The Issue Whether the Department of Revenue has violated the requirements of Section 120.54(1)(a), Florida Statutes, by failing to adopt the June 1998 edition of its Code of Conduct and the July 1995 edition of its Disciplinary Procedures and Standards as rules pursuant to the rulemaking procedures of Section 120.54, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, including the Prehearing Stipulation of the parties, the following findings of fact are made: Facts which the parties admitted and which required no proof1 The Department of Revenue is an agency within the meaning of Section 120.52(1), Florida Statutes. Ms. Obinyan was a career service employee of the Department until she was discharged on January 12, 1999. Ms. Obinyan has standing to challenge the June 1998 edition of the Code of Conduct Guidelines, Department of Revenue Policy Statement #1141-2 ("Code of Conduct"), and the July 1995 edition of the Disciplinary Procedures and Standards, Department of Revenue Policy Statement #1141-9. The Code of Conduct and the Disciplinary Procedures and Standards are official policy statements of the Department. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements of general applicability that are generally and equally applicable to all Department employees and were applicable to Ms. Obinyan when she was an employee of the Department. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements that prescribe and implement policy. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements that are intended by their own effect to require compliance. The Department has a policy and practice of requiring all of its employees to sign a written acknowledgement of receipt of the Code of Conduct and the Disciplinary Procedures and Standards and an acknowledgement that the employee understands that his or her violation of any of the conduct standards contained in the Code of Conduct or in the Disciplinary Procedures and Standards shall be grounds for disciplinary proceedings pursuant to the disciplinary action procedures contained in the Disciplinary Procedures and Standards. It is the Department's policy and practice to require its employees to comply with the procedures and standards reflected in the Code of Conduct and the Disciplinary Procedures and Standards. It is the Department's policy and practice, in administering discipline, to follow the disciplinary procedures set forth in the Disciplinary Procedures and Standards and to apply the disciplinary standards set forth therein to avoid disparity as to the type and severity of discipline administered for the violations specified in the Disciplinary Procedures and Standards. It is the Department's policy and practice to take disciplinary action in accordance with the Disciplinary Procedures and Standards when an employee violates the Code of Conduct or the disciplinary standards contained in the Disciplinary Procedures and Standards. The Department has taken disciplinary action against its employees, including Ms. Obinyan, pursuant to the disciplinary procedures and standards in the Disciplinary Procedures and Standards since its adoption in 1995. The Department has not adopted the Code of Conduct or the Disciplinary Procedures and Standards as rules or initiated the rulemaking process to adopt either of these statements as a rule. Additional facts established by the evidence The Code of Conduct compiles in one twenty-page document both conduct prescribed or proscribed in statutes and rules and conduct which is prescribed or proscribed by Department policy. It is not intended to be all-inclusive, but an employee is subject to disciplinary action if he or she fails to conform to the provisions contained in the Code of Conduct. The proposed Code of Conduct was submitted to the Governor and Cabinet, as agency head, for review prior to implementation. The Department's Disciplinary Procedures and Standards contain forty-five standards, and violation of any of these standards is grounds for disciplinary action. The disciplinary procedures must be complied with whenever discipline is to be administered to career service employees of the Department. The proposed Disciplinary Procedures and Standards were submitted to the Department of Management Services for approval prior to implementation, as required by Rule 60K-9.002, Florida Administrative Code. The proposed procedures and standards were approved by the Department of Management Services after they were reviewed for consistency with the standards of other agencies and after they were submitted to the American Federation of State, County, and Municipal Employees (AFSCME) for review and comment. The Code of Conduct and the Disciplinary Procedures and Standards do not apply to anyone other than the Department's employees and include disciplinary standards and conduct prescriptions and prohibitions unique to those employees. The provisions of the Code of Conduct and the Disciplinary Procedures and Standards are detailed and precisely describe the disciplinary procedures, disciplinary standards, and prescribed and proscribed conduct which govern the Department's employees.
The Issue The issue in this case is whether just cause exists for Petitioner to suspend Respondent without pay from her employment as a teacher for 30 work days.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times material to this proceeding, Respondent was a teacher of emotionally/behaviorally disturbed ("E/BD") students at Jose de Diego Middle School, a middle school within the Miami-Dade County Public Schools. At all times material to this proceeding, Respondent's employment with Petitioner was governed by the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade, Petitioner's policies and rules, and Florida law. Background The incident giving rise to this proceeding occurred on or about January 12, 2012. On that day, three male students in Respondent's class engaged in play fighting and video-recorded their actions on cell phones and an MP-3 recording device. As a result, Mr. Fernandez, the principal of Jose de Diego Middle School, determined that Respondent did not follow established policies and procedures in stopping or attempting to stop the play fighting, and that her failure to do so endangered the safety of the students involved. Accordingly, he recommended that she be suspended from her employment for 30 work days without pay. On May 16, 2012, Petitioner suspended Respondent from her employment for 30 work days without pay. Incident Giving Rise to Charge The incident giving rise to this proceeding occurred during the last instructional block of the day, while the students were engaged in language arts and reading. There were a total of eight or nine students in Respondent's classroom, and they were divided into two groups, consisting of four or five students each, for reading exercises. They were situated in the back of the classroom where they had access to computer terminals. Respondent and a paraprofessional, Ms. Larkin, were also situated in the back of the classroom, working with the students. During this instructional time, Respondent received three separate calls on the classroom telephone from her department head asking about paperwork on one of Respondent's students. The classroom phone is located in the front of the classroom. Each of these calls took Respondent away from her teaching and supervision of the students. Ms. Larkin continued to supervise the groups, but then excused herself to use the restroom. This left the students at least momentarily unsupervised. At this time, three male students, instigated by one student, began to play fight. The persuasive evidence indicates that the students engaged in three separate incidents of play fighting over a period of time lasting several minutes. The other students in the class looked on and did not engage in play fighting. Respondent credibly testified that as soon as she saw what was happening, she immediately hung up the phone and went to the back of the classroom to stop the play fighting, yelling at the students to stop and threatening to write disciplinary referrals to the office; however, they ignored her. Her testimony was closely corroborated by that of D.M., one of the students engaged in the play fighting. D.M. credibly testified that Respondent repeatedly attempted to get the students to stop by yelling at them and threatening to write referrals, but they ignored her. They continued to play fight and recorded the play fighting on two cell phones and an MP-3 device with the stated intention of posting the videos on Facebook, YouTube, and Twitter. Once Respondent saw that the students would not stop, she stepped into the hall to see if a security monitor was on the first floor, where her classroom was located. Seeing none, she called George Coakley, the Dean of Students, to come to her classroom. An emergency button is located in each classroom. This button transmits a call to the main office, which is responsible for responding to the call. Respondent did not use the emergency button to call for assistance because, in her experience, such calls often are not answered. Respondent used the classroom phone to call Mr. Coakley's cell phone. Mr. Coakley had given her and other teachers his cell phone number to, among other things, be used in such situations. At the time of Respondent's call, Mr. Coakley was involved with another matter, and said he would be there as soon as he was finished with that matter. He and Respondent both estimated it took approximately five minutes for him to arrive at Respondent's classroom. At that time, the students disengaged and ran to sit down as he entered the classroom. Before Mr. Coakley's arrival, Respondent wrote referrals on all of the students involved in the play fighting. These referrals were turned over to the main office for disciplinary purposes. Mr. Coakley took the students involved in the play fighting from Respondent's classroom to the main office and turned them over to Principal Fernandez, who confiscated the phones and MP-3 device and ultimately suspended the students from school. The persuasive evidence establishes that there were three separate videos of three discrete episodes of play fighting taken on three separate recording devices.2/ In one of the videos, Respondent and Ms. Larkin are seen sitting at the desk in the front of the classroom while the play fighting is taking place in the back of the classroom.3/ It is undisputed that the videos depict only a portion of the entire incident. The persuasive evidence establishes that Respondent first made efforts, not captured on the videos, to get the students to stop play fighting. Those efforts consisted of going to the back of the room and yelling at the students to stop fighting, then threatening to write and writing disciplinary referrals. She took these actions before looking for a security monitor, then calling Mr. Coakley and awaiting his arrival. Based on the video, Principal Fernandez concluded that Respondent's efforts to stop the play fighting did not conform to the E/BD Crisis Plan Jose de Diego Middle School 2011/2012 ("Crisis Management Plan") protocol applicable to student fights. The Crisis Management Plan requires, in pertinent part, that the teacher immediately contact security via emergency call button, the school administrator, and nearby staff. Principal Fernandez determined that Respondent did not comply with this requirement because she did not use the emergency call button to summon school security to her classroom. However, the persuasive evidence establishes that Respondent did contact school administration——specifically, Mr. Coakley——as soon as she determined that she was unable to get the students to stop the play fighting. Respondent credibly testified that she contacted Mr. Coakley directly instead of using the call button specifically because, in her experience, school security often did not respond to the emergency call button. The Crisis Management Plan also requires the teacher to "separate and isolate" students involved. It does not specifically describe how this should or must be done. Respondent testified that she repeatedly attempted to get the students to stop play fighting by going to the back of the room where they were located, yelling at them to stop, and threatening to write referrals on them. Principal Fernandez testified that Respondent should have said "stop"——which Respondent did. He also testified that she should have "separated and isolated" the students but he did not articulate any specific means that Respondent should have employed short of physically intervening to break up the play fights——an action that arguably may itself have violated Petitioner's corporal punishment policies or may have resulted in Respondent herself being physically injured. Robin Morrison, an Instructional Supervisor with Petitioner's Division of Special Education, testified that Respondent could have used "proximity control" to separate the students, and that in her opinion, based on her viewing of the videos, Respondent did not do this and therefore did not respond appropriately in trying to break up the play fighting. However, as previously discussed, the videos do not depict the entire incident. Thus, Ms. Morrison's testimony is deemed unpersuasive. The persuasive evidence establishes that Respondent did go to the back of the room where the play fighting was occurring and attempted to get the students to stop. Only after it became apparent that they would not comply did she go to the front of the room, where she looked down the hallway to see if a security monitor was immediately available, then called Mr. Coakley on the classroom phone. Findings of Ultimate Fact Misconduct in Office Petitioner has charged Respondent with committing misconduct in office. Misconduct in office is defined in Florida Administrative Code Rule 6A-5.056(3)4/ as: violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system. The Code of Ethics of the Education Profession in Florida, rule 6B-1.001, provides: The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of a democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of community, the educator strives to achieve and sustain the highest degree of ethical conduct. The Principles of Professional Conduct for the Education Profession in Florida, rule 6B-1.006, provides in pertinent part: The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law. Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. * * * The greater weight of the evidence establishes that Respondent made reasonable efforts to protect the students in her classroom from conditions harmful to learning and to their mental and physical health and safety. As addressed above, the persuasive evidence establishes that instead of doing nothing—— as the incomplete video record of the incident appears to depict——Respondent did, in fact, immediately attempt to stop the students from play fighting by going to the back of the room where they were located, ordering them to stop, and threatening to subject them to disciplinary action by referring them to the office. When it became apparent the students were not going to stop despite these measures, Respondent went to the front of the room and looked to see if a security monitor was immediately available. Seeing none, and based on her prior experience of emergency calls going unanswered, she elected to call the Dean of Students, who had given his cell phone number to her and to other teachers specifically for such use. Accordingly, it is determined, as a matter of ultimate fact, that Respondent did not violate rules 6B-1.006 or 6B-1.001, and, therefore, did not commit misconduct in office in violation of rule 6A-5.056(3). Policy 3210 - Standards of Ethical Conduct School Board Policy 3210, Standards of Ethical Conduct, provides in relevant part: All employees are representatives of the District and shall conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. A. An instructional staff member shall: * * * 3. make a reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety[.] * * * As previously discussed, Respondent's actions in attempting to break up the play fighting and contacting the school administration constituted reasonable effort to protect her students from conditions harmful to learning and to their mental health and physical health and safety. Petitioner's sole evidence that Respondent sat by and did nothing consists of an incomplete video record of the incident that was contradicted by the persuasive, consistent testimony of Respondent and D.M., who were present when the incident occurred. Accordingly, it is determined that Respondent did not violate School Board Policy 3210. Policy 3210.01 - Code of Ethics School Board Policy 3210.01, Code of Ethics, provides in pertinent part: All members of the School Board, administrators, teachers and all other employees of the District, regardless of their position, because of their dual roles as public servants and educators are to be bound by the following Code of Ethics. Adherence to the Code of Ethics will create an environment of honesty and integrity and will aid in achieving the common mission of providing a safe and high quality education to all District students. As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education F.A.C. 6B-1.001): The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. * * * Fundamental Principles The fundamental principles upon which this Code of Ethics is predicated are as follows: * * * F. Kindness – Being sympathetic, helpful, compassionate, benevolent, agreeable, and gentle toward people and other living things. * * * Respect – Showing regard for the worth and dignity of someone or something, being courteous and polite, and judging all people on their merits. It takes three (3) major forms: respect for oneself, respect for other people, and respect for all forms of life and the environment. Responsibility – Thinking before acting and being accountable for their actions, paying attention to others and responding to their needs. Responsibility emphasizes our positive obligations to care for each other. Each employee agrees and pledges: To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles. To obey local, State, and national laws, codes and regulations. To support the principles of due process to protect civil and human rights of all individuals. To treat all persons with respect and to strive to be fair in all matters. To take responsibility and be accountable for his/her actions. To avoid conflicts of interest or any appearance of impropriety. To cooperate with others to protect and advance the District and its students. To be efficient and effective in the performance of job duties. Conduct Regarding Students Each employee: A. shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety[.] Petitioner did not prove that Respondent violated Policy 3210.01. The persuasive evidence establishes that Respondent immediately responded to the play fighting by going to the back of the room and attempting to get the students to stop by yelling at them and threatening disciplinary action through office referrals. When these measures were not successful, Respondent followed proper protocol by expeditiously contacting the school administration regarding the matter. As previously discussed, Respondent's conduct did not violate Rule 6B-1.001, the Code of Ethics of the Education Profession in Florida, or the pertinent Fundamental Principles set forth in Policy 3210.01. Also as previously discussed, Respondent's conduct constituted a reasonable effort to protect her students from conditions harmful to their learning and to their mental and physical health and safety. For these reasons, it is determined that Respondent did not violate Policy 3210.01, Petitioner's Code of Ethics. Accordingly, there is no just cause, as required by subsections 1012.33(1)(a) and (6),5/ for Petitioner to suspend Respondent from her employment as a teacher for 30 work days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order rescinding the suspension of Respondent, Thelma Mobley, from her employment as a teacher for 30 work days without pay, and paying Respondent's back salary for the 30-day period for which she was suspended. DONE AND ENTERED this 17th day of April, 2013, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 17th day of April, 2013.
The Issue Whether Respondent met continuing medical education requirements for license renewal in 1988.
Findings Of Fact At all times relevant hereto, Respondent was licensed by the Florida Board of Medical Examiners to practice medicine in Florida. In 1987, Dr. Shah attended a continuing education course at Harvard Medical School during the period March 9-14, 1987, for which she received 48 credit hours in Category I of the Physician's Recognition Award of the American Medical Association. (Exhibit 2) At the time this course was given in 1987 at the Harvard Medical School, risk management credits were not given to the participants unless they were members of the Massachusetts General Hospital professional staff. However, many of the lectures presented at the 1987 Continuing Education Seminar are essentially similar to lectures accredited for risk management in the seminar given March 11-16, 1991. (Exhibit 3) Although only one of the lectures given during the 1987 seminar specifically covered medical-legal issues for which Respondent was given one hour credit in risk management, the doctor presenting that lecture opined that, considering the risk management aspects of the various lectures presented to Respondent, at least half a dozen qualified for risk management credits. (Exhibit 4) Petitioner's one witness who testified in these proceedings opined that the seminar attended by Respondent in 1987 did not meet the risk management requirements contained in the rules of the Board of Medicine. Rule 21M- 28.002(2), Florida Administrative Code. No specific facts were presented to support this opinion except that the courses offered did not specifically include medical malpractice lectures.
Recommendation It is recommended that a Final Order be entered dismissing the Administrative Complaint filed against Ranjan C. Shah on July 16, 1990. DONE and ORDERED this 10th day of April, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1991. COPIES FURNISHED TO: Richard A. Grumberg, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Ranjan C. Shah, M.D. 1604 Chase Village Drive Jonesboro, GA 30236 Dorothy Faircloth Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 =================================================================
The Issue The issue for consideration in this case is whether Respondent should be dismissed from employment with the Pinellas County Schools because of the misconduct alleged in the School Board's letter dated April 24, 1989.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Perry Hollis, was employed as a welding instructor at SPVOTEC, a facility operated by the School Board of Pinellas County. The Pinellas County School Board is the agency responsible for the administration of the public schools in the county. Respondent began working for the Pinellas County School Board as a welding instructor approximately 15 years ago. As a part of his job, he was required to take certain college courses in teacher training and now has 15 credit hours beyond his Bachelor's degree. At this time, and at the time of the allegations involved herein, he taught welding to mostly adult students at SPVOTEC where he has been employed for 13 years, satisfactorily, without any prior disciplinary problems. The evening before the incident in question, Respondent had been out gun training his dog. Since it is virtually impossible to hold the dog's chain and fire a rifle at the same time, he was using a pistol, the one involved in this case. Neither Respondent nor his wife have a permit to carry a concealed weapon. After the training session was over, Respondent placed the pistol into the door pocket on the driver's side of his pickup truck, put his dog in the back, and started home. He does not remember putting the gun in the door but can think of no other way it could have gotten there. On the way home, the dog jumped out of the back of the truck while it was moving and injured itself. When Respondent got it, he started to provide care for the dog and forgot the gun was in the door of his truck. Since the truck had been acting up, pursuant to an agreement with Mr. Protomastro, the auto mechanics instructor, the following morning he took the vehicle to school and left it at the auto shop so that students could work on it as a part of their training. This is legitimate. The car was assigned to Robert Mertz and Phat Le to work on. Mr. Protomastro drove the car into the shop but did not see the gun in the door. When Mertz got into the car, he saw the weapon in the door pouch on top of some maps and papers and took it out to show to Mr. Le. Mr. Le took it and tried to fire it but because the safety was on, it would not fire. When Le removed the safety, the weapon discharged one round, injuring no one and causing no damage. When Mr. Protomastro heard the explosion, he thought it was a firecracker and advised Phat Le not to shoot them off at school. Le told showed him the gun and Protomastro told him to put it back in the truck. He then took the truck with the gun back to Respondent at the welding shop and advised Hollis to be sure the truck contained no weapons if he brought it in again. According to Protomastro, when he first mentioned it to Respondent, the latter seemed surprised, and he has no less confidence in Respondent's abilities as a teacher even though in this incident, Respondent showed poor judgement. Protomastro did not report the incident at that time. However, when Mertz got home from school that afternoon, he told his mother what had happened. The following morning, she called the school to express her concern over the fact that someone had brought a gun to school. In her opinion, Respondent was wrong to allow the weapon to remain unattended in his car since it is his responsibility to keep the weapon under control at all times. No action was taken then, however. The incident was subsequently brought to the attention of Pinellas County school officials by Mr. Laux, SPVOTEC Director, several months after the incident. Mr. Crosby, Director of Personnel for the Board, caused a formal investigation to be conducted. Based on the investigation and his own limited inquiry, he recommended Respondent's dismissal. In the conversation he had with him, Respondent frankly admitted the gun had been in his car and explained the circumstances of it's getting there. Crosby recommended dismissal because he concluded Respondent's effectiveness as an instructor in the Pinellas county schools had been diminished by the incident. He takes this position because, (1) the media publicity the incident received, (one article and one editorial), reduced Respondent's effectiveness, and (2) he believed Respondent's supervisors, "must feel his effectiveness was reduced due to his lack of judgement." Mr. Crosby did not, however, check with Respondent's supervisors other than Mr. Laux, the Director of SPVOTEC, who concurred in a disciplinary action far less severe than dismissal. Nonetheless, Crosby recommended dismissal rather than some lesser action which could have been taken because: The severity of the situation - teachers are to provide conditions not harmful to students and here, Respondent created a dangerous situation, Students are expelled for bringing weapons to campus and they can do no less to teachers, and Respondent's lack of judgement. Mr. Crosby admits that in his relationships with Respondent, he always found Respondent to be completely forthright and cooperative and he is aware that Hollis has taught in the public school system for more than 13 years. He is familiar with Respondent's performance ratings which were always good. Considering all this, Crosby ultimately agreed with the Superintendent's position that Respondent be dismissed even though no teachers or students indicated their loss of confidence in Respondent as a result of this incident. Even in response to questioning by the Hearing Officer, Mr. Crosby indicated no opinion as to whether the incident was intentional on the part of Respondent. From a thorough review of the evidence it is clear it was not. Ms. Betty W. Arrigo is an interpreter for the hearing impaired who previously worked with Respondent at SPVOTEC. She is aware of the incident with the gun as a result of seeing the report in the newspaper. As a fellow instructor, she has lost no confidence in him as a result of the incident and knows from her communications with seven or so other faculty members that they feel the same way. None of her contacts have any reservations about working with Respondent and she has heard nothing derogatory about him from any of them. Mr. Phares was a student at SPVOTEC and took a welding course from Respondent before the time in issue. He heard about this incident only though the newspaper and even as a result of his reading, based on his first hand knowledge of Respondent, his faith in him as an instructor has in no way been diminished. He would not be reluctant to have Respondent as an instructor again. Admitting he is not bound by the same restraints and considerations as the school administration, and agreeing that guns should not be allowed on the school grounds, he nonetheless believe that if, as it appears in the instant case, the infraction was inadvertent and was an isolated incident, leniency should be shown. Much the same approach is taken by Mr. Stanjeski, who knew Respondent as an instructor at the time of the incident. He, too, is aware of it only from the newspaper, and has not lost any confidence in Respondent's ability as an instructor. Respondent insured that his students learned to work safely and was very much involved with them from a safety standpoint. Mr. Stanjeski would have no reservations about having his 10 year old son take a class with Respondent. He does not condone children or adults bringing a loaded gun to school, but under the circumstances as they appear here, he feels confident with Respondent and his teaching and supervisory abilities. Dr. Rose, Superintendent of Schools, became aware of the Respondent when he received the complaint from Crosby with the recommendation for dismissal. School Board policies prohibit weapons from being brought onto a campus by students or faculty. The purpose of these policies is to insure, as much as is possible, against accidents, and to promote the safety of both students and staff. Prior to adoption of a policy, several public readings are required, after which it is adopted and placed in a policy book furnished to all teachers. Respondent was aware of the policies. Respondent's bringing a weapon to school constitutes a violation of this policy but, in Dr. Rose's opinion, even worse, Respondent did not demonstrate the care for his students expected of a teacher. This constitutes major carelessness on his part, and in the opinion of Dr. Rose, constitutes a violation of the Florida Teacher's Code of Ethics. Dr. Rose also feels that Respondent's actions herein jeopardizes the safety of students. Respondent's judgement in this situation was poor, and his conduct put a dangerous instrument into the hands of a youth whose judgement had not matured. Dr. Rose feels that a teacher would not, if he valued the worth and dignity of his students, do anything potentially dangerous to their welfare. According to Dr. Rose, Respondent's conduct impaired his effectiveness as a teacher in that the work site was compromised. The Board envisions that a work site within the school system will be a safe place and for that reason, guns are not allowed on campus. To bring a gun on campus shows a disregard for the needs of the students. Prior gun incidents have sensitized the public to weapons on campus. As a result, any incident involving a gun on campus is considered critical by the Board, and brings back fears of danger to the students. Whenever a teacher creates a potential hazard to his students, it adversely impacts on his effectiveness, according to Dr. Rose. As Superintendent, he receives feedback from students, parent and teacher organizations, his division heads, and the public, and in this case, though the incident was not widely known until the dismissal was publicized, public demand for action was satisfied by the dismissal. Dr. Rose contends that while the press reaction is considered to be important, school Board decisions, and his in particular, are not dictated by the press. Nonetheless, the issue of guns on campus is very important to the public sector and the Board is sensitive to public reaction. The subject comes up frequently at public meetings and Dr. Rose receives many letters and phone calls about what is being done to keep guns off the campuses. After the articles previously mentioned appeared in the press in this case, Dr. Rose received substantial favorable feedback regarding the dismissal action against the Respondent. The substantial hiatus between the occurrence and the subsequent dismissal action resulted from the fact that the incident was not reported for several months. When the report was received, immediate action was taken to investigate it and to take appropriate corrective action. Local school administrators are supposed to act on their independent judgement within Board set parameters. In this case, Mr. Hollis' actions caused a question as to his ability to make valid judgements on his own and requires him to be more closely supervised. Therefore, his effectiveness, in the opinion of Dr. Rose, has been diminished. Though lesser punishments were available, Dr. Rose recommended the harshest discipline be imposed here because of the severity of the incident. The decision to dismiss Respondent was based on the fact that he had a gun on campus, aggravated by the potential danger to the students. Before taking action, Dr. Rose considered the Respondent's contention that he had forgotten the gun was in the car and, in fact, he believes this is so. In addition, his investigation disclosed no facts which lead him to believe that the incident would be repeated if Respondent were to be allowed to continue to teach. He is satisfied this was an isolated case and he considered that in making his recommendation for dismissal. Dr. Rose admitted that Respondent could probably be properly disciplined by lesser action, but, if that lesser action were taken, there is, in his opinion, a substantial risk that others might not get the important message regarding the policy against guns in the schools. Dr. Rose has not received any letters from parents as a result of this incident demanding that Respondent be dismissed. Nonetheless, he believes that because of the circumstances involved and because of the policy letters of the school Board and their intent that firearms not be brought onto campus at all; and because any time an incident involves bringing a firearm onto a campus, there is the potential for the weapon to be used in a harmful way, either directly or accidentally; it is imperative the strongest possible message be sent out stating that weapons will not, under any circumstances, be tolerated on the campuses of institutions within the jurisdiction of the Pinellas County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the continuing suspension with pay be lifted but that Respondent be reprimanded and suspended without pay for ten (10) days. RECOMMENDED this 25th day of September, 1989, in Tallahassee. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2447 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. For the Petitioner: Accepted and incorporated herein. Accepted and incorporated herein. - 5. Accepted and incorporated herein. 7. - 10. Accepted and incorporated herein. 11. & 12. Accepted. 13. - 15. Accepted and incorporated herein. 16. & 17. Accepted and incorporated herein. 18. 7 19. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. For the Respondent: Respondent did not number his paragraphs in the Statement of the Facts, so the paragraphs will be addressed in turn as though they had been numbered. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney Post Office Box 6374 Clearwater, Florida 33518 Mark Herdman, Esquire Kelly & McKee, P.A. 1724 East 7th Ave. Tampa, Florida 33605 Dr. Scott N. Rose Superintendent of Pinellas County Schools Post Office Box 4688 Clearwater, Florida 34618-4688 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue The issues for determination are whether Respondent's suspension should be upheld and whether his employment with Petitioner should be terminated, as set forth in Petitioner's action letter dated May 11, 2006 and, more specifically, in the Notice of Specific Charges dated and filed May 30, 2006.
Findings Of Fact In 1983, Mr. Peraza, at 18 years of age, was arrested for strong-arm robbery. The case was nolle prossed, and the record was sealed. Almost 15 years later, in 1998, Mr. Peraza applied for an instructional position with the School Board. The 1983 arrest information became known to the School Board through this application process. In 1999, Mr. Peraza began his employment with the School Board as a teacher. At all times material hereto, he was assigned to Allapattah Middle School. While at Allapattah Middle School, Mr. Peraza taught Civics, Geography, and U.S. History. Also, at Allapattah Middle School, Mr. Peraza was the Department Chair and a Team Leader. Further, at Allapattah Middle School, Mr. Peraza received numerous awards from the school and the students, including Beginning Teacher of the Year and the student- nominated, Best Teacher. He was also twice nominated for Teacher of the Year. Additionally, Mr. Peraza was active in some of the student-oriented activities: participated in after school tutoring; assisted the Chess Club; and assisted wrestlers in achieving academic success. Since the beginning of his employment with the School Board, Mr. Peraza received outstanding performance evaluations. Mr. Peraza was well-liked by both parents and students. On or about March 12, 2004, Mr. Peraza was arrested for selling and felony dealing in a controlled substance, i.e., steroids. The arrest occurred on school property at the administration office. He was charged with selling a controlled substance, i.e., steroids, and with forgery (attempting to use the identification of another person without consent). The court's disposition of the charges was the withholding of adjudication and probation, with special conditions--probation for a year, with early termination after six months. After five months, Mr. Peraza probation was terminated due to his compliance with all the terms of his probation. At hearing, Mr. Peraza explained the circumstances surrounding the arrest, charge, and disposition. He explained that a man whom he had befriended at the gym inquired as to whether he (Mr. Peraza) would receive mail for him (the man) at his (Mr. Peraza’s) post office box because the man stated that he (the man) was unable to receive mail at his home; Mr. Peraza agreed to do so. A U.S. Postal inspector intercepted a packaged addressed to Mr. Peraza’s post office box, not to Mr. Peraza, which contained steroids. At the time of his arrest, Mr. Peraza denied having any knowledge of the package or of its contents. Mr. Peraza accepted a plea agreement of withholding adjudication and probation to avoid the possibility of being incarcerated so that he could support his two young daughters. The undersigned finds Mr. Peraza's testimony credible. Further, no evidence was presented as to whether Mr. Peraza actually pled nolo contendere to the charge. In as much as the evidence demonstrates that he accepted a plea agreement and that no objection was made to his explaining the charges and the court’s disposition, an inference is drawn and a finding of fact is made that he pled nolo contendere to the charge. After the arrest of Mr. Peraza, the principal at Allapattah called a special faculty meeting. At the meeting, the principal informed the faculty of Mr. Peraza's arrest. No evidence was presented that the faculty would have known about the arrest had the principal not informed the faculty at the special meeting. The local newspaper, The Miami Herald, contained a report of the arrest. The newspaper’s report on Mr. Peraza’s arrest was found on page 47 of the paper amidst the paper’s report of the occurrence of numerous criminal actions. After this criminal incident, Mr. Peraza was returned to the classroom by the School Board. He had the understanding that no disciplinary action would result from the criminal incident although he did receive a verbal warning from the principal at Allapattah Middle School. On or about September 30, 2004, Mr. Peraza was arrested at Allapattah Middle School for probation violation. The charge was eventually dismissed. During the time that the School Board was reviewing the incident, he was given an alternate location assignment. The principal at Allapattah Middle School gave Mr. Peraza a verbal warning for the incident. When Mr. Peraza returned to Allapattah Middle School, he was welcomed back by his colleagues, the students, parents, and his administrator; and he received several letters of support from students and parents. Further, at a back-to-school gathering in October 2004, when Mr. Peraza was introduced, he received a standing ovation. On or about November 26, 2005, Mr. Peraza was arrested for and charged with aggravated battery and witness tampering/threatening, involving a domestic incident with his wife. The court's disposition of the charges was probation for five years. At the time of the hearing in the case at hand, he was still on probation. At hearing, Mr. Peraza and his wife explained the circumstances of the charges involving the domestic incident. Mrs. Peraza suffers from "night terrors," a condition in which she, during sleep, screams and acts violently but is not aware of what she is doing. Prior to the incident, neither Mr. Peraza nor his wife had informed Mr. Peraza's daughters of or explained to them his wife’s condition because she was embarrassed by her condition. At the time of the incident, Mrs. Peraza was suffering from an episode of a night terror, and Mr. Peraza was attempting to calm and restrain her to ensure her safety. Mr. Peraza's daughters saw him, and one of the daughters, fearing for the safety of Mrs. Peraza, but not aware that Mrs. Peraza was experiencing one of her episodes, called 911. Mrs. Peraza, because of her condition, was unaware of what had occurred prior to the arrival of the law enforcement officers. The law enforcement officers attempted to question Mr. Peraza’s daughters, but he intervened demanding that the officers not question and upset his daughters. Mr. and Mrs. Peraza are being seen by a therapist for her condition. The undersigned finds the testimony of Mr. and Mrs. Peraza credible. Mr. Peraza explained the circumstances surrounding the plea agreement. At the time of the domestic incident and the ensuing charges, he was involved in a custody battle with his ex-wife over his daughters. Mr. Peraza was faced with expending funds for his criminal defense or his custody battle; he chose the custody battle. As a result, he accepted a plea agreement, which resulted in the five-year probation. The undersigned finds Mr. Peraza's testimony credible. Further, no evidence was presented as to whether Mr. Peraza actually pled nolo contendere to the charge. In as much as the evidence demonstrates that he accepted a plea agreement and that no objection was made to his explaining the charges and the court’s disposition, an inference is drawn and a finding of fact is made that he pled nolo contendere to the charge. No testimony was presented that students, parents, or faculty had any knowledge of Mr. Peraza’s arrest involving the domestic incident. Mr. Peraza does not deny any of the foregoing arrests, charges, or court dispositions. Mr. Peraza has had no further arrests, charges or convictions. By letter dated May 11, 2006, the School Board notified Mr. Peraza that, at its meeting on May 10, 2006, it took action to suspend him and initiate dismissal proceedings against him from all employment with it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order: Dismissing Counts I and II; and Immediately reinstating Javier Peraza, with back pay and benefits. DONE AND ENTERED this 1st day of February 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2007. COPIES FURNISHED: Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School District 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines street, Room 1244 Tallahassee, Florida 32399-0400 John L. Winn, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent, Herman L. Tyler, failed to fulfill provisions of a Stipulation and Settlement Agreement entered into between the parties, dated February 22, 2005, that became part of a Final Order of Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission; and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a state-certified law enforcement officer and instructor holding certificates in each area of certification. On May 10, 2005, Petitioner issued a Final Order adopting a Stipulation and Settlement Agreement between the parties. The Stipulation and Settlement Agreement specifically states in paragraph 2, the following: The Respondent agrees as a condition of settlement of this cause to a one-year period of probation of his Instructor Certificate beginning fifteen days following entry of a final order in this cause. The Stipulation and Settlement Agreement specifically states in paragraph 3, the following: As a condition of probation, the Respondent shall enter into and provide Staff with proof of successful completion of Criminal Justice Standards and Training Commission or Staff-approved course in ethics prior to the expiration of the term of his probation. As noted above, the Final Order required Respondent to provide proof of his completion of an approved ethics course within a one-year period of probation. The Respondent failed to provide proof of completion of an approved ethics course as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order revoking Respondent, Herman L. Tyler's, instructor certificate. DONE AND ENTERED this 11th day of June, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 11th day of June, 2007. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Herman L. Tyler Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
