The Issue The issue in the case is whether the Respondent’s employment with the Polk County School Board should be terminated.
Findings Of Fact At all times material to this case, the Petitioner employed the Respondent as a teacher pursuant to a Professional Services Contract. On April 1, 1999, the Respondent, then employed as a teacher at Jenkins Middle School in Haines City, Florida, became involved in an incident between a student and the parent of another student, during which the parent physically assaulted the student. The Respondent’s involvement was deemed to be inappropriate by the school principal. On April 19, 1999, the Respondent received a letter of reprimand for his actions during the incident. Although the Respondent noted that he did not agree with the reprimand, there was no appeal taken. By September of 1999, the Respondent had transferred to Crystal Lake Middle School in Lakeland, Florida, where he taught math. During his first month there, the Respondent told a male student that the student looked and behaved like a girl. The student complained to Eileen Killebrew, the school’s principal, who wrote a letter of reprimand to the Respondent dated September 24, 1999, noting that middle school students are "very emotional and impressionable" and that they look to teachers for "guidance and support." She warned the Respondent that his students "certainly do not expect to be demeaned in any way." She advised the Respondent that "further instances of inappropriate behavior will call for further disciplinary action." The Respondent received a copy of the letter and did not challenge the reprimand. By November of 1999, a number of additional complaints against the Respondent had been received from students or parents. By letter dated November 2, 1999, the principal advised the Respondent of the specific complaints (essentially a pattern of making disparaging or otherwise inappropriate remarks to students, to parents of students and to other teachers) and asked that he submit a written response to the allegations. The Respondent did not submit the requested response, but instead met with the principal to discuss the matter. By letter of reprimand dated November 17, 1999, the principal again advised the Respondent that his behavior was unacceptable and warned that additional instances would result in further disciplinary action. The Respondent received a copy of the letter and no appeal of the reprimand was taken. On February 8, 2000, the Respondent wrote a disciplinary referral for a student. On the referral, the Respondent wrote that he had told the student to "shut his redneck mouth up." Disciplinary referrals are commonly sent to the student’s parents. On February 10, 2000, the principal issued another letter of reprimand to the Respondent, stating that she found it "reprehensible that you would resort to this kind of childish behavior when dealing with students." She further wrote that she had "serious concerns about your teaching effectiveness and indeed about your professional future unless improvements are made." She again warned that further incidents could result in more severe disciplinary action. In August of 2000, the principal received information regarding inappropriate statements made to a parent during a meeting of the parent and her female child with the school’s guidance counselor. The Respondent was not involved in the meeting but apparently walked into the room where the meeting was taking place. In discussing the incident, the principal also learned that the Respondent had previously used the female student to pass his phone number to a college student interning at the school and to whom the Respondent was attracted. By letter dated August 23, 2000, the principal reprimanded the Respondent for his behavior and warned further inappropriate behavior would result in her requesting that he be suspended from teaching. In September of 2000, the Respondent was involved in two separate events. In one incident, the Respondent made inappropriate remarks to a student about the child’s mother. The child told the mother, who came to the school and complained to the principal. In the other incident, a teacher at the school reported an incident where the Respondent pushed or struck a child on the forehead. By letter dated September 22, 2000, the principal advised the Respondent of the complaints and scheduled a conference with him to discuss the situation. She advised that he could bring a representative to the conference. The conference occurred on September 25, 2000. The Respondent attended the meeting and was accompanied by a representative from the Polk County Education Association. During the meeting, the Respondent acknowledged the incidents. By letter to the Polk County School Superintendent dated September 25, 2000, the principal requested that "the next step in progressive discipline be taken" and that the Respondent be suspended without pay for five days from his teaching position. By letter dated September 28, 2000, from the Polk County Superintendent of Schools, the Respondent was advised that he would be suspended without pay for five days beginning October 2, 2000. The suspension occurred as scheduled. On or about May 16, 2001, the Respondent became involved in events with two students in separate classes. In the first incident, students in the Respondent’s classroom were completing a math exercise which required coloring answers on a score sheet. The Respondent noticed that one of the students was incorrectly coloring the sheet and made a disparaging statement to the student about his work, stating that if the instructions had been written in "clown" the student might have understood them. The Respondent and the student eventually engaged in a verbal altercation during which the Respondent used the word "stupid." The student understood the Respondent to say that the student was stupid. The Respondent asserts that he actually said the child was "acting stupid." In any case, the Respondent wrote a disciplinary referral on the student. At the change of classes, the student told a close friend who was coming into the Respondent’s classroom about the disciplinary referral. The friend asked the Respondent about the referral and the Respondent declined to answer the question, instead suggesting that after school, the friend could ask his "boyfriend" about the incident. The friend concluded that the Respondent was suggesting that the children were homosexual. The students complained to the principal about the Respondent’s statements. The principal asked the Respondent to respond to the allegations, which he did by written statement. Although the Respondent’s statement does not address use of the word "stupid" in reference to the first child, the statement acknowledges that he told the second student to get the information by asking his "boyfriend" though he denied he had intended to imply homosexuality in his remark. By letter to the Polk County School Superintendent dated May 18, 2001, the principal requested termination of the Respondent’s employment with the Polk County School System. By letter from the Polk County School Superintendent dated May 21, 2001, the Respondent was notified that the Superintendent would recommend to the School Board that his employment be terminated. In the letter, the grounds for the termination are identified as the Respondent’s "continued unprofessional and inappropriate behavior with students including embarrassing and disparaging remarks." By letter from the Polk County School Superintendent dated June 14, 2001, the Respondent was notified that the School Board had accepted the Superintendent’s recommendation that his employment would be suspended pending an administrative hearing. Based on the continuing pattern of unprofessional behavior towards students, parents and other teachers, the Respondent’s effectiveness as a teacher has been diminished to the extent that the Crystal Lake Middle School principal does not want the Respondent to return as a teacher at her school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Polk County School Board enter a final order terminating the employment of Thomas D. Lindemann as a teacher at Crystal Lake Middle School. DONE AND ENTERED this 26th day of October, 2001, in Tallahassee, Leon County, Florida. _______________________________ WILLIAM F. QUATTLEBAUM 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 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2001. Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Bartow, Florida 33831 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jim Thornhill, Superintendent Polk County School Board 1915 South Floral Avenue Bartow, Florida 33831-0391 Charlie Crist, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue In Case No. 88-3425, Mr. Bradley Thomas challenges the termination of his employment at the Florida School for the Deaf and the Blind. The issue is Case No. 88-5675 is whether Mr. Thomas committed the acts alleged by the administrative complaint, and, if so, what penalty may be appropriate.
Findings Of Fact Bradley Thomas holds Florida Teaching Certificate #486268, valid through June 30, 1993. Mr. Thomas is certified to teach secondary levels, vocational education and printing, and was initially employed by the Florida School for the Deaf and the Blind (FSDB) in 1980. Mr. Thomas taught phototypesetting in the FSDB Vocational Department. Mr. Thomas was described by his immediate supervisor as highly-motivated and conscientious. He has received satisfactory and above-satisfactory performance evaluations. Mr. Thomas is 57 years old and has been deaf since the age of 12. He communicates through signing and speech. According to section 242.331(4), Florida Statutes, the Board of Trustees of the Florida School for the Deaf and the Blind is authorized to appoint and remove teachers "as in its judgement may be best". By Rule 6D- 4.002(2)(b), Florida Administrative Code, the Board of Trustees has delegated responsibilities related to employment and termination of academic personnel to the President of FSDB. By letter from FSDB President Robert Dawson, dated February 15, 1986, such authority has been delegated to Samuel R. Visconti, Director of Personnel for the FSDB. The Board of Trustees has entered into a collective bargaining agreement with the Florida School for the Deaf and the Blind Teachers United, an affiliate of the Florida Teaching Profession-NEA and the National Education Association. Article 13, section E, of the 1986-89 agreement between the Board of Trustees and the FSDB Teachers United, FTP-NEA, in relevant part, provides that Mr. Thomas may not be discharged from employment by the Board of Trustees except for "just cause", which is defined to mean job- related incompetence or misconduct. The professional competence of Mr. Thomas as a teacher is not at issue in this proceeding. During the second semester of the 1986-87 school year, Holly Middlebrooks was enrolled with five other students in Mr. Thomas' class. At the time of the hearing, Ms. Middlebrooks was 19 years old and a senior at FSDB. On more than one occasion, Mr. Thomas "rubbed" Ms. Middlebrooks' back and shoulders during class, in a massaging manner, which made her uncomfortable and confused. The contact occurred while Ms. Middlebrooks was seated at and using a computer terminal and while she entered and left the classroom. Although she attempted to convey her discomfort with Mr. Thomas' touching by repositioning herself in her chair as she worked at the computer, she did not instruct Mr. Thomas to stop. Ms. Middlebrooks saw Mr. Thomas touch other students in a similar manner. Although other students indicated to Ms. Middlebrooks that Mr. Thomas discussed sexual topics in class, she did not hear and could not recall specific incidents of sexually-oriented language on Mr. Thomas' part. Nadine Lents was enrolled with four or five other students in Mr. Thomas' class during the second semester of the 1986-87 term and for the full 1987-88 school year. At the time of the hearing, Ms. Lents was 18 years old. On occasion, Mr. Thomas would massage Ms. Lents' neck and shoulders while she worked at the computer terminal. At times she feared that he would touch her breasts but he did not. She did not instruct him to stop. On at least one occasion, Mr. Thomas rubbed her leg while she sat at the terminal and she instructed him to stop, to which he replied that there was no cause for her concern. Mr. Thomas "often" hugged Ms. Lents, sometimes pressing himself against her breasts or in a manner which she found to be "too hard", and she would push Mr. Thomas away. Ms. Lents sometimes would lightly hug Mr. Thomas as a means of greeting, but was careful to maintain distance. Mr. Thomas discussed sexual matters with Ms. Lents. He asked her if she "liked oral sex", talked about the size of her breasts, and discussed other sexual matters in vulgar terms. The sexual discussions sometimes made Ms. Lents uncomfortable and embarrassed. During both the 1986-87 and 1987-88 school terms, Karen Warfel was enrolled with "about six" other students in Mr. Thomas' class. At the time of her testimony at the administrative hearing, Ms. Warfel was 20 years old and had graduated from the FSDB. More than once, Mr. Thomas rubbed her back under blouses which she described as "loose". Once, Ms. Warfel instructed Mr. Thomas to stop, and he complied with her request, but Mr. Thomas subsequently resumed touching Ms. Warfel in a similar manner and she did not stop him. Mr. Thomas also occasionally rubbed Ms. Warfel on her leg, "above the knee", in an attempt "to calm me down when I get frustrated on the computer". The physical contact with Mr. Thomas made her feel uncomfortable. Ms. Warfel would, on occasion, request a piece of candy from a supply which Mr. Thomas kept in his desk drawer. Mr. Thomas would ask Ms. Warfel to kiss his cheek prior to giving her candy, and Ms. Warfel would comply with his request. Sometimes Mr. Thomas would tickle Ms. Warfel near her rib cage or below her belt and to the sides of her abdomen, in an area Ms. Warfel described as near her ovary. Mr. Thomas discussed sexual matters in the classroom in Ms. Warfel's presence, including discussing his sexual relationship with his wife. Ms. Warfel was embarrassed by Mr. Thomas' conduct. Marisol Eschevarria-Sola was enrolled in Mr. Thomas' class during the first semester of the 1986-87 school year and the first semester of the 1987-88 school year. There were approximately five students in the class. At the time of her deposition, Ms. Eschevarria-Sola was 20 years old. Mr. Thomas, at least once, touched or stroked Ms. Eschevarria-Sola's leg, around her knee and thigh, and also touched her back. The physical contact, which occurred while she was seated at the computer console, made her uncomfortable. She expressed her discomfort when such touches occurred. Mr. Thomas explained that he was attempting to warm his hands. She saw Mr. Thomas touch other students in her class in like manner. At least once, Mr. Thomas requested that Ms. Eschevarria-Sola kiss him in exchange for a pencil she wanted to borrow. Although she was uncomfortable with the situation, she complied with his request. On another occasion, Mr. Thomas requested that he be permitted to kiss her and she complied. Ms. Eschevarria-Sola recalled Mr. Thomas discussing sexual matters in class, including his relationship with his wife, but could not specifically recall the details of the discussion. Mr. Thomas also joked about the bodies of the students in his class. Ms. Eschevarria-Sola was embarrassed by the jokes or language. Students at the FSDB are required to attend a course entitled "Talking About Touching", which provides instruction related to self-protection from potential physical abuse. Students are taught to classify physical contact as "good", "bad" or "confusing". "Good" touches would include such positive contact as a pat on the back. "Bad" touches would include touches which are physically uncomfortable and negatively perceived by the recipient, such as slapping or inappropriate sexually-oriented contact. "Confusing" touches are those which may be positively intended but which are perceived by the recipient to be inappropriate or which make the recipient uncomfortable. Students are taught that "confusing" and "bad" touches should be reported to responsible authorities at the school. The record is unclear as to whether the students alleging that Mr. Thomas' touches were "confusing" had taken the course prior to being in Mr. Thomas' classroom. Some students at the FSDB may have reached majority. Students may remain enrolled at the FSDB beyond the age of students enrolled in other high schools. A teacher is held to the same standards of classroom behavior regardless of the students ages. Mr. Thomas had been present during an FSDB staff meeting during which reference to appropriate and inappropriate classroom conduct was made by supervisory personnel, and consequences of improper conduct were discussed. Officials at the FSDB became aware of allegations related to the classroom conduct of Mr. Thomas, when, on May 24, 1988, the allegations were reported to Mr. Robert Dawson, President of the FSDB, by a female student, Marisol Eschevarria-Sola. Ms. Eschevarria-Sola had, on the previous evening, participated in a dormitory gathering with other female students during which Mr. Thomas' conduct was discussed. (Some students are enrolled at the FSDB on a residential basis and live in dorms at the school.) At the direction of the FSDB President Robert Dawson, the allegations were immediately investigated by Ms. Debra Boles, Assistant Principal for Academic Instruction. Ms. Boles initially interviewed five hearing-impaired female students, including Ms. Eschevarria-Sola and Ms. Warfel, who provided information substantially similar to their testimony at the administrative hearing. The initial interviews were solely between the individual students and Ms. Boles, who is skilled at signed communication. The student interviews indicated that some students were "confused" by Mr. Thomas' conduct. Ms. Boles immediately reported her findings to Mr. Dawson, who directed that Mr. Thomas be placed on administrative leave with pay pending further inquiry into the allegations. On May 24, 1988, Ms. Boles verbally informed Mr. Thomas and his immediate supervisor that Mr. Thomas was being placed on administrative leave with pay pending further investigation. Ms. Boles explained that there were allegations of inappropriate physical contact made by unidentified female students of Mr. Thomas. Ms. Boles informed Mr. Thomas that such inappropriate contact included touching female students "on the back, on the shirt or on the thighs. " By letter dated May 24, 1988, Mr. Dawson confirmed that Mr. Thomas was placed on administrative leave with pay, effective May 25 through June 8, 1988, while under investigation for "inappropriate Staff/Student Relationships" constituting violation of referenced sections of the Florida Administrative Code related to the Code of Ethics of the Education Profession in Florida. At Mr. Dawson's direction, Ms. Boles, on or about May 27, 1988, interviewed 29 students, all of whom are hearing-impaired, who had been students of Mr. Thomas at some time during their enrollment at the FSDB. The interviews were conducted individually. The interviews between Ms. Boles and the individuals were conducted through a registered interpreter. Of the 29 interviewed, 22 of the students expressed no concern related to Mr. Thomas' classroom conduct. Among the students interviewed were Ms. Middlebrooks and Ms. Lents, who provided information substantially similar to their testimony at the administrative hearing. Ms. Boles provided the information gained through the student interviews to Mr. Dawson. The matter was referred to the FSDB Personnel Director for further action. Pursuant to the aforementioned letter of delegation, Samuel R. Visconti, Director of Personnel for the FSDB, is responsible for employee disciplinary actions, including employment termination procedures. At the time Mr. Visconti was informed of the allegations, Mr. Thomas had been placed on administrative leave and the school was investigating the matter. Mr. Visconti was aware of the recommendations made by Dr. Randall, Mr. Dawson and Ms. Boles. Ms. Boles recommended that Mr. Thomas' employment at the FSDB be terminated for violation of professional standards. Dr. Randall recommended that Mr. Thomas' employment at the FSDB be terminated due to inappropriate conduct in the classroom. Dr. Randall has substantial experience with the deaf and observed that the physical contact which occurred in Mr. Thomas' classroom was not of the type which one hearing- impaired person would use to gain the attention of another. Mr. Dawson recommended that Mr. Thomas' employment at the FSDB be terminated. Mr. Dawson, who has extensive experience with the deaf, believed that the physical contact, sexual discussions, and attempted equalization of the teacher-student relationship had rendered Mr. Thomas ineffective as a teacher. According to Mr. Visconti, the termination procedure at FSDB requires notification to the employee of the intended action which is predicated on the allegations of either incompetence or misconduct. Prior to termination, the employee may or may not be placed on administrative leave during the school's inquiry into the allegations. Following the school's investigation, the employee is contacted and offered the opportunity for a predetermination hearing at which the employee may provide information relevant to the proposed disciplinary action. Within five days following the hearing, the employee is notified in writing, and perhaps verbally, of the school's decision. Mr. Visconti contacted Mr. Thomas either late in the afternoon of June 6 or early in the morning of June 7, 1988, to arrange a predetermination hearing. The communication between Mr. Visconti and Mr. Thomas was through telephone and TDD, a device that permits the transmission of apparently written communication through telephone lines. Mr. Visconti is not hearing-impaired. The record does not indicate whether Mr. Visconti understands signed communication. By agreement between Mr. Visconti and Mr. Thomas, the conference was scheduled for the afternoon of June 7, 1988. During the TDD communication, Mr. Visconti explained to Mr. Thomas that the school had completed the investigation of the allegations of improper classroom conduct, and restated the allegations. Mr. Visconti explained that Mr. Thomas was being offered the opportunity to meet with Mr. Visconti and present "his side of the story...." Mr. Thomas was informed that he could provide information orally or in writing, and was further informed that he could "bring anyone with him that he felt would help him in supporting anything that he wanted to present...." Mr. Thomas and Mr. Visconti agreed that Dr. Randall would serve at the meeting as interpreter. Mr. Visconti received from Ms. Boles, a package of materials, dated June 7, 1988. The package included Ms. Boles' notes taken during or subsequent to her interviews with the students. Present at the June 7 meeting were Mr. Visconti, Mr. Thomas, Dr. Randall, and Mr. Thomas' wife. Prior to the meeting, Mr. Visconti informed Mr. Thomas that the sexually-related allegations would be specifically addressed and inquired as to whether Mrs. Thomas would be embarrassed. Mr. Thomas indicated that the meeting could proceed. At that time, Mr. Visconti restated the incidents of inappropriate conduct upon which the school intended to base the disciplinary action and explained the authority under which the FSDB was acting. Mr. Thomas attempted to address the allegations at that time, but offered no witnesses. At the conclusion of the meeting, Mr. Visconti informed Mr. Thomas that a decision would be issued within several days. On the morning of June 8, 1988, Mr. Thomas contacted Mr. Visconti and requested an additional meeting to offer further explanation. The meeting, held that afternoon, was attended by Mr. Thomas, Mr. Visconti, and Dr. Randall. Mr. Thomas offered a typewritten statement, suggesting a rationale for the accusations made against him, which apparently reiterated information he had provided at the prior conference. Upon the conclusion of the June 8, 1988 meeting, Mr. Visconti terminated Mr. Thomas' employment, effective immediately. Mr. Thomas was officially dismissed by letter of June 10, 1988 from Mr. Visconti. The June 10 letter states that he was dismissed from employment for "doing the following to female students: rubbing backs, tickling backs under student's blouses, rubbing student's thighs, asking sexually related questions of students, discussing sexually related topics regarding your personal life, and asking for kisses in exchange for items such as pencils or pieces of candy." The letter informed Mr. Thomas of his right to appeal the determination through the administrative process and his union grievance procedure. Mr. Visconti determined that, based upon the information and recommendations presented to him by Dr. Randall, Mr. Dawson, Ms. Boles and Mr. Thomas, that just cause existed for the termination of Mr. Thomas' employment at the FSDB. Mr. Visconti determined that Mr. Thomas had violated the Code of Ethics as set forth in administrative rules and that the improper classroom conduct had rendered Mr. Thomas ineffective as a teacher and had placed students at risk. At the administrative hearing, Mr. Thomas sought to explain the physical contact as serving to gain the attention of, or to calm, hearing- impaired students. Mr. Thomas claims that he touched Ms. Middlebrooks' back as a means of addressing the frustration she supposedly felt at the difficult computer work required in the class and stated that he did not know she found it objectionable. Mr. Thomas testified that Ms. Lents instigated the hugging incidents, and that he told her to stop, but she continued. Mr. Thomas claimed that he once touched Ms. Warfel's back under her blouse on a day when Ms. Warfel wore a prohibited bare midriff blouse to class and that his hand accidently touched her bare skin while he was reminding her that such blouses were prohibited. Mr. Thomas denied that he requested a kiss from Ms. Warfel, but suggested that Ms. Warfel kissed him because he was her "favorite teacher". Mr. Thomas denied tickling Ms. Warfel. Mr. Thomas explained that he possibly touched Ms. Eschevarria-Sola's leg as a means of gaining her attention while she sat at the computer console, but claimed he never touched the inside of her thigh. Mr. Thomas denied that Ms. Eschevarria-Sola kissed him or that he kissed her. As to sexually-oriented conversations, Mr. Thomas denied having made such remarks. Mr. Thomas' testimony was less credible than that of the students who testified at the hearing. At the administrative hearing, Mr. Thomas offered no rationale to suggest the reason behind the student's allegations. The typewritten statement provided to Mr. Visconti on June 8 by Mr. Thomas suggests that the allegations were the work of Senior class students, supposedly disappointed with his decision not to invite them to his home for a social event, as he had apparently done on an occasional and irregular basis in previous years. However, those students testifying generally had favorable opinions of Mr. Thomas, other than as to his specific conduct to which they objected. There is no evidence to support the inference that the allegations were untruthful and that they were intended as retribution for the omitted social activity. Evidence was introduced indicating that hearing-impaired persons are more likely to touch each other than are non-hearing-impaired persons. Such touches are to gain another's attention or to express emotion. The evidence does not support the suggestion that Mr. Thomas' classroom conduct was designed to gain the attention of the students or express emotion. Ms. Boles testified that some of Mr. Thomas' classroom behavior indicated the potential for sexual abuse by Mr. Thomas, however, the testimony to this point was not persuasive. Ms. Boles' opinion was, at least in part, based upon her discussions with an independent psychologist who serves as a consultant to the school on matters related to sexual abuse prevention. According to Ms. Boles, the consultant stated that a "psychosexual evaluation" of Mr. Thomas was necessary to determine the potential for sexual abuse. The school did not follow the consultant's recommendation. Although Mr. Thomas' behavior was inappropriate, the evidence does not suggest that Mr. Thomas sexually abused students and the testimony related to Mr. Thomas' potential for sexual abuse is not credible.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Trustees for the Florida school for the Deaf and the Blind enter a Final Order finding that just cause exists for terminating the employment of Bradley Thomas. It is further RECOMMENDED that the Education Practices commission enter a Final Order permanently revoking teaching certificate, #486268, held by Bradley Thomas. DONE and RECOMMENDED this 19th day of September, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1989. APPENDIX CASE NOS. 88-3425 and 88-5675 Proposed findings of fact were filed by the Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425 and Betty Castor, as Commissioner of Education, Petitioner, Case No. 88-5675. The following constitute rulings on proposed findings of facts submitted by the parties. The proposed findings of fact are adopted as modified in the Recommended Order except as follows: Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425 4. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial. 6. Reference to the Department of Health and Rehabilitative services rejected, immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay. 15. Rejected, irrelevant. Last sentence rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. 20. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex. 26. Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. Rejected, not supported by the weight of the evidence. The testimony cited does support the proposed finding. Reference to the Department of Health and Rehabilitative Services rejected, immaterial. Betty Castor, as commissioner of Education, Petitioner, Case No. 88-5675 7. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial. 9. Reference to the Department of Health and Rehabilitative Services rejected as immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay. 15. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex. Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. Rejected, unnecessary. 29. Characterization of testimony as evasive and inconsistent is rejected, unnecessary. COPIES FURNISHED: William J. Sheppard, Esq. 215 Washington Street Jacksonville, FL 32202 Barbara J. Staros, Esq. State Board of Education Knott Building Tallahassee, FL 32399 Betty J. Steffens, Esq. 106 South Monroe Street Post Office Box 11008 Tallahassee, FL 32302 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, FL 32399 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, FL 32399 Robert Dawson, President Florida School for the Deaf and the Blind 207 San Marco Avenue St. Augustine, FL 32084
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 The issue in this case is whether Petitioner, Polk County School Board ("School Board"), had just cause to terminate Respondent, Blanca R. Ortiz' ("Respondent"), employment as a teacher.
Findings Of Fact At all times relevant to this proceeding, Respondent was employed by the School Board as a teacher at Lakeland High School, where she taught spanish. Respondent currently holds a professional services contract pursuant to Section 1012.33, Florida Statutes (2007).1 On February 6, 2008, Chelsey Etgen, a Lakeland High School student in Respondent's fourth-period class, left her packback in Respondent's classroom during the lunch period. The backpack contained Ms. Etgen's iPod Touch ("iPod"). When Ms. Etgen returned to the classroom from lunch, an unidentified male student, who was sitting near her, handed her (Etgen) a graph and a calculator and asked if those were her items. Ms. Etgen recognized both the graph and calculator as items that belonged to her and that had been in the same "pocket" of her backpack as her iPod. Ms. Etgen immediately checked her backpack and, upon doing so, discovered that her iPod was missing. Immediately after Ms. Etgen discovered that her iPod was missing, she notified Respondent. Respondent had the students in the class empty their pockets, but the iPod was not found. Respondent then instructed Ms. Etgen to notify appropriate school officials that the iPod had been taken from her backpack. On February 7, 2008, Ms. Etgen reported to the school resource officer ("resource officer" or "officer") that the iPod was missing from her backpack. Ms. Etgen's iPod was black with a silver face/screen. About a week after Ms. Etgen reported that her iPod was stolen, Respondent asked Ben Brown and another student in Respondent's third-period Spanish I class if they could unlock her iPod. Respondent told Mr. Brown and the other student that her daughter had taken the iPod to school and tried the password so many times that it (the iPod) had "locked up." Mr. Brown and several other students attempted to "unlock" the computer, but were unsuccessful in doing so. Almost two weeks after Ms. Etgen's iPod was reported as missing, Ms. Etgen told Mr. Brown that she thought Respondent had her (Etgen's) iPod. The two students then arranged for Mr. Brown to check the serial number on the iPod that Respondent stated was hers with the serial number of Ms. Etgen's stolen iPod. Mr. Brown agreed to get the serial number off the iPod. As a security measure, Mr. Brown told Ms. Etgen that after he obtained the serial number from the iPod, he would e-mail half of the serial number to her and indicated that she should provide the other half of the serial number to him. On or about February 20, 2008, and after the conversation described in paragraph 8, Mr. Brown went to Respondent's third-period class. The iPod, which Mr. Brown had been trying to "unlock" for Respondent, was still in Respondent's classroom. That day, Mr. Brown was able to hold and look at the iPod and to obtain the serial number of the iPod. Ms. Etgen obtained the serial number of her stolen iPod from the box in which the iPod had come. On February 20, 2008, Mr. Brown and Ms. Etgen exchanged a series of text messages in which each of them provided parts of the serial number of the iPod that was in Respondent's classroom. After doing so, Mr. Brown and Ms. Etgen confirmed that the serial number of the iPod that Respondent had said was hers matched the serial number of Ms. Etgen's stolen iPod. The iPod from which Mr. Brown obtained the serial number discussed above, looked identical to the one that he had been trying to "unlock" for Respondent. After confirming that the iPod in Respondent's classroom matched her iPod serial number, Ms. Etgen told school officials that she believed Respondent had her (Etgen's) iPod. Ms. Etgen also delivered to resource officers, Stacy Pough and Steve Sherman, the box for her iPod that had the serial number which Ms. Etgen believed matched the iPod in the possession of Respondent. On February 20, 2008, soon after receiving information from Ms. Etgen about the matching iPod serial numbers, Officers Pough and Sherman went to Respondent's classroom to ask her about the missing/stolen iPod. Upon entering the classroom, the officers approached Respondent and Officer Sherman asked Respondent about Ms. Etgen's missing iPod and asked if she had the iPod. In response, Respondent told the officers that she did not have the iPod. The resource officers then left the classroom and went into the hall and reported what they had been told to Lakeland High School administrators, Mr. Thomas, then principal, and Tracie Collins, then assistant principal of curriculum. When the resource officers made the initial contact with Respondent, Lakeland High School students, Tyler Qualls and Barbara Duckstein, were among the students in Respondent's classroom. Both Mr. Qualls and Ms. Duckstein overheard the conversation between the resource officers and Respondent described in paragraph 14. Although Respondent told the officers that her iPod was at home, both Mr. Qualls and Ms. Duckstein had seen Respondent with an iPod earlier that day. In fact, that same day and before the officers came to Respondent's classroom, Respondent had asked Ms. Duckstein to see if she could unlock Respondent's iPod. Ms. Duckstein then attempted to "unlock" what she believed to be Respondent's iPod,2 but was unsuccessful in doing so. Soon after the resource officers left Respondent's classroom, Ms. Duckstein left the classroom and told the officers that Respondent had an iPod in the classroom. After Officers Pough and Stewart completed their initial interview with Respondent and left her classroom, Mr. Quall observed Respondent remove the iPod from her desk drawer and put it in her black tote bag. After the resource officers' initial interview with Respondent, the students in Respondent's classroom were released early for lunch. Ms. Collins told Respondent that a student had "something" missing and asked her if the officers could come in and look around the classroom. Respondent agreed to allow the officers to search the classroom. Ms. Collins then authorized the resource officers to search Respondent's classroom. During the search, Ms. Collins observed Respondent move a stack of papers and folders from her desk into a bag. The manner in which Respondent moved the items made Ms. Collins suspicious, so she asked Officer Pough if he had looked in the bag. Officer Pough told Ms. Collins that he thought he had, but would look again. While looking through the bag, Officer Pough found the iPod that belonged to Ms. Etgen. At the hearing, Respondent testified that she did not take Ms. Etgen's iPod and that she did not know how the iPod got in her tote bag. Respondent also testified that she had received an iPod for Christmas and that she had asked the students to "unlock" the iPod that she believed was hers. Respondent's testimony implied that her iPod was identical to Ms. Etgen's iPod and that this may have been a source of confusion as to which iPod she had asked the students to "unlock." However, Respondent provided no evidence to support her claim that she had an iPod.3 In attempting to explain how Ms. Etgen's iPod came into her possession, Respondent then testified that on February 20, 2008, she confiscated several electronic devices, including an iPod, from students who were using them in class and placed the items on her desk. Respondent testified that at the end of the class, the students were allowed to come and retrieve the items, but apparently one unidentified student did not retrieve the iPod, but left it on Respondent's desk. Respondent suggested that perhaps it was that unidentified student who brought Ms. Etgen's iPod into Respondent's classroom on August 20, 2008.4 Respondent's testimony was confusing, vague, and unpersuasive. Ms. Collins, now principal of Lakeland High School, testified that the success of a teacher is tied to his or her credibility (character and integrity) with the students. The evidence supports the allegation that Respondent stole a student's iPod. Moreover, the evidence established that the incident occurred at school and that students at the school, as well as administrators, knew about the incident. Given the foregoing, Respondent is no longer an effective teacher. As a result of the subject incident on or about November 5, 2008, Respondent was convicted of petit theft in a criminal proceeding in Polk County, Florida.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order dismissing Respondent, Blanca Ortiz, from her position as a teacher. DONE AND ENTERED this 31st day of December, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 31st day of December, 2008.
The Issue The issue in the case is whether the Respondent completed the applicable probationary period while employed as a teacher with the Polk County School System.
Findings Of Fact The Respondent was employed as an eighth grade teacher at Boone Middle School from the beginning of the 1998-1999 school year until October 6, 1998. The Boone Middle School principal and an assigned peer teacher observed the Respondent’s teaching techniques. The observers had certain concerns related to the Respondent’s methods, and on October 2, 1998, the principal met with the Petitioner to discuss the concerns. A second conference was scheduled for October 6, 1998. When the Petitioner arrived at the conference, she announced that she was resigning her employment. At the time of the resignation, the Respondent was asked to submit a written resignation. Although the written resignation was never received, on October 12, 1998, the Respondent turned in her grade book and other documents. By statute, a teacher employed under an "initial annual contract" must complete a 97-work day probationary period, during which time the employment may be terminated without cause and the teacher may resign without being in breach of the employment contract. The Respondent was employed at Boone Middle School for 47 days. She did not complete the probationary period. The Respondent asserts that she did not resign from Boone Middle School, but transferred from Boone Middle School to Cypress Lake Middle School. The evidence fails to establish that a transfer took place. Polk County School Board policy requires that the principals of the employing schools approve teacher transfers. There is no evidence that either the Boone Middle School or the Cypress Lake Middle School principals approved of an official transfer between the schools. There is no evidence that the Boone Middle School principal was aware of the Respondent’s intention to leave until October 6, 1998, when the Respondent announced her resignation from employment. At the hearing, the Boone principal testified that, given the difficulty in hiring math teachers, she would not have approved a transfer in the middle of the school term. The Respondent asserts that she took October 7, 1998, as pre-approved leave time. There is no credible evidence that October 7, 1998, was approved for the Respondent as a personal leave day by any appropriate authority. She had resigned her employment from Boone Middle School, and had not begun her employment at Crystal Lake Middle School. It is unclear as to which employer would have approved a request for leave. The Respondent began employment at Crystal Lake Middle School on October 8, 1998. The Petitioner worked at Crystal Lake until February 12, 1999. After the first grading period was completed, Crystal Lake administrators were concerned about the number of failing grades the Respondent had assigned to her students. Crystal Lake administrators met with the Respondent and asked that she reconsider the grading scale. On February 1, 1999, the Respondent submitted her resignation to Crystal Lake administrators. The Respondent was employed at Crystal Lake Middle School for 82 days. She did not complete the probationary period. Following her resignation from Crystal Lake, she occasionally worked as a substitute teacher. The Respondent was employed at Bartow High School at the beginning of the 1999-2000 school year. She taught nutrition and wellness courses. She was assigned a peer teacher. After classes began, the Bartow High School principal began to receive complaints from students, parents, and others regarding the Respondent’s teaching performance. Based upon the complaints, the principal terminated the Respondent’s employment effective September 28, 1999. The Respondent was employed at Bartow High School for 42 days. She did not complete the probationary period. The Respondent asserts that her employment at Bartow High School was as a "re-appointee" not under an "initial contract," that the probationary period is inapplicable, and that she may not be terminated without cause. The Respondent testified that an employee of the Polk County School Board personnel department told her upon her employment at Bartow High School that she would be considered a "re-appointee." The Respondent was unable to specifically identify which employee allegedly provided the information; however, employees of the personnel office testified that they did not recall speaking to the Respondent about this issue, but further testified that Respondent’s recollection is contrary to school board policy. The employees testified that a teacher, once resigned, who later returns to employment, is treated as a "new" employee and receives an "initial" annual contract. The board policy was further confirmed by the testimony of the Petitioner’s director of employee relations. The Respondent asserts that she was not in fact treated as a new teacher, in that she was not required to complete a new employment application and was not asked to provide fingerprints or medical documents which are required of a new hire. The personnel department employees testified that generally it is not necessary for a person in the Respondent’s position to resubmit such materials when those already on file are of recent vintage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Polk County enter a Final Order terminating the employment of Rita Clarkson. DONE AND ENTERED this 25th day of April, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 25th day of April, 2000. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831-4620 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Mr. Glenn Reynolds School Board of Polk County 1915 South Floral Avenue Bartow, Florida 33830-0391 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (“FCHR”), and, if so, what relief should be granted.
Findings Of Fact Petitioner is a Black West-Indian male. Respondent is a political subdivision of the State of Florida responsible for operating the public schools in Broward County. Petitioner obtained a temporary teaching certificate from the Florida Department of Education in 2017. In October 2017, Petitioner was hired by Respondent as a teacher at Walker Elementary School. As a new teacher, Petitioner was a contract employee subject to a probationary period of one school year. During the probationary period, Petitioner could be dismissed without cause or resign without breach of contract. Petitioner worked at Walker Elementary School, where he did not have his own classroom, but worked with special-needs children in different classrooms, until the end of the 2017-2018 school year. There were no teaching positions available at that school for the 2018-2019 school year. In August of 2018, Petitioner was transferred by Respondent to Mirror Lake, where he filled a first-grade teaching vacancy. Andrea Gresham was the team leader for first-grade teachers at Mirror Lake. As a new teacher, Petitioner was assigned a mentor to assist him in acclimating to the duties of his position. In addition to being the team leader for all first-grade teachers at Mirror Lake, Ms. Gresham was also Petitioner’s designated mentor. Petitioner reported for work at Mirror Lake on August 7, 2018. At that time, Ms. Gresham took Petitioner on a tour of the campus. She also provided Petitioner with sample lesson plans and homework for the students. Throughout the week, Petitioner prepared for the first day of school for students with Ms. Gresham’s help. These preparations included Ms. Gresham reviewing procedures related to beginning-of-year testing, student homework, teacher planning, and student dismissal at the end of the school day. It was Ms. Gresham’s habit to keep dated notes relevant to her duties as a mentor and team leader. As a best practice, she regularly met with Principal Veliz to discuss the progress of new teachers. Ms. Gresham kept contemporaneous notes of her interactions with Petitioner and kept Principal Veliz advised of her observations. Ms. Gresham observed that Petitioner was not engaged within the team of first-grade teachers and had a difficult time grasping school procedures despite her attempts to guide him. The typical first-grade student is six years old at the beginning of the school year. Given how young these students are, the protocol at Mirror Lake requires teachers to take extra care to ensure that the students are directed to the correct mode of transportation during dismissal. Ms. Gresham explained the dismissal procedures and emphasized their importance to Petitioner on more than one occasion leading up to the students’ first day of school. Each first-grade student is given a lanyard that is color-coded to correspond to that student’s teacher. Teachers are responsible for writing each child’s mode of transportation, as provided to the teacher by the child’s parents, on his or her lanyard every day. At the end of the school day, the children are sorted by their mode of transportation and escorted by a designated teacher or paraprofessional. The students are categorized as: car riders, bus riders, walkers, or attendees of the on-site after-school program. August 15, 2018, was the first day of the school year for students at Mirror Lake. At the end of the school day, Petitioner, along with all of the other first-grade teachers, was responsible for assisting his students in reporting to the appropriate location for their respective modes of transportation. On August 15, 2018, Petitioner and Ms. Gresham were both assigned to the car-rider group. While Petitioner and Ms. Gresham were in the car-rider pickup area, Ms. Gresham became aware that a student was missing when a visibly upset parent exited his vehicle having learned that his child was not present for pick-up. Ms. Gresham sought help from the school resource officer and other teachers in an effort to locate the missing student. Principal Veliz testified credibly that this was the first and last time a student was unaccounted for at dismissal at Mirror Lake. Ms. Gresham asked to see the transportation log that Petitioner had compiled for his students to determine how the child was supposed to go home and where the mistake may have occurred. In reviewing Petitioner’s transportation log, Ms. Gresham noticed that the log had some children’s names listed under two different modes of transportation for the same day. As a result, Petitioner’s transportation log did not add any clarity to the situation. Meanwhile, teachers continued to search the campus for the missing student and the school resource officer escorted the father of the missing student to the office to speak with Principal Veliz. Once the student dismissal process was complete for the day, Principal Veliz convened a faculty meeting. During the meeting, the faculty learned that a second student from Petitioner’s class was missing. Principal Veliz adjourned the faculty meeting and assembled the team leaders in the office to assist in locating the two missing students. Petitioner returned to his classroom and did not join the effort to locate the missing students. The team leaders proceeded to call private daycares to ask if the missing students may have been transported to such a facility by mistake. Through these phone calls, both of the missing students were located at the same daycare. Thereafter, the children were reunited with their parents. Principal Veliz met with the parents of the children who had been mistakenly sent to the wrong location on August 15, 2018. Principal Veliz personally paid for the daycare center’s charges with respect to one of the students who had been inadvertently sent there. Principal Veliz testified that the parents were upset that their children had been misplaced and that the parents of one of the children requested a transfer to another first-grade teacher. Ms. Gresham had the opportunity to examine the lanyard belonging to one of the students who had gone missing during dismissal. She observed that Petitioner had written on the lanyard that the student was to ride the bus that day, although the parents had previously informed Petitioner that the student was to be picked up by car. In conducting a routine observational visit to Petitioner’s classroom during the first week of school, Principal Veliz observed conditions that she considered of urgent concern with respect to Petitioner’s academic practices and overall classroom management. She observed a lack of structure, including students in Petitioner’s class wandering around the room and playing with pencils as though they were swords without any redirection. Principal Veliz also observed that Petitioner was using obsolete and ineffective teaching methods. Principal Veliz contacted the school district’s employee relations and talent acquisition office to discuss Petitioner’s employment status. Principal Veliz was notified that Petitioner was still within his one-year probationary term, and that his employment could be terminated without a formal hearing or progressive disciplinary measures. Principal Veliz made the decision to terminate Petitioner’s employment prior to the end of his probationary status based on his unsatisfactory performance. Principal Veliz obtained a form letter from the school district’s human resources department, which she modified to fit Petitioner’s circumstances. The letter was dated August 23, 2018. The letter stated that Petitioner’s name would be submitted to the next School Board meeting for termination of employment during a probationary period and that Petitioner could choose to resign in lieu of termination. Petitioner chose not to sign the document. Petitioner’s employment was terminated at the next meeting of the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of October, 2020, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER 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 16th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Rudyard Julius 19101 Northwest 11th Street Pembroke Pines, Florida 33029 (eServed) Michael T. Burke, Esquire Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether the teaching certificate of Respondent John Eugene Armstrong should be suspended, revoked or annulled.
Findings Of Fact The Petitioner Professional Practices Council seeks to revoke Respondent John Eugene Armstrong's teaching certificate based on a recommendation filed September 20, 1976, by Hugh Ingram, Administrator of the Council. The Council alleges that the Respondent is guilty of gross immorality and that he failed to perform his duties as educator as required by Section 231.09, Florida Statutes. Pursuant to the raising of the issue of fairness and constitutional guarantees by the hearing panel of the Professional Practices Council and without admitting the validity of the issue, the Council relinquished jurisdiction of the cause and requested that jurisdiction be assumed by a Hearing Officer from the Division of Administrative Hearings. The Petition for the Revocation of Teacher's Certificate filed by the Petitioner on October 7, 1976, contended that Respondent John Eugene Armstrong: "1. On August 16, 1967, at 4:00 p.m. made two threatening phone calls to Mr. Claude O. Hilliard, former principal, using pro- fane language; On or about January 14, 1975, made an obscene gesture with his fingers to Linda Rhodes, a student; On or about June 20, 1975, confronted Mrs. Marilyn H. Bagby, Coordinator EMR, in a classroom and made threatening remarks; On or about November 10, 1975, entered the girls' locker room when the girls were dressing out for class as observed by Coach Ruth Stevens and Coach Geraldine Williams; On or about November 10, 1975, in rela- tion to the incident in Number 4, threatened Ms. Ida L. Shellman, Administrative assistant; On or about December 10, 1975, fondled the upper portion of Gwendolyn Lowe's, a student's, body; On January 29, 1976, in the presence of Mr. R. L. Ballew, Director, Area I, made accusations against Mr. Milton Threadcraft, principal, in a threatening manner; On March 3, 1976, struck Lavern White, a student, on or about his neck causing bruises; On March 12, 1976, struck Johnny Hill, a student lacerating his upper lip; The Respondent Armstrong was first employed by the Board of Education in the public schools of Duval County, Florida, in 1952. He holds valid Florida Teaching Certificate Number 401436. In 1973 he was assigned to Northwestern High School to teach industrial arts and was assigned to teach classes of educable mentally retarded (EMR) students. He taught special education industrial arts classes consisting of seventh and eighth grade students. Respondent stated that he had attempted to obtain a transfer from the Northwestern School on a number of occasions both because of dissatisfaction with the facilities and because of harassment he received from the administration. He stated that discipline was a major problem among EMR students. Various witnesses were called to testify and findings in regard to the aforementioned charges are as follows: The charge that Respondent made threatening phone calls to Mr. Claude O. Hilliard, former principal, using profane language was not proved. The charge that Respondent made an obscene gesture with his fingers to Linda Rhodes, a student, was denied by the Respondent who stated that he did not know what an obscene gesture meant. The student testified that he "shot a bird" at her and demonstrated by position of her fingers. She was a member of Respondent Armstrong's class two years ago and was advised by her counselor, Mrs. Shellman, to write out a complaint against Respondent. Upon observing the demeanor of the witnesses, I find the Respondent did make such a gesture to Linda Rhodes, a sixteen year old student. Considering the testimony of the Respondent and of Mrs. Marilyn H. Bagby, the Hearing Officer finds that Respondent was upset and did in fact make remarks to her concerning a report she made subsequent to her observation of Respondent's teaching and room atmosphere which he had not received and that the witness Bagby was in fact frightened by the presence of the Respondent in her room alone, his close proximity and his tone of voice on or about June 20, 1975. She verbally reported the incident to her supervisors and later made a written report of the incident. Respondent testified that if he threatened her he did not recall it. The Respondent admitted that he did in fact enter the girls locker room when the girls were dressing out for class on or about November 10, 1975. The evidence does not show that the entrance into the girls locker room was for an immoral purpose although he knew or should have known he should not have entered when the girls were in various stages of undress. Considering the testimony of the Respondent and Mrs. Ida L. Shellman, Administrative Assistant, concerning the locker room incident, the Hearing Officer finds that by Respondent's presence with his hands in his pockets, his remarks and his general tone of voice, Mrs. Shellman was in fact threatened and frightened. Respondent testified that he did not recall his conversation relative to the incident as being threatening. The charge that on or about December 10, 1975, Respondent fondled the upper portion of Gwendolyn Lowe's, a student's, body was not proven by the evidence. The charge is that on January 29, 1976, in the presence of R. L. Ballew, Director, Area I, Respondent made accusations against Mr. Milton Threadcraft, the principal, in a threatening manner. The testimony of Mr. Threadcraft is believable when he testified that Respondent accused him of being incompetent and said that he, Respondent, was not going to put up with it. The remarks of Respondent were subsequent to a commotion in the school room in which wood was being thrown about and the Respondent had taken a student by the arms to discipline him. The principal, Threadcraft, was called by other students to witness the actions of Respondent. Respondent was relieved of his duties for the remainder of the day after a later confrontation with the principal and director. The testimony and evidence supports the charge. Charge Number 8 that Respondent struck Lavern White on March 3, 1976, on or about his neck causing bruises was proven by the testimony of the student, Lavern White, and also by a fellow student, Johnnie Hills. Sufficient evidence was not shown that Respondent in fact did strike Johnnie Hills on March 12, 1976, lacerating his lip although the evidence shows that Respondent did use corporal punishment by pushing the student against the wall to discipline him. Respondent attempted to discipline students through physical restraints. The Respondent was dissatisfied with his teaching position in the school to which he was assigned. He had asked to be transferred, he testified, about ten times in three years. The students were a discipline problem. The method of discipline of the students was to use force which, among other things, caused the students to be dissatisfied with their classwork. Order was not kept in the class and objects were thrown about the class from time to time. The Respondent was feared by some of the other teachers and by some of the students. From the general comments of the students of Respondent and the adult staff members, it is evident that the classes of Respondent did not reflect an atmosphere for optimum learning. Respondent appeared resentful of his professional status and uncooperative toward the other members of the educational community. He displayed no interest in the education of his students.
Recommendation Suspend the teaching certificate of the Respondent Armstrong for a period of time not to exceed three (3) years. DONE and ORDERED this 29th day of June, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David A. Barrett, Esquire Post Office Box 1501 Tallahassee, Florida 32302 Donald Nichols, Esquire 320 East Adams Street Jacksonville, Florida 32202
The Issue The issue in this case is whether the Manatee County School Board (Petitioner or Board) has just cause to terminate the employment contract of Matthew Kane (Respondent or Mr. Kane).
Findings Of Fact Petitioner is a duly-constituted school board, charged with the duty to operate, control, and supervise all free public schools within the District. Respondent has been employed by the District since September 25, 1997. Respondent was a teacher at the District’s Lakewood Ranch High School from fall 2003 through spring 2007. Respondent became an assistant principal at Manatee High School (MHS) for the 2007-2008 school year, and served in that position through January 1, 2012. On January 2, 2012, Respondent became the MHS interim principal for the rest of the school year. Respondent returned to his prior position of assistant principal at MHS on July 1, 2012, when Don Sauer was hired as the new MHS principal. Respondent was an MHS assistant principal for most of the 2012-2013 school year; six weeks before the school- year end, he was transferred to an assistant principal position at the District’s Southeast High School. At the time of hearing, Respondent held an annual contract for an assistant principal position for the 2013-2014 school year. As a teacher, assistant principal, and interim principal, Respondent was at all times required to abide by all Florida laws pertaining to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida (adopted as State Board of Education rules), and the Board’s policies and procedures that have been promulgated as rules (hereafter Board policies).5/ On August 1, 2013, Respondent was placed on paid administrative leave during the pendency of an investigation that ultimately led to this proceeding. On August 14, 2013, Respondent was charged with felony failure to report known or suspected child abuse, and with providing false information to a law enforcement officer. The latter charge was subsequently dismissed. By letters dated September 25, 2013, and October 4, 2013, hand-delivered to Respondent, the superintendent provided written notice of his intent to recommend termination of Respondent’s employment. The Complaint, with allegations and charges against Respondent on which the recommendation was based, was delivered with the October 4, 2013, letter. Respondent was also informed that the superintendent would recommend to the Board that Mr. Kane be suspended without pay pending final resolution of the Complaint. On October 14, 2013, during a Board meeting at which Respondent was represented, the Board adopted the superintendent’s recommendation to suspend Respondent without pay pending the outcome of any administrative hearing requested by Respondent. On October 24, 2013, Respondent served a Request for Administrative Hearing and Respondent/Employee’s Answer to Administrative Complaint. At issue in this proceeding is whether Mr. Kane was informed of alleged improprieties with female students by an MHS paraprofessional, Rod Frazier, who was an administrative parent liaison handling student discipline and a football coach. If so, the issue then becomes whether Mr. Kane violated obligations imposed by Florida law and Board policies related to protecting students, including the obligations to report suspected child abuse and to report allegations of misconduct by instructional personnel affecting the health, safety, or welfare of students. The core allegations in the Complaint are that Mr. Kane was apprised of prior alleged inappropriate incidents involving Mr. Frazier and female students, yet he did nothing to intervene, which allowed Mr. Frazier to remain at MHS, placing the safety and well-being of students at risk. Following Mr. Kane’s stint as MHS interim principal, a new principal arrived for the 2012-2013 school year, Don Sauer. Others--not Mr. Kane--were instrumental in bringing some of the allegations of Mr. Frazier’s improprieties to the attention of the new MHS principal in November 2012. The person who coordinated the effort to bring these matters to Mr. Sauer’s attention was Steven Rinder. Mr. Rinder is the coordinator of the student assistance program, which offers advice and assistance to students and families regarding non-academic issues that can affect students’ academic performance. Mr. Rinder credibly testified that over the few weeks preceding his communication with Mr. Sauer, he was approached independently by several MHS teachers and other instructional staff, including Mike Strzempka (teacher), Lynn Aragon (teacher), Stephen Gulash (administrative parent liaison), Keltie O’Dell (teacher), and Jackie Peebles (teacher), regarding their concerns about Mr. Frazier’s inappropriate interactions with students. Mr. Rinder found these independent reports unusual, indicative of a problem needing attention, and significant enough that he went to Mr. Sauer about the concerns. Mr. Sauer told Mr. Rinder to make a list of the allegations, without names, and Mr. Sauer would do what ought to be done with a “hot potato”: pass it on. Mr. Rinder put together a list of the allegations that had been conveyed to him. In addition, he obtained a list from Mr. Gulash of the incidents he had observed or had been informed of, and Mr. Rinder added those items to his list. Mr. Rinder then gave the document to Mr. Sauer, who passed the “hot potato” on to the District’s Office of Professional Standards (OPS). As witnesses uniformly agreed, there was no question that the list, taken as a whole, raised serious concerns about Rod Frazier’s conduct with female students that would amount to, at the least, employee misconduct. Several allegations, standing alone, raised serious concern of inappropriate touching of female students, such as Mr. Frazier behind closed doors with a female student sitting on his lap feeding him cake, and Mr. Frazier shoving a water bottle between a female student’s legs. Upon receipt of the Rinder list on November 14, 2012, OPS initiated an investigation of Mr. Frazier. A letter from the superintendent notified Mr. Frazier as follows: “Effective Thursday, November 15, 2012, you are being placed on paid administrative leave pending the outcome of our investigation of possible misconduct on your part.” On Thursday afternoon, November 15, 2012, OPS specialist Debra Horne went to MHS and interviewed four of the persons contributing to the list of allegations. Ms. Horne spoke with Mr. Rinder and Mr. Gulash and got some information regarding the names of the sources for each allegation, and the names of the students involved in the alleged incidents. Ms. Horne also interviewed Mike Strzempka and Lynn Aragon, sources for several allegations. Ms. Horne did not interview Jackie Peebles that day, but learned that Ms. Peebles was the teacher who walked in on Mr. Frazier in his office and found a female student sitting on his lap feeding him cake. Ms. Horne also learned that the female student on Mr. Frazier’s lap was D.K., a senior, no longer at MHS, but at the District’s Palmetto High School. Ms. Horne did not interview Keltie O’Dell that day, nor Rod Frazier, nor D.K. or any of the other students whose names she had. After those four interviews, Ms. Horne met with MHS principal Sauer and assistant principals Kane and Greg Faller, in Mr. Sauer’s office. She called her boss, Scott Martin, a District assistant superintendent, and he participated by speaker phone. The purpose of the meeting was to bring everyone up to speed as to where Ms. Horne was in the investigation. Although the testimony was conflicting, the credible evidence established that during this meeting, Ms. Horne and Mr. Martin discussed the contents of the Rinder list, if not line by line, then item by item, and Ms. Horne reported that each allegation was either unverified or old. As to the old allegations, Ms. Horne reported that the concerns had been brought to the attention of either former principal Robert Gagnon or one of the assistant principals, and those administrators had already addressed the concerns with Mr. Frazier. When Ms. Horne made that statement, the two assistant principals present and listening--Mr. Kane and Mr. Faller--expressed agreement by nodding their heads. At that point, Mr. Martin told Ms. Horne to wrap it up and return to their office. Strangely, despite Ms. Horne having learned that “old” allegations had been reported to and addressed by administrators, Ms. Horne apparently did not interview the administrators about their knowledge of the allegations or what had been done to address those allegations with Mr. Frazier, either on that day or at any other time before she left OPS in late January 2013. There was no documentation in Mr. Frazier’s file of any kind of discipline for inappropriate interactions with female students-- no documentation of any conferences with administrators, directives, warnings, reprimands, or suspensions. Mr. Kane acknowledged that at the meeting with Ms. Horne, the Rinder list itself was there; he skimmed the document, he did not read it item by item. It is difficult to imagine that as an assistant principal, Mr. Kane would not have been more interested in the specific allegations made against an instructional staff member, particularly when Mr. Kane nodded in agreement with Ms. Horne’s report that the allegations were old and had been reported to and addressed by administration. Mr. Kane did not offer any information to Ms. Horne about the allegations he had skimmed. At hearing, he explained that he thought he was required to stay out of the OPS investigation. Inconsistently, he volunteered information about three staff members contributing to the list of allegations, stating at the meeting that Mr. Gulash, Ms. Aragon, and Mr. Strzempka all had grudges against Mr. Frazier. Ms. Horne left MHS and returned to the District office to meet with Mr. Martin. Mr. Martin testified that he pressed Ms. Horne regarding whether she had gone down every rabbit trail, with the implication that he was satisfied that Ms. Horne had exhausted her investigative options by conducting only four interviews in the span of a few hours. Ms. Horne testified that she asked to interview D.K. and the other students whose names she had obtained, and also suggested conducting random interviews of students at MHS. Mr. Martin cut her off from this notion, stating that since no student “victim” had come forward, there was no reason to interview any students. Prior to meeting with Ms. Horne, Mr. Martin discussed the investigation with Mr. Gagnon. Mr. Gagnon was MHS principal until January 2, 2012, when he was promoted to an assistant superintendent position in the District office and Respondent became MHS interim principal. Mr. Gagnon’s message to Mr. Martin was that Mr. Frazier had been the subject of rumors before that had allegedly ruined his marriage, and that it would be bad if Mr. Frazier was still suspended by the next evening (Friday, November 16, 2012), because there was an important football game, and rumors would fly if Mr. Frazier was not coaching at the big game on Friday night. Mr. Gagnon also told Mr. Martin that the investigation should proceed and that if Mr. Frazier did what he was alleged to have done, then the District should “bury him under the school.” Mr. Gagnon characterized this latter message as the primary message. Nonetheless, at best he was sending a mixed message by suggesting that the District should thoroughly investigate, as long as it did so in one day so the coach could return to work in time for the big game Friday night. Apparently keying on the game-night part of the mixed message, Mr. Martin made the decision after meeting with Ms. Horne that the investigation was going nowhere. He directed that Mr. Frazier be removed from paid administrative leave and returned to work the next day, Friday, November 16, 2012. Meanwhile, Ms. Horne went back to MHS on Friday to complete at least a few of the obviously missing steps in the investigation, by interviewing Jackie Peebles, Keltie O’Dell, and Mr. Frazier. Ms. Peebles credibly testified that in her interview, Ms. Horne made it clear that she only wanted to hear about recent incidents, not old matters that had been reported in the past. Ms. Peebles found Ms. Horne more interested in allegations of grudges against Mr. Frazier than in allegations of inappropriate interactions with female students. Ms. Horne testified that she was surprised to learn that Mr. Frazier had been taken off paid administrative leave and returned to work Friday morning, because she believed the investigation was still ongoing. However, since Mr. Frazier was placed on leave pending the investigation’s “outcome,” by taking Mr. Frazier off leave and returning him to work on Friday, November 16, 2012, the implication was that the investigation had reached its “outcome” and was concluded. Consistent with that implication, if the investigation was not formally closed it at least went dormant after November 16, 2012. The investigation got a second life in early January 2013, when a letter written by D.K. was delivered to Mr. Sauer, detailing some of Mr. Frazier’s inappropriate interactions with D.K. while she was at MHS in 2010-2011 and 2011-2012. D.K.’s letter corroborated some aspects of the Rinder-list allegations, and described additional incidents, such as more closed-door meetings in Mr. Frazier’s office, when Mr. Frazier would hug her, rub her upper leg, and grab her thigh and buttocks. Mr. Sauer immediately sent the letter to OPS. With an alleged student victim now having come forward, OPS was compelled to resume the dormant investigation, and finally interview D.K. Shortly after D.K. was interviewed, Mr. Frazier was put back on paid administrative leave. This time, the allegations were shared with the Bradenton Police Department, which initiated its own investigation, culminating in criminal charges against Mr. Frazier for battery and interfering with school attendance. The Board issued an administrative complaint seeking to terminate Mr. Frazier’s employment, but Mr. Frazier resigned in lieu of termination proceedings. As an outgrowth of both the Board’s investigation into Mr. Frazier’s alleged misconduct and the Bradenton Police Department’s investigation of Mr. Frazier, both the Board and the Bradenton Police Department initiated investigations into the actions and inactions of Respondent and others. What Did Respondent Know And When Did He Know It? As the prelude above suggests, the underlying matters involving Mr. Frazier must be described in order to address the core allegations against Respondent. However, the focus of this proceeding is not on whether there is proof of the allegations against Mr. Frazier, nor is the focus on how the investigations were handled; neither Mr. Frazier nor OPS personnel are on trial. Instead, as charged in the Complaint, the focus here is on whether allegations of Mr. Frazier’s inappropriate interactions with students were brought to Respondent’s attention; if so, when; and if so, what he did or did not do in response. 2009-2010: Patting Behinds; Closed Door Meetings; Lingerie Party At MHS, assistant principals have a variety of duties; they may be assigned primarily to certain areas, with assignments changing from time to time. For the 2009-2010 school year, one of Mr. Kane’s primary duties was to serve as head of the MHS discipline office. The discipline office is staffed by administrative parent liaisons (liaisons). The liaisons are the school’s disciplinarians--they handle student disciplinary referrals, communicate with parents about student discipline, and teach/supervise students serving in-school suspensions and “time- outs.” The liaisons also monitor areas such as the courtyard, cafeteria, and parking lot. As discipline office head in 2009- 2010, Mr. Kane supervised the liaisons, including Mr. Frazier. L.S. has been a school bus driver for the District for ten years. In the 2009-2010 school year, L.S.’s daughter, R.S., was a senior at MHS and L.S. had an MHS bus route. On several occasions during the 2009-2010 school year, while waiting at MHS in her bus, L.S. observed Mr. Frazier patting female students on their behinds. Also during that year, L.S. occasionally went to Mr. Frazier’s office with student discipline referrals, and she would find Mr. Frazier in his office behind closed doors with female students. She found this conduct inappropriate, and reported it to Mr. Kane. L.S.’s daughter, R.S., frequently got in trouble, and was often in time-out. According to R.S., one day in February 2010, near Valentine’s Day, when she was in the time-out room supervised by Mr. Frazier, a female student, C.H., came in to ask Mr. Frazier if he would be attending her “lingerie party,” and Mr. Frazier responded that he would be there. The lingerie party discussion made R.S. uncomfortable, and she asked to go to the principal’s office. When Mr. Frazier refused, R.S. walked out and headed toward the principal’s office. R.S. testified that she was intercepted by Mr. Kane and Student Resource Officer Freddy Ordonez. R.S. said that she told them about the “lingerie party” dialog with Mr. Frazier, and Officer Ordonez told R.S. that she would be arrested if she kept making false accusations. R.S.’s testimony about her “lingerie party” report to Mr. Kane was inconsistent with a prior statement she gave during an investigation of Rod Frazier. In that prior statement, R.S. told the investigator that it was Robert Gagnon, then-principal of MHS, who was with Officer Ordonez when R.S. reported the “lingerie party” incident. Regardless of whom R.S. may have reported to that day, R.S.’s mother testified credibly that R.S. told her about the “lingerie party” incident when R.S. came home from school upset that day. L.S. then went to MHS to talk to Mr. Kane in his office to express her concerns about Mr. Frazier. In addition to relaying what R.S. had told her about the “lingerie party,” L.S. also told Mr. Kane about Mr. Frazier’s inappropriate conduct that she had personally observed on several occasions: L.S. told Mr. Kane that she had seen Mr. Frazier patting girls on their behinds, and that when she went to see Mr. Frazier in his office, she found him with female students and the door closed. Mr. Kane told L.S. that he would check into the allegations. At hearing, Mr. Kane testified that he has no recollection of the meeting L.S. described; he did not deny it occurred, saying only that he does not remember it and does not recall L.S.’s report about Mr. Frazier. Nonetheless, L.S.’s testimony was credible and is credited.6/ Mr. Kane’s testimony that he has no memory of L.S.’s allegations reported to him during the 2009-2010 school year means that, despite telling L.S. that he would look into her report about Mr. Frazier, Mr. Kane did nothing to document, investigate, or report the allegations. 2010-2011: Calling Girls Out Of Class; Cake Incident; Golf Carts Jackie Peebles has been a teacher at MHS for eight years. In the 2010-2011 school year, she taught remedial math. Ms. Peebles described how she noticed that Mr. Frazier tended to call female students out of class when they were dressed inappropriately. The students would leave for a while, and return wearing appropriate clothes. Ms. Peebles credited Mr. Frazier with doing his job to correct dress code violations. However, the calls increased in frequency, for one student in particular, D.K., in her remedial math class. Mr. Frazier would frequently call to ask Ms. Peebles to send D.K. to his office. At first, D.K. would leave class wearing short- shorts and return in sweat pants from lost and found, or she would leave wearing a tank top and return wearing Mr. Frazier’s football jacket. Again, Ms. Peebles thought Mr. Frazier was just doing his job, but she became concerned because D.K. had an attendance problem and needed to be in class. The problem got worse, with D.K. leaving when called to Mr. Frazier’s office and not coming back. Ms. Peebles confronted Mr. Frazier, telling him that she was going to keep D.K. in her classroom whether she was dressed right or not, because D.K. was falling further and further behind. Mr. Frazier stopped calling Ms. Peebles to release D.K. Instead, Ms. Peebles would hear D.K.’s telephone buzz, watch D.K. look at the phone, and then D.K. would announce that she forgot to tell Ms. Peebles that she has to go to Mr. Frazier’s office. Ms. Peebles reasonably surmised that Mr. Frazier was sending text messages to D.K. After this happened a few times, one day Ms. Peebles took D.K.’s phone, put it in her drawer, and kept teaching. The phone kept buzzing and buzzing. Ms. Peebles opened her drawer to turn off the phone, and saw a message on the screen asking why D.K. hadn’t come to his office yet, and that he heard she was wearing her short-shorts again. Ms. Peebles reasonably inferred that this message was from Mr. Frazier. Ms. Peebles testified that her concerns about Mr. Frazier calling girls (especially D.K.) out of class and texting were heightened by the rather alarming “cake incident,” which occurred shortly after the short-shorts text message. Ms. Peebles testified that one afternoon, she had broken up a fight between two students and escorted the students to the discipline office for referral to a liaison. Ms. Peebles found the discipline office’s secretary/receptionist, Aida Coleman, at her desk in the large outer area. Ms. Peebles looked around and found that the doors to the liaisons’ interior offices were all open and the offices empty, except that Mr. Frazier’s office door was closed. Ms. Peebles looked at Ms. Coleman with frustration because no one seemed available to help her with her disciplinary problem, but Ms. Coleman volunteered that it was all right, Mr. Frazier was in his office with a student. Ms. Peebles took this to mean that she could go in, so she left the two students in separated chairs, one by Ms. Coleman’s desk. Ms. Peebles walked the short distance (estimated at around twenty feet) to Mr. Frazier’s office door. She knocked and opened the door simultaneously, and stepped a few feet inside. She was shocked to find Mr. Frazier seated behind his desk with D.K. sitting sideways across his lap, feeding him cake. Ms. Peebles said that she yelled something like: “What the hell is going on in here?” Although she described it as a “yell,” when asked to gauge how loud she was by comparison to others speaking at the hearing, Ms. Peebles did not attribute a great deal of volume to her “yell”--it was more a matter of what she said than how loudly she said it. Ms. Peebles was troubled by the fact that Mr. Frazier and D.K. did not move, and both acted like nothing was wrong with their seating arrangement and activity. Ms. Peebles then told D.K. to “get off” Mr. Frazier’s lap. D.K. did so, but she only moved as far as Mr. Frazier’s desk, where she perched facing him. Ms. Peebles then told D.K.: “No, come around here and sit in a chair like a lady.” D.K. did as she was told. Ms. Peebles then told Mr. Frazier that she had a referral requiring his attention, with two students waiting outside. Mr. Frazier got up and went out with Ms. Peebles to address the awaiting disciplinary matter. Ms. Peebles reported this incident to Respondent the next day. Ms. Peebles had a clear recollection of her conversation with Respondent in which she described the cake incident, and Respondent assured her he would take care of it. Ms. Peebles was relieved, because she assumed she could count on Respondent to address the matter with Mr. Frazier. Ms. Peebles also told another liaison, Stephen Gulash, about the cake incident at some point shortly after it occurred-- her best recollection was that she told Mr. Gulash the next morning. Mr. Gulash corroborated that Ms. Peebles told him about the cake incident--he thought it may have been right after it occurred, because she seemed upset. Ms. Peebles does not recall being upset when she told Mr. Gulash about the incident. While Respondent suggests this is an inconsistency that undermines the credibility of both Ms. Peebles and Mr. Gulash, this minor difference in perception and recollection is immaterial and understandable. The incident itself was not a happy thing to observe or describe. Even a number of years later, Ms. Peebles seemed upset when describing the upsetting incident at hearing. When Ms. Peebles told Mr. Gulash about the cake incident, Mr. Gulash asked Ms. Peebles if she had reported the incident to Mr. Kane. Ms. Peebles told him either that she had just done so or that she was about to. The material details provided by Ms. Peebles--that the cake incident occurred as she described it, that she reported the incident to Respondent the next day, and that Respondent assured her he would take care of it--were credible and are credited. The most alarming aspect of the cake incident is that D.K. was sitting on Mr. Frazier’s lap feeding him cake in the privacy of his office, a clearly inappropriate and suggestive intimacy between this MHS staff disciplinarian and the female student he frequently called out of class to come visit him behind closed doors. D.K. provided credible corroborating testimony of this most troubling aspect of the cake incident, acknowledging that she was sitting on Mr. Frazier’s lap feeding him cake when Ms. Peebles walked in and was shocked. Respondent contends that Ms. Peebles’ testimony was undermined by D.K.’s testimony that she could not recall what, if anything, Ms. Peebles said when she opened the door and by Ms. Coleman’s testimony that she did not recall an encounter when Ms. Peebles was yelling at Mr. Frazier. Ms. Peebles’ verbal reaction to the shocking scene pales in significance to the scene itself. Moreover, the inability of D.K. and Ms. Coleman to recall did not effectively undermine Ms. Peebles’ clear, credible testimony. It is by no means clear that Ms. Peebles’ words to Mr. Frazier and D.K. (which D.K. might well want to forget or minimize), delivered while Ms. Peebles was standing a few feet inside the office with her back to the door, would have been heard by Ms. Coleman at her desk twenty feet away from the door, particularly since Ms. Peebles had deposited one of the fighting students in a chair next to Ms. Coleman’s desk. Respondent testified that he does not recall Ms. Peebles reporting the cake incident to him. He added that if she had reported the incident as she described it at hearing, he believes there is no way he would not have acted, by documenting the report in writing or having Ms. Peebles do so, bringing it to the principal’s attention, and confronting Mr. Frazier with what was plainly inappropriate, improper, unprofessional conduct. Ms. Peebles, however, was steadfast and credible in maintaining that she reported the cake incident to Mr. Kane the day after it occurred (corroborated by Mr. Gulash). Ms. Peebles also reported the cake incident to Mr. Faller a year later, after reporting another inappropriate Frazier incident to Mr. Faller (discussed below in school year 2011-2012).7/ Respondent attempted to undermine Ms. Peebles’ credibility by dwelling on the lack of clarity on insignificant points, including when the cake incident occurred, what Mr. Kane’s duties were at the time, and where Ms. Peebles and Mr. Kane were when she told him about the incident. Respondent’s attempt was not effective. For the purposes of this proceeding, it is enough to know that the cake incident took place either in the 2010-2011 school year or the 2011-2012 school year--the only two years that D.K. was a student at MHS. The incident most likely occurred in the 2010-2011 school year, when D.K. was in Ms. Peebles’ math class. Ms. Peebles could not recall exactly when the incident occurred; she volunteered early on in her testimony, and repeated often, that she has never been good at remembering dates.8/ Likewise, regardless of Mr. Kane’s duties at the time of the cake incident report, Ms. Peebles explained why he was an appropriate administrator for her to report to. Ms. Peebles testified initially that she thought Mr. Kane was head of discipline when she reported the cake incident to him. That was shown to be not true. Mr. Faller took over the assignment as discipline office head in the 2010-2011 and 2011-2012 school years. However, Ms. Peebles added that after Mr. Faller assumed that role, Mr. Kane became Ms. Peebles’ direct supervisor (not disputed by Respondent), and that she may have reported the cake incident to him for that reason. Later still, Mr. Kane was MHS interim principal, and if the cake incident occurred then, she might have reported it to him for that reason. Ms. Peebles credibly summed it up this way: “Mr. Kane never left the realm of being someone I thought that I would go to.” (Tr. 568). As to the setting where Ms. Peebles reported the cake incident to Mr. Kane, Ms. Peebles offered her recollection that they were in the discipline office, in the corner interior office assigned to the assistant principal serving as head of the discipline office. But whether Ms. Peebles reported the cake incident to Mr. Kane in the office assigned to the head of discipline, as she recalled, or in an office in the adjacent building when he became Ms. Peebles’ direct supervisor, the setting is insignificant and the lack of clarity does not undermine the credible testimony regarding the material details. Ms. Peebles was genuinely troubled to be offering testimony adverse to Mr. Kane. Ms. Peebles likes and respects Mr. Kane as an educator and administrator, and spoke highly of his performance as an assistant principal and as her supervisor. Her general regard for him is why she was relieved to report the cake incident to him--she trusted him to follow through when he assured her that he would take care of it. Mr. Kane was equally complimentary of Ms. Peebles, describing her as one of the good teachers, and as someone who would not set out to hurt him. Respondent’s testimony expressing no recollection of Ms. Peebles’ cake incident report to him and offering hindsight assurance that he would have acted on such a report was not as credible as Ms. Peebles’ testimony and is not credited. Instead, Ms. Peebles’ report was the second time Respondent was informed of Mr. Frazier’s inappropriate closed-door sessions with female students--this time, with the added observation that Mr. Frazier was engaged in inappropriate physical contact with the female student in that particular closed-door session. As Respondent himself acknowledged, such a report should have spurred him to immediate action, but it did not. Moreover, because Respondent took no action in response to L.S.’s prior report, there was no record that this was the second report to Respondent of Mr. Frazier’s improprieties. As with L.S.’s report, this second report was also received and ignored, instead of being documented, investigated, and addressed with Mr. Frazier. Lynn Aragon is a teacher employed by the District. She taught at MHS for over ten years, until the end of the 2012-2013 school year, and is currently on a medical leave of absence. During the time period relevant to this proceeding, she served as the representative for the teacher’s union at MHS, and because of that role, teachers at MHS often would come to her with concerns. Ms. Aragon testified that during the 2010-2011 school year, a number of teachers came to her to express concerns about Mr. Frazier having female students in his office behind closed doors, calling female students to his office in the middle of class, texting female students in class, and going around in the courtyard on a golf cart with female students hugging him. Ms. Aragon testified that she reported these concerns to then- principal Bob Gagnon, but not to Mr. Kane.9/ Mr. Gagnon acknowledged that while he was still the MHS principal, he became aware of an issue with students on golf carts, although he did not say that Ms. Aragon was the source of his awareness or that Mr. Frazier was the subject of the “issue,” or complaint. Mr. Gagnon testified that he went out and told all of the staff using golf carts--not just Mr. Frazier--to stop allowing students on their golf carts. Several witnesses spoke generally about the legitimate use of golf carts by liaisons to monitor the parking lot and courtyard, and to transport a student when necessary. Often students congregate in the courtyard for lunch breaks, and it was not unusual, at least before Mr. Gagnon’s directive, for a student to sit on a golf cart with a liaison. However, as Ms. Peebles credibly explained, the student-on-golf-cart issue was decidedly different where Mr. Frazier was concerned. Whereas other liaisons and administrators might have a couple of students on a golf cart to sit and talk or to drive them someplace, Ms. Peebles described what she saw on Mr. Frazier’s golf cart: “[T]he students hanging around on Mr. Frazier’s golf cart mostly tended to be female students . . . more female students than could fit on the seats. There would be so many stacked on there that you literally couldn’t drive the golf cart anyplace.” 2011-2012: Groping At A Bar; More Golf Cart Issues; Horseplay Ms. Peebles testified that the year after the cake incident, another incident involving alleged inappropriate physical contact by Mr. Frazier was reported to her by MHS female student, A.P. Ms. Peebles told Mr. Faller about the allegations. When Mr. Faller seemed not interested, she told him about the prior cake incident, and she also told him that she had reported the cake incident to Mr. Kane. Ms. Peebles’ testimony was credible. Mr. Faller did not testify. Ms. Peebles did not say that she reported the A.P. incident to Mr. Kane. Nonetheless, Respondent offered A.P.’s testimony, apparently in an attempt to undermine the credibility of Ms. Peebles’ overall testimony. Instead, just as was the case with D.K., A.P.’s testimony corroborated the material facts, as reported by Ms. Peebles to Mr. Faller, regarding another troubling incident with Mr. Frazier. As A.P. testified, she snuck into a bar using fake identification, when she was still underage. She had a few drinks and was tipsy. Mr. Frazier approached her and grabbed her in “too friendly” a hug, putting his arms around the lower region of her back, or further down. Mr. Frazier had “his hands down there;” he was groping her and hanging all over her. Respondent attempted to elicit testimony from A.P. that she never told Ms. Peebles about being groped in a bar by Mr. Frazier. Instead, A.P. testified that although she could not say with certainty that she went to Ms. Peebles about this incident, it would make sense that she would have gone to Ms. Peebles: “I could see myself going to her[.]” A.P.’s testimony varied in some of the details from Ms. Peebles’ description of what A.P. told her. Ms. Peebles testified that she does not recall the word A.P. used in lieu of “erection,” she understood A.P. to be saying that Mr. Frazier had an erection and was rubbing himself against her buttocks. A.P. testified that she did not tell Ms. Peebles that Mr. Frazier had an erection; Ms. Peebles agreed that that was not the word A.P. used. Ms. Peebles also recalled A.P. showing her inappropriate text messages from Mr. Frazier regarding A.P.’s private body parts that Mr. Frazier inappropriately groped at the bar; A.P. denied receiving text messages from Mr. Frazier. Their testimony was in sync regarding Mr. Frazier’s inappropriate groping of A.P., who, at the time, was a minor and a student at MHS. Several years after the fact, the testimony by Ms. Peebles and A.P. is considered substantially and materially consistent. The variances do not undermine Ms. Peebles’ credible testimony. Not only was Ms. Peebles’ testimony regarding the bar- groping incident and her reports to Mr. Faller credible, but it highlights the problem of serial undocumented “isolated incidents.” An incident is reported to one administrator who ignores the report and takes no action; then when the next “isolated incident” is reported, the administrator receives that report as if nothing has ever been brought to his attention before, and again, takes no action; then when the next “isolated incident” is reported to a different administrator, there is nothing documenting that similar incidents had ever occurred before. Despite this pattern, Mr. Kane and Mr. Faller were the two administrators in the room nodding their heads in agreement when Ms. Horne reported to Mr. Martin that the allegations in the Rinder list were old news that had been reported to and handled by administrators. Two of the incidents on the Rinder list were the cake incident and the bar encounter. If brushing the allegations under the rug can be called handling them, they were, indeed, handled. While Mr. Kane was interim principal in 2012, two separate matters regarding Mr. Frazier were reported to him. In February 2012, Ms. Horne from OPS called Mr. Kane to inform him of an anonymous complaint received by the superintendent’s office regarding female students riding with Mr. Frazier on his golf cart and that it “didn’t look right.” At the direction of Ms. Essig, who was Mr. Kane’s immediate supervisor, Ms. Horne relayed the complaint to Mr. Kane, and asked him to look into it and speak to Mr. Frazier about it. Ms. Horne did not hear back from Mr. Kane within a reasonable time, so she called him back. Mr. Kane told Ms. Horne that he issued a verbal directive to Mr. Frazier to be professional in his dealings with students at all times. As Mr. Kane described it, he told Mr. Frazier to stop riding around with girls on his golf cart because others might perceive it to be inappropriate. Mr. Kane did not document his verbal directive to Mr. Frazier. The only evidence that there was a verbal directive comes from the hard-to-decipher scribbled note Ms. Horne made of her phone call to Mr. Kane to find out if he had responded to her request that he look into the complaint. There was no credible evidence that Respondent looked into the 2012 complaint at all, in the sense of trying to find out whether Mr. Frazier had conducted himself, with females on his golf cart, in a way that “did not look right” (such as by allowing so many female students to pile onto the golf cart with him that he and the females necessarily would be sitting on top of each other, as Ms. Peebles described). Instead, Mr. Kane apparently did not ask Mr. Frazier what he was doing with girls on his golf cart. Mr. Kane explained that because the complaint lacked details (such as names, dates, times, locations, or what exactly did not look right), he could not ask Mr. Frazier about the details because Mr. Kane did not have them. That explanation is unreasonable; a reasonable interim principal performing the duty of looking into a complaint asks questions to find out details. An absence of documentation about prior golf cart issues with Mr. Frazier resulted in yet another “isolated incident.” The absence of documentation of Mr. Gagnon’s student- on-golf-cart issue that caused him to tell all staff operating golf carts to stop letting students on the golf carts meant that the 2012 complaint about Mr. Frazier on his golf cart with female students and that it did not look right was never investigated as insubordination, for not following Mr. Gagnon’s prior directive. Also while Mr. Kane was interim principal, Mr. Gulash reported to Mr. Kane that Mr. Frazier shoved a water bottle between D.K.’s legs at the softball field. Mr. Kane had no recollection of Mr. Gulash reporting this incident to him. Mr. Gulash acknowledged that he mentioned the incident to Mr. Kane while they were walking together into the cafeteria; that he described the incident to Mr. Frazier as “horseplay”; and that he did not make a big deal of it. Nonetheless, one would expect that a description of “horseplay” involving a male liaison/coach placing anything between the legs of a female student would not only get the interim principal’s attention but also trigger immediate action. D.K. corroborated the occurrence of bottle-between-the legs “horseplay” by Mr. Frazier. She testified that Mr. Frazier had shoved water bottles or Gatorade bottles between her legs on more than one occasion, both at the softball field and while D.K. was hanging out with Mr. Frazier on his golf cart. While there were discrepancies in the details offered by Mr. Gulash and D.K., once again, their testimony was in harmony with regard to the troubling aspect of the incident they described--that Mr. Frazier engaged in a form of “horseplay” with a minor female student that involved him putting a plastic bottle between the student’s legs. Respondent claimed that Mr. Gulash was biased and not credible for several different reasons; Mr. Gulash responded with explanations. On balance, the undersigned accepts Mr. Gulash’s testimony, notwithstanding the attacks on his credibility. But even if Mr. Gulash did not tell Mr. Kane about the bottle- between-the-legs incident, those incidents should have, and would have, come to light much sooner than they did if Mr. Kane had responded appropriately to the reports of Mr. Frazier’s improprieties when they were made to him. D.K.’s credible testimony that one of these bottle-between-the-legs incidents occurred when she was on a golf cart with Mr. Frazier underscores the significance of the patterned failure to document or act on reports of Mr. Frazier’s inappropriate conduct with female students on golf carts. Likewise, D.K.’s description of Mr. Frazier’s inappropriate physical contact during closed-door sessions in his office underscores the significance of the patterned failure to document or act on reports of Mr. Frazier’s inappropriate closed-door meetings with female students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order terminating the employment of Respondent, Matthew Kane. DONE AND ENTERED this 30th day of September, 2014, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 30th day of September, 2014.
The Issue The issue is whether Respondent should be terminated from her position as an instructional employee for gross insubordination and being willfully absent from duty.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this termination case, Petitioner, Lake County School Board (Board), seeks to terminate Respondent, Brenda Armstead, an instructional employee, on the ground that she was willfully absent from duty without leave and guilty of gross insubordination by virtue of having repeatedly refused to report to her job assignment. In a letter dated May 26, 2000, Respondent asked for a hearing "as soon as possible," contending that the "termination was illegal." In school year 1999-2000, Respondent was employed as a teacher at Lake Hills School in Eustis, Florida, where she taught 3 to 5-year-old children with severe emotional disabilities. In September 1999, Respondent was arrested for stalking. However, the criminal charges were later dropped or reduced to a lesser charge. Pending the disposition of the matter, Respondent continued working in the classroom. In January 2000, Respondent reported to her supervisor that she had been exposed to "CMV," an infectious viral disease. Despite being tested as negative, Respondent continued to have concerns with her health and began to exhibit unusual or bizarre behavior in the classroom. Among other things, Respondent constantly wore gloves in the classroom, avoided physical or close contact with her aides, and exhibited other unusual habits or practices. She also began sending "unusual" correspondence to the Superintendent. Because of this, she met with her principal and the Board's Assistant Superintendent on February 14, 2000. At that meeting, Respondent was orally directed to report to the Board's MIS Copy Center (Copy Center) effective immediately until she "could meet with a medical doctor." This action was authorized by School Board Policy 6.171(4), which allows the Board to "require a physical, psychological, and/or psychiatric examination by a physician licensed in the state of Florida when in the School Board's judgment such an examination is relevant to the teaching performance or employment status or a School Board employee." Given Respondent's behavior, the transfer to a non-teaching position was also appropriate and necessary since Respondent was working with emotionally handicapped children. Accordingly, the Board arranged for an evaluation of Respondent by a Dr. Kendall on February 17, 2000; that physician recommended that Respondent be further examined by a psychiatrist. By letter dated February 24, 2000, the Board's Superintendent again directed Respondent to report to the Copy Center for temporary duty pending the results of the examination. The letter was hand-delivered to Respondent on February 25, 2000. Despite both orders, Respondent never reported to work at the Copy Center. Although she "came on campus" a couple of times, she never returned to work. She was later given another oral instruction by telephone on March 16, 2000, by the Board's Assistant Superintendent. By certified mail sent on April 13, 2000, the Board's Superintendent again directed Respondent to report to work, and he warned that if she did not do so by April 19, 2000, she would be subject to being terminated for being absent without leave, gross insubordination, and willful neglect of duties. Respondent received the letter the following day. Even so, she never reported to work. It is fair to infer from the evidence that Respondent was willfully absent from work without leave. On April 21, 2000, the Superintendent recommended to the Board that Respondent be terminated because of her "continuing intentional refusal to report to work despite repeated direct orders, reasonable in nature, and given by and with proper authority to do so." This recommendation was accepted by the Board at its meeting on May 8, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order determining that Respondent is guilty of gross insubordination and being willfully absent without leave, and that she be terminated as an instructional employee for just cause. DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2000. COPIES FURNISHED: Dr. R. Jerry Smith, Superintendent Lake County School Board 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Stephen W. Johnson, Esquire McLin, Burnsed, Morrison, Johnson, Newman & Roy, P.A. Post Office Box 491357 Leesburg, Florida 34749-1357 Brenda Armstead 32412 Crystal Breeze Lane Leesburg, Florida 34788 Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact William Burnett Washington's primary residence is 106 Westwind Court, Sanford, Florida. Mr. Washington and his wife, Betty Washington, have jointly owned the house at 106 Westwind Court house for 10 years. On a highly infrequent basis, Mr. Washington spends the night at 2020 Old Lake Mary Road, Sanford, Florida. This is the primary residence of Mr. Washington's brother, who is normally the sole occupant of the house. The Westwind Court house is occupied by Mr. Washington, Mrs. Washington, and their children, Shawn Washington, aged 16 years, and Niki, aged 14 years. Apart from infrequent overnight visits with friends, the Westwind Court home is the exclusive residence of Shawn and Niki. The Westwind Court house is served by the Seminole High School attendance zone. The Old Lake Mary Road house is served by the Lake Mary High School attendance zone. At the beginning of the 1989-90 school year, Shawn and Niki were attending Lake Mary High School. By letter dated September 21, 1989, Respondent informed Petitioner that his children were enrolled in Lake Mary High School on the basis of false information. The letter explained that they were being administratively withdrawn from Lake Mary High School and administratively enrolled at Seminole High School.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Seminole County, Florida enter a Final Order confirming the enrollment of Shawn and Niki Washington in Seminole High School. ENTERED this 22nd day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5651 Treatment Accorded Proposed Findings of Respondent 1: adopted except that Petitioner primarily resides at 106 Westwind Court. Even if he were to reside primarily at 2020 Old Lake Mary Road, however, the result would be the same because the children primarily reside with their mother. 2-3: adopted. 4: rejected as unsupported by the greater weight of the evidence. The children primarily reside with their mother. 5: adopted. 6-9: rejected as subordinate and recitation of evidence. 10: rejected as irrelevant. COPIES FURNISHED: Harry L. Lamb, Jr. Perry & Lamb, P.A. 135 Wall St. Suite 200 Orlando, FL 32801 Ned N. Julian, Jr. Stenstrom, McIntosh, Julian, et al. P.O. Box 1330 Sanford, FL 32772-1330 Robert W. Hughes Superintendent The School Board of Seminole County, Florida 1211 Mellonville Avenue Sanford, FL 32772 Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
