The Issue This is a case in which the Petitioner seeks to suspend and terminate the Respondent's employment on the basis of allegations of misconduct set forth in a Notice of Specific Charges. The allegations of misconduct charge the Respondent with immorality, misconduct in office, incompetency, and conviction of a crime involving moral turpitude.
Findings Of Fact At all times material to this proceeding, the Respondent, Wilfredo D. Rivera-Carde, was employed by the School Board of Dade County pursuant to a professional service contract as a JROTC Instructor assigned to Miami Jackson Senior High School. During the course of his employment as a JROTC Instructor, the Respondent's students in the JROTC program included the following: T. F., S. G., I. R., E. P., and B. V. Of these, all but B. V. were females. At all times material hereto, the JROTC Instructors had their offices in a large room that was divided by large cabinets and other furniture into two offices. The back office was the Respondent's office. The back office was accessible via a passage way from the larger office occupied by the other two JROTC Instructors. The passage way was formed by tall cabinets on both sides. During the 1992-93 school year, I. R., who was at that time a female student enrolled in the JROTC program, was one of the JROTC clerks. In her capacity as clerk she was required to perform clerical duties in the Respondent's office on a frequent basis. When I. R. was performing those clerical duties, often the only other person in the back office was the Respondent. At all times material hereto, the School Board's employee conduct rule was in effect at Miami Jackson Senior High School. The rule provides that teachers must maintain a proper relationship with all of their students and prohibits inappropriate touching of students by teachers. The employee conduct rule is incorporated in the teacher handbook, a copy of which is provided to each teacher each year. Moreover, it is the practice of the Principal at Miami Jackson Senior High School to review the employee conduct rule with all teachers during orientation at the beginning of each school year and at faculty meetings throughout the year. During the course of the Petitioner's investigation of this matter, the Petitioner provided the information it had gathered to police authorities. In March of 1993 the Respondent was arrested on criminal charges filed by female students, T. F. and I. R. The criminal charges against the Respondent have since been dismissed by the Office of the State Attorney. For the reasons mentioned in the Preliminary Statement, in the Endnotes, and in the Appendix, the evidence in this case is insufficient to prove any of the allegations of misconduct set forth in the Notice of Specific Charges.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Dade County School Board issue a Final Order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of October, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 5th day of October, 1994.
The Issue The issues are whether Respondent had good cause to reject the Escambia County School Superintendent's nomination of Petitioner to be principal of Woodham High School, and, if not, what relief should be granted to Petitioner.
Findings Of Fact Pensacola High School (PHS) is located in Pensacola, Escambia County, Florida. It is an inner city school of approximately 2000 students with a diverse population. Petitioner was appointed principal at PHS for the 1994- 1995 school year by Dr. Bill Malloy, the former Superintendent of Escambia County Schools. Petitioner served in that capacity until Superintendent Malloy transferred him in March of 1996 to the position of Director of Student Transfers. At all times material to this proceeding, Respondent had a policy requiring principals to report incidents of suspected child abuse immediately to the Department of Health and Rehabilitative Services (HRS)(currently the Department of Children and Families.) Another policy required principals to immediately report bomb threats to the district office and to proceed with the evacuation of the school property as instructed. Before school began in the fall of 1995, Petitioner assigned Kevin Sanders to be the teacher in charge of the In School Suspension (ISS) class. Petitioner made this assignment because Mr. Sanders previously had developed and successfully operated a similar class at PHS. The school district approved the plan at PHS for an ISS unit as designed by Mr. Sanders. Mr. Sanders also served as a weight training coach at PHS. He was not the only teacher/coach to run an ISS program for Respondent during the 1995-1996 school year. At least three other schools had coaches running their respective ISS programs in the fall of 1995. There is no persuasive evidence that the assignment of a coach to be in charge of an ISS class was in direct contravention of the Superintendent's instructions. No one ever told Petitioner that the Superintendent did not want a coach-like person in charge of the ISS class. Mr. Sanders wanted to work in the weight room at the stadium during the last period of the school day. Petitioner told Mr. Sanders that he could work in the weight room, provided he found someone to supervise his ISS class during that period. There is no credible evidence that Mr. Sanders had permission from Petitioner to take his ISS students to the stadium and leave them unattended in the bleachers. On October 16, 1995, a fifteen-year-old female student skipped school. The police returned the female student to PHS. As a consequence of her actions, the female student was temporarily assigned to the ISS class taught by Mr. Sanders. Normally, the female student attended a class for special students in the Exceptional Student Education (ESE) program. She functioned academically on a third or fourth grade level. On October 17, 1995, Ms. Sanders took his ISS class to the stadium and told them to sit in the bleachers. He then went to the weight room leaving the class unsupervised. The female student went into one of the restrooms in the stadium. She performed fellatio on a number of male students, primarily football players, in the presence of many other students. In the fall of 1995, PHS had several deans who served the general student population. Richard Sousa was the dean of students for ESE participants. He also served as the crisis teacher for the total student population at PHS. On October 18, 1995, Mr. Sousa saw a group of students outside the dean's office. When he investigated, Mr. Sousa found the female student sitting in a chair with her hands on her head. After Mr. Sousa closed the door to the deans' office, the female student stated that other students were falsely accusing her of performing oral sex with some boys. Mr. Sousa then took the female student to an ESE self-contained classroom so that she would not be harassed. Next, Mr. Sousa called the female student's mother and reported the facts as he understood them. The mother told Mr. Sousa that her daughter was not sexually active. Mr. Sousa asked the mother to pick up her daughter from school because the child was visibly upset. Later that day, Mr. Sousa reported to Petitioner that he had heard a rumor about sexual activity occurring in the stadium, on the fifty-yard line, or on the practice field. Mr. Sousa told Petitioner that other students were teasing the female student who denied being involved in any sexual behavior. After receiving this report, Petitioner directed Assistant Principal Leo Carvalis to contact Coach David Wilson, the head football coach. Petitioner instructed Coach Wilson and Mr. Sousa to investigate the rumor regarding the sexual activity. Coach Wilson talked to the football team that afternoon. The team assured him that they knew nothing of any sexual incident in the stadium, the football field, or the practice field. Coach Wilson and Petitioner discussed the situation again later that day. Petitioner told Coach Wilson to continue to listen to what was going on among the students, to ask questions, and to make his findings known. Petitioner gave other members of his staff and faculty the same instructions. Petitioner wanted to determine whether there was any truth to the rumor about the sexual incident. He wanted to discipline any students involved, including football players. However, Petitioner did not want to accuse any student, including the alleged victim, of inappropriate behavior until he had more facts. At the end of the day on October 18, 1995, Mr. Sousa did not believe that the sexual incident had occurred. He knew that special education students are often harassed, ostracized and picked on. Mr. Sousa thought the teasing would blow over and the female student could be returned to her regular classroom. Mr. Sousa expressed this opinion to Petitioner. For the rest of the week, Mr. Sousa took lunch to the female student in the ESE self-contained classroom because other students teased and pointed fingers at her. Mr. Sousa had to walk to the bus with the female student for the same reason. Nevertheless, Mr. Sousa continued to believe the rumor was false. His disbelief was based in part on the female student's persistent denials. Additionally, it was not uncommon for a rumor such as the one at issue here to prove to be unfounded. The next week, the female student requested that she be permitted to return to her regular ESE classes because she believed the teasing was over. Mr. Sousa granted the female student's request; however, after a couple of class periods, Mr. Sousa returned her to the self-contained classroom because even the special education students were saying things about her. Amanda Williams and Naomi Ferguson were guidance counselors at PHS during the fall of 1995. On October 26, 1995, Ms. Ferguson indicated to PHS Assistant Principal Sarah Armstrong that Petitioner knew about the sexual incident involving some of the football players. According to Ms. Ferguson, Petitioner was trying to cover up the situation because the football team was doing well. Later that day, Petitioner held a meeting in his office with Ms. Ferguson, Ms. Williams, Mr. Sousa, Ms. Armstrong, and Mr. Carvalis. During the meeting, Ms. Armstrong advised Petitioner that Ms. Williams had information from a male student (an informant) confirming the sexual incident but would not reveal her source because of confidentiality concerns. Petitioner asked Ms. Williams to speak with him in private. During their private conversation Ms. Williams revealed that an informant had given her information about a second male student who was involved in the sexual incident at the stadium. Ms. Williams gave Petitioner the names of both students. When he and Ms. Williams returned to the meeting, Petitioner stated, "I believe something must have happened. This is a credible witness." He also stated, "To hell with the football team. If these players can get away with this now, what will they think they can get away with in the future?" For the first time, Petitioner began to suspect that the sexual incident was factual and not an unfounded rumor. Ms. Ferguson revealed additional information about the female student at the meeting on October 26, 1995. Ms. Ferguson stated that the female student's mother intended to send her daughter to live with an uncle in Tampa, Florida. The female student did not want to make this move. The female student told Ms. Ferguson that the uncle had sexually molested her in the past. Ms. Armstrong stated that someone needed to call HRS to report the suspected sexual abuse by a family member. The group decided that HRS should also look into the allegations of sexual activity at the school. Petitioner instructed Ms. Ferguson to call HRS. He asked her to wait just long enough for someone to advise the female student's mother that an investigation was pending. There is no persuasive evidence that Petitioner ever intended to cover up the sexual incident. Likewise, he did not unreasonably delay his staff from reporting their suspicions to HRS. On October 26, 1995, Petitioner mistakenly understood that cases of suspected child abuse had to be reported to HRS within 24 hours instead of immediately. The last instructions he gave in the meeting on October 26, 1995, was to remind Ms. Ferguson to call HRS. She made that call on October 27, 1995. The female student was isolated from the general student population in the self-contained ESE classroom at PHS. Therefore, Mr. Sousa recommended at the meeting on October 26, 1995, that the school conduct an Individual Education Plan (IEP) meeting to review the female student's placement. He believed that the female student should be transferred to another school so that she could attend classes with the general population. After receiving Petitioner's authorization, Mr. Sousa contacted the Exceptional Student Education (ESE) district staff to arrange for an IEP meeting. Mr. Sousa also called the female student's mother on October 27, 1995, to advise her of his recommendation. On October 27, 1995, Petitioner talked to the male student who, according to Ms. Williams' informant, participated in the sexual incident at the stadium. The male student confirmed that the sexual incident occurred in the stadium. However, there is no evidence that the student admitted his personal involvement in the sexual activity to Petitioner at that time. The police investigation later revealed that the male student was one of the students who had participated in the sexual incident. At the IEP meeting on October 31, 1995, the entire IEP team, including ESE teachers from PHS and Woodham High School (WHS), ESE district staff, and the female student and her mother, discussed the reasons for changing the student's placement to WHS. Everyone on the IEP team, except the female student, believed that she should be transferred to a new school environment with peers who did not know her. The female student begged her mother not to permit the transfer. However, the parent agreed that the transfer was in her daughter's best interest and offered to provide transportation. On November 1, 1995 or November 2, 1995, the female student was supposed to enroll at WHS. Instead, she returned to PHS. Mr. Sousa called the mother to pick up her daughter and take her to WHS. On November 3, 1995, Mr. Sousa called the female student's mother. She stated that everything was all right with her daughter at WHS. On Monday, November 6, 1995, the female student's mother called Mr. Sousa because her daughter had run away from home. The mother wanted Mr. Sousa to be on the lookout for her daughter. During the conversation, the mother stated for the first time that the rumors about the sexual incident might be true because, despite her daughter's denials, it had been confirmed by one of her daughter's friends. Mr. Sousa informed Petitioner about the suspicions of the female student's mother. Petitioner then directed Coach Wilson to talk with the football team again. No one on the team would admit their involvement in the sexual incident. Petitioner also told the deans and the assistant principals to see if they could determine what had happened and who was involved. The efforts of the faculty and staff to verify the rumors were unsuccessful. On November 9, 1995, Petitioner received a letter from Ms. Ferguson suggesting that he was responsible for trying to cover up the sexual incident. He also received a call from Special Assistant to the School Superintendent Jerry Watson, stating that he had heard "bad things" were going on at PHS. Petitioner called a meeting with the appropriate PHS staff to discuss information about the alleged sexual incident. They reviewed information furnished by the male students and the female student's mother. During this meeting, Petitioner expressed his concern that someone in the group was acting unprofessionally by leaking confidential information about students to persons outside of PHS. Petitioner advised the group that he would try to transfer anyone who breached the students' confidentially. Petitioner did not make these comments to threaten or intimidate his staff and faculty or to cover up the sexual episode. After the meeting on November 9, 1995, Petitioner took Ms. Ferguson's letter to the district office where he met with Sherman Robinson, Deputy School Superintendent. Petitioner told Mr. Robinson about the facts leading up to the receipt of the letter. Mr. Robinson told Petitioner to contact Joe Hammons, the Superintendent's attorney, for advice as to the appropriate action. Petitioner then made an appointment with Mr. Hammons for Monday, November 13, 1995, because Friday, November 10, 1995, was a holiday. On November 13, 1995, Mr. Hammons met with Petitioner. At this meeting, Petitioner told Mr. Hammons what he knew concerning the sexual incident. Mr. Hammons then scheduled a meeting for November 14, 1995, with Petitioner, Mr. Robinson, and two members from the school district's risk management department. At the meeting on November 14, 1995, the group determined that information available from the male students and the female student's mother, justified contacting the Pensacola Police Department. Upon leaving that meeting, Petitioner contacted Sergeant Potts at the police department. The deans at PHS generally handled all disciplinary problems until they determined that a crime had been or might have been committed. At that point, the staff involved the school resource officer. In this case Petitioner relied on his staff to investigate the rumors of the sexual incident and did not involve the school resource officer. Until November 1995, Petitioner was not aware that, if the rumors of the sexual incident proved true, a crime had been committed. Shortly thereafter, Dusty Cutler of the Pensacola Police Department was assigned to investigate the sexual incident at PHS. On November 15, 1995, Officer Cutler talked to the female student who continued to deny all allegations. The female student did not admit to being involved in the sexual incident for several weeks after Officer Cutler began her investigation. Pursuant to Petitioner's suggestion, Officer Cutler also talked to the male student identified by Ms. Williams' informant as one of the participants in the sexual incident. The female student's mother told Officer Cutler that she did not want a police investigation. The mother became upset with the way Officer Cutler was talking to her. Petitioner complained to Lieutenant Knowles of the Pensacola Police Department about Officer Cutler's "abusive" behavior to the mother of the female student. From that time forward, Officer Cutler never spoke to Petitioner even though she spent six months investigating the sexual incident on a daily basis. There is no persuasive evidence that Petitioner interfered with Officer Cutler's investigation or failed to cooperate with her in any way. Officer Cutler reported the sexual incident to HRS. The agency gave her the same response they had given Ms. Ferguson, i.e., HRS would not investigate or follow the case because the sexual activity was not a rape and a family member was not involved. After Officer Cutler was assigned to the case, Petitioner was instructed by the school district to do nothing further until the police investigation was concluded. The Grand Jury released its Amended Report on Pensacola High School on April 15, 1996. The report indicted several male students involved in the sexual incident. Petitioner did not have an opportunity to discipline the students because he was not working at PHS at that time. In the spring of 1996, a number of middle school and high schools in the Pensacola area received bomb threats over the telephone. PHS received bomb threats on at least three occasions. The school evacuated to the adjoining football stadium on one occasion, to the fairgrounds on another occasion, and to Pensacola Junior College on a third occasion. On March 29, 1996, about 7:00 a.m., a school secretary, received a bomb threat call at PHS. Mr. Sousa received a second bomb threat call at PHS around 7:15 or 7:30. On both occasions the caller's voice was a raspy, young man's voice. The school secretary and Mr. Sousa recognized the voice of the caller as a young man in one of the self-contained classrooms. The student had created problems in the past. Each time he behaved improperly, the student would use his raspy voice. Mr. Sousa reported the first bomb threat to Mr. Carvalis. Mr. Carvalis called Petitioner at his home. Petitioner was not at school because he was not feeling well because he had been at the emergency room much of the night before. Petitioner instructed Mr. Carvalis to initiate a search. The search included a sweep of the stadium in case the school had to evacuate to that area. Petitioner advised Mr. Carvalis that he was on his way to the school. When Petitioner arrived at PHS, Mr. Carvalis informed him of the second threatening call. The staff again assured Petitioner that they knew the caller's identity, and that both calls had been made by the same student. The student was not at school. Therefore, Petitioner directed Mr. Sousa and the resource officer, Max Cramer, to go to the student's home and request the student's parent to bring the student to school. In the meantime, a third call was received from the same caller. Next, Petitioner phoned Deputy Superintendent Sherman Robinson. Petitioner explained to Mr. Robinson about the bomb threat and the school's discovery of the identity of the caller. Jones believed from his discussion with Mr. Robinson that his handling of the situation and his decision not to evacuate the school had the tacit approval, if not the explicit permission, of the district office. Petitioner believed Mr. Robinson concurred in his decision not to evacuate. The student with the raspy voice and his parent subsequently arrived at the school. After questioning the student, Petitioner believed the student was the caller. Petitioner decided to continue the search of the school without evacuating it. Petitioner directed Mr. Carvalis and the maintenance men to divide into teams and sweep the campus using the techniques taught by a handler of a bomb sniffing dog after previous threats. On one occasion a bomb sniffing dog and his handler came to PHS from Eglin Air Force Base in Ft. Walton. The PHS campus was so large that the dog got tired and refused to work about half way through the search. On that occasion, the search continued in the same manner employed by Petitioner on March 29, 1996. During the search on March 29, 1996, seven different groups looked for anything that was out of place. All of the deans had assigned areas where they searched trash bins, open lockers, and open classrooms. Later in the school day, Mr. Carvalis reported that the entire campus, including the portables, had been swept and nothing found. Petitioner does not dispute that he did not follow the Superintendent's policy regarding bomb threats on the day in question. Petitioner believed that he knew the identity of the caller. He also was concerned about the disruption that the bomb threats were causing to the academic programs at PHS. The students in the gifted program were preparing to take their advanced placement tests. The students in the International Baccalaureate program were studying for their exams. Additionally, March 29, 1996 was the last chance for some students to take the high school competency test before graduation. Superintendent Malloy was particularly concerned that Petitioner failed to evacuate the school. The previous day he had reiterated his policy of evacuation to all principals. However, Petitioner did not attend the meeting; one of Petitioner's assistant principals attended that meeting in his absence. On March 30, 1996, Superintendent Malloy placed Petitioner on administrative leave with pay, pending an investigation of his failure to evacuate PHS after a bomb threat. Superintendent Malloy subsequently assigned Petitioner to his current position as Director of Student Transfers. On June 3, 1996, Superintendent Malloy issued a letter reprimanding Petitioner for the following reasons: (1) failing to ensure that the ISS class had appropriate supervision; (2) failing to follow up on information regarding sexual activity in the stadium in a timely manner; and (3) failing to evacuate the school after receiving a bomb threat. In November of 1996, Jim May was elected Escambia County School Superintendent. On or about June 10, 1997, the Commissioner of Education, Frank T. Brogan, filed an Administrative Complaint against Petitioner in Education Practices Commission (EPC) Case Number 956-1609-B. This complaint alleged that Petitioner failed in his responsibilities to ensure that all students under his charge were properly supervised. The complaint also alleged that Petitioner failed to evacuate the school after receiving a bomb threat. On June 24, 1997, Superintendent May nominated Petitioner to be principal of WHS. At the time of the nomination, Superintendent May was aware of the relevant facts concerning the PHS sex incident and bomb threat incident. Additionally, he had been in contact with counsel for the Florida Department of Education regarding EPC Case Number 956-1609-B. Respondent rejected Petitioner's nomination to be principal of WHS. On a 3 to 2 vote, Respondent found good cause to reject the nomination based on the following: Among the reasons articulated by the three Board Members who voted against the nomination were, in addition to the reasons presented by the other speakers, Mr. Jones' unsatisfactory past performance of his duties when he served as Principal of Pensacola High School (which events were the subject of a grand jury report and are the subject of an administrative complaint by the Commissioner of Education now pending before the Education Practice Commission proceeding, . . . his lack of subsequent training to improve his skills in the areas in which his poor performance resulted in his 1996 removal as Principal of Pensacola High School, and his apparent violation of certain of the principles of Professional Conduct for the Education Profession in Florida, in addition to gross insubordination and willful neglect of duty in connection with the Pensacola High School incidents. In sum the three Board Members who voted against the nomination felt that Mr. Jones is presently unqualified to be a Principal. After Respondent rejected his nomination, Petitioner told Superintendent May that it was unfair to the students of WHS to make them wait for a principal. On July 22, 1997, Superintendent May nominated another person to be principal at WHS. On or about November 6, 1997, the Florida Department of Education decided that it would withdraw its probable cause determination against Petitioner and enter into a Deferred Prosecution Agreement with him. The department requested the Education Practices Commission to close EPC Case Number 956-1609-B. On or about March 9, 1998, Superintendent May advised the Florida Department of Education that Petitioner had performed his assigned duties and responsibilities in a professional manner during the period of January 10, 1997 and March 1, 1997. Petitioner had fully complied with all district and state rules and regulations. On or about March 26, 1998, Education Commissioner Brogan determined that there was no probable cause to suspend or revoke Petitioner's teacher's certificate. Petitioner was released from his Deferred Prosecution Agreement with the department. Petitioner holds the proper state certification for a high school principal. Except for the two incidents in question, Petitioner's performance at PHS was exemplary. Under his leadership, the school population was stable and well under control. Petitioner created an atmosphere at PHS where high quality performance on the part of a number of students was recognized, encouraged, and supported by the faculty and staff. Petitioner had an excellent relationship with students, teachers, and the PHS Advisory Council. Petitioner genuinely cared for the health, safety and welfare of the students at PHS. He was concerned more about the feelings and self-esteem of the students than with winning academic and athletic competitions, and he did not make accusatory judgments about his students until he had the necessary facts and proof to support those accusations.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That Respondent enter a Final Order finding that there is no good cause to reject Superintendent May's nomination of Petitioner to be principal at WHS, promoting him to that position, and awarding him any back pay to which he may be entitled. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
The Issue Whether or not Respondent is guilty of misconduct and/or immorality in office (in the nature of suggestive and degrading sexual innuendoes and remarks to several female students) pursuant to Section 231.36(6)(a) F.S. and Rules 6B- 1.001, 6B-1.006, and 6B-4.009 F.A.C. so as to be subject to dismissal by the Nassau County School Board. Although some evidence of other years was presented, the August 8, 1991 Statement of Charges herein covers only the 1990-1991 school year. Accordingly, only evidence from that school year may be considered for purposes of discipline in this proceeding.
Findings Of Fact At all times material, Respondent was a teacher at the Hilliard Middle- Senior High School and the holder of a professional services contract with Petitioner Nassau County School Board. He is certified by the State of Florida in the areas of mathematics, psychology, and broad field social studies. Respondent had been employed by Petitioner for the nine years immediately preceding his suspension for the charges involved in this case. During the whole of that time he received good job evaluations. He has had no prior disciplinary charges against him. On or about May 9, 1991, Petitioner, pursuant to the recommendation of the Nassau County Superintendent of Schools, suspended Respondent without pay. This followed the Superintendent's suspension of Respondent with pay on May 2, 1991. During his employment with Petitioner, Respondent has taught geometry, algebra II, trigonometry, one class of general math, and a class of compensatory mathematics. Respondent has had a practice of greeting his students at random as they enter the classroom each day and while they are taking their seats and settling down to work. At all times material, these greetings were offered in the presence of students of both genders. Respondent teased the boys about sports and commented on the girls' appearance. The comments made most frequently by the Respondent to the football players were that they had not done well in the immediately preceding game. The comments made most frequently by the Respondent to all the female students were, "You're looking good; you're looking fine; you're looking hot;" or, more simply, "you're fine; you're hot." None of the comments were exclusive to any particular female student. All comments were made out in the open, without any physical touching or aggression on Respondent's part. He made these comments with no intended sexual connotation, and no female student ever expressed to him directly that she objected to these greetings either because they sounded sexual in nature, were too familiar, or were made in the presence of the female students' male peers. Generally, Respondent's comments were recognized as kidding and not taken seriously or considered objectionable by the students. There is no evidence that the Respondent's comments delayed the commencement of class, caused disruptive behavior on the part of either the male or the female students who heard them, or inhibited any student learning the academic material. One female student who testified that she found the foregoing practice objectionable was Shannon Lysitt, a student of Respondent's during both the 1989-1990 and the 1990-1991 school years. Ms. Lysitt testified at formal hearing that she "took [these comments] to be sexual but not as in a sexual manner." She considered the comments embarrassing and a display of inappropriate conduct by a teacher but knew Respondent was being friendly and joking. Ms. Lysitt admittedly never told Respondent she felt embarrassed or asked him to stop making such comments. Although she was used to his comments from the previous school year, Ms. Lysitt did not request to be assigned to another class for the 1990-1991 school year. In one isolated conversation, Respondent told Ms. Lysitt that, due to her poor math grades, she would probably wind up as a secretary being chased around a desk by her boss instead of achieving her desired career of psychiatrist. The Respondent denied making that comment specifically, but testified that he had made chiding or derrogatory comments about career plans of college preparatory students to motivate them to do better on tests when they had been doing poorly. By all accounts, Ms. Lysitt was doing all right in Respondent's course but could have done better. Ms. Lysitt's testimony was credible as to what was said, but Respondent's testimony was equally credible as to why he said it. Upon the evidence as a whole, it is found that the Respondent's comment may have been temporarily embarrassing to Ms. Lysitt, and may have, as she testified, made her feel bad or stupid for a short time, but that it did not degrade or humiliate her or adversely affect her classroom performance or overall self-image. Sherry Meziere was a student in Respondent's fourth period general math II class during the 1990-1991 school year. She also was embarrassed by Respondent's compliments to her, but she never told him so. When Ms. Meziere complained to Respondent that her semester grade was a "C" rather than the "B" she wanted, he told her she could stay after school and she would get her "B". Ms. Meziere is a particularly sensitive and shy teenager, and she took offense at the Respondent's comment because she interpreted it as a sexual come-on. Respondent denied having any sexual intent behind his comment to Ms. Meziere. At formal hearing, he explained that Ms. Meziere would have been entitled to a "B" if she had turned in all her homework, as required, but she had not. Because her grade was borderline due to the missing homework, Respondent had meant by his remark to Ms. Meziere that if she would come to the classroom after school and work the homework problems in his presence, he would retroactively give her credit for doing the homework and turning it in and this would accordingly alter her semester grade to a "B". Respondent's explanation for why he took this approach is reasonable: he would not accept students bringing in the homework later from home because it might be done anew or copied from someone else. Perhaps Respondent fell short in not clearly indicating all his reasoning and purpose to Ms. Meziere, but he also had no notice from her that she had misunderstood his offer. On balance, Ms. Meziere's explanation of why she took Respondent's neutral remark sexually is weak. She testified, A: I took it sexually. I don't know. Q: Why did you take it sexually? What is it about it that made you think that because you would agree, wouldn't you, that that could also be nonsexual the way you stated it, correct? A: Yes. Q: So what was it about the way he said it that made you think that it was sexual? A: I don't know. I just didn't feel comfortable with it. Q: But he didn't say anything explicit-- A: No. Q: --about sex or anything like that? A: No. (Exhibit P-2, page 10) Ms. Meziere considered Respondent a good teacher, not really strict, and pretty friendly. She felt he was giving her and one of her girl friends many more compliments of the nature described above in Finding of Fact 5 than he was giving other female students in their particular class. Respondent conceded that perhaps he had complimented Ms. Meziere more than some other female students in her class because he had tried to build up Ms. Meziere's self-esteem while the class was going to and from the cafeteria during the lunch recess which occurred in the middle of that class period, so that she would eat and not diet excessively. When she felt "uncomfortable" about Respondent's offering to see her after school, Ms. Meziere was not aware that Respondent frequently tutored students after school. Shanna Higginbotham, another one of Respondent's female students, confirmed that she had been tutored by him after school on several occasions, without any sexual innuendoes or overtures. Although what Respondent did not do with Ms. Higginbotham is not corroborative of Respondent's testimony that he did not intend his remark to Ms. Meziere to be sexual, it is supportive of his testimony that he was in the habit of having one or more students in his classroom after school. It also supports a reasonable inference that the Respondent's classroom was hardly the place for a private rendezvous. Respondent was approached during an inactive period in one of his classes by a senior mathematics student named Monica Adamczewski, who was simultaneously taking a college-level psychology class in child development at Florida Community College, Jacksonville, Florida. Ms. Adamczewski, knowing of Respondent's background in psychology, addressed a question to Respondent involving Freudian theory and child psychology on the issue of whether or not little children have sexual feelings, as hypothesized by Freud. Respondent responded by describing how he had handled an incident involving his own four year child's masturbation. Although the conversation was conducted in low tones with Ms. Adamczewski and Respondent in their respective desks, another student, Darlene Kelly, came up to Respondent's desk in the course of the conversation and heard only part of the conversation. Ms. Kelly was not aware of the context in which the subject arose, did not approve of certain language Respondent employed in discussing his child's activity, and felt it was an inappropriate conversation for the classroom, but Ms. Kelly also testified that the conversation did not embarrass her. There is conflicting evidence as to whether the foregoing incident occurred during the period covered by the Statement of Charges in this case. It is found that it did not occur during the period of time covered by the charges and accordingly that it cannot constitute grounds for disciplining Respondent in this proceeding. Jessica Smith testified to three incidents that allegedly occurred during the 1989-1990 school year. Because the Statement of Charges against the Respondent is silent as to any allegations of misconduct or immorality that occurred other than during the 1990-1991 school year, these incidents may not be used to discipline Respondent in this proceeding. 1/ Tammy McClamma graduated from Hilliard Middle-Senior High School in May 1990. She was not one of Respondent's students in either her junior or senior year, but she knew him from being around school. The events she described also could not have occurred during the time frame set out in the Statement of Charges and therefore cannot be used to discipline the Respondent in this proceeding. 2/ Respondent acknowledged that he may have been careless and used poor judgment in some of the statements he made to his female students. However, he never intended to harm or embarrass any of them and was simply guilty of allowing himself to get too close to the students as friends rather than maintaining the appropriate distance required of the student-teacher relationship. All the student witnesses, including those who were offended by isolated remarks they regarded as inappropriate, agreed that Respondent has a friendly and jocular manner in and out of the classroom. Respondent's classroom clearly has a "laid back" style. Overall, his students seem to appreciate and enjoy his familiar manner and to learn well in his classes. The consistent testimony of the students was that he is generally well-regarded and "everybody's favorite teacher." Superintendent Marshall opined as a professional educator that the Respondent's effectiveness as an educator had been undermined and eliminated by a continuing pattern of serious misconduct. However, no evidence of lost effectiveness beyond the temporary embarrassment and self-doubt experienced by Ms. Lysitt appears of record, and Mr. Marshall's opinion as rendered at formal hearing was based in part upon incidents outside the dates alleged in the Statement of Charges and also based in part upon the total investigation of this case, which investigation clearly included material not in evidence here.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Nassau County enter a final order dismissing the charges against Respondent and returning him to full duty with all back pay and benefits retroactive to May 9, 1991. RECOMMENDED this 5th day of March, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 5th day of March, 1992.
The Issue The issue presented is whether Respondent is guilty of the allegations contained within the Amended Notice of Specific Charges, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact The School Board finds that the contents of the student's notebook constituted "abnormal" activity within the parameters outlined in Respondent's training sessions and therefore, the Respondent should have reported the discovery of the notebook to an administrator. (T-37, 38, 39, 42, 43). The School Board finds that Respondent had an affirmative duty to report his contact with the student and that Respondent was aware of this duty via training sessions that he attended. (T-43, 45). The School Board finds that Respondent's actions in telephoning the student constituted poor judgement. (T-34, 38, 39, 40). The School Board finds that the Respondent's act of showing the notebook to his fellow security monitors constituted poor judgement which did not reflect credit upon himself. MODIFICATIONS TO HEARING OFFICER'S CONCLUSIONS OF LAW The Hearing Officer, in her Conclusions of Law, paragraph 13, found that Respondent had no duty to report his contact with the student to his immediate supervisor. Based upon a review of the entire proceedings, the Board concludes that the Hearing Officer was in error regarding Respondent's duty to report. The Board finds that Respondent's contact with the student was of a sufficiently serious nature as to place upon him an affirmative duty to report these incidents to his immediate supervisor. (T-31, 32, 34, 37, 42, 43, 45, 46). Pursuant to School Board Rule 6Gx13-4A-1.21(1), all persons employed by The School Beard of Dade County, Florida are representatives of the School Board. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. The above-referenced actions by the employee did not reflect credit upon himself and, therefore, constitutes conduct unbecoming a School Board employee. IT IS FURTHER ORDERED AND ADJUDGED, that the School Board, based on Respondent's conduct in telephoning the student, visiting the student's home, showing the diary to other security monitors, and failing to report the student's conduct to an administrator, modifies the Hearing Officer's Recommended Order and dismisses the Respondent from all employment with the School Board, based upon poor judgement which did not reflect credit upon himself, and therefore constitute conduct unbecoming a School Board employee. The Respondent's actions violate School Board Rule 6Gx13-4A-1.21. DONE AND ORDERED this 5th day of January 1994. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA Betsy H. Kaplan, Chairperson ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, 1994 BERNARD PEART, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED. vs. THE SCHOOL BOARD OF DADE DOAH CASE NO. 93-2424 COUNTY, FLORIDA, CASE NO. 94-115 Appellee. / Opinion filed June 7, 1994. An Appeal from the School Board of Dade County, Florida. Du Fresne and Bradley, and William Du Fresne, for appellant. Gerald A. Williams, for appellee. Before BARKDUFF, JORGENSON, and GERSTEN, JJ. PER CURIAM. Affirmd. S 120.57(1)(b)10, Fla. Stat. (1993); Reese v. Department of Professional Regulation, 471 So. 2d 601, 603 (Fla. 1st DCA 1985); Ford v. Bay County Sch. Bd., 246 So. 2d 119, 121- 22 (Fla. 1st DCA 1970).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained within the Amended Notice of Specific Charges filed against him in this cause and reinstating Respondent to his position as a school monitor with full back pay. DONE and ENTERED this 18th day of November, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 18th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2424 Petitioner's proposed findings of fact numbered 2-8 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 9-16 have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's proposed finding of fact numbered 1 has been accepted in substance in this Recommended Order. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Gerald A. Williams, Esquire Mack and Bernstein 1450 North East 2nd Avenue, Suite 562 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley 2929 South West Third Avenue Miami, Florida 33129
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent has been a mathematics teacher at Miami Killian Senior High School for the last 27 years. For the last 15 years he has tutored students in math for a fee. During the 1991-92 and 1992-93 school years, he tutored Beth Sullivan, a student attending a different school than Killian. During the summer of 1993, Beth's mother contacted Respondent and inquired about the math courses Beth could take when she started the 11th grade at Killian that fall. They discussed the options. Respondent advised her that if Beth took analytical trigonometry, Respondent could tutor her for a fee. However, if Beth took Respondent's pre-calculus course, Respondent could not tutor her for a fee. Beth enrolled in his pre-calculus class and was Respondent's student during the 1993-94 school year. When she encountered difficulty, Respondent told her to come to the public library where he tutored students and, if she would help him by grading papers for him, he would help her with her math while he was working with his paying students. She did, and he did. During the 1993-94 school year, Mrs. Sullivan did not give Respondent money for tutoring Beth. She did, however, give Beth $35 in cash to give to Respondent each time Beth went to the library for tutoring. During the 1987-88 school year, Ganene Cooper was a student in Respondent's Algebra II class. She was a senior in high school at the time. Ganene was a "B" student during the first semester of Algebra II. However, her grades "deteriorated" during the second semester. Respondent asked Ganene why her grades were falling, and she told him she had problems at home with additional responsibilities which prevented her from studying. He suggested that she come to his classroom during the lunch period when he assisted students who needed help in math. Although she began attending the lunch study sessions almost daily, she did not actively participate and did not ask questions. She started coming to the library where Respondent was tutoring, sometimes just walking past the room he used for his tutoring sessions and sometimes telling him that she needed to talk to him, which he was unable to do since he was busy tutoring. After her graduation in June 1988, she continued to come to the library where Respondent tutored, and she began appearing unannounced and uninvited at his apartment. In August 1988 Respondent and Ganene began engaging in sexual activity in his apartment and in her car. After a month or so, Respondent insisted their relationship was over, but Ganene wanted it to continue. She threatened to go to his principal if he refused to see her. She told him she was pregnant although she was not. She called every night. If Respondent would not talk to her, she showed up at his apartment and knocked on the door for hours. She came to the school to see him. She obtained Respondent's ex- wife's home address from her place of employment and drove by Respondent's ex-wife's home a number of times. She told Respondent's ex-wife about Ganene's relationship with Respondent. She wrote a note threatening his job and other forms of "payback". When she came to the school to see him, he told her to leave. He went with her to see her psychologist twice. He contacted Ganene's family to enlist their aid. Her grandmother came to Respondent's apartment to pick up Ganene when Respondent telephoned her to say Ganene was at his apartment and would not leave. In July 1989, Ganene called a crisis intervention service and threatened to kill herself because Respondent did not want to see her. Dade County Public Schools conducted an investigation into her allegations. After that, Respondent continued to insist to Ganene that he had no reason to speak with her now that everything was public. Yet, she continued to come to the school, asking him to speak to her, and continued to call his home and come to his apartment trying to see him. In October or November 1989 Ganene came to Respondent's apartment. Respondent called the police who came and arrested Ganene. She was sentenced to six months' probation and ordered to stay away from Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 17th day of October, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1997. COPIES FURNISHED: Bruce P. Taylor, Esquire 501 First Avenue, Suite 600 St. Petersburg, Florida 33701 Patricia M. Kennedy, Esquire United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 8 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Respondent, Michael Williams, should be disciplined for violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended, alleged in a Notice of Termination of Employment and Immediate Suspension Without Pay issued March 18, 1999.
Findings Of Fact Respondent, Michael Williams, is licensed to teach in Florida. He holds Florida Educator's Certificate No. 456063, which allows Mr. Williams to teach physical education. Mr. Williams' license was valid through June 30, 1999. Mr. Williams has been employed as a teacher or substitute teacher by Petitioner, the Duval County School Board (hereinafter referred to as the "District"), since 1978. Mr. Williams was employed by the District at all times relevant to this matter. Mr. Williams is tenured. During the 1997-1998 school year, Mr. Williams was employed as a physical education teacher at First Coast High School (hereinafter referred to as "First Coast"). During the summer of 1998, following the 1997-1998 school year, Mr. Williams served as a teacher at First Coast during the summer session. The summer session started June 15, 1998, and ended July 23, 1998. Laterra Clark was a student at First Coast during the 1997-1998 school year. Ms. Clark was a junior. Ms. Clark was 18 years of age on June 25, 1998. On or about June 29, 1998, Ms. Clark went to First Coast to obtain a transcript which she needed in order to transfer to another high school. Ms. Clark had moved in with her God sister, Jitenga Thomas, who lived in the school district for the high school to which Ms. Clark planned to transfer. Before going to the office to obtain a copy of her transcript, Ms. Clark met Fred Culver, a coach and physical education teacher at First Coast. Ms. Clark and Mr. Culver were either in the gymnasium or they went to the gymnasium after meeting. While in the gymnasium, Coach Culver and Ms. Clark met Mr. Williams. Mr. Williams was leaning against a table in the gymnasium just outside the entrance to the boys' locker room. Ms. Clark leaned against the table close to Mr. Williams. Mr. Williams and Ms. Clark knew each other because she had been in his physical education class. Mr. Williams and Ms. Clark talked for a while. Mr. Williams touched Ms. Clark on her buttocks. Ms. Clark jumped up when he did so, but returned to leaning against the table next to him. Eventually, Mr. Williams told Ms. Clark that they should go to his office where they could talk. Ms. Clark agreed and followed Mr. Williams in to the boys' locker room. Ms. Clark had not been in the boys' locker room before. She had been in the girls' locker room, which has almost the same layout as the boys' locker room. One difference in the layout of the girls' and boys' locker room is that the coaches' office in girls' locker room may be accessed by going into a room next door to the coaches' office and through a bathroom in the back of that room. The room has lockers in it and is used by the coaches as a changing room. The coaches' office in the boys' locker room has the same type of changing room with a bathroom in the back as the girls' locker room but the bathroom is not connected with the coaches' office. The door to the changing room in the boys' locker room is reached before the door to the coaches' office. Mr. Williams led Ms. Clark to the coaches' changing room, unlocked the door, and opened it. The light was not on. Mr. Williams led Ms. Clark to the door to the bathroom at the back of the changing room, opened the door to the bathroom, turned on the light, and stood aside to allow Ms. Clark to walk in. Ms. Clark thought that the room led to the coaches' office, as it does in the girls' locker room, but realized as soon as she walked into the room that there was door to the office. She turned around and asked Mr. Williams what they were doing in the bathroom. Mr. Williams responded, "you know what we're doing," and moved closer to Ms. Clark. Mr. Williams had closed and locked the bathroom door. He picked Ms. Clark up and put her down on the sink. Ms. Clark began asking Mr. Williams what he was doing and kept sliding off the sink. Mr. Williams pressed his body against Ms. Clark and rubbed her right breast. Mr. Williams, who was wearing shorts, became aroused and his penis was erect. Mr. Williams did not expose his penis to Ms. Clark. Ms. Clark attempted to leave the bathroom, but Mr. Williams turned her around and began to unbutton her floor-length denim dress. Mr. Williams managed to get enough buttons open to put his hand inside, touch her panties, upper thigh, and her vagina. Mr. Williams told Ms. Clark that she was "hairy." Ms. Clark continued to resist and ask Mr. Williams "What are you doing?" She told Mr. Williams "stop." Mr. Williams told Ms. Clark, "Well, then, you say you're grown. Act like you're grown." She eventually got the door to the bathroom open and went out into the changing room. Mr. Williams did not try to prevent her from leaving. Ms. Clark buttoned up her dress and then followed Mr. Williams out of the changing room and to the coaches' office next door. The episode lasted approximately ten minutes. Mr. Williams' conduct in the bathroom with Ms. Clark was unwanted and uninvited by Ms. Clark. Mr. Williams and Ms. Clark sat in the coaches' office for a short time until Michael Chandler, the Dean of Boys, came to get Mr. Williams. Mr. Williams and Ms. Clark followed Mr. Chandler out of the boys' locker room. Mr. Williams and Ms. Clark went their separate ways. Ms. Clark did not immediately report the incident to any authority at First Coast. Immediately upon leaving the gymnasium Ms. Clark ran into a close friend whom she told about the incident. She told another close friend immediately after leaving First Coast. Finally, she told her God sister about the incident that evening. Although there were some discrepancies in what Ms. Clark told her close friends and her God sister, or in what they recalled, their recollection of what Ms. Clark told them was consistent in most material aspects. A few days after the June 29, 1998, incident, Ms. Clark returned to First Coast to get a copy of her transcript. In addition to confronting Mr. Williams, Ms. Clark reported the incident to two teachers, Coach Fred Culver and Ben Fleming. Neither teacher took any action to report the incident to administrators at First Coast. When Ms. Clark returned to school the following school year, she was teased by students about the incident and left school. Mr. Williams' conduct in taking Ms. Clark into the boys' locker room was inappropriate for a teacher. Mr. Williams' conduct with Ms. Clark was inappropriate. Mr. Williams admitted taking Ms. Clark into the boys' locker room. His explanation about why he took Ms. Clark into the boys' locker room was not credible. On or about March 18, 1999, a Notice of Termination of Employment and Immediate Suspension Without Pay was issued on behalf of the Superintendent of the Duval County Public Schools alleging that Michael Williams had violated Sections 4(a) and (b) of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended (hereinafter referred to as the "Act"). The District alleged the following specifications for the alleged violations of the Act: On or about June 29, 1998, you made sexually suggestive remarks to a female student, L. C. and attempted to undress her. You fondled her breasts and genital area and exposed your penis to her. By letter dated March 24, 1999, Mr. Williams requested a formal administrative hearing to contest the allegations of the March 18, 1999, Notice. The Notice and request for hearing were filed with the Division of Administrative Hearings by letter dated April 13, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the District discharging Michael Williams from his position of employment with the Duval County School Board. DONE AND ENTERED this 21st day of October, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 21st day of October, 1999. COPIES FURNISHED: John C. Fryer, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Ernst D. Mueller, Assistant General Counsel Office of General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Kenneth Vickers, Esquire 214 Washington Street Jacksonville, Florida 32202 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the testimony adduced at the hearing, the following relevant facts are found: Respondent Randolph Rice has been employed by the petitioner Dade County School Board for seven years. At all times relevant to the charges involved in this proceeding, he was employed as a physical education teacher at Miami South Ridge Senior High School. In the school years 1977-78 and 1978-79, Randy Turner regularly appeared on the campus of South Ridge. Mr. Turner was never enrolled as a student at said high school. Believing that Mr. Turner was a student at South Ridge, respondent Rice allowed him to participate in Rice's physical education classes. Respondent Rice knew that Turner was not enrolled in his class, but he believed that Turner was enrolled at South Ridge to complete two credits he needed for graduation. When Mr. Turner participated in class, he wore the school's regular physical education uniform. At least six students attending and enrolled at South Ridge observed Mr. Turner on campus almost daily for the school years 1977-78 and 1978-79. They saw him in the hallways carrying books, around the physical education area, participating in physical education classes and in the locker room. Turner shared a locker with an enrolled student. He was also observed in a class in plastics. Mr. Turner's photograph appeared in the school's yearbook along with the pictures of enrolled students. Four employees at South Ridge -- a physical education teacher and three persons who work in security -- observed Mr. Turner in the hallways of South Ridge carrying books and around the physical education area. Three of these employees assumed Mr. Turner was an enrolled student at South Ridge. Another, who knew Turner from another high school, had the impression that Mr. Turner had probably finished school. The basketball coach at South Ridge, Everett Moncur, allowed Mr. Turner to help out and keep the statistics in the basketball games end courses. Mr. Moncur assumed Mr. Turner was not enrolled as a student as he had known Turner from another high school. Moncur worked closely with respondent Rice and did not discuss with Rice Mr. Turner's status as a student or non-student. On or about February 9, 1979, respondent Rice's physical education class was having a special challenge with the other physical education classes, and several games were occurring simultaneously. During this period, Mr. Turner became involved in a fight with an enrolled student and the other student was injured. Respondent Rice did not witness this event. The parties have stipulated that there is no legal causal connection between Turner's participation in class and the injury that was received by the other student. Excerpts from the minutes of a March 21, 1979, Dade County School Board meeting indicate that the Board approved the suspension without pay of respondent Rice. By letter dated March 26, 1979, Mr. Rice was notified that the Board bad suspended him without pay for a period of thirty days for willful neglect of duty in allowing a nonschool youth to participate in his class. He was further advised that prior to the expiration of his suspension, he would be advised of his reassignment to another work location to be effective May 3, 1979. The respondent requested a hearing on the suspension, and, on April 9, 1979, the School Board filed "Notice of Charges" charging respondent with willful neglect of duty by allowing a nonschool youth to participate in his physical education class. The Board asked for a thirty-day suspension and reassignment to another school in Dade County. Respondent has served his period of suspension without pay and has been assigned to another school. Respondent seeks to be reinstated at South Ridge High School and further seeks back pay for the period of suspension.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that a final order be entered by petitioner rescinding respondent's suspension and transfer to another school, and that respondent be reimbursed for the salary lost during his suspension and be reinstated to his former position at South Ridge High School. Done and entered this 2nd day of July, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jesse J. McCrary, Jr. Assistant Board Attorney 3050 Biscayne Boulevard Suite 300-E Miami, Florida 33137 William du Fresne Suite 1782 One Biscayne Tower Miami, Florida 33131 Phillis Douglas Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY, Petitioner, CASE NO. 79-768 RANDOLPH RICE, Respondent. / ORDER OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA THIS CAUSE came on for hearing before The School Board of Dade County, Florida at its regular meeting of September 5, 1979, upon the Hearing Officer's findings of fact, conclusions of law and recommended order, and upon the exceptions filed by counsel for the School Board. The Board having considered the same and having heard argument of counsel, IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that: The Hearing Officer's findings of fact, conclusions of law and recommended order attached hereto be and the same hereby is adopted as the final order of the School Board, with the exception of the recommendation that the respondent be reinstated to his former position at Miami Southridge Senior High School, which is rejected by the School Board; and The suspension of Randolph Rice for the period March 22, 1979 through May 2, 1979 be and the same is hereby rescinded, and the respondent, Randolph Rice, shall be reimbursed for all salary lost during the period of that suspension. DONE AND ORDERED this 5th day of September 1979. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA By Phyllis Miller, Chairman
The Issue Should Respondent be terminated from his employment as a member of Petitioner's instructional staff for his alleged relationship with Kristie Lynn Smith, who at the time of the alleged misconduct was a minor student and member of Respondent's household? In particular, Petitioner accuses Respondent of a romantic involvement with Ms. Smith, to include sexual intercourse.
Findings Of Fact At times relevant to the inquiry Respondent has been employed as a classroom teacher, part of instructional staff with the Putnam County School Board. His employment has been at Interlachen High School in Interlachen, Putnam County, Florida. Respondent has taught Driver Education and Health and Life Management Skills. Respondent has also served as coach for the girls' varsity basketball team. Kristie Lynn Smith was born November 24, 1980. At the times relevant to the inquiry she was a student in the Putnam County School District. Ms. Smith met Respondent as a student in Respondent's Health and Life Management Skills class, in the second semester of her ninth grade year. In January 1997, Ms. Smith was placed in foster care in the custody of Respondent and his wife, Teresa Dorsey. Ms. Smith lived with the Dorseys in their home from January 1997 through August 1997. Other children residing in the Dorsey home were Respondent's children Mikey, Jeanny, and Raymond. Another foster child, K.W., lived in the home during Ms. Smith's residency. The expectation of foster parenting for the benefit of Ms. Smith and K.W. was that Respondent and his wife would exercise parental authority over the foster children. After Ms. Smith was placed with the Dorseys for foster care, she began to ride to her school with Respondent in his automobile. On these occasions Respondent and Ms. Smith would engage in conversation that was not unexpected. In latter May 1997, Respondent began to discuss his marital problems with Ms. Smith. In these discussions Respondent confided that Respondent's marriage with his wife, Teresa, was over and that Respondent was contemplating the formal dissolution of his marriage. Respondent's discussions with Ms. Smith extended to expressing Respondent's feelings towards Ms. Smith by telling her he cared for her. This was followed by Respondent's statement to Ms. Smith that he was in love with her. Ms. Smith replied that she had similar feelings for Respondent. Respondent and Ms. Smith in their discussions talked about having sexual relations with each other. Expression was given to their affection by flirting, hugging, and kissing each other with open mouths. The relationship between Respondent and Ms. Smith progressed to the point where Ms. Smith agreed to have sexual intercourse with Respondent. Within a few days beyond reaching the agreement to have sexual intercourse, Respondent, in their home, took Ms. Smith from the room she shared with K.W. into the bedroom shared by Mikey and Jeanny, placed a mattress on the floor, removed his and Ms. Smith's clothing and engaged in sexual intercourse with Ms. Smith. This same activity took place three or four more times in the home in the month of May 1997. While on a vacation in West Virginia that began the last week of May 1997, Ms. Smith confided in K.W. that Ms. Smith and Respondent had an ongoing romantic relationship. K.W. observed some of the contacts between Respondent and Ms. Smith that involved hand holding, hugging, and what K.W. described as "French kissing," meaning that the tongues of Respondent and Ms. Smith were in each other's mouth. Upon the return from West Virginia, in the first part of June 1997, Respondent and Ms. Smith continued their liaison, to include sexual intercourse that took place on numerous occasions either in Jeanny and Mikey's bedroom, Ms. Smith's bedroom, or Respondent's bedroom. The sexual encounters that have been described took place at night when other persons had retired to sleep. The numerous occasions of sexual relations between Respondent and Ms. Smith took place over the period from the end of May 1997 into August 1997. Those encounters were such that in June 1997, Ms. Smith believed that she had become pregnant by Respondent. To confirm her suspicion Ms. Smith went with a friend, Lisa Comeau, and purchased a pregnancy test kit. At that time Ms. Comeau was also a student at Interlachen High School. Ms. Comeau was mindful of the relationship between Ms. Smith and Respondent to the extent that Ms. Comeau had been told by Ms. Smith that Respondent and Ms. Smith were having sexual relations. Respondent had taught Ms. Comeau as a Driver's Education and Health class teacher. The results of the pregnancy test as administered at Ms. Comeau's home revealed that Ms. Smith was not pregnant. In June 1997, Ms. Smith enrolled in a Driver's Education Course that was being taught at Palatka High School, part of the Putnam County School District. Respondent taught Ms. Smith in that class and was responsible for assigning Ms. Smith's final grade. During this time period Respondent and Ms. Smith were having sexual relations. During the period May 1997 through August 1997, Respondent and Ms. Smith exchanged letters describing their affection. Those letters were passed directly from Respondent to Ms. Smith and from Ms. Smith to Respondent or on other occasions letters were being indirectly transmitted through K.W. Respondent would also leave letters for Ms. Smith in a dresser drawer in the home. The letters were being written and exchanged sometime between May 1997 and August 1997. K.W. and Lisa Comeau were aware of the contents of some of this correspondence. Through the letters which Respondent wrote to Ms. Smith he expressed his love and devotion, the anticipation of having children with Ms. Smith, the desire to be Ms. Smith's husband, and the specific statement of wanting to make love to Ms. Smith and to hold her in his arms and to lay there for hours. The contents of some of the letters are more completely described in the Petitioner's Exhibits numbered 4-13. Although Respondent expressed some reservation in testimony concerning their relationship, about first receiving letters from Ms. Smith which expressed her feelings towards Respondent, his manner of addressing his concerns was to begin writing letters back to Ms. Smith of the nature that has been described previously. While Respondent in his testimony concerning the relationship with Ms. Smith has denied the finding made here that he had engaged in sexual relations with Ms. Smith, he does not deny discussion of their intention to have sexual relations at a time in the future. Neither does Respondent deny having written the letters that have been discussed which describe lovemaking and fathering Ms. Smith's children. The July 24, 1998, edition of the Palatka Daily News reported some of the contents of correspondence from Respondent to Ms. Smith that have been described, in particular, the reference "I want to make love to you . . . and hold you in my arms and lay there for hours." The article also referred to Respondent's admission that he loved Ms. Smith at the time of their relationship and hoped the two of them would be married and have a family. As reported in the newspaper article Respondent had testified in the trial that he had "fallen" for Ms. Smith. The account of Respondent's statement that he loved Ms. Smith, as found in the newspaper was consistent with his trial testimony. Respondent's trial testimony constituted testimony for the present proceeding. Mr. David Buckles, District School Superintendent for Putnam County School District, testified concerning his opinion on Respondent's loss of effectiveness as a teacher. Before offering that testimony Mr. Buckles had been accepted as an expert to provide opinion testimony concerning loss of effectiveness in the community to teach. Upon reviewing the contents of correspondence from Respondent to Ms. Smith, Mr. Buckles opined that the authorship of that item, Petitioner's Exhibit numbered 4 and its delivery to Ms. Smith, then a 16-year- old student, followed by public admission of such contact between Respondent and Ms. Smith would cause Respondent to be less than effective in teaching. Respondent in his testimony at trial, had acknowledged writing the correspondence found in Petitioner's Exhibit numbered 4. Additionally, Mr. Buckles offered the opinion that a teacher would lose effectiveness in the instance where the teacher stated a desire to father a child by one of his students, as published in the community. Respondent in his trial testimony acknowledged that in one of the letters written to Ms. Smith, he had stated that he wanted to father Ms. Smith's children. Moreover, Mr. Buckles offered the opinion that a teacher would lose effectiveness in the community to serve as a teacher if the teacher admitted in a public forum that the teacher was in love with a 16-year-old student. Respondent in his trial testimony acknowledged that he loved Ms. Smith at the time of their relationship. Respondent in his trial testimony also acknowledged writing letters to Ms. Smith which expressed his love for her. Mr. Buckles expressed the opinion that a teacher, who in a public forum acknowledges having discussed having sexual intercourse with a student on a future date, had lost effectiveness. In the trial testimony Respondent indicated that he had talked with Ms. Smith about having sex after they were going to be married, and that it was something Respondent and Ms. Smith knew would take place as part of the marriage. Additionally, Mr. Buckles' opinion countenances the previously mentioned discussion in correspondence from Respondent to Ms. Smith, reported in the newspaper and testified about in hearing, in which Respondent acknowledged authoring the correspondence which includes the phrase "I want to make love to you . . . and hold you in my arms and lay there for hours." Eventually, the relationship between Respondent and Ms. Smith was found out. Although Ms. Smith denied their relationship initially, upon its discovery, out of fear of losing her attachment to Respondent and getting in trouble, eventually, Ms. Smith admitted to the relationship. Ms. Smith and K.W. were removed from Respondent's home. Respondent did not carry forward his stated intentions to divorce his wife and marry Ms. Smith. Respondent continues to be married to Teresa Dorsey.
Recommendation Upon consideration of the findings of fact and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Putnam County School Board dismissing Respondent from his employment with the Putnam County School District. DONE AND ENTERED this 7th day of May, 1999, in Tallahassee, Leon County, Florida. 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 7th day of May, 1999.
The Issue Whether the Respondent committed the violations alleged in the Second Amended Notice of Specific Charges filed by the Petitioner on March 15, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes. At all times material to this proceeding, Ms. McElrath was employed as a teacher by the School Board and assigned to Miami Jackson, where she taught for almost 13 years. Ms. McElrath taught English, and she was the coach of the Miami Jackson debate team for one year and the advisor for the student newspaper for six years. She has consistently been rated acceptable in teaching and in professional responsibility in her annual evaluations at Miami Jackson. Ms. McElrath is employed by the School Board under a professional service contract. Prior to the incident that is the subject of these proceedings, Ms. McElrath had never been the subject of a School Board personnel investigation. She was known to her colleagues as a friendly person and had never displayed violent behavior. Thomas Rolle is a computer specialist employed by the School Board and assigned to Miami Jackson. Mr. Rolle's duties include trouble-shooting and maintaining the computers at Miami Jackson and administering the computer network. Mr. Rolle is blind in his left eye and is severely hearing impaired. He wears hearing aids in both ears; he can also read lips and understand a speaker in a face-to-face conversation. About three weeks prior to February 23, 2000, Mr. Rolle was conducting a computer survey at Miami Jackson to determine which computers needed to be configured for the school's Internet connection. When he arrived at Ms. McElrath's classroom, the class was watching a video on television, and the classroom was dark. Mr. Rolle also noticed that the computer and the Internet connection drop were on opposite sides of the classroom. Ms. McElrath told Mr. Rolle that she would move the computer closer to the Internet connection drop and that he should come back later to work on the computer. About ten days later, Ms. McElrath passed Mr. Rolle in the hallway, and Ms. McElrath told Mr. Rolle that she had moved the computer in her classroom. Ms. McElrath asked that Mr. Rolle come to her classroom to configure the computer. Ms. McElrath felt that her class was getting behind because there was no Internet connection in her classroom. Mr. Rolle did not go to Ms. McElrath's classroom as she had requested. Shortly before 11:00 a.m. on February 23, 2000, Ms. McElrath went to Dr. Choate, Mr. Rolle's supervisor, and asked if Dr. Choate could expedite Mr. Rolle's visit to her classroom to configure her computer. While Ms. McElrath was in Dr. Choate's office, Dr. Choate paged Mr. Rolle, and he immediately called back. Dr. Choate asked Mr. Rolle if he could go to Ms. McElrath's classroom; he told her that he was working in Room 137, the Language Arts lab, but that he would be finished soon and would go to Ms. McElrath's classroom in about 30 minutes, after he had finished a few tasks on the first floor of the school building. Dr. Choate gave Ms. McElrath this information. Ms. McElrath left Dr. Choate's office and went directly to Room 137. She was frustrated because Mr. Rolle had told her before that he would configure her classroom computer but had not done so. Ms. McElrath thought that if she went to Room 137 and waited for him, Mr. Rolle would be more motivated to go to her classroom immediately. When Ms. McElrath entered Room 137, Mr. Rolle was helping Ludgerte Jean-Baptiste, a school paraprofessional, create a school map for a job career fair. Both Ms. Jean- Baptiste and Mr. Rolle were facing away from the door to the room. At first, Ms. McElrath looked for some novels she had seen previously in the Language Arts lab, but they weren't there. She jiggled her keys to make noise so Mr. Rolle and Ms. Jean-Baptiste would notice her. Mr. Rolle did not turn around, but, after a few moments, Ms. Jean-Baptiste turned around and asked if she could help Ms. McElrath. Ms. McElrath told her she was waiting for Mr. Rolle. Ms. Jean-Baptiste touched Mr. Rolle on the shoulder, and he turned around. Ms. McElrath asked him to come with her to her classroom to configure the computer for the Internet. Mr. Rolle told her that he needed to finish helping Ms. Jean- Baptiste and would go to Ms. McElrath's classroom within 30 minutes. Ms. McElrath was very persistent and repeatedly inquired as to why he could not come to her classroom immediately. Ms. Jean-Batiste told Mr. Rolle that she could finish with the map if there was something else that he needed to do. Mr. Rolle got up to leave Room 137, and Ms. McElrath asked Mr. Rolle if he was ready to go to her classroom. Mr. Rolle told Ms. McElrath that he would go to her classroom within 30 minutes, that he needed to go to his office to get the computer software, the configuration information, and the drivers before he went to her classroom. Ms. McElrath was annoyed. She became confrontational and blocked Mr. Rolle's path to the door of Room 137. When Mr. Rolle moved to his left to go around her, Ms. McElrath moved to her right to block his path. She continually asked him why he could not go to her classroom "now," and she persisted in moving to block his path to the door. Mr. Rolle stated several times to Ms. Jean-Baptiste that she should watch, that she was a witness. When Mr. Rolle reached the door, Ms. McElrath's back was to the door. Mr. Rolle tricked Ms. McElrath by feinting in one direction and actually moving in the other direction. As he stepped to his right to go through the door, Mr. Rolle moved his left arm between his body and Ms. McElrath's, pushed her aside, 3/ and opened the door with his right hand with sufficient force that the door hit the outside wall. Ms. McElrath was startled when Mr. Rolle pushed her, and she took a step back; she and Mr. Rolle pivoted as he moved through the doorway, so that she was facing the patio outside and Mr. Rolle was facing her. While the door was open, and without any further provocation from Mr. Rolle, 4/ Ms. McElrath raised her keys and sprayed a substance into Mr. Rolle's face from a canister on her key ring. The door closed, and Mr. Rolle fell to his knees, holding his eyes. Ms. Jean-Baptiste, who was inside Room 137, saw Ms. McElrath spray the substance into Mr. Rolle's face, and she went to help him to the bathroom to flush out his eyes with water. Ms. McElrath fled upstairs to her classroom. At least five students and one staff member observed this incident. Immediately after the incident, Ms. McElrath and Mr. Rolle were summoned to the principal's office. Ms. McElrath completed a written statement in which she asserted that she had sprayed Mr. Rolle with a fluid she used to clean her dry-erase board. In her statement, Ms. McElrath stated only that she had a heated discussion with Mr. Rolle, that she had felt threatened when he said that he would not be responsible for what he might do to her, 5/ and that he had shoved her. Mr. Rolle suffered temporary damage to his eyes and was required to wear dark glasses for several weeks. His eyes were blurry and watery and light-sensitive for about a week, and he had difficulty doing his work. He also had to drop several classes he was taking at Florida International University because he missed several classes as a result of the injury to his eyes. A Conference-for-the-Record was held on May 1, 2000, to discuss with Ms. McElrath the Preliminary Personnel Investigative Report of the incident involving Mr. Rolle, in which it was concluded that the charge that Ms. McElrath assaulted Mr. Rolle was substantiated, and to discuss Ms. McElrath's violation of School Board policy and rules, as well as her future employment status with the Miami-Dade County school system. Ms. McElrath was advised at the Conference-for- the-Record that she would be notified of the "recommended action or disciplinary measures to include any of the following: a letter of reprimand, a TADS Category VII prescription for the Professional Responsibilities Component infraction which could impact the annual evaluation decision, suspension or dismissal." At this conference, Ms. McElrath conceded that the substance she had sprayed in Mr. Rolle's face was actually pepper spray. She stated that she was seeing a counselor recommended to her by the Employee Assistance Plan. She acknowledged that her actions were precipitated because she perceived that Mr. Rolle was ignoring her and that there was no excuse for her actions toward Mr. Rolle. The first time Ms. McElrath alleged to the School Board that Mr. Rolle had moved his hands to her throat and that she was fearful that he intended to attack her was in a letter dated July 26, 2000, which she wrote "to clarify, explain, and/or respond" to the information contained in the summary of the May 1, 2000, Conference-for-the-Record. In this letter, Ms. McElrath stated that she sprayed Mr. Rolle with pepper spray because she was defending herself; he had shoved her and was bringing his hands up to her throat, and she felt threatened. Ms. McElrath asked that this letter be included as part of her record. Summary It is uncontroverted that Ms. McElrath sprayed Mr. Rolle in the face with pepper spray and that she lied when she asserted in the statement she gave immediately after the incident that the chemical she sprayed in Mr. Rolle's face was a solution she used to clean her dry-erase marker board. The disputed factual issues that are presented for resolution in this case are whether Ms. McElrath conducted herself in her employment as a teacher in a manner that failed to reflect credit on herself and the school system; whether Ms. McElrath committed misconduct in office and thereby impaired her effectiveness in the school system; whether Ms. McElrath committed violence in the workplace; and whether Ms. McElrath acted in self-defense when she sprayed Mr. Rolle with pepper spray. Having considered all of the evidence submitted with respect to Ms. McElrath's conduct during the incident involving Mr. Rolle, the undersigned finds that Ms. McElrath was acting in the course of her employment as a teacher and that her conduct certainly did not reflect credit on her. In making this finding, consideration has been given to Ms. McElrath's actions in blocking Mr. Rolle's path as he tried to leave Room 137 and in repeatedly demanding to know why he would not go directly to her classroom, after he had explained that he needed to obtain materials necessary to configure her computer for the Internet, as well as to her spraying Mr. Rolle with pepper spray. The undersigned further finds that Ms. McElrath committed misconduct in office. Ms. McElrath did not value Mr. Rolle's worth as an employee of the School Board entitled to make judgments regarding his professional responsibilities or Mr. Rolle's dignity as a person. Furthermore, Ms. McElrath used exceedingly poor professional and personal judgment both in spraying Mr. Rolle with pepper spray and in her actions toward Mr. Rolle as he was trying to leave Room 137. The evidence presented by the School Board is not sufficient, however, to establish that Ms. McElrath failed to sustain the highest degree of ethical conduct, that she interfered with Mr. Rolle's exercise of his political and civil rights, or that she used coercion to influence Mr. Rolle's professional judgment. Having considered all of the evidence presented on which findings of fact can be based, the undersigned finds that Ms. McElrath's actions with respect to Mr. Rolle were so serious that they impair her effectiveness in the school system. In making this finding, the undersigned is mindful that, based on the record herein, during her tenure as a teacher in the Miami- Dade County public schools, Ms. McElrath has not been the subject of any other disciplinary action and that she has consistently received "acceptable" annual evaluations, the highest overall rating a teacher in the Miami-Dade County school system may earn. Nonetheless, the lack of control Ms. McElrath exhibited in her behavior towards Mr. Rolle raises serious and disturbing questions regarding her ability to resolve in a reasonable manner those frustrating situations that sometimes occur when one works with busy colleagues, her ability to respond in an appropriate manner to the stresses of classroom teaching, and her ability to appreciate the consequences of her actions. Without question, the act of spraying someone in the face with pepper spray is an act of violence that, the evidence herein establishes, took place at Miami Jackson, the public school in which Ms. McElrath worked as a teacher. The greater weight of the evidence is sufficient to establish that Mr. Rolle pushed Ms. McElrath aside as he was moving to open the door to leave Room 137, but Ms. McElrath testified that Mr. Rolle's "shove" did not harm her but merely startled her and did not precipitate her action in spraying Mr. Rolle with the pepper spray. Rather, Ms. McElrath asserts that she took this action in response to Mr. Rolle's moving his hands upward to grab her throat. Having carefully considered all of the evidence on which findings of fact can be based, the undersigned finds that Ms. McElrath did not have a reasonable basis for believing that Mr. Rolle was about to attack and choke her. It is notable in this regard that, as far as can be discerned from the record herein, Ms. McElrath did not, as one would expect, immediately explain her action as self-defense but, rather, waited approximately five months before presenting this justification to the School Board. The testimony of Andrea Zuniga, the only witness who corroborated Ms. McElrath's claim that Mr. Rolle was moving his hands up to grab her throat, has been considered and found not sufficiently persuasive to outweigh the testimony of Ms. Jean-Baptiste, Diane McKnight, and Mercedes Thompson that they saw no such action by Mr. Rolle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Mary Jane McElrath without pay be sustained and that her employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 3rd day of August, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2001.
The Issue In Case No. 88-3425, Mr. Bradley Thomas challenges the termination of his employment at the Florida School for the Deaf and the Blind. The issue is Case No. 88-5675 is whether Mr. Thomas committed the acts alleged by the administrative complaint, and, if so, what penalty may be appropriate.
Findings Of Fact Bradley Thomas holds Florida Teaching Certificate #486268, valid through June 30, 1993. Mr. Thomas is certified to teach secondary levels, vocational education and printing, and was initially employed by the Florida School for the Deaf and the Blind (FSDB) in 1980. Mr. Thomas taught phototypesetting in the FSDB Vocational Department. Mr. Thomas was described by his immediate supervisor as highly-motivated and conscientious. He has received satisfactory and above-satisfactory performance evaluations. Mr. Thomas is 57 years old and has been deaf since the age of 12. He communicates through signing and speech. According to section 242.331(4), Florida Statutes, the Board of Trustees of the Florida School for the Deaf and the Blind is authorized to appoint and remove teachers "as in its judgement may be best". By Rule 6D- 4.002(2)(b), Florida Administrative Code, the Board of Trustees has delegated responsibilities related to employment and termination of academic personnel to the President of FSDB. By letter from FSDB President Robert Dawson, dated February 15, 1986, such authority has been delegated to Samuel R. Visconti, Director of Personnel for the FSDB. The Board of Trustees has entered into a collective bargaining agreement with the Florida School for the Deaf and the Blind Teachers United, an affiliate of the Florida Teaching Profession-NEA and the National Education Association. Article 13, section E, of the 1986-89 agreement between the Board of Trustees and the FSDB Teachers United, FTP-NEA, in relevant part, provides that Mr. Thomas may not be discharged from employment by the Board of Trustees except for "just cause", which is defined to mean job- related incompetence or misconduct. The professional competence of Mr. Thomas as a teacher is not at issue in this proceeding. During the second semester of the 1986-87 school year, Holly Middlebrooks was enrolled with five other students in Mr. Thomas' class. At the time of the hearing, Ms. Middlebrooks was 19 years old and a senior at FSDB. On more than one occasion, Mr. Thomas "rubbed" Ms. Middlebrooks' back and shoulders during class, in a massaging manner, which made her uncomfortable and confused. The contact occurred while Ms. Middlebrooks was seated at and using a computer terminal and while she entered and left the classroom. Although she attempted to convey her discomfort with Mr. Thomas' touching by repositioning herself in her chair as she worked at the computer, she did not instruct Mr. Thomas to stop. Ms. Middlebrooks saw Mr. Thomas touch other students in a similar manner. Although other students indicated to Ms. Middlebrooks that Mr. Thomas discussed sexual topics in class, she did not hear and could not recall specific incidents of sexually-oriented language on Mr. Thomas' part. Nadine Lents was enrolled with four or five other students in Mr. Thomas' class during the second semester of the 1986-87 term and for the full 1987-88 school year. At the time of the hearing, Ms. Lents was 18 years old. On occasion, Mr. Thomas would massage Ms. Lents' neck and shoulders while she worked at the computer terminal. At times she feared that he would touch her breasts but he did not. She did not instruct him to stop. On at least one occasion, Mr. Thomas rubbed her leg while she sat at the terminal and she instructed him to stop, to which he replied that there was no cause for her concern. Mr. Thomas "often" hugged Ms. Lents, sometimes pressing himself against her breasts or in a manner which she found to be "too hard", and she would push Mr. Thomas away. Ms. Lents sometimes would lightly hug Mr. Thomas as a means of greeting, but was careful to maintain distance. Mr. Thomas discussed sexual matters with Ms. Lents. He asked her if she "liked oral sex", talked about the size of her breasts, and discussed other sexual matters in vulgar terms. The sexual discussions sometimes made Ms. Lents uncomfortable and embarrassed. During both the 1986-87 and 1987-88 school terms, Karen Warfel was enrolled with "about six" other students in Mr. Thomas' class. At the time of her testimony at the administrative hearing, Ms. Warfel was 20 years old and had graduated from the FSDB. More than once, Mr. Thomas rubbed her back under blouses which she described as "loose". Once, Ms. Warfel instructed Mr. Thomas to stop, and he complied with her request, but Mr. Thomas subsequently resumed touching Ms. Warfel in a similar manner and she did not stop him. Mr. Thomas also occasionally rubbed Ms. Warfel on her leg, "above the knee", in an attempt "to calm me down when I get frustrated on the computer". The physical contact with Mr. Thomas made her feel uncomfortable. Ms. Warfel would, on occasion, request a piece of candy from a supply which Mr. Thomas kept in his desk drawer. Mr. Thomas would ask Ms. Warfel to kiss his cheek prior to giving her candy, and Ms. Warfel would comply with his request. Sometimes Mr. Thomas would tickle Ms. Warfel near her rib cage or below her belt and to the sides of her abdomen, in an area Ms. Warfel described as near her ovary. Mr. Thomas discussed sexual matters in the classroom in Ms. Warfel's presence, including discussing his sexual relationship with his wife. Ms. Warfel was embarrassed by Mr. Thomas' conduct. Marisol Eschevarria-Sola was enrolled in Mr. Thomas' class during the first semester of the 1986-87 school year and the first semester of the 1987-88 school year. There were approximately five students in the class. At the time of her deposition, Ms. Eschevarria-Sola was 20 years old. Mr. Thomas, at least once, touched or stroked Ms. Eschevarria-Sola's leg, around her knee and thigh, and also touched her back. The physical contact, which occurred while she was seated at the computer console, made her uncomfortable. She expressed her discomfort when such touches occurred. Mr. Thomas explained that he was attempting to warm his hands. She saw Mr. Thomas touch other students in her class in like manner. At least once, Mr. Thomas requested that Ms. Eschevarria-Sola kiss him in exchange for a pencil she wanted to borrow. Although she was uncomfortable with the situation, she complied with his request. On another occasion, Mr. Thomas requested that he be permitted to kiss her and she complied. Ms. Eschevarria-Sola recalled Mr. Thomas discussing sexual matters in class, including his relationship with his wife, but could not specifically recall the details of the discussion. Mr. Thomas also joked about the bodies of the students in his class. Ms. Eschevarria-Sola was embarrassed by the jokes or language. Students at the FSDB are required to attend a course entitled "Talking About Touching", which provides instruction related to self-protection from potential physical abuse. Students are taught to classify physical contact as "good", "bad" or "confusing". "Good" touches would include such positive contact as a pat on the back. "Bad" touches would include touches which are physically uncomfortable and negatively perceived by the recipient, such as slapping or inappropriate sexually-oriented contact. "Confusing" touches are those which may be positively intended but which are perceived by the recipient to be inappropriate or which make the recipient uncomfortable. Students are taught that "confusing" and "bad" touches should be reported to responsible authorities at the school. The record is unclear as to whether the students alleging that Mr. Thomas' touches were "confusing" had taken the course prior to being in Mr. Thomas' classroom. Some students at the FSDB may have reached majority. Students may remain enrolled at the FSDB beyond the age of students enrolled in other high schools. A teacher is held to the same standards of classroom behavior regardless of the students ages. Mr. Thomas had been present during an FSDB staff meeting during which reference to appropriate and inappropriate classroom conduct was made by supervisory personnel, and consequences of improper conduct were discussed. Officials at the FSDB became aware of allegations related to the classroom conduct of Mr. Thomas, when, on May 24, 1988, the allegations were reported to Mr. Robert Dawson, President of the FSDB, by a female student, Marisol Eschevarria-Sola. Ms. Eschevarria-Sola had, on the previous evening, participated in a dormitory gathering with other female students during which Mr. Thomas' conduct was discussed. (Some students are enrolled at the FSDB on a residential basis and live in dorms at the school.) At the direction of the FSDB President Robert Dawson, the allegations were immediately investigated by Ms. Debra Boles, Assistant Principal for Academic Instruction. Ms. Boles initially interviewed five hearing-impaired female students, including Ms. Eschevarria-Sola and Ms. Warfel, who provided information substantially similar to their testimony at the administrative hearing. The initial interviews were solely between the individual students and Ms. Boles, who is skilled at signed communication. The student interviews indicated that some students were "confused" by Mr. Thomas' conduct. Ms. Boles immediately reported her findings to Mr. Dawson, who directed that Mr. Thomas be placed on administrative leave with pay pending further inquiry into the allegations. On May 24, 1988, Ms. Boles verbally informed Mr. Thomas and his immediate supervisor that Mr. Thomas was being placed on administrative leave with pay pending further investigation. Ms. Boles explained that there were allegations of inappropriate physical contact made by unidentified female students of Mr. Thomas. Ms. Boles informed Mr. Thomas that such inappropriate contact included touching female students "on the back, on the shirt or on the thighs. " By letter dated May 24, 1988, Mr. Dawson confirmed that Mr. Thomas was placed on administrative leave with pay, effective May 25 through June 8, 1988, while under investigation for "inappropriate Staff/Student Relationships" constituting violation of referenced sections of the Florida Administrative Code related to the Code of Ethics of the Education Profession in Florida. At Mr. Dawson's direction, Ms. Boles, on or about May 27, 1988, interviewed 29 students, all of whom are hearing-impaired, who had been students of Mr. Thomas at some time during their enrollment at the FSDB. The interviews were conducted individually. The interviews between Ms. Boles and the individuals were conducted through a registered interpreter. Of the 29 interviewed, 22 of the students expressed no concern related to Mr. Thomas' classroom conduct. Among the students interviewed were Ms. Middlebrooks and Ms. Lents, who provided information substantially similar to their testimony at the administrative hearing. Ms. Boles provided the information gained through the student interviews to Mr. Dawson. The matter was referred to the FSDB Personnel Director for further action. Pursuant to the aforementioned letter of delegation, Samuel R. Visconti, Director of Personnel for the FSDB, is responsible for employee disciplinary actions, including employment termination procedures. At the time Mr. Visconti was informed of the allegations, Mr. Thomas had been placed on administrative leave and the school was investigating the matter. Mr. Visconti was aware of the recommendations made by Dr. Randall, Mr. Dawson and Ms. Boles. Ms. Boles recommended that Mr. Thomas' employment at the FSDB be terminated for violation of professional standards. Dr. Randall recommended that Mr. Thomas' employment at the FSDB be terminated due to inappropriate conduct in the classroom. Dr. Randall has substantial experience with the deaf and observed that the physical contact which occurred in Mr. Thomas' classroom was not of the type which one hearing- impaired person would use to gain the attention of another. Mr. Dawson recommended that Mr. Thomas' employment at the FSDB be terminated. Mr. Dawson, who has extensive experience with the deaf, believed that the physical contact, sexual discussions, and attempted equalization of the teacher-student relationship had rendered Mr. Thomas ineffective as a teacher. According to Mr. Visconti, the termination procedure at FSDB requires notification to the employee of the intended action which is predicated on the allegations of either incompetence or misconduct. Prior to termination, the employee may or may not be placed on administrative leave during the school's inquiry into the allegations. Following the school's investigation, the employee is contacted and offered the opportunity for a predetermination hearing at which the employee may provide information relevant to the proposed disciplinary action. Within five days following the hearing, the employee is notified in writing, and perhaps verbally, of the school's decision. Mr. Visconti contacted Mr. Thomas either late in the afternoon of June 6 or early in the morning of June 7, 1988, to arrange a predetermination hearing. The communication between Mr. Visconti and Mr. Thomas was through telephone and TDD, a device that permits the transmission of apparently written communication through telephone lines. Mr. Visconti is not hearing-impaired. The record does not indicate whether Mr. Visconti understands signed communication. By agreement between Mr. Visconti and Mr. Thomas, the conference was scheduled for the afternoon of June 7, 1988. During the TDD communication, Mr. Visconti explained to Mr. Thomas that the school had completed the investigation of the allegations of improper classroom conduct, and restated the allegations. Mr. Visconti explained that Mr. Thomas was being offered the opportunity to meet with Mr. Visconti and present "his side of the story...." Mr. Thomas was informed that he could provide information orally or in writing, and was further informed that he could "bring anyone with him that he felt would help him in supporting anything that he wanted to present...." Mr. Thomas and Mr. Visconti agreed that Dr. Randall would serve at the meeting as interpreter. Mr. Visconti received from Ms. Boles, a package of materials, dated June 7, 1988. The package included Ms. Boles' notes taken during or subsequent to her interviews with the students. Present at the June 7 meeting were Mr. Visconti, Mr. Thomas, Dr. Randall, and Mr. Thomas' wife. Prior to the meeting, Mr. Visconti informed Mr. Thomas that the sexually-related allegations would be specifically addressed and inquired as to whether Mrs. Thomas would be embarrassed. Mr. Thomas indicated that the meeting could proceed. At that time, Mr. Visconti restated the incidents of inappropriate conduct upon which the school intended to base the disciplinary action and explained the authority under which the FSDB was acting. Mr. Thomas attempted to address the allegations at that time, but offered no witnesses. At the conclusion of the meeting, Mr. Visconti informed Mr. Thomas that a decision would be issued within several days. On the morning of June 8, 1988, Mr. Thomas contacted Mr. Visconti and requested an additional meeting to offer further explanation. The meeting, held that afternoon, was attended by Mr. Thomas, Mr. Visconti, and Dr. Randall. Mr. Thomas offered a typewritten statement, suggesting a rationale for the accusations made against him, which apparently reiterated information he had provided at the prior conference. Upon the conclusion of the June 8, 1988 meeting, Mr. Visconti terminated Mr. Thomas' employment, effective immediately. Mr. Thomas was officially dismissed by letter of June 10, 1988 from Mr. Visconti. The June 10 letter states that he was dismissed from employment for "doing the following to female students: rubbing backs, tickling backs under student's blouses, rubbing student's thighs, asking sexually related questions of students, discussing sexually related topics regarding your personal life, and asking for kisses in exchange for items such as pencils or pieces of candy." The letter informed Mr. Thomas of his right to appeal the determination through the administrative process and his union grievance procedure. Mr. Visconti determined that, based upon the information and recommendations presented to him by Dr. Randall, Mr. Dawson, Ms. Boles and Mr. Thomas, that just cause existed for the termination of Mr. Thomas' employment at the FSDB. Mr. Visconti determined that Mr. Thomas had violated the Code of Ethics as set forth in administrative rules and that the improper classroom conduct had rendered Mr. Thomas ineffective as a teacher and had placed students at risk. At the administrative hearing, Mr. Thomas sought to explain the physical contact as serving to gain the attention of, or to calm, hearing- impaired students. Mr. Thomas claims that he touched Ms. Middlebrooks' back as a means of addressing the frustration she supposedly felt at the difficult computer work required in the class and stated that he did not know she found it objectionable. Mr. Thomas testified that Ms. Lents instigated the hugging incidents, and that he told her to stop, but she continued. Mr. Thomas claimed that he once touched Ms. Warfel's back under her blouse on a day when Ms. Warfel wore a prohibited bare midriff blouse to class and that his hand accidently touched her bare skin while he was reminding her that such blouses were prohibited. Mr. Thomas denied that he requested a kiss from Ms. Warfel, but suggested that Ms. Warfel kissed him because he was her "favorite teacher". Mr. Thomas denied tickling Ms. Warfel. Mr. Thomas explained that he possibly touched Ms. Eschevarria-Sola's leg as a means of gaining her attention while she sat at the computer console, but claimed he never touched the inside of her thigh. Mr. Thomas denied that Ms. Eschevarria-Sola kissed him or that he kissed her. As to sexually-oriented conversations, Mr. Thomas denied having made such remarks. Mr. Thomas' testimony was less credible than that of the students who testified at the hearing. At the administrative hearing, Mr. Thomas offered no rationale to suggest the reason behind the student's allegations. The typewritten statement provided to Mr. Visconti on June 8 by Mr. Thomas suggests that the allegations were the work of Senior class students, supposedly disappointed with his decision not to invite them to his home for a social event, as he had apparently done on an occasional and irregular basis in previous years. However, those students testifying generally had favorable opinions of Mr. Thomas, other than as to his specific conduct to which they objected. There is no evidence to support the inference that the allegations were untruthful and that they were intended as retribution for the omitted social activity. Evidence was introduced indicating that hearing-impaired persons are more likely to touch each other than are non-hearing-impaired persons. Such touches are to gain another's attention or to express emotion. The evidence does not support the suggestion that Mr. Thomas' classroom conduct was designed to gain the attention of the students or express emotion. Ms. Boles testified that some of Mr. Thomas' classroom behavior indicated the potential for sexual abuse by Mr. Thomas, however, the testimony to this point was not persuasive. Ms. Boles' opinion was, at least in part, based upon her discussions with an independent psychologist who serves as a consultant to the school on matters related to sexual abuse prevention. According to Ms. Boles, the consultant stated that a "psychosexual evaluation" of Mr. Thomas was necessary to determine the potential for sexual abuse. The school did not follow the consultant's recommendation. Although Mr. Thomas' behavior was inappropriate, the evidence does not suggest that Mr. Thomas sexually abused students and the testimony related to Mr. Thomas' potential for sexual abuse is not credible.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Trustees for the Florida school for the Deaf and the Blind enter a Final Order finding that just cause exists for terminating the employment of Bradley Thomas. It is further RECOMMENDED that the Education Practices commission enter a Final Order permanently revoking teaching certificate, #486268, held by Bradley Thomas. DONE and RECOMMENDED this 19th day of September, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 19th day of September, 1989. APPENDIX CASE NOS. 88-3425 and 88-5675 Proposed findings of fact were filed by the Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425 and Betty Castor, as Commissioner of Education, Petitioner, Case No. 88-5675. The following constitute rulings on proposed findings of facts submitted by the parties. The proposed findings of fact are adopted as modified in the Recommended Order except as follows: Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425 4. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial. 6. Reference to the Department of Health and Rehabilitative services rejected, immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay. 15. Rejected, irrelevant. Last sentence rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. 20. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex. 26. Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. Rejected, not supported by the weight of the evidence. The testimony cited does support the proposed finding. Reference to the Department of Health and Rehabilitative Services rejected, immaterial. Betty Castor, as commissioner of Education, Petitioner, Case No. 88-5675 7. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial. 9. Reference to the Department of Health and Rehabilitative Services rejected as immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay. 15. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex. Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. Rejected, unnecessary. 29. Characterization of testimony as evasive and inconsistent is rejected, unnecessary. COPIES FURNISHED: William J. Sheppard, Esq. 215 Washington Street Jacksonville, FL 32202 Barbara J. Staros, Esq. State Board of Education Knott Building Tallahassee, FL 32399 Betty J. Steffens, Esq. 106 South Monroe Street Post Office Box 11008 Tallahassee, FL 32302 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, FL 32399 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, FL 32399 Robert Dawson, President Florida School for the Deaf and the Blind 207 San Marco Avenue St. Augustine, FL 32084
