Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to these proceedings, respondent was employed as a distributive education teacher at Coconut Creek High School. Respondent was also a sponsor or teacher coordinator for DECA -- Distributive Education Clubs of America. As such he was appointed, with the approval of the School's principal, as a chaperone for the Coconut Creek High School students attending the DECA national convention in Chicago, Illinois, from May 8, 1976, through May 13, 1976. Prior to attending said national convention, respondent was aware of those provisions of the Coconut Creek High School teachers' handbook pertaining to chaperones' and students' responsibilities on field trips. All distributive education teachers and students who were to attend the national conference in Chicago had a meeting on April 27, 1976, to discuss the rules and regulations which were to be followed at the conference. While the curfew hour set in the teachers' handbook for students on field trips was midnight, the curfew at the national convention was set at 2:00 A.M. and this curfew was adopted by respondent for his students. Among the students for whom respondent had responsibility as a chaperone were four females who were assigned a hotel room located across from respondent's room. At curfew time each evening, it was respondent's practice to check in on his students and then retire to his room, leaving his door ajar about six inches so as to be able to hear any disturbances. On the morning in question, May 13, 1976, which followed the last night of the convention, respondent started his "rounds" to check on his students at approximately 1:45 a.m. Assured that his students were all in their respective rooms, at about 2:15 a.m. respondent went back to his hotel room and went to sleep, rather than attending a party or gathering which other teacher/chaperones attended. At approximately 4:00 a.m., respondent was awakened by noises in the hall. He got up to see where the noises were coming from and found several teacher/chaperones from Broward County standing in the door way to his female students' room. It appeared to respondent and one of the female students who testified at the hearing that at least some of these teacher/chaperones had been drinking alcoholic beverages. Respondent considered some of these persons to be his immediate supervisors inasmuch as they were employed at the county and state levels. In order to ascertain what was happening, respondent dressed and went over to the girls' room. He took no affirmative action to remove the teacher/chaperones from the room. He sat on the couch in the room and fell asleep. When he awoke between 5:00 and 6:00 a.m., the other chaperones had gone and he then left and returned to his room. Prior to leaving for the convention, respondent instructed his students not to bring or consume any alcoholic beverages at the convention. While in the girls' room on the morning in question, respondent noticed a beer can in the trash receptacle. Having never seen any of his students consume alcoholic beverages at the convention and realizing that the other chaperones had been drinking on the morning in question, respondent did not make inquiry of his students as to the beer can. There was evidence that one of respondent's female students had consumed alcoholic beverages in her room while attending the convention. However, there was no evidence that respondent or any other chaperone attending the convention had any knowledge of or reason to suspect that this occurred. No complaints were received by the school principal or the administration from either parents or students concerning activities at the convention.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent be immediately reinstated to his former position and that his back salary be paid to him for the reason that the charges against him were not sustained by the evidence. Respectfully submitted and entered this 16th day of September, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: School Board of Broward County 1327 S.W. 4th street Ft. Lauderdale, Florida Mr. Leonard Fleet 4001 Hollywood Boulevard . Hollywood, Florida 33021 Mr. Ronald G. Meyer 341 Plant Avenue Tampa, Florida 33606
Findings Of Fact Respondent, Otis J. Fells, has been an employee of the Petitioner, School Board of Dade County, since 1975. At all times material hereto, he was a teacher and basketball coach at American Senior High School. On September 8, 1981, Paulette Brown was fifteen years of age, a student at American Senior High School, and a student in Respondent's sixth period physical education class. Monday, September 7, 1981, was Labor Day. Since classes for the 1981- 82 school year had commenced the week prior to Labor Day, American Senior High School was closed on Monday and reopened on Tuesday, September 8, 1981. On September 8, Respondent reported to American Senior High School to carry out his teaching and coaching duties. Since the floor of the gym was being painted, and since the school year had just begun so that not all physical education students had their gym clothes, the physical education classes were held in either the auditorium or the gym as study-halls, and the students wore their regular clothing. Between 9:30 and 10:30 the morning of September 8, Norman Blanco, a volunteer assistant basketball coach, came to American High to talk to Respondent about holding tryouts for the basketball team for the new school year. Since Respondent was with a class, Blanco told Respondent he would return after school to discuss that matter. Both the sixth period classes and the school day ended at 2:15 P.M. Respondent's sixth period physical education class had been held in the auditorium. James Lee, one of Respondent's sixth period students, asked Respondent for a ride home after school, and Respondent agreed to give Lee a ride home. Respondent left the auditorium and went to the main office to sign out and check his mail. He started to walk toward the boys' locker room, but stopped to speak to the art teacher about the eagle emblem to be placed on the gym floor by the art students. He then went to the gym to get the paint for the floor and took the paint to the art teacher's room, where he left it, although the art teacher was no longer there. Respondent then went to the coaches' office, where Blanco was waiting. From past experience, Blanco knows that if he arrives at American High at 2:15, he cannot find a place to park. He usually arrives about fifteen minutes after school lets out so that all the cars are gone and he can park wherever he wishes. On September 8, he arrived at American High at approximately 2:20 P.M. He went to the coaches' office to talk to Respondent. By the conclusion of their ten-to-fifteen minute meeting in the coaches' office, Blanco had talked Respondent into holding tryouts for the basketball team rather than simply using last year's team, as Respondent had intended to do. Blanco left Respondent in the coaches' office at approximately 2:35 P.M. There are two doors in the coaches' office: one opening into a hallway, and one opening into the boys' locker room. During Respondent's meeting with Blanco, the doors were open. After school on September 8 in the hallway outside the coaches' office, band members were going out to the football field, members of the flag corps were assembling for practice, and the cheerleaders were practicing approximately fifteen yards from the door into the coaches' office. In the boys' locker room, members of the cross-country team, the football team, and the soccer team were using their lockers or changing their clothes for practice. Additionally, the coaches' office is not Respondent's private office; rather, it is also used by the cross-country coach, the baseball coach, and the soccer coach, who are also involved with their students, their team members, aides, and managers. Inside the boys' locker room is a small room used for storing basketball equipment. The door to that room is kept locked. There are only three keys for that room: Respondent possessed one, Assistant Coach Jones possessed the second key, and the third key which traditionally was kept in the main office had never been returned after the girls' basketball team borrowed it one night the previous school year. After his meeting with Blanco, Respondent went to the main office, where he left his handwritten announcement concerning tryouts for the basketball team on the public address system. He then saw James Lee out in front of the school, directly in front of the main office. At approximately 2:45, from the main office, Respondent went to his car and left school with James Lee. When Lee arrived at his home, he told his mother that it was 3:00 and that Coach Fells had given him a ride home. After dropping off James Lee, Respondent went to Mr. B's Package Store and Lounge to see A. J. (Arnold) Johnson, one of the owners. Over the Labor Day holiday, Bobby Hunter, Assistant Basketball Coach from Boston College, visited Respondent and left sneakers for A. J. Johnson at Respondent's house. Respondent took the sneakers into Mr. B's and gave them to Johnson, who was waiting for the bank to open at 3:00 so he could transact some business at the bank. Johnson left Mr. B's to go to the bank at approximately 3:05, and when he returned from the bank, Respondent was still there. While Johnson was gone from Mr. B's, Respondent visited with Roscoe Large, the sales representative from Southern Wine and Spirits, and several other persons whom he also knew. After Respondent had been at Mr. B's for approximately thirty minutes, he left and drove to Coconut Grove to pick up his son at the baby-sitter's. On the following day, Respondent went to school and spent a normal day. After he arrived home on Wednesday, his wife told him that someone had been calling on the telephone accusing Respondent of raping Paulette Brown. The next morning, Respondent called the principal of American Senior High, and the principal advised him to stay home. On September 8, 1981, Paulette Brown stayed after school rather than leaving the school grounds when school adjourned for the day at 2:15. Between 2:30 and 2:45, she visited with Agnes Pitts and William Hopkins in the vicinity of the coaches' office and boys' locker room. When Agnes Pitts again saw Paulette Brown, it was approximately 3:00, and Brown was walking toward the front of the school. Brown told Pitts that she was going home. At approximately 3:00, Brown called her father and asked him to pick her up at school. After he picked her up and pursuant to her suggestions, they first picked up fried chicken for dinner and then picked up Paulette's brother when he got out of school at 3:30. Mr. Brown then took Paulette and her brother home and then went to pick up Paulette's mother, Pauline Brown, at 4:00 at her place of employment. Between 5:00 and 6:00 P.M. on September 8, 1981, Paulette Brown called her godsister, April Clark, and told Clark that Respondent had raped her. She also told her story to George Richberg that same evening. She also told her story twice to Jeffrey Clark. During her second relating of the story to Jeffrey Clark, she included mention of a janitor with a key to the boys' locker room. On Wednesday, September 9, Paulette Brown stayed home from school. After taking a nap, she called her boyfriend's sister and told her that Coach Fells had raped her. When the boyfriend's sister threatened to tell someone in a position of authority if Paulette refused to, Paulette told a neighbor, who told Mrs. Brown. Paulette Brown was tested at the Rape Treatment Center on September 9, and the investigators for the police department examined the equipment room on September 12. To gain entry to the room, the police drilled through the deadbolt lock. Five non-mobile sperm were found within Paulette Brown by the Rape Treatment Center. Testing by the Miami-Dade Police Department Crime Lab established that the sperm came from an individual that was an "O-positive secreter." This is the most common blood type. Forty percent of the American population falls in this category. Respondent is a member of this category, that is, Respondent is an "O-positive secreter." The Miami-Dade Police Department's fingerprint experts examined and dusted the equipment room at American Senior High School and found identifiable fingerprints of the Respondent. They found no identifiable fingerprints of Paulette Brown. The parties have stipulated that simply because one touches an object, one does not necessarily leave fingerprints. The sheet, which Paulette Brown claims she lay upon while having sexual intercourse with Respondent, was impounded from the equipment room and examined. Nothing of serological value was found. Respondent, Otis J. Fells, did not commit sexual battery upon Paulette Brown on September 8, 1981, and Respondent, Otis J. Fells, did not engage in any sexual activity with Paulette Brown on September 8, 1981.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Respondent not guilty of immorality and misconduct in office, as set forth in the Amended Notice of Charges filed in this cause, and reinstating Respondent as an employee of the School Board of Dade County with back pay. RECOMMENDED this 16th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1982. COPIES FURNISHED: Jose E. Martinez, Esquire Leib I Martinez, P.A. 201 Alhambra Circle, Suite 1200 Ponce de Leon Plaza Coral Gables, Florida 33134 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public Schools Administrative Office 1410 N.E. Second Avenue Miami, Florida 33132 Elizabeth J. du Fresne, Esquire du Fresne & du Fresne, P.A. 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton Superintendent of Schools Dade County Public Schools Administrative Office 1410 N.E. Second Avenue Miami, Florida 33132
The Issue Whether Respondent violated sections 1012.795(1)(f), (1)(g), and (1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a), as alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2016). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent holds Florida Educator's Certificate 1128573, covering the areas of Elementary Education, English, English for Speakers of Other Languages (ESOL) and Middle Grades Integrated Curriculum, which is valid through June 30, 2021. During the 2013-2014 school year, until her voluntary resignation effective June 3, 2015, Respondent was employed as a language arts teacher at Gulf Breeze High School. Since that time, Respondent has been employed as a third-grade teacher at a private Christian academy in Pensacola, Florida. Material Allegations The material allegations upon which the alleged violations are predicated are, in their entirety, as follows: On or about July 19, 2008, Respondent illegally operated a boat while under the influence of alcohol. As a result of conduct, she was arrested and charged with Boating Under the Influence. On or about February 18, 2009, Respondent was adjudicated guilty of Boating Under the Influence. In or around January 2015 through March 2015, Respondent provided a forum where underage students illegally consumed alcohol and/or consumed alcohol in the presence of students. This conduct includes, but is not limited to, instances: in or around February 2015, wherein Respondent provided alcohol to underage students; and on or about March 20, 2015, when Respondent drove to J.H.'s, a student's, home, while under the influence of alcohol, and thereafter, attempted to drive J.H. while so inebriated. On or about April 24, 2015, Respondent illegally operated a motor vehicle while under the influence of alcohol. On or about May 26, 2015, as a result of the aforementioned conduct, Respondent was arrested and charged with DUI-Second Conviction More Than Five (5) Years After Prior Conviction. On or about April 7, 2016, Respondent pled nolo contendere to an amended charge of Reckless Driving; adjudication was withheld. Count 1 Count 1 alleged a violation based upon Respondent having “been convicted or found guilty of, or entered a plea of guilty to, regardless of adjudication of guilt, a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.” The Count was based on the two incidents described in paragraphs 3 and 5 of the Amended Administrative Complaint as follows: Boating Under the Influence -- 2008 On or about July 19, 2008, Respondent was maneuvering a boat onto a trailer at the Navarre Beach boat ramp. Her husband was driving their vehicle, and had backed their trailer into the water. As a result of actions at that time, Respondent was placed under arrest for Boating Under the Influence (BUI), a misdemeanor (her husband was arrested for Driving Under the Influence). Respondent entered a plea of no contest to the BUI offense and, on February 18, 2008, was adjudicated guilty. Subsequent to the final hearing, counsel for Petitioner researched the issue and discovered that the incident occurred prior to Respondent’s initial certification as a teacher. As a result, Petitioner correctly concluded and stipulated “that no disciplinary action should be taken as a result of this conviction.” Driving Under the Influence -- 2015 On April 24, 2015, Respondent and a friend drove, in the friend’s car, to Pensacola Beach for drinks. Respondent left her car in a Publix parking lot. Upon their return, Respondent correctly perceived that she was not fit to drive home. Her phone was dead, so she got into her car and started it in order to charge the phone. She called her son and asked that he come pick her up. At some point after calling her son, Respondent called her soon-to-be ex-husband, from whom she was in the process of a bitter divorce, and engaged in a heated and animated discussion with him. A complaint was called in, and Officer Kidd was dispatched to the scene. Upon his arrival, Officer Kidd observed Respondent in her car, with the engine running, “yelling at someone on the phone.” He noticed a bottle of Crown Royal in the center console. Respondent refused to perform field sobriety tasks. Office Kidd’s observations of Respondent while she was in the car and upon her exiting the car led him to believe that she was impaired. Respondent had been in the car, with the engine running, and was clearly in control of the vehicle regardless of her intent to drive. Although Respondent’s son arrived on the scene to take her home, Respondent was arrested and transported to jail.2/ Respondent was charged with DUI. The charges were reduced, and she entered a nolo plea to reckless driving. The trial judge withheld adjudication. Count 2 Count 2 alleged a violation based upon Respondent having “been found guilty of personal conduct that seriously reduces that person’s effectiveness as an employee of the district school board.” The Count was based on the incidents described in paragraph 4 of the Amended Administrative Complaint. March 20, 2015 -- The Garage On or about March 20, 2015, over spring break, Joshua Hartley was at Pensacola Beach with friends, including Respondent’s son. He had his father’s car. Apparently, Joshua’s father, Jon Hartley had been trying for some time to reach Joshua and have him return the car. Joshua and his group of friends had plans to stay at the beach into the evening. Respondent’s son suggested that Respondent, who he knew to be at the beach, could follow Joshua home, and then return him to his friends at the beach. Respondent was called, and she followed Joshua from the beach to his house, a drive of perhaps 15 minutes. When Joshua and Respondent arrived at the house, Mr. Hartley, Ms. Barrett, and a third man were sitting and drinking in the open garage. Other than agreement that Respondent and Joshua showed up at the house at the same time, the description of the events by Joshua Hartley, Mr. Hartley, and Ms. Barrett were so divergent that the three might well have been in different places. Ms. Barnett described the incident as occurring between 8:00 and 8:30 p.m., when it was dark. She testified that Joshua and Respondent pulled up in separate vehicles, and that Mr. Hartley initially approved of Joshua returning to the beach with Respondent as a good deed, since Joshua purportedly indicated that “she’s really drunk.” She indicated that Joshua got into the passenger seat of Respondent’s vehicle, whereupon Respondent put the vehicle in gear, and lurched forward, almost hitting Mr. Hartley’s vehicle. At that time, Ms. Barrett indicated that Mr. Hartley ran down, startled by the driving error, told Joshua that he could not go with her, and offered to let Respondent stay with them until she sobered up. Ms. Barrett further described Respondent as essentially falling out of her bathing suit, barefoot, staggering, with slurred and vulgar speech, and highly intoxicated. After about an hour, and as Respondent was preparing to leave, Ms. Barnett testified that Joshua, who had remained with the adults in the garage since his arrival, went to his room. Ms. Barnett testified that Respondent then excused herself to use the restroom. Ms. Barnett testified that after 15 minutes or so, she went inside, and found Respondent “exiting Joshua’s bedroom.” Her description of the event is not accepted, and her veiled insinuation that something improper occurred -- for which no evidence exists -- did not go unnoticed. Mr. Hartley described the incident as occurring between 6:00 and 7:00 p.m. He testified that Joshua and Respondent arrived at the house in Respondent’s car with Joshua as the passenger. He was “positive” that Joshua was not driving because he was 15 years old and did not have a driver’s license. When they pulled into the driveway, Mr. Hartley testified that he walked down to the vehicle and that Joshua got out of the car. Mr. Hartley was unsure if Joshua stayed in the garage at all, but at most went to his room after a matter of minutes. Respondent joined the adults in the garage. Mr. Hartley indicated that Respondent “looked like she had been at the beach” and, though her speech was not slurred, he could tell she had been drinking because he could smell alcohol and by “the way she was speaking.” His description of Respondent was far from the florid state of intoxication as described by Ms. Barnett. Mr. Hartley offered no description of Respondent’s vehicle lurching forward, Respondent staggering, or of Joshua asserting that Respondent was really drunk. Finally, his concern that “the grown, intoxicated woman [as described by counsel in his question] was in your 15 year old son’s bedroom” was based solely on Ms. Barnett’s description of what she claimed to have seen. Joshua testified that he drove to his house in his father’s black Lincoln Aviator, and that Respondent followed in her white Ford Expedition. It was daylight, around 4:00 in the afternoon. Upon their arrival, Respondent pulled onto the grass next to the driveway. Mr. Hartley was mad, possibly about Joshua having the car, would not let him return to the beach, and sent him to his room within a minute of his arrival. Joshua testified that Respondent was in typical beach attire. He had no complaint as to Respondent’s actions either at the beach or at his house, and did not see her drinking. He did, however, indicate that “they” told him that “she might have been drunk or something.” He testified that after Respondent spent some time with the adults in the garage, she then went inside to use the restroom. Joshua’s door was open, and Respondent stood at the door and apologized if she had gotten him into trouble. She then left. Given the dramatic divergence in the stories of the witnesses, the evidence is not clear and convincing that anything untoward occurred when Respondent agreed to give Joshua a ride to his house to return his father’s car, and offered to return him to his friends at the beach. Though credible evidence suggests that Respondent had alcohol on her breath, there was no evidence that she was “under the influence of alcohol,” that she was not able to lawfully drive a vehicle, or that Joshua suspected that she had been drinking. Ms. Barrett’s more dramatic testimony that Respondent was drunk and staggering, falling out of her clothes, with her speech slurred and profane, and the intimation that she was in Joshua’s bedroom in that condition, is not accepted. The evidence adduced at the hearing was not clear and convincing that, on March 20, 2017, Respondent engaged in personal conduct that seriously reduced her effectiveness as an employee of the district school board. February 15, 2015 -- Mardi Gras There was a good bit of evidence and testimony taken that Petitioner was seen drunk and staggering down the street at the 2015 Pensacola Mardi Gras, and was seen and assisted by students in that condition. However, the basis for the Amended Administrative Complaint was not that Respondent was publically intoxicated, but that she “provided alcohol to underage students.” Pensacola has a Mardi Gras event with a parade and floats. In 2015, “Fat Tuesday” was on February 17. The big 2015 Mardi Gras parade was on Sunday, February 15. Respondent had a group of friends that were in a Mardi Gras Krewe and she had been helping them with the float. She apparently drank a good bit. By the time her friends were ready to join the parade, around noon to 1:00 p.m., Respondent determined that she was drunk enough that she should go to the hotel room the group had rented. Unlike the evidence for the “Garage” incident, the evidence was convincing that Respondent was very intoxicated. Ms. Smith testified that Respondent joined a group of alumni and students at a Subway parking lot where they had gathered to watch the parade. The evidence is persuasive that Respondent came upon the scene by happenstance, and that the parking lot was not her destination. While there, Respondent very likely consumed one or more “Jello-shots.” However, the suggestion that Respondent was in any condition to have brought the Jello-shots with her to the parking lot is rejected. Rather, the evidence supports that the shots were there, and that she partook. It would not have been out of character for Respondent to have taken them and handed them around. Furthermore, the testimony that Respondent was distributing beers to students is, for the same reason, simply not plausible. After a while, Ms. Smith, followed but not assisted by Mr. Brayton, assisted Respondent to her hotel. Respondent was, by this time, in a state colloquially known as “falling-down drunk.” She could not walk unassisted, and at one point laid down on a picnic table. It was at this time that Respondent and Ms. Smith were photographed, a picture that received some circulation. Ms. Smith finally delivered Respondent to her hotel, where Respondent’s son saw them and relieved Ms. Smith of any further duties. Mr. Brayton’s testimony that he thereafter entered Respondent’s hotel room was not supported by Ms. Smith or others. His testimony regarding Respondent’s son and his friends at the hotel was not clear and convincing. January 2015 -- The House Party Amelia Smith testified to an alleged incident in the fall of 2014 in which she was at Respondent’s house and students were having a party in the garage at which students were drinking. There was no allegation in the Amended Administrative Complaint as to any event in the fall of 2014. Ms. Klisart testified to an incident involving students drinking at Respondent’s house around the Martin Luther King holiday, which in 2015 was on January 19. That corresponds to Petitioner’s statement that she returned to her house after an evening celebrating her birthday,3/ to find her son and his friends having a party in the garage at which students were drinking. The allegation in the Amended Administrative Complaint that Respondent provided a forum where underage students illegally consumed alcohol in January 2015 was adequately pled. The evidence supports a finding that Respondent had been drinking when she arrived at her house. The evidence is not clear and convincing that she joined the students in the garage, but she clearly knew the party was ongoing, that it involved high school students, that the students were drinking, and that she made no effort to put a halt to the party. Notoriety of the Incidents The evidence is clear and convincing that the incidents described herein were widely known by students at Gulf Breeze High School, by other teachers, and by the school administration. Counts 3 and 4 Count 3 alleges that “Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.” Count 4 alleges “that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to student's mental health and/or physical health and/or safety.” Rule 6A-10.081(3)(a) “does not require evidence that Respondent actually harmed [a student’s] health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2012; EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, by allowing, if not condoning, student drinking at her home in January 2015, failed to make reasonable effort to protect students from harm.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated sections 1012.795(1)(g) and (1)(j), and rule 6A- 10.081(3)(a). It is further recommended that Respondent be placed on probation for a period of five years, and be required to obtain treatment through the Recovery Network Program at a frequency and for a duration deemed appropriate by the Education Practices Commission. DONE AND ENTERED this 7th day of June, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2017.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes (2017),1/ and Florida Administrative Code Rule 6A-10.081(2)(a)1. and 8., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Uncontested Facts by the Parties Respondent holds a valid Florida Educator’s Certificate No. 1046827, covering the area of Biology, which is valid through June 30, 2020. At all times pertinent to this matter, Respondent was employed as a Biology teacher at Miami Palmetto Senior High School (“MPHS”) in the Miami-Dade County School District. Respondent knew A.T. was a student at MPHS during the 2015-2016 school year and had tried out for the school’s lacrosse team in late January 2016. Respondent sent a text message to A.T. on December 19, 2016, stating, “How are you?” Respondent sent and exchanged text messages with A.T. in March 2017. Respondent met and engaged in sexual intercourse with A.T. in late March 2017. Respondent resigned from his employment with Miami-Dade County Schools on May 3, 2017, citing “personal reasons.” Additional Findings of Fact Petitioner, as Commissioner of Education, is responsible for investigating and prosecuting complaints against individuals who hold Florida educator certificates, and are alleged to have violated provisions of section 1012.795. Respondent is a highly effective educator who, over the course of his ten-year career, has earned the respect of his former principal and science department head, as well as parents and students with whom he has come in contact. The allegations of misconduct in this case have not altered the high professional regard in which Respondent is held by Principal Victoria Dobbs; Science Department Head Pamela Shlachtman; parent and lacrosse team booster club president Nicola Rousseau; and former student, lacrosse player, and the daughter of Nicola Rousseau, Samantha Rousseau. Each of these witnesses testified that their knowledge, observations, and experience working with Respondent led them to believe that he never would have had any type of relationship with a woman he believed to be a high school student. Each of these witnesses testified that, to the best of their knowledge, they had never seen or heard reports of any inappropriate conduct between Respondent and a student. Principal Dobbs bragged in a letter about Respondent and the support of his peers in voting him Science Teacher of the Year. She testified that in her 12 years of service at MPHS, the last three of which she was principal, she had no concerns with Respondent regarding inappropriate relationships with students. To the contrary, she recalled him as a very good teacher, who participated in many school activities and field trips. He also served as coach for the girls’ lacrosse team. Principal Dobbs further testified that she was never informed that Respondent had been accused of having an inappropriate relationship with a student at her school. She was only made aware of a request by the school district for Respondent’s computer. She testified that if she had believed Respondent had an intimate relationship with a high school student, she would not have employed him. Ms. Shlachtman has been employed at MPHS since 2001 and has been a teacher since 1984. She affirmed her previously written statement supporting Respondent, and testified she had participated in the hiring and selection of Respondent ten years previously as a marine biology teacher. She stated that he had “the soul of an educator.” As a member of Ms. Shlachtman’s staff, Respondent had chaperoned multiple field trips, including extended travel with students and staff for the Enviro Team, and to state and national competitions in Montana and Toronto, Canada. Having seen Respondent react with both male and female students on seven- and ten-day trips, she never had a concern or received a complaint. She also knew girls on the lacrosse team and had never heard a concern reported from there. She noted that Respondent had the opportunity to be alone with students on multiple occasions, and no concerns or inappropriate behavior was ever reported. She would rehire Respondent on her staff again, if given the opportunity. Ms. Rousseau, the mother of three daughters who trained with Respondent at his CrossFit gym, also served as president of the girls’ lacrosse team booster club. She affirmed her previous letter of support for Respondent and testified about her commitment to Respondent as a trainer for her three daughters at his gym, which she said would continue. Additionally, Samantha Rousseau, Nicola’s daughter, and a full-time student at the University of Florida, confirmed her support for Respondent. While a student at MPHS, she had served as assistant captain of the girls’ lacrosse team during her senior year (2014), while Respondent was the team coach. She had known Respondent since she was a sophomore student in his Television Production class; she had traveled with Respondent to Los Angeles as part of his class; and had ridden numerous times on the team bus with Respondent. She testified that she believed Respondent would not have been involved with A.T. had he known she was a high school student. Respondent first encountered A.T. during MPHS lacrosse tryouts in late January 2016. A.T. was a junior at that time. Respondent had no further contact with A.T. until he sent her a December 12, 2016, text stating, “Hi! How was your weekend? You missed out on Saturday morning [referring to a workout designed for lacrosse players at CrossFit gym].” A.T., still a student at MPHS at the time of this text message, never replied to it. On March 15, 2017, Respondent sent another text message to A.T., stating, “Hey, what’s up? How have you been?” The remaining text messages sent by Respondent to A.T. were undated, but were sent between March 15 and their sexual encounter in late March. The text messages were sexually graphic. The messages sent by Respondent included explicit photographs, and while those sent by A.T. had explicit photographs, they were removed to protect her privacy. A.T. was a student at MPHS through December 2016. On January 12, 2017, the Miami-Dade School District conducted a conference to formulate an Individual Education Plan (IEP) for A.T. She was placed in a hospital/homebound program at that time and graduated from the virtual school in June 2017. She did not attend college during this time. Respondent never denied the one-time sexual encounter he had with A.T. On the day when the encounter took place, March 19, 2017, A.T. texted Respondent and asked if she could see him that night. A.T. was driven by a friend to Briar Bay Park where she met Respondent, who was already there and waiting for her in his car. She had sexual intercourse with him in his car. After their liaison, Respondent drove her home. A.T. and Respondent had no contact after that time. A great deal of testimony was elicited about whether Respondent texted or phoned A.T. and discussed her status as a student in March 2017. At different times during the investigation into the sexual encounter between A.T. and Respondent, he said he texted, instant messaged, or telephoned A.T. about her school. Respondent believed her to be taking courses at Miami Dade College (“MDC”) during the spring semester of 2017. In fact, she was a student at Brucie Ball Education Center (“Brucie Ball”), a virtual school where she took online courses to complete her high school education, graduating in June 2017. Respondent consistently believed, at the time of his interview by Detective Ochoa, during his deposition, and at hearing, that A.T. was in college and testified he was never told she was at Brucie Ball. A.T.’s memory is less clear. She testified she could not recall telling Respondent she was taking college courses, but there is no doubt she was enrolled at Brucie Ball during her final semester of high school and not at MDC. She remembers that she received a social media invite from Respondent to attend his CrossFit boot camp in December 2016. She recalls communicating back and forth via social media after that time, especially when Respondent texted her about missing her at boot camp. She and Respondent testified to multiple additional conversations via social media or texting, but many of those were not produced as evidence. When a three-month gap between their messaging occurred, Respondent testified that A.T. told him she had been backpacking in Africa with friends and, according to what he recalled she told him, she was taking courses at MDC. She did not recall having told him she was taking courses at MDC, but “guessed he knew” she was still a high school student because the previous year she had been a junior at MPHS. “It never came up,” she testified. While she could not recall having told Respondent she had been to Africa and was taking courses at MDC, A.T. testified she recalled many more text messages between Respondent and her that were not printed from her phone and introduced into evidence at hearing. According to A.T., she had not talked to Respondent about her upcoming 18th birthday on March 2, 2017. Yet, she invited him to the celebration at a club called “Do Not Sit on the Couch.” She also shared with him that she and her friends often visited another club called “Little Hoolies,” and invited Respondent to join them. Both of these clubs serve alcohol and are for adults over 21. Respondent did not join them at either club. A.T. did not recall any of these conversations at hearing. A.T. declined to be interviewed by Petitioner’s Professional Practices Services investigator. At hearing, she could not recall a request to be interviewed. Respondent assumed A.T. was older than 18 when they met at the park for sex, since he believed her to be taking classes at MDC; she hung out with her friends at two adult clubs; and she brought alcohol, a vapor pen, and THC oils with her when they met in the park. He did not believe this to be typical high school behavior. Respondent also believed A.T.’s absence from social media for three months before they had their encounter at the park was explained by her telling him she had been backpacking in Africa where he assumed she did not have readily available access to the Internet. He also believes this supported his understanding that A.T. was in college at that point, since three months of backpacking does not usually occur as part of a high school experience. Respondent consistently testified, from his statements to law enforcement to his appearance at hearing, that had he known A.T. was still a high school student, regardless of whether she was at the school where he taught, he would have never had an intimate relationship with her. Moreover, law enforcement never asked Respondent for his phone at the time of the investigation. After he learned A.T. had been a high school student in March 2017, when they had their one-time sexual relationship, on May 3 of that year he resigned his position as a teacher at MPHS for “personal reasons,” based upon advice he received from union representatives and an investigator, and to spare embarrassment to his school, colleagues, and family. At the time A.T. had entered into an IEP with Miami- Dade, her school was listed as South Miami Senior High School, not MPHS. This explains why Respondent never saw her again at MPHS in her final semester. There was no evidence presented that Respondent knew A.T. had not graduated from MPHS or that she had enrolled in either South Miami High School or Brucie Ball when she did not return to MPHS for the spring semester of 2017. Respondent’s assertion that he was unaware of A.T., an 18-year-old, still being in high school at the time of their March 2017 encounter, along with his cooperation with the investigation and admission at all times pertinent to it that he had a sexual relationship with A.T., renders his testimony more credible than A.T.’s concerning what Respondent knew about her status as a student. No evidence was produced that Respondent ever had an improper relationship with A.T. while she was under the age of 18. A.T.’s lack of candor and lack of cooperation with Detective Ochoa, the investigator on the case, as well as her incomplete memory of the various text messages with Respondent bring into question her truth and veracity when testifying against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the charges against Respondent in their entirety. DONE AND ENTERED this 23rd day of May, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2018.
The Issue The issue presented for decision in this case is whether Petitioner, the Pinellas County School Board (the "School Board"), should discipline Respondent, a teacher at Palm Harbor University High School ("Palm Harbor"), for classroom discussions provoked by the Columbine High School tragedy.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Since August 1994, Respondent has been employed as a high school classroom teacher by the Pinellas County School Board. During the 1998-1999 school year, Respondent taught world history, economics, honors economics, and law studies at Palm Harbor. He was also an assistant coach for the junior varsity football team. Prior to becoming a teacher, Respondent spent 15 years in the United States Air Force. During his military career, Respondent received extensive counter-terrorist training, including an individual terrorism awareness course aimed at instructing students on how to teach others to limit their vulnerability to terrorist selection and attack. Respondent came to teaching through the Department of Defense’s "Troops to Teachers" program, in which the military assists placement of retiring soldiers by paying a portion of their teacher salaries. On April 20, 1999, two students at Columbine High School in Littleton, Colorado, killed twelve of their fellow students and one teacher. The incident received massive press coverage. Pinellas County school administrators anticipated that the events at Columbine would be a matter of discussion in the schools the next day. Dr. Hinesley, the Superintendent of Pinellas County Schools, testified that his office made a "general communication" to all principals reminding them to have a safety plan and to calm the fears of parents and students. He testified that he left it up to the individual principals to decide whether to meet with their faculties to discuss a coordinated response to questions regarding Columbine. Bill Williamson, the Area I Superintendent directly responsible for Palm Harbor, testified that putting together a cohesive message for teachers to give students regarding Columbine was "an alternative," but that some individuals would have questioned the wisdom of a "boilerplate" message. Alec Liem, the Principal of Palm Harbor, testified that he made no communication to his teachers on the morning of April 21, 1999, as to how they should discuss Columbine with their students. He testified that the teachers are professionals and he expects them to teach their classes with the appropriate judgment, without specific direction from the principal. Mr. Liem testified that it was important for him as a school leader to present the issues to the school and discuss them openly. He went on the school’s closed circuit television system on the morning of April 21 and acknowledged that a tragedy had occurred on a high school campus in Colorado. He told the students that it was important they respect each other and recognize their differences as strengths, not weaknesses. He encouraged them to broaden their circles of friendship, to work closely with him to monitor safety on the campus, and to be "part of the solution and not part of the problem." Mr. Liem testified that his announcement was intended to set the tone for the day. He assumed that teachers would "follow that leadership in the classroom and provide opportunities for those types of discussions in the classroom." Respondent taught five periods of classes on April 21, 1999. He testified that there was no discussion of Columbine during first period, though he called for a moment of silence for the families after the Pledge of Allegiance. Respondent stated that the students in his second period class were "abuzz" over Columbine as they entered the classroom, and he therefore believed he should address the issue before commencing the day’s world history lesson. Respondent testified that this class was more inquisitive than the first, and asked many questions about events at Columbine. One student asked, "What’s a pipe bomb?" Respondent stated that another student piped up to give the address of an Internet site containing instructions on making pipe bombs. Respondent cut off the second student before he could give the address, saying, "We don’t need to do that. A pipe bomb is very devastating." Respondent testified that he told the students they need not be afraid of pipe bombs, because the investigation is likely to reveal that someone at Columbine knew what these students were up to and didn’t report it. He instructed his students to "keep a thumb on the pulse of people around you," to listen for threatening statements or hate sayings, to observe whether someone spends an inordinate amount of time on the Internet or reading "Soldier of Fortune" type publications, to note when "you see something like a pipe laying there" in someone’s house, and to report such things to school authorities. At this point, the students asked, "How will we know? What does a pipe bomb look like?" Respondent drew a simple sketch of a pipe bomb on the board. The drawing showed a pipe with caps on both ends, and a tail on one end representing a fuse. Respondent told the students that if they see a fellow student working on something that looks like this, they should report it. A student next asked what makes this device so deadly. Respondent answered that the maker will put "nails or something" in the pipe to do harm. He told the class that if they noticed someone taking a piece of pipe with end caps and packing it with nails or tacks "and possibly black powder," then they should report it. Respondent testified that his statements could not be termed "instructions" on how to construct a pipe bomb. He testified that he does not know how to construct a pipe bomb. He also stated that neither his drawing nor his discussion dealt with detonating devices such as blasting caps. The "fuse" he drew on the board was merely illustrative, not the means to actually detonate such a device. Respondent testified that nothing he said could be taken as encouragement to construct a pipe bomb. He emphasized to his students the extreme danger involved in dealing with explosives and that the most likely victims of pipe bombs are the people constructing them. A student then said that if someone threw a pipe bomb into the cafeteria at Palm Harbor, he would run from it. Respondent told the class that "terrorists don’t work that way. Terrorists will find where we’re most vulnerable to pre-place the bomb and then try to get you to circle in that area to detonate it." The students asked specifically about vulnerable areas of Palm Harbor, inquiring as to where they should look for bombs. Respondent spoke generally about being aware of their surroundings, and notifying the teacher if they walk into a classroom and see, for example, a backpack that doesn’t belong there. While emphasizing that the best protection is to spot a bomb before it has been placed, Respondent discussed the vulnerable areas of Palm Harbor: the library, the cafeteria, and the portable classrooms located in an open field behind the school. Respondent stated that the portables were a particular concern because the student population is evacuated to that area during fire drills or bomb threats. Respondent testified that the sketch of the pipe bomb may have stayed on the board for the remainder of the day. He testified that discussions similar to that held in second period also occurred during his fourth and fifth period classes. Respondent stated that none of these discussions lasted for more than five minutes, and that he completed his planned lesson in each of his five classes on April 21, 1999. Respondent testified that his purpose was to protect his students from harm. He believed the best way to do this was to empower them with knowledge of things they should look for around them, warning signs of the kinds of activities that culminated in the Columbine tragedy. His students were aware of his military background, and naturally came to him with technical questions regarding the previous day’s events. Respondent testified that he did not really think that all of his students were now able to go out and spot someone building a pipe bomb, but that "now they feel better knowing that they know how these people work, and they feel safe at school." On April 22, 1999, Robert Heinz, an Assistant Principal at Palm Harbor, received an anonymous phone call from a woman identifying herself as the parent of a Palm Harbor student. The caller told Mr. Heinz that Respondent had shown the class how to construct a pipe bomb and told the class that the most devastating impact on the school could be achieved by placing the bomb in a portable classroom, pulling the fire alarm to cause the students to assemble in the area of the portables, then detonating the bomb. Mr. Heinz reported the phone call to Mr. Liem, who instructed him to call the Office of Professional Standards ("OPS") and get specific directions on how to proceed. Mr. Heinz called OPS and spoke with Martha O’Howell, who is one of two OPS staff members who investigate allegations of employee misconduct and make recommendations as to discipline. Ms. O’Howell instructed Mr. Heinz to inform the School Resource Officer ("SRO"), the Pinellas County Sheriff’s Deputy assigned to Palm Harbor. Ms. O’Howell also contacted the SRO, Deputy David Webb. Deputy Webb contacted his superior, Sergeant John Davis, Jr., and told him he did not wish to conduct the investigation because it involved a teacher with whom he worked on a daily basis. With Sergeant Webb’s consent, Deputy Webb handed the investigation over to Deputy Peter Kolnicki, a substitute SRO who was scheduled to work at Palm Harbor on April 23, 1999. Deputy Webb phoned Deputy Kolnicki on the evening of April 22 to brief him on the matter. Deputy Webb provided Deputy Kolnicki with a list of students in Respondent’s classes. Deputy Webb highlighted certain names on the list as the best students to interview about the incident. Deputy Kolnicki stated that Deputy Webb believed these students "would be more truthful than others in the class." Deputy Kolnicki’s written report provides his summation of interviews with eleven students conducted on April 23, 1999. The student list provided by Deputy Webb contains handwritten notes by Deputy Kolnicki next to the names of more than eleven students, but the names of those students are mostly illegible. The written report indicates that five of the eleven students did not see a sketch of a bomb or hear Respondent discuss placement of a bomb during class, though one of the five stated that he heard from other students that Respondent drew a diagram of a bomb on the blackboard at some point during the day. The other six students generally corroborated Respondent’s version of events. Some of the students’ written statements were riddled with spelling and grammatical errors. In the interest of readability, the undersigned has corrected the more egregious errors without notation. Student E.A. wrote: The class was talking about the Colorado shooting and saying that the guys must have been pretty smart to make bombs. Some kids said no, anyone can make a bomb and you can find out from anywhere on the internet. We were all talking and saying that anyone who had the resources could make one. Coach Falls drew a sketch of a pipe bomb on the board because a student asked what one was. He explained what happened when one blew up. I didn’t think anything of the whole conversation. Coach treats us like adults and we carry on conversations all the time. To me, this was just a bunch of people talking about a big situation. He also said that a smart place to put it would be out by the portables. Student M.B. wrote: All I know is that Coach Falls drew a drawing on the board of a pipe bomb to show how easily kids have accessibility to it and how easy it was for kids to make it and anyone could do it. He did talk of where would be a good place to put one, but no one took it as serious talk. He wasn’t teaching us where to put a bomb, he was just showing how kids misinterpret things and how we need to catch them right away. (He said to put it in the portables.) Student M.D. wrote: Coach Falls was telling us how anyone who got mad enough had the resources to be able to make a home bomb. He was telling us how it wasn’t hard to find the information on how to build one. He then drew a diagram of the kinds of things that could be used to build one. I personally didn’t think anything of it. He said that the place to put it would be a portable. The three statements quoted above are similar not just in content but in form. Of particular note is the fact that each student mentions placing the bomb in the portables only parenthetically at the end of her statement. This fact leads to the inference that Respondent’s discussion of bomb placement made little impression on these three students, and that Deputy Kolnicki had to jog their memories at the conclusion of their statements to obtain any mention of this discussion. Student C.D. wrote as follows: On 4-21-99, Mr. Falls was discussing the events in Littleton, Colorado, the day before. The discussion turned to the bombs used in the assault. Mr. Falls told how the main part of the bomb was made, he also drew a diagram. He told how shrapnel was placed in the bottom of the casing, then the black powder and topped with more shrapnel and finally sealed with a fuse. Mr. Falls went further to say that most deaths associated with pipe bombs occurred during assembly. He also told us the most effective location would be one of the portables. He finished with telling us the consequences of even being in possession of bomb making materials and that plans (even for an atom bomb) could be found on the internet. Mr. Falls also added that the only reason he felt it necessary to demonstrate this was it was history in [the] making and we should know more about what happened in Colorado and we should be equally informed of the problems at hand. Deputy Kolnicki’s written report concluded as follows: Each student spoke very highly of Coach Falls and said that he was the most popular teacher on the campus. All of the students said that they did not believe Falls was trying to give them ideas on how to make a bomb or [where] to place it, but was simply trying to educate them about the Colorado incident and drew the diagram so that should a student come across such a device, they would recognize it and notify the faculty. Deputy Kolnicki testified that in his opinion it was a good idea to educate students about the existence of bombs and where to look for them. He testified that, based on his conversations with the students, he had no reason to believe that Respondent was doing anything other than trying to help his students protect themselves. Mr. Liem, the Principal of Palm Harbor, testified that his understanding of the facts was based on his reading of the police report and meetings with Respondent. He did not speak directly with the students. Mr. Liem stated that Respondent’s actions raised great concerns about the safety of the school and students, and created an atmosphere on campus that could exacerbate the existing climate of fear in the aftermath of Columbine. He was concerned with the potential for "planting seeds" with impressionable students by discussing the components and placement of pipe bombs in such detail. Mr. Liem was especially concerned that the discussion occurred in more than one class, an indication that Respondent was initiating the discussion rather than responding to student questions. Mr. Liem testified that Respondent put the students at risk of harm, though he did not believe such was Respondent’s intention. He testified that it is inappropriate under any circumstances to draw a diagram of a pipe bomb. Mr. Liem stated that it would be sufficient to tell the students that a pipe bomb is an explosive device in a pipe, without going into great detail. He stated that a student could be made aware of what a pipe bomb looks like without being instructed in its components. Ms. O’Howell similarly testified that the School District’s concern was not the fact that pipe bombs were discussed in the context of Columbine, but that "the specificity of the conversation went too far. It wasn’t necessary, the components of the pipe bomb, the how-to placement." She stated that discussion of placement of bombs in the portables was not "a necessary part of an awareness discussion." Unlike Mr. Liem, Ms. O’Howell testified that the sketch drawn by Respondent was acceptable. She stated that her discussions with Respondent led her to believe that he discussed placement of the bomb in the portables in the context of "doing maximum damage," and that Respondent did not mention having discussed bomb placement in other locations. Ms. O’Howell discussed Pinellas County Schools’ "Disciplinary Guidelines for Employees," Board Policy 8.25, which Respondent allegedly violated. She agreed that, of the 26 separate offenses listed in the policy, Respondent was charged with violating only Policy 8.25(1)(v), "Misconduct or Misconduct in Office." She disagreed that this is a "catch-all" offense, but conceded that "misconduct" is nowhere defined in the policy, and that the term is applied essentially on a case by case basis. Mr. Williamson, the Area I Superintendent, based his understanding of the facts on his review of the police report and the students’ written statements, as well as discussions with other administrators. He did not speak to Respondent or anyone else with direct knowledge of the events in the classroom. Mr. Williamson concurred with the recommendation that Respondent receive a ten-day suspension without pay. His chief concerns were that the remarks were "ill-timed" in light of the Columbine events, with the potential for encouraging "copycat" crimes, and that the conversations appeared to be teacher directed because they occurred in more than one class. He agreed that the drawing of the bomb was itself unobjectionable, but that discussion of the components of a pipe bomb and its placement for maximum impact were entirely inappropriate because "Mr. Falls does not know the mental state of every student in his class." Mr. Williamson testified that he received no phone calls complaining of Respondent’s actions, but that he was approached by two members of the School Board at a breakfast meeting. These School Board members told him they had heard complaints that this was "an outlandish kind of conversation to have, period, much less following the tragedy that occurred at Columbine." Mr. Williamson did not state whether the complaints had come from persons with first hand knowledge of what happened in Respondent’s classroom. Dr. Hinesley, the Superintendent, testified that he did not believe Respondent was trying to teach his students how to build a bomb, "but the outcome . . . could have very easily been that." Like the other administrators, Dr. Hinesley saw no problem in a teacher conducting a general "safety awareness" discussion of pipe bombs, but was disturbed by the detail and specificity of Respondent’s discussion as it was reported to him. Dr. Hinesley testified that his recommendation for discipline was based on the report he received from Mr. Liem, with which he concurred, and on the fact that Respondent appeared to show no remorse for his actions. Dr. Hinesley recommended a ten-day suspension in part by analogizing this case to cases in which students make threats. In both situations, he stated, the primary concern is that statements were made that presented a threat to the safety of students. Dr. Hinesley made no mention whether he considered the disciplinary guidelines for employees found in Pinellas County Schools Policy 8.25(3) in recommending discipline for Respondent. In summary, it is found that Respondent conducted his discussion with the intent of teaching his students to protect themselves. No evidence was presented to contradict Respondent’s statements in this regard. Indeed, most of the administrators who testified conceded that Respondent’s intentions were salutary. Nonetheless, it is found that the administrators’ concerns with the impact of the discussion were rational and well taken. While the evidence indicates that all of the students interviewed took Respondent’s presentation as he intended it, Mr. Williamson correctly pointed out that Respondent could not know the mental state of every student in his classroom. Respondent himself conceded that "I don’t know if a kid, when they leave my class for World War II, if they realize how bad the Nazis were or if these guys, in their own little demented mind, might go out and think, 'Hey! White power!'" Respondent simply expressed the hope that his students understood the context of his message, but admittedly did not know whether some student might make pernicious use of the information imparted in those discussions. The administrators also acknowledged that Columbine was an unprecedented event. In the immediate aftermath, no uniform response was provided by the Superintendent to the principals, and Mr. Liem in turn left the response to the individual teachers. Mr. Liem’s statement to the student body on the morning of April 21, 1999, while sounding the noble sentiment of reaching out and broadening circles of friendship, plainly was no answer to the practical questions students were asking. It was only natural that Respondent’s students, aware of his military background and training, would come to him for answers. With the best intentions, Respondent provided more technical detail than was necessary to answer those questions. Several of the administrators observed that Respondent’s actions were more egregious because they were so "ill-timed" in light of Columbine. It is found that Columbine plainly triggered the classroom discussions. Just as plainly, the fear generated by Columbine triggered the administration’s heavy handed response, which evinced less interest in understanding the context of the classroom discussion than in quickly and harshly punishing Respondent. Respondent testified that students came to him and told him that Deputy Kolnicki’s "interviews" consisted of sitting them down and asking two questions: "One, did you draw a pipe bomb on the board, and, two, did you mention the word 'portables?'" This is probably a subjective overstatement of Deputy Kolnicki’s actions, but is partially corroborated by the fact that three of the students’ written statements mention "portables" only as a parenthetical afterthought, at the obvious prodding of their interlocutor. Respondent also testified that at his four meetings with Mr. Liem and Ms. O’Howell, they appeared more interested in forcing him to express remorse and accept his punishment than in learning his version of events. Respondent also testified that he was not informed of his right to representation until the end of the second meeting with Ms. O’Howell and Mr. Liem. Ms. O’Howell disputed this statement, saying Respondent was informed of his rights prior to the second meeting. Even if Ms. O’Howell’s version of events is credited, the fact remains that one interrogation occurred without Respondent’s being informed of his right to representation. Dr. Hinesley’s basis for recommending a ten-day suspension was arrived at by likening Respondent’s statements to overt threats made by students. This reasoning is irrational even if one concedes that "student safety" is a concern in both instances. Dr. Hinesley’s logic would result in equivalent discipline being administered to a student threatening to bomb the school and a teacher providing information to students in an overzealous effort to teach them to protect themselves from a bomb. The two situations are not comparable. In conclusion, it is found that Respondent’s drawing and discussion of the construction of a pipe bomb and his discussion of the logistics of bomb placement did indeed go beyond what was necessary to ease the fears of his students after Columbine. It is also found that the administration of Palm Harbor and Pinellas County Schools overreacted to the situation in a similar effort to ease the fears of the public after Columbine. Once it was reported that, on the day after the Columbine tragedy, a teacher had shown students how to construct a pipe bomb and where to place it, the actual facts of the situation appear to have mattered less than swift and relatively harsh punishment of the alleged offender.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a final order finding that Respondent committed misconduct in office as defined in Rule 6B-4.009(3), Florida Administrative Code, in that he failed "to exercise the best professional judgment" as required by Rule 6B-1.001(2), Florida Administrative Code, and failed to make a reasonable effort to protect students from conditions harmful to their physical safety as required by Rule 6B-1.006(3)(a), Florida Administrative Code; and ordered that a written reprimand be placed in Respondent’s personnel file. DONE AND ENTERED this 11th day of February, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2000. COPIES FURNISHED: Jacqueline M. Spoto, Esquire Pinellas County School Board 301 4th Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Dr. J. Howard Hinesley, Jr., Superintendent Pinellas County School Board 301 4th Street, Southwest Largo, Florida 33770
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record complied herein, the following relevant facts are found. By letter dated October 1, 1980, Respondent, David K. Witherspoon, and his parents were advised by the Pinellas County Superintendent of Schools, Gus Sakkis, that he was being suspended from the public schools of Pinellas County for the remainder of the 1980/81 and 1981/82 school years based on an allegation that Respondent committed a battery while on school grounds on September 19, 1980, following a high school football game. (Joint Exhibit 1) Respondent is scheduled to graduate from high school at the end of the 1981/82 school year. Following the expulsion, Respondent has been assigned and is attending an evening alternative education school program sponsored by the Pinellas County School System. According to testimony, that a system provides two hours of instruction each week day evening. Respondent appealed the Superintendent's expulsion and the parties stipulated that the Division of Administrative Hearings has jurisdiction to resolve this controversy. According to the Code of Student Conduct, students are expected to conduct themselves at all times in a manner that "shall [not] infringe on the rights of others. A battery, according to the Code of Student Conduct, is the unlawful, intentional touching . . . or force to another person, done in a rude, insolent and angry manner shall subject a student to disciplinary action which may include suspension or expulsion from school." Paragraph 3(a)2, Code of Student Conduct. The material allegations of this controversy are that following the football game at Gibbs Senior High School (Gibbs) on September 19, 1980, Respondent while in the company of four other black males struck Anthony Scott Taylor, a seventeen year old senior at Gibbs, his mother and his fiancee in the school's parking lot. Anthony Taylor charged that Respondent kicked him across his eye; struck him with his fist, bruising his nose and caused his eye to bleed. Taylor has know Respondent for more than two years and has had no prior run-ins or altercations with Respondent. Taylor alleges that approximately 20 or more black students encircled him during the altercation with Respondent. Taylor, while on his knees in a slouched position when he was allegedly hit an kicked by Respondent, glanced up to identify Respondent. Taylor admitted that he was preoccupied with ensuring that his fiancee and mother could leave the parking area without difficulty. He also commented that blood was streaming from his right eye from the blow he received. Ann Taylor, Anthony Taylor's mother, was also struck by a black male as she was leaving the September 19, 1980, football game at Gibbs. Mrs. Taylor testified that her son was knocked down he (Anthony) told one of the black males "that's my mother you knocked down." Mrs. Taylor testified that she was unable to identify any of the students involved in the altercation and noted that her son was dazed when he left the area where the fight occurred. Lori Bush, Respondent's fiancee, also accompanied the Taylors following the football game. Ms. Bush also could not identify any of the students involved in the altercation with them. Ms. Bush and Anthony Taylor's mother picked him up and carried him to their car. Ms. Bush did not recall having seen Respondent prior to the hearing in this cause. Paula Sitzelberger, a detective with the St. Petersburg Police Department investigated the subject incident which occurred at Gibbs on September 19, 1980. Detective Sitzelberger spoke to Respondent at school on September 23, 1980, and after questioning him, reported that Respondent denied striking Anthony Taylor following the game. Detective Sitzelberger noted that Respondent admitted to having shoved another white male whose identity is unknown in another area of the parking lot after the white male allegedly pulled or struck Respondent. Detective Sitzelberger was unable to locate any independent witnesses to the subject incident. Jerry Young, a witness called on behalf of Respondent, recalled the numerous fights which occurred following the September 19, 1980, football game at Gibbs. Young followed Respondent throughout the school ground area and denied that Respondent had any involvement in the subject incident. He corroborated Respondent's testimony to the effect that Respondent's hand was injured in another incident in another area of the school's parking area after Respondent was first enmeshed in an altercation with another white male. Respondent related the incident following the September 19, 1980, football game at Gibbs. Respondent has been attending evening sessions at Mirror Lake Adult High School since his expulsion from the regular public schools of Pinellas County. According to Respondent, Tony Taylor was struck by a group of other blacks and Respondent denied any involvement on his part in that incident. Respondent surmised that Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor repeatedly shout that he knew him, left the area with companion Young although he got involved in another altercation with another white male which resulted in an injury to his hand. Respondent first became aware of his alleged involvement in the Anthony Taylor incident the following Monday when he was questioned by Dean Jones and Detective Sitzelberger. 2/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent be reinstated in the Pinellas County School System; that the suspension be revoked and that the student be permitted to make up the school work missed as provided in Chapter 4(b)1(h) of the Code of Student Conduct adopted by the Pinellas County School System. RECOMMENDED this 14th day of January, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1981.
The Issue The issue to be determined is whether Respondent is guilty of violating section 1012.795(1)(j), Florida Statutes (2014), and Florida Administrative Code Rule 6A-10.081(2)(b)3. and (2)(c)1., as charged in the Administrative Complaint.
Findings Of Fact Respondent holds Florida Educator’s Certificate 1028169, covering the areas of Athletic Coaching, which was valid through June 20, 2016, and Physical Education, which was valid through June 30, 2017. At all times relevant to the Administrative Complaint, Respondent was employed as a physical education (P.E.) teacher at Deerfield Beach Middle School (Deerfield) in the Broward County School District. In addition to his teaching duties, during the 2014-2015 school year, Respondent coached the girls’ flag football team and the track team. Ferreta Kelly, a retired teacher and coach, assisted him with the girls’ flag football team, which insured that there was a female coach, as well as a male coach. Coach Kelly did not know Coach Flowers outside her interaction with him coaching the girls’ flag football team. Flag football has a relatively short season, beginning in February and ending in March. Prior to the season, in February 2015, Coach Flowers and Coach Kelly attended a district- wide meeting for the coaches that took place at Stranahan High School. There was some indication at hearing that one of the “Allen Brothers” (twins who both coached sports at the school) also attended, but neither of the Allens testified at hearing. Coach Carol Cannariato, the athletic director at Deerfield, did not attend the meeting. The meeting was one where the coaches were briefed about issues related to the rules, schedules, referees and the like, related to the upcoming season. Mike Roland, who at the time was in charge of the athletic directors district-wide, directed the meeting. Mr. Roland, who is now retired, did not testify at hearing. During this meeting, the coaches were told about reversible Miami Dolphins jerseys donated by the Miami Dolphins football team. Jerseys were donated to each middle school team in the school district, and were to be used for a tournament that would take place between the division leaders at the midpoint of the season. The jerseys could also be used for other purposes, at the discretion of each school’s athletic director. Both Coach Flowers and Coach Kelly, the only witnesses present at the meeting and testifying at hearing, stated that a coach from another school asked what they were to do with the jerseys once the season was over, and that Mr. Roland stated he did not care what they did with the jerseys, and that they could give them to the players if they wanted to. Their testimony is credited. While the statement attributed to Mr. Roland is clearly hearsay, the clear and convincing evidence presented by the only people to testify is that both coaches, who attended the meeting, believed that it would be acceptable to give the jerseys to the players at the end of the season. Coach Cannariato asked Coach Flowers about the meeting, and he told her about the jerseys. He also told her that they could give the jerseys to the players at the end of the season, and she indicated to him that she was not sure that was accurate. At this point in time, the jerseys had not been distributed to the schools. About week three of the season, Coach Cannariato picked up 40 of the Dolphins jerseys for the school, which were to be distributed to the boys’ coach and the girls’ coach. She could not say how many jerseys went to each coach, but believed that she had given Coach Flowers 26 of the 40 jerseys. The girls’ team was scheduled to play a team that they had not played before, and Coach Cannariato thought that the other team’s colors were the same as or similar to Deerfield’s. Coach Cannariato considered using the Dolphins jerseys for the game and discussed this possibility with Coach Flowers. Ultimately, it was determined that the opposing team’s colors were not similar, and while Coach Cannariato gave Coach Flowers the jerseys, she instructed him not to give them out for that game. He left the jerseys in his office and did not give them out at that time. Deerfield finished about third in its division for flag football, and did not use the Dolphins jerseys for any game that season. The last game of the season took place in March, and was an away game. For away games, the boys’ and girls’ teams traveled together, along with their coaches and any other chaperones, by bus. Coach Cannariato did not ride the bus with them. While all students rode the bus going to a game, sometimes players would ride home after the games with their parents, rather than riding the bus back to the school. Coach Flowers took the Dolphins jerseys on the bus to the final game. All 17 eligible players on the girls’ team rode the bus to the game, and all but one rode the bus back. After the game, consistent with his understanding from the district- wide meeting, he distributed the jerseys to his players, telling them the jerseys were a reward for a job well done. The girls were excited to get the jerseys. While at least one of the Allen brothers were also on the bus, there was no indication that any of the boys’ coaches objected to or commented on Coach Flowers’ distribution of the jerseys.1/ The following day, Coach Flowers gave a jersey to “M,” the player who had not ridden the bus home the day after the final game, leaving him with three jerseys still in his possession. Later that day, M came to Coach Flowers and told him that one of her teachers really liked the Dolphins jerseys and would like one.2/ Consistent with his belief that the jerseys could be given away, Coach Flowers gave her a size small and a size medium jersey, and told her to return the jersey her teacher did not want. M returned later in the day with one of the jerseys and $10 that she tried to give Coach Flowers. While he accepted the jersey, he told M that he did not want the money. M left at that point, but returned later with the money and another student. Coach Flowers again told M that he did not want any money for the jersey, but M insisted that her teacher really wanted him to accept the $10. Coach Flowers shared an office with Coach Aguilar, another P.E. teacher. Coach Aguilar was present for at least one of the times M came to see Coach Flowers. While he did not see a jersey exchange hands, he saw M try to give Coach Flowers money, and heard Coach Flowers twice refuse it. Ultimately, Coach Flowers took the money from M, just to end the exchange. The money she gave him was a $5 bill and five ones. Coach Flowers gave $2 to each of the two girls and stuck the remainder in his desk drawer. Coach Flowers testified credibly that he often gave money to his students, so that they could buy a drink or snack from the vending machine. He also testified that it was his intention to find out who the teacher was and return her money directly, but did not do so right away because he had other things on his plate at the time. It is found that Coach Flowers never intended to sell the Dolphins jersey to anyone, but rather, intended to give it away, believing it was permissible to do so. On or about March 30, 2015, Coach Cannariato went to Coach Flowers and asked about the team’s jerseys. Coach Flowers told her he had collected all but a couple. Coach Cannariato asked him about the Dolphins jerseys, and he told her that he had given the jerseys to the girls. She told him he was not supposed to do so, and that he needed to get the jerseys back. He testified that he told her that he would do so. That afternoon, Coach Cannariato instructed Ms. Peta, secretary in the front office, to make an announcement over the intercom that the flag football team members needed to return the Dolphins jerseys. She received a telephone call from Ms. Robinson, who is Ms. Peta’s supervisor, asking to confirm that she wanted the announcement to be made. Coach Cannariato understood that Coach Flowers had told Ms. Peta not to make the announcement, but Coach Cannariato did not hear any conversation between Coach Flowers and Ms. Peta or Ms. Robinson. She confirmed to Ms. Robinson that the announcement was to be made and it was.3/ Coach Flowers testified that when he walked through the office that day, Ms. Peta asked him about the jerseys and the announcement. He responded, “what announcement?” When she explained that Coach Cannariato had asked her to make the announcement, he commented that he had just spoken to Coach Cannariato about the jerseys, and did not believe an announcement was necessary. He denied telling her not to make the announcement, stating he did not have the authority to do so. Coach Flowers is the only participant in the conversation to testify, and his testimony that he stated his opinion, but did not direct Ms. Peta not to make the announcement is credited. A couple of weeks later, Coach Cannariato asked Coach Flowers about his team’s jerseys. He had gotten all of the Deerfield jerseys, washed them, and returned them to their container, and he gave the container filled with jerseys to Coach Cannariato. She asked him about the Dolphins jerseys, and he reminded her that he had given them to the players. She, in turn, reminded him that he was to get the jerseys back, and he said he would do so. She told him never mind, that she would get them. Coach Cannariato said at this point she believed he would try to get the jerseys, but did not know what effort he actually made. Given the timeline, it is likely that it was not Coach Flowers’ primary priority at this point. He testified that he spoke to the players he saw and asked them to return the jerseys. Some complained and asked why, and he said he was instructed to get them back. How much of the delay is due to his lack of effort and how much is related to the reluctance of the girls to return the jerseys is unknown. He did retrieve a couple of jerseys and returned four to Coach Cannariato. On or about April 14, 2015, Coach Cannariato spoke to Mr. Atwood, the assistant principal to whom she reported, about the Dolphins jerseys, who directed her to notify Ms. Baugh, the principal. She did so the next day. While Coach Cannariato was speaking to Ms. Baugh, Coach Flowers passed by on his way to his duty assignment, and Coach Cannariato asked him to explain the situation to Ms. Baugh. Coach Flowers told Ms. Baugh that he had given the jerseys out to the players because Mr. Roland had said at the district-wide meeting that he could do so. Coach Cannariato reminded him that she had told him otherwise, and he stated that she had told him after he had already given out the jerseys. Ms. Baugh asked him if he could get the jerseys back, and he said he would do so. The timing of the conversation wherein Coach Cannariato told Coach Flowers that Mr. Roland had told her that the jerseys could not be given to the players and were considered school property is one of the few factual issues truly in dispute. Coach Cannariato testified that she told Coach Flowers in February that he could not give the jerseys to the girls, and that she called Mr. Roland in his presence to confirm the fact. Coach Flowers testified that he first realized that he could not give out the jerseys after he had already given them to the players. Petitioner introduced a series of emails from Mr. Roland that confirms that the jerseys were to be retained by the school. The emails (which are hearsay) are dated April 14th, 17th, and 20th, well after the jerseys were given out, and are from someone who did not testify. Coach Flowers’ actions are consistent with his testimony at hearing, corroborated by Coach Kelly, that he believed from the district-wide meeting that he could give the jerseys to the girls, and that he did not realize that was not the case until after he had given the jerseys to his players. Whether his misapprehension was because he did not listen to Coach Cannariato, did not understand that she was talking about the Dolphins jerseys, did not understand that she was talking about after the season as opposed to the game where she decided not to use them, or because no February conversation ever occurred, is not clear from this record. Given that confusion, there is not clear and convincing evidence that Coach Cannariato told him in February not to distribute the jerseys and that he deliberately ignored her. After the exchange between Ms. Baugh, Coach Cannariato, and Coach Flowers on April 15, 2015, Ms. Baugh believed that the distribution of the jerseys was simply a mistake. She changed her mind about the matter, however, when one of her teachers reported to her that Coach Flowers had sold one of the jerseys to another teacher, Ms. Escobar. Ms. Escobar is the teacher for whom M had gotten the jersey. On Friday, April 17, 2015, Ms. Baugh asked both Coach Cannariato and Coach Flowers for statements, which they provided. Coach Flowers’ statement does not mention the jersey given to Ms. Escobar. However, there is no indication in the record that Coach Flowers had been asked about this particular jersey at this point, and the conversation he had with Ms. Baugh previously was about giving the jerseys to the players. Coach Flowers still intended to find out Ms. Escobar’s identity, return her money and retrieve the jersey. On Thursday, April 23, 2015, Ms. Baugh recommended that Coach Flowers be terminated during his probationary period, or he could exercise the option to resign. When Ms. Baugh met with Coach Flowers and explained his options, she told him the basis for her decision was that he had sold school property. Coach Flowers admitted to receiving the money from M, and told Ms. Baugh the remaining $6 was still in his desk drawer. He volunteered that he had given some of the money to the students, and offered to go get the rest and return it to her, which he did. It was still his intention to get the rest of the jerseys and return the money to Ms. Escobar. Given Ms. Baugh’s decision to terminate him, he opted to resign. It is found that Petitioner did not prove by clear and convincing evidence that Respondent used institutional privileges for personal gain or advantage, or that he failed to maintain honesty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission dismiss the Administrative Complaint. DONE AND ENTERED this 6th day of March, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2018.
The Issue Whether Respondent committed any of the violations alleged in the Amended Administrative Complaint dated March 24, 2014, and, if so, what is the appropriate disciplinary penalty?
Findings Of Fact The Parties Petitioner, as Commissioner of Education for the State of Florida, is responsible for the investigation and prosecution of complaints against individuals who hold a Florida Educational Certificate when they are appropriately alleged to have committed a violation as provided in section 1012.795, Florida Statutes, and related rules. See § 1012.796, Fla. Stat. Respondent, Shadrick Fields, a male and, at the time of the events pertinent to this case, a middle school teacher employed by the Broward County School District (the District), holds Florida Educator’s Certificate 977090. Valid through June 30, 2017, the certificate covers the areas of English for Speakers of Other Languages (ESOL), Social Science, and Exceptional Student Education. Respondent was employed as a coach and Social Science teacher at Pompano Beach Middle School during the school years 2007-2010. In the 2009-2010 school year, Respondent was also employed as an assistant coach (but not as a teacher) at Coconut Creek High School. Pompano Beach Middle School and Coconut Creek High School are within and part of the District. On or about April 26, 2010, Respondent resigned his teaching position in lieu of termination of his position. The District accepted the resignation and placed Respondent’s identification in its records under “non-hire” status. The personnel action was taken because of allegations of an inappropriate relationship between Respondent and a female student. An Inappropriate Relationship Develops J.D. is a female. Born in 1992, she attended Pompano Beach Middle School in sixth, seventh, and eighth grades. She met Respondent at Pompano Beach Middle School although he was not her teacher or her coach. The events that led to Respondent’s resignation occurred principally in the 2009-2010 school year when J.D. was 17 years of age (her 18th birthday was in March 2010) and a student at Coconut Creek High School. The events had their origin, however, in 2006 when J.D. was a middle school child. J.D. met Respondent as a seventh grader when Respondent was “doing security [for the school] at the time.” Hr’g Tr. 81. Later, J.D. had contact with Respondent in Respondent’s capacity as coach of the middle school football team. On the last day of J.D.’s eighth grade school year (in 2006), Respondent gave J.D. a letter written from him to her. The letter was not produced at the hearing. Respondent asked for it back, and J.D. returned it to him. When asked about the letter at the hearing, the following colloquy took place between and counsel for Petitioner: I have to go in detail about the letter? Q. Well . . . just tell us in general, what was the nature of the letter? A. He liked me. I liked him. Hr’g Tr. 83. J.D. did not see or communicate with Respondent over the summer between her eighth and ninth grade. J.D. resumed contact with Respondent during her freshman year at Coconut Creek High School where she was a student and he was one of the coaches for the wrestling team. Respondent was not J.D.’s coach nor was he one of her teachers; he continued to teach at Pompano Beach Middle School. Nonetheless, they talked on the phone. On Valentine’s Day, Respondent gave J.D. a card. The card opens with the statement, “Falling in love with you was something I hadn’t expected but being in love with you is something I wouldn’t stop, even if I tried.” Pet’r’s Ex. 6. It closes with the statements, “I already have my Valentine’s Day Gift and it’s you! I love you.” Id. J.D. claimed at the hearing that she and Respondent engaged in sexual relations once during her freshman year at Coconut Creek. She said they took place in Respondent’s truck, an arrangement they agreed to both by speaking about it and writing about it. The letters related to their rendezvous in the truck were not produced at the hearing because J.D. disposed of them in a trash receptacle. J.D. claimed that she engaged in sexual intercourse with Respondent only one other time: during her senior year, again in Respondent’s truck. The time that elapsed between the two sexual events, according to J.D., was due to an agreement between Respondent and J.D.: they agreed to cease further sexual involvement until she graduated from high school (albeit, as J.D. testified, the agreement failed in February of her senior year). During the time between the two incidents of sexual relations to which J.D. testified, J.D. and Respondent frequently communicated through writings, cards, and letters. When Respondent wrote to J.D. he delivered the communications through one of two methods: he handed them to her directly or he placed them in an open tube affixed to the wall of a hallway outside the wrestling locker room. When the latter method was followed, Respondent would send a text to J.D. to alert her to the presence of a letter in the tube. The purpose of using the tube was to prevent suspicion by others should Respondent be observed handing written communication to J.D. The letters produced at the hearing that J.D. received are emotionally intimate. The third of the four letters that make up Petitioner’s Exhibit 7 is highly charged and sexually graphic. It refers, for example, in detail to love-making in which Respondent and J.D. had engaged. Respondent’s letters refer to himself as “King” and are signed “M.N.U.A.I.A.,” which stands for “Me and You Against It All.” See Pet’r’s Ex. 7. During J.D.’s senior year in high school, J.D. and Respondent had increased opportunities to interact on school days. J.D. played on a school flag football team and became the assistant manager of the wrestling team for which Respondent was the coach. Family members picked J.D. up after flag football practice or when she stayed after school in her capacity as the wrestling team assistant manager. But Respondent also provided her transportation home in his truck. He gave J.D. a ride home after these extra-curricular events whenever she asked. The question was asked at the hearing, “Generally, who gave you a ride home?” J.D. testified, “Mr. Fields.” Hr’g Tr. 98. Respondent also gave J.D. cards and gifts, including a Teddy Bear that was delivered with a card. The card ends with “I’m your Teddy Bear baby, M.N.U.A.I.A. I Love You.” The card makes reference to the silence of Teddy Bears and that “they will never breath [sic] a word of secrets you may tell.” Pet’r’s Ex. 8. In December and January of the 2009-2010 school year (J.D.’s senior year), Respondent had significant contact with J.D. by cell phone. Pet’r’s Ex. 9. For the month of December 2009, phone calls between J.D.’s cell phone and Respondent’s cell phone averaged more than one per day. Following more than 40 phone calls in January of 2010, the phone contact continued into February. In the middle of the month of February 2010, Respondent handed a Valentine card to J.D. (He did not place it in the tube because “[i]t wouldn’t fit in there.”). Hr’g Tr. 96. The card states, “You know that I would give anything to be in your arms, touching your face, staring into your eyes and tasting your lips. I can’t but I can depend on our love to see me through.” The card addresses J.D. as “Lil Solja” and is signed: Happy Valentine’s Day #1 M.N.U.A.I.A. Love & “Sincerely Yours”, Solja Pet’r’s Ex. 9. Over the late 2009 and early 2010 time period, some of the many phone calls between J.D. and Respondent were for extended periods of time or were at odd hours. One set of calls was both. On February 19, 2010, a call was placed from Respondent’s cell phone to J.D.’s cell phone that is shown by phone records to have lasted for 186 minutes (until 2:50 in the morning of February 20, 2010). The same records show that one minute later, at 2:51 a.m., February 20, 2010, a phone call was placed from J.D.’s cell phone to Respondent’s cell phone. This second “middle of the night” phone call lasted another 76 minutes. The two calls total more than four hours. The lengthy “middle of the night” phone calls in mid-February of 2010 occurred roughly one week before events that precipitated the discovery of J.D.’s relationship with Respondent. The events took place on February 26 and 27, 2010, the weekend before J.D.’s 18th birthday. Discovered February 26, 2010, was a Friday. J.D. worked that evening at Steinmart as a merchandiser. She had worked at Steinmart her entire senior year with a schedule of roughly 20 hours per week. The following are questions and answers from the transcript of the hearing about what occurred the evening of February 26, 2010, when J.D. was at work: Q. Did Mr. Fields come to your work that day? A. Yes. Q. Tell us what happened. A. I went to work, took a break right before the store closed, around eight-something. I had been talking to him throughout the day. He came to my job. We had sex. I got off work and went home. * * * Q. . . . Mr. Fields came to your work, correct? A. Came to my job on my break. Q. And how long of a break did you have? A. Thirty minutes. Q. Thirty minutes. And what did you do on that break? A. I got in the truck with him, we talked, we had sex and I went back to work. Q. When you say you had sex, you had sexual intercourse? A. Yes. Q. And this occurred in Mr. Fields’ truck? A. Yes. Q. Where at in the truck? A. In the back seat. Hr’g Tr. 101. When asked by counsel for Petitioner how she felt about having sex with Respondent in his truck, she testified as if it were nothing unusual: “I really didn’t feel no way.” Hr’g Tr. 102. When asked immediately after, “You felt what?” J.D. reiterated her testimony, “I really didn’t feel any type of way, you know.” Id. During the interlude in the truck, J.D. and Respondent developed plans for the next night, Saturday, February 27. J.D. did not have to work that Saturday, but she “planned to lie to [her] mom” and tell her she did so she could, in her words, “spend the time with him before my birthday.” Hr’g Tr. 103. Hewing to the plan, J.D. told her mother that she was needed at Steinmart on Saturday to help her manager with inventory. J.D.’s mother, accordingly, drove her to work and dropped her off in the middle of the day. Later in the day, J.D.’s mother returned to Steinmart to purchase a shirt for her husband using a family discount by virtue of J.D.’s employment. She asked for J.D. in the store because J.D. had to sign a form to make the discount effective. When it turned out that J.D. was not at work and had not been at work, J.D.’s mother became extremely concerned. She called J.D. and texted her. When the calls and texts to J.D. went unanswered she enlisted other family members to assist in contacting and locating J.D. She lodged a missing person’s report with local law enforcement, and she began her own investigation. J.D.’s cell phone was under her mother’s account. When her mother checked the phone log she saw a number “that had been calling back and forth.” Hr’g Tr. 40. The phone number was Respondent’s: 954-691-6468. J.D.’s mother did not recognize the phone number, but discovered later that it belonged to Respondent. When asked about a voice message she left on Respondent’s phone, J.D.’s mother testified, “I don’t want to say under oath what I said but I was upset once I realized whose phone it was.” Hr’g Tr. 41. After testifying that the pattern and consistency of the phone calls between her daughter and an older male made her distraught, she was asked to explain by counsel. She answered, “Because I just felt like that communication shouldn’t have been going on, as many times as I’d seen it in the call log.” Id. Between being transported to her work place and the frantic activity of her mother, J.D. had talked to Respondent on the phone. He picked her up at Steinmart and drove her across the county to a movie theater in the western part of the county about 35 minutes away by car. After watching a movie, “The Crazies,” the two had something to eat at “TGI Friday’s,” hearing transcript 105, a restaurant in the same plaza as the movie theater. J.D. noticed that she had received phone calls from her mother, but she was “scared,” id., to call her back. While the two were still inside the restaurant, Respondent noticed that he had received telephone calls from J.D.’s mother as well. J.D. told Respondent not to return the call, and he did not. Respondent drove J.D. back to Steinmart and dropped her off at roughly 9 p.m., the time J.D. should have been getting off work had she worked that day. Respondent did not return J.D.’s mother’s call before he left J.D. at Steinmart. J.D.’s brother picked her up at Steinmart and drove J.D. home where she was met by Deputy Matthews, who had responded on behalf of local law enforcement to the missing person’s report. Deputy Matthews’ report indicated that J.D. was questioned about sexual activity with Respondent and that she denied sexual activity. Text Messages On Sunday (February 28, 2010), Respondent texted J.D.: Does she still want to talk to me? I’ll take da day off in effort to make things right by sitting down with her. A million more apologizes from da heart. Pet’r’s Ex. 5, at P010/011 [marked in hand-writing as “83”]. On March 1, 2010, the next Monday, Respondent sent text messages to J.D. At 3:17 in the morning, his text reads, I hope I haven’t tarnished or messed your life first and everyone else that looks up to me. I’ve let so many down . . . mainly you. I pray for ur fams forgiveness. Pet’r’s Ex. 5, P0087/011 [marked in hand-writing as “81”]. Another text follows at 3:45 in the morning: I never lied to you. Everything I said I meant from the heart but I should have never told you. Every day forward free is a blessing & will be cherished. Id. Later in the day, at 3:36 in the afternoon, Respondent texted “I’m going to turn myself in. Its all in your hands, my life.” Pet’r’s Ex. 5, P0097/011 [marked in hand-writing as “82”]. Over several days, J.D. and her mother engaged in a number of emotion-laden conversations. J.D.’s mother reached the point of “yelling” and “crying.” Hr’g Tr. 56. At some point in the midst of the emotional interchanges between J.D. and her mother, J.D.’s mother told her that she intended to take J.D. to a gynecologist for an examination for sexual activity. J.D. did not want her mother to know that she was not a virgin. But she was not concerned for herself alone. She did not want to tell anyone that she had engaged in sexual activity with Respondent because she wanted to protect him. The gynecological examination of J.D. revealed that she had been sexually active. Despite misgivings both for herself and because of the potential impact to Respondent, J.D. told her mother she had engaged in sex with Respondent. J.D.’s mother’s impression was that J.D. had not been sexually active even though she had a boyfriend (who was not Respondent). When J.D. revealed the sexual nature of her relationship with Respondent after the examination, J.D.’s mother called local law enforcement to report it. As a result of the call, a case was opened, and it was assigned to Deputy Julie Bower of the Broward County’s Sheriff’s Office of Sex Crimes. Deputy Bower questioned J.D. and reviewed the phone records, as well as the cards and letters that have been admitted into evidence in this proceeding. Deputy Bower confirmed that J.D. was 17 years’ old, a minor, when Respondent took her to the movies and that Respondent was over the age of 24 at the time. Their ages led Deputy Bower to conduct an investigation into whether Respondent had committed the crime of “Unlawful Sex with Certain Minors.” March 5 Statement to the Sex Crimes Unit On March 5, 2010, Officer Bower took a statement from J.D. In the statement J.D. admitted that she and Respondent had engaged in sexual activity on February 26, 2010. As the interview for the statement progressed, Deputy Bower took J.D. through the history of the relationship. J.D. stated that Respondent seemed to take an interest in her more than the other girls at school (Pet’r’s Ex. 2, p. 4 of 24). She also related that she received the first letter from him at the end of the eighth grade, but that she was not interested in him until her senior year in high school when Respondent started writing her and giving her gifts: “clothes, shoes, . . . cards, letters” id., page 7 of 24, and a bracelet of white gold. In the meantime, during her ninth, tenth, and eleventh grades, J.D. claimed in the statement that their relationship was “nothing . . . just a hi and bye.” Pet’r’s Ex. 2, p. 6 of 24. She related that in December of 2009, however, her relationship with Respondent started changing after “he made the move” (Id., p. 8 of 24), at which time she decided she wanted to start dating. They discussed having sex, and Respondent told J.D. that he loved her. J.D. stated to Deputy Bower that she was a virgin until the encounter with Respondent in his truck on her break from work on Friday, February 26, 2010, at which time she claimed they engaged in sexual intercourse. Deputy Bower was unable to verify J.D.’s claim of sexual intercourse with Respondent through any source other than J.D.’s statement. Nonetheless, Respondent was prosecuted criminally. Acquittal Respondent was charged with the crime of Unlawful Sexual Activity. He was tried by jury in the circuit court in and for Broward County and was found not guilty. See Respondent’s Ex. 1, Circuit Court Disposition Order in and for Broward County, Florida, rendered October 31, 2011, and an attached “Felony Order of Acquittal.” The Administrative Complaint and the Amended Administrative Complaint An Administrative Complaint seeking appropriate disciplinary sanction of Respondent’s educator’s certificate was issued by Dr. Tony Bennett, as Commissioner of Education, on July 8, 2013, 20 months or so after the acquittal. The complaint contains three counts of statutory violations and two of rule violations all based on facts alleged in a section entitled “Material Allegations.” The gist of the material allegations are contained in the section’s first sentence, “During the 2009/2010 school year, Respondent engaged in an inappropriate relationship with J.D., a 17-year-old, female student.” Administrative Complaint. The statutory violations are of section 1012.795(1)(d), Florida Statutes, for “gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education;” section 1012.795(1)(g), Florida Statutes, for “personal conduct which seriously reduced his effectiveness as employee of the school board;” and, of section 1012.795(1)(j), Florida Statutes, for violation of “the Principles of Conduct for the Education Profession prescribed by the State Board of Education rules.” Administrative Complaint, p. 2 of 3. The rule violations are of Florida Administrative Code Rule 6A-10.081(3)(a), “in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety,” and of Florida Administrative Code Rule 6A-10.081(3)(e), “in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement.” On March 24, 2014, Petitioner executed an Amended Administrative Complaint deemed filed as of that date by an Order Granting Leave to Amend. The amended complaint adds two new paragraphs to the material allegations. The new paragraphs expand the time frame for the basis of the statutory and rule violations outside the 2009-2010 school year to prior years back to 2006. The second of the two paragraphs of material allegations alleges: In subsequent years [post-2006], including 2010, Respondent wrote type [sic] letters . . . to J.D., along with cards and music CD’s. Some of the letters contained sexually graphic language . . . Amended Administrative Complaint, para. 3 and 4. The amended complaints also add two new rule violations, one of Florida Administrative Code Rule 6A- 10.081(3)(f) that Respondent intentionally violated or denied a student’s legal rights; and, the second of Florida Administrative Code Rule 6A-10.081(3)(h) that Respondent exploited a relationship with a student for personal gain or advantage. Amended Administrative Complaint, Counts 6 and 7. Respondent’s Defense to the Factual Allegations The following statement appears in the Joint Prehearing Stipulation filed by the parties: “Respondent admitted his text messages and phone calls to J.D. but denied any sexual activity or involvement with the notes and letters.” In addition to Respondent’s testimony under oath that he did not engage in sexual activity with J.D., he points to a number of facts that support his argument for why J.D.’s testimony that it occurred should not be credited: a. her denials to law enforcement the night of February 27, 2014; b. her denials to her mother at first; c. her claim to her mother that she had sex with Respondent only after the pressure of emotional conversations and the gynecological examination that showed her to have been sexually active; d. the inconsistency between her statement under oath to Deputy Bower that the first sexual encounter with Respondent was in her senior year and the statement under oath that her first sexual encounter with Respondent was when she was in the ninth grade; and e. the testimony of Dwanaill Sutton. Mr. Sutton was a year behind J.D. in high school and a member of the wrestling team. He met J.D. when he was in the ninth grade through his best friend at the time, another male member of the wrestling team. The coaches of the wrestling team were “Coach Carradine and Shadrick Fields [Respondent].” Hr’g Tr. 279. Respondent also coached Mr. Sutton on the football team, again as an assistant coach. Eventually, Mr. Sutton and J.D. became “best friends.” Id. They remained so into Mr. Sutton’s junior year (J.D.’s senior year). They do not see each other much anymore but they communicate “[v]ia social media.” Hr’g Tr. 280. Mr. Sutton has no ill feeling about J.D.’s allegations against Respondent. While J.D. and Mr. Sutton were still under the status “best friends,” Mr. Sutton was interviewed at school one day before lunch by a detective who asked him questions about J.D. and Respondent. At lunch, Mr. Sutton asked J.D. what she knew about the detective. J.D. replied that she had given Mr. Sutton’s name to the detective. Mr. Sutton followed up by asking J.D. “what was going on with her and Coach Fields because those were the only two names that the detective mentioned.” Hr’g Tr. 284. J.D. replied “‘nothing happened.’” Id. When asked by counsel if Mr. Sutton asked J.D. “did you guys do something?” id., Mr. Sutton replied that J.D. said “‘We didn’t do anything.’” Hr’g Tr. 285. With regard to the written communication J.D. claims to have received from Respondent, he argues J.D.’s testimony should not be credited because: Respondent denies sending any such items [and did so under oath]. [citation omitted] Respondent testified that he does not write in the fashion the card and letters were written and that it seems as if someone with less than a college education prepared them. [citation omitted] He denies giving J.D. any cards, stuffed bear or bracelet. [citation omitted] Petitioner failed to produce any evidence to support the conclusion that the handwriting on the various cards and letters was that of Respondent. No handwriting expert testimony was adduced and no lay testimony was presented that the writings were that of Respondent. Respondent’s Proposed Recommended Order, p. 6 of 11, para. 16. Respondent claims that the purpose of his relationship with J.D., and the many phone calls and communications with her, was to lift her spirits in the face of personal problems at home, particularly with her step-father and not being able to live with her biological father, and ensuing academic problems and problems at school. But he admits the relationship was inappropriate: [A]s far as lifting her spirits . . . [w]hat I should have did is had a female teacher or mentor be that person for her. I shouldn’t have been there like that. That was inappropriate for me to be there. Hr’g Tr. 228.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be permanently revoked and that he be barred from re-application. DONE AND ENTERED this 5th day of December, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2014. COPIES FURNISHED: Johnny L. McCray, Jr., Esquire Law Office of Johnny L. McCray, Jr., P.A. 400 East Atlantic Boulevard Pompano Beach, Florida 33060 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast Thirteenth Street, Suite E Fort Lauderdale, Florida 33316 (eServed) Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
