The Issue This is a license discipline proceeding in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged acts of misconduct set forth in an Administrative Complaint. In the six-count Administrative Complaint it is charged that the Respondent violated three specific statutory provisions and three specific rule provisions.
Findings Of Fact The Respondent holds Florida Educator's Certificate 355910, covering the areas of Spanish, Supervision, and Social Science, which is valid through June 30, 2002. At all times material to this case, the Respondent was employed as a Social Studies teacher at Hammocks Middle School in the Miami-Dade County School District. The Respondent first became employed as a teacher at the Hammocks Middle School on or about 1984. At Hammocks Middle School the Respondent taught sixth, seventh, and eighth grade American History. He also taught Geography to sixth graders as part of the Bilingual Content Curriculum Program. As of April 1999, the Respondent had been employed by Miami-Dade County Public Schools for approximately twenty-five years. The Respondent had never been the subject of any disciplinary action by his employer or by the Education Practices Commission at any time prior to April 1999. The Respondent has been a naturist since approximately 1971. The Respondent belongs to a local naturist organization and subscribes to naturist publications. On April 26, 1999, between 7:00 a.m. and 7:30 a.m., before the start of the school day and while there were no students in his classroom, the Respondent executed an Internet search by typing the word "naturism" into the search engine on his school-provided computer. Of the several "hits" resulting from the search, a website entitled Forste side af ialt 6 Naturistsider, caught the Respondent's attention because it appeared to have the word "naturist" in its foreign title. The Respondent "clicked" on and accessed the Forste side af ialt 6 Naturistsider website. On April 26, 1999, the Respondent viewed the website for about one minute and "bookmarked" the site. The Respondent did not access the website again on April 26, 1999, at any time. On April 27, 1999, before the start of the school day and while there were no students in his classroom, the Respondent accessed the site Forste side af ialt 6 Naturistsider via the "bookmark" he had created on April 26, 1999. On that day, the Respondent exited the website before any students arrived at his classroom for his first period class. On the same day, during his third period planning period, while no students were present in the classroom and while the door to his classroom was closed, the Respondent again accessed the Forste side af ialt 6 Naturistsider website. The Respondent left the accessed naturist site on his computer at the end of the planning period but he covered the site by opening his electric gradebook over it. The Respondent did not view the website during the fourth period. During the last ten minutes of the fifth period on April 27, 1999, the Respondent entered student grades into his electronic gradebook while clicking on and viewing some of the photographs from the Forste side af ialt 6 Naturistsider website. Students were present in the classroom but there is no evidence that any student saw naturist photographs on the Respondent's computer monitor during the fifth period. During his sixth period class on April 27, 1999, the Respondent viewed some more naturist photographs on the Forste side af ialt 6 Naturistsider site while grading geography projects at his desk. The Respondent's geography students were working on an in-class vocabulary assignment. The Respondent's computer monitor was facing away from his students and images on the monitor could not be seen by the students while they were at their desks. However, during the course of the Respondent's sixth period class on April 27, 1999, several of the students had occasion to approach the Respondent's desk or to otherwise be in a position to see the monitor on the Respondent's computer. Several of those students were able to see photographic images of nude people on the monitor, even though the Respondent made efforts to cover the monitor when students approached his desk. Shortly after the end of the sixth period on April 27, 1999, several of the students reported to the school administration that they had seen photographs of nude people on the Respondent's computer. An investigation was promptly initiated; written statements were obtained from the students, and the Respondent's classroom computer was removed and locked in a secure place until it could be examined. The photographs of nude people that were seen on the Respondent's computer monitor during his sixth period class on April 27, 1999, were all photographs from the Forste side af ialt 6 Naturistsider website.3 The photographs from that website depict nude men, women, and children of various ages engaged in a variety of outdoor recreational activities such as sunbathing, walking on the beach, sitting or standing by a swimming pool, swimming, boating, and water skiing. The photographs from that website do not depict any acts of sexual intercourse, any acts of sexual touching, or any acts suggestive of sexual conduct. None of the photographs from that website include any sexual innuendo, nor could any of them be fairly described as provocative. Specifically, none of the photographs from that website were obscene or pornographic. But all of the photographs from that website were distinctly inappropriate for display to sixth grade students in a geography class. Examination of the computer that was removed from the Respondent's classroom revealed that the computer had been used to gain access to the Forste side af ialt 6 Naturistsider website. During the course of the investigation, the Respondent admitted that he had viewed that website during his sixth-grade class on April 27, 1999. Examination of the computer also revealed that it had been used to gain access to other websites that contained images of a sexually suggestive or sexually explicit nature. However, there is no clear and convincing evidence that the Respondent was the person who gained access to the websites that contained sexually suggestive or sexually explicit images.4 There is no clear and convincing evidence that, in the words of the statute, the Respondent "has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board."5 The Respondent's act of having photographs of nude people displayed on his computer monitor on April 27, 1999, created a condition harmful to learning, as well as potentially harmful to the mental health of the students. That act also exposed students to unnecessary embarrassment. That act was also a use of institutional privileges for personal gain or advantage. On or about August 25, 1999, the Respondent was terminated from his position with the Miami-Dade County School Board.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be entered to the following effect: (a) dismissing the charges in Counts 1 and 2 of the Administrative Complaint; (b) finding the Respondent guilty of the violations alleged in Counts 3, 4, 5, and 6; and (c) imposing as a penalty an administrative fine in the amount of five hundred dollars ($500.00), and a suspension of the Respondent's certificate for a period of six (6) months. DONE AND ENTERED this 16th day of May, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2001.
The Issue The issues in this consolidated case are whether Mr. Garcia's employment by the School Board of Dade County should be terminated for misconduct, and whether that same misconduct should cause the Commissioner of Education to revoke his teaching certificate.
Findings Of Fact At all times material to this proceeding Mr. Garcia has held Florida teaching certificate number 553087 in the areas of science and biology; the certificate is valid through June 30, 1995. Mr. Garcia was employed by the School Board of Dade County at Hialeah High School for the period September 1984 until September 1989. Mr. Garcia taught biology during the seventh period during the 1988-89 school year. He also taught marine biology during the third period that same school year. All of the acts which form the basis for the attempt to discipline Mr. Garcia arose from the seventh period biology class. No complaints arose from the third period marine biology class. During the seventh period biology class during the 1988-89 school year the Respondent commonly used inappropriate language in dealing with the students in his class of 30-35 students. He told students such things as "shut the hell up" and peppered his conversations with students with words such as "bitch," "asshole," "shit" and "smart ass." Mr. Garcia is Hispanic, and most of his class was Hispanic. At times he would ask his students what was going on in a rude way, saying "que cajones pasa aqui" which is an inappropriate or vulgar reference to testicles. He would also say things such as "what the fuck is wrong here" or respond to students with phrases such as "fuck you." The manner in which the seventh period class was conducted was academically inconsistent. Mr. Garcia was not in the habit of lecturing as a means of teaching, but would assign vocabulary words from the book, which the students were to define in their workbooks, during the class period; when they were finished they would take the books to Mr. Garcia who would check their work. Sometimes he would tell the students to lay their heads on the desk and listen to the rain, or to put their heads on their desk, close their eyes, and think about space. At other times, he would permit students to merely socialize with each other or tell jokes with the students. Two significant incidents took place during the seventh period biology class in the 1988-89 school year. The first of these occurred in the spring of the year. The students saw a commotion outside their classroom window, and several students got up to look out the classroom windows. The students and Mr. Garcia could see a man outside who had a gun. Mr. Garcia then told one of the students to report the matter to the office and he told the students to sit down. Three students, Mireya Sales, Joana Quinones and Mercedes Blason, did not. Thereafter three policemen and a policedog were seen outside looking for the man with a gun. At that time Mr. Garcia told the students to "get the hell down" and when they did not, in order to emphasize to them the need to get away from the window, he told them to "get the fuck down." This caused all the students to get back to their seats away from the window. Were this the only incident of profanity, it might have been justified by the exigencies of the situation. The language used was, however, a common means of expression used by Mr. Garcia in his classroom. The second, and more significant event occurred towards the end of the year. One of Mr. Garcia's students, Mireya Sales, was ill, and began coughing or perhaps choking in class. Mireya Sales is a good student, having obtained a 3.4 grade point average for the second term of the 1988-89 school year. She asked if she could go into the hall to get some water, and Mr. Garcia gave his permission. When she came back, however, he said to her "you are a little tramp." She asked him what he had said, and he repeated "you are a little tramp" and began laughing; students in the class also began to laugh. A few minutes later he went up to Mireya Sales at her desk and said "yes you are a little tramp, and I know the way you operate." Mireya Sales then told him she would call her father to tell her father what Mr. Garcia had said, to which he responded "you could call your dad, because I am not intimidated by your dad. Your dad does not scare me. So you could call your dad, it does not matter." When Mireya Sales asked for a pass to go to the office, Mr. Garcia refused, and she was so embarrassed that she left the class crying. She did not, however, go to the school office. The next day, Mr. Garcia came to Mireya Sales' first period class and asked the teacher to permit Mireya Sales to come out into the hall and talk to Mr. Garcia. That teacher agreed. When she went outside, she found that Mr. Garcia had with him her school folder, apparently from the office. Mr. Garcia told the student "most of your teachers have complained that you have an attitude problem." He then told her "give me your phone number and address. I'm going to go and talk to your dad. I'm going to tell him what kind of person you are." She then gave him the telephone number and address and he said "I am going to make sure you get what you deserve" and told her that she had better keep quiet or he would see to it that she would have to attend summer school if she reported the incident from the previous day to the office. Mireya Sales then returned to her first period class. Mireya Sales reported the matter to her French teacher, who told her that she should talk to her guidance counselor. She then spoke to the guidance counselor, Ms. Cash, but while she was speaking with Ms. Cash, Mr. Garcia came into the office to say that it was good Ms. Cash was speaking with Mireya Sales, because Mr. Garcia had a problem with Mireya Sales. Mr. Garcia also had Mireya Sales' file and gave it to Ms. Cash. Ms. Cash and Mireya Sales then look through it, and found no reference anywhere to any other teacher claiming that Mireya Sales had an attitude problem. The counselor then asked her to report the matter to an assistant principal, Mr. Jaworski. She did. While Mireya Sales was speaking with Mr. Jaworski, Mr. Garcia came into Mr. Jaworski's office. Mr. Garcia told Mr. Jaworski that he had made a disciplinary referral on Mireya Sales, and had put it on the desk of the other assistant principal, Dr. De La Torre. Later, Mr. Garcia returned while Mireya Sales was still with Mr. Jaworski to say that if Mireya Sales would come back into his class for the next week and be good, that he would not write up a referral, although he had already told Mr. Jaworski that he had written one and given it to the other assistant principal. Mireya Sales father asked that she be removed from Mr. Garcia's class. She was not removed, and when she would hand papers into Mr. Garcia thereafter, he would write notes on Mireya Sales' papers saying such things as "I hope you know what you are doing" or "I hope you have a clear conscience." Mr. Garcia also confronted other students to attempt to intimidate them so that they would not report the incident in which he had called Mireya Sales "a tramp" to the office. The next day, during third period, he asked the teacher of Mercedes Blason if he could speak to her briefly in the hall outside, and the teacher agreed. Outside the third period classroom, Mr. Garcia had with him a folder and said to Mercedes Blason "I know what is going around, and if you know what is good for you won't get mixed up in it." He also had with him a referral form on which he had written Mireya Sales' name. Mr. Garcia was attempting to tell Mercedes Blason that he would make a disciplinary referral against her to the administration if he believed that she reported to the principal or assistant principal the incident in which he had called Mireya Sales a little tramp. Two or three days following the incident with Mireya Sales, Mr. Garcia saw Silvia Licor as she was moving between classes. She also had been in the seventh period class the day of the incident with Mireya Sales. Mr. Garcia told her that a lot of people are getting involved in going to the office, and not to waste her time because he had a lot of friends in the faculty and on the school board, and that if Silvia Licor went to the office, he would give her a referral. Silvia Licor's mother learned of the incident and wrote a letter to the school complaining about Mr. Garcia. A similar incident occurred with student Joana Quinones. She had gone to a Vice Principal, Mr. Rolle, to complain about Mr. Garcia. About five minutes into her next class, Mr. Garcia came to the class, and asked the teacher to speak to Ms. Quinones outside. She went out to speak with him and he told her "you see this referral? This is going to go in Mr. Wargo's [the principal] office." Joana Quinones told him to go ahead and went back into class. Joana Quinones was upset because Mr. Garcia was following her as she went to the office and knew to speak to her about having gone to the office so soon after she had done so. While she was changing classes, Mr. Garcia again confronted her and began saying to her in a loud voice "You are something young lady.... You're mother needs to get soap and wash your mouth out." This exposed her to embarrassment in front of other students. The school administration received letters in May, 1989 from the father of Silvia Licor, the mother of Joana Quinones and from Mr. Sales complaining about Mr. Garcia. These letters reflect, in general, an awareness in the community of Mr. Garcia's conduct, and such dissatisfaction with Mr. Garcia that Mr. Garcia had lost his effectiveness as a teacher within the community. A disciplinary conference for the record was held with Mr. Garcia and Mr. Wargo on June 12, 1990, to discuss the parent complaints. During that conference Mr. Garcia was directed by Mr. Wargo that any complaints he had about discriminatory treatment were to be made directly to Mr. Wargo, that there was to be no recrimination made against any student who made a complaint to the administration about him, and that Mr. Garcia was to refrain from the use of abusive and threatening language to students both in and out of class. Mr. Wargo also asked the Board's Special Investigative Unit to investigate the accusations of use of inappropriate language in class. For the school year ending in June of 1989 Mr. Garcia received an unacceptable evaluation under the Dade County Teacher Assessment and Development System. His teaching was found acceptable during the 1988-89 school year in categories I-VI, which are preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, student-teacher relationships, and assessment techniques. His teaching was found unacceptable in the area covered by category VII, professional responsibility. The deficiencies were that The teacher's comments to students include sarcasm, ridicule and profanity; and The teacher did not follow proper procedures in handling and referring students to the office; and The teacher used inappropriate behavior in dealing with students, teachers and administrators. The unacceptable evaluation was actually the second evaluation completed for Mr. Garcia covering the 1988-89 school year. The first evaluation was done after Mr. Wargo, the principal, observed Mr. Garcia teaching during a class period on March 16, 1989. An evaluation finding him acceptable was signed by the principal on May 19, 1989. It did include a remark that "attitudes and perceptions on part of students need to be considered." That evaluation was replaced, however, with the new evaluation described in Finding 18 on September 25, 1989. Mr. Wargo prepared it after he had received the report of the findings of the school board's Special Investigative Unit, which he had asked to investigate the complaints about Mr. Garcia's use of inappropriate language during the 1988-89 school year. A prescription for remediation of Mr. Garcia's deficiencies was prepared at about the same time. Part of the prescription prepared for Mr. Garcia required Mr. Garcia to read pages 263-280 of the Teacher Assessment and Development System Manual, and to discuss with assistant principal De La Torre ways of providing positive feedback to students. This discussion was to be held by October 22, 1989. Dr. De La Torre had a conference with Mr. Garcia on October 25th to discuss the prescription. The time frames for some of the other activities in the prescription extended through the end of the 1989-90 school year. Mr. Garcia wanted Dr. De La Torre to shorten some of the prescription timeliness because he wished to transfer to another school, but he could not do so if he was still on prescription at Hialeah High School. During their conference, Dr. De La Torre mentioned that during the previous year, Mireya Sales had complained that Mr. Garcia had used the Spanish word for testicles in class. During that October 25, 1989 conference Mr. Garcia somehow turned that fact around, and accused Dr. De La Torre of insulting him by using the word for testicles. Mr. Garcia became highly agitated in his conference with Dr. De La Torre and accused her of not liking Hispanic men. He left, and when he came back told Dr. De La Torre "I don't like the way you treat me." Dr. De La Torre made a memorandum of her conference with Mr. Garcia the next day, October 26, and sent it to the Principal, Mr. Wargo. Mr. Wargo then held a conference with Dr. De La Torre and Mr. Garcia to discuss the accusation which Mr. Garcia had made against Dr. De La Torre of discriminating against Latin males. This was a direct contravention of the instructions given to Mr. Garcia during the June 12, 1989, conference for the record, that any complaints of discrimination which he felt he suffered were to be brought directly to the attention of Mr. Wargo. It constitutes insubordination. Mr. Garcia's conversations with Dr. De La Torre and Mr. Wargo show that he can become extremely agitated or hostile very quickly when confronted with questions about his conduct. The expert testimony of Dr. Gray has established that it is professionally inappropriate for a teacher to interrupt classes of another teacher in order to speak with a student outside, and Mr. Garcia's actions in doing this were counterproductive for students, who had their learning experiences interrupted. It is also inappropriate to pull students from another class as a means of handling student discipline. It is professionally inappropriate for a teacher to use profane or vulgar language when dealing with students in a classroom setting and especially inappropriate to embarrass students, such as calling Mireya Sales a little tramp, or confronting Joana Quinones in the hall while other students are changing classes, and loudly questioning the manner in which her parents have brought her up. It is certainly inappropriate for a teacher to threaten students with reprisals for cooperating with an investigation of a teacher's conduct. The testimony of the students, and the letters from parents establish that Mr. Garcia has, through his conduct, lost the confidence of students and parents and that his effectiveness as a teacher has been lost. There is no persuasive expert testimony showing that Mr. Garcia is incompetent, however. There is no evidence that Mr. Garcia persisted in using profane or other inappropriate language in his classes during the 1989-90 school year, after he was specifically warned against doing so in the June 12, 1989 conference for the record and in the re-evaluation of his teaching performance for the 1988-89 school year in the second TADS evaluation prepared in September 1989. See, Finding 18.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the School Board of Dade County finding Mr. Garcia guilty of misconduct in office, immorality and gross insubordination and sustaining his dismissal from employment with the School Board of Dade County, and that the Education Practices Commission enter a Final Order with respect to Mr. Garcia's teaching certificate, imposing the penalty of a revocation of his teaching certificate, that he not be permitted to reapply for a teaching certificate for a period of ten years, and that before he may re- qualify to receive a certificate, he must complete appropriate university level instruction in classroom management and a separate class in stress control. Any recertification of Mr. Garcia following the period of revocation should be accompanied by a period of probation for monitoring of Mr. Garcia's performance in the classroom following recertification. DONE and ENTERED this 28th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER Rulings on findings proposed by the school board: Rejected as unnecessary. Generally adopted in Findings 8 and 9. Generally adopted in Finding 9. Rejected as subordinate to Finding 4. Rejected as subordinate to Findings 4 and 5, although the persuasive evidence deals with seventh period, not second period. Rejected as subordinate to Findings 7 and 8, although the final two sentences are generally adopted in Finding 14. Implicit in Finding 5. Generally subordinate to Finding 4, although the incident at the windows is discussed in Finding 7. Discussed in Finding 15, to the extent necessary. Subordinate to Finding 5. Generally adopted in Finding 20. The final sentence is discussed in Finding 11. Rejected as unnecessary. With respect to Silvia Licor, discussed in Finding 14, with respect to Mercedes Blason, discussed in Finding 13. Subordinate to Finding 22. Rejected as unnecessary, the more convincing evidence has to do with the seventh period. Discussed in Finding 23. Rulings on Findings proposed by the Commissioner of Education: Adopted in Finding 1. Adopted in Finding 2. Generally adopted in Finding 4. Generally adopted in Finding 4. Generally adopted in Finding 4. Generally adopted in Finding 7. Generally adopted in Finding 7. Generally adopted in Findings 4 and 7. Adopted in Finding 8. Adopted in Finding 9. Adopted in Findings 8 and 13. Adopted in Findings 8 and 14. Generally accepted in Findings 3 and 5. Rejected as unnecessary. Generally rejected. The inconsistency in academic approach would more properly be categorized as an incompetence, but insufficient evidence was presented to show that Mr. Garcia is incompetent. Evidence of diminished effectiveness arises from misconduct more than from inconsistency in teaching. The evidence in respect to problems with Mr. Jaworski was some what superficial, and is insufficient to make a finding upon. In view of the other persuasive evidence, it is also cumulative or unnecessary. The incident with Dr. De La Torre is discussed in Findings 20 and 21. Discussed in Finding 20. Subordinate to Finding 17. Subordinate to Finding 17. Discussed in Finding 17. Discussed in Finding 8. Mr. Garcia's explanation for his conversation with Ms. Sales the following day has been rejected. See, Finding 9. Discussed in Finding 7. Adopted in Finding 23. Rejected as unnecessary. Discussed in Finding 4. See, Finding 4. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Generally rejected. See, Finding 4. Rejected as unnecessary. See, Findings 4 and 23. Adopted in Finding 4. Generally accepted in Finding 23. See, Finding 7. Adopted in Findings 9, 14, 15 and 16. Generally accepted in Finding 8. Rulings on findings proposed by Mr. Garcia: 1. Adopted in Findings 1 and 2. 2 - 4. Discussed in Finding 7. Rejected as subordinate. Rejected as unpersuasive., because many of the students were not in the same class. The testimony of the students concerning inappropriate language was persuasive. Rejected as inconsistent with the Hearing Officer's view of the evidence. Adopted in Findings 17, 18 and 19. With respect to inappropriate language, see, Finding 24. The remainder is rejected. Rejected. See, Finding 21. Rejected. See, Findings 17, 18 and 19. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 William DuFresne, Esquire DuFresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Betty J. Steffens, Esquire McFarlain, Sternstein, Wiley & Cassedy, P.A. 600 First Florida Bank Building Post Office Box 2174 Tallahassee, Florida 32316-2174 George A. Bowen, Acting Executive Director Department of Education 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Department of Education Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Superintendent of Schools Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 Madelyn Schere, Esquire Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132
The Issue The issue in this case is whether Respondent is guilty of misconduct in office or wilful neglect of duty as a teacher.
Findings Of Fact Respondent is a professional chef. After teaching at two schools for 17 years in Massachusetts, Respondent moved to Florida and became a culinary arts instructor at Mid-Florida Tech in January, 1990. Mid-Florida Tech is a vocational educational center operated by Respondent, evidently for students of at least high school age. Respondent was employed at Mid-Florida Tech as a culinary arts instructor through May, 1993. For the 1992-93 school year, Respondent was employed under a professional service contract. Typically, the culinary arts program leads to a certificate certifying that the student has completed the course requirements in training to become a chef. The course normally takes 18 months of classwork, which consists mostly of practical exercises by the students preparing various types of food. There is little lecturing in the class, which is located in a very large institutional kitchen with four or five workstations. There is an adjoining dining room in which the students can serve the meals that they have prepared. There is also a walk-in refrigerator in which various foods are stored. Respondent has an office adjoining the kitchen area. The office has a large window with no blind, so that it is visible from almost all points within the kitchen. Respondent taught the students and was assisted on an occasional basis by two visiting chefs. Much of the classwork, which took place daily from about 7:30 am to 2:00 P.M., consisted of students preparing food under the direct supervision of Respondent, who would circulate among workstations through the vast kitchen. The class during the 1992-93 school year was loosely structured. Several of the students were special education students. Some students presented behavioral problems. Some students were adults who were expressly interested in retraining for a new career. For a variety of reasons, attendance was sometimes irregular as some students merely cut the class and others could not always attend due to the conflicting demands of children and jobs. J. D. became a student at Mid-Florida Tech in February, 1993. She enrolled in the culinary arts department and was assigned to Respondent's class. The mother of four children, J. D. received financial assistance from a private industry council and intended to obtain her culinary certificate in order to begin a new career and better support her children financially. J. D. became uncomfortable in Respondent's classroom due to the sexual tone of Respondent's comments. Respondent interspersed numerous sexual jokes and innuendos with his teaching. Amid the confusion that often prevailed in the class, Respondent would circulate, "entertaining" the students with various comments and behaviors, such as a recurring imitation of stereotypical behavior associated with male homosexuals. In this routine, Respondent would place one hand on his hip, hold another hand in front of him with a limp wrist, raise his voice an octave, and sometimes muse to the class whether he wanted a boy or a girl today. At some point, the sexual humor became vulgar by any reasonable standard. Respondent one time recounted to J. D. that he had a dream that she was sitting on his face while he was having oral sex with her and, when he awoke, he found his cat sleeping on his face. Respondent recounted versions of this dream to J. D. on two occasions: one time they were in the kitchen out of hearing range of other students in the area and another time in the presence of another male classmate E. K., who was a good friend of J. D. On another occasion, J. D. was speaking to Respondent about an upcoming test. There were various competencies that each student had to demonstrate to Respondent's satisfaction in order to progress to the point where they could take the final test leading to the certificate at the conclusion of the program. Respondent assured her that if she had sex with him "three different ways" that she would not have to take the test. Another time, as J. D. and Respondent were talking just outside of his office, he said to her, "Come behind my desk and given me some head." By "head," Respondent was referring to oral sex. On one other occasion, Respondent greeted J. D. with the remark that she looked hot and he wanted to peel the pants off her. The record does not disclose any additional remarks that Respondent made to J. D. directly or to the women in the class generally. However, he did, on more than one occasion, moan as J. D. walked by him. Three times Respondent initiated offensive touching. One time, he followed J. D. into the walk-in refrigerator and briefly grabbed her buttocks. Another time he passed by her closer than was necessary and brushed her breasts with his hand or shoulder. Another time he squeezed against her body as she and other students were circled around a workstation watching a demonstration by a visiting chef. The above-described sexual behavior was unwelcome by J. D., who found Respondent repulsive. In part due to a vast difference in their size and personalities--Respondent is more extroverted and J. D. more introverted--J. D. felt intimidated by Respondent. She did not ask him to stop this offensive behavior for fear of offending him and jeopardizing her ability to obtain a chef's certificate. She did not complain to other teachers or administrators until May, 1993, for the same reasons. Due to her increasing repulsion at Respondent's behavior and the demands of a new job, J. D.`s attendance fell off somewhat toward the end of Respondent's employment with Mid- Florida Tech. There is no doubt that Respondent's behavior, regardless of his intentions, interfered with J. D.'s education and would have interfered with the education of any reasonable person under the circumstances. Another perspective on Respondent's behavior during the 1992-93 school year is provided by a female staff person, Clair Blanchard. Ms. Blanchard is a special needs coordinator, whose responsibilities required that she visit Respondent's classroom periodically to monitor the progress of the special education students attending Respondent's class. Respondent's routine with Ms. Blanchard was to hang over her at Wednesday luncheons, in front of all the other students, singing in imitation of the entertainer, Dean Martin. Respondent would get in Ms. Blanchard's face and tell her she was beautiful. He would wrap his massive arms around her, as well as other females in Ms. Blanchard's presence. Ms. Blanchard repeatedly demanded that Respondent stop hugging her and he ignored her. On another occasion, Ms. Blanchard and Respondent had a conference with a male student, whose misbehavior jeopardized his continued enrollment at Mid-Florida Tech. The purpose of the meeting was to discuss the student's behavior and warn him that he could be expelled if he did not straighten out. Despite the gravity of the situation, Respondent undercut Ms. Blanchard's role by constantly blowing her kisses across the desk in full view of the student. A situation unrelated to the present case led to Respondent's removal from the classroom in May, 1993. Respondent did not endear himself to certain administrators at Mid-Florida Tech for a variety of reasons, such as his involvement of the union in a pay issue, flamboyant classroom behavior, and loose classroom management. In any event, a long-standing dispute concerning Respondent's contract status came to a head toward the end of the 1992-93 school year. Fearing that Respondent would not be hired to teach the following year, various students became involved in an effort to retain Respondent. Many of the students were quite fond of Respondent. Some of the students feared only that the culinary arts course would be discontinued if Respondent were not rehired. It is unclear to what extent Respondent was involved with the students' efforts, but he did telephone a newspaper reporter, hand the phone to J. D., and ask her to tell the reporter what was going on and express her support for Respondent. J. D. did as instructed, and the reporter told her that there was no story there. Sensing that Respondent was behind the students' efforts to allow him to keep his job, the administration relieved Respondent of his teaching duties on May 14, 1993, and assigned him administrative duties until the end of the school year. Respondent's replacement was Valerie Shelton, who was a female teacher in the culinary arts program. Two weeks after Ms. Shelton assumed Respondent's duties, J. D. felt sufficiently emboldened to complain to her about Respondent. Ms. Shelton arranged for the still-reluctant J. D. to speak with an administrator. Following an investigation, Petitioner terminated Respondent's contract on the grounds set forth in the Administrative Complaint. Respondent provided no insight into his behavior, as he elected at the hearing to deny that any of the above-described events took place. Likely, Respondent intended to be humorous with at least some of his comments. As J. D. reported to Ms. Shelton, J. D. herself believed at first that Respondent's behavior was, although in poor taste, only joking. However, as the comments became more vulgar and accompanied by offensive touching, J. D. was more profoundly affected by Respondent's behavior. Regardless of Respondent's true intent, J. D. became more reluctant to attend class and contemplated dropping out of the culinary arts program. Regardless of Respondent's specific intent or state of mind when engaging in this behavior, the reaction of J. D. was reasonable under the circumstances. Respondent's conduct constitutes misconduct in office as it pertains to J. D. Respondent's misconduct, as described above, was so serious as to impair his effectiveness as a teacher in the school system. In addition to the effect that he had on J. D., Respondent undercut the authority of another teacher, Ms. Blanchard, and thereby implicitly condoned student misbehavior and explicitly reinforced the sexually abusive classroom atmosphere. Despite Ms. Blanchard's protests, Respondent continued to hug her repeatedly in the presence of students and treated her in a demeaning manner based on sex. This behavior undermined her authority with the special needs students and, more importantly, with the other students who periodically mistreated the special needs students.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Orange County School Board enter a final order terminating Respondent's contract for misconduct in office. ENTERED on April 4, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 4th day of April, 1994. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-4860 Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3-4: rejected as recitation of evidence. 5: rejected as subordinate. 6: rejected as recitation of evidence. 7-22: rejected as subordinate. 23-28: adopted or adopted in substance. 29: rejected as subordinate. 30-31: adopted or adopted in substance. 32: rejected as subordinate. 33: rejected as recitation of evidence. 34: adopted or adopted in substance. 35-36: rejected as subordinate. 37-38: rejected as irrelevant. 39-41: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4-5: rejected as subordinate. 6-9: adopted or adopted in substance. 10-11: rejected as recitation of evidence and subordinate. 12-13 (first and second sentences): adopted or adopted in substance. 13 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 14: rejected as subordinate. 15-16: rejected as unsupported by the appropriate weight of the evidence. 17: rejected as unsupported by the appropriate weight of the evidence to the extent that the effect of Respondent's offensive behavior is discounted. 18: rejected as irrelevant. 19-27: rejected as subordinate. COPIES FURNISHED: Hon. Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Donald Shaw Superintendent, Orange County School District P.O. Box 271 Orlando, Florida 32802-0271 Rosanna J. Lee Honigman, Miller 390 Orange Ave., Ste. 1300 Orlando, Florida 32801-1677 Ronald G. Meyer Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, Florida 32302 Frank C. Kruppenbacher Kruppenbacher & Associates, P.A. P.O. Box 3471 Orlando, Florida 32801-3685
Findings Of Fact At all times material hereto, Respondent was a 14 year old, seventh grade student at Nautilus Junior High School in Dade County, Florida, and all events occurred during the 1986-1987 school year. Mrs. Rita Gold was Respondent's fifth period English teacher. On September 10, 1986, she initiated a student case management referral form as a result of a series of confrontations with Respondent. From the very beginning of the 1986-1987 school year, Mrs. Gold had experienced Respondent's behavior in her class as both disruptive and disinterested, although he had been in attendance up to September 10, 1987. Initially in each school year, each student is given, and is required to complete the Florida State assessment tests. These are essentially for diagnosis of skills and placement in classes. Because Respondent informed Mrs. Gold that he had taken these in a concurrent class, she did not administer the assessment tests to him in her class. Thereafter, she discovered that he had lied and she must administer the tests to him during her class period. This took additional time when he and other students could better have been doing something else. When she presented the tests to him, Mrs. Gold observed Respondent filling out the answer blanks without taking the time to read the question sheet. She is certain of his persistent defiant attitude and refusal to obey her instructions in this regard because he continued to fill out the answer sheet without turning the pages of the skills questionnaire. On other occasions, Respondent made loud rebel outbursts in either English or Spanish of the type that follows: "I have to go to the bathroom!" "I want water!" "I don't understand this!" These outbursts were annoying to Mrs. Gold and disrupted normal classroom decorum. They are inappropriate for one of Respondent's age and Presumed maturity. Further disruptive and disrespectful behavior of Respondent that was noted by Mrs. Gold in her class are that: Respondent often spoke loudly when Mrs. Gold herself attempted to instruct the class; and on one occasion Respondent refused to come to her desk to get a book and announced to the rest of the class that she must bring it to him at his seat (Mrs. Gold has tried Respondent in several assigned seats and he has found fault with all of them). Respondent was chronically tardy; he refused to take home a deficiency notice to let his parents know he could fail the first 9 weeks' grading period but had time to improve; he did not read or write anything in class for the first full 9 weeks unless Mrs. Gold worked on a one-to-one basis with him; sometimes Respondent sat in class with his jacket over his head. Mrs. Gold feels there is no language barrier to Respondent's understanding what she wants. The parents gave her no report of medical disability which would account for Respondent's need for frequent fountain and bathroom requests. Mr. George A. Nunez is a physical education teacher at Nautilus Junior High School. He prepared a case management referral form on Respondent on October 2, 1986. This referral was a culmination of a series of incidents involving Respondent's chronic tardiness, repeated refusals to "dress out" and failure or refusal to remain in his assigned area of the grounds or gymnasium. All of these "acting out" mechanisms of Respondent were described by Mr. Nunez as an "I don't care attitude" and as "intolerable." Mr. Nunez is bilingual in English and Spanish and reports he has no communication problem with Respondent on the basis of language. The communication problem is the result of Respondent's disinterested and disrespectful attitude. All of Respondent's behavior problems were at least minimally disruptive to normal physical education class procedure and all attempts at teaching, but his wandering from the assigned area particularly disrupted other students' ability to learn in Mr. Nunez's class and in other physical education classes held simultaneously. Respondent was belligerent when replying to Mr. Nunez' remonstrances for not standing in the correct place. In the first grading Period of the 1986-1987 school year, Respondent had 8 absences and 3 tardies in physical education, which can only be described as chronic and excessive. He also had no "dress outs." Failure to "dress out," in the absence of some excuse such as extreme poverty, must be presumed to be willfully disobedient and defiant. Respondent did not fulfill his detentions assigned by Mr. Nunez as a discipline measure and repeated his pattern of chronic tardiness and absences in the second grading period, which absences and tardies were recorded by Mr. Nunez on behalf of another teacher who had been assigned Respondent. Stanton Bronstein is a teacher and administrative assistant at Nautilus Junior High School. On September 17, 1986, Mr. Bronstein discovered Respondent in the hallway during second period without a valid reason. He concluded Respondent was "cutting" class when Respondent provided no valid reason for being out of class. On October 3, 1986, Bronstein observed Respondent enter the hallway at approximately 12:30 p.m. Respondent had no satisfactory explanation for why he was out of class or of what he had been doing, and Bronstein concluded Respondent had cut his first through third period classes. Each of these incidents resulted in student case management referrals. On October 6, 1986, Bronstein initiated another student case management referral upon reports of classroom disruption and cutting made by a teacher, Mrs. O'Dell, who did not testify. No admission was obtained by Bronstein from Respondent on this occasion. The underlying facts alleged in the report originating with Mrs. O'Dell are therefore Uncorroborated hearsay, however the case management report of that date is accepted to show that Bronstein contacted Respondent's parents on that occasion and ordered outdoor suspension for Respondent. As of October 21, 1986, Respondent bad been absent from school a total of 10 whole days without any written parental excuse. When he returned on October 21, 1986, he was tardy and was referred to Mr. Bronstein who counseled with Respondent, received no acceptable excuse from him, and initiated a case management referral resulting in indoor suspension with a letter informing Respondent's mother of the suspension. After referrals for incidents on October 23, 1986 and October 31, 1986, further disciplinary measures were taken against Respondent, including a conference with Bronstein, the parents, an interpreter, and the principal, Dr. Smith, present. A series of detentions thereafter were not fulfilled by Respondent in defiance of school authority, despite several rearrangements of the times for the detentions so as to accommodate Respondent's schedule and requests. This resulted in further conferences between the school administrators and the parents with a final outdoor suspension. Dr. Paul Smith, Assistant Principal at Nautilus Junior High School, recounted a lengthy litany of referrals of Respondent by various teachers, a history of counseling sessions, Parental contacts, detentions, and suspensions which had failed to modify Respondent's disruptive, unsuccessful, and disinterested behavior. Respondent's grades for the first grading period of the 1986-1987 school year were straight "Fs" (failures). Respondent was frequently seen by Dr. Smith leaving school after he had once arrived. No medical condition was made known to Dr. Smith which would account for Respondent's misbehavior. Respondent has been evaluated by the child study team and Dr. Smith concurs in their analysis that it is in Respondent's best interest that he be referred to Jan Mann Opportunity School-North, where a highly structured alternative education program with a low Student-to-teacher ratio can control him Sufficiently to educate him. Bronstein concurs in this assessment. Both feel all that can be done in the regular school setting has been done for Respondent. At hearing, the mother, Mrs. Gonzalez, asked a number of questions which assumed that notes had been set to school asking that Respondent be given extra opportunities to get water because of excessive thirst, but no school personnel bad ever received any such notes. Despite numerous parent-school conferences, no school Personnel could remember this issue being raised Previously. By her questions, Mrs. Gonzalez also Suggested that Respondent had no gym clothes. However, Mrs. Gonzalez offered no oral testimony and no documentary evidence to support either premise and the parents' Posthearing submittal does not raise these defenses. The undersigned ordered the Respondent's posthearing proposal which was submitted in Spanish to be translated into English and thereafter considered it. The proposal only complains about the alternative educational Placement upon grounds of excessive distance of Jan Mann Opportunity School-North from the Respondent's home and states the parents will place him in a private school. Since Respondent has not already been withdrawn from the Dade County Public School System, the latter statement cannot be accepted as dispositive of all disputed issues of material fact, as it might be under other circumstances. As a whole, the Respondent's Posthearing Proposal is rejected as irrelevant, not dispositive of the issues at bar.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Jan Mann Opportunity School-North until such time as an assessment shows that Respondent can be returned to the regular school system. DONE and RECOMMENDED this 12th day of June, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 12th day of June, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 Norma Gonzalez 657 Lennox Avenue, Unit No. 1 Miami Beach, Florida 33139
Findings Of Fact In the summer of 1981, Christopher Max Grix (Chris), a tenth-grader, was one of some 1,100 students enrolled in the combined Miami Beach Senior High School-Nautilus Junior High School summer school program. On Monday, July 20, 1981, George Thompson, a security man at the school, took Chris, John DeBlasio, and a third youth to the school office. Mr. Thompson told Solomon Lichter, the principal, and Assistant Principal Nockow, that he had seen these three boys shoving one another. As a result, each student received a three-day suspension, ending with the opening of school on Thursday, July 23, 1981. At about 7:20 on the morning of July 27, 1981, Chris and John DeBlasio had another "confrontation." When it ended, Chris fled in his car to the principal's office. There he reported that some "niggers and spics" had jumped him on school grounds along 42nd Street, and complained that the principal had not done "a damn thing about it." Although Mr. Lichter asked Chris to remain seated, Chris jumped up and left the office after he had been there only two minutes. While Mr. Lichter summoned the police, Carlton Jenkins, Jr., another assistant principal who was in an office near Mr. Lichter's, followed Chris and watched him drive away recklessly, stop near some students, and emerge from the car with a tire iron. Chris asked John DeBlasio's brother Alfred where John had gone. Wielding a tire iron, Chris shoved Alfred and threatened to kill him. He made the identical threat to Mark Allen Uffner, and also shoved him. After the tire iron was back in Chris's car, and after Alfred and George Korakakos had subdued Chris in a fist fight, Uffner ran to meet Assistant Principal Jenkins and Principal Lichter as they approached from the school office, and gave them a full report. Chris was gone by the time the police arrived. Later on the morning of July 27, 1981, Messrs. Lichter and Nockow left the summer school grounds for the campus of Miami Beach Senior High School to look for some walkie-talkies. While they were there, Chris, his older brother, and a third young man arrived. When Chris's older brother asked what had happened, Chris gave his version in colorful language. Mr. Lichter told Chris he was going to suspend him from school if he did not calm down. After Chris continued complaining about "niggers, spics, and the school principal," Mr. Lichter announced that Chris was suspended and ordered him to stay off school grounds for ten days. The trio left the campus of Miami Beach Senior High School but later on, at midday on July 27, 1981, Alfred DeBlasio saw Chris and the others on the summer school (Nautilus Junior High School) campus near 42nd Street, with knives and crow bars. Chris and traveling companions were equipped with ax handles, and were threatening Uffner, among others. A security man told Mr. Jenkins that a gang of students was headed toward Chris's car behind the cafeteria. Mr. Jenkins called after Chris's car as it left, ordering Chris not to return to school for the rest of the day.
The Issue By petition for the revocation of teacher's certificate dated August 5, 1980, the Professional practices Council alleged that respondent "violated Section 6B5.03(1)(a), Rules of the State Board of Education [RSBE], in that he failed to keep records"; "violated Section 6B5.03(2)(a) [RSBE], in that he failed to utilize available instructional materials and equipment necessary to accomplish the designated task"; "violated Section 6B5.05(1)(a) [RSBE], in that he failed to provide frequent and prompt feedback covering the success of learning and good achievement efforts"; "plead[ed] guilty to driving while intoxicated" on or about March 29, 1979; "plead[ed] no contest to driving while intoxicated" on or about August 19, 1974; "was found guilty of driving while intoxicated" on or about April 22, 1967; "committed personal conduct which seriously reduces his effectiveness as an employee of the School Board, . . . committed acts which are not a proper example for students, and . . . failed[ed] to meet the minimum standard of competent professional performance"; "all in violation of Florida Statutes Section 231.28, Section 231.09 and Section 6B5."
Findings Of Fact The parties stipulated that respondent holds Florida Teacher's Certificate No. 039140, Graduate, Rant III, in the areas of physical education and social studies, due to expire on June 30, 1982. In the fall of 1967, after obtaining the B.S. degree from Florida Memorial College in St. Augustine, respondent, who was 57 years old at the time of the hearing, began working for the Duval County School Board. He first taught American history at Standard Vocational High School. After two years at Standard Vocational, he began at Fort Caroline Junior High School in 1969, where he taught ninth grade civics for two months, then physical education, after which he left off teaching and worked as an administrative assistant, with responsibilities for discipline and supervision of students in the cafeteria and bus loading area. Respondent then worked at Darnell Cookman as an administrative assistant until that school closed, when he returned to Fort Caroline Junior High School, as an administrative assistant. In the fall of 1974, Mr. Richardson began as an administrative assistant at Andrew Jackson, a position he held through the end of the 1976-1977 school year. In the fall of 1977, he began teaching geography and American history at Landon Junior High School. The next school year Mr. Richardson received an unsatisfactory evaluation from his principal, the first such evaluation in his career. In accordance with school board policy in such circumstances, his request for a transfer was honored and he began teaching in the fall of 1979 at Oceanway Seventh Grade Center (hereinafter "Oceanway"). On June 8, 1974, a Saturday, respondent was arrested and charged with driving while intoxicated. On his plea of nolo contendere, he was found guilty as charged on August 23, 1974. Respondent was again arrested on March 10, 1979, also a Saturday, and charged with driving while intoxicated. He was adjudicated guilty on his plea of guilty on March 20, 1979. Judith Poppell began as principal at Oceanway in the fall of 1979. Before she met respondent, she received a letter informing her that his work the preceding school year had been evaluated as unsatisfactory and asking her to evaluate respondent no later than October 31, 1979. At all pertinent times, only the Oceanway principal, the dean of boys, and the dean of girls had authority to administer corporal punishment. Any teacher, however, was authorized to use reasonable force to break up a fight or in self-defense. On the morning of September 26, 1979, Mr. Richardson had responsibility for supervising students in the area where they were disembarking from buses. He directed the students to stand clear of the bus ramp and placed his hand on a 15-year-old boy who hung back. The student called respondent a "motherfucker" and threw his books at Mr. Richardson, breaking his glasses. Respondent then pushed the student to the ground. Ms. Poppell asked respondent and the other teachers at Oceanway to furnish her copies of lesson plans weekly. Respondent furnished Ms. Poppell copies of lesson plans, but some were late or incomplete or, in Ms. Poppell's opinion, unrelated "to the minimum skill objectives." (T. 121) It appeared to her "that what in fact [respondent] was doing was going sequentially in the textbook" (T. 125) rather than teaching what would be tested on the minimum level skills test, a standardized achievement test administered county wide. On October 3, 1979, Ms. Poppell observed respondent teaching his Man and Society class at which time "the students were involved in a discussion of values and beliefs and needs, which is part of the course material." (T. 127) During this class, respondent lectured and, in Ms. Poppell's opinion, "did make some very good points" although eventually the students "began to get wiggly." (T. 127) On October 17, 1979, Ms. Poppell was in or near the gymnasium "getting together a candle order to be filled" (T. 128) when she heard respondent lecturing on softball to a physical education class which included "some children . . . who were disciplinary problems." (T. 129) While Ms. Poppell was listening, respondent shouted to a student, "Shut up. I'm not talking to you." (T. 129) During the 1979-1980 school year, Wade Randall Godfrey, a seventh grade student in Mr. Richardson's physical education class, complained to Joseph H. Fowler that Mr. Richardson had hit him with an aluminum baseball bat. After looking into this allegation, Mr. Fowler "could not find any evidence that [Godfrey] was actually struck by a baseball bat." )T. 43) Neither did the evidence adduced at hearing establish that respondent struck the student Godfrey with a baseball bat. On October 31, 1979, Ms. Poppell evaluated respondent's work as unsatisfactory based on her observations and those of Dr. Beyerle and Mr. Kitchens, which she related to respondent. At that time she suggested that respondent join ten other Oceanway teachers for an after school seminar (1.5 hours for each of six successive days) "designed to help teachers deal with disruptive students." (T. 130) Respondent did not avail himself of this opportunity because he coached soccer after school Respondent did attend two days of observation of physical education programs, at the behest of school administrators. Ms. Poppell asked the head of the social studies department at Oceanway, Mrs. Wiggins, to assist respondent in the preparation of lesson plans. At Mrs. Poppell's instance, Mrs. Wiggins spoke to respondent in November of 1979 about the failure of respondent's lesson plans to "follow the minimum level skills booklet." (T. 63) She began preparing respondent's lesson plans for him and continued preparing them for four or five weeks. In mid December, Mrs. Wiggins complained to the principal that a classroom she used the period after respondent had taught a class in it was littered with paper. Mrs. Poppell wrote respondent a note about the incident which Mrs. Wiggins took from respondent's mail box. Mrs. Wiggins meant to intercept the note to avoid hard feelings on respondent's part, but did not realize that respondent had already read and replaced it. After this episode, respondent prepared his own lesson plans, unassisted. While Mr. Richardson taught at Oceanway, Richard Edward Chandler was a student in his first semester Man and Society class. Mr. Richardson gave this class several tests. In one instance, he passed out only three to five copies of a test to the entire class. On that occasion, he instructed the recipients to pass the test copies on to other students after copying the test questions. As a result, the student Chandler did not have enough time to finish the test. According to respondent, he meant for the students to work in groups on the test, a technique he has concededly never used before or since. At the end of the first grading period in the fall of 1979, respondent was one of a number of teachers to whom John A. Beyerle sent messages because all of their students' grades had not been reported on time. Mr. Richardson was late with grades for eleven students, at the end of the first grading period. At the end of the second grading period, he was late with grades for seventeen students. James Kitchens, a physical education supervisor for the Duval County School Board, observed respondent teaching on two occasions. The first time was incidentally in October of 1979 when he was evaluating the physical education program at Oceanway as a whole. On one visit or another, Mr. Kitchens observed some students "running loose," (T. 173) and probably on the second visit, remarked the inefficient use of tumbling mats: single lines of students crossed mats longitudinally instead of double lines crossing the widths of the mats. Mr. Kitchens agreed that respondent had "some basic competence and skills in physical education management" (T. 180) but detected "some rustiness." (T. 180) On December 5, 10, and 11, 1979, Maurice Shuman, Duval County School Board's supervisor for social studies, observed respondents teaching his social studies classes. Mr. Shuman testified, "If I were going to evaluate Mr. Richardson certainly I would need, you know, a greater number of visits" (T. 197) and offered various suggestions and comments he felt would be helpful to respondent in his teaching. Dr. Beyerle observed respondent teaching two classes. On the first occasion, respondent spent the hour reviewing and, although Dr. Beyerle perceived certain "weaknesses," he really c[ould]n't say it was a bad lesson." (T 190) On the second occasion, respondent taught "a pretty good lesson." (T. 90) On at least one occasion, respondent failed to call the roll in a social studies class. At various times, respondent lectured, engaged students in "well paced" questions, used a globe, cassettes, and ditto sheets. Under the Duval County School Board's policies, no student could pass either the seventh grade geography or Man and Society courses, if he failed a standardized test administered at the end of the course, regardless of his performance in class or on other tests. In violation of this policy, respondent gave passing grades to two students, Carmella Scott and Anthony Watts, who had failed the minimum level skills test (MLST). Of approximately 36 students in respondent's first semester Man and Society class, eight failed the MLST, including students who had received "B"s for the 9- and 18-week grading periods and who had done well on a final exam respondent prepared.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that petitioner suspend respondent's teacher's certificate for one (1) year. DONE AND ENTERED this 3rd day of February, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1981.
The Issue The issues to be determined are whether Respondent, Diane Velez, violated section 1012.795(1)(g) and (j), Florida Statutes (2017), and Florida Administrative Code Rule 6A-10.081(2)(a)1., and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor of the witnesses, the testimony given, and the documentary evidence received, the following Findings of Fact are made. Respondent holds Florida Educator’s Certificate 789520, covering the areas of Elementary Education, English for Speakers of Other Languages, (ESOL), and Exceptional Student Education (ESE), which is valid through June 30, 2020. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an ESE teacher at Stillwell Middle School (Stillwell) in the Duval County School District. She has been teaching for approximately 20 years, with no prior discipline. Respondent teaches in a wing at Stillwell that is referred to as the SLA Unit, which stands for Supported Level Academics. The students in the SLA Unit are cognitively delayed and have all of their classes in this self- contained unit. The SLA Unit is located in a wing at the back of the school, near the bus loop. If someone is looking down the hall from the doors closest to the rest of the school, there are female and male bathrooms for students to the left and right, respectively, closest to those doors. From those bathrooms, there are five classrooms on each side of the hall. Ms. Velez’s classroom is the third classroom on the right-hand side of the hallway. There are additional restrooms in the wing, all congregated in the area between the third and fourth classrooms on the left hand side of the hallway. At least one of those bathrooms is entered from within a classroom. Stillwell had a policy that if a student was given permission to leave the classroom, the student should not be gone for more than eight to ten minutes without the teacher calling for assistance to locate the student. Teachers could call for assistance from Ronald Messick, the lead ESE teacher; send a paraprofessional to look for the student; or call the front office or a resource officer. The eight-to-ten minute window was not a written policy, but was discussed during pre-planning meetings at the beginning of the year, as well as at faculty meetings. While attendance logs from pre-planning and faculty meetings were not introduced to establish that Respondent was present during faculty meetings or pre-planning meetings, no evidence was presented to indicate that she was absent. In addition, the 2017-2018 Faculty Handbook (Handbook) for Stillwell had more than one section that addressed supervision of students. For example, under the caption “Supervision of Students,” beginning on page 12 of the Handbook, it states:1 It is the responsibility of the school to provide supervision for students in attendance. It is the teacher’s responsibility to make sure that students in his/her charge are supervised at all times. Teachers should be aware of the legal and progressive discipline aspects of failure to provide adequate supervision. Students should always have adult supervision. Under the caption “Hall Passes,” on page 16 of the Handbook, it states: Hall passes are to be used for emergencies only. In an effort to reduce the number of students out of class during instructional time, each classroom will have either a lime/orange vest or a Colored clipboard. Students needing to leave the classroom are required to wear the vest or carry the clipboard. Please make sure students continue to sign-out when leaving/returning to your classroom so if the vest/clipboard disappears, you will know who was in possession of it last. Only one student per class may be on a hall pass at any given time. If it is necessary that a student leave your classroom to go to an Administrative Office and your vest/clipboard is already being used, security will need to escort student(s) to and from the classroom. While it is our desire that no student be in the halls during instructional time, there are absolutely NO hall passes for any reason during the first/last 30 minutes of each class and NO hall passes during 2nd block each day unless called by an Administrator. Students who are found out of class during the first/last 30 minutes of the block will have the vest or clipboard taken and given to the Assistant Principal for you to retrieve. Students who are out of class, unaccompanied by security, and do not have a vest/clipboard will be 1 All italics, underlining, and bold used in the quoted material is as it appears in the Handbook. considered skipping and appropriate consequences will be assigned. The teacher will also be held accountable if not following school procedure. Finally, under the heading “Hall and Campus Monitoring,” it states in all capitals and bold letters, “STUDENTS SHOULD NEVER WALK BY THEMSELVES.” On or about January 11, 2018, J.L. was an 11-year-old female student in the sixth grade. J.L. was assigned to Respondent’s classroom, and has an Individual Education Plan (IEP). J.L. was a student in a class containing students who functioned cognitively at the lowest level for students at Stillwell. While those who testified could not state definitively what the IQ level was for the class, it was generally around 67-70. Ms. Velez described the class as one for which there was “a need to have eyes on them.” J.L. was new to the school during the 2017-2018 school year. On August 22, 2017, Ronald Messick sent an email to J.L.’s teachers, including Respondent, stating that J.L. could not be left alone and that she would “leave with a complete stranger.” He advised that when J.L. uses the restroom, she likes to play in it, and directed that the teacher who has J.L. the last period of the day needed to make sure she used the restroom. J.L.’s mother had called Mr. Messick the first week of school with concerns that J.L. had been unsupervised in the bus pick-up area. Her mother explained her concerns to Mr. Messick regarding J.L.’s need for constant supervision. The email referenced making sure that J.L. went to the bathroom before boarding the bus simply because she would have a long ride home from school. An IEP meeting was conducted for J.L. on October 12, 2017. Mr. Messick was present as the LEA (lead educational agency) representative, along with Ms. Velez, who wrote the IEP, and three others. J.L.’s IEP states that “[s]he has Williams Syndrome which is a developmental disorder that affects many parts of her body.” The IEP also states that J.L. “is a very trusting child and will walk away with a stranger. She does not distinguish friend from stranger and this causes danger to her safety,” and that J.L. “needs increased supervision to ensure her safety.” The statement that J.L. needs increased supervision to insure her safety is included in two separate sections of her IEP. Respondent was J.L.’s case manager. As her case manager, Respondent reviews, completes entries, and inputs other appropriate data in J.L.’s IEP. She was aware of the information contained in J.L.’s IEP. On January 11, 2018, J.L. was present in Ms. Velez’s classroom during the last period of the day. At approximately 2:05, she asked for, and received, permission to go to the bathroom. Ms. Velez allowed J.L. to go by herself. No adult or other student accompanied her. Allowing J.L. to go the restroom alone was not permitted by her IEP. Further, it appears to violate the policies outlined in the Handbook, which prohibits allowing hall passes for the first 30 minutes of each class. The final class of the day began at 2:05.2 It also runs afoul of the email sent by Mr. Messick at the beginning of the school year, which specifically directed that J.L. not be left alone. After J.L. was permitted to leave the classroom, T.B., a male student in Respondent’s class, also asked to go the bathroom, and was allowed to leave the classroom. Ms. Velez did not check to see where J.L. was before letting T.B. leave the classroom. T.B. was also unaccompanied. J.L. was absent from the classroom for approximately 24 minutes. There are no credible circumstances presented at hearing by which a student should be absent from the classroom for that length of time, regardless of 2 The Administrative Complaint does not charge Respondent with violating this policy, and no discipline is recommended for apparently doing so. It is included simply to show that there were multiple guidelines in place to prohibit allowing J.L. outside of the classroom alone. their mental capacity, the policy contained in the Handbook, or any policy discussed at faculty meetings. T.B. returned to the classroom before J.L. After he entered Ms. Velez’s classroom, T.B. apparently told Ms. Velez that J.L. was in the boys’ bathroom. Ms. Velez testified that she was about to look for her when J.L. returned to the classroom. Ms. Velez testified that she noticed J.L. had “a lot of energy,” and was breathing hard and her hands were shaking. Ms. Velez asked J.L. if she had been in the boys’ bathroom, and testified at hearing that J.L. responded that she did not want to get in trouble. J.L. became upset and asked to speak with the school nurse. Ms. Velez allowed her to go to the nurse’s office, this time accompanied by an eighth grade girl. While Ms. Velez described the child who accompanied J.L. as “very responsible,” it is noted that she was also a child in this classroom of children who represented the lowest functioning students at Stillwell. Lana Austin was the school nurse at Stillwell, and her office was down the hall from Ms. Velez’s room in the SLA wing. She testified T.B. was in her office when J.L. arrived. It was not explained at hearing whether T.B. had also asked Ms. Velez to go to the nurse’s office or just how he came to be there. When she arrived at the nurse’s office, J.L. was crying and somewhat distraught, and T.B. was also getting upset. Ms. Austin tried to get J.L. to tell her what was wrong, and J.L. kept saying they were trying to get her in trouble. J.L. wanted to call her mother, and Ms. Austin let her do so, because she believed it would calm her down. A paraprofessional came into Ms. Austin’s office while J.L. was on the phone with her mother. So while the paraprofessional was in the office with the students, Ms. Austin contacted Ms. Raulerson, the principal at Stillwell, and notified her there might be a problem so that someone could look at the hallway video and find out if anything happened. Ms. Austin knew that J.L. was a student who needed to be escorted. She was always brought to the nurse’s office by an adult. On this occasion, there was no adult. Jennifer Raulerson was the principal at Stillwell during the 2017-2018 school year. She is now the executive director for middle schools in Duval County. Ms. Raulerson testified that J.L.’s father came to the school immediately after J.L.’s telephone call home, and started asking questions. Because of the nature of his questions, consistent with school protocols, Ms. Raulerson contacted Stillwell’s school resource officer (SRO), Officer Tuten, as well as Mr. Messick and Ms. Hodges, who was the dean of students, to discuss with J.L.’s father what needed to be done to investigate what actually happened.3 The following morning, Ms. Raulerson, Ms. Hodges, and Mr. Messick spoke to J.L., T.B., and M.N., another student in the hallway, about what happened the day before. Based on their answers, Ms. Raulerson gave Ms. Hodges a basic timeframe, and asked her to check the cameras to see if she saw anything that would indicate that something happened involving J.L. and T.B. Ms. Hodges testified that a person can type in a date and time on the computer and look at a specific timeframe on the video, which is what she did. Once she viewed the video and realized how long a student had been out of the classroom, she went to Ms. Raulerson and they looked at the video again. Mr. Messick also watched the video with them. Administrators at the school could access the surveillance video on their computers. The surveillance video software has dates and times from which you can retrieve a time period to watch. However, when you download 3 Although they were under subpoena, neither J.L. nor J.L.’s father appeared to testify at hearing. Any statements attributed to them cannot support a finding of fact for the truth of the matter asserted. § 120.57(1)(c), Fla. Stat. Statements by J.L. that are included in this Recommended Order are not intended to establish the truth of her statements, but rather, to explain why teachers and administrators took the actions they did in response to the situation. a section of the surveillance video, the downloaded portion does not include the timestamp. When Ms. Raulerson viewed the surveillance video on the computer screen, she could see the time stamp. While the video in evidence as Petitioner’s Exhibit 17E does not contain the time stamp, Ms. Raulerson credibly testified that it is the same video she and the others viewed to determine whether J.L. and T.B. were out of the classroom and how long they were out of the classroom. Petitioner’s Exhibit 17E is a type of evidence commonly relied upon by reasonably prudent persons in the conduct of their responsibilities as a school administrator. There is no evidence that the tape itself has been altered, edited, or tampered with in any way. The lack of a time stamp is not all that important. What is important is not so much the time of day when J.L. and T.B. were absent from Respondent’s classroom, but the length of time that they were absent.4 Ms. Velez admits that she allowed both students to leave her classroom on January 11. She simply disputes how long J.L. was gone. The surveillance video is 39 minutes and 53 seconds long. The times given in the summary of the video activity below are based on the times recorded on the video, as opposed to the time of day. A comparison of those timeframes with the timeline made by Ms. Austin and Mr. Messick shows that the timelines are essentially the same. The video shows the following: 4 Respondent claims she is prejudiced by the admission of the video, because she was not able to view it with the time-stamps to verify that it was, in fact, the video for January 11, 2018. It is noted that Respondent initiated no discovery in this case. Petitioner filed an exhibit list that included a reference to a video as early as July 24, 2020, some three weeks before hearing. Moreover, the Order of Pre-Hearing Instructions specifically requires not only a list of all exhibits to be offered at hearing, but also any objections to those exhibits and the grounds for each objection. Respondent did not note any objection in the Second Amended Joint Pre-Hearing Statement to the admission of any of the videos admitted as Petitioner’s Exhibit 17. At eight minutes, 17 seconds, J.L. leaves Ms. Velez’s classroom and heads down toward the girls’ bathroom at the end of the hall.5 She is wearing an over-sized jacket, but is not wearing a vest or carrying a clipboard. At nine minutes, 15 seconds, she comes out of the girls’ bathroom and speaks to an adult in the hallway, and then heads back to the bathroom. At the 13-minute, 4-second mark, T.B. walks down the hall from Ms. Velez’s classroom and, curiously, walks over toward the girls’ bathroom before going over to the boys’ bathroom. At 14 minutes, 39 seconds, T.B. comes out of the boys’ bathroom and walks over toward the girls’ bathroom a second time. After approximately ten seconds, he exits the area near the girls’ bathroom and heads back to the boys’ bathroom. At approximately 15 minutes into the video, and almost seven minutes after leaving Ms. Velez’s classroom, J.L. comes out of the girls’ bathroom, peers down the hallway in both directions, and goes over to the boys’ bathroom. At this point, she is still wearing her jacket. At approximately 18 minutes, 16 seconds into the video, a second male student, later identified as M.N., walks down the hall. M.N. is not in Ms. Velez’s class during this class period. He also goes toward the girls’ bathroom first, and then stands in the hallway outside the boys’ bathroom. After approximately 30 seconds, he walks down the hall and back, before going toward the boys’ bathroom and out of sight at 19 minutes and 40 seconds. At 20 minutes, 16 seconds into the video, other students start lining up in the hallway. Approximately four classes line up in the hallway, with no one coming out of the boys’ bathroom. At approximately 29 minutes, 5 Respondent established at hearing that one cannot actually see students enter and exit the bathrooms from the surveillance video. The sight line for the video stops just short of the doors to the two bathrooms. However, the only other alternative to going in the bathrooms would be for students to exit the SLA unit through the doors near the bathrooms. If that were the case, J.L. would be subject to harm as well, given that the doors lead to the rest of the school and the bus loading zone. 26 seconds, girls in line outside the bathroom are seen looking toward the boys’ bathroom and appear to be laughing. J.L. comes out of the boys’ bathroom at the 29-minute, 53-second mark, followed by T.B. J.L. is not wearing her jacket, and her belt is undone. T.B. throws J.L.’s jacket on the floor and walks down the hallway with his hands up in the air. Both J.L. and T.B. walk down the hall toward Ms. Velez’s room, and then turn around and return to their respective bathrooms. At the 31-minute, 53-second mark, J.L. comes out of the bathroom with her shirt tucked in and her belt fastened. She is still not wearing her jacket, a small portion of which can be seen on the floor of the hallway. She does not pick it up, but stays in the hallway until T.B. comes out of the bathroom, then both go down the hall toward Ms. Velez’s class, with T.B. running and J.L. walking. J.L. re-enters Ms. Velez’s classroom at 32 minutes, 21 seconds into the video. Finally, at 32 minutes, 30 seconds, M.N. comes out of the boys’ room, picks up J.L.’s jacket and heads down the hall. Based on the surveillance video, J.L.was out of the classroom for slightly over 24 minutes. T.B. was absent from the classroom for over 18 minutes. Ms. Velez is never seen in the hallway. There is no admissible evidence to demonstrate what actually occurred during the time that J.L. appeared to be in the boys’ restroom. Regardless of what actually happened, no female student should be in the boys’ bathroom, and a female student already identified as needing increased supervision should not be allowed to be unsupervised outside of her classroom at all, much less for such a lengthy period of time. The potential for harm was more than foreseeable, it was inevitable. Ms. Velez did not go in the hallway or send Ms. Kirkland, the paraprofessional present in her classroom that day, to check on J.L. or T.B. She did not call the SRO, the front office, or Mr. Messick to ask for assistance in locating either child. She also did not contact Ms. Raulerson, Mr. Messick, or J.L.’s parents after T.B. told her that J.L. had been in the boys’ restroom. She testified that, while J.L. certainly should not be in the boys’ restroom, there was nothing that led her to believe or suspect that there could be neglect or abuse. Ms. Velez acknowledged that she allowed J.L. to go to the bathroom unsupervised, and stated that she was training J.L. to go to the bathroom by herself. If that was the case, doing so was directly contrary to Mr. Messick’s email of August 22, 2017, and to the requirements of J.L.’s IEP. Ms. Velez had approximately 18 students in her classroom. Her focus, according to her, was on providing instruction to the students in her class. She denied losing track of time, but stated that once the students were engaged, she took her time with the lesson, which “led me to not noticing what time it was as normally as I should,” and she “possibly got distracted.” She did not take any responsibility for her actions. Instead, she blamed the situation on the fact that, at the time of the incident, she did not have a full- time paraprofessional assigned to her classroom. While the paraprofessional position for her class was not filled at the time of this incident, Ms. Kirkland traveled with the class and was present in Ms. Velez’s class when J.L. was allowed to leave the classroom. Ms. Velez also appeared to minimize the importance of providing increased supervision for J.L., and claimed that she was training her to go to the bathroom by herself. Yet, she described the class as a whole as one that needed “eyes on them” at all times. Further, J.L.’s parents clearly felt the increased supervision was crucial, and called early in the school year to make sure that staff knew J.L. was not to be left alone. Ms. Velez gave no explanation as to why she would “train” J.L. to leave the room unsupervised (and one wonders what training could be taking place, if the child is allowed to go alone outside the classroom), when she knew that to do so was clearly contrary to J.L.’s parents’ wishes. On January 22, 2018, the Duval County School District (the District) began an investigation into the incident concerning J.L. that occurred on January 11, 2018. During the District investigation, Ms. Raulerson notified the Department of Children and Families (DCF) and law enforcement of the incident. Both entities conducted investigations. The results of those investigations are not part of this record. On March 16, 2018, the District reprimanded Respondent and suspended her for 30 days for failing to provide adequate supervision of her students. The School Board’s approval of the suspension and the basis for it was reported in the press.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rule 6A- 10.081(2)(a)1. It is further recommended that Respondent pay a fine of $750, and that her certificate be suspended for a period of one year, followed by two years of probation, with terms and conditions to be determined by the Education Practices Commission. DONE AND ENTERED this 29th day of October, 2020, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 29th day of October, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Stephanie Marisa Schaap, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 (eServed) Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) 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 (eServed)
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact During all times relevant hereto, Petitioner served as head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes (2015),1/ against teachers holding Florida educator certificates. Respondent holds Florida Educator Certificate 725789, covering the areas of middle school integrated curriculum and physical education, which is valid through June 30, 2020. During all times relevant hereto, Respondent was employed as a physical education teacher at Lehigh Acres Middle School in the Lee County School District. Respondent has been a Florida educator for 24 years, all with the Lee County School District. The Administrative Complaint, as to the material allegations, contends that “[o]n or about February 18, 2016, Respondent engaged in a physical altercation with 13-year-old, female student, A.O., when A.O. refused to give Respondent A.O.’s cellphone [and that] Respondent held A.O. to the ground during the altercation.” The Video The altercation in question took place in the school gymnasium (gym). Activities in the gym are monitored by at least a single video surveillance camera. The images captured by the video camera are somewhat grainy, but it is possible to glean from the images the general nature of the interaction between Respondent and the student in question; there is, however, no audio associated with the surveillance video. Respondent is seen on the surveillance video walking around the gym while students (approximately 40) are positioned on the floor throughout the gym. The video shows student A.O. sitting on the gym floor with her back against the bleachers. It appears from the surveillance video that the nearest student to A.O. is approximately eight to ten feet away. The video also shows that Respondent appears to weigh at least twice as much as A.O. and stand at least four inches taller. It is undisputed that Respondent, while moving about the gym, observed A.O. using her cellphone. The video shows Respondent moving towards A.O. When she is approximately three feet from A.O., Respondent communicates in some way to A.O. that she needs to give Respondent her cellphone. The student, while continuing to sit on the floor, is then seen either placing or attempting to place the cellphone in the right- rear pocket of her pants. Respondent, without pausing, then positions herself over the student and attempts to remove the cellphone from either the student’s pocket or hand. The student then rolls onto her right side and positions herself so that her right rear pocket is pressed against the gym floor. At this time, the student is in a near fetal position. Respondent, while continuing to stand over the student, then tussles with the student for about 10 seconds while attempting to take the cellphone. The student then extricates herself from Respondent’s grasp, and while rising from the floor is then pushed in the back by Respondent, which then creates about an arms-length distance between Respondent and the student. The student, while standing, then turns towards Respondent and appears to swing at Respondent with her left hand. Respondent knocks away the student’s extended left arm and then pushes the student onto the lower bench portion of the bleachers. The student lands on her butt and then immediately rises and moves towards Respondent. Respondent and the student’s arms then become entangled. While their arms are entangled, Respondent pushes the student back several steps, forces the student into a seated position on the bleacher bench, and then pushes the student to the gym floor. Respondent then positions herself on top of the student and subdues her by pinning her to the gym floor with her right leg over the student’s left leg and her left leg across the student’s upper back and shoulder area. Respondent released the student after approximately 40 seconds. Before releasing A.O., the video shows that many of the students in class rushed to the area of the gym where the altercation occurred, formed a semi-circle around Respondent and A.O., and recorded the incident on their cellphones. A cellphone video capturing portions of the incident was admitted into evidence, and on this video, a student is heard suggesting to another student that the recording of the altercation should be posted to YouTube. Student A.O. A.O. was in the eighth grade when the incident with Respondent occurred. A.O. did not testify at the disputed fact hearing, but she did submit written statements to school officials following the altercation with Respondent.2/ On February 22, 2016, A.O. provided the following written statement: I was sitting down on my phone like some other kids were doing to, not knowing I wasn’t allowed to use it because it’s my first day in gym. So Ms. Parsons said give me the phone so I said no, I’m sorry Miss, and when I went to reach for my pocket to put it in and she reached down and pushed her elbow and arm up against my neck and chest so I was on the ground flat by that time and we ended up both getting up and trying to get the phone and she ended up pushing me and then somehow she ended up holding me down by holding my arms and sitting on top of me. After she had pushed me on the bleachers she had lightly hit my leg so I hit her in her head. On August 17, 2016, A.O. provided an additional written statement, which reads as follows: I would like to add, that when she was above me after she put her forearm on me I did not feel safe so I stood up. Also when she had pushed me on the bleachers and kept wrestling with me I had been kicking her so she could leave me alone. After I was escorted to ISS, then Mr. Restino’s office, I was brought to the clinic after he had seen the video and Ms. Garcia took pictures of all my red marks and some scratches, they weren’t deep though. Respondent’s Version of Events On February 18, 2016, the date of the altercation in question, Respondent prepared the following written statement: This afternoon as I was walking around the classroom monitoring the students, I was checking to make sure that the students were working on their projects. I saw that the young lady in question was on her phone. I asked her to give me her phone and I reached my hand out for the phone. She snatched it away and I continued to ask her for the phone. I took the phone and she said I wasn’t getting her phone and struggled with me. I got the phone and she stood up and punched me in my right ear. I pushed her back and she came at me again so I pushed her back again. She kicked me in the stomach. I grabbed one of her arms and her leg as she went to kick me again and I brought her down to the floor. I put my knee on her back as I held her arm and leg. I told her that I could not believe that she would do this over a phone [and] that I probably would have given it back to her at the end of the class period since it was near the end of the day. She said that she didn’t know that because she was new. I told her even if she was new that you don’t hit a grown-up or a teacher like that. I told her that I was going to let her up. She said okay. By that time coach McDowell came over and said th[at] coach Steidl had called for assistance. Deputy Matthews came in and I explained what happened. He talked with her for a few seconds. I asked him if I should give him the phone or give it back to her. He said to give it to her so I did and they left. Later, I noticed that I had some scratches and blood on my arm and I went to the clinic to get my arm treated. On June 30, 2016, Respondent sent an email to the human resources department for the School Board of Lee County. In this missive Respondent notes, in support of her belief that she did nothing wrong in this situation, that during the fracas with A.O. “students were cheering” for Respondent and that throughout the incident she was merely “responding to [A.O.’s] inappropriate and disrespectful behavior.” Respondent testified during the final hearing and her testimony was in material part consistent with her written statements. Cellphone Policy Ms. Neketa Watson was the principal of Lehigh Acres Middle School during the 2015-2016 school year. According to Ms. Watson, the Student Code of Conduct in effect at the time of the incident in question provides as follows: Students may possess cell phones and other personal electronic devices while on school grounds during regular school hours, however they must be turned off at all times unless utilized for an approved activity. Cell phone usage is allowed during non-instructional time or for an approved activity. Possession of all personal electronic devices, including cell phones, is done at the student’s own risk and the school assumes no responsibility, legal or otherwise, with regard to these items. During the 2015-2016 school year, Ms. Watson sent weekly emails to all school personnel reminding them about school policy and procedures. The weekly reminders would often include reference to the school’s cellphone policy, which provides that “if we see it, we hear it, we take the phone.” The cellphone policy reminders sent out by Ms. Watson also explained to school personnel that they should not use physical force when attempting to secure a cellphone from a student and that if a student refused to turn over a phone when requested, then personnel should “call for an administrative administrator who removes the student” and then processes the student for suspension. Ms. Watson explained that she did not include the reminder about the cellphone policy in each of her weekly emails to personnel, but she specifically recalled having done so the week of the incident in question. Ms. Watson testified that the reminder was sent on Sunday night (February 14, 2016). On February 18, 2016, Adrienne McDowell was employed by the School Board of Lee County as an educational paraprofessional for physical education and was assigned to Lehigh Acres Middle School. In explaining her understanding of the cellphone policy, Ms. McDowell testified as follows: A: What we were told via email a couple weeks prior to this event that Ms. Watson sent out, when a student has a cellphone out, if you see it or hear it, you need to ask for it. If they don’t place that phone in your hands willingly, then you call for a specialist to come and deal with that student. It is not our job to take a cellphone away from a student, we just call for a specialist. Q: By specialist, what do you mean? A: Security, administration, someone in the specialist team, guidance counselor, you know. There are different, -- like I said, a specialist is a security guard, administration or guidance counselor; anybody more equipped to handle the situation than we are. Respondent testified that she was unaware of Ms. Watson’s emails to personnel regarding the proper protocol for confiscating cellphones from non-compliant students. On June 17, 2016, Respondent, as part of the investigation conducted herein, sent an email to school board officials and stated therein that it was her belief that “[i]f I had not taken her phone, that the students would have disrespected and challenged me from that day forward.” In the same missive, Respondent, in an attempt to discredit one of the students who witnessed her altercation with A.O., noted that she disciplined the student witness “for his misbehavior by writing him a referral and having him escorted out of [her] classroom.” Given Respondent’s admitted general awareness of the school’s policy of referring misbehaving students to an appropriate administrator for disciplinary action, and her concerns about being challenged and disrespected, Respondent’s testimony that she was unaware of Ms. Watson’s directive regarding students who refuse to hand over their cell phones is not credible. Student Detention, Search and Seizure Lee County School Board Policy 4.03 sets forth procedures related to searching a student’s person and property. Numbered paragraph (3) of the policy provides in part that “[a]n administrative staff member or an instructional staff member designated by an administrator may search a student’s person [and] personal belongings . . . if there is reasonable suspicion to believe the search will result in evidence the student has violated Florida Statute or School Board Rule or if the student consents to such search.” Respondent was neither an administrative staff member nor an instructional staff member with authorization to conduct student searches, and therefore her actions of physically searching A.O. and taking her cellphone violated Lee County School Board Policy 4.03. Aggressor or Victim Respondent challenges the instant proceeding in part on the theory that the facts demonstrate that she was the victim and merely acted in self-defense against the actions of a combative student. Contrary to Respondent’s contention, the credible evidence, as captured by the surveillance video, establishes that Respondent committed the initial act of aggression when she, without hesitation, lorded over A.O. and physically grabbed the student in an unauthorized effort to confiscate A.O.’s cellphone. While it is true that the student, after initially being pinned to the gym floor by Respondent, eventually freed herself from Respondent’s grip and in her agitated state committed reflexive acts of aggression towards Respondent, the credible evidence establishes that these events would not have occurred but for Respondent’s initial use of unauthorized and unreasonable force. Respondent, without question, had the right to protect herself against the aggressive countermeasures initiated by the student. However, it is also the case that under the facts of this case the student equally had the right to protect herself against Respondent’s initial acts of aggression.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of the violations alleged in counts one through three of the Administrative Complaint. It is further RECOMMENDED that the final order suspend Respondent's Florida Educator Certificate 725789 for a period of two years, to be followed by a one-year period of probation. The terms and conditions of Respondent's suspension and probation shall be established by the Education Practices Commission. DONE AND ENTERED this this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of January, 2018.
Findings Of Fact On November 27, 1985, Respondent Samuel David Sorrells entered the seventh grade at Nautilus Junior High School. On January 10, 1986, Respondent did not have his textbook with him in his math class. He was given permission to get another book to use during that class, and when he did so another student took that book away from him. Respondent started cursing that other student. When a third student told Respondent to control his language, Respondent physically attacked that third student. On February 14, 1986, Respondent's apparent intention to cut school that day was thwarted when he was picked up by the Miami Beach Police Department and escorted by the police to school in time for his second period class. Although Respondent went to the physical education field, he refused to "dress out" for physical education, refused to stand where he was instructed to by the teacher, and then cursed the teacher and threatened her with physical violence. On March 17, 1986, Respondent was caught writing on the walls in the school hallways and in the school bathrooms. A conference among various school personnel and Respondent's mother was held on March 17, 1986, to determine how to best fulfill Respondent's needs. The recommendation by school personnel attending that conference was that Respondent would be better served by the educational alternative program at Jan Mann Opportunity School-North for the reasons that that school offers smaller classes so that more attention can be given to each individual student and there are more trained counselors available to assist the students with their specialized needs. Between November 27, 1985, when Respondent first enrolled at Nautilus Junior High School and April 8, 1986, when Petitioner determined that Respondent should be administratively re-assigned, Respondent was absent from school on 10 days and was suspended from attending classes on 18 additional days. Respondent received F's in all classes at Nautilus Junior High School although he is able to do the work given to him. He simply does not do it.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Samuel David Sorrells to the educational alternative program at Jan Mann Opportunity School-North until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 9th day of September, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1986. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Patricia Sorrells Simpson 1321 Biarritz Drive Miami Beach, Florida 33184
