other opportunities to make up the bad grade he received on the project. She testified that as a result of their talk, E.J. calmed down, and that she did not have any further issues with him in class. She confirmed that on the day following the incident with E.J., she met with E.J.'s parents to discuss the incident. She testified that the meeting was "civil," and that she left the meeting feeling like "it was taken care of." Regarding the incident with J.P., Respondent testified that the students had two weeks in which to complete the project, and that when J.P. approached her with the note regarding his grandfather's illness, she told him to turn in, the following day, what he had completed to that point. She confirmed that J.P. did not turn in a project. She also testified that she did not hear from J.P.'s mother regarding the project. Regarding student A.S., Respondent testified that she did not call his work "pathetic," and that, given E.J.'s reaction, she would not have used that word again.4 Respondent also presented the testimony of K.K., who also had been a 4 Respondent acknowledged that the alleged incidents with E.J., J.P., and A.S. involved the same project, and that E.J. and A.S. had turned the project in on the same day. Thus, the undersigned questions whether Respondent would have had sufficient time to reflect on the effect that the word "pathetic" had on E.J., such that she would not have used that word in speaking with A.S. on the same day. student in Respondent's eighth grade history class in the 2018-2019 school year. K.K. testified that Respondent discussed E.J.'s paper with the class because it was a good paper, and that she did not see anyone cry in Respondent's class. She also testified that Respondent did not speak in negative terms about anyone's project in front of the class. However, K.K.'s testimony and written statement are directly contradicted by the testimony of four other students, as well as by E.J.'s father and Respondent herself, who admitted having called E.J.'s work on the project "lazy" and "pathetic" in front of the class. Accordingly, K.K.'s testimony and statement are not deemed credible. Respondent has been a teacher for 17 years. She testified that her educator's certificate has never been subjected to discipline, and no evidence was presented showing that disciplinary action has ever been taken against her educator's certificate. Findings of Ultimate Fact Based on the foregoing, it is determined that Petitioner proved, by clear and convincing evidence, that Respondent engaged in the conduct alleged in the Complaint. Whether particular conduct constitutes a violation of the applicable statutes and rules is a factual question to be decided in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Whether specific conduct constitutes a deviation from the required standard is an ultimate finding of fact. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). Rule 6A-10.081(2)(a)1., of the Principles of Professional Conduct for the Education Profession in Florida, requires a teacher to make reasonable effort to protect a student from conditions harmful to learning and to the student's mental health. It is determined that by disparaging E.J.'s work in front of the entire class—which caused him to suffer distress, withdraw, and avoid going to Respondent's class—Respondent violated this rule. Rule 6A-10.081(2)(a)5., of the Principles of Professional Conduct for the Education Profession in Florida, requires a teacher to avoid intentionally exposing a student to unnecessary embarrassment or disparagement. As found above, Respondent intentionally engaged in conduct that resulted in unnecessary embarrassment to students E.J., J.P., and A.S. Accordingly, it is determined that Respondent violated this rule. By violating the Principles of Professional Conduct for the Education Profession in Florida, Respondent violated section 1012.795(1)(j).
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC 1200 Corporate Way, Suite 200 Wellington, Florida 33414-8594 1 All references to chapter 120 are to the 2020 version.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order placing Respondent's educator's certificate on probation for a period of one year from the date of the Final Order. DONE AND ENTERED this 23rd day of June, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2021. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Diane Tirado 3502 Southwest Vollmer Street Port St. Lucie, Florida 34953 Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 Lisa Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether a district school board is entitled to suspend a teacher without pay for just cause based principally upon the allegation that he slapped a student.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Larry J. Williams ("Williams") had been employed as a teacher in the Miami-Dade County Public School System for approximately 16 years. At all times relevant to this case, Williams was assigned to Parkway Middle School, where he taught students with disabilities. The events giving rise to this case occurred on January 30, 2004. About 20 minutes into one of Williams' sixth grade classes that day, the assistant principal brought a student named J. L. into the room. (J. L. had been roaming the hallways without authorization.) Upon his late arrival, J. L. took a seat, put his head down, and promptly fell asleep. Williams walked over to J. L.'s desk and shook it, asking J. L. if he were all right. Evidently startled, J. L. jumped up and shouted at Williams: "What the fuck are you doing? You ain't my daddy, you black ass nigger," or words to that effect.1 Williams, who is a black man, was taken aback. "What did you say?" he replied. "What the fuck are you bothering me for, you black ass nigger?" answered the student, who was now standing close to Williams. At that point, Williams quickly pushed J. L. away. Williams made physical contact with J. L. and probably touched his face or head. This contact was, it is found, more of a shove than a blow.2 J. L. then left the classroom and went to the office, to report that Williams had hit him.3 After J. L. had left, a student remarked, "Oh Mr. Williams, you [sic] in trouble now." Not wanting to lose control of his classroom, Williams tried to downplay the incident, telling the student that nothing had happened. The undersigned rejects as unfounded the School Board's allegation that Williams told his class to lie about the matter. Before the period was over, the school administration, acting on the word of J. L, a student who less than an hour earlier had been wondering about the halls and hence needed to be hauled into class by an assistant principal, pulled Williams out of his room and sent him home.4 Williams was not allowed to return to work until September 23, 2004. He therefore missed about seven months of school, namely the remainder of the 2003- 04 school year plus the beginning of the 2004-05 school year. For using vulgar language and brazenly insulting Williams with a hateful racial epithet, J. L. was suspended for five days. At its regular meeting on June 16, 2004, the School Board voted to accept the recommendation of Williams' principal that the teacher be suspended without pay for 30 workdays. (This means docking six weeks' worth of Williams' wages, or 12 percent of his annual salary.) Ultimate Factual Determinations Williams did not fail to make a reasonable protective effort to guard J. L. against a harmful condition, in violation of Florida Administrative Code Rule 6B-1.006(3)(a). Williams did not violate School Board Rule 6Gx13-4A- 1.21, which prohibits unseemly conduct and abusive or profane language. Williams' conduct on January 30, 2004, did not entail threats, threatening behavior, or acts of violence. Therefore, he did not violate School Board Rule 6Gx13-4-1.08, which proscribes violence in the workplace. Williams committed a technical violation of School Board Rule 6Gx13-5D-1.07, pursuant to which the administration of corporal punishment is strictly prohibited. This violation was not so serious, however, as to impair Williams' effectiveness in the school system. Accordingly, it is determined that Williams is not guilty of misconduct in office, an offense defined in Florida Administrative Code Rule 6B-4.009(3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order rescinding its previous decision to suspend Williams without pay; awarding Williams back salary, plus benefits, that accrued during the suspension period of 30 workdays, together with interest thereon at the statutory rate; and directing that a written reprimand for violating the corporal punishment rule be placed in Williams' personnel file. DONE AND ENTERED this 2nd day of December, 2004, 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 2nd day of December, 2004.
Findings Of Fact Respondent holds teaching certificate number 230805 issued by the State of Florida, Department of Education. Respondent's teaching certificate is valid through June 30, 1996. Respondent is certified in administration, supervision, and physical education. Respondent has been employed by the Orange County School District for approximately 20 years (the "District"). Respondent was employed as a physical education teacher at Hungerford Elementary School for approximately 13 years ("Hungerford") until 1991 when he was transferred to Orlando Vocational Technical Center. Respondent is currently the Dean of Students at Orlando Vocational Technical Center. While he taught at Hungerford, Respondent was respected by his peers and by his students. Students generally enjoyed Respondent's physical education classes. Respondent holds a black belt in karate and is a weight lifter. He routinely allowed several students at a time to jump on him during physical education class and wrestle with him. Respondent was a strict teacher at Hungerford. He believed strongly in discipline. Students in his classes were generally well-behaved. Physical Force Against Students At Hungerford, Respondent frequently used physical contact to gain the attention of misbehaving male students. He typically tapped boys on top of their heads, in the sternum with an open hand or fist, or in the rear end with a track baton. Respondent never intended to embarrass or disparage any of his male students. The vast majority of students recognized that Respondent was merely attempting to gain their attention or playing around. Respondent's discipline in karate gave him more than adequate control to prevent harm to any misbehaving student when Respondent used physical contact to gain their attention. Respondent never lost that control in his classes. No student was physically injured as a result of physical contact from Respondent. Respondent's physical contact was not calculated to cause misbehaving students any pain or discomfort. Respondent was criticized by some who thought he was too severe a disciplinarian. In 1987, some students lodged complaints against Respondent for alleged physical abuse. Two legal proceedings were brought by the Department of Health and Rehabilitative Services over allegations of physical abuse. Respondent successfully defended both proceedings. Sometime in 1988 or 1989, Respondent tapped Andre Hunter in the chest with an open hand. At the time, Andre was a third grade student at Hungerford. Respondent did not hurt Andre. Andre ". . . didn't feel nothing. It didn't hurt. It just felt like he tapped me." Transcript at 24. On separate occasions in 1988 or 1989, Respondent tapped Billy Washington on the head with his fist and hit him on the behind with a track baton. Billy was in Respondent's physical education class during the second, third, and fourth grades. When Respondent tapped Billy on the head, "It was funny. It didn't hurt." Transcript at 34. When Respondent hit Billy on the behind with a track baton, "It stung a little bit, but it didn't bother me." Id. Emotionally, Billy ". . . felt all right." He ". . . didn't think about it. It didn't bother me." Transcript at 35. On separate occasions in 1988 or 1989, Respondent tapped Bobby King in the chest with Respondent's fist. At the time, Bobby was in the first or second grade. It hurt Bobby and made him mad. Bobby did not understand why Respondent struck him. On September 22, 1989, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for using unnecessary physical force against a student on March 20, 1989. The letter directed Respondent to refrain from the use of threatening behavior and physical force against students. Attendance And Inadequate Supervision During the 1988-1989 and 1989-1990 school years, Respondent sometimes failed to properly supervise students in his class. Respondent was late to class a few times. A few times, he left the school campus prior to the end of the school day without permission. Respondent failed to let other school employees know that he would not be at school. However, his attendance record neither adversely affected his teaching effectiveness nor impaired his relationship with his colleagues or students. On February 14, 1990, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for leaving the school campus without permission from the principal, not adequately supervising his students on one occasion, and for acting in a threatening or intimidating manner toward the principal when confronted about Respondent's supervision of his students. Transfer To Vo-Tech On August 21, 1990, Respondent was removed from his classroom duties at Hungerford and placed on relief of duty status with full pay and benefits. The District took the action as a result of allegations of inappropriate discipline, leaving students unsupervised, and insubordination. Respondent was subsequently transferred to Orlando Vocational and Technical School. Respondent continues to enjoy wide respect as a teacher from parents, other teachers, and community leaders. As Dean of Students, Respondent currently holds a responsible position of employment with the District. Respondent functions effectively in that position. Deferred Prosecution Agreement On October 8, 1991, Respondent and Petitioner entered into a Deferred Prosecution Agreement. On or before October 8, 1992, Respondent agreed to successfully complete college courses in Assertive Discipline, Classroom Management, and Methods of Teaching Elementary Physical Education. Respondent further agreed to provide written verification that Respondent completed the required courses. Respondent failed to complete the required courses in a timely manner. Although Respondent ultimately completed the required courses, he had not supplied Petitioner with written verification as of the date of the formal hearing. If Respondent had timely complied with the Deferred Prosecution Agreement, this proceeding would not have been instituted. Respondent believed in good faith that his transfer out of the classroom to his position as Dean of Students made the courses on classroom techniques unnecessary. Respondent was notified in 1993 that he was in violation of the Deferred Prosecution Agreement. Respondent promptly enrolled in the required classes and completed them. Respondent has now complied with all of the conditions of the Deferred Prosecution Agreement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a Final Order finding Respondent guilty of the charge that he failed to make a reasonable effort to protect students from conditions harmful to their learning and not guilty of the remaining charges in the Administrative Complaint. It is further recommended that the Commission issue a letter of reprimand to Respondent and, pursuant to Section 231.262(6)(c), impose an administrative fine not to exceed $750. RECOMMENDED this 22d day of November, 1994, in Tallahassee, Florida. DANIEL MANRY 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 22d day of November, 1994.
The Issue The issue for consideration in this matter is whether Respondent should be dismissed from employment with the Polk County School Board because of the matters alleged in the letter of intent prepared by the Superintendent of Schools.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for providing public primary, secondary and adult education in Polk County, Florida, and operated Haines City High School, (HCHS), in Haines City. Respondent had been employed at HCHS for eight years, and in the last two years prior to the incidents herein taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. DCT students are allowed to leave campus before the end of the school day to work at jobs in the local area. However, Respondent allowed some students to leave school during the morning hours for the purpose of getting breakfast and, coincidentally, to bring items back to school for her to eat. There is also allegation that Respondent would solicit students to run personal errands for her during school hours but would not give them a pass to allow them to lawfully leave the campus. Allegedly, she advised them that they were on their own and she would deny responsibility or knowledge if they were caught. Taken together, the evidence establishes that Respondent did allow students to leave class on personal business and did not give them passes to be off campus. It also appears that she solicited them to pick up items for her while they were away, but not that she solicited students to leave class to run errands off campus for her. Even so, her actions are in violation of the Board policy regarding student absence from campus, a policy about which Respondent had been briefed. In addition, some time during the Autumn of 1994, Respondent overheard a student on the school's football team, Bradford Parton, discussing with his girlfriend the fact he was having cramps. Respondent advised him he should take potassium and on at least one occasion, during a class session, gave Parton a pill which, she said, would give him energy and take away his cramps. She believed the pill was the functional equivalent of one banana. Respondent was aware that it was a violation of Board policy for anyone other than the school nurse to administer any form of pill or medication to a student. When the Principal learned that Respondent had given Parton the pill, he directed an investigation into the matter. On November 17, 1994, after he had heard that Respondent was making comments in class to the effect that the students were getting her in trouble with the administration, the Principal gave her verbal instructions not to discuss these matters with the students and to limit her conversations with them to matters related to class work. His comment to her included, "Just teach the class. Just don't bring yourself down to their level." The following day, on November 18, 1994, after receiving word that Respondent had again spoken to Parton after he had warned her not to do so, the Principal reduced his prior comments to writing and again instructed her not to discuss the matter with any students, warning her that he considered her doing so a matter of insubordination which, if repeated, would result in severe disciplinary action. There is some indication Respondent, in early December, 1994, advised several students after the warning she was going to have them removed from her class She subsequently advised the school's guidance counselor that several of the students involved should be removed from her class because they appeared to be "unhappy" in it. The students denied being unhappy in class and urgently resisted being removed because they needed the credit to graduate. Respondent's comments to the students constituted insubordination, and her action in urging removal of the students was considered by the administration to be an attempt at retaliation against them because of their allegations made against her. There is also indication that while the investigation into the allegations against her was under way, Respondent spoke with Ms. Denmark, another teacher, who was in the room when Respondent gave the pill to Mr. Parton, in an effort to get her to change her statement. School Board officials consider Respondent's blatant violation of school rules and policies by allowing students to leave campus without a pass and by improperly administering a pill to a student combine to severely impair her effectiveness as a teacher. Under the circumstances established here, this appears to be the case. Prior to the initiation of this action, Respondent had received a verbal warning regarding drinking in front of students at a conference and regarding making untoward comments about Blacks. Her personnel record, commencing with the teacher evaluation of her performance in the 1988-1989 school year, reflects positive comments and no substantial criticism. However, in July, 1994, the Superintendent advised Respondent of his intention to suspend her without pay for five days for making improper comments of a sexual nature toward students and for allowing students to grade papers, to average grades and to have access to her grade book. Respondent requested hearing on this proposed action. That hearing was held consolidated with the instant hearing and no final action has been taken by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova's, suspension without pay pending hearing be sustained and that she be dismissed from employment as a teacher with the Polk County School Board because of misconduct in office and gross insubordination as described herein. RECOMMENDED this 3rd day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-2599 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 4. Accepted and incorporated herein. - 9. Accepted and incorporated herein. Accepted in so far as Respondent allowed students to leave campus and periodically suggested those who did run errands for her. - 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. FOR THE RESPONDENT: & 2. Accepted and incorporated herein with the understanding that the term, "no further details regarding the allegations were provided" refers to the charging letter, and that Respondent was provided with specific allegations of misconduct prior to hearing. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 8. Accepted and incorporated herein. First sentence accepted and incorporated herein. Second sentence rejected. See Partain's December 2, 1994 letter to Chapman. Accepted and incorporated herein. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U. S. Highway 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
Findings Of Fact The Respondent, Michael Fort, at times pertinent to the charges in the Administrative Complaints, held teacher's certificate number 514033, issued by the State of Florida Department of Education (Department). That certificate authorized practice as a teacher in the area of music education. The Respondent was employed as a teacher at Lake Weir Middle School in the Marion County School District. The Respondent was under an annual contract with that school system from November 23, 1983, through the 1984-85 school year. The Respondent's last annual contract expired on June 7, 1985. The Respondent's teacher's certificate expired on June 30, 1985. Some time prior to the expiration of his teacher's certificate, the Respondent applied to the Department for its renewal. That application still pends before the Department. In October 1983, the Respondent had a minor student spend the night at his apartment. The minor student had previously been a close friend of the Respondent and had socialized with him in the past, including spending the night at his residence on other occasions. The Respondent had entered into a close, friendly relationship with the minor, Darien Houston, by frequently letting him stay at his residence during periods of time when Darien Houston's parents were fighting or otherwise engaging in domestic discord, which apparently was very disturbing to the student. Darien Houston, although a student in the Marion County School System, was not a student of the Respondent. Indeed, the Respondent was not yet employed by that school district. In any event, during the course of the evening in question, while they were sitting near each other watching television, the Respondent placed his hand on the student's leg and the student requested that he remove his hand. The student at the time thought Fort was joking or had no serious intent by this action. Fort then went to bed and the student went to bed, sleeping on the floor in his jeans in a sleeping bag. Some time later that night, the student was awakened and realized that the Respondent had undressed himself and undressed the student and had proceeded to place his hand on and fondle the student's penis. He thereafter attempted to roll Houston over onto his stomach in spite of Houston's objections. In response to the student's objections, the Respondent made a statement to the effect, "Do you want to do it with me?" The student continued to object and to retreat from the Respondent's advances. He retreated to the bathroom where he locked himself in and remained for the remainder of the night. The student was embarrassed because of the incident and elected not to report it to school officials or others for approximately a year and a half. However, Houston did tell his best friend what had happened, who in turn informed Houston's mother of the incident. Eventually, Houston's brother informed another individual of the occurrence, who then informed Mr. Springer, the principal at Lake Weir Middle School, of the incident. Darien Houston, a student there, was then called before Mr. Springer, who investigated the matter. Houston related the information about the subject occurrence to him, in approximately May 1985. Thereafter, the criminal proceeding against the Respondent related to this incident and the instant administrative Prosecutions ensued. The matter became public knowledge among students at Lake Weir Middle School, who teased Houston about the incident, causing him great embarrassment and humiliation. The occurrence was widely reported in local newspapers. Sometime in May 1985, while a teacher at Lake Weir Middle School, during the course of a puppet show being Presented in a sixth grade classroom, Respondent stuck his hand down the back of a minor male student's pants between his underwear and his trousers. This action by the Respondent shocked and embarrassed the student, although it was not established that any bystanders, of which there were a number present, observed the incident. The student, Patrick Hammer, was embarrassed to tell anyone of the occurrence, but ultimately informed his teacher of the incident by writing a note to the teacher concerning it. Other students at the school ultimately became aware of this and teased Patrick Hammer about it, causing him embarrassment and humiliation. In approximately May 1985, the Respondent attended a party at a local hospital. The Respondent was in the company of three minor male students who were then enrolled at Lake Weir Middle School. The students, Steve Hall, Richard Slaughter and Eddie Ericson, or some of them, were drinking beer from a keg or draft dispenser at the party. Steve Hall's mother, who was employed at the hospital, was present at the party and was aware that her son was drinking beer. All three of the boys later left the party and went with Mr. Fort to his apartment. While en route, the Respondent stopped at an ABC Liquor Store and purchased approximately two six-packs of beer. After purchasing the beer, the Respondent took the three students to his apartment where the students swam in the swimming pool and, in his presence and with his knowledge, drank the beer that the Respondent had purchased. It was not established that the Respondent bought the beer with the specific intent of giving it to the students but, by his own admission, he offered no objection to the students' consumption of the beer in his presence at his residence. On May 12, 1986, the Respondent pled nolo contendere to one count of attempted sexual battery and one count of lewd and lascivious behavior. He was sentenced to ten years probation, fined $200, ordered to undergo mental health counseling, to complete 100 hours of community service and to refrain from any custodial or supervisory contact with any person under the age of 16 years. Respondent's arrest, the circumstances surrounding the charges and his plea regarding the above incidents received widespread publicity in the local media and was known to students, faculty and other School Board personnel and the public at large. On or about April 10, 1985, the Respondent received a letter from Nick Marcos, Assistant Superintendent of Administrative Services with the School Board of Marion County, informing him that he would be reappointed to a position as an annual contract teacher with the Marion County School System as soon as he had been issued a regular or temporary teaching certificate for the 1985-86 school year. On or about May 16, 1985, the Respondent submitted a reapplication for a temporary certificate to the Florida Department of Education. On or about August 9, 1955, Respondent received a letter from R. S. Archibald, District School Superintendent, advising him that he had been suspended as an instructional employee of the Marion County School System, pending a meeting of the School Board. Thereafter, on or about August 19, 1985, the Respondent received a letter from Jim Ergle, as Chairman of the School Board, advising him of the Board's decision to suspend him without pay based upon the above-described arrest and charges. In the April 10, 1985 letter, the Assistant Superintendent had informed him that he had been recommended for reappointment for the 1985-86 school year, but reminded him that he would have to renew his teaching certificate to be eligible for reappointment. Upon his application for renewal of his teaching certificate, the application demonstrated that all requirements for renewal had been met. His teaching certificate expired on June 30, 1985. The renewal application was never acted upon by the Department, although it informed Mr. Fort, sometime prior to August 1985, that his application was in order and the certificate would be forthcoming. His suspension without pay was predicated upon the charges pending before the Circuit Court for Marion County concerning the alleged sexual battery and lewd and lascivious conduct, and the letter informing Mr. Fort of it did not indicate that it was at all based on his failure to renew his teaching certificate. The School Board employed the formal suspension process against the Respondent, although his express annual contract had already expired, in an abundance of caution because a grace period is normally allowed teachers to re- apply for renewal of their certificates after expiration and because the Board allows a grace period for reappointment of a contract teacher after the expiration of a teaching certificate, provided the teacher provides evidence that the certificate has been properly renewed. The Respondent was paid for all services rendered by him to the Marion County School Board through the last day of the 1984-85 school year, which was also the last day of his employment pursuant to his last express annual contract. He has never taught in the district since that time.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the EPC permanently revoking the certificate of the Respondent, Michael Fort, and that he be finally dismissed by the Marion County School District and forfeit any back pay. DONE and ORDERED this 14th day of July 1987, in Tallahassee, Florida. COPIES FURNISHED: William E. Williams, Esquire Rex D. Ware, Esquire 111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 215 Knott Building Tallahassee, Florida 32399 P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of July 1987.
