The Issue This case is presented based upon an administrative complaint brought by Ralph D. Turlington, as Commissioner of Education, against Lloyd T. Cooper. The allegations set forth in this complaint pertain to the Respondent's conduct of serving alcoholic beverages to students and other minors below the age of 19 years. Respondent is also accused of inviting a student into his home, and while they were alone, serving an alcoholic beverage to her, which she drank in his presence. On this same occasion, Respondent is alleged to have given the student marijuana and to have kissed the student while in his apartment. These acts by Respondent purportedly are in violation of Subsection 231.28(1), Florida Statutes, in that Respondent is guilty of gross immorality and acts involving moral turpitude and has been guilty of personal conduct which seriously reduces his effectiveness as an employee of the Nassau County School Board. Respondent's acts are said to be contrary to Rule 6B-1.01, Florida Administrative Code, by his failure to achieve and sustain ethical conduct. Finally, Respondent is accused of a violation of Rule 6B-1.06(3)(a)(e) and (h), Florida Administrative Code, in that he has failed to make a reasonable effort to protect a student from conditions harmful to learning or to health and safety; has intentionally exposed a student to unnecessary embarrassment or disparagement; and has exploited a professional relationship with a student for professional gain or advantage.
Findings Of Fact This case was heard based upon Respondent's request for a formal Subsection 120.57(1), Florida Statutes, hearing to allow him to dispute the facts that underlie the administrative complaint. Respondent holds Teacher's Certificate No. 306317, which allows him to teach in secondary education in the areas of physical education, health education, and science. The teacher's certificate issued by the State of Florida, Department of Education, is valid through June 30, 1986. Respondent has been certified as a teacher in Florida since 1971. See Petitioner's Exhibit No. 1 admitted into evidence. From August 20, 1971, until his resignation in June, 1982, Respondent was employed as a classroom teacher by the Nassau County School System in Nassau County, Florida. In 1982, a week prior to the graduation of members of the senior class of Fernandina Beach High School, various graduation parties were held. Respondent held one of those parties at his apartment. That party occurred on Friday, May 21, 1982. There were no other teachers or adults in attendance at the party. A number of students who were still attending high school were invited to the party and Terri Jones, now Terri Coleman, was among those students. She attended the party, having been provided a map by Respondent to enable her to find his home. The location of Respondent's home at that time was in Fernandina Beach, Florida. This was the first occasion that Coleman had visited Respondent in his apartment. Coleman arrived at the Respondent's apartment around 8:00 p.m. on May 21, 1982. She stayed for approximately 45 minutes. When she entered, there were approximately 10 other high school students in attendance. Respondent was mixing alcoholic drinks for those students during the party. He offered to give Coleman an alcoholic beverage, but she declined. Cooper and other students were also smoking marijuana, which was retrieved from a container on a coffee table in his apartment. On the following Monday, May 24, 1982, Coleman attended another house party given by fellow students in the high school. There were approximately 50 persons at this party, including students of Fernandina Beach High School and other students. Respondent was in attendance; however, other teachers were not involved in the festivities. Coleman arrived at the party around 9:00 p.m. and stayed for approximately 30 minutes. Cooper was again observed mixing drinks which contained liquor. These drinks were served to students at the party. On Wednesday, May 26, 1982, Coleman attended another party for students in her high school. This date was prior to her graduation from Fernandina Beach High School. Coleman arrived at this party at around 7:00 p.m. Once there, she had someone purchase a six-pack of beer, and she drank two or three of those cans of beer while at the party. She remained at the party for approximately 2 hours. Later on, the evening of May 26, 1982, at approximately 9:00 p.m., she went to the home of the Respondent. She was uninvited. [In the way of background, Respondent did not teach classes in which Coleman was a student. He had coached an athletic team in which Coleman was a participant in her junior year in high school. He had also expressed his desire to ask her out for a date when she reached her majority. This had occurred while she was a student attending high school prior to May 26, 1982. On one other occasion, when Respondent had arrived at the high school under the influence of an alcoholic beverage, Respondent saw her and took her from the room where she had been observed and walked around the school grounds with her. Finally, in that instance, they went to the Respondent's classroom in the back portion of that area and he kissed her.] Respondent admitted Coleman to his apartment on the night of May 26, 1982. Once inside, she explained that she had just stopped by to "say hello for a minute". While in the apartment, Respondent and Coleman watched television, and he asked her if she wanted a mixed drink. She replied that she did not because she would drink her beer. Nonetheless, Respondent mixed a drink for Coleman which contained an alcoholic beverage. She drank part of the mixed drink. The container with the marijuana was still located on the coffee table, as was the case on May 21, 1982. Respondent removed marijuana from that container and began smoking the substance and offered it to Coleman who accepted the marijuana. The marijuana was being smoked through an apparatus containing water. Coleman also drank two more cans of beer while at the apartment. Finally, while seated on the couch, Respondent kissed Coleman as many as five times on the mouth. After staying for approximately an hour, Coleman took her leave. At no time during her visit to the apartment, did Respondent ask Coleman to leave or attempt to contact her parents. When she left his apartment, she was substantially influenced by the effect of substances consumed. Notwithstanding her condition, Respondent allowed her to drive. Coleman went home after stopping at the house where she had attended the party earlier in that evening. She stayed in that house for approximately 10 or 15 minutes on her second visit. Coleman was confronted by her mother after arriving home on the evening of May 26, 1982, and her mother found her to still be suffering from the effects of substances consumed. After questioning, Coleman's mother ascertained that her daughter had been to the home of Respondent and learned of the events that had transpired while Coleman was there. As a result, Mrs. Jones went to the high school and spoke to the Respondent. She identified herself as Coleman's mother, and gave her rendition of the events of the evening of May 26, 1982, which had been told to her by her daughter. At that time, Coleman was 18 and Respondent, in the face of that fact, did not seem impressed with the possible consequences that might occur if members of the Nassau County School Administration learned of his indiscretion. Jeanette Jones, Coleman's mother, advised Cooper that she was going to speak to the Superintendent of Schools, Craig Marsh, concerning the liaison between Respondent and Coleman. Mrs. Jones spoke to superintendent Marsh, and Marsh conducted an interview with Coleman. In that interview, Coleman related the events that transpired in the apartment of Respondent on May 26, 1982. In a subsequent conversation with the Respondent, Cooper told Marsh that Coleman had gone to his house on the night in question and he had invited her in and mixed her a drink and they smoked marijuana and sat on the couch and "smooched". Out of this conversation, Respondent submitted his resignation from his position with the Nassau County School Board. Marsh correctly asserts that Cooper's acts with Coleman have caused Respondent to lose his effectiveness as a teacher in the Nassau County School System. Furthermore, Marsh would not recommend that the Respondent be allowed to teach in high school either in Nassau County or any other school system in the State of Florida.
The Issue The complaint alleges that on or about September 7, 1998, Respondent, Glenn L. Marsh, failed to properly supervise a football practice and care for the safety of the students under his supervision in that Glenn L. Marsh failed to provide the students water during the practice, causing the students to become dehydrated and causing one student (S.J.) to collapse and require hospitalization for severe dehydration. Essentially, the factual issue in this case is whether during a two and one-half hour football practice session on September 7, 1998, Glenn L. Marsh, head football coach of Atlantic High school, who did not give a team water breaks to all 40 players at any one time, but instead gave his three assistants coaches unilateral authority to give groups of players under their individual supervision water breaks as they deemed necessary, caused students to become dehydrated and caused one student to become dehydrated and hospitalized, and thereby violated Sections 231.28(1)(f) and 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a)and 6B-1.006(3)(e), Florida Administrative Code.
Findings Of Fact Petitioner is a state agency charged with the regulation of the teaching profession pursuant to Chapter 231, Florida Statutes, and Rule 6B-1.006, Florida Administrative Code. Respondent, Glenn L. Marsh, is a certified teacher in the State of Florida, having been issued Teaching Certificate No. 702169 on July 1, 1990. At all times material hereto, Glenn L. Marsh was employed by the Volusia County School Board and assigned to Atlantic High School as teacher/head football coach and continued these dual duties until resigning on or about September 24, 1998. At all times material hereto, Glenn Marsh, head coach, was responsible for establishing policy governing training and operations of varsity football at Atlantic High School. Under Coach Marsh's direct supervision were three assistant teachers/coaches, Ron Grayton, Jim Longerbeam, and Steve Lawson. Substantial and competent evidence establishes that each assistant coach understood his responsibility, when students were under his individual supervision and control, for the care and safety of students in his charge. The Assistant coach's responsibilities included but were not limited to, training and conditioning of players, evaluation of players' strength and weaknesses, and other coaching assignments during training and during the playing of varsity football games. At all times material hereto, Volusia county policy required every male or female student, prior to participation in sport activities, to undergo a physical examination at Halifax Medical Center. A list of students who were medically approved to participate in sports was provided to the high school's Athletic Director, who in turn gave this information to the high school head coach. Student S.J. underwent the required 1998 medical examination, was approved and permitted to participate in sport activities at Atlantic High School. At all times material hereto, S.J. was a student attending Atlantic High School and a member of the Atlantic High School varsity football team. The parties stipulated, with confirmation by S.J., and by his mother, Joy James, that S.J. is a carrier of the sickle cell trait.1 Upon the testimony of the parties, it is established that S.J.'s medical condition, sickle cell trait, was not made known to Duane R. Busse, Investigator, Volusia County Schools, Office of Professional Standards, nor to the Halifax Medical Center during S.J.'s physical examination, nor to Coach Glenn Marsh nor to any other member of the coaching staff at Atlantic High School. From or about 9:00 a.m. to 11:30-12:00 p.m., during the course of his employment, Glenn Marsh was primarily responsible for supervising the varsity football practice at Atlantic High School, Titusville, Florida. On the morning of Monday, September 7, 1998 (Labor Day), at approximately 9:00-9:15 a.m., S.J. and approximately 39 other members of Atlantic High School football team reported to Atlantic High School athletic fields for a routine football practice session for approximately two and one-half hours. Credible evidence shows that players, at their option, dressed in shorts, tee shirts, and helmets for the morning practice. Some players elected to wear girdles.2 Of the players wearing girdles, some inserted padding in the inner girdle pockets and other did not. This early morning practice was a no-contact session.3 The testimony of the witnesses establishes that the weather condition on the morning of September 7, 1998, was normal in Florida for that time of the year, hot and humid, no rain with temperatures in the high 80 to 90 degrees. Credible evidence shows that on September 7, 1998, the no-contact practice session consisted of specific physical activities wherein players were grouped according the their positions on the team. Those physical activities scheduled by Coach Marsh were of limited duration and consisted basically of the following: Starting time: 9:30 AM Stretching 10-15 min. (9:30-9:45) warm ups 45 min (9:45-10:30) special teams 25-30 min (10:30-11:00) defense air 25-30 min (11:00-11:30) offense air 10 min (11:30-11:40) Conditioning runs 10 min (11:40-11:50) knee down review 5 min (11:50-11:55) Locker dress out 5 min (11:55-12:00). Stretching consisted of wind-mills, jumping jacks and in-place running, followed by special teams4 (punt return, offense, defense, wide receivers and running backs, etc.) against air (phantom team) which begins with players doing a walk-through against an air opponent. All players who were not playing on the team engaged in practice were required to kneel on one knee and observe but could not sit down. Conditioning practice, which followed special team practice, consists of running laps up and down the football field with one coach positioned in one end zone, another coach at mid-field to time players, and Head Coach Marsh in the other end zone, directing runs. Credible evidence establishes that the head coach, Glenn Marsh, determines the numbers of laps team members are required to run. On the day in question, Coach Marsh recalled that players ran six 100-yard sprints and two 40-yard sprints and the September 7, 1998, practice session which followed an established routine and pattern of prior practice sessions. Prior to the date in question, team members had undergone some two-a-day practice sessions but at least one practice session had been held every week since the beginning of the 1998 football season without incident of any nature. On September 7, 1998, at or near the conclusion of players running conditioning laps, S.J. experienced a near sycopal episode. S.J. was assisted into the locker room by other students and was treated by coaches and teammates who undressed him, iced him down, and attempted to get him to drink liquids. S.J. was subsequently transported by EVAC to Halifax Hospital, Daytona Beach, Florida, for treatment. Medical evaluation of S.J. by Halifax Hospital staff reported a history consistent with heat exhaustion, dehydration, and a mild renal failure. Follow-up treatment by Dr. Norman D. Pryor, Division of Nephrology, from September 9, 1998 through July 30, 1999, at Nemours Children's Clinic, Orlando, Florida, revealed S.J. had sustained no permanent impairment of his renal function. On January 25, 1999, Dr. Pryor reported S.J.'s renal process resolved and released S.J. to resume sports activities with no anticipated residual over time. (Petitioner's Exhibit 1). On September 7, 1998, Coach Ronald Graydon, in charge of the offense and wide receivers which included S.J., testified that he distinctly recalled giving his group of skilled players a water break: "Okay guys, let's pride it out and go to the trough -- or let's pride it out and get some water, which means break out of a huddle and go get some water." He knows that the water trough was turned on and water was available to players. He does not, however, recall who went to the water trough nor does he recall who drank water at the water trough.5 S.J. testified to the contrary. He recalls that he was never offered water by any of the coaches on September 7, 1998. On cross-examination, S.J. admitted he does not remember how much water he drank on Saturday or on Sunday before the Monday morning football practice session. However, on redirect examination, S.J. remembered, "I had only one cup of water or two cups of water before I went to practice. I thought like they'll have water out there, you know. I wouldn't have liked, you know, chug down like a gallon before I went out there". S.J. testified that though he did not personally go to the water trough (although he remembered that the water trough was not turned on that day), the water trough was not hooked up that day and was not running and that the only source of water they (team) had out there (the practice fields) was a water fountain6 that barely put out any water. S.J. further testified that throughout the entire two and one-half hours of practice session he did not have a drop of water or a chance to get water. According to S.J., as he was down on all fours at about the 10-yard line preparing for conditioning sprints, he asked Coach Marsh, who was standing about 10 to 20 yards away, for water and was told "No." S.J. does not recall if Coach Marsh heard his request. S.J. did not repeat his request to Coach Marsh, other coaches, or fellow students. No witness was presented to corroborate S.J.'s recollection of his being on his knees asking for water. Michael Beauregard, a special team running back player who was in S.J.'s skills group and who, prior to Coach Marsh's becoming head coach, was the starting quarterback for the team, testified from a confused memory of events on September 7, 1998. Initially, Michael Beauregard recalled that practice began in the afternoon. When asked the same question a second time, Mr. Beauregard testified, "I have to say the morning, chances are." Mr. Beauregard testified that to his knowledge, it was Coach Marsh's policy during practice sessions that assistant coaches would gave their individual player groups water breaks. However, on September 7, 1998, as he recalls, assistant coach Jim Longerbeam never gave his group (running backs and wide receivers, including S.J.) a water break. The inconsistencies, contradictions and confusion in Michael Beauregard's testimony render it less than precise and explicit, not the result of distinct memory, confusing as to facts in issue, and therefore, it does not produce a firm belief of conviction. Assistant Coach James Longerbeam, with a master's degree in education and bachelor's degree in physical education and health, took control and supervision of the offensive line, tight ends, and wide receiver players (including Beauregard and S.J.) during the practice session. During these individual skills sessions, Coach Longerbeam distinctly recalls giving his players a water break because he even went over and got water himself from the water trough. The totality of Coach Longerbeam's testimony demonstrated an understanding by assistant coaches of Coach Marsh's policy and methods regarding water breaks during football practice. Assistant coaches understood it was their individual responsibility to send players for water when they were under their personal supervision and in fact, they routinely did so. Further, they understood that when on team breaks between offense and defense team practice sessions, should Coach Marsh blow his whistle, all players would be free to get water at that time, that is, a full-team water break. Coach Longerbeam testified that during the September 7, 1998, football practice every player was in a group under an assistant coach at some point in time, but he does not recall when the other assistant coaches sent their players on water breaks. Joe Hampton, with bachelor and master degrees in physical education, teacher/coach for 32 years, currently employed at Estero High School, Ft. Myers, Florida, and a year officer of the Florida High School Athletic Association gave the following opinion testimony: His studies in conditioning and effects of physical exercise on the human has lead him to conclude that it is important to maintain proper hydration for varsity students; It is vitally important to drink the right kind of fluids, (non-caffeine), water primarily, and lots of it before engaging in physical exercise; If one is not properly hydrated prior to practice requiring physical exercises, what you drink at or during practice will not be sufficient to hydrate you; it may maintain you, but not hydrate you; Varsity students lose weight during varsity football practice and games, from one or two to seven or eight pounds, which is mainly water loss. It takes an average of 24 hours to replace water weight loss through hydration by constant hydration; In his 32 years of experience it is very rare for varsity players to become dehydrated; he has experienced one of two; but it's most unusual; Water breaks are routinely determined by the head coach and usually follow a simple pattern; i.e. one after teams and skills portion of a two and one-half hour practice; another after a time interval determined by the coach who knows the weather conditions, type of practice and knowledge of his kids; He is not aware of any rule or anything that says it is mandatory to have team water breaks. Water breaks are discretionary with each head coach; Varsity players' complaints of hot, tired, hurting, dying, can't make another step, etc. are common players' complaints when players are being pushed by their coaches to reach a higher performance level and to enhance their physical capabilities; He was not present at Atlantic High on September 7, 1998; He had had one and one-half hour walk through sessions where no water breaks were given; but, he had never been in a two and one-half hour practice session where no water breaks were given, and He opined that if a group of players were engaged in a two and one-half hour practice session and no water was made available, it would be inappropriate conduct on behalf of the coaches. Respondent, Glenn L. Marsh, with a bachelor's degree (1990) in exceptional education and eight years' classroom teaching experience prior to accepting the teacher/coach position as Atlantic High School, received the highest rating on his assessment evaluations at each high school by which he has been employed.7 Coach Marsh testified that there were approximately 40 varsity players at the practice on September 7, 1998. Practice began at 9:00 a.m. in the morning, it was a light no-contact practice with helmets only, and no student other than S.J. suffered dehydration or collapsed. Coach Marsh further testified that the entire team, including S.J., endured two-a-day practice sessions beginning in August of 1998 until playing the first varsity game; that thereafter, one-a-day practice sessions were the usual pattern; that during the weeks of two-a-day practice sessions, no student suffered any problems, including dehydration, other than normal bumps and bruises associated with playing the game of football. Coach Marsh's confirmed that his policy and method of supervision was to give his assistant coaches individual authority to give water breaks to students when in individual training/practice sessions. He recalls that during individual groups, Assistant Coach Longerbeam was in charge of managerial things while he, Coach Marsh, was coaching and teaching, and Coach Longerbeam sent those players on water breaks.8 Coach Marsh recalled offering team water breaks during practice in his usual manner of a general statement to all, "Guys, anybody that needs water, get it," which would normally be echoed by assistant coaches. On the day in question Coach Marsh recalls he offered a "guys, anybody need water, get it" team water break before the start of the conditioning exercise phase of the practice. Coach Marsh does not recall any player personally asking him for water or a water break and heard no complaints from players about a lack of available water; nor does he recall seeing any group, other than the group of which he was in charge, actually going for water. Coach Marsh testified that his general group response/comment, given to no one student in particular and given many times in the past to all players, when players would complain about running laps, that is, "I am tired," "golly coach I am dying," was, in effect, "Guys you are not dying. You will pass out before you die." This statement is his general motivational response to players' gripes when running. He does not specifically recall, however, if he made that statement on September 7, 1998, but, admitted on cross-examination that he may have. Coach Marsh testified that his water availability policy change, removing the plastic water bottles and cups from the practice field and replacing them with the single-source water trough, was based upon several concerns: 1) students were distracted by playing and squirting each other; 2) not- withstanding his constant instructions against it, students continued to drink directly from the bottle, thereby increasing the health risk of passing colds, etc.; and 3) there was a lack of accessibility between the two practice fields. Following the September 7, 1998, incident and before September 24, 1998, Coach Marsh testified he met with Ron Pagano, principal of Atlantic High School. Mr. Pagano informed Coach Marsh during that meeting that Atlantic High School's water policy would be "get water every ten minutes no matter what the amount of physical activity, whether running, sitting, or standing, every ten minutes." There was no evidence proffered addressing whether Atlantic High School or Volusia County established, published or made known policy, standards, or guidelines regarding mandatory water breaks for students engaged in high school varsity sports, prior to and on September 7, 1998. Based upon evidence of record and at all times material hereto, Atlantic High School did not have in place a policy, principle, or guideline relating to the issue of water for student athletics engaged in physical activities. When questioned by Petitioner's attorney about newspaper articles containing allegations leveled against him, that players had not been provided with an adequate supply of water, Coach Marsh response was that he took the position that those allegations were untrue and unworthy of his making a public response.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it recommended that State of Florida Education Practices Commission issue a final order finding Respondent, Glenn L. Marsh, not guilty of violation of Section 231.28(1)(f) and Section 231.28(1)(i), Florida Statutes, and Rule 6B-1.006(3)(a) and Rule 6B-1.006(3)(e), Florida Administrative Code. DONE AND ENTERED this 22nd day of January, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 22nd day of January, 2001.
The Issue This is a case in which the Petitioner seeks to terminate the employment of the Respondent, who is a continuing contract teacher, on several grounds alleged in a three-count Notice of Specific Charges. The Respondent is charged in Count I with incompetency; in Count II with gross insubordination and willful neglect of duty; and in Count III with misconduct in office.
Findings Of Fact At all times material hereto, Petitioner was 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, pursuant to Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times material hereto, Respondent was employed by Petitioner as a teacher-on-special-assignment and a Language Arts (English) teacher within the school district of Miami-Dade County, Florida, assigned to Miami Beach Senior High School, Lake Stevens Middle School, and other work sites within the school district of Miami-Dade County, Florida. Respondent was employed by Petitioner pursuant to a continuing contract of employment and subject to the rules and regulations of the School Board. During the 1992/93 school year Respondent exhibited erratic behavior, mood changes, engaged in altercations with staff, was excessively absent, and chronically arrived late to the Chapter I Office, her assigned work site at that time. On November 6, 1992, a meeting was held with Respondent to notify Respondent that, due to her excessive absenteeism, repeated tardiness, mood swings, and altercations with other staff members, Respondent was being referred to the School Board's Employee Assistance Program (hereinafter "EAP"). At the November 6, 1992 meeting, Respondent became verbally aggressive and combative in her demeanor and stated that, since there was nothing wrong with her, she did not need to go to the EAP. On November 10, 1992, Respondent's then immediate supervisor requested a medical fitness evaluation due to, among other things, Respondent's excessive absenteeism, inability to accept directives, confrontations with staff members, lack of respect for authority, and because of Respondent's refusal to comply with the supervisory referral to EAP. On November 17, 1992, Respondent was directed to report for a Conference-for-the-Record (hereinafter "CFR") at Petitioner's Office of Professional Standards (hereinafter "OPS"). On December 14, 1992, a CFR was held with Respondent to address Respondent's medical fitness to perform assigned duties, as well as her excessive tardiness, excessive absenteeism, and non-compliance with administrative directives. At the December 14, 1992, CFR, it was decided that, because Respondent's duties at the Chapter I office were unclear, Respondent would be given a chance to return to her duties as a teacher-on-special-assignment at the Chapter I Office. At the conclusion of the December 14, 1992, CFR, Respondent agreed to strive to maintain a professional work environment. On January 19, 1993, Respondent's EAP case was closed after Respondent failed to appear at the scheduled EAP conference and after Respondent refused to participate in the program. During the 1993/94 school year, Respondent was assigned to teach an English for Speakers of Other Languages ("ESOL") class at Miami Beach Senior High School. During the first week of school in August of 1993, Respondent became involved in a verbal altercation in front of students after she was told that her classroom had been changed. During the altercation described in paragraph 14 above, Respondent, in front of the students in the classroom, became so upset over being notified of the room change that she screamed and yelled at her Department chairperson and pushed 15 to 20 books off a table. On September 1, 1994, several students in Respondent's ESOL class accused Respondent of directing disparaging statements to them, belittling them, and threatening to have her nephews harm them, if they reported her actions to the school principal. On September 2, 1994, as a result of Respondent's persistent erratic behavior and inappropriate conduct, including, but not limited to, calling students "bastards," and demeaning, accosting, and harassing other teachers in the hallways, the principal at Miami Beach Senior High School requested that Respondent undergo a medical fitness evaluation. On September 14, 1994, Respondent was involved in a verbal confrontation with another teacher at her school in the presence of students. Because of Respondent's agitated and irrational behavior, the other teacher was afraid that Respondent might hit her. Due to Respondent's expressed desire to transfer to a middle school, and because of her continuing behavioral problems, Respondent was transferred to Lake Stevens Middle School with the assistance of the principal at Miami Beach Senior High. Prior to Respondent's transfer to Lake Stevens Middle School, the principal at Lake Stevens Middle school was not informed of Respondent's history of behavioral problems until Respondent was involved in several incidents with other staff members at her new school. On December 4, 1995, a conference was held with Respondent and the school clerk at Lake Stevens Middle School in an attempt to resolve a dispute between the two employees. The conference was held after Respondent had been involved in an altercation with the school clerk. At the December 4, 1995, conference, Respondent was directed to avoid contact or communications with the school clerk unless initiated through a school administrator. On May 4, 1995, during a parent-teacher conference, the conference had to be terminated after Respondent became enraged and started yelling and screaming at the parent, the student, and an assistant principal. Respondent continued screaming even after the parent and student had left and persisted in shouting and yelling at the assistant principal while Respondent followed her around the main office. On February 8, 1996, another conference was held with the Respondent at Lake Stevens Middle School by the assistant principal to address a complaint filed by Respondent against a school secretary. As the conference was about to be concluded, Respondent started shouting and making disparaging remarks against the school secretary, and was generally "out-of-control." On May 2, 1996, Respondent was cited with insubordination after she entered the main office area and started yelling at the assistant principal and refused to cease her tirade after twice being directed by the assistant principal to stop shouting and explain her problem. On May 15, 1996, a formal observation of the Respondent's classroom performance was not conducted because Respondent was unable to provide her lesson plans and grade book to the administrator who was to observe her. Rather than place Respondent on prescription, the principal decided to give Respondent another opportunity to get her documentation in order for another observation. Prior to the May 15, 1996 voided observation, the assistant principal at Lake Stevens Middle School had noted that Respondent did not have her roll book, lesson plans, or student folders during the first thirty days after she had been transferred to Lake Stevens Middle School. During the beginning of the summer school session, on July 8, 1996, Respondent again became involved in a verbal altercation with the school clerk at Lake Stevens Middle School. This second altercation with the school clerk commenced when the school clerk, who was now the principal's secretary, told the Respondent that the Respondent could not walk into the principal's office without first contacting the principal's secretary. When an assistant principal intervened to resolve this altercation, Respondent became irate and refused to leave the assistant principal's office and instead told him to "push" her out. At the end of the school day on July 8, 1996, Respondent again became involved in an altercation with the principal's secretary after the Respondent purposefully pushed the secretary with her briefcase in the main office and thus provoked a verbal altercation, which required the intervention of school administrators. After the school buses had left, on July 8, 1996, the interim principal at Lake Stevens Middle School met with the Respondent to discuss the physical confrontation that had occurred earlier that day and verbally reprimanded the Respondent, advising her that the school administration would not tolerate another incident of this nature. As a result of the July 8, 1996, incident, a personnel investigation was conducted by the Division of School Police, which determined that the charge that Respondent had committed a battery was substantiated. On August 28, 1996, a temporary restraining order was issued against Respondent after Respondent allegedly threatened to kill her former boyfriend, who is also employed on an hourly basis by Petitioner. On October 7, 1996, a CFR was held with Respondent to address numerous incidents involving inappropriate and unprofessional conduct, the personnel investigation on the charge that Respondent had committed a battery, and Respondent's classroom performance and attendance. At that CFR, Respondent was directed to avoid any further altercations (verbal or physical) with other staff members. Respondent was also advised that her failure to comply with previous directives regarding altercations with staff members was considered insubordination and was in violation of School Board rules on employee conduct and violence in the workplace. Respondent was also advised that any further incidents would be considered gross insubordination. At the CFR held on October 7, 1996, Respondent was assigned to her home as an alternate assignment due to her repeated involvement in altercations at the school sites and her unprofessional conduct. Due to Respondent's continued involvement in altercations with other employees--even after being repeatedly directed to avoid same--and because of Respondent's history of erratic behavior at her work site, Respondent was further required to undergo a medical fitness evaluation. On October 8 through 11, 1996, a psychological evaluation was conducted by Dr. Michael Hendrickson, Ph.D., a licensed psychologist. Dr. Hendrickson recommended that Respondent become involved in psychotherapy through the EAP, and that Respondent be required to undergo a neurological evaluation to rule out a neurological basis for Respondent's reported behavioral problems. He also recommended that Respondent be required to undergo psychotherapy once a week for a full year. On October 15, 1996, Respondent was allowed to return to Lake Stevens Middle School. On October 22, 1996, Respondent was formally observed in the classroom and was found to be unacceptable in the categories of preparation and planning, and in assessment techniques in accordance with the Teacher Assessment and Development System. Respondent was prescribed activities to assist her in overcoming her deficiencies. On the day of the formal observation described immediately above, the administrator who conducted the classroom observation noted, among other things, that Respondent's lesson plans were incomplete; that Respondent's grade book did not contain grades for at least two of her classes; that there was no evidence of tests or quizzes given to the students; that students' work was piled on the teacher's desk, table, and cabinets; and that students' folders were incomplete. By November 5, 1996, Respondent had yet to complete the prescriptive activities that had been assigned to her as a result of the formal classroom observation conducted on October 22, 1996. At the and of the school day on December 12, 1996, Respondent approached the school principal, in the presence of students who were just getting into their school busses, and accused the principal of taking part in a plot to fire her and stated that she wanted to be assigned to the region office rather than work at Lake Stevens Middle School. The principal advised Respondent that this was not the appropriate place to hold such a discussion and that she should meet with him later in his office. On December 12, 1996, upon entering the principal's office, Respondent began to cry, used profanity, started shouting and screaming at the school principal, refused to leave the office, and, ultimately, had to be escorted out of principal's office into the main office, where Respondent continued to scream and shout in the presence of parents, students, and staff. While in the main office area on December 12, 1996, Respondent had to be restrained by other staff members after she started directing her verbal attack--in a threatening manner--at a school counselor. Respondent was finally escorted out of the school. On December 17, 1996, a follow-up CFR was held with Respondent to review the results of the psychological evaluation of Respondent and her continued inappropriate and unprofessional conduct as evidenced by her involvement in the December 12, 1996, incident in the main office of Lake Stevens Middle School, and her continuing acts of insubordination. At the December 17, 1996, follow-up CFR, Respondent was directed to attend psychotherapy once a week, for one (1) year, to undergo a neurological evaluation, and to immediately report to the EAP. Because of the school district's concern that Respondent had a propensity for violence, as evidenced by her numerous altercations with other employees, Respondent was also directed to remain on alternate assignment at her home. On January 31, 1997, Respondent was notified that her failure to comply with the administrative directives issued at the follow-up CFR held on December 17, 1996, constituted gross insubordination. Respondent was again directed to comply with the directives listed immediately above, within five (5) work days or face further disciplinary action. On March 6, 1997, Respondent underwent a follow-up consultation with Dr. Hendrickson, the psychologist that had conducted the initial psychological evaluation. The follow-up consultation with Dr. Hendrickson was necessitated by Respondent's continued involvement in altercations with other employees at her work site after she had completed her psychological evaluation on October 11, 1996. After the follow- up consultation, Dr. Hendrickson recommended that Respondent be required to undergo a psychiatric evaluation to assess the cause of her various conflicts and aggressive outbursts. On March 27, 1997, a CFR was held with Respondent to address Respondent's follow-up consultation with Dr. Hendrickson. At this CFR, Respondent was directed to undergo a psychiatric evaluation as a condition of Respondent's continued employment with Petitioner and to report the results of that evaluation within five (5) work days. On or about April 29, 1997, Respondent was directed to report on May 1, 1997, to OPS for a CFR, to discuss, among other things, Respondent's failure to comply with administrative directives regarding her medical fitness to perform assigned duties, specifically Respondent's failure to undergo a psychiatric evaluation, and Respondent's failure to adhere to previously issued administrative directives relative to her unprofessional conduct, and her unacceptable and disruptive behavior. On or about May 1, 1997, Respondent failed to attend the CFR scheduled for that day. The May 1, 1997, CFR was rescheduled to May 2, 1997, after Respondent indicated that she would not attend unless escorted by a police officer because she feared for her personal safety. On May 2, 1997, Respondent was notified that her failure to attend the CFR scheduled for that day would constitute gross insubordination. Due to Respondent's failure to attend the May 2, 1997, CFR, on May 9, 1997, Respondent was directed to attend a CFR scheduled for May 13, 1997, at OPS. Respondent was also advised that her failure to attend the May 13, 1997, CFR would be considered gross insubordination and that Respondent would be subject to dismissal from further employment with Petitioner. Respondent failed to attend the CFR scheduled for May 13, 1997. At its regularly scheduled meeting of May 21, 1997, the School Board of Dade County, Florida, took action to suspend and initiate dismissal proceedings against Respondent on the grounds of incompetency, misconduct in office, gross insubordination or willful neglect of duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board of Miami-Dade County, Florida ordering that: Respondent be found to be guilty of incompetency, gross insubordination or willful neglect of duty, and misconduct in office, as charged in the Notice of Specific Charges; Respondent's suspension without pay from employment on May 21, 1997, be sustained and that she receive no back pay for the period of her suspension; and that Respondent be dismissed from all employment with the School Board of Miami-Dade County, Florida. DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998.
The Issue Whether the Petitioner, Fletcher Armour, should have been suspended by the Respondent, City of Clearwater, for a three-day period.
Findings Of Fact The Petitioner is an employee of the City of Clearwater and was at the time pertinent to this hearing a meter reader for the city. He was suspended for a period of three (3) days beginning July 31, 1979, and ending August 2, 1979, for insubordination and a serious breach of discipline. In February, 1979, Petitioner Armour and his superior, Fred W. Lewis, Accounts Supervisor, discussed the Petitioner's planned vacation. The Petitioner requested six (6) consecutive days: June 28 and 29, 1979, for religious reasons, plus the following four (4) days. Although tentative written approval was given by Lewis, he warned the Petitioner that if a meter reader with seniority requested the same four (4) "non-religious" vacation days Lewis would have to accede to the request for the reason that there is a seniority policy in the Utilities Department of the City of Clearwater, and further that the department could not properly function with two (2) meter readers on vacation at the same time. Lewis told the Petitioner that the two (2) vacation days requested for religious purposes, June 28 and 29, would be granted regardless of seniority. Subsequent to this first meeting, a Mr. Henderson, a meter reader with seniority over Petitioner Armour, requested the same four (4) days desired by the Petitioner. To resolve this conflict of vacation schedules, Lewis called a meeting during early June, 1979, at which all meter readers were present, including Kim Kyler, a witness for Respondent at the hearing. According to the testimony of Lewis and Kyler, Lewis asked Petitioner Armour during the meeting what days he wanted to take off. Petitioner responded by stating he would take his first two (2) vacation days (June 28 and 29), but not the last four (4) days, and that he would postpone taking these four (4) days until sometime in December when he had two (2) weeks. He was then told that he was not entitled to two (2) weeks until after January 1, and therefore could not take the requested four (4) days in December. Lewis thereupon documented the vacation schedules of Petitioner Armour and Henderson accordingly, giving Henderson the last four (4) days he desired and had theretofore requested. Witness Kyler corroborated the testimony of Lewis. Petitioner Armour took off the four (4) days following the two (2) days leave granted that he had requested in February but was denied in June.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the three (3) days suspension of the Petitioner, Fletcher Armour, by the Respondent, City of Clearwater, be sustained. DONE and ORDERED this 10th day of January, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Rick Griesinger, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 33518 Mr. Fletcher Armour 535 Fairwood Avenue, #230 Post Office Box 794 Clearwater, Florida 33518
The Issue Whether Petitioner's actions on December 13, 1994, were in violation of Section 231.17(3)(c)6, Florida Statutes (1997), which requires the holder of a Florida Educator's Certificate to be of good moral character. Whether Petitioner has been guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes (1997). Whether the Petitioner committed an act which would authorize the Education Practices Commission to revoke his teaching certificate, pursuant to Section 231.17(10)(a), Florida Statutes (1997).
Findings Of Fact On or about September 9, 1997, Petitioner filed an application for Florida Educator's Certificate. Petitioner taught a drop-out prevention class at Cypress Lake High School in Ft. Myers, Florida, for approximately half of the 1997-98 school year. After the Notice of Reasons was issued in February 1998, Petitioner continued to work at Cypress Lake High School. He was transferred to a non-instructional position in the in-school suspension program, where he worked for the remainder of the 1997-98 school year. Petitioner returned to that position for the 1998-99 school year. Both before and after the Notice of Reasons was issued, Petitioner worked as a coach for football and baseball at Cypress Lake High School during the 1997-98 school year, and during the 1998-99 school year. Petitioner has a Bachelors of Arts Degree in English Education from Wright State University in Ohio. He completed the Beginning Teacher Program in Florida while working at Cypress Lake High School. All other requirements for certification have been completed by the Petitioner. After Petitioner applied for his Florida Teachers' Certificate, he was informed by Respondent's investigators that he needed to provide additional information regarding an arrest that had occurred in Key West, Florida, in 1994. Petitioner provided the Respondent's investigators with a letter explaining that he was arrested in Key West on a domestic battery charge involving his girlfriend at that time, Dory Catahan. Petitioner entered into a Pre-trial Intervention agreement with the local State Attorney's office. At the end of his probation term, on or about November 30, 1995, the State Attorney filed a Nolle Prosse dismissing the charges against him. Petitioner has not been convicted of a crime or had adjudication withheld in any jurisdiction in the United States. On or about December 13, 1994, Petitioner came home from work to the apartment he shared with his live-in girlfriend, Catahan. Catahan was angry at Petitioner because a young lady, whose name was either Stephanie or Carolyn, had called the apartment looking for him. Catahan was jealous, and she began yelling and screaming at Petitioner, accusing him of cheating on her. Petitioner tried to ignore her to get her to calm down, but instead Catahan became more enraged, and began pushing and hitting Petitioner. She tried to kick him in the groin area, and he took steps to hold her back, in an attempt to protect himself from being hurt by her attack. One of the steps Petitioner took to protect himself was to hold her arm and try to keep her from kicking him. He also had one hand on her neck area to hold her off as she repeatedly tried to kick him in the groin. On one of her kicks, he caught her foot, and told her, "Stop this or I'll break your damn ankle." Petitioner used that threat to try to get her to stop kicking before she hurt him. He did not do any harm or damage to her ankle, letting go after holding on to it for a minute or so. Catahan became even angrier when he pinned her against the wall to stop her attacks. Petitioner was still trying to get her to calm down. She finally said she was going to call the police. Petitioner dialed the police for her. When the police arrived, Petitioner was arrested and charged with Domestic Battery against Catahan. He spent the night of December 13, 1994, in jail, and was released the following day. Subsequently, Petitioner moved out of the couple's apartment for a few weeks. After a few weeks apart, Petitioner and Catahan resumed their relationship without further incident, until they broke up when he left Key West and moved back to Ohio in 1996. Petitioner felt responsible for Catahan becoming angry at him because he knew she was a jealous and possessive woman. He felt he should not have been trying to "cheat" on her. When he went to court Petitioner was assigned a public defender. His attorney advised him that the State's Attorney was willing to offer him a Pre-Trial Intervention as a disposition of his case, if he was willing to undergo a period of probation, community service, and attend an anger management class. Petitioner accepted the Pre-trial Intervention because he was informed that he would not have any permanent record and would not go to jail. Petitioner's testimony relating to the incident on December 13, 1994, is credible. No witness testified contrary to the version of the events provided by the Petitioner. The evidence failed to prove Petitioner battered his girlfriend or make any threat to do bodily harm to her in an offensive or aggressive way on December 13, 1994. The only touching or threats made by Petitioner to the shoulders and neck of Catahan were defensive in nature, and designed to prevent his girlfriend from harming him. Back in Ohio, Petitioner was a substitute for a short period of time. He then moved to Ft. Myers, Florida, in June of 1997. In August of 1997, Petitioner was hired as a teacher and coach at Cypress Lake High School, in Ft. Myers, Florida. Petitioner had been pursuing a career in teaching since his graduation from college, with a degree in English Education. In fact, when he moved to Key West in 1994, he was trying to find work as a teacher, but the job market was very difficult in Monroe County, and he ended up working in a marina. Petitioner is dedicated to teaching. He wants to make it his career. Petitioner cares about children; he feels he can make a difference. He believes he is a good teacher. His co-workers and peers at Cypress Lake High School have given positive references and reported that Petitioner is a good teacher, with a good demeanor with children, including those students who have difficult discipline problems at school. Two vice-principals at Cypress Lake High School were very supportive of Petitioner. They had positive recommendations about his character, his teaching skills and aptitude, as well as his demeanor around children. Petitioner has been recommended for a permanent teaching position at Cypress Lake. Through the efforts of persons in the administration, Petitioner has stayed on at Cypress Lake in the non-instructional position in the In- School Suspension program. David LaRosa is the Athletic Director at Cypress Lake High School. He hired Petitioner as a football and baseball coach. LaRosa was also the teacher whose class Petitioner took over during the 1997-98 school year. In his dealings with Petitioner, he found him to be very competent, and trustworthy with freshman football players. They are a very special group of athletes which require coaches with special abilities. In spite of his knowledge about Petitioner's arrest in Key West, LaRosa had no misgivings whatsoever about Petitioner's character and abilities as a teacher and coach. Rose Marie Bobbs is a parent of a student that was on Petitioner's football team. She is also an employee at Cypress Lake High School. She was active in the booster program at Cypress Lake and was very comfortable and satisfied with Petitioner's work as a football coach of her child. She had no qualms about having her children in Petitioner's classes or athletic teams. Michael Cooper, a Sergeant with the Sanibel Police Department, with 14 years experience in law enforcement, has known Petitioner since they were coaches together for the Cypress Lake High School freshman football team during the 1997-98 school year. Through his dealings with Petitioner, he found him to be a very honest person, and one who was very caring for his students. Petitioner did not engage in any acts of moral turpitude that should prevent him from teaching in the State of Florida. Petitioner did not engage in any acts that would justify or authorize the Commissioner to deny his teaching certificate. Petitioner is competent and morally fit to teach students in the State of Florida.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Education Practices Commission granting the Petitioner a Florida Teacher's Certificate. DONE AND ENTERED this 23rd day of October, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 23rd day of October, 1998. COPIES FURNISHED: David Brooks Kundin, Esquire 906 Thomasville Road Tallahassee, Florida 32302 Charles T. Whitelock, Esquire Whitelock and Williams, P.A. 300 Southeast Thirteenth Street Ft. Lauderdale, Florida 33316 Kathleen Richards, Executive Director Professional Practices Services Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issue posed for decision herein is whether or not the Petitioner's, Orange County School Board, suspension without pay of Razzi Lee Smith from his position of classroom teacher is warranted.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, posthearing briefs and memoranda, and the entire record compiled herein, the following relevant facts are found. During times material to the allocations herein, Respondent, Razzi Lee Smith, was employed by the Petitioner, School Board of Orange County, Florida, as a classroom teacher at Rock Lake Elementary School. On October 7, 1980, Petitioner suspended Respondent without pay from his position as a teacher pending a hearing. Respondent requested a hearing pursuant to the authority contained in Sections 120.57(1) and 231.36, Florida Statutes (1979). The charges upon which the suspension is based are, in summary fashion, that Respondent is guilty of gross insubordination, willful neglect of duty and misconduct in office. The specific charges are based upon the following grounds: On or about September 24, 1980, Respondent twice refused a lawful and reasonable order of his Principal. On or about September 24, 1980, Respondent threatened his Principal. During the months of August and September, 1980, Respondent evidenced in the presence of others, a continuing belligerent and hostile attitude towards his Principal. During the months of August and September, 1980, Respondent failed to follow the established written procedures for calling in if he was to be late or not present. 5. On September 2, 19, 22, 24 and 25, 1980, Respondent failed to report to the school by 8:00 o'clock a.m. as required in the Faculty Handbook. Additionally, Respondent was charged with misconduct in office and willful neglect of duty based upon the following grounds: On August 29, 1980, Respondent was absent from his assigned work location at Rock Lake Elementary School. On September 12, 1980, Respondent took sick leave for one half day claiming that he was too sick to finish the school day at Rock Lake Elementary School but later attended a football game in Tampa, Florida. On September 23, 1980, Respondent took sick leave claiming to be too sick to teach at Rock Lake Elementary School but attended football practice at Jones High School as a coach. On September 26, 1980, Respondent provided the Superintendent with a false oral statement, to wit, that he did not leave to go to the football game in Tampa on September 12, 1980, until approximately 7:00 o'clock p.m., arriving at the game around half time at 8:30 p.m., when in fact Ice left to go to the game with the Jones High School football team. Lois Begley has been the acting principal at Rock Lake Elementary School since approximately February, 1980. Upon assuming the duties of acting principal, Ms. Begley immediately advised teachers at Rock Lake to report for work at 8:00 o'clock a.m. and leave at 3:30 p.m. Petitioner has a policy whereby teachers who find it necessary to be absent must report such intentions by 6:30 a.m. by notifying either Ms. Begley or an office employee at Rock Lake, Caroline Johnson. Respondent was advised of this policy; was warned of his breach of said policy on two occasions during February and March of 1980, and admitted that he was aware of the policy. (Petitioner's Exhibits Nos. 3, 4 and 5) Ms. Begley stressed the need to know of a teacher's intended absence prior to 7:00 o'clock a.m. in order to recruit a substitute teacher. Subsequent to March, 1980, Respondent was again advised of Petitioner's policy respecting timely reporting for duty at Rock Lake Elementary School. (Petitioner's Exhibit No. 6) During a faculty meeting held during the afternoon of the last day of preplanning, August 29, 1980, Ms. Begley observed that Respondent was not present. She inquired of Respondent's whereabouts and was advised by an office employee that Respondent had called and reported that he was experiencing transportation problems. Ms. Begley observed Respondent at Jones High School later that same afternoon. During the last week of August, 1980, Respondent advised Ms. Begley that he had been leaving Rock Lake approximately one hour early each day during the preplanning week to assume coaching duties at Jones High and that this was cleared prior to Ms. Begley's tenure as acting principal at Rock Lake. Ms. Begley reluctantly agreed to Respondent's early departure during that school year, however, she made clear to Respondent that he would be expected to teach a full day the following year. Respondent and Ms. Begley made an agreement whereby he would report to work one half hour early, i.e., at 7:30 a.m., in order to make up for one half of the time lost due to his early departure from Rock Lake to coach at Jones High School. Respondent failed to report for duty at 7:30 a.m. as was his agreement with Ms. Begley. September 2, 1980, was the first school day for students at Rock Lake. Respondent reported for work at approximately 9:00 a.m. on September 2, 1980, and several students were observed milling around in the hallways attempting to find Respondent to enter their homeroom class. Respondent called the office at Rock Lake at approximately 8:30 a.m. on September 2, and advised that he was again experiencing transportation problems. Ms. Begley offered to assist Respondent in getting a ride to school. Within minutes, Ms. Begley had located a ride for Respondent. Ms. Begley called to so advise Respondent, whereupon Respondent told Ms. Begley that he had found a ride. As stated, Respondent reported for duty at 9:00 a.m. on September 2, 1980. Ms. Begley counselled Respondent regarding his claimed transportation problems again and stressed the reasons for her need to be alerted when he would be reporting late for work. Respondent generally discussed his problems with Ms. Begley on September 12, indicating that he was encountering personal problems that he did not care to divulge and that there were rumors about him being circulated around the school amongst other faculty members. Ms. Begley later discussed the problem regarding that fact that he had failed to make up 150 of the 300 minutes that he owed the School due to his early departure to coach at Jones High Sclcool during the week of preplanning. Ms. Begley did not take disciplinary action against Respondent due to his lateness in reporting for duty on the first day of school. Respondent requested the services of a substitute teacher to "fill in" for him during the afternoon of September 12, 1980, because he was ill. Respondent initially refused to divulge to school officials the nature of his illness. He attended and coached a football game between Jones High School and a local high school in Tampa that night. On September 19, 1980, Respondent reported for work at approximately 8:50 a.m. As late as 8:30 a.m. on that day, several students were unable to get in class and Respondent failed to call to advise Ms. Begley or the designated official that he would report for work late. When questioned as to the reason for his tardiness by Ms. Begley, Respondent replied that he had earlier advised her that he was having transportation problems. Ms. Begley again counselled Respondent regarding his continued tardiness in reporting to work. At that time, he was also directed not to use school supplies to photocopy football plays for use at Jones High School without proper authorization. On September 19, office aides, Ann Green and W. Oliver, work situs was in the immediate area where Respondent was counselled by Ms. Begley and were in earshot of the conversations. Respondent balked and became vocal about being counselled by Ms. Begley for reporting late. Ms. Begley reported the incident to Dr. Skaggs, Superintendent in charge of employee relations and Ron Blocker, Area Superintendent, who serves as a liaison between the superintendent and individual school principals. During the conference with Ms. Begley on September 19, Respondent voiced displeasure about the working conditions at Rock Lake and expressed a desire to transfer when Ms. Begley reported what she termed to be threatening remarks by Respondent to Dr. Skaggs. On September 19, 1980, Respondent reported for work at approximately 8:50 a.m. and was summoned for a conference with Ms. Begley and Ron Blocker. During the conference, Respondent expressed disagreement or displeasure regarding the atmosphere in which he was being questioned and indicated that he preferred to leave. Respondent was warned of the consequences that might flow from his acts and conduct which could include either disciplinary action by way of a suspension or a failure to be reappointed for another term should he not heed the advice and warnings given him by his Principal, Ms. Begley. 2/ On September 22, 1980, Respondent reported for duty at approximately 8:14 a.m. Respondent did not call to advise Ms. Begley or the other designated official. Ms. Begley spoke to Respondent about his reporting tardy at approximately 2:00 p.m. on September 22, 1980. Present during the conference were Respondent, Ms. Begley and Ron Blocker. Respondent was invited to offer and explanation or statement with reference to his continued pattern of reporting for duty late, however, he refused to make any verbal response. Ms. Begley reduced the oral reprimand to writing and delivered it to Respondent who failed to accept or verify that he was issued a reprimand. On September 23, 1980, Respondent took sick leave and, therefore, did not report for work at Rock Lake. On that same day, however, Ms. Begley observed respondent at the football field at Jones High School between the hours of 4:00 to 5:00 p.m. working with a small group of football players. On the following day, September 24, 1980, Respondent reported for work at approximately 8:07 a.m. Ms. Begley summoned Respondent to a conference, explaining to him at the outset of the possible consequences that might result from the conference. Given the gravity of the possible consequences, Ms. Begley inquired if Respondent cared to bring a witness or other representatives to be present with him during the conference. During the conference, Ms. Begley advised Respondent that she regreted having to give him a written reprimand but that his acts and conduct gave her no alternative. A copy of a reprimand was then given Respondent which he refused to sign acknowledging acceptance (Petitioner's Exhibit No. 7). The parties' Collective Bargaining Agreement requires that written reprimands respecting lateness or failure to report for work be documented by a letter to that effect (Petitioner's exhibits Nos. 8 and 9). Ms. Begley, then, during the conference, asked Respondent if she could be of any further assistance to him, whereupon, Respondent in a hostile manner advised that he did not need or want any assistance and began pointing his finger at Ms. Begley telling her to "leave him alone." Respondent was told by Ms. Begley that that kind of conduct (vocal and belligerent outbursts) could result in disciplinary action to him. Ms. Begley inquired of Respondent what type leave he took on September 23, 1980, whereupon, Respondent advised that he went to see a doctor. Ms. Begley then asked Respondent to provide her with a doctor's statement to document that claim. Respondent never provided Ms. Begley with a medical excuse for his absence as requested. Ms. Begley considered that Respondent's demeanor and mannerism during the conference of September 24, 1980, constituted a threat based on the tone of his voice and the message, i.e., "quit messing with me. Stop bothering me--I'll do more than threaten you" (when Ms. Begley asked Respondent if he was threatening her). She also considered that Respondent's failure to signify acceptance of the reprimand constituted a compromise of her authority. (See Petitioner's Exhibit No. 8, pages 22, 23). Respondent later discussed the decision to discipline Respondent and ultimately decided to recommend his dismissal to Superintendent Skaggs and Area Superintendent Blocker during the evening of September 25, 1980. The possibility of a transfer was considered by Ms. Begley but rejected inasmuch as she was of the opinion that a transfer would not serve any useful purpose in correcting the problems evidenced by Respondent's erratic work habits. Ms. Begley considered that her attempt to reprimand Respondent was ineffective and incomplete based on his refusal to sign an acknowledgement of receipt of the reprimand plus the combination of the insubordinate attitude displayed by him in the presence of his peers, his neglect of duty and tardiness in reporting for work, when combined, warranted a recommendation to the Superintendent that Respondent be dismissed as opposed to a transfer or some other lesser form of reprimand or discipline. Ron Blocker, the area administrator and liaison between the Superintendent and the Principal were summoned to Rock Lake Elementary School to assist Ms. Begley in what was once thought to be a possible teacher resignation. During the conference on September 24, 1980, Administrator Blocker advised Respondent that his failure to sign for receipt of a written reprimand could have grave disciplinary consequences in view of the gravity of the charges and Respondent's hostile conduct as manifested throughout the conference. Administrator Blocker recalled the forceful tone used by Respondent in telling Ms. Begley that he was "doing more than threatening her." Administrator Blocker also recalled Respondent's refusal to advise Begley of the reason for his absence the day prior to the conference indicating instead that she would know at the end of the work day. During the conference, Administrator Blocker recalled that he twice cautioned Respondent that his (Respondent's) refusal to follow an administrative directive may be interpreted as "gross insubordination" which could lead to possible termination or failure to be reappointed (as a teacher) the following school year. Calvin Perry is Director of Drivers Education and is the head football coach at Jones High School. As head football coach, Coach Perry is familiar with the duties of Respondent, a paid assistant coach assigned to coach the defensive team at Jones High School. Coach Perry confirmed that Respondent was present at the September 12, 1980, game in Tampa indicating that Respondent was present during the pre-warm ups and was present throughout the entire game. Coach Perry credibly testified that Respondent was present for football practice on September 23, 1980, having reported at the start of practice at approximately 3:00 p.m. and remained throughout the practice session which lasted until approxiately 5:15 p.m. However, Coach Perry also acknowledged that Respondent indicated that Respondent was ill at the game in Tampa. James L. Schott, Petitioner's Superintendent was shown copies of the letters sent to Respondent bearing the dates September 26, and October 4, 1980, respecting his suspension of Respondent without pay. Superintendent Schott explained that a conference was called to hear the nature of the charges; to hear both sides; to evaluate the evidence and determine the nature of, if any, recommended penalty he would make to the School Board, prior to making any recommendation based on the subject charges. Superintendent Schott recalled that while Respondent explained that he was ill on September 12, 1980, he was able to attend a football game in Tampa although he arrived during halftime because he was not feeling well and was uncertain as to whether he would attend the game at all. Respondent maintained his "story" to Superintendent Schott about attending the Tampa game during halftime. When Respondent advised Superintendent Schott that he also took sick leave on September 23, 1980, Superintendent Schott reminded Respondent of the similar situation by him on September 12, and, therefore, asked that he bring any documentary evidence of illness that he had so that it could be considered prior to his making any decision on the pending charges against him. Therefore, Superintendent Schott counselled Respondent regarding his failure to follow what he considered to have been lawful and reasonable requests regarding his attendance and timely reporting to work. During the Superintendent's conference with Respondent on September 26, 1980, he determined that Respondent was late approximately 50 minutes on September 19; approximately 14 minutes on September 20th and several minutes late on September 21 and 22. On September 23, respondent was absent for work claiming sick leave. According to Superintendent Schott, Respondent acknowledged that he might have made a threat to Ms. Begley during the conference on September 24, 1980. Superintendent Schott was able to independently determine from an investigation of the charges that Respondent had offered false information regarding his attendance to the football game in Tampa on September 12, 1980, inasmuch as other credible evidence indicated Respondent's presence at that game throughout its entirety. After considerable deliberation, Superintendent Schott determined that termination was the only appropriate remedy that he should recommend to the full School Board to discipline Respondent. In making this decision, Superintendent Schott reflected on the facts that Respondent had obviously been terminated for failure to report to work as assigned and that to transfer Respondent would merely pass the problem to another Administrator to grapple with. Superintendent Schott, after much consideration, made the decision to recommend Respondent's termination without animosity and with much sensitivity to the problem based on the rapport that Respondent appeared to have with the youth and his peers at Rock Lake Elementary School. Superintendent Schott offered that teaching was more by example than by class room actions and that the responsibility of a teacher included getting to work promptly and was more than the usual duties expected once a teacher gets to class such as adding columns, deciphering words, reading etc. RESPONDENT'S DEFENSE Respondent is a 1975 graduate of South Carolina State College and as stated, has been employed as a sixth grade teacher at Rock lake since the 1979- 80 school year. While so employed, Respondent has been involved in several school related activities outside his normal teaching duties, including Chairman of the Student Council; contact or liaison for Career Education; Chairman of the Safety Patrol; Scout leader and CTA representative. 3/ Respondent admits to not returning for duty on August 29, 1980, as charged. However, he exclaimed that he encountered car trouble enroute to his mother's home for lunch and consequently had to walk a distance of approximately two miles. Respondent also reported late for duty on September 2, due to transportation problems and did not arrive until approximately 8:45 a.m. Respondent also left school on September 12, 1990, at approximately 12:50 p.m. due to illness. Respondent admitted that he attended the game in Tampa on the evening of September 12, 1980. Respondent explains that this was possible because his health improved from the nauseated condition that he had suffered earlier during the day. Respondent rode to the game in Tampa with scouting coaches Smith and Robertson and arrived at the stadium in time for program warm-ups. 4/ Respondent also admitted reporting for work late on September 19 and 22, 1980. Respondent refused to sign a statement acknowledging acceptance of the written reprimand by Ms. Begley on September 24, 1980, based on his claimed "lack of trust" for Ms. Begley. In this regard, however, Respondent admits that Ms. Begley explained to him that signing the statement attached to the reprimand in no way signified agreement with the contents of the reprimand. Respondent claimed to have felt pressured to tell the Superintendent that he left Orlando at approximately 7:00 p.m. on the evening of September 12, 1980, and arrived at the game at halftime but that there was no willful attempt by him to misstate or otherwise misrepresent the facts to Superintendent Schott. The facts do not evidence a basis for Respondent's feeling. In this regard, Respondent admitted that he arrived at the game on September 12, 1980, before it started and remained for the duration of the game. Respondent did not verbally respond to inquiries by Ms. Begley during the conference with Ms. Begley and Area Superintendent Blocker because he considered Ms Begley's inquiry to be a form of harassment and an attempt by her to treat him as a "child." Finally, Respondent considered that by telling Ms. Begley that he was initially experiencing transportation problems excused his reporting requirements when he subsequently reported for work late.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That Respondent be dismissed as an instructional employee of the Orange County School System. RECOMMENDED this 17th day of February, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether there is just cause to suspend Respondent, George Young (Respondent), as alleged in the letter of the superintendent of schools dated June 9, 2008.
Findings Of Fact Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Indian River County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff. At all times material to the allegations of this case, Respondent, George Young, was an employee of the School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach at Sebastian River High School and served as head baseball coach for the varsity team. For purposes of this case, all acts or omissions complained of were in connection with Respondent’s responsibilities as a baseball coach. By way of background, the allegations of this case evolved from an underlying incident that must be disclosed in order to put the proper perspective on Respondent’s role and responsibility in connection with the allegations. During March of 2008, Respondent scheduled his team to participate in a baseball tournament held in Broward County, Florida. The tournament location and schedule made it convenient for the team to remain near the site for one night of the tournament. This was not the first over-night venture for Respondent and the teams he coached. Prior to tournaments it was Respondent’s policy to instruct the team that they were representatives of the school. Respondent encouraged the students to refrain from horseplay, roughhousing, or misbehavior that could discredit them or the school. In short, the team members were to conduct themselves as gentlemen. Nevertheless, some of the students did engage in poor conduct. More specifically, several of the players began to wrestle in one of the hotel rooms. Some unspecified number of the players turned on their teammate, H.C. Without Respondent’s knowledge or consent, the players wrestled H.C. (the victim) to a bed, pulled down his pants, and placed a plastic soda bottle at or near his rectum. It is unknown whether the bottle actually penetrated the victim, but the fact that an assault was perpetrated by the student players is certain. After the assault, the victim escaped the room and fled to another hotel room. Several team players observed the victim to be quite upset. Moreover, at least one player believed that the student was so upset he was crying. Word spread among some of the players that something bad had happened to the victim. The details of the assault were not general knowledge. At least two adults who accompanied the team on the trip were also made aware that something untoward had occurred to the victim. At least one of the parents told Respondent that night that something had occurred. No specifics of the incident were disclosed to Respondent. He knew, however, that wrestling had occurred and that someone was upset. Respondent made no effort to personally discover what had happened to the victim that night. Presumably, he chalked it up as adolescent roughhousing. The next morning Respondent called a team meeting before the team left the hotel. It was his custom to speak to the team before checkout but on this morning he had the additional task of attempting to find out what had occurred the night before. Not surprisingly, no one disclosed the full details of the assault. From the hotel the team went on to a meal and played in the tournament. Respondent did not pursue further inquiry into the assault. Respondent did not question anyone individually regarding the events. Approximately one week later the victim's parents heard about the assault. A parent telephoned them to share information that something had occurred on the tournament trip. They were stunned and surprised to learn of the incident. They questioned their sons (both of whom were on the tournament trip) and decided something needed to be done to punish the students who committed the assault. To that end, they went to Respondent's home and asked him about the incident. Respondent was surprised to learn of the details of the assault and represented that something would be done to appropriately discipline the perpetrators of the deed. The weight of the credible evidence supports the finding that on the night of the parents' visit to Respondent's home, Respondent knew that the victim had been wrestled to the bed, had had his pants pulled down exposing his buttocks, and that a bottle may have been involved at or near the student's rectum. The bottle portion of the assault was stated as a possibility as the victim's parents at that time had not confirmed whether or not the bottle was used or merely threatened. Nevertheless, when Respondent reported the incident the next day to the athletic director, the possibility of a bottle being involved in the assault was omitted. Since Respondent did not disclose the full details of the assault, including the fact that a bottle may have been involved, to the athletic director, the punishment initially to be administered to the student perpetrators did not satisfy the victim's parents when they learned what would be imposed. Instead, they demanded that more harsh consequences befall the students who were involved in the assault. Their report of the incident conflicted with Respondent's story to the athletic director. It soon became clear that while the parents may have been willing to spare their son the embarrassment of the bottle portion of the story when they believed the penalty imposed against his attackers would be great, they were not going to let the perpetrators skate by on the penalty initially chosen. Thus Respondent's willingness to leave out the bottle portion of the assault became critical to the matter. In fact, the omission of the bottle portion of the incident became the key allegation against Respondent. The superintendent's letter setting forth the allegation against Respondent stated, in part: On April 8, 2008, you told Athletic Director, Michael Stutzke, that an incident occurred during an out of town baseball tournament that involved wrestling with someone's pants being pulled down. When you made that statement you knew that was not the complete story, because the night before, you met with a student's parents who told you their son's (the victim) pants were taken down and a bottle put near his rectum during the course of this incident. This is the same incident you described to Mr. Stutzke as mere wrestling and someone's pants pulled down. The credible weight of the evidence supports the finding that Respondent knew he had not given Mr. Stutzke the complete story of the incident. Although Respondent at that time may not have known for a fact that a bottle was used in the commission of the assault, he knew that the rumor of the bottle's use was in question. An investigation of the matter would have proved or disproved the bottle portion of the story. Respondent did not, however, reveal that portion of the allegations to school authorities. Although Respondent may have entertained the misguided notion that he was protecting the victim from embarrassment by not disclosing the full details of the assault, his failure to make school officials aware of the incident and the potential allegation of the bottle demonstrates a failure to fully and honestly conduct himself professionally. Respondent has enjoyed a long, successful, and popular run as a baseball coach in the district. At the end of the day, however, responsibility for the safety and well-being of his team rested with him. That job is unrelated to the success of the team or their desire to play in tournaments. Moreover, school authorities must be able to rely on a coach's veracity to completely and accurately report any incident that may occur during a school-sanctioned event. The stipulated facts of the parties provided: On March 31, 2008, George Young was the head coach for the Sebastian River High School Varsity Baseball team. On March 31, 2008, the Sebastian River High School Varsity Baseball team attended a baseball game in Plantation, Florida. Kevin Browning, Director of Human Resources, investigated allegations of an incident that occurred on March 31, 2008 involving the baseball team. Browning released his Report and Recommendation on June 26, 2008. Young was given a three day suspension, which is the subject of the appeal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a Final Order sustaining the suspension of Respondent and denying his claim for salary reimbursement. DONE AND ENTERED this 29th day of July, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2009. COPIES FURNISHED: Mark Wilensky, Esquire Dubiner & Wilensky, P.A. 515 North Flagler Drive, Suite 325 West Palm Beach, Florida 33401-4349 Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Harry J. La Cava, Ed.D Superintendent Indian River County School Board 1900 25th Street Vero Beach, Florida 32960-3150
