The Issue The issue is whether Petitioner is entitled to an athletic coaching certificate, or whether he should be denied a certificate based on the allegations in the Notice of Reasons.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: DOE is charged with the duty to issue Florida Educator’s Certificates to qualified persons seeking authorization to become schoolteachers and/or coaches in the State of Florida. Petitioner is an African-American male, whose date of birth is August 7, 1975. On or about July 14, 2010, Petitioner completed and signed a DOE application (Application) for a coaching certificate. Petitioner does not currently hold a certificate of eligibility or temporary Educator’s Certificate. On or about July 26, 2010, DOE’s Bureau of Educator Certification received Petitioner’s Application. On March 26, 2013, DOE advised Petitioner that his application was denied for the reasons set forth in a three-part Notice of Reasons. The Notice of Reasons alleged, as the basis for denying the Petitioner’s Application, that: On or about February 21, 2001, in Volusia County, Florida, Applicant sold 7 grams of cocaine in exchange for approximately $175.00. On or about April 3, 2001, Applicant was arrested and charged with Unlawful Sale of a Controlled Substance. On or about August 7, 2001, the charge was nolle prossed. On or about October 18, 2004, in Volusia County, Florida, Applicant pointed a handgun at an unknown male that was in a vehicle parked outside of a residence. Applicant fired two rounds into the vehicle. One of the bullets went through the living room window of a nearby residence. Applicant was subsequently arrested and charged with Shooting into a Building. On or about September 27, 2005, Applicant pled Nolo Contendere and adjudication was withheld. On or about May 5, 2006, in Clayton County, Georgia, Applicant struck a female, who was under the age of eighteen years, with a leather belt.[1/] The Notice of Reasons concluded that Petitioner had therefore violated section 1012.56(2)(e), Florida Statutes,2/ by failing to maintain good moral character (Count 1); section 1012.56(12)(a), by committing acts for which revocation would be authorized by the Education Practices Commission (Count 2); and section 1012.795(1)(d), by being guilty of gross immorality or an act involving moral turpitude (Count 3). Petitioner will be unable to pursue a career coaching or teaching students in Florida without educator certification. Petitioner is substantially affected by the intended decision to deny his certification. Reason No. 1: Alleged Sale of Cocaine On or about April 3, 2001, Petitioner was arrested and charged with the Unlawful Sale of a Controlled Substance, specifically, seven grams of cocaine. On or about August 7, 2001, the charge was nolle prossed.3/ At the time of Petitioner’s arrest, William Heiser was a drug agent with the Volusia County Sheriff’s Department, and was assigned to the Volusia Bureau of Investigation. On that day the Volusia Bureau of Investigation, including Agent Heiser, conducted an undercover operation. Agent Heiser was deposed prior to the final hearing in this matter, and his deposition was received in evidence in lieu of his live testimony. At his deposition, Agent Heiser identified the charging affidavit as a copy of the police report that he prepared and signed. The charging affidavit, prepared and signed on April 3, 2001, states that that there is probable cause to believe the defendant [Roger Washington]: On the 21st day of Feb, 2001, at approximately 1630 p.m. at Mason & Derbyshire Road within Volusia County, violated the law and did then and there: Sold 7 grams of suspected cocaine to C.I. #0015 in exchange for $175.00 in Volusia County Sheriff’s Office Pre-Recorded Monies. CI #0015 and the vehicle the CI was operating was searched for weapons, monies and drugs finding none. [The CI was kept under constant surveillance and He/She traveled to the above location.] The CI was kept under constant surveillance as He/She traveled to the above location. The C.I. was observed meeting the subject Roger Washington and was given a plastic baggie that contained approx 7 grams of an off white powder substance in exchange for the $175.00 of pre-recorded monies. The C.I. was kept under constant surveillance as He/She traveled to a predetermined meeting location where He/She handed over to Inv. Heiser the plastic bag containing the suspected cocaine. The C.I. and the vehicle the C.I. was operating was again searched for monies, weapons and drugs finding none. The off-white substance was tested by Inv. Heiser using a Nark #13 Test Kit which resulted in a presumptive reaction for the presence of Cocaine. It was placed into evidence at VCSO. At his deposition, Agent Heiser was unable to recall any of the particulars of the actual arrest of Petitioner for the incident described in the charging affidavit. He did not remember if he or another law enforcement officer arrested Petitioner. Agent Heiser testified that Confidential Informant #0015 (CI) had herself committed crimes, and participated in the undercover operation in hopes of getting out of her own legal problems. He admitted that from his position of a couple of car lengths from CI that he did not observe her entire body, and could not see inside CI’s vehicle while it traveled a “good mile” from the location of CI’s alleged interaction with Petitioner. Agent Heiser also testified that he did not personally search CI’s person nor did he witness the actual search or any strip search of CI as she was female and he is male. He testified that the off-white powder substance that he field-tested was not provided directly from the Petitioner to him, but rather through the CI who carried it approximately a mile from the buy location. Agent Heiser explained that the reason for strip- searching CIs is that “obviously, you can hide things in the cavity or you can hide things in spots that you wouldn’t normally get if you just did a pat down.” He further admitted that CI had the opportunity to hide cocaine and the money on her person underneath her clothes, for example in her bra. No evidence was presented in this record that CI was subjected to a strip-search in connection with the buy of February 21, 2001. Agent Heiser further testified that the off-white powder substance was field-tested by him and not laboratory tested, and that he could not be certain that the substance tested was actually cocaine. He further testified that he had no evidence that the field test was completely reliable. He further conceded that there is no such thing as a field test that is 100 percent reliable and that a laboratory test is more reliable. He admitted that he does not remember any details regarding any laboratory reports verifying or not verifying the substance was cocaine. No evidence was submitted that any laboratory test was ever conducted on the substance. Similarly, there was no evidence submitted that the $175.00 in pre-recorded monies provided to the CI was ever recovered or found upon Petitioner. Further, insomuch as Agent Heiser was at least two car lengths away when observing the alleged interaction between Petitioner and the CI, it was highly improbable that he was actually able to know for certain that the monies that allegedly were given by the CI to Petitioner were indeed the same pre-recorded monies mentioned in the charging affidavit. Vision at that distance would not be good enough to make that determination. Petitioner testified that he was arrested by Agent Heiser and another officer at his business, a car wash. At the time of the arrest, Agent Heiser initially approached a customer, Mike, and asked Mike if he was Roger Washington. Thus, Agent Heiser was not able to independently identify Roger Washington at the time of the arrest. Instead, Petitioner had to self-identify himself to Agent Heiser. There is no evidence in this record as to the date Petitioner was arrested in connection with the cocaine sale charge. However, the Charging Affidavit was signed by Agent Heiser on April 3, 2001, more than a month after the alleged drug buy took place. Agent Heiser testified that frequently the Volusia Bureau of Investigation conducted a “bunch” of buys prior to making any arrests. Given this testimony, it is reasonable to infer that Petitioner was not arrested until sometime after the preparation of the Charging Affidavit in April 2001. The delay in the arrest of Petitioner in connection with the cocaine buy, coupled with Agent Heiser’s inability to independently identify Petitioner at the time of his arrest, raises reasonable doubt as to whether the person who interacted with the CI was actually Petitioner. At hearing, Petitioner denied ever selling cocaine to anyone. Based upon the credible testimony of Petitioner and the lack of persuasive evidence that the Petitioner in fact sold cocaine, it has not been established that Petitioner engaged in the sale of cocaine. Rather, the competent substantial evidence of record only establishes that Petitioner was arrested and charged with the sale of cocaine, and that the charge was later nolle prossed. Reason No. 2: Shooting Into Building On June 30, 2005, Petitioner was charged by Information with shooting into a building (through a car window) in Volusia County, a second-degree felony. The shooting at issue occurred on October 18, 2004, some eight months earlier. On September 27, 2005, the Petitioner entered a plea of nolo contendere (no contest) to the charge and adjudication of guilt was withheld. Petitioner was placed on probation for three years, ordered to make restitution to the victim, and to pay court costs. At hearing, Petitioner testified that he was not even in the State of Florida on or about October 18, 2004, but rather was living in Atlanta at the time. He testified that he did not shoot into a building (or a parked car), nor did he shoot at anybody. Petitioner’s demeanor and body language while testifying in this regard were composed, did not appear rehearsed, and are found to be credible. Other than the court records reflecting the charge, and Petitioner’s plea of no contest, no other evidence was offered to rebut this testimony. At hearing, the undersigned queried Petitioner as to why he would have pled no contest to a crime he did not commit: The Court: Mr. Washington, why did you plead no contest to a charge that you did not commit? The Witness: Because they was offering me 15 years. The Court: I don’t understand that. What do you mean? The Witness: They was offering me 15 years in prison. The Court: If you didn’t plead guilty or not – I’m sorry – no contest? The Witness: Yes. The Court: What was the evidence that they had against you that formed the basis for your arrest on that charge? The Witness: I think they said someone said that it was me. The Court: So in exchange for your no contest charge (verbatim), were not adjudicated guilty and that was the deal; is that right? The Witness: Correct. Under the circumstances, Petitioner’s explanation for pleading no contest to a crime he did not commit is plausible. Based upon the record before the undersigned, there is insufficient competent evidence to conclude that Petitioner did in fact commit the crime of shooting into a building. Petitioner’s Character Petitioner is employed as a behavior specialist with Behavior Change Artists, an agency the Volusia County School System contracts with to provide behavior therapy to its students. In this capacity Petitioner works directly with children. Previously, Petitioner worked for three years as a substitute teacher at Holly Hill Middle School. Although the record does not reflect exactly when he worked in this capacity, the record does show that it was after 2006 and prior to 2012. In order to work with children as a behavior specialist and substitute teacher, Petitioner was required to undergo two Level II background screenings by the Florida Department of Law Enforcement. As a part of the background screenings he provided information related to his arrests, charges, and dispositions of the charges. As a result of those background screenings he was allowed to work in these occupations and was not disqualified from working with children or vulnerable adults. Upon applying for the positions of substitute teacher and behavior specialist, Petitioner disclosed the arrests, charges and dispositions of the incidents listed in Notice of Reasons No. 1 and No. 2 to those who hired him. Diane Mathis was an office specialist at Holly Hill Middle School, whose responsibilities included coordinating substitute teachers during the period 2006 through 2011. At hearing Ms. Mathis authenticated a letter of recommendation that she authored in early 2013 with the understanding that it would be submitted in conjunction with Petitioner’s Application. The letter states: May 13, 2013 To whom it may concern: I’ve had the pleasure of working with Roger Washington at Holly Hill Middle School in Volusia County for approximately 3 years. I was the Substitute Teacher Coordinator from 2006-2011. He was GREAT with the students and in the classroom. They loved him. The Faculty and Staff enjoyed having him on Campus as he helped out in other areas as needed. The Teachers at Holly Hill Middle School would recommend Roger to cover their class if they were absent. He was in high demand. He is dependable and showed professionalism each and every time he was on our Campus. Sincerely, Diane Mathis, Office Specialist Volusia County Schools [phone number redacted] Ms. Mathis testified that during her time working with Petitioner she did not see anything that would concern her with respect to the Petitioner being granted a Florida Educator’s Certificate. On cross-examination Ms. Mathis conceded that she was not aware of the arrests, charges and dispositions of Petitioner’s arrests and that her recommendation was limited to her own experience and knowledge interacting with Petitioner in his position as a substitute teacher. Kenya Ford is a program specialist with the Volusia County School System. Ms. Ford’s responsibilities included interacting with the Petitioner in his position as behavior specialist. At hearing, Ms. Ford authenticated a letter of recommendation she had written on Petitioner’s behalf. The letter states: To Whom It May Concern: With great pleasure, I forward this letter of recommendation on behalf of Mr. Roger Washington. I have known Mr. Washington for the past thirteen years (13), in a personal and professional manner. He has demonstrated to be ambitious, dependable, determined and hardworking young man. Knowing him personally, he has proven to be a reliable and wonderful individual. While working alongside Mr. Washington as a behavior specialist and team parent with youth sports, I found Mr. Washington to have good work ethics and a pleasant personality as a professional, team player, and leader. As a mentor and professional, Roger Washington has shown himself to be a creditable individual that I would put my trust in and builds great moral among his colleagues. Roger is very active with implementing, organizing, and supervising afterschool sports programs over several years; while being a mentor for students and guide for parents. Mr. Washington is a tenacious and straightforward individual who is determined to accomplish his goals that he has set forth for the students he mentors [sic] and nurtures, [sic] along with parents and himself. Without question Mr. Washington has been one of the most spirited individuals [sic] and professionals [sic] I have encountered while working with him as the School District Program Specialist, that work closely with the behavior specialist over the past few years of my tenure. He has taken the challenge of being a leader within the field of education, while still conquering his own challenges of continuing education. Mr. Washington would be a great asset to any organization. Considering Mr. Washington’s commitment to hard work and dedication of excellence, I strongly recommend him for an assignment into your prestigious establishment. Sincerely Yours, Kenya Ford, Behavior Initiative Program Sc-EBD Program Specialist Volusia County Schools Ms. Ford testified that she witnessed nothing in her interactions with the Petitioner that would concern her should Petitioner receive a Florida Educator’s Certificate. Rather, Petitioner was one of the better behavior specialists providing services for Volusia County Schools. She testified that she wrote the above letter based upon her on experience with the Petitioner, including the work he did at Volusia County Schools and through non-school activities in the community, including the Pop-Warner football youth program. Ms. Ford further testified that she has personally known the Petitioner for 13 years and has never known him to be a user or purveyor of illegal drugs, nor has she known him to have a temper or anger management issue of any kind. In the more than nine years that have passed since the last alleged criminal act (shooting into a building), the record establishes that Petitioner has maintained a consistent pattern of personal stability and accomplishment, with no evidence of criminal activity. He is active in his school as a behavior specialist and serves with youth sports. During his most recent employment as a substitute teacher, and then as a behavior specialist, he has performed his duties admirably, and without incident. By all accounts he is a motivated and hard-working individual, and has excellent rapport with children. In its Proposed Recommended Order, Respondent points to several other instances in which Petitioner has been arrested. While these instances were not included in the Notice of Reasons, Respondent argues they are pertinent to the determination of whether Petitioner is of good moral character. Specifically, Respondent cites a 1996 arrest for disorderly conduct and a 1997 arrest for battery. It is noted that Petitioner pled not guilty to both of those charges. The battery charge was nolle prossed, while adjudication was withheld on the disorderly conduct charge. Petitioner was 21 and 22 years old, respectively, at the time of these arrests, which occurred some 17 or 18 years ago. Given the remoteness in time, age of Petitioner, and disposition, these arrests are not indicative of Petitioner’s character today. The greater weight of the evidence in this record does not support a finding that Petitioner committed the criminal acts set forth in Reasons No. 1 and No. 2. However, even had the record supported a finding that Petitioner committed those criminal acts, the record also established that in at least the past nine years Petitioner has comported himself in a responsible and professional manner. If Petitioner ever was a miscreant, he is now fully rehabilitated. Petitioner has had no further interaction with the criminal justice system since 2005, and if indeed he did commit the criminal acts accused of, they were isolated incidents, and not indicative of poor moral character. Even if Petitioner did commit the criminal acts referenced in Reasons No. 1 and No. 2, the record established that he is of good moral character today. A couple of isolated events that may have occurred nine or more years ago are not determinative of his character today.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order approving Petitioner's application for a Florida Educator's Certificate. DONE AND ENTERED this 14th day of February, 2014, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 14th day of February, 2014.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 30, 2002.
Findings Of Fact Veita Jackson-Carter is the assistant principal at Eastside High School (Eastside) which is located in Gainesville, Florida, and is part of the Alachua County School District (school district). In the summer of 2002, Petitioner came to Eastside to talk to Ms. Jackson-Carter about employment there. At that initial meeting, Petitioner and Ms. Jackson-Carter discussed instructional positions at Eastside. While Petitioner gave a resume to Ms. Jackson-Carter, Ms. Jackson-Carter informed Petitioner that he needed to submit an employment application with the school district's personnel office. Ms. Jackson-Carter was very interested in hiring Petitioner. However, she explained to Petitioner that while the individual schools make recommendations regarding hiring, the school district actually hires applicants. Petitioner submitted a completed Application for Instructional Position on June 28, 2002, to the school district.2/ Because of her interest in hiring Petitioner, Ms. Jackson-Carter checked with someone in the school district's personnel office on the status of his application for an instructional position. She learned that there was a problem with his obtaining a teaching certificate. During this same period of time, Petitioner met with Marcia Shelton. At that time, Ms. Shelton was a certification specialist with the school district's department of personnel services. She worked with applicants in assisting them in determining eligibility for certification. However, neither she, nor anyone who works for the school district, has the authority to issue teaching certificates or statements of eligibility for teaching certificates as only the Florida Department of Education has the authority to do that. At the initial meeting between Petitioner and Ms. Shelton, Petitioner informed Ms. Shelton that a particular school was interested in hiring him for an instructional position. She began the process of assisting him to determine his eligibility for certification. Petitioner's application contained his educational achievements. He earned a bachelor's degree from Kentucky State University with a major in criminal justice and a minor in political science, and a master's degree with a major in human resource management and a minor in the area of public administration. Ms. Shelton asked for and received copies of Petitioner's academic transcripts. Ms. Shelton's review of the transcripts revealed that Petitioner had a cumulative undergraduate grade point average (GPA) of 2.322. She informed Petitioner that the minimum GPA required for issuance of an initial teaching certificate was 2.5 and that he would not be eligible for certification because the GPA for the courses needed for certification were not high enough. While Petitioner had the course work to meet specialization requirements for political science, the grades were not what was required. In an effort to help Petitioner, Ms. Shelton contacted Jean Morgan with the Bureau of Educator Certification of the Florida Department of Education (Department), to inquire as to whether public administration courses Petitioner had taken could be counted toward those required for certification in political science or social science. Petitioner's own exhibits establish that Ms. Shelton made numerous attempts to assist Petitioner by making repeated inquiries in August 2002 to Ms. Morgan and Ms. Morgan's supervisor, Kathy Hebda, in an effort to find a way for Petitioner to meet the Department's requirements. Ms. Shelton's efforts included faxing course descriptions to the Department for evaluation in an effort to satisfy the Department's certification requirements. Ms. Shelton's efforts, however, on Petitioner's behalf were unsuccessful. That is, she learned from both Ms. Morgan and Ms. Hebda that the Department would not accept the public administration courses to bring up Petitioner's GPA in political science. On August 5, 2002, Petitioner again went to Eastside to meet with Ms. Jackson-Carter. She informed him of some career service positions at Eastside for which he could apply. Petitioner completed and filed a Career Service Application Form dated August 13, 2002, with Respondent. There is an inconsistency in Petitioner's answers to a question regarding criminal background on each application for employment with Respondent. Each application contains a question regarding whether the applicant had ever been found guilty of, regardless of adjudication, or entered a plea of nolo contendere to offenses listed in three categories. On the Application for Instructional Position, Petitioner checked "no" for all three categories: felony, first degree misdemeanor, and second degree misdemeanor involving a minor child or involving violence. He then answered "yes" to the question, "Have you ever been judicially determined to have committed abuse or neglect against a child." The application instructs the applicant that if any question was answered yes, to explain and attach all pertinent documents. Despite having answered yes to one question, Petitioner wrote "N/A" in the blank provided. However, on the Career Service Application Form, he answered "yes" to the category generally entitled "misdemeanor." The application instructs the applicant that if the answer to any of the criminal background questions was "yes," that the applicant must list charge(s) and disposition. In the blank provided to list charge(s) and disposition, Petitioner put "N/A" in the blank provided, despite having answered "yes" to the category entitled "misdemeanor." The application also instructs the applicant to attach all pertinent documents. On or about August 16, 2002, Petitioner again went to Eastside to meet with Ms. Jackson-Carter. He inquired of Ms. Jackson-Carter when he was to report to work. Ms. Jackson- Carter inquired of Petitioner if the school district had offered him a position as she was not aware of any position having been offered to him. The last correspondence in the record from Ms. Shelton to the Department is dated August 29, 2002, in which she notes that the Bureau Chief of the Department's Bureau of Educator Certification was personally reviewing Petitioner's documents. She also noted that "he still has not applied to DOE." In Ms. Shelton's and Dr. Pratt's experience, it is unusual for the bureau chief to become personally involved in such a review. Ms. Shelton received a call from Ms. Hebda and the bureau chief during which Ms. Shelton learned that the bureau chief personally was going to accept the course work to enable Petitioner to meet specialization requirements for a temporary certificate in political science. Ms. Shelton did not have the authority to make that determination that was ultimately made by the bureau chief of the Bureau of Educator Certification. On August 23, 2002, the school district sent a letter to Petitioner informing him that his application for substitute teaching had been approved for the 2002-2003 school year. The letter informed him about a mandatory new employee orientation. It also specified that state law requires that all new employees be fingerprinted. The letter was signed by Josephine Brown, Coordinator, Personnel Services. Being a substitute teacher requires direct contact with students. The position of substitute teacher is not a permanent position with the school district. It is a conditional offer pending cleared fingerprint processing. Dr. Leila Pratt was Director of Personnel Services for the Alachua County School Board in August 2002. She was Ms. Shelton's and Ms. Brown's supervisor. She has since retired. On August 27, 2002, Dr. Pratt attended the criminal history review committee meeting during which Mr. Price was discussed. Of particular concern to Dr. Pratt were certain entries on Mr. Price's criminal history record received from the Florida Department of Law Enforcement and the Federal Bureau of Investigation which Ms. Pratt believed reflected violent behavior. She was concerned that these offenses would make Petitioner ineligible for employment because of statutory and school district policy requirements. She was also concerned about the inconsistencies between the answers provided on the two applications. A Criminal Records form was completed regarding Petitioner as a result of the committee meeting which included the following notations: "criminal possession of handgun (87); possession of handgun (93); DUI & suspended license (2000); violation of KY charges (01). Falsification of application." The recommendation of the committee was termination. The school board issued a Separation of Service form to Petitioner dated and signed by Petitioner and Dr. Pratt August 28, 2002. The form identifies the reason for separation as "background check." Petitioner requested and was given the opportunity to explain his criminal history. On August 29, 2002, he went to Dr. Pratt's office to discuss his criminal background and to provide Dr. Pratt with pertinent documentation. However, the information which Petitioner provided to Dr. Pratt did not satisfy her concerns. On August 29, 2002, Dr. Pratt wrote a letter to Petitioner which stated as follows: Dear Mr. Price: In response to the three charges: criminal possession of a weapon, menacing and assault filed in August 1987, your documentation does not indicate your charges were dropped to a misdemeanor. It indicates that you pled guilty and was sentenced to thirty (30) days confinement. [sic] In response to your charge filed on April 6, 1989 for trespassing on property after a warning, you provided no official documentation from the court records. In response to the charge filed on November 12, 1993 for possession of a handgun by a convicted felon, your documentation does not officially state that your charges were dismissed or that the charges were dropped. We are unable to determine what is meant by the statement, "lack of probable cause" on the paperwork you submitted. In response to the charge filed on April 20, 2000 for DUI and suspended license, your documentation stated the case was dismissed, but there was probable cause for the arrest and your case was remanded back to another court for the disposition. You submitted no documentation as to the final disposition. A restraining protection order was issued from 2000 to 2003 for domestic battery. No official court documentation regarding this charge has been provided. In addition to the information you submitted being incomplete, one of the documents you presented was not an official court document, which is what we requested, official court records. To provide further consideration to your request for employment, official court documents will need to be provided for all of the charges that have been filed. Until this information is received and reviewed, you are not eligible to work for the School Board of Alachua County. According to Ms. Price, official court documents are required of everyone under these circumstances. Even if the court documents had been official, Dr. Pratt's concerns would have remained because of the violent nature of some of the offenses in the documents and the statutory and school district policy requirements. Petitioner did not submit further documentation to Respondent clarifying his criminal history. Petitioner completed an Application for Florida Educator Certificate which was mailed to the Department on August 30, 2002. The Department issued an Official Statement of Status of Eligibility to Petitioner dated May 28, 2003, which explained to Petitioner what was required of him to get a temporary certificate and a professional certificate covering political science for grades 6 through 12. The Official Statement of Status of Eligibility also informs Petitioner that issuance of a certificate will be contingent upon a review of any criminal offense as a result of fingerprint processing. Dr. Pratt characterized Ms. Shelton's efforts on Petitioner's behalf as going "beyond the call of duty." She believes that her entire staff acted appropriately in dealing with Petitioner. Petitioner is an African-American male. At the time of the adverse employment action giving rise to this proceeding, Petitioner was 42 years old. Ms. Jackson-Carter and Dr. Pratt are African-American females. Ms. Shelton is a white female. Beyond Petitioner's allegation of discrimination, Petitioner presented no evidence that his race, sex, or age played any role in any action taken by Respondent regarding Petitioner's eligibility for teacher certification or its decision to terminate his probationary employment as a substitute teacher. The Department's ultimate acceptance of coursework and issuance of a Statement of Status of Eligibility some eight months after the adverse employment action taken by Respondent does not establish that Respondent engaged in discriminatory conduct.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 19th day of December, 2003.
The Issue The issue is whether the Petitioner is entitled to receive a Florida Educator's Certificate, or whether he should be denied a certificate based on the allegations in the Amended Notice of Reasons dated January 30, 2006.
Findings Of Fact Petitioner, Allen Dubois, (Petitioner or Mr. Dubois) received his bachelor's degree in physical sciences and chemistry, with a minor in mathematics in 1972. From 1972 to 1992, he worked for the United States Postal Service and as a tennis instructor. In 1992, Mr. Dubois received his master's degree in health education and nutrition, and began teaching in New York City high schools. Mr. Dubois was licensed to teach in New York with a certificate of qualification (CQ), the equivalent of a provisional or temporary teaching certificate. In New York, the CQ differs from other types of temporary teaching certificates only because it allows someone who may not be teaching full-time to have additional time to meet the requirements to secure a permanent teaching certificate. In April 1994, Mr. Dubois filed an application with New York State Education Department for a permanent certificate to teach biology and general sciences in grades 7-12. In March 1994, a sixteen-year old female student alleged Petitioner had engaged her in an inappropriate relationship and forced her to have sexual intercourse with him. Mr. Dubois was placed on paid leave through the end of the school year, June 1994. Mr. Dubois denied the allegations, and continues to maintain the allegations are false. He does admit to having had several conversations with the student that made him feel "uncomfortable," that included information about her mother's boyfriend and her showing him pictures of her baby. He concedes that, on a Friday evening following a sports event at the school, she walked with him some distance from the school to his parked car and that he offered her a ride. Mr. Dubois said that as she was getting in the car, "[w]e saw the bus coming and then she decided to take the bus." Mr. Dubois admitted calling the girl's house a day or two after he offered her a ride, but stated that she was not there and he talked to her grandmother. After that, Mr. Dubois continued to have conversations with a member of the girl’s family. The allegations were investigated and presented to a grand jury that, in October or November 1994, failed to indict Mr. Dubois. After he was fired from his job as a teacher by the Board of Education of New York City, Mr. Dubois apparently did not pursue the matter at a hearing, as he could have, but instead moved to Florida in December 1994, where he has lived since then. When he first came to Florida, Mr. Dubois was employed with the State Department of Labor and Employment Security. Among other duties, Mr. Dubois provided seminars and workshops on how individuals could file applications for employment with the State of Florida. Since that time, he has gone on to work for another state agency and, at some time, also taught at a community college in St. Lucie County. On July 22, 2003, Mr. Dubois filed an application for a Florida Educator's Certificate. On the application, he listed his teaching experience in New York City. Question #29 on the application is titled "Revocation" and requires a yes or no response to the following question: "Have you ever had a teaching certificate revoked, suspended or denied by any state, or is there any action pending against your certificate or application? If YES, you must give the state, reason, and year in which your certificate was revoked, suspended, denied, or in which action is pending against your certification or application." Petitioner answered "no" to the question. A letter, dated October 3, 1995, from New York City investigators to the New York State Commissioner of Education indicated that Mr. Dubois was “. . . currently suspended from service.” There is no evidence that the City had the authority to suspend his certificate. In fact, the letter was intended to give notice to the State so that it could take disciplinary action against the certificate. On June 12, 1996, the Commissioner of Education of the State of New York filed a Notice of Substantial Question as to Moral Character, charging Mr. Dubois with having sexual intercourse with the sixteen-year old female student on or about March 25, 1994. The Notice offered an opportunity for a hearing, if requested within 30 days. Mr. Dubois received the Notice, but testified that he did not recall responding to it. He did recognize a letter, in his hand writing, that he must have written on or about September 26, 1996, ". . . acknowledging that New York is questioning my moral character" and asking the New York authorities to contact the attorney who handled the criminal charges against him. Mr. Dubois testified that he had a telephone conversation, in 1998, with an attorney for the New York State Department of Education, who indicated that he had been unable to contact the criminal attorney who previously represented Mr. Dubois. Mr. Dubois testified that, ". . . it was not my intention to pursue a teaching license in New York. At that point in 1998 I was not inclined to want to become a public school teacher." As a result of the telephone discussion, Mr. Dubois entered into an agreement with the New York State Education Department that provides as follows: This is written confirmation of the fact that the parties have agreed to settle this matter and not proceed to a hearing under the provisions of Part 83 of the regulations of the Commissioner of Education. The Education Department will withdraw the Part 83 charges now pending against Allen J. DuBois in return for the surrender of his certificate of qualification of a teacher of biology and general science 7-12 and the withdrawal of his pending application for permanent certificate in the same areas. Allen J. DuBois, by this agreement, neither admits nor denies the allegations in the Notice of Substantial Question dated June 12, 1996, but acknowledges that he is unable to defend against them at this time. Upon surrender, the Department will notify all licensing and credentialing agencies and jurisdictions who participate in the National Association of State Directors of Teacher Education and Certification (NASDTEC) and advise them of the surrender and withdrawal but will not otherwise disclose nor make public the contents of this agreement or the charges contained in the Notice unless required by law or upon an order of a court of competent jurisdiction. Allen J. DuBois reserves his right in the future to apply to the Education Department for certification as a teacher in biology and general science 7-12 or any other area and will be held harmless from any changes in the educational requirements subsequent to the date of this agreement. However, in the event he makes application for certification in the future, the Education Department reserves its rights under Part 83 of the Regulations including the right to hold a hearing on the issues raise in the Notice. In furtherance of this agreement, Mr. DuBois, shall forward the original certification document to the education department within thirty (30) days or, if said document cannot be located, then he will provide a written statement to that effect. As provided in the agreement, the State of New York filed a form with NASDTEC, reporting that the nature of its action on the CQ was a denial. There is no evidence that Mr. Dubois received a copy of the document. Concerning the agreement, Mr. Dubois said, in his deposition, that he felt “railroaded” into signing it without legal advice, and that (although explicit in the agreement) he did not know that there would be a report to some national network that might keep him from ever getting a teaching job any place in the United States. The NASDTEC document that appeared to contradict the information on his application was received by Respondent, prompting a further investigation of his Florida application. Mr. Dubois testified that he answered "no" to Question 29 on the application because he never had a permanent teaching certificate in New York. He denied that he thought his "provisional status" constituted a certificate. He claimed not to ". . . know that New York City passed something on to New York State," although the agreement he signed was with state authorities. In any event, based on the fact that the CQ was surrendered and the application for a permanent teaching certificate was withdrawn, Mr. Dubois maintains that he did not have to respond affirmatively to the question that was so narrowly worded as to only ask about certificates that were "revoked, suspended or denied" and suggested that "[m]aybe the State of Florida . . . needs to reword the questions on the application. " In an Amended Notice of Reasons dated January 30, 2006, Respondent notified Mr. Dubois that the Department of Education intended to deny his application for a Florida Educator's Certificate. The Amended Notice of Reasons cited six statutory violations and four rule violations as grounds for the denial: Statute Violations Count 1: The Applicant is in violation of Section 1012.56 (2) (e), Florida Statutes, which requires that the holder of a Florida Educator's Certificate be of good moral character. Count 2: The Applicant is in violation of Section 1012.56(12)(a), Florida Statutes, which provides that the Department of Education may deny an Applicant a certificate if the department possesses evidence satisfactory to it that the Applicant has committed an act or acts, or that a situation exists, for which the Education Practices Commission would be authorized to revoke a teaching certificate. Count 3: The Applicant is in violation of Section 1012.795 (1)(a), Florida Statutes, in that he obtained or attempted to obtain an educator's certificate by fraudulent means. Count 4: The Applicant is in violation of Section 1012.795 (1)(c), Florida Statutes, in that he has been guilty of gross immorality or an act involving moral turpitude. Count 5: The Applicant is in violation of Section 1012.795(1)(f), Florida Statutes, in that he has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Count 6: The Applicant is in violation of Section 1012.795 (1)(I) [sic], Florida Statutes, in that he has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Rule Violations Count 7: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, in that Applicant has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Count 8: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Applicant has intentionally exposed a student to unnecessary embarrassment or disparagement. Count 9: The allegations of misconduct set forth herein are in violation of Florida Administrative Code Rule 6B-1.006(3)(h), in that Applicant has harassed or discriminated against a student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment of discrimination. Count 10: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(h), Florida Administrative Code, in that Applicant has exploited a relationship with a student for personal gain or advantage. Respondent offered no competent evidence that Mr. Dubois engaged, as alleged by New York authorities, in any inappropriate relationship with a student and forced her to have sexual intercourse with him. One of Respondent's witnesses testified that she believed the alleged victim has been located and would be available to testify, if needed, but that was not done. Respondent offered no competent evidence that Mr. Dubois' answer to Question 29 was an intentional fraudulent misrepresentation. Mr. Dubois was not credible when he asserted, in a 2006 deposition, (1) that he thought his CQ was not a teaching certificate, (2) that he did not expect New York City to pass information to New York State (although he signed the agreement with the State), or (3) that he was not aware that a report would be sent to a national network. He is correct, however, that the CQ was surrendered and the application was withdrawn, in exchange for not having an action against him proceed to hearing. Because he has no current certificate of application, there is also no action pending against either of these. Without having to answer yes to Question 29, Mr. Dubois did not have to give information concerning the matters that could be the subject of a hearing only if he ever again applies to teach in New York.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that Petitioner be issued a Florida Educator's Certificate. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 19th day of December, 2008. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue presented in this cause is whether Respondent should be suspended from her employment for twenty days for conduct unbecoming a school board employee, misconduct in office, and gross insubordination.
Findings Of Fact Respondent is a veteran teacher of approximately 34 years. She has been employed as a teacher by the School Board of Dade County, Florida, for 28 years pursuant to a continuing contract. In 1984, she was voted "Teacher of the Year" at the school where she then taught. In October, 1984, she was reassigned to teach at Coconut Grove Elementary School pursuant to a hardship transfer to facilitate her caring for her ill daughter. She continued to teach at Coconut Grove Elementary School through the time of the final hearing in this cause. She is a dedicated and competent teacher and has consistently received satisfactory ratings on her annual evaluations. She tutors children without charge in her home after school hours. She loves children and loves teaching them. She has a reputation for utilizing effective disciplinary techniques. Joe Carbia is the principal at Coconut Grove Elementary School and was the principal at the time that Respondent obtained her hardship transfer to that school. Since her transfer, Respondent and Carbia have disagreed with each other a number of times. It is apparent that they do not respect each other and have not been supportive of each other since shortly after her transfer to Coconut Grove Elementary School. Between October, 1984, and the 1988-89 school year, Respondent also had disagreements with other teachers and temporarily with one parent of a student. Each time someone complained, Carbia decided that Respondent was wrong. No competent evidence was offered by Petitioner as to what occurred on any of these occasions, and Carbia's testimony that he held conferences with Respondent and issued directives to her is not supported by documentary evidence. Rather, Respondent's acceptable evaluations each year, the lack of documentary evidence, and Petitioner's reliance on hearsay evidence indicate that none of the disagreements, whatever they were, were considered major. During December of 1988, several holiday activities were conducted involving students from Coconut Grove Elementary School. Respondent requested permission from Carbia for her class to put on a holiday play, and permission was given to her. Carbia did not attend the play that was put on by Respondent's students, and none of the other teachers at the school came to see their performance. By early February, 1989, Respondent had visited Carbia's supervisor and had requested him to write a letter of apology to her students for not attending their holiday play. Her students later wrote letters to several persons in the upper level of administration for the Dade County Public Schools, including the Superintendent, asking why no one had attended their play. In mid-February, Carbia visited Respondent's classroom, and one of the students asked him why he had not come to their play. He explained that he had another commitment that evening. Although Carbia concluded that Respondent had instigated her student's question and their letter writing, no evidence was presented to show that it was Respondent's idea and not the idea of her students. The overall evidence clearly shows that Respondent stood up for her students when she felt they had been treated unfairly. No one answered or acknowledged the letters from the children. No more letters were written after Respondent was ordered to stop them. By the end of the 1988-89 school year, Respondent had voiced her complaints about Carbia's methods and her perception of his mistreatment of her and of black teachers and students at Coconut Grove Elementary School to several other teachers and to the P.T.A. President. She had also voiced her complaints about Carbia at a union meeting, a forum believed to be confidential. On July 3, 1989, Carbia forwarded a collection of letters from people reporting to him the things that Respondent was saying about him to the Office of Professional Standards of the Dade County Public Schools along with his request that that office direct Respondent to submit to a medical fitness determination. The letters, submitted to him in June, were from the counselor at the school, one parent, the P.T.A. president, and the other sixth- grade teacher. None of those persons testified at the final hearing in this cause, and those documents remain hearsay. As a result of Carbia's request, Joyce Annunziata, supervisor in the Office of Professional Standards, conducted a conference for the record with Respondent on August 11, 1989, to address Respondent's fitness to return to classroom duties, interpersonal relations with site personnel and community members, and Respondent's future employment status with the Dade County Public Schools. In that conference, Respondent was advised that future incidents of unprofessional demeanor with staff or parents would be considered insubordination. Carbia's request that Respondent be directed to submit to a medical fitness determination was denied. During the 1989-90 school year, Respondent taught the sixth grade. In October, 1989, Carbia assigned the responsibility for the school's United Way Campaign to teacher Deborah Piha, a fifth-grade teacher. The prior year Respondent had been in charge of the United Way Campaign and believed that the United Way Campaign was a sixth-grade project. After Respondent learned that Piha would be in charge, she encountered Piha on her way to the cafeteria. Respondent complained to Piha that Carbia had taken the responsibility away from Respondent and her sixth- grade students and voiced her anger toward Carbia for doing so. Although Piha understood that Respondent was not angry at her, Piha does not like "confrontations" and did not like the fact that Respondent "invaded her space." Piha told Carbia what Respondent had said about him. Carbia requested Piha to write a report about Respondent's conduct, and she did so. Word that Piha had written a negative report regarding Respondent spread quickly. A few moments after Piha left Carbia's office, she encountered Respondent who already had heard about the letter. Piha told Respondent that she was very sorry that she had written the letter and had not meant to hurt Respondent. Piha was clearly upset and told Respondent and the teacher who was with Respondent, "It's my job." Piha asked Respondent for help with the United Way campaign, and Respondent agreed. She offered Piha her materials from the prior year and offered to assist her in any way that she could. Although Carbia asked Piha subsequently to write a second letter, Piha declined. She also later declined Respondent's offers of assistance on the United Way campaign and would not use the materials that Respondent gave her even though she had asked Respondent to assist her. Patricia Perez-Benitoa is a beginning teacher. The 1989-90 school year was her second year of teaching. As an art teacher, she was shared by Coconut Grove Elementary School and another school. She came to Respondent's class on Tuesdays. On Tuesday, November 7, 1989, she told Respondent that she was experiencing difficulty in maintaining discipline. Respondent was aware of that fact since Respondent's students had been complaining to Respondent about Perez- Benitoa. Respondent's students did not like Perez-Benitoa since she called them stupid, immature, dumb, foolish, and silly. Although she followed the school's assertive discipline program, they believed she was unfair in administering discipline and clearly favored certain students. On November 7 when Perez-Benitoa told Respondent she was having difficulty, Respondent agreed to help her. They both stood at the front of the class, and Respondent explained to the students that she was supporting Perez- Benitoa 100%. Perez- Benitoa, with Respondent's support, explained to the class that student misbehavior would be dealt with in a consistent manner. Specifically, she made an "agreement" with Respondent and with the class that if a student misbehaved, then the student would suffer the consequences. Further, all students would be treated equally when they were punished. Torrey and Joseph were students in Respondent's class. After Torrey's mother complained to Perez-Benitoa about calling her son "stupid" during art class, Perez-Benitoa told Torrey during class that he was stupid and so was his mother. During the 1989-90 school year, Torrey was sent to the office by Perez- Benitoa and suspended from school six different times, although he was not sent to the office to be suspended by any other teacher during that school year. On Tuesday, November 14, 1989, Perez-Benitoa came to Respondent's classroom to teach art, and Respondent left the classroom since that would be her planning period. When she returned to the classroom at the end of the art class, she saw that Perez-Benitoa had put Torrey's name and Joseph's name on the board. Torrey was not in the classroom, but Joseph was. Perez-Benitoa told Respondent that she had sent Torrey to the office, and Respondent asked her why she had not sent Joseph to the office since both names were on the board and both names had the same number next to them representing the level of offenses. The two teachers conferred with each other quietly in the front of the classroom. Perez-Benitoa explained that she had sent Torrey to the office for using profanity in class. Respondent asked Perez-Benitoa why she had not sent Joseph to the office since his name was also on the board. Respondent reminded Perez-Benitoa that they had made an agreement witch the class that all students would be treated equally; she also told her that sending one student to the office and not the other was unfair. Respondent also told Perez-Benitoa that she had personally had problems with Joseph using profanity in the class and told Perez-Benitoa that Joseph liked to use the "F-ing" and the "B-ing" words. The students did not hear Respondent's conversation with Perez-Benitoa and did not hear Respondent's description of the profanity used by Joseph on previous occasions. However, a few of the students in the very front of the room only heard Respondent tell Perez-Benitoa it was not fair sending Torrey to the office, the same thing the students were telling Perez- Benitoa. The impression of the students was that Respondent was speaking nicely to Perez- Benitoa. As the two teachers conferred, the students told Respondent that Torrey had not done anything wrong to justify being sent to the office to be suspended. They told her that Joseph had used the word "ass," that Perez- Benitoa mistakenly thought Torrey had used the word, and that Joseph had told Perez-Benitoa that he had used the prohibited word and not Torrey. Joseph also told Respondent that he had used the profanity and that he had told Perez- Benitoa that he did it and not Torrey. The students remained unaware of the content of the conversation between Respondent and Perez-Benitoa. When Perez-Benitoa left the classroom, she took Joseph with her. Despite learning that Torrey had not used profanity in the classroom, Perez-Benitoa wrote a Student Case Management Referral Form regarding Torrey which resulted in Torrey being suspended from school. She did not write a Student Case Management Referral form regarding Joseph. She never told the administration that she had made a mistake regarding Torrey's misbehavior or Joseph's. When Perez-Benitoa went to the office, she told Carbia that Respondent had confronted her and scolded her in front of the class. She also told Carbia that Respondent had used profanity in front of her students. Carbia told her to write a letter regarding Respondent's unprofessional behavior. Perez- Benitoa did so, even though the statements she had made to Carbia were false. At the formal hearing in this cause, Perez-Benitoa admitted that the students did not hear Respondent use profanity, but that they "could have." She admitted that the students were not within hearing range and that there was no reason for the children to think there was any conflict between her and Respondent. She also explained that she was shocked that another teacher would share with her an experience that she had had with a student since other teachers' experiences were simply of no concern to her. She also admitted she has never heard Respondent use profanity other than when Respondent told her of Joseph's propensity for profanity. Carbia did not ask Respondent whether she had scolded Perez-Benitoa or whether she had used profanity in the classroom. He simply directed Essie Pace, the intern principal, to schedule a conference for the record with Respondent. No investigation was done regarding Perez-Benitoa's allegations between November 14 and November 19, the day before the conference for the record. At the conference for the record on November 20, 1989, Pace told Respondent that Respondent had been directed in a July, 1989, conference for the record not to approach another teacher in a negative or derogatory way and not to make derogatory statements to employees or students, and that Respondent had violated those directives. At the final hearing, no evidence was offered as to any July conference for the record. Either on November 20 or on November 21, 1989, in response to their questions, Respondent told her students that Perez-Benitoa had told the principal that Respondent used profanity to get her in trouble but that Respondent had not done so. Perez-Benitoa came to Respondent's classroom on November 21 to teach art. Respondent left the classroom when she arrived. Respondent's students were angry at Perez-Benitoa for lying to the principal about their teacher. They got out of their seats, walked around the classroom, refused to listen to her and were defiant. Perez-Benitoa contacted the office to ask someone to come and get her class under control for her. Principal Carbia was out of town, and intern principal Pace was not in the office at the moment. Perez-Benitoa took no additional steps to obtain assistance to bring her classroom under control. She simply sat down and allowed the disorder and disruption to continue, while she cried. The students' open defiance of her upset Perez-Benitoa. The students even told her that they were angry with her for lying about their teacher. When Respondent returned to her classroom, Perez-Benitoa left. She went directly to the principal's office. By the time she arrived there she was in hysterics and totally out of control. Pace had to enlist the help of another teacher to sit with Perez-Benitoa to try to calm her down, and Perez-Benitoa went home because she was unable to carry out her teaching duties for the remainder of the day due to her lack of control. Pace did not ask Respondent what had happened. She accepted Perez- Benitoa's accusations that Respondent had instigated her children to misbehave. Perez-Benitoa's statements to Pace that the children were throwing paper and erasers at her were not supported by any of the students although the students did admit later to Pace, subsequently to the School Board's investigator, and at the final hearing in this cause that they refused to listen to Perez-Benitoa and were walking around the classroom refusing to remain in their seats. Further, Perez-Benitoa's statements that she heard one student say to another, "Mrs. Bethel will be proud of us" have not been supported by any of the students during Pace's investigation, the School Board investigation, or during the final hearing in this cause. Rather, the students take the position that Respondent would never approve of them misbehaving. After speaking to Perez-Benitoa on November 21 and after calling her own supervisors, Pace went to Respondent's class and removed her from her classroom. When Pace went to Respondent's classroom, the children were not misbehaving. After Pace removed Respondent from her classroom, she interviewed several of the students one at a time. The students told her that Respondent does not use profanity, that Perez-Benitoa calls them names, that they were angry with Perez- Benitoa for lying to the principal regarding Respondent, and that Respondent did not instigate their disruptive and defiant behavior. Pace never asked the students why Respondent had told them about Perez-Benitoa accusing her of using profanity in the classroom. On February 6, 1990, a conference for the record was conducted with Respondent by the Office of Professional Standards to address the investigative report concerning improper conduct, Respondent's insubordination by not complying with a site directive, her lack of professional responsibility in dealing with staff and students, and her future employment status with the Dade County Public Schools. On March 7, 1990, the School Board of Dade County, Florida, suspended Respondent from her employment for twenty work days. Respondent enjoys a great deal of support from the community, from the parents of her students, and from her students. She is outspoken, which appears to make some people feel uncomfortable.
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 in the Amended Notice of Specific Charges and in the Amendment to the Amended Notice of Specific Charges, dismissing the charges filed against her, reversing the determination that Respondent be suspended for twenty days, and awarding to Respondent back pay for those twenty days for which she has already served the suspension. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of October, 1990. 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 10th day of October, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1800 Petitioner's proposed findings of fact numbered 1 and 17-19 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Petitioner's proposed findings of fact numbered 2, 9 and 10 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 3-5, 7, and 11-16 have been rejected as not being supported by competent evidence in this cause. Petitioner's proposed findings of fact numbered 6 and 8 have been rejected as being unnecessary for determination of the issues in this cause. Respondent's first, second, third, fifth, and eighth unnumbered paragraphs have been adopted either verbatim or in substance in this Recommended Order. Respondent's fourth, sixth, and seventh unnumbered paragraphs have been rejected as not being supported by the evidence in this cause. Respondent's ninth unnumbered paragraph has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Patricia Graham Williams, Esquire 1055 Northwest 183rd Street Miami, Florida 33169 Jaime Claudio Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Paul W. Bell, Superintendent The School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Patrick D. Gray Executive Assistant Superintendent Office of Professional Standards Dade County Public Schools 1444 Biscayne Boulevard Miami, Florida 33132 Mrs. Madelyn P. Schere Assistant School Board Attorney The School Board of Dade County, Florida Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
