The Issue Should Petitioner impose discipline on Respondent's Florida Educator's Certificate No. 654546, based upon the allegations in the Administrative Complaint, Case No. 001- 1338-A, before the State of Florida, Education Practices Commission?
Findings Of Fact Stipulated Facts: Respondent holds a Florida Educators Certificate (FEC), number 654546, in the area of Music. Respondent's FEC is valid through June 30, 2006. At all times relevant to this proceeding, Respondent was employed as a Music Education Teacher at Chiefland Elementary School in the Levy County School District. Additional Facts: Background Respondent served as a music teacher at Chiefland Elementary for 12 years. On January 17, 2001, while at school Respondent spoke to Johnny Turner, the guidance counselor at Chiefland Elementary. In this conversation Respondent commented that he had a problem with alcohol. Mr. Turner did not believe that Respondent was inebriated at that time. Mr. Turner did observe that Respondent was very hyper-active emotionally and verbally. On the evening of January 17, 2001, Respondent called Mr. Turner several times at Mr. Turner's home. From his remarks Mr. Turner believed that the Respondent was inebriated. Respondent's speech was slurred, Respondent was incoherent and repeated himself often. Respondent commented that he had a problem with alcohol and wanted help. Mr. Turner directed him to a rehabilitation program and to Alcoholics Anonymous. Mr. Turner also suggested that Respondent not try to come to school on the morning of January 18, 2001, and that they continue their conversation at some future date when Respondent was sober. Respondent asked Mr. Turner to give him a wakeup call at 5:00 a.m. on January 18, 2001. Mr. Turner made that call intending to remind Respondent to stay home that day but Respondent did not answer the phone. On January 18, 2001, around 8:15 a.m. Mr. Turner saw Respondent at the school outside the cafeteria. Respondent approached Mr. Turner and said good morning and placed a Catholic missal into Mr. Turner's hands. Respondent then went to this classroom. Respondent was observed by Mr. Turner walking across the courtyard and up the hall in a straight line without staggering. When Respondent greeted Mr. Turner on that morning the greeting was short by not slurred. Nothing in Respondent's conduct made Mr. Turner believe that Respondent should be reported as constituting a danger to himself or others at that time. Mr. Turner's impression of Respondent on January 18, 2001, was misplaced, for reasons that will be discussed. Respondent acknowledges that on the night of January 17, 2001, he had been drinking. He describes the amount that he drank as "a couple of drinks." David Beard, a friend of the Respondent, indicated that Respondent and Mr. Beard had a couple of drinks. They were drinking bourbon. In addition to the alcohol which Respondent consumed on the night of January 17, 2001, Respondent was also taking medication. That medication had been prescribed by Asa L. Godbey, Jr., M.D., a physician practicing outpatient psychiatry with adults. Dr. Godbey had first seen Respondent in 1997. Dr. Godbey diagnosed Respondent as having dysthymic disorder, a chronic non-psychotic depression. As of January 18, 2001, Dr. Godbey had prescribed Amitriptyline and Prozac, anti-depressant medications and Xanax, which is a benzodiazepine, used to help with anxiety when patients are depressed. Xanax is a non-depressant. In 1999 Dr. Godbey had prescribed Respondent Ritalin, a mild stimulant to address episodes of acute severe depression. Dr. Godbey was aware that Respondent had been treated for migraine headaches in the past by the use of small doses of narcotics. This refers to Tylenol No. 3 PRN. The record reveals that on January 17, 2001, and on the morning of January 18, 2001, Respondent took some medications prescribed for him. The exact medications taken on those dates is not clear from the record. In this connection, Dr. Godbey had told Respondent that he should not drink alcohol because he does not handle it well. As the doctor explained, alcohol by itself prevents deep sleep, a particular problem for people who are depressed. As Dr. Godbey explained, Respondent does not metabolize alcohol as well as some people. So it can be a real problem for him. As Dr. Godbey established, the mixing of alcoholic beverages and the drugs prescribed for Respondent is a problem. It worsens depression. Respondent's testimony that "he did not know to what extent" his use of alcohol presented a problem for him, given Dr. Godbey's advice against using alcohol, does not create forgiveness for his misconduct. The January 18, 2001 Incident at School: Linda Karol Yon is a speech language pathologist at Chiefland Elementary. This is a position that she has held for 27 years. Before the incident at issue Ms. Yon and Respondent would carpool from Gainesville to Chiefland on work days. Ms. Yon drove Respondent and herself to work on January 18, 2001. Ms. Yon drove Respondent and herself on the day in question because Respondent called her and said that he was not feeling really well. In particular Respondent told Ms. Yon that he had been out the night before with friends. He said that he had had a lot to drink. In essence, Respondent's description indicated he was hung over. On the morning of January 18, 2001, as they drove to school Respondent was very chatty. He was talking about the evening before when he celebrated the birthday of his friend. On January 18, 2001, Respondent conducted his 8:30 a.m. class, at Chiefland Elementary. Early in the morning on the date in question Respondent went to the office of the principal of Chiefland Elementary School, Michael Ice. While in the office Respondent handed Mr. Ice a piece of paper stating that the paper had been put in his mailbox and he believed it belonged to Mr. Ice. Respondent then left. The paper was a letter which had been written from Respondent to Mr. Ice requesting Mr. Ice to check into Respondent's user I.D. and password for the school computer system used to enter grades. The letter was from October 2000. Although Mr. Ice considered the provision of the letter at that time as being "kind of strange," Mr. Ice called the school data center to inquire about the matters set forth in the correspondence. Mr. Ice was told that there was nothing wrong with the user I.D. and password. Under the circumstances Mr. Ice decided to go to Respondent's classroom to talk to Respondent about the letter. When Mr. Ice arrived at Respondent's classroom the students in attendance were getting ready to leave the music class. Their regular teacher was coming to pick them up. Once in the room Mr. Ice showed Respondent the letter and asked what it was about, any why was Respondent asking him to respond to something that was from earlier in the year. Respondent asked the principal to come from the classroom into Respondent's office which is connected to the classroom. Once in the office Respondent asked the principal to look at his desk. The principal complied. Then Respondent asked the principal to come out with Respondent into the classroom. Once they returned to the classroom Respondent put his hands up in the air and said "and this is my classroom." Mr. Ice observed the Respondent to be "a little giddy." Mr. Ice questioned the Respondent in more detail about the letter and asked Respondent to go back to the principal's office and talk about it. Then Respondent started telling the principal about Respondent's alarm clocks, that he had three alarm clocks that he was having problems with and that he was having a problem with an alarm system at his house. Respondent remarked about something with his telephones. Respondent was going on and on about those subjects. None of those topics was in relation to the reason for the principal's visit to Respondent's classroom. Those extraneous remarks were unsolicited. Mr. Ice considered that there was a problem with Respondent and realizing that another class would be coming into the music room within 5 to 10 minutes, he asked Respondent to stay in the principal's office while he arranged to contact the next teacher bringing students to the music room and instruct the teacher to not escort the students to Respondent's classroom. Respondent did not conduct his next class. Mr. Ice also believed that he needed to call the School District's Director of Personnel, Dr. Leila Pratt. Mr. Ice called Dr. Pratt and explained his perceptions of the problem with Respondent and she agreed to come to the school. The reason why Mr. Ice called Dr. Pratt was that he had smelled an odor on Respondent's breath, that Respondent had slurred speech and that Respondent was believed to be under the influence of drugs or overly medicated. Respondent came back to the principal's office. Once in the principal's office Mr. Ice asked Respondent to be seated and Respondent sat down while they waited for Dr. Pratt to arrive. Somewhere between half an hour and 45 minutes after Respondent arrived at Mr. Ice's office, Dr. Platt arrived at the school. In the interim, Mr. Ice asked Respondent if he was taking something or if he was on something. Respondent took a metal pill box and opened it up and showed its contents to Mr. Ice. Mr. Ice observed about half a dozen different kinds of pills in the box. Mr. Ice remembers the Respondent telling him that one pill was Ritalin and one was Phenergan, both items that had been prescribed for Respondent. Respondent did not specify among the pills that he showed Mr. Ice which pills he was taking. While waiting for Dr. Pratt to arrive Respondent began to get really sleepy. He would lean back. He would talk to the principal with his eyes closed and his speech became slower and sometimes slurred. Dr. Pratt arrived at the school around 10:30. After Dr. Pratt arrived Mr. Ice went with her to a separate room from Respondent to discuss the situation. Upon returning to the room where Respondent was, Dr. Pratt heard Respondent talking about his medication and about his alarm clocks. She observed his speech as very slow and deliberate, giving the appearance that Respondent was having difficulty concentrating and focusing on what he was saying. Dr. Pratt observed the pills laid out by Respondent. Dr. Pratt asked Respondent if he was seeing more than one physician, given the number of drugs that she observed. She wanted to know whether Respondent's physicians were aware of the drugs being prescribed by the other physician. Respondent was able to respond appropriately to questions asked but he interjected things that were irrelevant to the conversation. Dr. Pratt decided that she would call for a drug test of Respondent to determine his condition. She contacted a facility in Ocala, Florida, that was affiliated with the school district to have that group send someone over to administer a drug test to Respondent. Respondent had expressed the desire to go back to his classroom but Dr. Pratt and Mr. Ice did not feel that that was an appropriate choice. Respondent wanted to get his belongings. He left to accomplish that task. That moment was when the decision was made to have Respondent drug tested. The basis which Dr. Pratt had for having the test performed was her concern about his capability to teach that day based upon his slurred speech and difficulty concentrating. She believed that something he was taking had impaired his functioning. When the subject of the drug test was brought up with Respondent, at first he said that he would not take the test and that he would rather resign his position at the school. He was allowed to talk to the union representative outside the presence of the school administrators on the subject of the drug test. After that conversation he indicated his willingness to take the test. Eventually he refused, stating that to take the test was against his principles. The person to perform the drug test did not arrive until around 1 p.m. to 1:30 p.m. Before the arrival Respondent appeared very sleepy and put his head down on the desk in the principal's office where he had returned. While Mr. Ice and Dr. Pratt continued to talk, Respondent would involve himself in the conversation by discussing matters that were not relevant to the conversation. Believing that Respondent was uncomfortable sitting in the principal's office, Mr. Ice asked the Respondent if he would rather go to Ms. Yon's classroom. Ms. Yon has a small classroom and a private office adjacent to the classroom. Respondent agreed to go to Ms. Yon's room. He was escorted to that room. Respondent left Ms. Yon's office and went to the classroom of Mary Kay Warner, a third grade teacher. Ms. Warner has taught elementary education at Chiefland Elementary for about 18 years. Ms. Warner encountered Respondent in the hall around 12:30 p.m. After a few casual remarks Ms. Warner invited Respondent to come to her room and watch a science demonstration. While in the hall Ms. Warner describes Respondent's demeanor as being "rather sad." She assumed that he was "down in the dumps." Once in Ms. Warner's room Respondent sat down at a table and the science demonstration commenced with the students. Respondent began to say things and ask questions and to participate in the demonstration. Respondent encouraged Ms. Warner to call on a particular student and then asked some questions about some of the statements Ms. Warner made during the demonstration. Respondent commented that it was hot in the room. Respondent asked some questions about a mistake Ms. Warner made concerning telephone wires as contrasted with electrical wires. Ms. Warner had not anticipated Respondent being part of the science demonstration. When Respondent would interrupt the presentation Ms. Warner tried to go along with what he interjected to make the lesson appear normal for the children. It was not normal. At some point Ms. Warner began to notice that Respondent "was not himself." She was concerned that Respondent might be embarrassed in front of the students and she did not wish the children to know that Respondent was experiencing problems. In addition to commenting about its being hot in the room and asking Ms. Warner if she thought it was hot in the room, Respondent sat in her chair and rolled the chair across the room. Having become concerned about Respondent's conduct, Ms. Warner left the room and contacted a teacher next door. She asked that teacher to have an administrator intervene in a manner that would not involve Ms. Warner asking Respondent to leave the room and be overheard by the students. Ms. Warner made this arrangement out of concern that she did not know how Respondent would act if she asked him to leave the room. Ms. Warner took the children to the playground, telling them they were going to recess. It was not the normal time for recess. Although this departed from the normal routine the children did not seem to realize that there was a problem with Respondent. Respondent left Ms. Warner's class after the children had departed. Later in the day Respondent spoke to Ms. Warner and said, "Did you narc on me? Somebody narced on me." Mr. Ice is the administrator that went to Ms. Warner's classroom to escort Respondent from the room. He observed Respondent sitting at Ms. Warner's desk looking very tired, his eyes opening and closing. Mr. Ice told Respondent that they needed to go back to the principal's office and they did. When Mr. Ice and Respondent returned to the principal's office, Mr. Ice expressed the opinion that Respondent would not be capable of teaching his classes at that juncture. That opinion is accepted. As a consequence another portion of Respondent's class schedule for the day was cancelled. After returning to the office the person to administer the drug test arrived. In that context Dr. Pratt explained the school district's policy that if Respondent did not take the blood test to detect drugs, his refusal would be considered as an indication of a positive result in the test. Ultimately when Respondent declined the drug test, Mr. Ice told Respondent that given his condition Respondent was going to have to leave the school campus. Arrangements were made with Ms. Yon to take Respondent home. Respondent initially agreed to leave the campus with Ms. Yon. Respondent went to the door of the principal's office after Ms. Yon left to go to her car. Respondent bumped into a metal folding chair at the door, sat down in it and said that leaving was against his principles and he was not going to leave. He repeated those remarks. He was kind of slow-moving at that point in time and a little bit defiant. Respondent kept drinking water as he had been and commented that his throat was very, very dry. He had taken off his shoes as he was sitting there. He moved from the metal chair back to a small table in the principal's office and sat down at that location. Others pleaded with Respondent to leave, to just go home with Linda, referring to Ms. Yon. Respondent kept saying "No," it was against his principles. Having refused to take the drug test, having refused to go home with Ms. Yon, Mr. Ice told Respondent that he was going to have to call the city police and have the police remove Respondent from the campus. Dr. Pratt agreed with this choice. Respondent still would not cooperate. Mr. Ice called the Chiefland Police Department and Officer Russ Hamm was dispatched to the school. A conversation ensued between Mr. Ice and Officer Hamm in which it was agreed that Officer Hamm would try to persuade Respondent to leave. Officer Hamm made a considerable effort to persuade Respondent to leave the campus. There was a concern that Respondent be gone from the campus before the school ended to avoid students seeing Respondent in his state. Finally when it was decided that Respondent would have to be physically removed, he did not cooperate with that choice either. Officer Hamm told the Respondent that he was under arrest and that he was going to be placed in handcuffs. Respondent said no, that he did not have to comply. While Officer Hamm was putting the handcuffs on Respondent, the Respondent did not cooperate and had to be wrestled to the ground. In effect one handcuff was placed on Respondent and Officer Hamm had to wrestle the other arm around and get the second arm handcuffed. This took place over a minute or two. Officer Hamm had spent 10 to 15 minutes trying to persuade Respondent to leave before making the arrest for trespassing. Once outside, Respondent refused to get into the patrol car. This prompted Officer Hamm to use a taser gun which gained Respondent's cooperation. Officer Hamm tried for several minutes to persuade Respondent to get into the patrol car before using the taser gun. In that time Officer Hamm told Respondent that school was about to let out and there was no reason to excite everyone and have all the kids seeing Respondent in handcuffs given that he was a teacher. Respondent was then taken from the campus in the police car. He departed around 2:00 p.m. Had Respondent cooperated with the officer, he would have been placed in the patrol car and driven from the campus before the bell rang concluding the school day. The consequence of Respondent's acts, not cooperating in the attempt by Officer Hamm and the school administrators to escort him out the back door before the school day ended and into the police car, and away from the school, was that the students were able to see Respondent being placed in the police car. Mr. Ice observed that Respondent was able to comprehend the nature of the discussions on the date in question concerning the questions and answers related to Respondent's state. To that extent Respondent was coherent. Mr. Ice expressed the opinion that Respondent, based upon his observation, was unable to perform his functions as a School Board employee on that day and that he was incapacitated to the extent of being incapable of doing his job and should not have been in the presence of children. That opinion is accepted. Mr. Ice received questions from teachers and staff members about the incident but not from parents. The record does not reveal that the questions related to Respondent's future effectiveness as a teacher. Mr. Ice expressed the opinion that Respondent's behavior created a condition that would be harmful to the students' learning at Chiefland Elementary. Specifically, Mr. Ice expressed the opinion that a teacher under the influence of something in front of children undermines what is trying to be accomplished in their education. That opinion is accepted. Dr. Pratt did not have any contact from parents concerning the incident nor from teachers or staff. Persons at the school district office were aware of the incident. Dr. Pratt expressed the opinion that Respondent lost his effectiveness as a teacher, given that the community in which Respondent taught was small in size. Dr. Pratt points out that several teachers were involved in this incident and the kids were being dismissed from the school at the time that Respondent was being placed in the police car. Mr. Ice when asked whether Respondent would be an effective teacher after the incident on January 18, 2001, testified "I don't know. I don't know if he could." By contrast Mr. Ice executed a form involving prospective employment provided by the School Board of Alachua County dated April 18, 2001, speaking of Respondent's excellence as a teacher. Respondent was no longer employed at Chiefland Elementary following the January 18, 2001 incident. In explaining the reference provided to Alachua County, Mr. Ice indicated that he did not want to see Respondent's life ruined and considered the items in the personal reference form to be related to Respondent's abilities in the classroom. Mr. Ice would not wish to have Respondent return to Chiefland Elementary, given the assumed knowledge of the community about the events of January 18, 2001. Mr. Ice is not certain if the conduct displayed by Respondent on January 18, 2001, would happen again. Generally speaking, Mr. Ice has expressed the opinion that if the circumstances evidenced on the date in question could be addressed, Mr. Ice feels that Respondent could be an effective teacher elsewhere. Respondent admits that he had taken prescribed medication the same day he drank alcohol. That date was January 17, 2001. He took medication the next morning. He did not specify the medication by name that he took on those dates. Respondent's claim that he "blacked out" and that he is not certain what happened after the principal visited his classroom is not believed. The facts that Respondent does remember and testified about beyond the encounter early in the morning in his classroom with Mr. Ice belie that claim. In particular, Respondent's rather detailed explanation of what transpired in Ms. Warner's classroom in which he acknowledges participating in the lesson, raising his hand, rolling in the chair across the classroom, telling Ms. Warner to call upon a certain student and the students being removed from the classroom confirm his awareness of later events in the day. The remarks attributable to Dr. Godbey in his sworn statement concerning the adverse effect which the medication prescribed would have on Respondent in combination with alcohol, particularly their influence on Respondent's conduct are matters of conjecture. He made assumptions about the combination of drugs and when they were taken through an hypothesis, that is not precisely grounded on facts established in the record. Even if one accepts that the medications and alcohol led Respondent to act in the manner found in the facts, it does not excuse his conduct. Respondent determined to take the medications in a combination that is not clear from the record and to mix them with alcohol, when he had been specifically warned by Dr. Godbey that he should not drink alcohol, which when mixed with the anti-depressant drugs prescribed creates a problem. Dr. Godbey goes so far in his treatment summary as to explain the January 18, 2001 incident by report to the doctor from another source (presumably the North Florida Regional Medical Center) as a psychotic episode. At the same time Dr. Godbey acknowledges that the exact cause of the psychotic episode has remained uncertain. Nothing in the diagnosis within the treatment summary by Dr. Godbey or other remarks attributable to the doctor reveals that Respondent's illness is such that it compelled him to act in the manner evidenced on January 18, 2001. On the topic of alcohol, in receiving advise from Dr. Godbey, whether Respondent was told merely not to drink because he does not handle alcohol well, or was told not to drink in combination with medication he was taking, is not important. What matters is that Respondent of his own volition chose to drink the alcohol and combine it with medication leading to the results that have been explained in which his conduct on January 18, 2001, was reprehensible and inexcusable. Mr. Doyle remains in treatment by Dr. Godbey. He is presently taking psychotropic medication that does not appear to interfere with his cognitive functions, nor present an impediment to his ability to teach. As of February 17, 2003, Respondent was still being treated by Dr. Godbey through individual psychotherapy in addition to the prescription of psychotropic medications. From another perspective Respondent was taken to the North Florida Regional Medical Center in Gainesville, Florida, following the episode in question. The impression of that facility was that the Respondent evidenced acute altered mental status with psychosis and acute polysubstance abuse. A urine toxicology screen performed during his stay at that facility revealed Respondent was positive for amphetamines, positive for benzodiazepines, positive for opiates, and positive for tricyclics. Leaving the Scene of an Accident Without Injuries Respondent was charged in the County Court of the Eighth Judicial Circuit for Alachua County, Florida, Case No. 98-02397-TC-A, State of Florida vs. Troy Kevin Doyle. The offense charged was leaving the scene of an accident without injuries in violation of Section 316.061, Florida Statutes. The offense occurred on July 4, 1998, in Alachua County, Florida. On October 1, 1998, Respondent pled nolo contendre to the offense in open court. In that plea, which the Court found to be freely, knowingly, and voluntarily entered, a stipulation was reached by the parties acknowledging damage to property other than to Respondent's vehicle. It was explained and Respondent acknowledged that the maximum sentence in the case was sixty days in jail, as well as a $500.00 fine. When the matter was concluded, Respondent did not have any questions or any statement in opposition to the plea which was arranged in his presence. Neither did his attorney. The judge found Respondent guilty and withheld the adjudication and placed Respondent on court-supervised probation for a period of six months. There was no requirement to report during the probationary period. Respondent was also ordered to pay court costs in the amount of $244.00. Respondent was required to complete 20 hours of community service and provide proof of that service. Subsequently, Respondent completed an application for renewal of his professional Florida Educator's Certificate. That application for renewal was made on October 19, 2000. The signature on the application was notarized. It stated a reminder to Respondent of the consequences if he did not make certain that the matters contained in the application were true, correct, and complete and the consequences if Respondent was not forthcoming in his answers to the questions within the application, wherein the application form stated, "I understand that Florida Statutes provide for revocation of an Educator's Certificate if evidence and proof are established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct, and complete." Within the application was a question which stated: Have you ever been convicted, found guilty, had adjudication withheld, entered a pretrial diversion program, or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation)? Failure to answer this question accurately could cause denial of a certificate. A YES or NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge. Please attach a separate sheet if you need more space. Report any record other than SEALED or EXPUNGED records in this section. Notwithstanding the fact that Respondent had been found guilty and had adjudication withheld following a plea of nolo contendre to the offense involving Section 316.061, Florida Statutes, he did not acknowledge the plea and provide further information. The offences related to Section 316.061, Florida Statutes, are misdemeanors of the second degree, crimes punishable as provided in Section 775.02 or 775.03, Florida Statutes. Respondent, in his testimony, indicated that no one told him what was meant in the application to renew his teaching certificate concerning the question pertaining to criminal offenses where it exempted the reporting of minor traffic violations. It was not necessary that the application further define "minor traffic violation." It suffices that Respondent appeared in the County Court for Alachua County, Florida, in a criminal case and entered a plea of nolo contendre to an offense involving a misdemeanor of the second degree. Nothing in that process would reasonably lead Respondent to conclude anything other than the fact that the case before the court was more serious than a minor traffic violation. When Respondent answered the question in the application in the negative, he failed to answer the question candidly. He did this in a setting in which he knew or should have known that adverse consequences would pertain for providing a negative response to the question. If Respondent was unsure what was meant by the question which refers to a minor traffic violation being exempt from disclosure, he should have inquired as to the meaning. The hearing record does not reveal that he made inquiry to clarify the meaning of that term before completing the application. Prior Performance When classroom teacher evaluations were performed on March 17, 1998, and March 30, 1999, Respondent was found to meet proficiency or above the expected level of performance. In the school year 1999/2000, optional performance appraisal form dated May 12, 2000, Respondent had been rated as having exemplary overall performance.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered which finds Respondent in violation of Count 1, and Counts 3 through 6; dismisses Count 2; and revokes Respondent's educator's certificate for a period of two years. DONE AND ENTERED this 16th day of July, 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2003.
The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(j), Florida Statutes (2013), and Florida Administrative Code Rule 6A-10.081(3)(a) and (3)(e) with respect to her treatment of an autistic child in her classroom. If so, then the appropriate penalty for her conduct must be determined.
Findings Of Fact Respondent is a teacher in the State of Florida. She holds Florida Educator’s Certificate 952211, covering the areas of elementary education, English for speakers of other languages (ESOL), and exceptional student education. Respondent’s certificate is valid through June 2016. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an autism spectrum disorder (ASD) teacher at Maplewood. Ms. Newton has been involved in teaching in Marion County since 1999. She started as a teaching assistant, then substitute taught while putting herself through school, then obtained her bachelor’s degree in varying exceptionalities and began teaching full time. She also received her master’s degree in 2007 in the area of interdisciplinary studies in curriculum and instruction. With the exception of an internship at Oak Crest Elementary, all of Ms. Newton’s teaching experience was at Maplewood. Her performance evaluations from the 2004-2005 school year through the 2012-2013 school year all contain at least satisfactory ratings, with the majority of the recent evaluations rating her as highly effective or outstanding, depending on the evaluation tool used. The majority of her evaluations reference her excellent classroom management skills. At the beginning of the 2013-2014 school year, Maplewood received an entirely new administrative team. Laura Burgess was the new principal, Claire Smith and Brian Greene were newly- appointed assistant principals, and Doris Tucker was the new dean. The new administration started at Maplewood in July, approximately a month before the beginning of the school year. Ms. Newton had been teaching and continued to teach autistic students. At the beginning of the school year, she was assigned six students in her self-contained classroom, and had the assistance of one teacher’s aide, Susanne Quigley. Ms. Newton believed strongly in the value of a structured, disciplined classroom, especially when dealing with autistic students. She believed that establishing the rules and routine for the classroom created an environment where any child could be taught, but that without structure and adherence to routine, chaos would result and impair the learning process. Her classroom management skills were well known and in past years, well respected. Both Ms. Newton and Ms. Quigley testified about the assistance she was asked to give to other teachers and students with respect to class management and discipline. Their testimony is credited. After the start of the school year but before September 3, 2013, Laura Burgess, Maplewood’s principal, was notified by the Social Services Education Team (SET team) for the District that Maplewood would be receiving a new student, B.L., who had moved to the area from North Carolina. She also received an Individualized Education Program (IEP) for B.L., which listed his disability as autism spectrum disorder. B.L.’s IEP also indicated that he had problematic behaviors that could impede his learning, including oppositional defiance disorder, tantrums, attention deficit disorder, and extreme violence. The documentation provided to her did not include a behavioral intervention plan, and Ms. Burgess was concerned that B.L.’s placement at Maplewood did not match the needs identified in the IEP. However, she determined that Ms. Newton’s class would be the best placement for B.L., because Ms. Newton had a reputation for having a structured and disciplined classroom, and perhaps B.L. would benefit from that kind of structure. Ms. Burgess saw Ms. Newton that morning and told her that she would be receiving a new student. Ms. Burgess described the issues with the child, and said that if he ended up in Ms. Newton’s class, she should document his behaviors in case he needed to be moved to a therapeutic unit for behaviors (TUB unit). Ms. Newton understood from the conversation that Ms. Burgess believed B.L. should be in a TUB unit, which did not exist at Maplewood. However, later in the day Ms. Newton and her aide, Susanne Quigley, were supervising her students on the playground when she was approached by Claire Smith, one of the new assistant principals. Ms. Smith informed her that B.L. would indeed be placed in her class and gave her a copy of his IEP, with certain portions related to his behavior highlighted. Ms. Newton expressed surprise at the placement, thinking that he would be going to the TUB unit. Ms. Smith had met with B.L. and his mother earlier in the day and felt that he could benefit from Ms. Newton’s structured classroom. She also talked to Ms. Newton about documenting his behaviors should a change be necessary. Ms. Newton was concerned about the addition to her classroom because she already had six autistic students and, with respect to B.L.’s identified behaviors, “we’ve never had a child like that at Maplewood.” Nonetheless, B.L. was placed in her classroom on September 3, 2013. Consistent with her usual practice, Ms. Newton began to teach B.L. the rules of her classroom. For the first two days, there were no major problems. There were instances where B.L. did not want to comply with the directions she gave him or follow the rules of the classroom, but with some coaxing, she was able to get him to comply. Ms. Newton did not see the need to call the front office for assistance on either of the first two days B.L. was in her classroom, but then, Ms. Newton had never called the front office for assistance with any child. At the end of the first day, she had the opportunity to speak with B.L.’s mother briefly when she picked him up from school. After Ms. Newton introduced herself, B.L.’s mother basically confirmed the contents of the IEP. According to what B.L.’s mother told Ms. Newton, B.L. had lived previously with his father and there had been issues both at school and at home with disruptive and violent behavior. Ms. Newton told her they were going to “wipe the slate clean” and asked if there was anything that B.L.’s mother wanted Ms. Newton to work on, and she identified B.L.’s behaviors as an area for improvement. Ms. Newton told B.L.’s mother that Maplewood was a great school, and “that would happen.” B.L.’s third day at Maplewood did not go well. At the very beginning of the day, B.L. would not follow directions to stand with the rest of his classmates at their designated spot after getting off the bus. Instead, he plopped down in the middle of the walkway, in the midst of the area where children were trying to walk to their classes. He had to be coaxed all along the way to get to class, and once there, refused to unpack and sit down. He refused to follow any direction the first time it was given, instead responding with shuffling feet, shrugging shoulders, talking back, calling names, and wanting to lay his head down on his desk instead of participate in class. When it was time for the students in the class to go to art, Ms. Quigley normally took them while Ms. Newton attended to other responsibilities. According to Ms. Quigley, B.L. did not want to go to art class, and had to be coaxed to walk with the others to the art room. Once he got there, he did not follow directions, did not want to participate, and did not want to move from the back of the room. Normally, Ms. Quigley might have let him stand and watch if he remained quiet, but he was not being quiet: he was touching things and grumbling and getting angry. Ms. Quigley knew from prior experience that students with autism tend to mimic the bad behavior exhibited by others, and one child’s actions could cause a chain reaction of bad behaviors. She felt that if she did not remove him from the art room, the other children would also start to misbehave, and she did not want them to follow B.L.’s example. Ms. Quigley took B.L. out of the art classroom and went back to the classroom in search of Ms. Newton. Ms. Newton was not in the classroom, as she was attending to other responsibilities. Ms. Quigley then took B.L. to the office, but again, found no one there to assist her. B.L. was not happy during any of these travels, and again had to be coaxed all along the way. Once she got back to the art class, Ms. Quigley had B.L. stand in the back of the classroom. She was trying to watch him and also attend to the other students, but one of the other students knocked everything off the art table, so Ms. Quigley added clean-up to her responsibilities. At that point, Ms. Newton came into the art room. Ms. Newton took both B.L. and the other misbehaving child back to the classroom while Ms. Quigley stayed with the remaining students for the rest of the art period. What remained of the afternoon became a battle of wills between Ms. Newton and B.L.: Ms. Newton was trying to establish the ground rules for behavior in her classroom with B.L., and B.L. was determined not to follow those rules. The result was Ms. Newton spending the bulk of the afternoon with B.L. and Ms. Quigley attending to the needs of the other students in the class. For at least part of this time, Ms. Newton placed B.L. in time-out, with directions that he was to stand still with his hands to his sides. For Ms. Newton, the purpose of time-out is for a student to gather his or her thoughts, to get himself or herself together, and to remind the student of the rules of the classroom. She wants a student to have time to think about his or her actions, and wants to discuss with the student the nature of the problem presented by his or her behavior and how the problem should be resolved. If a child stops behaving, time-out may begin again. Ms. Newton put B.L. in time-out because he was not following her directions to him. She talked to B.L. about the rules of the classroom and where they are posted in the room, and told him what he needed to do. B.L. is very verbal and able to talk about his issues. Ms. Quigley described him as very high-functioning and not on the same level as other children in the classroom. Instead of responding appropriately, B.L. was calling names, talking out, and using curse words; flailing his arms and legs, wrapping himself in his sweatshirt so that his arms were in the body of the sweatshirt as opposed to in the armholes, and covering his face so that he could not see obstacles in his environment; wandering around instead of staying still; kicking things in the classroom, including a box and a door; throwing objects on the floor, rolling around on the floor and spitting; and generally resisting any instruction. During the course of the afternoon, Ms. Newton attempted to show B.L. what she wanted from him. For example, she demonstrated how she wanted him to stand in time-out by holding his arms in the area close to his wrists to demonstrate standing still with his hands down. B.L. repeatedly resisted this direction and tried to break away from Ms. Newton. B.L. was not only resisting her, but at times appeared to be butting his head against her and kicking her. He was at other times rubbing his hands against his face. Ms. Newton told B.L. he needed to stop rubbing his hands over his face, or she would remove his glasses so that he did not hurt himself with them. When B.L. continued his resistant behaviors, she removed his glasses and eventually put them in his backpack. B.L. continued to lightly slap his face with both hands. Ms. Newton did not physically intervene, but testified that she gave B.L. consistent verbal direction to stop hitting himself. Although he clearly continued to slap his face for some time, Ms. Newton testified that the movement was more like a pat than a slap, and she did not believe that he was hurting himself. Her testimony is credible, and is accepted. Ms. Newton also told B.L. to quit flailing his arms and putting his jacket over his head. She was concerned that he could hurt himself given that he was standing (not still, as directed) near the corner of a table. Ms. Newton told him if he did not stop she would take his jacket from him. He did not and she removed his jacket and placed it on a table in the classroom. She did not give B.L. the jacket back when he wanted it, because she wanted B.L. to understand that there are consequences to not following directions. With approximately 30 minutes left to the school day, Ms. Newton asked Ms. Quigley to call the front office for assistance. Ms. Tucker, the dean at Maplewood, came to her classroom. Before Ms. Tucker’s arrival, Ms. Newton was trying to get B.L. to stand in the back of the room. He was not following directions and had gone over to sit in a chair near the center of the room. The chair was near a free-standing easel with teaching implements attached to it, and it is reasonable to assume, given B.L.’s behavior, that Ms. Newton did not want him near the easel because of the potential for harm. Each time he went to the seat, Ms. Newton directed him away from it. When Ms. Tucker arrived, he once again sat in the chair he had been directed not to use. Ms. Newton removed him from the chair and told him again he was not to sit in it. B.L. immediately went to another chair in the same vicinity and sat down. Ms. Newton, took him by the arm and away from the chair, and took him out of the room. From Dean Tucker’s perspective, B.L. was just trying to sit in a chair. From Ms. Newton’s perspective, this was just one more instance in a litany of instances where B.L. was refusing to follow her directions. Dean Tucker was outside the room with B.L. when the door closed. B.L. starting kicking and beating on the door, screaming that he wanted in, and opened the door. Ms. Newton placed her arm on his chest and pushed against him to keep him from entering the room, and asked Ms. Tucker to lock the door from the outside, which she did. B.L. continued to kick and beat at the door, and Dean Tucker called assistant principal Greene to assist her. When Mr. Greene arrived, B.L. was still kicking at the door. He kept saying that he wanted in the classroom but would not say why. Eventually Mr. Greene was able to calm B.L. enough to find out that he wanted his backpack. Because it was close to the end of the day, Mr. Greene took B.L. to the office but instructed Ms. Tucker to retrieve his backpack from Ms. Newton’s classroom. Ms. Tucker returned to Ms. Newton’s classroom to retrieve the backpack. Ms. Newton expressed frustration at the decision to return the backpack to B.L., saying that meant “he won.” From Ms. Tucker’s and Mr. Greene’s perspectives, returning the backpack to him made sense, in part because they were not aware of the exchange related to the backpack earlier, and in part because it was close to the end of the day and B.L. would not be returning to the classroom that day. From Ms. Newton’s perspective, the backpack had been taken from B.L. because she had told him she would take it if he did not comply with her directives, and he did not do so. She felt that returning the backpack to him at that point was ensuring that B.L. had no consequences for his bad behavior. After completing their end-of-day responsibilities, Mr. Greene and Ms. Tucker returned to the classroom to speak to Ms. Newton about B.L. Ms. Newton told them that he had been out of control all day, kicking boxes, pushing chairs, and a danger to himself and others. She stated that it was only B.L.’s third day in the classroom and it would take some time to live up to expectations, but that he knew the rules and knew how to follow them. Mr. Greene felt that Ms. Newton was clearly upset with both him and Ms. Tucker with respect to how B.L. was handled. Ms. Newton asked whether B.L.’s parent had been called, and felt that his parent should have been contacted as part of addressing B.L.’s behavior. After speaking to Ms. Newton, Mr. Greene and Ms. Tucker pulled the videotape for the afternoon in Ms. Newton’s classroom. After scanning through the tape, Mr. Greene went to Ms. Burgess and asked her to view it because the tape’s contents concerned him. Once she did so, Ms. Burgess called Lisa Krysalka, the head of human resources for the District, and after discussion with her, called both the Department of Children and Families and the local sheriff’s office. She also spoke to Ms. Newton and told her she was to report to the District office the following day, and called B.L.’s parent. Rose Cohen investigated the matter for the District, which included speaking to Ms. Burgess, Mr. Greene, Ms. Newton, Suzanne Quigley, and a Ms. Ballencourt, and watching the video. Adrienne Ellers, the lead behavior analyst for the District, was asked to watch the video and to identify any deviations from the TEACH program for student management accepted by the District. Ms. Cohen recommended to the superintendent that Ms. Newton’s employment be terminated, and the superintendent presented that recommendation to the School Board. Ms. Newton appealed the recommendation and a hearing was held before the School Board, which included a viewing of the video of her classroom. The School Board rejected the superintendent’s recommendation for termination by a 3-2 vote. However, Ms. Newton did not return to Maplewood. No evidence was presented to indicate that the Department of Children and Families determined that there was any basis for a finding of child abuse or neglect. Likewise, no evidence was presented indicating that law enforcement took any action against Ms. Newton. There was also no evidence to indicate that B.L. was harmed. The focus of much of the evidence in this case dealt with the video from Ms. Newton’s classroom. The video, Petitioner’s Exhibit 1, is approximately two hours long. It is from a fixed position in the classroom and it shows some, but not all, of Ms. Newton’s classroom. It has no sound. There are parts of the video where, due to lighting deficiencies and similar skin color tones, it is difficult to tell exactly what is transpiring. There are also times when either Ms. Newton or B.L., or both, are not fully within the view of the camera, and sometimes they are not visible at all. With those parameters in mind, the video does show some of the interaction between Ms. Newton and B.L. What is clear from the video is that Ms. Newton spends a great deal of time talking to B.L., and that she remains calm throughout the day. B.L. does appear to comply with direction for short periods in the video, but never for very long. The video shows Ms. Newton holding B.L. by the arms; pulling him up both by the torso and by his arms; removing (but not “snatching”) his eyeglasses; removing his jacket with some resistance from him; blocking his access to his jacket; and kicking his backpack away from his reach. It also shows B.L. kicking items in the room, including a large box near where he is standing; rolling around on the floor; flailing his arms and legs around when he is clearly being directed to be still; and generally resisting any attempt at correction. The video also shows that during the time Ms. Newton is focused on B.L., the other students are engaged in learning, and Ms. Quigley is able to work with them without assistance. The Administrative Complaint alleges that “Respondent and B.L. engaged in a tussle which resulted in B.L. falling to the ground.” A more accurate description would be that B.L. resisted Ms. Newton’s attempts to show him how she wanted him to stand, and in his struggling, he went to the ground. It appeared to the undersigned that Ms. Newton was attempting to prevent his going down, but was unable to do so safely. The Administrative Complaint also alleges that Respondent “grabbed B.L. by the back of the neck and gripped B.L.’s neck for approximately 10 seconds.” A more accurate description would be that Respondent placed her hand at the back of B.L.’s neck and guided him with her hand at the base of his neck for approximately 10 seconds. She did not grab him by the neck or hold him that way; it appeared that she was protecting him from falling backwards, as he pulled away from her. Respondent did not, as alleged in the Administrative Complaint, drag B.L. across the floor. She did attempt to get B.L. to stand one of the many times that he flopped on the floor, and he resisted her attempt. In that process, the two of them did move across the floor a short distance, which appeared to be due to B.L.’s pulling away from her, but she was not dragging him across the floor. All of Ms. Newton’s actions were taken in an effort to either instill the rules of the classroom in order to create for B.L. an atmosphere for learning, or to prevent harm to either herself, B.L., or property in the classroom. Ms. Quigley, who was present in the classroom during most of the interchange depicted on the video, was more focused on the other students in the class than she was on B.L. She has seen a portion of the video since the incident. Ms. Quigley recalls hearing parts of the conversation between B.L. and Ms. Newton, and testified that Ms. Newton never lost control with B.L., and understood from what she heard that Ms. Newton was trying to get B.L. to follow the rules. Nothing Ms. Quigley saw or heard caused her any concern. Barbara O’Brien and Christine Spicoche are both parents of former students who testified on Ms. Newton’s behalf. Both acknowledged that they had not seen the interaction between Ms. Newton and B.L.,2/ but both have been in her classroom on numerous occasions during the years that their children spent with Ms. Newton: Ms. O’Brien’s son was in Ms. Newton’s class for six years, while Ms. Spicoche’s son was there for three years. Both expressed a great deal of gratitude for the positive effect Ms. Newton and her teaching methods have had on their sons’ lives. With respect to both children, the mothers testified that their sons went from children who were out-of-control to children who were able to function appropriately both in the classroom and in other places. As stated by Ms. Spicoche, “It would be best for him to be at a strong hand of a loving teacher who cares, who wants the best for him than being at the fist of the legal system later.” At all times, Ms. Newton’s focus was to establish the rules of the classroom so that B.L., like the other students in her classroom, would be able to learn. B.L. was different from the other students in her classroom, and she admitted he was a challenge. However, Ms. Newton’s actions in this case are consistent with her general philosophy for teaching: to be firm, fair, and consistent at all times. Ms. Newton believes that if you do not follow these principles, you have chaos in the classroom, and where there is chaos, no one is learning. With a disciplined, structured environment, Ms. Newton believes every child can learn, and the atmosphere observed in her classroom is consistent with her philosophy. Ms. Burgess chose Ms. Newton’s classroom for B.L. precisely because of her reputation as having a disciplined structured classroom. However, in her view, Ms. Newton should have just given B.L. his backpack when he wanted it; should have given him his glasses; should have let him just walk around the room when he wanted to; and should have just let him kick the door, rather than ever putting a hand on him. Ms. Burgess did not explain (nor was she asked) how many children in the classroom should be allowed to do what B.L. was doing, and whether learning could still take place should each of the children be allowed to wander, kick, and be disruptive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Education Practices Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of November, 2015, 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 25th day of November, 2015.
The Issue The issue is whether Respondent's conduct constitutes just cause for her dismissal from employment with Petitioner.
Findings Of Fact At all times material to this matter, 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 article IX, Section 4(b) of the Florida Constitution and section 1001.32, Florida Statutes. At all times material to this matter, Respondent was employed as a teacher at J. W. Johnson Elementary (Johnson Elementary), a public school in Miami-Dade County, Florida. At all times material to this matter, Respondent's employment was governed by the collective bargaining agreement (CBA) between Miami-Dade County Public Schools and the United Teachers of Dade (UTD), the rules and regulations of the School Board, and Florida law. Respondent holds a professional services contract. Respondent's employment can be terminated for "just cause" as defined by the School Board in the Notice of Specific Charges. Prior to the 2009-2010 school year, Respondent was assigned as a pre-K teacher for non-disabled students. Due to decreased enrollment, Johnson Elementary lost unit allocations for teaching positions that year. In order to prevent some teachers from losing their jobs, reassignments were made of existing personnel to new positions. Of the persons Johnson Elementary Principal Maritza Garcia had available in her pool of teachers, Respondent was the most qualified person to teach a pre-K class of autistic students. Such students are qualified as being "exceptional," and the education of such students is commonly referred to as "exceptional student education" or "ESE." As such, during the 2009-2010 school year, Respondent was reassigned to teach a pre-K ESE class, which was comprised of autistic students. The autistic students are approximately four to five years old. They cannot speak and express themselves, making them even more vulnerable than ordinary students of similar age. Respondent was certified to teach these pre-K ESE students. In addition to holding the proper certification, Respondent was given the opportunity to participate and did participate in classes and trainings, both before the school year began and during the school year, regarding the instruction of ESE students with a particular emphasis on autistic students. Respondent was also assigned a mentor named Claudia Monsalve who provided her with hands-on assistance in the classroom, giving her guidance and support in the instruction of autistic ESE students. Ms. Monsalve met with Respondent one to two times per month and gave her written feedback on how to develop and improve her instruction methods. Ms. Monsalve also administered the pre-school year trainings. The support and training given to Respondent was extensive and no less than any other would have received as a result of being assigned to a similar classroom situation. Although not testifying on her own behalf, Respondent submits that she was "essentially abandoned" in the classroom with "no prior training." This argument is not supported by the record. Throughout the 2009-2010 school year, Respondent never requested additional help in her classroom from either the school administrators or Ms. Monsalve. According to Ms. Monsalve, it was a common occurrence for teachers to request such assistance, but Respondent made no such requests. Had Respondent requested additional support, she could have been provided additional in-service training or the administration could have assigned additional paraprofessionals to her classroom. Absent any requests, this additional help was not provided. In her time mentoring Respondent, Ms. Monsalve never saw her mistreat a child. On May 27, 2010, the principal's office received a telephone call stating that a package would arrive in the principal's mail that day. A package did arrive, was opened by the principal, and contained both a letter and a DVD. The unsigned letter contained criticisms of Respondent's pre-K autistic class, alleged "verbal and physical abuses" having occurred in the classroom, and referenced the enclosed DVD in support of the allegations. The person or persons who sent the letter have not been identified. School administration denies that it planted the camera that recorded the DVD, and it is more likely than not that a concerned parent placed the camera in the classroom. It is believed the recording was made in May 2010 from the dress of the students and other factors identified by administration. The principal viewed the DVD, which is approximately one hour in length. As a result of viewing the images on the DVD, and out of concern for the safety and welfare of the children in the class, the principal asked the school police to conduct an investigation. By letter dated June 3, 2010, the principal notified Respondent that she was being investigated based on the conduct shown on the DVD. The complainant was listed as unknown. One of the paraprofessionals assigned to Respondent's classroom, Marcia Dominguez, viewed the DVD and testified the footage was recorded on a Wednesday, in early to mid-May 2010. She determined this based upon her appearance in the video, the children present in the video, the state of the classroom, the clothing she and the other paraprofessional were wearing, and the activities occurring that day in the classroom on the day depicted on the DVD. The DVD shows numerous inappropriate actions taken by Respondent, including yelling and scolding the students, using harsh language and referring to their disabilities in a derogatory manner; pulling, jerking, swatting, and striking the students (one on the hand and forearm, one on the bottom), with both an open hand and a stick or classroom pointer; and brandishing a ruler and a stick, which she used to strike classroom furniture and intimidate the students. In addition to what can be viewed on the video, there are instances of other inappropriate behavior that can only be heard or inferred by the viewer. A sound like slapping can be heard, although not seen due to the camera being obscured. It is reasonable to assume the slapping is either of a child or furniture in the classroom. The behaviors and actions exhibited by Respondent in the video are beyond any reasonable explanation and depict Respondent as not being in control of her classroom. None of the actions described above may be considered appropriate behavior for a teacher. At the conclusion of the investigation, a conference was held between one of Petitioner's administrators, Respondent, and Respondent's representative. At that conference, Respondent was directed to refrain from contacting any parties involved in the investigation. Respondent violated this directive and called Ms. Dominguez on numerous occasions. Ms. Dominguez told Respondent she could not discuss the case with her while it was under investigation. The result of the investigation was a probable cause finding against Respondent for violations of the School Board and State Board of Education rules. Based upon the results of the investigation, the superintendent of schools recommended termination of Respondent's employment. The CBA specifically addresses the procedures for handling anonymous complaints made against School Board employees. Petitioner took no steps to ascertain the identity of the complainant who authored the anonymous letter and provided the DVD to the principal. The CBA clearly states that no investigation of allegations of misconduct against an employee shall be made on the basis of an anonymous complaint. The information contained in the anonymous letter and DVD served as the initial basis for the investigation of Respondent. That information was corroborated by the testimony of Ms. Dominguez, who was present in the classroom when the DVD was made. The DVD received by the principal along with the anonymous letter also serves as corroboration of the letter itself. The DVD gives life to the allegations made by the unknown author of the letter. The anonymous letter, by itself, cannot serve as the sole basis for investigating Respondent according to the explicit terms of the CBA. While the source of the DVD is unknown, the evidence supports the fact that the DVD is, in fact, a depiction of Respondent's classroom in May 2010. This is corroborated by the presence of Ms. Dominguez in the classroom and on the video, as well as her testimony at hearing. Dolores Mendoza, Petitioner's supervisor for the pre-K program for children with disabilities, criticized the behavior of Respondent based upon the DVD which was authenticated by the testimony of Ms. Dominguez, the paraprofessional assigned to Respondent's classroom. She candidly admitted that if all teachers were secretly videotaped, most would be seen yelling or screaming at one time or another in class. She admitted that she had yelled and screamed in class on occasion. Teaching pre-K autistic children is difficult. Effectively teaching pre-K autistic students is enhanced by years of classroom experience, and is not honed through only a once-a-month classroom visit or monthly mentoring meetings.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the School Board enter a final order sustaining the termination of Respondent's employment. DONE AND ENTERED this 24th day of January, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 January, 2012. COPIES FURNISHED: Mark Herdman, Esquire Herdman and Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
