The Issue The issue for determination is whether Respondent's employment as a teacher with Petitioner should be terminated for alleged willful neglect of duties and gross insubordination.
Findings Of Fact At all times material hereto, the Miami-Dade County School Board (Petitioner) was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the district of Miami-Dade County, Florida. Judith Zucker (Respondent) began her employment with Petitioner, as a teacher, in 1968 and continued her employment with Petitioner until 1972. She began her employment with Petitioner again in 1989. Respondent holds a teacher certification in elementary education. She is also certified to teach the learning disabled and mentally handicapped. At all times material hereto, Respondent was employed by Petitioner as a teacher, assigned to Little River Elementary School (Little River), Citrus Grove Elementary School (Citrus Grove), and Miami Jackson Senior High School (Miami Jackson). Little River Elementary School In August 1989, Respondent resumed teaching with Petitioner. She was employed at Little River pursuant to a continuing contract of employment. On January 8, 1991, Respondent suffered injuries to her neck and spine when she attempted to break-up a fight between two students. Despite her injury, she immediately returned to work, not losing any time from work. In November 1994, Respondent was injured again. While walking down the hall of the school, a student, for whom she was not responsible, was hanging on a door. The student pushed himself off the door and fell on top of Respondent onto a cement floor. As a result, Respondent's original injury was aggravated. During the 1994-95 and 1995-96 school years, Respondent was a Title I tutor. She tutored three to eight students at a time in reading. During the 1996-97 school year, the reading program changed. For this school year, Little River, along with some other schools, was placed on Florida's critically low school list. Petitioner initiated a program called Operation Safety Net in which schools on the critically low list began using the Successful for All/Roots and Wings program (Success for All Reading Program). The Success for All Reading Program was for students who were critically deficient in reading. Little River and Petitioner's other critically low schools began using the Success for All Reading Program for the 1996-97 school year. In the Success for All Reading Program a tutor had a group of 18 to 20 students for 90 minutes in the morning. For the rest of the day, the tutor worked one-on-one with first grade students. Respondent was not assigned to the Success for All Reading Program at the beginning of the 1996-97 school year. Respondent requested her principal to assign her to the Success for All Reading Program due to her medical condition resulting from the injuries to her neck and spine for which she was still undergoing physical therapy. The principal agreed to assign Respondent to the Success for All Reading Program because the principal wanted to make sure that Respondent was provided with the opportunity and the time to attend therapy. Respondent was assigned to the Success for All Reading Program with a modification. Respondent was allowed to assist other tutors with testing and was working in groups of two to four students, significantly smaller than the regular groups of 18 to 20 students. Using the smaller groups for Respondent caused the other morning groups to become even larger. At the time that the principal made the assignment with the modification, the principal expected the duration of the assignment to be short, but the assignment spanned the entire school year. Having groups expanding beyond the 18 to 20 students for the entire school year created a hardship in that it was counter-productive for the critically deficient readers. In the fall of 1996, Respondent was again injured. This time, Respondent was injured by a student to whom she was tutoring one-on-one. Respondent did not lose any work as a result of the injury she sustained. Respondent had now been injured by students at Little River on three separate occasions: January 8, 1991, November 1994, and the fall of 1996. Despite the injuries that she sustained, she immediately returned to work after each occurrence without any loss of time. At the end of a school year, teachers indicate what they would prefer to do during the following school year. In May or June 1997, the principal of Little River advised Respondent that she would be assigned to teach a regular class, a third grade class, for the 1997-98 school year. Respondent sought a transfer from Little River in August 1997. No transfer occurred. When Respondent returned to Little River in August 1997 for the 1997-98 school year, Respondent informed the principal that she was still in physical therapy; that she was unable to write on the chalkboard because to do so caused her to shake; and that she was, therefore, unable to return to a regular classroom. Respondent requested a return to tutoring. The principal informed Respondent that the tutors had already been assigned and that she (Respondent) was expected to return to a regular classroom. However, for the first two weeks of school, the principal allowed Respondent to tutor. The principal contacted Petitioner's Office of Risk Management1 to determine Respondent's status as to whether she was able to return to a regular classroom. Risk Management advised the principal that Respondent was cleared to return to her regular duties, to return to a regular classroom. On September 19, 1997, the principal explained to Respondent that, according to Risk Management, she was cleared to return to her regular duties and that she would be returning to a regular third grade classroom. The third grade classroom would contain no more than 29 to 33 students. Respondent informed the principal that she (Respondent) was not able to return to a regular classroom and that her doctor would have to contact Risk Management. On September 23, 1997, the principal again contacted Risk Management which again informed the principal that Respondent was cleared to return to her regular duties. The principal advised Respondent of the information that she had obtained from Risk Management. Respondent again informed the principal that she was unable to return to a regular classroom. Risk Management had also advised the principal that, if Respondent continued to insist that she was unable to return to a regular classroom, the principal should direct Respondent to leave the school's campus. The principal did as Risk Management advised and directed Respondent to leave the school's campus. Respondent complied with the principal's directive and left the campus of Little River. The Executive Director of Risk Management (Executive Director) had advised the principal to direct Respondent to leave the school's campus if Respondent insisted that she could not return to a regular classroom. He advised the principal to direct Respondent to leave the school's campus because of Respondent's medical condition. The Executive Director had reviewed Respondent's file and had become aware of a letter dated September 3, 1997, from Dr. Raul Grosz, Respondent's authorized2 neurologist. The letter stated in pertinent part: She [Respondent] has at this time chronic persistent [sic] and discomfort. I am recommending that she be placed in a non- threatening environment in which she does not have to move furniture or lift furniture whatsoever. I also feel that she is unable to carry a full class-load at this time. As a result of the letter, the Executive Director authorized the payment of workers' compensation benefits from the date that Respondent was directed to leave Little River's campus by the principal. Even though Dr. Grosz opined that Respondent was "unable to carry a full class-load," he did not state the number of students as to what represented a full class-load. However, Dr. Grosz considered a full class-load to consist of a large group of students who were not well-behaved and who were potentially dangerous. Dr. Grosz did not inform Respondent as to what he considered to be a full class-load. There was no neurological basis for restricting Respondent to a non-threatening environment or a reduced class size. Respondent requested Dr. Grosz to add the restrictions. Respondent also expressed her desire to be in a non-threatening environment. Respondent's requests seemed reasonable to Dr. Grosz and he attempts to accommodate his patients' subjective feelings, so Dr. Grosz included the restrictions in his letter. It was Dr. Gorsz's intent that Respondent and Petitioner attempt to reach a mutually acceptable solution and that Petitioner would provide what it determined was appropriate. As of September 19, 1997, Respondent had exhausted all of her available sick and personal leave. Petitioner and the United Teachers of Dade (UTD) have entered into a collective bargaining agreement (UTD Contract). The UTD Contract provides generous, extensive leave provisions. Respondent never applied for any type of leave, including leave pursuant to the UTD Contract. The Executive Director was authorized to direct a teacher to a work assignment. In determining a work assignment for Respondent, the Executive Director sought assistance from and relied upon Petitioner's Instructional Staffing Department to locate a position for Respondent which would meet her medical restrictions. Citrus Grove Elementary School The Director of Instructional Staffing informed the Executive Director that a varying exceptionalities (VE) position in special education was available at Citrus Grove. A VE teacher teaches a group of students who have different exceptionalities. The VE teacher may simultaneously teach the students with different exceptionalities in the same class or the teacher may teach the students with one exceptionality during the school day at one time and may teach other students with a different exceptionality during the same school day at another time. VE teaching is used for mildly handicapped students. By letter dated October 7, 1997, the Executive Director informed Respondent that a VE position was available at Citrus Grove and that the VE position was within her certification and met her medical restrictions. He also indicated that the position was an appropriate accommodation for Respondent. Moreover, the Executive Director directed Respondent to report to Citrus Grove immediately and to call the principal at Citrus Grove for further reporting instructions. Respondent failed to call the principal. She also failed to report to Citrus Grove. Respondent decided, without making any personal investigation, that the VE position at Citrus Grove was not appropriate and was unreasonable. Respondent did not believe that she was physically capable of performing as a VE teacher at Citrus Grove. Respondent is in pain daily. She wears a Tens Unit to short-circuit some of the pain. Respondent expresses being afraid of being in groups wherein she may be bumped which would worsen her condition. However, Respondent's authorized neurologist, Dr. Grosz has no concern regarding physical contact by bumping causing further neurological damage or problems. He has more concern regarding further neurological damage or problems caused by Respondent being involved in a high-speed motor vehicle accident. Respondent did not observe the placement or inquire about the profiles of the students who she was going to teach. The composition of the VE class, as to students, at Citrus Grove was decided before Respondent was assigned the VE class, and, therefore, the composition was not decided with consideration given to Respondent's physical limitations. Respondent assumed that she would be required to use physical restraint techniques with the students. The UTD Contract provides for the use of the Safe Physical Management (SPM) program, which is the use of physical restraints for severely disabled students. Teachers, who are in self-contained programs for severely emotionally disturbed students and autistic students, receive training in techniques to contain highly disruptive students under unusual circumstances. The techniques are used to prevent injuries to persons, including the student, and damage to property. Before SPM is used, Petitioner's Multi-Disciplinary Team must recommend its use and the use of SPM must be documented on the student's Individualized Education Program (IEP). One student in Respondent's assigned class had an IEP which approved SPM. However, based upon the student's progress, it was unlikely that SPM would have been needed. Moreover, SPM is not used in VE classes at Citrus Grove; mildly handicapped students, not volatile students, are placed in the VE classes. Dr. Grosz opined that Respondent could teach a class of 25 to 30 well-behaved students. The VE classes at Citrus Grove were not full-load classes. The VE classes consisted of 7 to 10 mildly disabled students at any one time; whereas, the regular classes consisted of between 28 and 39 students. Elementary VE classes contained no more than 12 to 15 students. The number of students in VE classes at Citrus Grove were smaller than VE classes throughout Petitioner's district. Respondent also erroneously relied upon Dr. Grosz's opinion that she was unable to teach a full class-load. What Respondent considered a full class-load and what Dr. Grosz considered a full class-load were not the same. Pursuant to what Dr. Grosz considered a full class-load, Respondent would have been able to accept the VE position at Citrus Grove. Respondent would have been the third VE teacher at Citrus Grove. The VE students were all in one room separated by a partition. Respondent's class would have been on one side of the partition and one VE teacher would have been in the class with Respondent. The other VE teacher and the other VE students would have been on the other side of he partition. Citrus Grove was a safe, non-threatening environment. The needs of the VE students at Citrus Grove were more an educational concern than emotional, and the VE students were well-behaved. As to Respondent being injured at Citrus Grove in the VE position, such an occurrence was unlikely. Respondent would not have been required to lift or move any furniture or any heavy items at Citrus Grove. Respondent was qualified to teach the VE class at Citrus Grove. The Citrus Grove assignment met Respondent's medical restrictions. The assignment of Respondent to Citrus Grove was reasonable. Respondent's refusal of the Citrus Grove assignment was unreasonable and unjustified. Approximately one week after Respondent was assigned to Citrus Grove, Respondent, on October 13, 1997, presented to Dr. Grosz for an examination. Respondent did not inform Dr. Grosz of the assignment at Citrus Grove. Informing Dr. Grosz of the assignment would have provided Dr. Gorsz with an opportunity to explain to Respondent what he meant by his opinion. Respondent did not also inform Dr. Sanford Jacobson, her authorized psychiatrist, of the Citrus Grove assignment when she presented to him for a psychiatric evaluation on October 14, 1997. Dr. Jacobson prepared a report of the evaluation dated October 16, 1997.3 In the "Summary and Conclusions" section of his report, Dr. Jacobson states, among other things, the following: There have been three incidents which have resulted in injuries as described by Mrs. Zucker [Respondent]. While some of them may have been somewhat surprising, difficult to manage, and distressing, I would not think that they are the kind of injuries that one would see as causing a Post-Traumatic Stress Disorder. . . . The most prominent symptoms are depressive symptoms. Clinical diagnosis at present is that of: Axis I: Mood disorder associated with cervical disc disease and stenosis with depressive-like episode. * * * It would appear that her depression is related to the injuries. . . . At this time I do not believe she can resume full classroom duties. In essence, Dr. Jacobson's diagnosis was that Respondent was suffering from depression related to her pain and discomfort from her physical injury. Even though Dr. Jacobson opined that Respondent could not resume "full classroom duties," he did not state the number of students as to what he considered a full classroom. However, Dr. Jacobson considered a full classroom to consist of approximately 25 to 30 students or more. As a result of Respondent not reporting to Citrus Grove, day-to-day substitutes filled her position. The needs of the VE students were not met with such an arrangement. Miami Jackson Senior High School On or about October 15, 1997, one of Respondent's physicians had placed Respondent on a no-work status. Subsequently, on November 10, 1997, Dr. Grosz returned Respondent to work but with restrictions. Dr. Grosz states in his report dated November 10, 1997, among other things, the following: She [Respondent] remains able to perform at light duty status with no lifting of furniture allowed and I will defer to psychiatry in terms of her emotional complaints. The Executive Director consulted again with Petitioner's Instructional Staffing to locate a position for Respondent. Instructional Staffing informed him of a VE position at Miami Jackson. On December 3, 1997, the Executive Director informed Respondent that a VE position at Miami Jackson was within her certification and met her medical needs. He directed Respondent to report to Miami Jackson. The Executive Director also directed Respondent to call the principal at Miami Jackson for further reporting instructions. Respondent failed to report to Miami Jackson. She also failed to call the principal at Miami Jackson. Respondent decided, without making any personal investigation, that the VE position at Miami Jackson was not appropriate and was unreasonable. Respondent did not believe that she was physically capable of performing as a VE teacher at Miami Jackson. Respondent did not observe the placement or inquire about the profiles of the students whom she was going to teach. The composition of the VE class, as to students, at Miami Jackson was decided before Respondent was assigned the VE class, and, therefore, the composition was not decided with consideration given to Respondent's physical limitations. Respondent assumed that she would be required to use physical restraint techniques with students. The VE classes at Miami Jackson were not full-load classes. The regular classes at Miami Jackson averaged approximately 35 students; whereas, the VE classes consisted of 14 to 21 students per class period in Respondent's proposed classes. The students in the VE classes were mildly disabled, with the majority of the students being learning disabled and a few being emotionally handicapped and a few educationally mentally handicapped. Many of the students were being mainstreamed into the regular school setting. A majority of the students were on track for a standard diploma. Three students in Respondent's proposed class at Miami Jackson had IEPs which approved SPM. The students would have been in Respondent's proposed class in 1998. The students' prior IEPs had approved SPM and the SPM was carried over to Miami Jackson. However, based upon the students' progress, it was unlikely that SPM would have been needed. Moreover, SPM is not used in VE classes at Miami Jackson; SPM is only used in severly emotionally disabled classes at Miami Jackson. Miami Jackson was a safe, non-threatening environment. Respondent would not have been required to lift or move any furniture or any heavy items at Miami Jackson. Respondent was qualified to teach the VE class at Miami Jackson. However, the Miami Jackson assignment failed to meet Respondent's medical restrictions. The Miami Jackson assignment met Dr. Grosz's medical restrictions; but, it failed to meet Dr. Jacobson's medical restrictions. Dr. Jacobson did not state in his report the size of the class that he recommended that Respondent teach. Nor did he recommend to Respondent the size of class that she should teach. At hearing, Dr. Jacobson opined that he would recommend that Respondent teach a class with 7 to 10 students; however, he would not recommend that Respondent teach a class with 14 to 21 students. Respondent's proposed VE classes at Miami Jackson consisted of 14 to 21 students. The assignment of Respondent to Miami Jackson was unreasonable. Respondent's refusal of the assignment to Miami Jackson was reasonable and justified. It matters not that Respondent was unaware of the size of class recommended by Dr. Jacobson; it is sufficient that the assignment failed to meet his medical restrictions. Even though Respondent did not know the size of class to which Dr. Jacobson was referring, she relied upon his report, as well as Dr. Grosz's opinion, in refusing the assignment to Miami Jackson. As a result of Respondent not reporting to Miami Jackson, day-to-day substitutes filled her position until a permanent teacher could be assigned. Dr. Grosz examined Respondent again on December 12, 1997. Respondent did not advise him of her assignment to Miami Jackson. Because Respondent had failed to report to Citrus Grove and to Miami Jackson as directed, the Executive Director turned Respondent's case over to Petitioner's Office of Professional Standards (OPS). By letter dated January 26, 1998, OPS advised Respondent, among other things, that she had been absent without authorized leave and that such absence constituted willful neglect of duty and subjected her employment to termination. OPS also requested that Respondent provide a written request within 10 working days if she wanted a review of her situation. Respondent failed to reply to OPS' letter. However, Respondent's counsel for workers' compensation responded. The response from Respondent's counsel indicated that Petitioner was aware why Respondent was not working, but his response failed to specifically address the assignments to Citrus Grove and to Miami Jackson. Petitioner took action on March 18, 1998, to suspend Respondent and dismiss her from employment. According to Petitioner's computerized attendance records, at that time Respondent had been absent without authorized leave since September 19, 1997. From September 19, 1997, to October 7, 1997, Respondent was not absent without authorization. On September 19, 1997, Respondent informed the principal of Little River that she was unable to teach the regular third grade class. Subsequently, on September 23, 1997, the principal directed Respondent to leave Little River, upon the advice of the Executive Director, and the Executive Director authorized Respondent to receive workers' compensation benefits retroactive to the date that she was directed to leave. Moreover, Respondent was not directed to report to Citrus Grove until October 7, 1997.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the suspension of Judith Tucker without pay, but not dismissing her from employment, and reinstating Judith Tucker under the terms and conditions deemed appropriate. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 4th day of June, 1999.
Findings Of Fact Dwon Ballard attended North Miami Junior High School from September 1983, to January 1984, and from May 1984, until his reassignment on November 29, 1984. During these times, Dwon Ballard was involved in eight incidents of disruptive or rebellious behavior, including cutting class, truancy, leaving school ground without permission, defiance to a substitute teacher, fighting, and returning to school while on suspension. The final incidents which resulted in reassignment involved a fight on November 1, 1984, which resulted in a five day suspension and a fight on November 19, 1984, during which Dwon Ballard struck another student in the face without warning or provocation. This last incident resulted in a ten day suspension and a decision to reassign Dwon Ballard to the Miami Douglas McArthur Senior High School-North. Reasonable attempts were made to assist Dwon Ballard in resolving his problems. These attempts included counseling with Dwon Ballard and conferences with Ballard's mother and the students involved. The other students involved were initially disciplined, but were not reassigned to the opportunity school. The other students involved were responsible for the first fight in that they attacked Ballard. During the intervening time, they continually threatened Ballard, called him names, harassed and otherwise antagonized him. It is however admitted that Ballard made the first physical contact in the second fight. A review of Ballard's report card while attending Miami Douglas McArthur Senior High School-North shows that he has passing grades in all subjects. Prior to reassignment, Ballard was receiving a satisfactory mark in some subjects at North Miami Junior High School.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Dade County enter a final order assigning Dwon Ballard to Miami Douglas McArthur Senior High School-North. DONE and ENTERED this 4th day of March, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 4th day of March, 1985. COPIES FURNISHED: Mitchell Horwich, Esquire 7900 N.W. 27th Avenue 149 West Plaza, Suite 210 Northside Shopping Plaza Miami, Florida 33147-4796 Mark A. Valentine, Esquire Assistant Board Attorney Dade County School Board 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether the Florida teaching certificate of Respondent, Edith E. Gonzalez, should be revoked, suspended or otherwise disciplined for the alleged violations set forth in an Administrative Complaint entered on September 21, 1992.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent hereto, Respondent has been a certified teacher in Florida holding Certificate No. 194394. Respondent is certified in the areas of administrative supervision, elementary education, varying exceptionalities, French, Spanish, gifted and special learning disabilities. Her certificate is valid through June 30, 1996. At all times pertinent hereto, Respondent was employed as a teacher at Miami Carol City High School (the "School") in the Dade County School District. The students enrolled in the Dade County Public School System hail from a variety of ethnic and cultural backgrounds. Miami Carol City High School has a student population that is predominantly black. Respondent is 62 years old and will be 63 in December. She is an immigrant from Lima, Peru and Spanish is her native language. Respondent has been a teacher for the School Board for 24 years. She also taught for 5 years in Catholic schools. In addition, she has taught in Korea and Ecuador. The evidence indicates that from 1985 through 1992, the School Board received various complaints regarding Respondent and/or her conduct in the classroom. Except as set forth below, the specific nature of those complaints was not established in this proceeding. In 1987, Respondent was investigated by the Professional Practices Services of the Education Practices Commission for inappropriate discipline techniques. As a result of that investigation, Respondent entered into a settlement agreement pursuant to which Respondent was placed on probation for one and a half years and issued a letter of reprimand. During the 1991/92 school year, the School Board was requested by the School to investigate allegations of inappropriate and derogatory comments purportedly made by Respondent. A formal fact finding investigation was conducted by the School Board. After the investigation was completed, a "conference for the record" was held between Respondent and School Board officials during which the investigative report was reviewed and Respondent's entire record with the School Board was discussed and considered. Respondent did not have an opportunity to review or provide input into the investigation until the conference for the record. During the conference, the School Board advised Respondent that the investigative unit concluded that the allegations of inappropriate and derogatory comments were true. Respondent was further advised that the Regional Supervisor for the School Board was going to initiate the steps necessary to suspend and dismiss her from employment. The evidence established that the School Board's decision to seek termination of Respondent's employment was based upon a review of her entire employment record with the School Board. The School Board investigation was completed on February 10, 1992, and the School Board moved to suspend Respondent and terminate her employment on or about April 1, 1992. While Respondent initially challenged the termination of her employment, on or about June 4, 1992, she decided to resign her position without a hearing. As a result, she never had an opportunity to confront the witnesses and/or challenge the investigation conducted by the School Board. The only direct evidence presented in this case regarding racial slurs and/or inappropriate and derogatory comments by Respondent was testimony from D. P., who was a student in Respondent's fourth period Spanish Class during the 1991/92 school year, and from Roxanne Mendez, who worked as a Media Specialist at the School. Their testimony was insufficient to establish that Respondent was racially prejudiced, or that she intentionally belittled, degraded, or made fun of students. The evidence established that Respondent's fourth period Spanish class was very difficult to control and included many students who misbehaved on a regular basis. Respondent admittedly had a difficult time in dealing with the class. On a couple of occasions, out of frustration, she told the students they were acting like "animals" or "savages" and told them they needed to be locked in a cage. While these comments may have been insensitive, they were not intended as racial slurs. The only student in the class who testified admitted that the comments were only made when the class was acting up and he was not personally offended by them. The evidence also established that, on some occasions when Respondent could not remember the name of a student, she would refer to them as "boy" or "girl". These comments were made to both black and white students and were not intended to be racially disparaging. While Petitioner contends that Respondent advised her students that she was prejudiced against blacks, the evidence established that any such comments were made sarcastically and/or in jest and were not taken seriously by the students. On one occasion when the students were particularly rambunctious, Respondent reprimanded them and told them they were acting "like a bunch of Haitians just off the boat." The exact circumstances surrounding this comment were not clearly established. Apparently, the aunt of one of the students was present when this remark was made and took great offense. As a result of this incident, Respondent's effectiveness as a teacher at the School was reduced. No evidence was presented of any other incidents which would justify discipline or revocation of Respondent's teaching certificate. Respondent clearly had a difficult time dealing with the serious discipline problems that existed at the School. Many of the students made virtually no effort to learn. On several occasions, students deliberately disrupted classes and Respondent's class in particular. Some of the students referred to Respondent as "Taco Bell." Based upon the evidence presented, it is concluded that Respondent was a dedicated teacher who was trying her best in a difficult situation. Respondent often emphasized to her class the need to be tolerant and overlook cultural differences with other individuals. R. W. was one of Respondent's students during the 1991/92 school year. Even though she was not in the fourth period class, her testimony was very persuasive and is given great weight. She testified that at no time during that year did she ever feel uncomfortable in any way by what the Respondent said or did in the classroom. She also testified that the Respondent never showed disrespect toward her or the class and that the Respondent never referred to students in any way which would indicate that she was prejudiced against black children. The only other student who testified, D. P., confirmed that Respondent did not make him feel ill at ease or uncomfortable or hurt or sad or offended in any way. According to him, the only critical comments made by Respondent were directed to students who were misbehaving. While on some occasions Respondent's comments may have been insensitive and ill- advised, the evidence was insufficient to establish that Respondent was racially prejudiced, and/or that she intentionally embarrassed students or deliberately made racial slurs or disparaging comments. The evidence presented regarding Respondent's personal life confirmed that she harbors no racial prejudices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 231.28(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint, but dismissing the remaining Counts. As a result of her violation of Section 231.28(1)(f), Florida Statutes, Respondent should be reprimanded and placed on probation for one year. DONE and ENTERED this 18th day of August 1993, at Tallahassee, Florida. J. STEPHEN MENTON 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 18th day of August, 1993.
The Issue The issues are whether Respondent had good cause to reject the Escambia County School Superintendent's nomination of Petitioner to be principal of Woodham High School, and, if not, what relief should be granted to Petitioner.
Findings Of Fact Pensacola High School (PHS) is located in Pensacola, Escambia County, Florida. It is an inner city school of approximately 2000 students with a diverse population. Petitioner was appointed principal at PHS for the 1994- 1995 school year by Dr. Bill Malloy, the former Superintendent of Escambia County Schools. Petitioner served in that capacity until Superintendent Malloy transferred him in March of 1996 to the position of Director of Student Transfers. At all times material to this proceeding, Respondent had a policy requiring principals to report incidents of suspected child abuse immediately to the Department of Health and Rehabilitative Services (HRS)(currently the Department of Children and Families.) Another policy required principals to immediately report bomb threats to the district office and to proceed with the evacuation of the school property as instructed. Before school began in the fall of 1995, Petitioner assigned Kevin Sanders to be the teacher in charge of the In School Suspension (ISS) class. Petitioner made this assignment because Mr. Sanders previously had developed and successfully operated a similar class at PHS. The school district approved the plan at PHS for an ISS unit as designed by Mr. Sanders. Mr. Sanders also served as a weight training coach at PHS. He was not the only teacher/coach to run an ISS program for Respondent during the 1995-1996 school year. At least three other schools had coaches running their respective ISS programs in the fall of 1995. There is no persuasive evidence that the assignment of a coach to be in charge of an ISS class was in direct contravention of the Superintendent's instructions. No one ever told Petitioner that the Superintendent did not want a coach-like person in charge of the ISS class. Mr. Sanders wanted to work in the weight room at the stadium during the last period of the school day. Petitioner told Mr. Sanders that he could work in the weight room, provided he found someone to supervise his ISS class during that period. There is no credible evidence that Mr. Sanders had permission from Petitioner to take his ISS students to the stadium and leave them unattended in the bleachers. On October 16, 1995, a fifteen-year-old female student skipped school. The police returned the female student to PHS. As a consequence of her actions, the female student was temporarily assigned to the ISS class taught by Mr. Sanders. Normally, the female student attended a class for special students in the Exceptional Student Education (ESE) program. She functioned academically on a third or fourth grade level. On October 17, 1995, Ms. Sanders took his ISS class to the stadium and told them to sit in the bleachers. He then went to the weight room leaving the class unsupervised. The female student went into one of the restrooms in the stadium. She performed fellatio on a number of male students, primarily football players, in the presence of many other students. In the fall of 1995, PHS had several deans who served the general student population. Richard Sousa was the dean of students for ESE participants. He also served as the crisis teacher for the total student population at PHS. On October 18, 1995, Mr. Sousa saw a group of students outside the dean's office. When he investigated, Mr. Sousa found the female student sitting in a chair with her hands on her head. After Mr. Sousa closed the door to the deans' office, the female student stated that other students were falsely accusing her of performing oral sex with some boys. Mr. Sousa then took the female student to an ESE self-contained classroom so that she would not be harassed. Next, Mr. Sousa called the female student's mother and reported the facts as he understood them. The mother told Mr. Sousa that her daughter was not sexually active. Mr. Sousa asked the mother to pick up her daughter from school because the child was visibly upset. Later that day, Mr. Sousa reported to Petitioner that he had heard a rumor about sexual activity occurring in the stadium, on the fifty-yard line, or on the practice field. Mr. Sousa told Petitioner that other students were teasing the female student who denied being involved in any sexual behavior. After receiving this report, Petitioner directed Assistant Principal Leo Carvalis to contact Coach David Wilson, the head football coach. Petitioner instructed Coach Wilson and Mr. Sousa to investigate the rumor regarding the sexual activity. Coach Wilson talked to the football team that afternoon. The team assured him that they knew nothing of any sexual incident in the stadium, the football field, or the practice field. Coach Wilson and Petitioner discussed the situation again later that day. Petitioner told Coach Wilson to continue to listen to what was going on among the students, to ask questions, and to make his findings known. Petitioner gave other members of his staff and faculty the same instructions. Petitioner wanted to determine whether there was any truth to the rumor about the sexual incident. He wanted to discipline any students involved, including football players. However, Petitioner did not want to accuse any student, including the alleged victim, of inappropriate behavior until he had more facts. At the end of the day on October 18, 1995, Mr. Sousa did not believe that the sexual incident had occurred. He knew that special education students are often harassed, ostracized and picked on. Mr. Sousa thought the teasing would blow over and the female student could be returned to her regular classroom. Mr. Sousa expressed this opinion to Petitioner. For the rest of the week, Mr. Sousa took lunch to the female student in the ESE self-contained classroom because other students teased and pointed fingers at her. Mr. Sousa had to walk to the bus with the female student for the same reason. Nevertheless, Mr. Sousa continued to believe the rumor was false. His disbelief was based in part on the female student's persistent denials. Additionally, it was not uncommon for a rumor such as the one at issue here to prove to be unfounded. The next week, the female student requested that she be permitted to return to her regular ESE classes because she believed the teasing was over. Mr. Sousa granted the female student's request; however, after a couple of class periods, Mr. Sousa returned her to the self-contained classroom because even the special education students were saying things about her. Amanda Williams and Naomi Ferguson were guidance counselors at PHS during the fall of 1995. On October 26, 1995, Ms. Ferguson indicated to PHS Assistant Principal Sarah Armstrong that Petitioner knew about the sexual incident involving some of the football players. According to Ms. Ferguson, Petitioner was trying to cover up the situation because the football team was doing well. Later that day, Petitioner held a meeting in his office with Ms. Ferguson, Ms. Williams, Mr. Sousa, Ms. Armstrong, and Mr. Carvalis. During the meeting, Ms. Armstrong advised Petitioner that Ms. Williams had information from a male student (an informant) confirming the sexual incident but would not reveal her source because of confidentiality concerns. Petitioner asked Ms. Williams to speak with him in private. During their private conversation Ms. Williams revealed that an informant had given her information about a second male student who was involved in the sexual incident at the stadium. Ms. Williams gave Petitioner the names of both students. When he and Ms. Williams returned to the meeting, Petitioner stated, "I believe something must have happened. This is a credible witness." He also stated, "To hell with the football team. If these players can get away with this now, what will they think they can get away with in the future?" For the first time, Petitioner began to suspect that the sexual incident was factual and not an unfounded rumor. Ms. Ferguson revealed additional information about the female student at the meeting on October 26, 1995. Ms. Ferguson stated that the female student's mother intended to send her daughter to live with an uncle in Tampa, Florida. The female student did not want to make this move. The female student told Ms. Ferguson that the uncle had sexually molested her in the past. Ms. Armstrong stated that someone needed to call HRS to report the suspected sexual abuse by a family member. The group decided that HRS should also look into the allegations of sexual activity at the school. Petitioner instructed Ms. Ferguson to call HRS. He asked her to wait just long enough for someone to advise the female student's mother that an investigation was pending. There is no persuasive evidence that Petitioner ever intended to cover up the sexual incident. Likewise, he did not unreasonably delay his staff from reporting their suspicions to HRS. On October 26, 1995, Petitioner mistakenly understood that cases of suspected child abuse had to be reported to HRS within 24 hours instead of immediately. The last instructions he gave in the meeting on October 26, 1995, was to remind Ms. Ferguson to call HRS. She made that call on October 27, 1995. The female student was isolated from the general student population in the self-contained ESE classroom at PHS. Therefore, Mr. Sousa recommended at the meeting on October 26, 1995, that the school conduct an Individual Education Plan (IEP) meeting to review the female student's placement. He believed that the female student should be transferred to another school so that she could attend classes with the general population. After receiving Petitioner's authorization, Mr. Sousa contacted the Exceptional Student Education (ESE) district staff to arrange for an IEP meeting. Mr. Sousa also called the female student's mother on October 27, 1995, to advise her of his recommendation. On October 27, 1995, Petitioner talked to the male student who, according to Ms. Williams' informant, participated in the sexual incident at the stadium. The male student confirmed that the sexual incident occurred in the stadium. However, there is no evidence that the student admitted his personal involvement in the sexual activity to Petitioner at that time. The police investigation later revealed that the male student was one of the students who had participated in the sexual incident. At the IEP meeting on October 31, 1995, the entire IEP team, including ESE teachers from PHS and Woodham High School (WHS), ESE district staff, and the female student and her mother, discussed the reasons for changing the student's placement to WHS. Everyone on the IEP team, except the female student, believed that she should be transferred to a new school environment with peers who did not know her. The female student begged her mother not to permit the transfer. However, the parent agreed that the transfer was in her daughter's best interest and offered to provide transportation. On November 1, 1995 or November 2, 1995, the female student was supposed to enroll at WHS. Instead, she returned to PHS. Mr. Sousa called the mother to pick up her daughter and take her to WHS. On November 3, 1995, Mr. Sousa called the female student's mother. She stated that everything was all right with her daughter at WHS. On Monday, November 6, 1995, the female student's mother called Mr. Sousa because her daughter had run away from home. The mother wanted Mr. Sousa to be on the lookout for her daughter. During the conversation, the mother stated for the first time that the rumors about the sexual incident might be true because, despite her daughter's denials, it had been confirmed by one of her daughter's friends. Mr. Sousa informed Petitioner about the suspicions of the female student's mother. Petitioner then directed Coach Wilson to talk with the football team again. No one on the team would admit their involvement in the sexual incident. Petitioner also told the deans and the assistant principals to see if they could determine what had happened and who was involved. The efforts of the faculty and staff to verify the rumors were unsuccessful. On November 9, 1995, Petitioner received a letter from Ms. Ferguson suggesting that he was responsible for trying to cover up the sexual incident. He also received a call from Special Assistant to the School Superintendent Jerry Watson, stating that he had heard "bad things" were going on at PHS. Petitioner called a meeting with the appropriate PHS staff to discuss information about the alleged sexual incident. They reviewed information furnished by the male students and the female student's mother. During this meeting, Petitioner expressed his concern that someone in the group was acting unprofessionally by leaking confidential information about students to persons outside of PHS. Petitioner advised the group that he would try to transfer anyone who breached the students' confidentially. Petitioner did not make these comments to threaten or intimidate his staff and faculty or to cover up the sexual episode. After the meeting on November 9, 1995, Petitioner took Ms. Ferguson's letter to the district office where he met with Sherman Robinson, Deputy School Superintendent. Petitioner told Mr. Robinson about the facts leading up to the receipt of the letter. Mr. Robinson told Petitioner to contact Joe Hammons, the Superintendent's attorney, for advice as to the appropriate action. Petitioner then made an appointment with Mr. Hammons for Monday, November 13, 1995, because Friday, November 10, 1995, was a holiday. On November 13, 1995, Mr. Hammons met with Petitioner. At this meeting, Petitioner told Mr. Hammons what he knew concerning the sexual incident. Mr. Hammons then scheduled a meeting for November 14, 1995, with Petitioner, Mr. Robinson, and two members from the school district's risk management department. At the meeting on November 14, 1995, the group determined that information available from the male students and the female student's mother, justified contacting the Pensacola Police Department. Upon leaving that meeting, Petitioner contacted Sergeant Potts at the police department. The deans at PHS generally handled all disciplinary problems until they determined that a crime had been or might have been committed. At that point, the staff involved the school resource officer. In this case Petitioner relied on his staff to investigate the rumors of the sexual incident and did not involve the school resource officer. Until November 1995, Petitioner was not aware that, if the rumors of the sexual incident proved true, a crime had been committed. Shortly thereafter, Dusty Cutler of the Pensacola Police Department was assigned to investigate the sexual incident at PHS. On November 15, 1995, Officer Cutler talked to the female student who continued to deny all allegations. The female student did not admit to being involved in the sexual incident for several weeks after Officer Cutler began her investigation. Pursuant to Petitioner's suggestion, Officer Cutler also talked to the male student identified by Ms. Williams' informant as one of the participants in the sexual incident. The female student's mother told Officer Cutler that she did not want a police investigation. The mother became upset with the way Officer Cutler was talking to her. Petitioner complained to Lieutenant Knowles of the Pensacola Police Department about Officer Cutler's "abusive" behavior to the mother of the female student. From that time forward, Officer Cutler never spoke to Petitioner even though she spent six months investigating the sexual incident on a daily basis. There is no persuasive evidence that Petitioner interfered with Officer Cutler's investigation or failed to cooperate with her in any way. Officer Cutler reported the sexual incident to HRS. The agency gave her the same response they had given Ms. Ferguson, i.e., HRS would not investigate or follow the case because the sexual activity was not a rape and a family member was not involved. After Officer Cutler was assigned to the case, Petitioner was instructed by the school district to do nothing further until the police investigation was concluded. The Grand Jury released its Amended Report on Pensacola High School on April 15, 1996. The report indicted several male students involved in the sexual incident. Petitioner did not have an opportunity to discipline the students because he was not working at PHS at that time. In the spring of 1996, a number of middle school and high schools in the Pensacola area received bomb threats over the telephone. PHS received bomb threats on at least three occasions. The school evacuated to the adjoining football stadium on one occasion, to the fairgrounds on another occasion, and to Pensacola Junior College on a third occasion. On March 29, 1996, about 7:00 a.m., a school secretary, received a bomb threat call at PHS. Mr. Sousa received a second bomb threat call at PHS around 7:15 or 7:30. On both occasions the caller's voice was a raspy, young man's voice. The school secretary and Mr. Sousa recognized the voice of the caller as a young man in one of the self-contained classrooms. The student had created problems in the past. Each time he behaved improperly, the student would use his raspy voice. Mr. Sousa reported the first bomb threat to Mr. Carvalis. Mr. Carvalis called Petitioner at his home. Petitioner was not at school because he was not feeling well because he had been at the emergency room much of the night before. Petitioner instructed Mr. Carvalis to initiate a search. The search included a sweep of the stadium in case the school had to evacuate to that area. Petitioner advised Mr. Carvalis that he was on his way to the school. When Petitioner arrived at PHS, Mr. Carvalis informed him of the second threatening call. The staff again assured Petitioner that they knew the caller's identity, and that both calls had been made by the same student. The student was not at school. Therefore, Petitioner directed Mr. Sousa and the resource officer, Max Cramer, to go to the student's home and request the student's parent to bring the student to school. In the meantime, a third call was received from the same caller. Next, Petitioner phoned Deputy Superintendent Sherman Robinson. Petitioner explained to Mr. Robinson about the bomb threat and the school's discovery of the identity of the caller. Jones believed from his discussion with Mr. Robinson that his handling of the situation and his decision not to evacuate the school had the tacit approval, if not the explicit permission, of the district office. Petitioner believed Mr. Robinson concurred in his decision not to evacuate. The student with the raspy voice and his parent subsequently arrived at the school. After questioning the student, Petitioner believed the student was the caller. Petitioner decided to continue the search of the school without evacuating it. Petitioner directed Mr. Carvalis and the maintenance men to divide into teams and sweep the campus using the techniques taught by a handler of a bomb sniffing dog after previous threats. On one occasion a bomb sniffing dog and his handler came to PHS from Eglin Air Force Base in Ft. Walton. The PHS campus was so large that the dog got tired and refused to work about half way through the search. On that occasion, the search continued in the same manner employed by Petitioner on March 29, 1996. During the search on March 29, 1996, seven different groups looked for anything that was out of place. All of the deans had assigned areas where they searched trash bins, open lockers, and open classrooms. Later in the school day, Mr. Carvalis reported that the entire campus, including the portables, had been swept and nothing found. Petitioner does not dispute that he did not follow the Superintendent's policy regarding bomb threats on the day in question. Petitioner believed that he knew the identity of the caller. He also was concerned about the disruption that the bomb threats were causing to the academic programs at PHS. The students in the gifted program were preparing to take their advanced placement tests. The students in the International Baccalaureate program were studying for their exams. Additionally, March 29, 1996 was the last chance for some students to take the high school competency test before graduation. Superintendent Malloy was particularly concerned that Petitioner failed to evacuate the school. The previous day he had reiterated his policy of evacuation to all principals. However, Petitioner did not attend the meeting; one of Petitioner's assistant principals attended that meeting in his absence. On March 30, 1996, Superintendent Malloy placed Petitioner on administrative leave with pay, pending an investigation of his failure to evacuate PHS after a bomb threat. Superintendent Malloy subsequently assigned Petitioner to his current position as Director of Student Transfers. On June 3, 1996, Superintendent Malloy issued a letter reprimanding Petitioner for the following reasons: (1) failing to ensure that the ISS class had appropriate supervision; (2) failing to follow up on information regarding sexual activity in the stadium in a timely manner; and (3) failing to evacuate the school after receiving a bomb threat. In November of 1996, Jim May was elected Escambia County School Superintendent. On or about June 10, 1997, the Commissioner of Education, Frank T. Brogan, filed an Administrative Complaint against Petitioner in Education Practices Commission (EPC) Case Number 956-1609-B. This complaint alleged that Petitioner failed in his responsibilities to ensure that all students under his charge were properly supervised. The complaint also alleged that Petitioner failed to evacuate the school after receiving a bomb threat. On June 24, 1997, Superintendent May nominated Petitioner to be principal of WHS. At the time of the nomination, Superintendent May was aware of the relevant facts concerning the PHS sex incident and bomb threat incident. Additionally, he had been in contact with counsel for the Florida Department of Education regarding EPC Case Number 956-1609-B. Respondent rejected Petitioner's nomination to be principal of WHS. On a 3 to 2 vote, Respondent found good cause to reject the nomination based on the following: Among the reasons articulated by the three Board Members who voted against the nomination were, in addition to the reasons presented by the other speakers, Mr. Jones' unsatisfactory past performance of his duties when he served as Principal of Pensacola High School (which events were the subject of a grand jury report and are the subject of an administrative complaint by the Commissioner of Education now pending before the Education Practice Commission proceeding, . . . his lack of subsequent training to improve his skills in the areas in which his poor performance resulted in his 1996 removal as Principal of Pensacola High School, and his apparent violation of certain of the principles of Professional Conduct for the Education Profession in Florida, in addition to gross insubordination and willful neglect of duty in connection with the Pensacola High School incidents. In sum the three Board Members who voted against the nomination felt that Mr. Jones is presently unqualified to be a Principal. After Respondent rejected his nomination, Petitioner told Superintendent May that it was unfair to the students of WHS to make them wait for a principal. On July 22, 1997, Superintendent May nominated another person to be principal at WHS. On or about November 6, 1997, the Florida Department of Education decided that it would withdraw its probable cause determination against Petitioner and enter into a Deferred Prosecution Agreement with him. The department requested the Education Practices Commission to close EPC Case Number 956-1609-B. On or about March 9, 1998, Superintendent May advised the Florida Department of Education that Petitioner had performed his assigned duties and responsibilities in a professional manner during the period of January 10, 1997 and March 1, 1997. Petitioner had fully complied with all district and state rules and regulations. On or about March 26, 1998, Education Commissioner Brogan determined that there was no probable cause to suspend or revoke Petitioner's teacher's certificate. Petitioner was released from his Deferred Prosecution Agreement with the department. Petitioner holds the proper state certification for a high school principal. Except for the two incidents in question, Petitioner's performance at PHS was exemplary. Under his leadership, the school population was stable and well under control. Petitioner created an atmosphere at PHS where high quality performance on the part of a number of students was recognized, encouraged, and supported by the faculty and staff. Petitioner had an excellent relationship with students, teachers, and the PHS Advisory Council. Petitioner genuinely cared for the health, safety and welfare of the students at PHS. He was concerned more about the feelings and self-esteem of the students than with winning academic and athletic competitions, and he did not make accusatory judgments about his students until he had the necessary facts and proof to support those accusations.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That Respondent enter a Final Order finding that there is no good cause to reject Superintendent May's nomination of Petitioner to be principal at WHS, promoting him to that position, and awarding him any back pay to which he may be entitled. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
The Issue Whether the Respondent committed the violations alleged in the Second Amended Notice of Specific Charges filed by the Petitioner on March 15, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes. At all times material to this proceeding, Ms. McElrath was employed as a teacher by the School Board and assigned to Miami Jackson, where she taught for almost 13 years. Ms. McElrath taught English, and she was the coach of the Miami Jackson debate team for one year and the advisor for the student newspaper for six years. She has consistently been rated acceptable in teaching and in professional responsibility in her annual evaluations at Miami Jackson. Ms. McElrath is employed by the School Board under a professional service contract. Prior to the incident that is the subject of these proceedings, Ms. McElrath had never been the subject of a School Board personnel investigation. She was known to her colleagues as a friendly person and had never displayed violent behavior. Thomas Rolle is a computer specialist employed by the School Board and assigned to Miami Jackson. Mr. Rolle's duties include trouble-shooting and maintaining the computers at Miami Jackson and administering the computer network. Mr. Rolle is blind in his left eye and is severely hearing impaired. He wears hearing aids in both ears; he can also read lips and understand a speaker in a face-to-face conversation. About three weeks prior to February 23, 2000, Mr. Rolle was conducting a computer survey at Miami Jackson to determine which computers needed to be configured for the school's Internet connection. When he arrived at Ms. McElrath's classroom, the class was watching a video on television, and the classroom was dark. Mr. Rolle also noticed that the computer and the Internet connection drop were on opposite sides of the classroom. Ms. McElrath told Mr. Rolle that she would move the computer closer to the Internet connection drop and that he should come back later to work on the computer. About ten days later, Ms. McElrath passed Mr. Rolle in the hallway, and Ms. McElrath told Mr. Rolle that she had moved the computer in her classroom. Ms. McElrath asked that Mr. Rolle come to her classroom to configure the computer. Ms. McElrath felt that her class was getting behind because there was no Internet connection in her classroom. Mr. Rolle did not go to Ms. McElrath's classroom as she had requested. Shortly before 11:00 a.m. on February 23, 2000, Ms. McElrath went to Dr. Choate, Mr. Rolle's supervisor, and asked if Dr. Choate could expedite Mr. Rolle's visit to her classroom to configure her computer. While Ms. McElrath was in Dr. Choate's office, Dr. Choate paged Mr. Rolle, and he immediately called back. Dr. Choate asked Mr. Rolle if he could go to Ms. McElrath's classroom; he told her that he was working in Room 137, the Language Arts lab, but that he would be finished soon and would go to Ms. McElrath's classroom in about 30 minutes, after he had finished a few tasks on the first floor of the school building. Dr. Choate gave Ms. McElrath this information. Ms. McElrath left Dr. Choate's office and went directly to Room 137. She was frustrated because Mr. Rolle had told her before that he would configure her classroom computer but had not done so. Ms. McElrath thought that if she went to Room 137 and waited for him, Mr. Rolle would be more motivated to go to her classroom immediately. When Ms. McElrath entered Room 137, Mr. Rolle was helping Ludgerte Jean-Baptiste, a school paraprofessional, create a school map for a job career fair. Both Ms. Jean- Baptiste and Mr. Rolle were facing away from the door to the room. At first, Ms. McElrath looked for some novels she had seen previously in the Language Arts lab, but they weren't there. She jiggled her keys to make noise so Mr. Rolle and Ms. Jean-Baptiste would notice her. Mr. Rolle did not turn around, but, after a few moments, Ms. Jean-Baptiste turned around and asked if she could help Ms. McElrath. Ms. McElrath told her she was waiting for Mr. Rolle. Ms. Jean-Baptiste touched Mr. Rolle on the shoulder, and he turned around. Ms. McElrath asked him to come with her to her classroom to configure the computer for the Internet. Mr. Rolle told her that he needed to finish helping Ms. Jean- Baptiste and would go to Ms. McElrath's classroom within 30 minutes. Ms. McElrath was very persistent and repeatedly inquired as to why he could not come to her classroom immediately. Ms. Jean-Batiste told Mr. Rolle that she could finish with the map if there was something else that he needed to do. Mr. Rolle got up to leave Room 137, and Ms. McElrath asked Mr. Rolle if he was ready to go to her classroom. Mr. Rolle told Ms. McElrath that he would go to her classroom within 30 minutes, that he needed to go to his office to get the computer software, the configuration information, and the drivers before he went to her classroom. Ms. McElrath was annoyed. She became confrontational and blocked Mr. Rolle's path to the door of Room 137. When Mr. Rolle moved to his left to go around her, Ms. McElrath moved to her right to block his path. She continually asked him why he could not go to her classroom "now," and she persisted in moving to block his path to the door. Mr. Rolle stated several times to Ms. Jean-Baptiste that she should watch, that she was a witness. When Mr. Rolle reached the door, Ms. McElrath's back was to the door. Mr. Rolle tricked Ms. McElrath by feinting in one direction and actually moving in the other direction. As he stepped to his right to go through the door, Mr. Rolle moved his left arm between his body and Ms. McElrath's, pushed her aside, 3/ and opened the door with his right hand with sufficient force that the door hit the outside wall. Ms. McElrath was startled when Mr. Rolle pushed her, and she took a step back; she and Mr. Rolle pivoted as he moved through the doorway, so that she was facing the patio outside and Mr. Rolle was facing her. While the door was open, and without any further provocation from Mr. Rolle, 4/ Ms. McElrath raised her keys and sprayed a substance into Mr. Rolle's face from a canister on her key ring. The door closed, and Mr. Rolle fell to his knees, holding his eyes. Ms. Jean-Baptiste, who was inside Room 137, saw Ms. McElrath spray the substance into Mr. Rolle's face, and she went to help him to the bathroom to flush out his eyes with water. Ms. McElrath fled upstairs to her classroom. At least five students and one staff member observed this incident. Immediately after the incident, Ms. McElrath and Mr. Rolle were summoned to the principal's office. Ms. McElrath completed a written statement in which she asserted that she had sprayed Mr. Rolle with a fluid she used to clean her dry-erase board. In her statement, Ms. McElrath stated only that she had a heated discussion with Mr. Rolle, that she had felt threatened when he said that he would not be responsible for what he might do to her, 5/ and that he had shoved her. Mr. Rolle suffered temporary damage to his eyes and was required to wear dark glasses for several weeks. His eyes were blurry and watery and light-sensitive for about a week, and he had difficulty doing his work. He also had to drop several classes he was taking at Florida International University because he missed several classes as a result of the injury to his eyes. A Conference-for-the-Record was held on May 1, 2000, to discuss with Ms. McElrath the Preliminary Personnel Investigative Report of the incident involving Mr. Rolle, in which it was concluded that the charge that Ms. McElrath assaulted Mr. Rolle was substantiated, and to discuss Ms. McElrath's violation of School Board policy and rules, as well as her future employment status with the Miami-Dade County school system. Ms. McElrath was advised at the Conference-for- the-Record that she would be notified of the "recommended action or disciplinary measures to include any of the following: a letter of reprimand, a TADS Category VII prescription for the Professional Responsibilities Component infraction which could impact the annual evaluation decision, suspension or dismissal." At this conference, Ms. McElrath conceded that the substance she had sprayed in Mr. Rolle's face was actually pepper spray. She stated that she was seeing a counselor recommended to her by the Employee Assistance Plan. She acknowledged that her actions were precipitated because she perceived that Mr. Rolle was ignoring her and that there was no excuse for her actions toward Mr. Rolle. The first time Ms. McElrath alleged to the School Board that Mr. Rolle had moved his hands to her throat and that she was fearful that he intended to attack her was in a letter dated July 26, 2000, which she wrote "to clarify, explain, and/or respond" to the information contained in the summary of the May 1, 2000, Conference-for-the-Record. In this letter, Ms. McElrath stated that she sprayed Mr. Rolle with pepper spray because she was defending herself; he had shoved her and was bringing his hands up to her throat, and she felt threatened. Ms. McElrath asked that this letter be included as part of her record. Summary It is uncontroverted that Ms. McElrath sprayed Mr. Rolle in the face with pepper spray and that she lied when she asserted in the statement she gave immediately after the incident that the chemical she sprayed in Mr. Rolle's face was a solution she used to clean her dry-erase marker board. The disputed factual issues that are presented for resolution in this case are whether Ms. McElrath conducted herself in her employment as a teacher in a manner that failed to reflect credit on herself and the school system; whether Ms. McElrath committed misconduct in office and thereby impaired her effectiveness in the school system; whether Ms. McElrath committed violence in the workplace; and whether Ms. McElrath acted in self-defense when she sprayed Mr. Rolle with pepper spray. Having considered all of the evidence submitted with respect to Ms. McElrath's conduct during the incident involving Mr. Rolle, the undersigned finds that Ms. McElrath was acting in the course of her employment as a teacher and that her conduct certainly did not reflect credit on her. In making this finding, consideration has been given to Ms. McElrath's actions in blocking Mr. Rolle's path as he tried to leave Room 137 and in repeatedly demanding to know why he would not go directly to her classroom, after he had explained that he needed to obtain materials necessary to configure her computer for the Internet, as well as to her spraying Mr. Rolle with pepper spray. The undersigned further finds that Ms. McElrath committed misconduct in office. Ms. McElrath did not value Mr. Rolle's worth as an employee of the School Board entitled to make judgments regarding his professional responsibilities or Mr. Rolle's dignity as a person. Furthermore, Ms. McElrath used exceedingly poor professional and personal judgment both in spraying Mr. Rolle with pepper spray and in her actions toward Mr. Rolle as he was trying to leave Room 137. The evidence presented by the School Board is not sufficient, however, to establish that Ms. McElrath failed to sustain the highest degree of ethical conduct, that she interfered with Mr. Rolle's exercise of his political and civil rights, or that she used coercion to influence Mr. Rolle's professional judgment. Having considered all of the evidence presented on which findings of fact can be based, the undersigned finds that Ms. McElrath's actions with respect to Mr. Rolle were so serious that they impair her effectiveness in the school system. In making this finding, the undersigned is mindful that, based on the record herein, during her tenure as a teacher in the Miami- Dade County public schools, Ms. McElrath has not been the subject of any other disciplinary action and that she has consistently received "acceptable" annual evaluations, the highest overall rating a teacher in the Miami-Dade County school system may earn. Nonetheless, the lack of control Ms. McElrath exhibited in her behavior towards Mr. Rolle raises serious and disturbing questions regarding her ability to resolve in a reasonable manner those frustrating situations that sometimes occur when one works with busy colleagues, her ability to respond in an appropriate manner to the stresses of classroom teaching, and her ability to appreciate the consequences of her actions. Without question, the act of spraying someone in the face with pepper spray is an act of violence that, the evidence herein establishes, took place at Miami Jackson, the public school in which Ms. McElrath worked as a teacher. The greater weight of the evidence is sufficient to establish that Mr. Rolle pushed Ms. McElrath aside as he was moving to open the door to leave Room 137, but Ms. McElrath testified that Mr. Rolle's "shove" did not harm her but merely startled her and did not precipitate her action in spraying Mr. Rolle with the pepper spray. Rather, Ms. McElrath asserts that she took this action in response to Mr. Rolle's moving his hands upward to grab her throat. Having carefully considered all of the evidence on which findings of fact can be based, the undersigned finds that Ms. McElrath did not have a reasonable basis for believing that Mr. Rolle was about to attack and choke her. It is notable in this regard that, as far as can be discerned from the record herein, Ms. McElrath did not, as one would expect, immediately explain her action as self-defense but, rather, waited approximately five months before presenting this justification to the School Board. The testimony of Andrea Zuniga, the only witness who corroborated Ms. McElrath's claim that Mr. Rolle was moving his hands up to grab her throat, has been considered and found not sufficiently persuasive to outweigh the testimony of Ms. Jean-Baptiste, Diane McKnight, and Mercedes Thompson that they saw no such action by Mr. Rolle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Mary Jane McElrath without pay be sustained and that her employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 3rd day of August, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2001.
The Issue Whether Respondent's professional services contract with the Petitioner should be terminated for just cause as alleged in the Notice of Specific Charges.
Findings Of Fact Respondent has been employed by Petitioner as a teacher since 1988. At the times pertinent to this proceeding, Respondent held a professional services contract with Petitioner. After he graduated from college in 1970, Respondent played professional football for the San Diego Chargers for one year. Thereafter, he taught and coached in Polk County, Florida, at Albany State College in Georgia, and at Florida A & M University. Miami Edison Senior High School (Miami Edison), Norland Middle School (Norland), and Riviera Middle School (Riviera), are all public schools in Dade County, Florida. In 1988, Craig Sturgeon, the principal of Miami Edison, hired Respondent as a teacher and the head football coach at Miami Edison. SUMMER SCHOOL 1988 During the summer of 1988, Respondent was assigned to teach a weight training class. Among the students in Respondent's weight training class were two females, Nelta Georges and Latoya Stewart. During the summer of 1988, Nelta and Latoya usually went to Respondent's office to watch television after class. Respondent usually kept snacks in his office and had a refrigerator in which he kept milk. Latoya asked Respondent if she could have some milk to drink with the cookies she had taken from the table. In response to this question, Respondent put his leg up on a table, leaned back in his chair, licked his lips, and told Latoya that he had some "Elsie's milk" that she could have. This was a sexually suggestive statement that was inappropriate for a teacher to make to a student. After Respondent made this inappropriate comment to Latoya, he gave Nelta permission to leave school to go to a store across the street from Miami Edison. Respondent violated school policy by allowing the student to leave school campus for that purpose while school was in session. Mr. Sturgeon received complaints that Respondent had made sexually inappropriate comments to female students, including the incident involving Nelta and Latoya, and that he was granting students permission to leave school. An investigation by the special investigation unit of the Dade County Public Schools Police Department, identified as S.I.U. Case #s-0854, confirmed the complaints pertaining to the sexually inappropriate comments. Respondent admitted giving students permission to leave campus. On November 9, 1988, a conference for the record was held involving Mr. Sturgeon, Respondent, and Respondent's union representative. Respondent was reprimanded and rated as unacceptable on Category VII (Professional Responsibilities) of the Teacher Assessment and Development System (TADS) on the following grounds: Substantiated Findings S.I.U. Case #s-0854. Conduct Unbecoming a School Board Employee. Permitting students to leave the school campus to go to the store while school was in session. SCHOOL YEAR 1991-92 Respondent taught a wood-shop class at Norland Middle School during a portion of the 1991-92 school year. Danielle Williams is a sixteen year old female who was a student in Respondent's wood-shop class at Norland during the 1991-92 school year. On one occasion, Respondent asked Danielle to come to his lectern and to show him her work. Danielle testified that when she did as she was requested, Respondent put his arm around her shoulder so that he touched her right breast with his hand. Danielle testified that she pushed Respondent's hand away and told him "you don't have to touch me to talk to me." This incident occurred in front of the other students in Respondent's class. Respondent admitted that he put his arm around the student, but asserted that it was a friendly gesture like he used to do with players when he coached. He denied touching the student's breast. The Special Investigation Unit of the school board's police department investigated the incident, but was unable to substantiate that Respondent touched Danielle's breast. The conflict in the evidence is resolved by finding that Respondent inappropriately draped his arm around Danielle's shoulders, but that the evidence is insufficient to establish that he touched Danielle's breast. 1/ Respondent made inappropriate comments to Danielle, asking if she had a father and stating that he wanted to "get with" her mother. Danielle also testified that Respondent stared at her inappropriately as if he could rape her with his eyes. Jonelle Hogan, another female student in Respondent's wood-shop class, testified that Respondent also stared at her in a manner she believed to be inappropriate and that he liked to touch students. John Gilbert was the principal of Norland during the time Respondent taught at that school. In September 1991, Mr. Gilbert received complaints from the parents of two students that Respondent had made sexually suggestive remarks to female students and that he inappropriately stared at and improperly touched students. Respondent was transferred to another school as a result of these complaints. 1993-94 School Year Respondent taught a wood-shop class at Riviera Middle School for a portion of the 1993-94 school year. George Gomez is a fourteen year old male who was a student in Respondent's wood-shop class at Riviera. On October 12, 1993, George was playing with another student by poking the other student in the rear with a wooden spoon. Respondent told George to stop what he was doing, but George did not obey that instruction. Respondent approached George, grabbed him by the shoulder, and told the other student to hit George. When the other student refused to hit George, Respondent punched George in the chest with his closed fist and told him to sit down. The punch hurt George, and he started crying. George was also embarrassed by this incident because the other students in the class were laughing at him. After George sat down on a stool, he got up and started to leave the classroom. Respondent grabbed George by the back of his pants, picked him off the ground, and pulled him back into the classroom. While George was being held in the air by the Respondent, George picked up a plastic garbage can and tried to hit Respondent with it. When Respondent released him, George fell on the other plastic garbage cans. George got up and Respondent told him to sit down and asked why he was crying. George said he was crying because the punch had hurt him. George picked up a baseball bat and said if Respondent wanted to see how much it hurt that he should let George hit him with the bat. Respondent told George that he would break his neck if George hit him with the bat. George tossed the bat aside, but Respondent picked up another bat and encouraged George to hit him. Respondent then picked up a rasp and asked George if he wanted to stab him. George replied "why don't you get me a gun?" Respondent asked George whether he wanted a .22 caliber pistol or a shotgun and said he would get it from his car. George believed Respondent was serious when he made the statement about the gun and he stayed silent in response to Respondent's question. At his request, George was transferred out of Respondent's class following this incident. Some of the students in the Respondent's wood-shop class were special education students. Following the incident between George and the Respondent, these special education students returned to the class of their regular teacher, Faith Feurst. These students were scared and did not want to go back to Respondent's classroom. This incident impaired Respondent's effectiveness as a teacher at Riviera. At various times while at Riviera Respondent used profane language in front of students in the classroom, using such terms as "fuck," "bitch," and "ass." At the times pertinent to this proceeding, Dr. Pauline A. Young was an assistant principal at Riviera. On October 12, 1993, Dr. Young was notified of the incident involving George. On December 6, 1993, a Conference for the Record (CFR) was held with the Respondent to discuss his employment history and the possibility of further disciplinary action against him. Respondent was reprimanded for the incident and returned to the classroom pending further review of his employment. A written summary of the CFR, dated January 10, 1994, advised Respondent that the School Board was considering whether it should terminate his professional services contract for cause. On January 4, 1994, Officer Horace Morgan, a police officer with the City of Miami Police Department was on duty and engaged in narcotics surveillance. Officer Morgan observed Respondent purchase an object Officer Morgan believed to be a plastic bag of cocaine from an unidentified individual. Officer Morgan instructed two other police officers, one of whom was Jose Moure, to arrest Respondent. Officer Moure inspected the inside of Respondent's car at the time of the arrest and found a clear plastic bag with a short red straw. There was a white powder in the bag. The contents of this bag was sent by Officer Moure to a lab for analysis. There was no evidence to establish the chain of custody or the manner in which the laboratory tests were conducted. The results of the testing were reflected by a lab report. The report Officer Moure received following the testing reflected that the white powder in the plastic bag was cocaine. This lab report is hearsay that cannot be the basis of a finding of fact. See, Section 120.58(1)(a), Florida Statutes. Petitioner failed to establish by competent, substantial evidence, that the plastic bag taken from Respondent's vehicle contained cocaine. Also discovered in Respondent's car at the time of the arrest was a military hand grenade training simulator referred to as a M116A. Officer D. C. Diaz, an investigative bomb technician with the City of Miami Police Department's Special Investigation Section, was summoned to examine the M116A. The device was "live" and would have exploded if detonated. This device had the potential to cause bodily harm and property damage. It is a third degree felony for an unauthorized individual to have possession of a device such as a M116A. Respondent had no authorization to be in possession of this device. Although it is illegal to sell such a device in the State of Florida, Respondent's testimony that he bought the device in South Carolina is found to be credible. Criminal charges were filed against Respondent for possession of cocaine and possession of a destructive device. On January 18, 1994, the Petitioner learned of the criminal charges against Respondent and removed him from the classroom. On May 2, 1994, Respondent entered a plea of nolo contendre to these charges. The presiding judge accepted this plea, withheld adjudication of guilt, and sentenced Respondent to time served. On February 16, 1994, the School Board took action to terminate Respondent's professional services contract for just cause, immorality, misconduct in office, and conviction of a crime involving moral turpitude, upon such conviction. The Petitioner subsequently filed a Notice of Specific Charges in this proceeding that alleged it has just cause to terminate Respondent's employment on the grounds of immorality and misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and the conclusions of law contained herein, that upholds the suspension of Respondent's employment, and that terminates his professional services contract. DONE AND ENTERED this 2nd day of February 1995 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2nd day of February 1995.
The Issue Whether Respondent, Stephen Lauster (Mr. Lauster or Respondent), violated section 1012.795(1)(g) and (j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1. and (2)(a)5.; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Respondent is a teacher in the School District and has been since 1990. He holds Florida Educator’s Certificate 664969, covering the areas of educational leadership and music, which is valid through June 30, 2021. The Commissioner is the head of the state agency, the Florida Department of Education. The Commissioner is responsible for investigating and prosecuting misconduct allegations against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. During the period relevant to the allegations in the Amended Administrative Complaint, Respondent was employed as a music teacher at the Middle School in the School District. Respondent’s annual professional evaluations for the relevant periods show scores considered “effective” and “highly effective.” Despite this, Respondent has an extensive disciplinary history with the School District, which is set forth below. On or about March 17, 2006, Respondent received a letter of reprimand from his then-principal, Frank Zencuch. On or about March 27, 2009, Respondent received a warning of unsatisfactory behavior from Principal Zencuch. On or about April 2, 2009, Respondent submitted a rebuttal to the March 27, 2009, written warning. On or about May 13, 2009, a Grievance Procedure Level II hearing was held to determine whether the letter of reprimand should be removed from Respondent’s personnel file. The grievance was denied by a School District representative and the letter of reprimand remained in Respondent’s file. On or about December 12, 2013, Respondent’s then-principal, Margaret Jackson, completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about February 7, 2014, Principal Jackson completed a conference summary regarding Respondent, concerning insubordination. On or about April 24, 2014, Principal Jackson completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about March 30, 2018, Principal Jackson completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about April 5, 2018, Respondent submitted a rebuttal to the March 30, 2018, conference summary. The Bus Incident on May 28, 2018 On May 28, 2018, Respondent was on his way home from school and was driving behind a school bus, which had left the Middle School ahead of him. Respondent was driving a large sports utility vehicle which allowed him to see into the rear window of the bus he followed. Respondent noticed students on the bus leaving their seats and moving around. Respondent contacted the School District’s transportation center to report the actions of the students on the bus. Respondent testified that after making his complaint to the transportation center, he saw no change in the actions of the students on the bus, who continued to leave their seats. Respondent continued to follow the bus until it made its first stop in a private gated community. Student M.O. lived in the gated community and got off at this stop to go home. At the time of the incident, M.O. was eleven years old. Her mother, K.O., waited in the community parking lot to pick M.O. up from school. When the bus stopped, Respondent pulled his car alongside the bus, exited his vehicle, and hurriedly approached the bus. M.O. disembarked the bus and walked towards her mother’s car. Respondent stood in front of the opened door of the bus and began to yell at the bus driver. Respondent then beckoned M.O. back to the bus. Respondent angrily yelled at M.O., telling her that the next day, “you come to the band room straight to the band office. If I have to come and find you it’ll be worse than what you are going to already get.” Seeing this transpire, K.O. approached Respondent to inquire about what was happening and why he was yelling at her daughter. K.O. asked Respondent who he was. Respondent told K.O. that the bus and M.O. were “in violation” and that M.O. was required to report to him in the morning. Respondent then continued to yell at the bus driver. He demanded the driver send another student to him—a student he claimed he witnessed standing in the bus’s aisles while it was being driven. K.O. touched Respondent’s arm from behind, to gain his attention. Respondent yelled at K.O. that she should not touch him. They engaged in a verbal exchange that was transcribed by a court reporter during K.O.’s. deposition: Respondent: Get your hands off me. Don’t ever touch me. I am doing what I’m supposed to do. K.O.: (Unintelligible.) Respondent: Lady, it’s fixing to get a lot worse. K.O.: What did you say to me? Respondent: I said, “Lady, it’s going to get worse.” Respondent scolded the bus driver for what he considered to be the driver’s inaction. He threatened all of the students on the bus with a “referral.” K.O. remained at the bus stop until the bus left. M.O. was upset and embarrassed by the incident. She did not know Respondent personally; she only knew that he was the school’s band director. The other students witnessed Respondent yelling at M.O. and K.O., which added to M.O.’s embarrassment. Later that evening, when K.O. arrived at home, she emailed Edward Laudise, the assistant principal of the Middle School, regarding the incident. The next day, Respondent reported to the Middle School, where he was told by Principal Jackson that he was not allowed to have any contact with M.O. On or about July 31, 2018, the School District’s Director of Human Resources recommended that Respondent be terminated based on the bus incident. The School District’s Superintendent joined in the recommendation for termination. However, on or about August 21, 2018, the School District suspended Respondent for a period of five days, without pay, instead. Thereafter, Respondent was the subject of several other disciplinary actions, unrelated to the bus incident. On or about August 27, 2018, Principal Jackson completed a conference summary regarding Respondent’s language/conduct toward students, co-workers, and parents, and his poor attendance and tardiness. On or about May 7, 2019, Principal Jackson held a meeting with Respondent to discuss allegations that Respondent told students, among other things, that “they would be the first generation of young people to die before their parents,” and that they “sound like they have stage 4 cancer.” On or about May 28, 2019, Respondent received a letter of reprimand and recommendation for a four-day suspension from the School District Director of Human Resources. On or about May 29, 2019, Respondent received a letter of reprimand and four-day suspension from the School District Superintendent. In September 2019, Respondent entered into a settlement agreement with the School District, through which the four-day suspension was reduced to two days. The P.E. Incident on January 30, 2020 A.H. and L.H. are students who attend the Middle School. On the date of the hearing, which was held approximately six months after the incident, A.H. and L.H. were 13 years old. On or about January 30, 2020, A.H. and L.H. were participating in physical education (PE) class. Melea Morgan was the PE teacher. A.H. and L.H. left PE class to go to the restroom. There is conflicting testimony as to the amount of time A.H. and L.H. spent in the bathroom, but the amount of time is irrelevant. After leaving the restroom, the students walked towards a water fountain. Respondent contacted Ms. Morgan to let her know that A.H. and L.H. were in the bathroom for a long time. He asked if she approved of him going to get them and Ms. Morgan agreed. Respondent approached A.H. and L.H. as they walked towards the water fountain. Respondent admonished A.H. and L.H. for being in the bathroom for an extended amount of time. He told them that they should be participating more in PE class and that he would be referring them to in-school suspension (ISS). Both A.H. and L.H. distinctly and explicitly recalled the events that took place that day. A.H. credibly testified about her interactions with Respondent, stating: And then Mr. Lauster – and then I started telling Mr. Lauster, so we will participate more, can we please not go to ISS. And he said, well, you’re on the soccer team, you shouldn’t be hanging out with a loser. She’s a do-nothing. You can’t -- you shouldn’t be hanging. And then I was just, like, we will participate more and I’m sorry. He was like, I expect more from you because you’re on the soccer team. And I was just -- and L said nothing. And I was just, I will do more. And then he just kept calling L a loser. A.H. distinctly recalled that Respondent referred to L.H. as a “do- nothing” and a “loser.” L.H.’s testimony was the same. She recalled that Respondent referred to her as both a “loser” and a “do-nothing” and that he asked A.H. why she was hanging out with “this loser,” referring to L.H. Respondent threatened to send A.H. and L.H. to ISS, but then told them he would give them another chance. The School District initiated an investigation into the matter. On or about March 6, 2020, Respondent received a letter of termination from the School District’s Superintendent. On or about April 22, 2020, Respondent entered into a settlement agreement with the School District. Pursuant to the terms of the settlement agreement, the School District did not terminate Respondent. Rather, the settlement agreement operated as a “last chance agreement,” which provided for an automatic termination should any future infractions occur. Respondent was neither apologetic nor remorseful for how he handled A.H. and L.H. Instead, in testimony that was wholly unconvincing, he maintained that he did not call L.H. a “do-nothing” or a “loser,” but, rather, that he told the students that they “made a loser decision” and “chose to be do-nothings in the bathroom.” At only 12 or 13 years old at the time of the incident, L.H. was impressionable. By all accounts, she is a very shy girl. L.H.’s mother testified that L.H. struggles with anxiety and that in the past she has felt like she is a loser and does not have friends. She was “shook up” by Respondent’s comments. Similarly, Respondent was unremorseful and unapologetic about his actions during the bus incident. Respondent attempted to justify his behavior towards M.O., her mother, and the bus driver. He testified that he needed to stop the bus because he saw inappropriate activity on the bus that could have been dangerous to everyone onboard. Respondent is correct that the students on the bus were engaging in inappropriate behavior—they were getting in and out of their seats, walking in the aisles, and playfully fighting with each other. However, Respondent handled it poorly. Principal Jackson testified that the appropriate reaction would have been for Respondent to contact the School District’s transportation department (which he did) and then report the inappropriate behavior to school administration the next day. He should not have approached the bus or condemned the students or the bus driver. Respondent was clearly angry when he spoke to M.O. He lost his composure. Worse still, he directed his anger to K.O. Ultimate Findings of Fact The undersigned finds that Petitioner proved by clear and convincing evidence that Respondent inappropriately yelled at and intimidated M.O. who had changed seats on the bus while it was moving. Respondent also became confrontational with M.O.’s mother and threatened the remaining students on the bus with referrals, regardless of whether they were misbehaving or not. Petitioner also proved by clear and convincing evidence that Respondent told L.H., in front of A.H., that she was a “loser” and a “do nothing.” The undersigned finds that based on the findings of fact above, Respondent’s conduct during the bus incident and the PE incident have been proven by clear and convincing evidence and that Respondent, through his actions, violated the statutes and rules as alleged in the Amended Administrative Complaint. None of the other factual allegations contained in the Amended Administrative Complaint were proven by clear and convincing evidence.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission finding that Respondent, Stephen Lauster, violated section 1012.795(1)(j) by violating rule 6A-10.081(2)(a)1. and (2)(a)5.; and as sanctions for such violations, suspending his educator’s certificate for one year from the date of the Final Order. DONE AND ENTERED this 3rd day of November, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 3rd day of November, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Lisa M. Forbess, Interim Executive Director Department of Education Education Practices Commission Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (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 The issues to be determined in this proceeding are whether Respondent has committed the violations alleged in the Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Stipulated Facts Respondent, Seneka Rachel Arrington, holds Florida Educator's Certificate 1012300, which is valid through June 2009. Respondent was employed as a Language Arts Teacher at Matanzas High School in the Flagler County School District during the 2006/2007 year. On or about October 9, 2006, Respondent was terminated from her teaching position with the school district. On or about April 3, 2007, Respondent removed merchandise from a retail establishment without paying for it and with the intention of converting it to her own use. Respondent was arrested and charged with one count of retail theft. On or about May 29, 2007, Respondent entered into a deferred prosecution agreement with the state attorney's office with regard to the charge of retail theft. Findings of Fact Based Upon Evidence Presented at Hearing Dr. Hugh Christopher Pryor is the principal at Matanzas High School (Matanzas). Dr. Pryor hired Respondent in May 2006 for a position as an English teacher, to begin work in August 2006. During her employment at Matanzas, Respondent also worked as an assistant cheerleading coach. K.M. was a freshman at Matanzas during the 2006-2007 school year. She was on the cheerleading squad and knew Respondent as one of her coaches. She was not a student in any of Respondent's classes. M.H., K.M.'s boyfriend at all times material to the allegations in this case, was a 14-year-old freshman on the Matanzas football team and a student in one of Respondent's classes. C.J. was another freshman member of the football team and a friend of M.H.'s. He was not a student in any of Respondent's classes. Respondent was well-liked by students at the high school. Although K.M. testified that she was authoritative and strict with the girls on the cheerleading squad, she got along with all of the girls and "kind of was like us." K.M. regarded her more as a friend than as a teacher. On occasion, K.M. used Respondent's cell phone. On October 6 or 7, 2006, Donald Apperson Jr., the school's resource officer, was approached by a friend at a social outing who suggested he check into whether "the black cheerleading coach" at Matanzas was having a sexual relationship with some of the football players. Respondent was the only teacher who could fit this description. On Monday, October 9, 2006, Mr. Apperson reported this information to Ken Seybold, who was an assistant principal and the athletic director at Matanzas. The principal was notified and an investigation was initiated. Respondent was notified of the allegations, which she denied, and was sent home pending completion of the investigation. The investigation consisted of speaking with several members of the football team and was completed in a single day. At the end of the day, the principal determined that Respondent's employment would be terminated because she was still under a 97- day probationary period wherein she could be terminated without cause. Respondent was notified of the decision to terminate her employment the next day, October 10, 2006. Because she was terminated within the statutory probationary period for the initial contract for employment, no cause was listed. While Dr. Pryor testified that he was generally dissatisfied with her performance, his testimony regarding why was sketchy at best, and there was nothing in her personnel file to indicate that she was counseled in any way with respect to her performance. Teachers in the Flagler County School District are generally admonished not to transport students in a teacher's personal vehicle. Transporting students is only condoned where the student's parent has been notified and permission granted, and where an administrator has been notified of the need to transport the student. This procedure is apparently covered during orientation for new employees. However, no written policy regarding the transport of students was produced or cited, and Dr. Pryor indicated that Respondent was late to the orientation session prior to the beginning of the school year. It cannot be determined from the record in this case whether Respondent was aware of this policy. Respondent transported students in her personal vehicle on two occasions. On the first occasion, Respondent took K.M. and one other cheerleader to the Volusia Mall in order to look for dresses for a dance at school. K.M. testified that her mother had given permission for K.M. to go with Respondent on this outing. Respondent and the two girls were accompanied on this outing by Respondent's mother and sister. The second outing also involved shopping for clothes for the school dance. On this trip, Respondent took K.M. as well as M.H. and C.J. in her car after football and cheerleading practice. The four went first to the St. Augustine outlet mall and then to the Volusia Mall to shop for clothes. K.M. testified that her mother had given her permission to go with Respondent, but probably would not have given permission if she had known the boys would also be going. Neither M.H. nor C.J. had permission from a parent to ride in Respondent's car. The boys testified that they both drove Respondent's car while on this trip, although the testimony is inconsistent as to who drove when, and is not credible. Neither boy had a learner's permit to drive. No evidence was presented regarding the dates of these two shopping trips, other than they both occurred prior to September 29, 2006, which was the date identified for the dance. This same date is identified as the date for a football game in Cairo, Georgia, discussed below. After the conclusion of the second shopping trip, Respondent dropped K.M. off at her home. At this point, the boys testified, and stated as part of the district's investigation, that Respondent offered to take them back to her apartment to spend the night. According to M.H. and C.J., they went with Respondent back to her apartment where they ate fast food and watched television. They claimed that Respondent told them they could sleep in her bed while she slept on the couch. At some time during the night, Respondent allegedly crawled in the bed between the two boys, ground her hips against M.H.'s crotch, and took his hand and placed it outside her shorts against her vaginal area. M.H. claimed this made him uncomfortable and he moved to the floor, while Respondent continued to sleep in the bed with C.J. In the morning, the boys claim that Respondent woke them up and drove them to school. M.H. testified that he was in Respondent's English class and that she treated him differently than the other students. He, along with other boys at school, fantasized about the "fine, black English teacher." He thought it was cool to spend extra time with her and led others to believe he was having sex with her until one of his friends questioned the propriety of doing so. He testified that he "freaked out" while on a bus going to an out-of-state football game September 29, 2006, because Respondent kept calling him on his cell phone and he did not want to talk to her. Juxtaposed against the testimony of C.J. and M.H. is the testimony of Monica Arrington and Karastan Saunders. Monica Arrington, Respondent's younger sister, testified that during the period of time Respondent was employed at Matanzas, she shared Respondent's apartment and sometimes helped her out with the cheerleaders. Monica was a freshman at Bethune Cookman College and did not like living on campus, so instead lived with her sister. Ms. Arrington did not have her own transportation and relied on her sister to drop her off at school each day. Ms. Arrington confirmed that she went with Respondent, her mother and two female students to Volusia Mall to shop for clothes on one occasion, but did not identify any other time where students were at Respondent's apartment. Karastan Saunders also testified that during the fall of 2006, he lived at Respondent's apartment in exchange for paying a portion of the utilities. Mr. Saunders testified that he spent every night at the apartment because he did not have the funds to go elsewhere, and that he did not recall anyone coming over to the apartment other than family and mutual friends. After considering all of the evidence presented, the more credible evidence is that while Respondent took students shopping on at least one occasion, the testimony of M.H. and C.J. that they spent the night at Respondent's apartment is not credible. M.H. admitted that he has lied to his dad "because everybody lies to their dad sometimes." He claimed he lied to Respondent to avoid going to Orlando with her and about having a learner's permit to drive, and that he lied to his father about where he was the night he claims to have been at Respondent's apartment. M.H. also insinuated to his friends that he had a sexual relationship with Respondent, and that all of the boys thought she was the prettiest teacher at the school. However, he did not want Respondent to be arrested and would not cooperate with authorities. Even during the course of the hearing, his testimony was inconsistent regarding whom he told about his relationship with Respondent and what he told them. Significantly, C.J.'s testimony did not corroborate the alleged inappropriate touching M.H. claimed. C.J. did not witness any inappropriate touching or M.H. and Respondent having sex. While M.H. claimed that Respondent kept calling him while on the bus to Georgia for a football game, no phone records were produced and no one else's testimony was presented to support the claim. K.M. admitted that M.H. has lied to her on occasion and that he has had some issues with drugs and alcohol.1/ C.J.'s testimony is also not very credible. Like M.H., C.J. lied to his father about his whereabouts on the night in question. While he testified that he sometimes drove his dad's car to school without permission, his father testified that he only has one car and uses it every day to get to work. While M.H. claimed C.J. told him that Respondent and C.J. had sex the night they were allegedly at the apartment, C.J. denied it. He also stated that he was suspended for five days for bringing a laser to school during the timeframe related to this case, a suspension that his father knew nothing about. Likewise, C.J.'s claim that he went with Respondent on some unspecified weekend to Orlando while she got her cheerleading certification is not credible. By contrast, both Monica Arrington and Karastan Saunders were candid, consistent, calm and forthright while testifying. While both C.J. and M.H. were not where they were supposed to be on the night in question, they were not at Respondent's apartment. After Respondent was terminated from her employment, the allegations that she engaged in an appropriate relationship with a student were reported by local media. The publicity was extensive. Because the allegations involved alleged sexual conduct with a minor that would have occurred in Volusia County as opposed to Flagler County, the matter was referred to authorities in Volusia County. However, no criminal charges were ever brought against Respondent because neither M.H. nor his father wished to cooperate with authorities.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent violated Section 1012.795(1)(c), Florida Statutes, as alleged in Count 1, and dismissing Counts 2-7 of the Amended Administrative Complaint. It is further recommended that the Commission reprimand Respondent, impose a $500 fine and place her on one year of probation in the event that she works as a teacher in a public school setting. DONE AND ENTERED this 24th day of March, 2009, 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 24th day of March, 2009.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent has been a mathematics teacher at Miami Killian Senior High School for the last 27 years. For the last 15 years he has tutored students in math for a fee. During the 1991-92 and 1992-93 school years, he tutored Beth Sullivan, a student attending a different school than Killian. During the summer of 1993, Beth's mother contacted Respondent and inquired about the math courses Beth could take when she started the 11th grade at Killian that fall. They discussed the options. Respondent advised her that if Beth took analytical trigonometry, Respondent could tutor her for a fee. However, if Beth took Respondent's pre-calculus course, Respondent could not tutor her for a fee. Beth enrolled in his pre-calculus class and was Respondent's student during the 1993-94 school year. When she encountered difficulty, Respondent told her to come to the public library where he tutored students and, if she would help him by grading papers for him, he would help her with her math while he was working with his paying students. She did, and he did. During the 1993-94 school year, Mrs. Sullivan did not give Respondent money for tutoring Beth. She did, however, give Beth $35 in cash to give to Respondent each time Beth went to the library for tutoring. During the 1987-88 school year, Ganene Cooper was a student in Respondent's Algebra II class. She was a senior in high school at the time. Ganene was a "B" student during the first semester of Algebra II. However, her grades "deteriorated" during the second semester. Respondent asked Ganene why her grades were falling, and she told him she had problems at home with additional responsibilities which prevented her from studying. He suggested that she come to his classroom during the lunch period when he assisted students who needed help in math. Although she began attending the lunch study sessions almost daily, she did not actively participate and did not ask questions. She started coming to the library where Respondent was tutoring, sometimes just walking past the room he used for his tutoring sessions and sometimes telling him that she needed to talk to him, which he was unable to do since he was busy tutoring. After her graduation in June 1988, she continued to come to the library where Respondent tutored, and she began appearing unannounced and uninvited at his apartment. In August 1988 Respondent and Ganene began engaging in sexual activity in his apartment and in her car. After a month or so, Respondent insisted their relationship was over, but Ganene wanted it to continue. She threatened to go to his principal if he refused to see her. She told him she was pregnant although she was not. She called every night. If Respondent would not talk to her, she showed up at his apartment and knocked on the door for hours. She came to the school to see him. She obtained Respondent's ex- wife's home address from her place of employment and drove by Respondent's ex-wife's home a number of times. She told Respondent's ex-wife about Ganene's relationship with Respondent. She wrote a note threatening his job and other forms of "payback". When she came to the school to see him, he told her to leave. He went with her to see her psychologist twice. He contacted Ganene's family to enlist their aid. Her grandmother came to Respondent's apartment to pick up Ganene when Respondent telephoned her to say Ganene was at his apartment and would not leave. In July 1989, Ganene called a crisis intervention service and threatened to kill herself because Respondent did not want to see her. Dade County Public Schools conducted an investigation into her allegations. After that, Respondent continued to insist to Ganene that he had no reason to speak with her now that everything was public. Yet, she continued to come to the school, asking him to speak to her, and continued to call his home and come to his apartment trying to see him. In October or November 1989 Ganene came to Respondent's apartment. Respondent called the police who came and arrested Ganene. She was sentenced to six months' probation and ordered to stay away from Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 17th day of October, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1997. COPIES FURNISHED: Bruce P. Taylor, Esquire 501 First Avenue, Suite 600 St. Petersburg, Florida 33701 Patricia M. Kennedy, Esquire United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 8 Tallahassee, Florida 32399-0400
Findings Of Fact At all times material to this proceeding, Petitioner was a duly constituted school board. At all times material to this proceeding, Respondent was employed by Petitioner as a continuing contract teacher. Respondent was assigned as a math teacher to Miami Senior High School, one of the schools in the school District of Dade County, Florida. On March 20, 1989, Respondent and J.R., a 14 year old male who was one of Respondent's math students, entered into a discussion in Respondent's classroom regarding two musical keyboards that Respondent was trying to sell. J.R. Was interested in purchasing a musical keyboard and had been told by Respondent that he had at his home two musical keyboards that he wanted to sell. J.R. wanted to inspect the two keyboards to determine whether he might be interested in purchasing one of them, but he wanted to wait until the weekend to look at the keyboards so that his father could accompany him when he went to Respondent's house. Respondent had other commitments and advised the student on March 21, 1989, that he would have to look at the keyboards that afternoon. On March 21, 1989, Respondent drove J.R. to Respondent's home for the stated purpose of allowing J.R. to examine the two keyboards. No one else was present at Respondent's home. Respondent showed J.R. the keyboards and quoted J.R. a price for each. When J.R. inquired as to terms of payment, Respondent asked J.R. if he wanted to watch a video with him and stated that he wanted to watch a video so that he could think. Respondent then led J.R. into a darkened bedroom that had, in addition to video equipment, only a chair and a bed. Respondent lay down on the bed and J.R. sat in the chair. Respondent then asked J.R. if he talked a lot or whether he could keep a secret. After J.R. said he did not talk a lot, Respondent showed J.R. a pornographic movie that depicted nudity and sexual intercourse. While watching the movie, Respondent told J.R. that he had seen with a "hard on" during his math class. Respondent then asked J.R. if he had ever measured the size of his penis. When J.R. replied in the negative, Respondent told him that he should. Respondent then asked J.R. whether he "jerked off" often. J.R. replied in the negative and left the room because he was uncomfortable being with Respondent under those circumstances. During the course of the foregoing conversation, Respondent was lying on a bed in this darkened bedroom watching the pornographic movie with this 14 year old student. Respondent then drove J.R. to J.R.'s home after he asked to leave. J.R. immediately reported the incident to his parents when he returned to his home. J.R.'s parents notified the police that evening and reported the incident to the appropriate school officials the next day. This incident caused notoriety which has impaired Respondent's effectiveness as a teacher. Respondent testified that nothing inappropriate occurred when J.R. inspected the keyboards at his home on March 21, 1989. Respondent testified that he and J.R. drove to his house after school so that J.R. could inspect the keyboards, that while at the house he and J.R. drank a soft drink, looked at the keyboards, and discussed watching a video of a popular movie. Respondent contended that he drove J.R. to J.R.'s home and that nothing else occurred. Respondent denied that he showed J.R. a pornographic video or that he engaged in sexually explicit conversations with J.R. Respondent contended that J.R. fabricated part of his testimony and offered two motives for J.R. to lie. First, Respondent contended that J.R. may have seen this situation as a means to get one of the keyboards from Respondent without having to pay for it. Respondent did not explain how J.R. expected to accomplish this. Second, Respondent contended that J.R. may have fabricated the story to avoid getting into trouble with his parents because they did not know J.R.'s whereabouts during the time he was at Respondent's house on March 21, 1989. These proffered motives as to why J.R. would lie lack credibility and are rejected. J.R. is a good student who had no motive to fabricate his testimony as to the events that occurred at Respondent's house. Respondent's version of the events of March 21, 1989, insofar as that version conflicts with J.R.'s testimony, lacks credibility and is rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Jimmie D. Harris guilty of immorality and of misconduct in office, which affirms the suspension of Jimmie D. Harris without pay, and which terminates the continuing contract of Jimmie D. Harris. DONE AND ORDERED this 23rd day of March, 1990, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jimmie D. Harris 13336 S.W. 112 Place Miami, Florida 33176 Frank R. Harder, Esquire Suite 100 - Twin Oaks Building 2780 Galloway Road Miami, Florida 33165 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools 1444 Biscayne Boulevard Suite 215 Miami, Florida 33132 APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-3691 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 3-5 of the Recommended Order. The proposed findings of fact in paragraph 4-6 are rejected as being subordinate to the findings made and to the conclusions reached. There is no paragraph numbered in Petitioner's post-hearing submittal. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 2 are rejected as being subordinate to the findings made. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 3 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 4 are rejected as being subordinate to the findings made. The remaining proposed findings of fact in paragraph 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 5 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 6 are rejected as being unclear and as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 7-9 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are rejected as being conclusion of law.
