The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Background Information The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Dillard High School, Thurgood Marshall Elementary School, and Deerfield Park Elementary School) and for otherwise providing public instruction to school-aged children in the county. Respondent is employed by the School Board as a professional service contract teacher. He has worked as a teacher for the School Board since 1982 (except for a year's leave of absence following the 1994- 1995 school year). He has an unblemished disciplinary record as a School Board employee. Respondent taught music at Dillard High School (Dillard) from 1982 until the end of the 1994-1995 school year, at Thurgood Marshall Elementary School for the 1995-1996 school year, and at Parkview Elementary School from the beginning of the 1996-1997 school year until early 2005, when he was placed on administrative reassignment pending the outcome of an investigation of an allegation of sexual misconduct made against him by a former student, T. H. At Dillard, Respondent was the director of the school band and a popular teacher. Allegations of Sexual Misconduct T. H. graduated from Dillard in 1989. In her ninth, tenth, eleventh and twelfth grade years at Dillard, she was in the school band and a student of Respondent's. T. H., who lived in a fatherless household, looked up to Respondent and considered him to be a "father figure" and "role model." A personal relationship developed between the two. They began conversing with one another on a daily basis, talking "about people and about the world and different things like that." Respondent did most of the talking, with T. H. "listen[ing] to [the] the things he had to say." During "summer band," before the beginning of T. H.'s tenth grade year, the conversations between T. H. and Respondent became more intimate in nature and their relationship evolved into a physical one. The first physical contact they had that summer was in the music library adjacent to Respondent's office, when Respondent walked up to T. H., "embraced" her, and gave her an "[i]ntimate, on-the-mouth kiss." Later that summer, Respondent started driving T. H. home (but not always straight home) in his Toyota Camry after band practice. In the car, there was intimate touching between the two, including Respondent's penetrating T' H.'s vagina with his hand. Thus began the sexual relationship between T. H. and Respondent, which lasted until after she had graduated from Dillard. "[N]umerous times," after school and on weekends, Respondent drove T. H. in his car to various hotels, where they had sexual relations. They also had "dozens" of sexual encounters on school grounds, usually after school hours, in a "little back room," near the school auditorium, that was used as a dressing area. As a result of her having been intimate with Respondent, T. H. was able to observe that Respondent's penis was uncircumcised and that he had a "branded tattoo on his chest." Respondent sometimes set up a video camera to tape his sexual liaisons with T. H. He would also "send [T. H.] home with the camera" on weekends, requesting that she tape herself fondling herself and "and then bring the camera back to him on Monday" (which T. H. did). One day while T. H. was in Respondent's office, Respondent handed her a piece of "notebook paper" on which he had written the following poem: How then, can I tell you of my love? Strong as the eagle, soft as the dove, Patient as the pine tree that stands in the sun and whispers to the wind you are the one!!!![2] On another occasion when T. H. was in Respondent's office, she had a tape recorder with her and asked Respondent to "say something" that she could record. What Respondent said in response to this request was: "I love you baby, suck my dick," and "I love you baby, sit on my face."3 T. H. ended her relationship with Respondent during her first year as a student at the International Fine Arts College in Miami. It was not until 2003, approximately 14 years after she had graduated from Dillard, that T. H. decided to come forward and tell authorities about the sexual relationship she had had with Respondent when she was a student at the school. She had not come forward sooner because she did not have the courage to do so. Only after receiving "church counseling" was she able overcome her fear and become sufficiently emboldened to report what had occurred years earlier between her and Respondent. T. H. first went to the Fort Lauderdale Police Department, but was told that Respondent could not be criminally prosecuted because the limitations period had expired. In January 2005, the School Board's police unit was advised of the allegation that T. H. had made against Respondent and commenced an investigation into the matter, which included interviews with both T. H. and Respondent. On January 28, 2005, Respondent was placed on administrative reassignment with pay pending the outcome of the investigation. T. H. has "hired an attorney to pursue a civil claim against the School Board" for damages she allegedly suffered as a result of her relationship with Respondent when she was a student at Dillard. Allegations of Residing with Students From 1985 to 1987, Respondent resided in Dade County, Florida, with his wife4 and two minor daughters. For at least a portion of that time, two Dillard students stayed with Respondent and his family. One of these students was P. R., who was in the school band. When Respondent learned that P. R. was living in a residence with "no running water [and] no mom or dad," he invited P. R. to move in with him, an invitation that P. R. accepted. "Eventually," Respondent was able to make contact with P. R.'s mother and obtain her approval to "keep" P. R. P. R. lived with Respondent and his family for a year and a half. He moved out after he graduated and joined the military. The other student that stayed with Respondent and his family was C. M. Respondent's oldest daughter and C. M. both played flute in the school band and were close friends. C. M. stayed at Respondent's house on weekends and when school was not in session. C. M.'s mother never had any problem with these living arrangements. Respondent did not notify the School Board that P. R. and C. M. were staying with him inasmuch as he did not know that he was required to do so. Allegations of Corporal Punishment From 1982 to 1985, Respondent administered corporal punishment to students contrary to School Board policy (hitting female students on the hand with a ruler and male students on the buttocks with a paddle). He did not "seek permission from anyone in the [school] administration before administering [this] corporal punishment," nor did he administer this corporal punishment in the presence of another School Board employee, as required by School Board policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for having had a sexual relationship with T. H. when she was a student of his at Dillard. DONE AND ENTERED this 23rd day of August, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 23rd day of August, 2006.
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f)1, 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes (2002-2005),2 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i), and, if so, what discipline should be imposed.
Findings Of Fact Ms. West holds Florida Educator’s Certificate 666407, which covers the area of physical education and is valid through June 30, 2012. She began her teaching career in 1990. At all times pertinent to this case, Ms. West was employed as a physical education teacher at Azalea Middle School in the Pinellas County School District. By Final Order dated February 20, 2004, the Education Practices Commission found Ms. West guilty of violating Subsection 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), by, among other things, making derogatory remarks to students and disclosing students’ grades without their permission. The Education Practices Commission suspended Ms. West’s educator certificate for the summer session for 2004 and placed her on probation for two years, effective February 20, 2004. The violations for which Ms. West was disciplined occurred while Ms. West was a teacher at Gibbs High School. In an effort to give Ms. West a fresh start, she was administratively transferred from Gibbs High School to Azalea Middle School beginning August 2001. Ms. West was assigned to teach seventh-grade physical education. Connie Kolosey was the seventh-grade assistant principal at Azalea Middle School who was responsible for supervising everything having to do with the seventh grade, including the seventh-grade teachers. The principal at Azalea Middle School received an anonymous letter early in the 2001- 2002 school year complaining that Ms. West was using offensive language and making derogatory remarks to students. About the same time as the arrival of the anonymous letter, Ms. Kolosey became aware that Ms. West was using her cell phone in class to call parents to talk about students’ behavior. Ms. Kolosey met with Ms. West on September 7, 2001, to discuss these issues. Ms. West felt that the anonymous letter came from individuals who were involved in Ms. West’s problems at Gibbs High School. The use of the cell phone was discussed during the conference. Ms. West stated that when she was at Bay Pointe Middle School she had used the cell phone to call parents during class and found it to be an effective way to curb student misbehavior. Ms. West indicated that she would leave the gymnasium and make the cell phone calls in the hallway. Ms. Kolosey explained to Ms. West that the use of cell phones to call parents during class was not appropriate. Students could be embarrassed by having Ms. West discuss their discipline issues in front of the class or in the hallways. Additionally, it was not a safe practice to leave the students in the gymnasium while she went into the hall to make telephone calls. On February 8, 2002, Ms. Kolosey had another conference with Ms. West to discuss accusations which had been made by several students that Ms. West had been making derogatory remarks to them about their physical appearance. Ms. West denied making the comments. During the spring of 2002, the parents of one of Ms. West’s students demanded that their child be removed from Ms. West’s class for comments which Ms. West allegedly made to their child, S.B. Ms. Kolosey investigated the matter and could find no one to corroborate the allegations made by S.B. and her parents. Thus, Ms. Kolosey refused to remove the student from Ms. West’s class. The parents of S.B. continued to request that their child be removed from Ms. West’s class because S.B. had skipped Ms. West’s class, and they felt it was a result of the child having been traumatized by Ms. West’s actions. Ms. Kolosey discussed the issues concerning S.B. She specifically told Ms. West not to bring the issues up to S.B. in a negative way but to attempt to mend her relationship with S.B. On March 12, 2002, Ms. Kolosey received a telephone call from S.B.’s mother again demanding that S.B. be removed from Ms. West’s class. Ms. West had told S.B. in front of S.B.’s classmates that S.B. could not run to Ms. Kolosey about things that were said in private because she was saying it in front of the whole class. Ms. West admitted to Ms. Kolosey that she had made the remarks to S.B. Ms. Kolosey agreed to remove S.B. from Ms. West’s class. On May 16, 2002, Ms. Kolosey; Ms. West; Ms. Andrews, the principal at Azalea Middle School; and Mr. McNeil, a union representative, had a conference to discuss more allegations that Ms. West had made belittling remarks to some of her students. It was suggested to Ms. West that if she needed to discuss a student’s performance or behavior that she take the student aside rather than do it in front of other students. Ms. West was warned that her attitude needed to change and that she could not always say the first thing that came to her mind. During the last semester of the 2001-2002 school year, Ms. West’s daughter was seriously ill, and Ms. West missed a great deal of work because of her parenting responsibilities. The first semester of the 2002-2003 school year, Ms. West was absent most of the time because of her daughter’s illness. Ms. West returned to teach at Azalea Middle School in January 2003. After Ms. West’s return, complaints began to be made to the administration about inappropriate comments that Ms. West was alleged to have made during class. Ms. West denied making the comments. Again, Ms. West was cautioned to think about what she says to the students before she says it. Ms. West was under a great deal of stress during the early part of the second semester of the 2002-2003 school year because of her daughter’s illness. Her daughter passed away in March 2003. In March 2003, Ms. West received a written reprimand from the principal at Azalea Middle School for “failing to interact appropriately with students and making inappropriate remarks to students, and for insubordination in failing to follow a previous directive to refrain from such remarks.” Again, Ms. West was directed to refrain from making inappropriate remarks to students. Ms. Kolosey evaluated Ms. West for the 2002-2003 school year. Ms. West was rated ineffective for her instructional and non-instructional performance. It was noted that Ms. West’s judgment was a serious concern and that the numerous complaints which had been received regarding Ms. West’s negative interactions with students overshadowed an otherwise knowledgeable and organized classroom presentation. Ms. West appealed the evaluation, but the evaluation was upheld. Ms. West felt that Ms. Kolosey was being unfair to her and that she was taking the word of students over Ms. West’s denials. Ms. West felt that because Ms. Kolosey believed the allegations of some of the students, the students somehow felt they were empowered and made even more accusations. In order to give Ms. West another fresh start, Ms. West was transferred to sixth-grade classes for the 2003- 2004 school year. Dan Stevens was assigned as her supervisor, and Ms. Kolosey had no further dealings with complaints regarding Ms. West. Because of the evaluation which Ms. West received at the end of the 2002-2003 school year, she was given a performance improvement plan on August 12, 2003. Among other things, the plan called for Ms. West to “[a]void use of inappropriate comments to students that they may find humiliating or demeaning in nature.” Ms. West was told to “[u]se wait time before responding to students[’] inappropriate behavior” and to “[r]emember to always praise student publicly and to correct them privately.” On August 25, 2003, Mr. Stevens received an email from the Azalea Middle School sixth-grade guidance counselor, advising him that there had been a complaint by a student that Ms. West had disclosed his grade in class without his permission and that the parent of another student, E.M., had called to complain that her daughter’s grade had been revealed to the other students. E.M.’s mother also wrote a letter to Mr. Stevens regarding her allegations that Ms. West was disclosing her daughter’s grades to the class. Because E.M.’s mother felt that Ms. West was acting inappropriately, she refused to allow E.M. to attend Ms. West’s class. On October 7, 2003, a conference was held with Ms. West to discuss the allegations made by E.M.’s mother. Ms. West denied disclosing E.M.’s grade. E.M. was transferred from Ms. West’s class to another class. In late August 2005, J.T., a sixth-grader at Azalea Middle School, was transferred to Ms. West’s health class. On September 2, 2005, J.T. called his stepmother during class and handed the telephone to Ms. West so that she could talk to his stepmother. Ms. West discussed with the stepmother that J.T. had failed a test and that he had not returned the test to her with a signature of one of his parents. This conversation was held during class time and in a manner that the other students could hear Ms. West. Ms. West called L.D. about her son, T.D., during class hours to complain that T.D. was making a failing grade. L.D. could hear students in the background. Ms. West made remarks to students which were disparaging and embarrassing. One remark made by Ms. West to T.J. was, “You must have studied in the dark.” Ms. West had been talking to T.J. about his low grade on a test. T.J. said that he had studied for the test, and Ms. West responded that he must have studied in the dark. Ms. West has also made this comment to other students who had made low grades on tests. Ms. West also told T.J. in front of other classmates to “Take your grow-up pill.” T.J. is small in stature and sensitive about his size. Ms. West denied that she was making a reference to his small size and contends that she was just trying to tell him that he was acting immaturely. Although Ms. West did not intend to make fun of T.J.’s small size, she should have known that such comments could embarrass him. Ms. West made the comment, “Dumb boys make dumb babies” during her health class in the fall of 2005. She contends that she was trying to make the students aware that they should think about the consequences of the decisions that they make in life. Although Ms. West was trying to convey an appropriate message, she chose an inappropriate means to do so. At the final hearing, Ms. West stated that she had made the remark to two girls, who were discussing a particular student. In essence, she referred to the young man as being dumb, which was not appropriate. Based on the numerous complaints that the administration received about Ms. West’s behavior, the Pinellas County School Board made investigations and terminated Ms. West’s employment with the Pinellas County School Board. Both administrators and parents found that Ms. West was an ineffective teacher. Based on the numerous complaints from parents and the necessity to transfer students from Ms. West’s classes to other classes, Ms. West was an ineffective teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Ms. West guilty of violating Subsections 1012.795(1)(f), 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i) and suspending Ms. West’s educator’s certificate for three years, followed by a two-year probationary period under terms and conditions set by the Education Practices Commission. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 22nd day of October, 2009.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a) and 6A-10.081(5)(d), as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke, suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2016). 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. (2016). Respondent holds Florida Educator's Certificate 829054, covering the areas of Education, Leadership, Physical Education, Social Science, and Exceptional Student Education, which is valid through June 30, 2018. At all times pertinent hereto, Respondent was employed as an Exceptional Student Education Teacher at Holly Hill School in the Volusia County School District. Holly Hill School is a combined K-8 school. During the time in question, Respondent shared a small office with Ms. Pollok and Mr. Edwards. The office was formerly a teachers’ lounge/lunchroom. It still had a counter, sink, and refrigerator, and had bathrooms that continued to be used on occasion by other teachers. Each of the three teachers who shared the office had their own desk. The office also included two smaller tables at which the teachers could provide service to their ESE students when necessary. At the start of the 2013-2014 school year, Ms. Pollok knew Mr. Edwards, who had been in the ESE program, but did not know Respondent. The incidents described herein occurred between the start of the 2013-2014 school year on August 13, 2013, through late November, 2013, when Respondent was removed from the classroom. Racial Comments Over the period of time in question, Respondent made numerous statements of a racial nature. While on hall duty between classes, Respondent would occasionally call African-American children “Bebe’s kids.” The reference was to an animated television show in which “Bebe’s kids” were unruly and ill-mannered African-American children. Mr. Edwards understood the comment to be derogatory, and noted that the children hearing the comment would occasionally react, even to the point of commenting that they did not want to be referred to as such. Respondent’s statements were also heard by Ms. Burnam-Hoyt, who likewise understood the term to be derogatory, and observed that the children at the receiving end of the comment looked shocked. She advised Respondent that he should not call them that name. Ms. Pollok testified that Respondent routinely called children “nappy” during hall duty when students transition from one period to the next. The comments were directed to middle school students, whose reactions were perceived by her as being ones of humiliation or embarrassment.1/ Mr. Edwards testified that he heard Respondent refer to African-American children as “nappy,” though not with the frequency with which he called them “Bebe’s kids.” Respondent testified that he only called one child “nappy” at the request of the child, an ESE student -- though not one of his students -- who wanted to be called “napster” or “nappy.” There was no competent, substantial evidence to support that claim. No other teacher substantiated such a request, and Mr. Edwards and Ms. Burnam-Hoyt testified credibly that the term was used more broadly. In any event, as stated by Ms. Fisher, there would be no reason to address any student by that type of obviously inappropriate term, even if requested. Mr. Edwards perceived Respondent’s comments as inappropriate, and they made him uncomfortable. He believed, rightfully, that the comments made Ms. Pollok uncomfortable as well. There was no evidence that any student’s learning ability or mental health was actually adversely affected by Respondent’s racially-demeaning statements. Nonetheless, under the circumstances described herein, Petitioner proved that Respondent failed to make reasonable effort to protect students at Holly Hill School from humiliation and embarrassment, conditions reasonably understood to be harmful to their learning environment and their mental health. Sexual Comments Over the period of time in question, Respondent repeatedly made statements of a sexual nature. On occasion, when Ms. Pollok arrived to work in less than a cheerful mood, Respondent would state to the effect of “What's the matter, Pollo[]k, why are you grumpy? Am I going to have to go downstairs and talk to your husband about how to wake you up properly?” The first time he made the comment, he accompanied it with hip thrusts and grunts, i.e., sounds that people make when they're having sex, thus accentuating the sexual nature of the comment. The first time Respondent made the statement, Ms. Pollok felt awkward, left the office, and went to her husband’s classroom (he was also a teacher at Holly Hill School) where she stayed until the school day started. When he continued to make such statements on a more regular basis, it made her uncomfortable. Mr. Edwards heard Respondent make the statement to Ms. Pollok on one or two occasions. Respondent denied having ever made the comments, attributing them to Mr. Anderson, who laughingly took credit. Regardless of whether Mr. Anderson may have also made comparable statements, the testimony of Ms. Pollok and Mr. Edwards that Respondent made the statements at issue is more credible, and is accepted. Ms. Burnam-Hoyt, who enjoys a well-known and long-term relationship with her wife, would occasionally visit the office. On one occasion, while in the presence of Mr. Edwards, Respondent told Ms. Burnam-Hoyt that she looked nice that day and said “I wish you would switch teams.” Though she gave an off-hand reply, Ms. Burnam-Hoyt did not discuss her sexuality, especially in the workplace, and was offended by the comment. On several other occasions, when Ms. Burnam-Hoyt was not in the room, Respondent commented in the presence of both Ms. Pollok and Mr. Edwards that he wished “she didn’t bat for the other team.” On one occasion, when Ms. Pollok had returned from ESE training and asked Respondent about his day, he replied that “it was pretty boring until your old boss, what's her name, Mandy [Elzy], bent over and showed me her boobs.” Respondent commented, with regard to Anna Garces, that “she was spicy and he'd like to make her his consuela.” When Donna Mounts, a P.E. instructor, would come to the office, Respondent’s favorite phrase was that he “would like to mount Coach Mounts.” Respondent did not make the statement directly to Ms. Mounts, but he made it in the office on a routine basis. Respondent commented regarding Marcie Lockamy, an African-American assistant principal, that “I don’t normally do black ladies, but she’s pretty hot . . . I’d get at that.” Respondent’s denial that he made the statement, or that he even knew who Ms. Lockamy was, was not convincing. Respondent’s comments were repetitive, and he would make some statement every day. Ms. Pollok and Mr. Edwards told Respondent that he should “tone it down.” In particular, Mr. Edwards testified credibly that he advised Respondent “at different points” that his comments about women were not appropriate, not only because of his own view of the matter, but because he believed them to be disturbing to Ms. Pollok. The requests and recommendations had no identifiable effect. Mr. Anderson’s testimony in this case, apparently designed to exonerate Respondent and transfer responsibility for many of the statements to himself, was not persuasive, and in several instances, conflicted with the more credible testimony of other witnesses.2/ Respondent’s general defense to his sexual comments was that he was just “joking around,” that they occurred when he and the target of his comments “were talking and laughing and having a good time in between classes,” that they were a “jovial gesture,” and the like. He denied that they were perceived as offensive by any the persons within earshot, a statement denied by the persons exposed to his comments. Individually, Respondent’s comments could be categorized as puerile. Collectively, and over time, they rose to the degree that they created a hostile, abusive, offensive, and oppressive environment in the small office that constituted the workplace for the three teachers. Threatening Comments The Administrative Complaint alleges that, over the period of time in question, Respondent made “threatening comments to or around [Ms. Pollok].” As to comments regarding Respondent’s prior work- history as a police officer, Mr. Edwards testified credibly that they were nothing more than “experiences that people have or wanted to share.” Mr. Edwards did not take those statements as threatening. When Respondent discovered that he was being investigated by Holly Hill School, he was understandably upset. He made some comments that expressed his frustration. However, Mr. Edwards testified that Respondent did not threaten him or Ms. Pollok. Respondent admitted to being upset and frustrated, but denied either expressing, or having the intent to harm anyone. The comments, under the circumstances, were not so out of line as to objectively constitute a threat to one’s safety or welfare. Under the circumstances described herein, Petitioner did not prove that Respondent’s allegedly threatening statements created a hostile, intimidating, abusive, offensive, or oppressive environment in violation of rule 6A-10.081(5)(d). Holly Hill School’s Response Ms. Pollok complained of Respondent’s behavior to various administrators at Holly Hill School, including Mr. Strother, and went so far as to request a reassignment of her duties so as to avoid Respondent. On November 1, 2013, Mr. Strother spoke with Respondent. The conversation was “short and brief,” and non-specific, with Mr. Strother generally advising Respondent to “be cognizant of conversations you're having and what you're saying around other people.” On or about November 4, 2013, Ms. Pollok renewed her complaint to Mr. Strother about Respondent’s comments about “the ladies,” and their looks and sexual preferences. Mr. Strother could tell that the comments made Ms. Pollok uncomfortable. Mr. Edwards had also spoken to Mr. Strother regarding Respondent’s comments. As a result of those complaints, Mr. Strother sent out an email directing all teachers to have “professional conversations,” and to lead “by example with appropriate conversation.” Though the email was not specific, included other topics, and was sent to a number of Holly Hill School employees, it nonetheless should have placed Respondent on notice to heed not only Mr. Strother’s earlier advice, but also the earlier admonitions from Mr. Edwards and Ms. Pollok to “tone it down.” It did not have the intended effect. On November 20, 2013, Ms. Pollok reported Respondent’s unabated comments about women and those made towards students to Ms. Fisher. Ms. Pollok was upset and crying during their discussion. Ms. Fisher then spoke with Mr. Strother to confirm Ms. Pollok’s earlier complaints. Ms. Fisher reported the allegations to the school district, and on November 21, 2013, an investigation of Respondent’s conduct was initiated. The investigation delved into the sexually-inappropriate comments, and extended into areas that are not the subject of this proceeding, for which Respondent received a reprimand. As to the comments directed to students, which were determined to be violative of principles of professional conduct and school board policy for failing to protect students or exposing them to excessive embarrassment or disparagement, Respondent was suspended without pay for five days, and transferred from Holly Hill School.
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 section 1012.795(1)(j) and rules 6A-10.081(3)(a) and 6A-10.081(5)(d). It is further recommended that the Education Practices Commission impose a suspension of the Respondent's educator certificate for a period of one year, and a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case. DONE AND ENTERED this 23rd day of January, 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 23rd day of January, 2017.
The Issue The issue is whether Petitioner, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter from Assistant Superintendent Ron Ciranna to Respondent dated March 3, 2008.
Findings Of Fact Ms. Brown has been employed by the School Board as a teacher for 11 years. She is a member of the Polk Education Association, the collective bargaining unit for teaching personnel; is covered by the collective bargaining agreement between the School Board and the Polk Education Association; and holds a professional services contract with the School Board pursuant to Section 1012.33, Florida Statutes. During the first several years of her employment, Ms. Brown was assigned to Dundee Elementary School as an Exceptional Student Education ("ESE") teacher, working with children classified as severely emotionally disturbed, emotionally handicapped, and varying exceptionalities. When she transferred to Spook Hill, Ms. Brown initially worked in a self-contained varying exceptionalities classroom. Three years ago the principal of Spook Hill, Matthew Burkett, requested that Ms. Brown transfer to a new ESE Pre-kindergarten (Pre-K) unit that was being established at the school.2 Ms. Brown started work in the ESE Pre-K unit at the start of the 2005-2006 school year and has remained there ever since. Most of the children in Ms. Brown's class were classified as educable mentally handicapped, or EMH. Testing showed that they were developmentally delayed, with developmental ages that were typically one to two and one-half years behind their chronological ages. At any given time, there could be as few as four or as many as 12 children in Ms. Brown's class. A paraeducator was assigned to assist Ms. Brown. The ESE Pre-K classroom was a portable with a ramp leading to the front door. The front door had a gate with a pool lock. The pool lock was chest-high to an adult, out of the reach of most small children. Outside the portable was the ESE playground, which was completely fenced, with a gate and lock. The playground contained a swing set and other equipment. A child could not exit the playground without adult assistance. The school bus pick-up area was just outside the playground gate. Between January 22, 2007, and February 12, 2008, Mr. Burkett disciplined Ms. Brown 16 times, through verbal warnings, written reprimands, letters of concern, and recommendations to the superintendent for suspensions. The first documented disciplinary action was a "written confirmation of a verbal warning" from Mr. Burkett to Ms. Brown dated January 22, 2007. The letter references "many issues" that had been discussed at a January 19, 2007, conference, stating that Ms. Brown had already addressed several of the issues discussed. Mr. Burkett then wrote: I would like to target the issue of "falling asleep" during nap time as a very critical area which must be corrected. You stated that it has happened because you have to model and cuddle with the children to get them to fall asleep and that your para was present. I instructed you to sit up while cuddling the children to sleep and that you must not ever fall asleep. Please know any instance from this point on that jeopardizes the health and safety of the students will result in further disciplinary action. On February 8, 2007, Mr. Burkett issued a written reprimand to Ms. Brown. The reprimand letter stated that on February 2, 2007, at 12:45 p.m., Mr. Burkett walked through Ms. Brown's class to observe. The room was quiet and dark. All the students were lying down, and some of them were already asleep. Mr. Burkett observed that Ms. Brown was lying down with several students. She was not asleep, and she responded when spoken to by Mr. Burkett, who nonetheless felt obliged to issue a written reprimand in light of his prior warning. Ms. Brown signed the reprimand letter, acknowledging receipt, but also wrote the following: "Due to this concern I have quit sitting w/any students. I sit in my chair w/students around my desk. Any parent concerned about their child not napping will be directed to the office (Burkett or [assistant principal Sharon] Neal)." On February 9, 2007, Mr. Burkett issued a "letter of concern" to Ms. Brown regarding conferences held on February 2, 5, and 8, 2007. The letter discussed a number of concerns that had been voiced by parents or school administrators. Ms. Brown's high school student assistant had not submitted the required application to obtain volunteer status and would be barred from the classroom until her paperwork was completed. An unauthorized man had been seen in Ms. Brown's class. The man was an old classmate of Ms. Brown's and was helping her to plan a class reunion. Mr. Burkett informed Ms. Brown not to conduct personal business during the school day. A parent observed that Ms. Brown was "always on her cell phone." Ms. Brown had been repeatedly cautioned about cell phone use, and the letter of concern directed her not to have her personal cell phone on her person during the school day. Another parent observed that nap time appeared to last for two hours. Mr. Burkett instructed Ms. Brown that nap time should be only one hour long. The letter of concern also addressed the issue of parents dropping off students to Ms. Brown's class prior to the 7:15 a.m. start of the school day. Mr. Burkett told Ms. Brown that he would intervene on her behalf to stop the children from arriving early, but Ms. Brown stated that she was voluntarily arriving early to take the children and would voluntarily continue to do so. On the same day as the letter of concern, February 9, 2007, Mr. Burkett also issued a "written documentation of a verbal warning" to Ms. Brown. This warning concerned Ms. Brown's having left the campus from 11:30 a.m. to 12:05 p.m. on February 7, 2007, without permission from the school's administration. The letter stated that Mr. Burkett was forced to send the assistant principal, Ms. Neal, to Ms. Brown's classroom to assist with the supervision of the students in Ms. Brown's absence. Ms. Brown's excuse was that she had to take her niece to work at McDonald's. Mr. Burkett's letter of concern emphasized that, whatever the emergency, Ms. Brown was required to make arrangements with the administration before leaving the campus. On March 6, 2007, Mr. Burkett issued a written reprimand to Ms. Brown "for your continued use of your personal cell phone during student contact time." On March 1, 2007, Mr. Burkett observed Alice Staton, Ms. Brown's paraeducator, sitting on the swing set holding a child. Ms. Staton yelled across the playground, "Get back in that room." Mr. Burkett saw three of the ESE Pre-K students outside the classroom, running up and down the portable's ramp. The door and gate to the portable were open. Mr. Burkett "corralled" the three students back into the classroom, where he observed three other students in Ms. Brown's chair, swinging it in circles. Mr. Burkett then noticed that Ms. Brown was speaking on her cell phone. She did not notice that Mr. Burkett had entered until he walked all the way across the room toward the students in her chair. According to the written reprimand, Ms. Brown then "placed the phone down discreetly and proceeded to use a loud tone of voice instructing the class to clean up." Ms. Brown submitted a handwritten response to the letter of reprimand. She did not deny the facts as stated by Mr. Burkett, but offered her justification for this "unexpected" incident: A parent called my cell # at the time we were having issues with a student who was screaming & crying. Alice walked this student outside to make the room quieter. She accidentally left door & gate open. I thought she told me she would be outside. I didn't hear the "playground" due to the child screaming. I turned[,] was helping students clean when my cell phone rang. It was a parent checking on her child. I may have been on the phone 2-3 seconds. Mr. Burkett had walked in. Alice had eye contact with the outside students & I had eye contact with the ones in the room. At the hearing, Mr. Burkett testified that, although Ms. Brown's use of her personal cell phone violated the directive of his February 9, 2007, letter of concern, his overriding motivation in reprimanding Ms. Brown was the lack of supervision he observed during the incident. He believed that the children running on the ramp were out of the sightline of either Ms. Brown or Ms. Staton, and he observed that Ms. Brown was so engrossed in her telephone conversation that she did not even see him enter the portable. By letter dated March 14, 2007, Superintendent McKinzie suspended Ms. Brown without pay for a period of one day effective March 22, 2007.3 The grounds for this suspension were the events of March 1, 2007, as recited in Mr. Burkett's written reprimand of March 6, 2007, as well as the following, as stated in Superintendent McKinzie's letter: Later that same day [March 1], it was reported to the principal that not only did you use your cell phone again, but you asked the para assigned to your class to "keep watch" for you. This statement was provided for [sic] in writing by another employee and notarized. This action took place immediately after you had just left a conference with Mr. Burkett in which you were given a directive not to have your cell phone in class. The principal discussed with you his concerns regarding student safety and told you that you could not provide adequate supervision while on personal cell phone calls. By letter dated April 18, 2007, Superintendent McKinzie suspended Ms. Brown without pay for one day effective April 25, 2007. The grounds for the suspension were stated as follows in Superintendent McKenzie's letter: This action is based on an incident which happened on March 19, 2007. On that date, Principal Matt Burkett was notified that you had allegedly hit a high school student on the campus of Spook Hill Elementary. Your classroom paraeducator witnessed the altercation and attested that you had engaged in an argument during student contact time. She stated that you slapped the student in the face and that she saw you follow the student in your truck off campus. Principal Burkett spoke with you regarding the alleged incident. You admitted that you did slap the student in the face and that you did get in your truck and follow her off campus. By your own admission, you stated that there had been a prior altercation off campus with this particular student. Clearly, you allowed a personal situation to escalate into a violent confrontation on the school campus. Although you did apologize for your actions, your behavior was totally unprofessional and cannot be condoned. Your lack of judgment in this situation jeopardized the safety of the students in your charge. Please remember that teachers are role models for their students and should behave accordingly. On May 8, 2007, Mr. Burkett wrote a letter of concern to Ms. Brown to inform her of continuing inadequacies that Mr. Burkett was observing in Ms. Brown's job performance. The letter notes that on March 8, 2007, a Professional Development Plan ("PDP") had been established "to address the learning environment in your classroom." A PDP is a plan to help struggling teachers in areas of inadequate performance. A team of professionals is assigned to work with the teacher to aid in professional development and address the teacher's inadequacies. In his letter of concern, Mr. Burkett noted the following specific PDP items that were "in need of positive change": Circulate and monitor with appropriate proximity during all activities. (On 3/20 on your observation I marked you for remaining at desk. On 4/15, 4/26, 4/30, and 5/7 as I walked into your room you were sitting behind your desk.) Provide structured hands-on activities during outside play. (I have taken photos of your play area, as well as the equipment for outside play activities. They indicate a need to enhance and organize the learning environment.) Constantly engage and interact with students. (Please refer to item number one.) Daily schedule will be posted. (On 4/26 Mrs. Neal and I addressed the need to post your daily schedule and be certain that times are indicated.) IEP's must be in compliance.[4] (I showed you the report in which two of your students were listed as out of compliance.) Safety issues will be jointly addressed and teacher will comply with all administrative directives. (On 5/4/07 you called for the school resource officer. . . . I entered your classroom and observed you talking on your personal cell phone. You have also been tardy to work which is an issue we have addressed in the past.) On September 5, 2007, Mr. Burkett wrote a letter to Superintendent McKinzie recommending that Ms. Brown be suspended, based on "her history of jeopardizing the safety and welfare of her students" and in light of the following specific incident: On August 31st I went into Ms. Brown's Pre-K room and she was not present. I noticed a student tipped over strapped into a high chair. I asked the para-professional where the teacher was and she stated "I do not know." She said the teacher stated she "had to get out." The para also stated she did not place the child in the high chair. According to the para the teacher had been gone for about ten minutes. I was in the room for five minutes before the teacher returned. Ms. Brown sent me an email and stated she went to the restroom and laminated some things. I am very concerned because Ms. Brown has explained on several occasions the severity of the needs her students have and the need for more time to have in small group teaching. Therefore, while I understand the need for a bathroom break, I do not understand the need to choose this critical time to laminate. Secondly, she left a child in a high chair as a "time out" which is an inappropriate use of the chair. Furthermore, she left the child for an excessively lengthy time and in fact she left the classroom while the child was still restrained. As a result of her actions the child turned over in the high chair. At the hearing, Mr. Burkett conceded that the child's IEP stated that he could be strapped into the high chair for feeding. However, neither Ms. Brown nor Ms. Staton offered affirmative testimony that the child was in fact strapped into the high chair for feeding. Because no testimony or other evidence was presented to contradict the version of events set forth in Mr. Burkett's letter to Superintendent McKinzie and adopted by Mr. Burkett at the hearing, Mr. Burkett's version is credited. By letter dated September 10, 2007, Superintendent McKinzie suspended Ms. Brown without pay for five days effective September 17, 2007, through September 21, 2007, as a "result of your continued lack of attention to the safety and welfare of the students in your charge."5 In a letter dated January 25, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be suspended "as a continuation of the progressive discipline section 4.4-1 of the Collective Bargaining Agreement." Mr. Burkett noted that Ms. Brown received a verbal warning on February 9, 2007, for leaving campus without permission, and was suspended on April 25, 2007, for an incident that included her leaving the campus. Mr. Burkett's letter described the current incident as follows: On January 17, 2008, Ms. Brown once again left campus without permission during her contact hours which extend to 3:15 pm. At approximately 2:25 pm transportation contacted the school to ascertain the whereabouts of a Pre-K child because they had a bus at Spook Hill waiting on a student. The teacher placed the child on another bus. However, transportation needed to confirm the child was placed on a different bus before they allowed the bus to leave. As a result of Ms. Brown leaving the campus without informing the administration there was an unnecessary delay in getting vital transportation information regarding what bus the child was placed on by the teacher. Furthermore, there was tremendous stress placed on the office staff as they tried locating and contacting Ms. Brown in order to confirm the child was safely on the bus. In our conference on January 23, 2008, regarding the matter Ms. Brown acknowledged she left campus for a personal matter and that her actions were incorrect and she apologized for the incident. Unfortunately, Ms. Brown chose not to follow clearly stated written instructions from her previous disciplinary actions. By letter dated January 30, 2008, signed by Mr. Ciranna, assistant superintendent for Human Resource Services, Superintendent McKinzie suspended Ms. Brown for five days without pay effective February 6 through February 12, 2008, based on Mr. Burkett's recommendation. In a letter dated February 11, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be suspended for failure to complete her students' progress reports as required by their IEPs. The letter stated, in relevant part: I met with Ms. Brown on January 31st, 2008, and asked if she completed progress reports for her students. She replied that she did not have time to complete them. I gave her a directive to complete her student's progress reports and I provided her coverage. On February 1st, 2008, Ms. Brown sent me a letter which stated: "Yesterday when we met you asked me about my progress reports. I spoke from memory and indicated that I was way behind because of the time it takes me to work with my one on one student. Because of the assistance you provided, I was able to review the information and found I was not as far behind as I had indicated." According to a report provided to me by Chris English (Network Specialist) not a single progress report was created by Ms. Brown prior to January 31st, 2008. To further understand the severity of this offense it should be noted that Ms. Brown is currently on a Professional Development Plan (PDP) and one of the strategies is written as follows: "All IEP's and IEP notices must be in compliance and correctly written. Teacher will provide a one week notice if coverage is needed so she can prepare the IEP." Prior to our meeting on January 31st, 2008, Ms. Brown has never requested coverage to complete progress reports as part of the student's IEP. In a written response, Ms. Brown stated that she had "asked at least twice in the past for assistance to complete IEP paperwork a week in advance and was not provided coverage." While she stated her general disagreement with Mr. Burkett's letter, Ms. Brown did not otherwise contradict any of the specific factual assertions made by Mr. Burkett. At the hearing, Mr. Burkett testified that prior to February 12, 2008, he had a discussion with the School Board's director of employee relations about terminating Ms. Brown's employment, but that Superintendent McKinzie decided to suspend Ms. Brown on this occasion. By letter dated February 12, 2008, signed by Mr. Ciranna, Superintendent McKinzie suspended Ms. Brown for one day without pay effective February 20, 2008, based on Mr. Burkett's recommendation. By letter dated February 29, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be terminated as an employee with the School Board. This recommendation led to the suspension and termination letter of March 3, 2008, the relevant terms of which are set forth in the Preliminary Statement above. Mr. Burkett based his recommendation on "multiple issues extending over the course of the past year," as well as the following specific events occurring during February 2008: During Ms. Brown's recent suspension she acted insubordinately by coming on school campus during her suspension. I met with Ms. Brown on February 4, 2008, and I gave her a directive not to come on campus for any reason during her suspension days. Ms. Brown later called me on the phone and asked if she could come after the school day to do her lesson plans. I again stated to her that she could not be on school campus during her suspension days. On February 11, one of Ms. Brown's five suspension days, it was brought to my attention that she was on campus and delivered lunch to her paraprofessional. I have a statement from Ms. Brown in which she admits she delivered lunch. I also have a statement from the paraprofessional which states, "Yesterday, I called Ms. Brown about the Valentine's list. She called me back and asked if I wanted her to bring us lunch. I told her no and she is not supposed to be on campus. She said it was alright if she went to the office. She called me later again, and told me to come to the back of the lunch room door to get the lunch. . ." Additionally, I have a statement from my secretary in which Ms. Brown asked her "not to let Mr. Burkett know that she was here because she would get in trouble." Ms. Brown was previously suspended on March 22, 2007, in part for asking her paraprofessional to "watch out" for administration so she could insubordinately use her cell phone. Ms. Brown's actions depict an employee that has an established pattern of deliberate insubordination. Most concerning of all, in a four day span of time between February 19, 2008, and February 22, 2008, Ms. Brown continued to display a pattern of allegations [sic] of child endangerment. The following is a brief description of the incidents: On February 19, 2008, Mrs. Jenny Baker, a paraprofessional, was covering her classroom so I could serve her notice of suspension for February 20th. Mrs. Baker stated that upon Ms. Brown's return to class she asked if she could leave. Since the teacher did not respond Mrs. Baker left the portable to attend to her other duties and noticed three Pre-K students behind her and Ms. Brown was nowhere in sight. It was obvious that these students had left Ms. Brown's classroom without her supervision. Mrs. Baker waited for the other para to return from the buses to escort the kids back into the class. On February 19, 2008, I went to the classroom at approximately 2:30 (after Mrs. Baker had informed me of her concern). I noticed Ms. Brown at her computer behind her desk. The door to the portable was wide open and two students were sitting out of the teachers [sic] view behind the "cubby." These students could have readily left the classroom without Ms. Brown's knowledge. It was previously recommended by Ms. Sherwin (Educational Diagnostician) on February 5, 2008, that "in general, I think rearrangement of your classroom. . . may help. . . . I am particularly concerned with the arrangement that has the area between your door and shelving not visible to you at all times." On February 21, 2008, Mrs. Neal, the assistant principal, was walking through Ms. Brown's portable. Upon entering she noticed Ms. Brown getting up from her desk. The para was placing a band aid on another child. Ms. Brown stated that she was printing progress reports. Mrs. Neal stated the room was "a mess" and she began to straighten a piece of carpeting so the kids would not trip over it and hurt themselves. Mrs. Neal then counted the students and noticed one was missing. "Ms. Brown . . . looked puzzled." The paraprofessional and the teacher began to look for the missing child. She was found by Ms. Brown in the bathroom. The duration of time the child was missing was approximately five minutes. On February 22, 2008, at approximately 10:40 a.m. I was walking the exterminator to the classroom. As we walked up to the portable I noticed the front door wide open and two Pre-K students were on the ramp running. One tripped and fell. I rushed to the gate because I thought he was hurt, but he was already up and running down the ramp again. Clearly, these two students were not able to be observed by Ms. Brown and were not under her supervision or control. The exterminator and I entered the gated area and then Ms. Brown came out yelling for the boys to "get back in here." * * * I am entirely in favor of helping employees grow professionally as can be established by allowing Ms. Brown to create a second Professional Development Plan. However, she has established a pattern of allegations of child endangerment that results in disciplinary action. In addition, her multiple serious violations of school and district policies over the course of time have also established a pattern necessitating disciplinary action. It is for this reason that I am recommending termination pursuant to Article 4.4-1 of the collective bargaining agreement. As to the February 11, 2008, incident described in his letter, Mr. Burkett testified that Ms. Brown knew that she was not to come onto the campus while under suspension, because he had discussed the matter with her during one of her previous suspensions. Mr. Burkett testified that he was following School Board policy in prohibiting Ms. Brown from entering the campus during her suspension. Ms. Brown testified that as of February 11, 2008, she had never been told not to come on the campus while serving a suspension. Ms. Brown stated that she simply wanted to do something nice for Ms. Staton, her paraeducator, by way of bringing lunch. Ms. Brown had known Ms. Staton since the former was herself a student at Spook Hill. While Ms. Brown's good intentions may be credited, her testimony that no one had told her not to come on campus during a suspension is not credible. Her stealth in bringing lunch to Ms. Staton indicates that she knew she should not be there. Further, Mr. Burkett's letter quotes a statement from Ms. Staton in which she told Ms. Brown that she was not supposed to be on the campus. Ms. Staton testified at the hearing, and Ms. Brown had ample opportunity to question her about the events of February 11, 2008, and her statement to Mr. Burkett. However, Ms. Staton was questioned only about the February 21, 2008, incident. Mr. Burkett testified that the February 19, 2008, incidents were of greater concern to him because of the child safety issues involved. Mrs. Baker, the paraeducator who covered the class for Ms. Brown, testified that Ms. Brown was quiet when she returned from her meeting with Mr. Burkett. Ms. Brown sat at her computer. Mrs. Baker announced that she was now leaving the class, but Ms. Brown did not respond. Mrs. Baker walked out to the gate. When she started to close the gate, she looked behind her and saw three children who had followed her out of the class. Ms. Brown was still in the classroom, apparently unaware that the children had walked out. Mrs. Baker saw that Ms. Staton was outside placing another child on a school bus. On her way back into the classroom, Ms. Staton took charge of the three children who had followed Mrs. Baker out the door. Mrs. Baker returned to the main office. When Mr. Burkett asked how things had gone, she reported the incident to him. Ms. Brown testified that she did not recall the incident. Mrs. Baker's version of this incident is credited. After receiving the report from Mrs. Baker, Mr. Burkett was concerned for the children. He went to the class and saw Ms. Brown sitting at the computer behind her desk, and two students sitting out of her view though the door to the portable was wide open. Mr. Burkett testified that experts from the School Board had already come into the portable and discussed the room set-up with Ms. Brown, particularly the fact that there were obstacles to her having a clear line of vision from the desk to the door. A bookshelf that extended from the "cubbies" blocked her view of the doorway. Mr. Burkett noted that the two children could have walked out of the classroom without Ms. Brown seeing them. Ms. Brown testified that the two students in question rode the last bus from the school. Ms. Staton had already left the classroom to go on bus duty. Ms. Brown left the door open so that she could see the bus as it came around the side of the portable. The two students sat there playing as Ms. Brown worked at her desk. No one else was in the classroom. Ms. Brown could hear the children as she worked and testified that she could have heard them go out of the room because the front ramp squeaks. She also could have seen them through the windows. Ms. Brown was adamant that she knew the children in her class and she knew where these two children were, sitting there waiting on their bus. This was their daily routine, and there was nothing unusual about this day other than Mr. Burkett's entrance. Ms. Brown testified that Mr. Burkett said nothing about his concerns for the children's safety at the time. The only discussion was "something about the cubbies." Mr. Burkett came to the room the next morning and said the cubbies had to be moved. He and Ms. Brown moved the cubbies before the children arrived, making the door more visible from Ms. Brown's desk. Ms. Brown testified that the room had been arranged the same way since school started in August and that she was concerned because consistency is vitally important to students who are functioning at the level of 18 to 24 months of age. Any change to their environment can throw off their routines and cause them to have bad days. Ms. Brown did not believe that moving the cubbies was necessary. As to the events of February 21, 2008, assistant principal Sharon Neal testified that she went to observe Ms. Brown's classroom on that date. As she walked in, Ms. Neal saw Ms. Brown sitting at her computer. She asked Ms. Brown how many students were in the class, and was told that all the students were present. Ms. Neal counted the students, then recounted them. Then she told Ms. Brown and Ms. Staton that if everybody is here today, then someone is missing. Ms. Brown and Ms. Staton began to count, then began searching the room. After a minute or two of searching, they wondered if perhaps Student D. was in the bathroom.6 They opened the bathroom door and found Student D. Ms. Neal discussed with Ms. Brown and Ms. Staton what could have happened with the child going missing for a period of several minutes. Ms. Brown testified that when Ms. Neal stated that a child was missing, she responded that the child had to be somewhere in the classroom. She knew this because the front door was equipped with a buzzer that went off when the door was opened, and Ms. Brown's desk was next to the back door. She and Ms. Staton scanned the portable and quickly concluded that the child must be in the bathroom. Ms. Brown testified that Student D. was a very large child whose functional age was eight months. She wore pull-up diapers, though it was becoming difficult to find diapers to fit the child. Ms. Brown and the child's mother had been working diligently on potty training the Student D. This was the first time she had gone to the bathroom on her own. Ms. Staton confirmed their surprise at finding Student D. on the potty, because they did not believe her capable of going to the bathroom alone. Ms. Staton conceded that neither she nor Ms. Brown knew where the child was before Ms. Neal noted that a student was missing. As to the events of February 22, 2008, Mr. Burkett testified that there had been an insect problem in the portable, and therefore an exterminator had been called. As Mr. Burkett walked the exterminator down to the classroom, he noticed the door of the portable was "wide open." Two Pre-K students were running down the ramp, and one of them tripped and fell. Mr. Burkett was concerned for the student's safety, but the child popped up and started running again. Mr. Burkett estimated that another 30 seconds passed before Ms. Brown came out of portable, "yelling for the kid to get back inside." Mr. Burkett noted that this was yet another incident in which "the door was open, the kids were on the loose, and not properly supervised." Ms. Brown testified that the students were working at their regular daily schedules when the phone rang in the classroom. The school secretary was calling to tell Ms. Brown that Mr. Burkett and the exterminator were on their way to spray the classroom. The secretary told Ms. Brown that she needed to have the children out of the portable by the time Mr. Burkett and the exterminator arrived. Ms. Brown and Ms. Staton began trying to quickly move the students out of the portable. Ms. Staton secured the women's purses, then went outside to unlock the shed on the playground as instructed by the secretary. Meanwhile, Ms. Brown was lining up the children to proceed out the door. Ms. Brown turned momentarily to get diapers from the changing table. As she turned, two of the children took off and ran out the door. Ms. Brown testified that these were two boys who were prone to running away. She knew who they were because she could hear them laughing. She turned and ran to the door and called their names. When she got to the ramp, Mr. Burkett was helping one of them up from where he fell. Ms. Brown testified that it usually takes from five to ten minutes to line up the children, get the diapers and other supplies, and proceed out the door as a class even when the move is planned, and she has Ms. Staton to help with the children. In this situation, she was moving the children on short notice, and Ms. Staton was busy securing the purses and unlocking the shed. There is no real contradiction between Mr. Burkett's and Ms. Brown's versions of this incident, save for Mr. Burkett's estimate that 30 seconds passed between the time the student fell on the ramp and Ms. Brown appeared at the door of the portable. It is found that Mr. Burkett's estimate of the time is likely exaggerated due to his dismay at the situation and that Ms. Brown in all likelihood came out the door only a few seconds after the boys. Ms. Brown's version of events, while credible, calls her judgment into question. She described a somewhat frantic decampment from the portable, as if she believed Mr. Burkett would order the exterminator to begin spraying whether or not the children were out of the classroom. There is no reason to believe that Mr. Burkett would not have preferred a slow but orderly procession to the scene he encountered. Except where noted in the above findings of fact, Ms. Brown did not contest the factual allegations made against her. Ms. Brown's defense was twofold. First, the great majority of incidents cited as grounds for discipline were run of the mill occurrences in a Pre-K ESE classroom. Second, the sheer number of disciplinary actions establish a concerted effort by Mr. Burkett to build a record against Ms. Brown by seizing any opportunity to find fault with her job performance. As to her first defense, Ms. Brown testified as follows regarding the four incidents described in Mr. Burkett's letter recommending termination: Those are things that can happen at any moment at any time in an ESE Pre-K classroom. There's children that pull away from their teachers, their parents. These children are sent to our room to get some structure, and to help them to cognitively, socially, behaviorally develop, because they are delayed in all that development. Ms. Brown's point is valid as to some of the disciplinary incidents cited in the termination letter. The February 19, 2008, incident essentially involved a difference of opinion between Mr. Burkett and Ms. Brown. He believed that she should have the children in her line of vision at all times. She believed it was safe to be able to hear what the two children were doing and testified that this had been her daily practice all year. The February 21, 2008, incident was a matter of Student D. unexpectedly taking the initiative to go to the bathroom alone. The February 22, 2008, incident involving the exterminator was simply a matter of two students bolting for the door as soon as Ms. Brown's back was turned, something that could happen at any time with a group of Pre-K children. Ms. Brown is correct when she argues that the events of February 19 through February 22, 2008, standing alone, would provide slim grounds for the dismissal of a veteran ESE teacher. However, these events were not the sole factual basis for the School Board's decision to terminate Ms. Brown's employment. The termination letter makes clear that the School Board considered these events to be emblematic of a long history of Ms. Brown's "pattern of failing to properly supervise the students under your care." The termination letter references all of Ms. Brown's previous suspensions and, expressly, references Ms. Brown's insubordination in entering the campus during her suspension despite Mr. Burkett's directive that she was not to come onto campus for any reason during that time. Ms. Brown had been suspended five times between March 14, 2007 and February 12, 2008. The March 14, 2007, suspension was for insubordination regarding the use of her personal cell phone. The April 18, 2007, suspension was for a physical altercation with a high school student, followed by Ms. Brown's leaving the campus in pursuit of the student. The September 10, 2007, suspension was for the inappropriate use of a high chair for student discipline, resulting in the student's falling while strapped into the chair. The January 30, 2008, suspension was for leaving the campus for personal reasons, without permission or notice to the administration, resulting in confusion as to whether a student was on the correct bus. The February 12, 2008, suspension was for Ms. Brown's failure to complete student progress reports. The events of February 19 through February 22, 2008, must be viewed in light of Ms. Brown's disciplinary history since at least her first suspension on March 14, 2007. In that light, these relatively minor events indicated to Mr. Burkett and the School Board that Ms. Brown's performance showed no prospects of improving. A consistent theme throughout Ms. Brown's disciplinary history, in addition to her continuing insubordination, was her failure to adequately supervise the children in her care. The fact no child was seriously injured in any of these events was fortuitous, not a reason to minimize or overlook Ms. Brown's often casual approach to minding these very young ESE students. The School Board had taken every disciplinary action available to it under the Teacher Collective Bargaining Agreement, including multiple suspensions short of moving for termination. This last point addresses Ms. Brown's second argument, that the number of disciplinary events indicates a vendetta on the part of Mr. Burkett. No evidence was offered that Mr. Burkett bore any personal animus toward Ms. Brown. The evidence indicated that Ms. Brown was under additional scrutiny because of her disciplinary history. The evidence further indicated that Mr. Burkett made reasonable effort to assist Ms. Brown in improving her performance, including the establishment of a PDP and the appointment of a team of professionals to observe her class and offer advice. The number of disciplinary events indicates, if anything, forbearance on the part of Mr. Burkett and the School Board, imposing multiple suspensions rather than moving precipitously to the final step of termination. The evidence did not establish that Mr. Burkett was motivated by anything other than the desire to ensure the safety of the students at Spook Hill.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating the employment of Deana Brown as a teacher at Spook Hill Elementary School. DONE AND ENTERED this 3rd day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2009.
The Issue Whether the Petitioner's decision to suspend the Respondent without pay for a period of five working days should be sustained.1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes. Mr. Fox is a teacher of emotionally handicapped students who has been employed by the School Board for approximately 27 years and has taught at Jefferson Davis for the past 23 years. He is employed by the School Board under a continuing contract. On March 28, 2000, Mr. Fox was issued a written reprimand by the Director of the School Board's Department of Employee Relations for making inappropriate comments to students. During the 2000-2001 school year, Mr. Fox taught a sixth grade class composed of six to eight emotionally handicapped students, some of whom had behavioral problems. The students in the class were between 11 and 12 years of age. B.W. was a student in Mr. Fox's class from the first part of November 2000 until he was transferred in the spring to another class for emotionally handicapped students.2 B.W. testified that Mr. Fox cussed in class, using words like "damn" and "asshole," and saying things like "quit your bitching." B.W. testified that he "believed" he overheard Mr. Fox say "fuck" in a conversation with another teacher about restaurants and cars. B.W. agreed when counsel for the School Board asked him if Mr. Fox ever told him, another student in the class, to "shut the hell up."3 B.W. recalled that, when Mr. Fox was talking to a girl in the class who had been fighting, he overheard Mr. Fox tell her, in response to something that she said to him, that he would see her at her funeral.4 B.W. also testified that some of Mr. Fox's actions in the classroom bothered him.5 B.W. told his mother that Mr. Fox was being "real rude,"6 and he complained to her about Mr. Fox almost every day. L.G., B.W.'s mother, testified that B.W. complained to her about Mr. Fox. B.W. told her that, one time, Mr. Fox told him to "shut the hell up."7 B.W. also told her that Mr. Fox used the "f- word" to a teacher, and B.W. told her that Mr. Fox "said the word, damn, one time."8 B.W. also told her that Mr. Fox told him to "sit back down in the damn seat."9 When B.W. told her these things, L.G. testified that she would contact Todd Smith and Anthony Rochon at Jefferson Davis; she spoke with them weekly. L.G. testified that she had written in B.W.'s agenda book that Mr. Fox should correspond with her or call her on the telephone if there were a problem with B.W. According to L.G., Mr. Fox called her at work one day and told her that he had a problem with B.W. L.G. went to the school immediately and went into the classroom to help her son. L.G. testified that Mr. Fox was rude to her on this occasion because he told her in a gruff voice: "'Tell him to do that page there.'"10 L.G. also testified that Mr. Fox telephoned her to talk about B.W. not doing his work and being obnoxious in class. L.G. testified that Mr. Fox was rude and unprofessional during these conversations; he was "very short" with her and once told her that B.W. "wouldn't do his damn work."11 The 2000-2001 school year was Anthony Rochon's first year as the Crisis Intervention Teacher at Jefferson Davis. His job is to assist the special education teachers with students who become overly disruptive in the classroom. The students are removed from the classroom and sent to him for counseling. In many cases, the students are very angry when they come into his office; Mr. Rochon must sometimes send the student home because he or she cannot be calmed down, but, other times, the student stays with Mr. Rochon the entire day or returns to the classroom. At unspecified times during the 2000-2001 school year, Mr. Rochon received complaints regarding Mr. Fox's comments and actions in the classroom. These complaints came primarily from four male students, including B.W. and S.M., although other students in Mr. Fox's class would occasionally complain. Mr. Rochon received more complaints from the students in Mr. Fox's class than he did with respect to the other two classes for the emotionally handicapped at Jefferson Davis. Mr. Rochon could not remember during his testimony specifically what each student said about Mr. Fox, but he thinks that B.W. may have said that Mr. Fox cursed at him "or something like that."12 With respect to the other complaints, Mr. Rochon recalled that "[s]ome [students] would say he cursed at them, used profanity. Some would say he made derogatory remarks about their intelligence. And those were basically their major complaints. Yelled at them."13 Some students complained to Mr. Rochon that Mr. Fox called them stupid or yelled at them, told them that they were not wanted in the class and "should be somewhere else."14 In most cases, Mr. Rochon would talk to the student and discover that the student had been angry and misinterpreted what Mr. Fox said. In a few cases, the student would not tell him what the problem was but would become upset and would refuse to return to the classroom; Mr. Rochon would refer these cases to Todd Smith, the assistant principal for the sixth grade. Mr. Rochon also received complaints from the mothers of three of the four male students, including B.W.'s mother and S.M.'s mother. L.G., B.W.'s mother, complained to Mr. Rochon that her son complained to her about things that Mr. Fox said to him, and L.G. complained that Mr. Fox was rude to her. M.M., S.M.'s mother, complained to Mr. Rochon that Mr. Fox hung up on her and was rude to her "or something" and that she received "excessive phone calls or something from Mr. Fox about things her child was doing in class."15 Mr. Rochon has no records of the complaints he received from students or parents, and he does not know whether the accusations against Mr. Fox were true. Mr. Fox frequently sent both B.W. and S.M. to Mr. Rochon for intervention. B.W. was sent to Mr. Rochon two or three times per week, and S.M was sent more often than B.W. Mr. Fox sent both students to Mr. Rochon for intervention because they were disrupting his classroom and he could not teach. Sometimes Mr. Rochon would go to Mr. Fox's classroom to remove B.W. or S.M. in response to a request from Mr. Fox for intervention. Mr. Fox personally observed B.W. "running around the classroom, maybe talking loudly or having an argument with another student and refusing to stop when Mr. Fox asked him to."16 He personally observed S.M. to be "generally . . . loud, would sometimes use profanity. He would leave the room a lot. Mr. Fox had to call me to go find him a lot. He was more of a volatile student in the sense that when he became very angry, he became very aggressive."17 The 2000-2001 school year was Mr. Smith's first year as the assistant principal for the sixth grade at Jefferson Davis. In the fall of 2000, Mr. Smith began receiving complaints from students about Mr. Fox's behavior in the classroom. Mr. Smith also received complaints from the parents of the four male students who complained to Mr. Rochon, especially from the mothers of B.W. and S.M. The complaints began in November 2000, at about the time B.W. was placed in Mr. Fox's classroom.18 Relevant to the issues herein, L.G., B.W.'s mother, complained to Mr. Smith that B.W. complained to her that Mr. Fox used inappropriate language and some profanity, specifically "bullshit," in the classroom. M.M, S.M.'s mother, made similar allegations against Mr. Fox, and she complained to Mr. Smith that Mr. Fox made some inappropriate comments and used some profanity, but she did not give Mr. Smith any specifics. L.G. and M.M. both complained to Mr. Smith that Mr. Fox was unprofessional in his conversations with them, but they did not give any specific instances of such behavior. At their parents' requests, both B.W. and S.M. were transferred out of Mr. Fox's classroom. B.W. testified that he asked Mr. Smith to "get me out of the class because he [Mr. Fox] was rude, and he would make comments to other children which I thought were inappropriate, and they bothered me."19 At about the same time, Mr. Smith discussed the complaints with Mr. Fox, and there were no further complaints from parents. Only one student complained to Mr. Smith about Mr. Fox after Mr. Smith's conversation with Mr. Fox. Mr. Smith turned over the information regarding the complaints of L.G. and M.M. to the principal of Jefferson Davis, and the principal contacted the Personnel Department and referred the matter for investigation. The investigation of Mr. Fox was assigned to Mr. Johnson on January 17, 2001. Mr. Johnson interviewed S.M., the alleged "student victim," on February 1, 2001; he interviewed B.W. and two other students in Mr. Fox's class on March 13, 2001; and he interviewed a seventh grade student on April 10, 2001, who had been in Mr. Fox's class the previous year. Mr. Johnson also interviewed S.M.'s aunt on March 20, 2001, and S.M.'s mother, M.M., on April 10, 2001.20 Mr. Johnson made notes during these interviews and later compiled the notes into summaries of the interviews that were included in his investigation report. He compiled some other documents in this investigation report, including S.M.'s extensive disciplinary history, the written reprimand issued to Mr. Fox on March 28, 2000, and Mr. Fox's evaluations for the 1998-1999 and 1999-2000 school years.21 Mr. Johnson presented the investigation report to a case management committee, which determined that there was probable cause to discipline Mr. Fox and that the appropriate penalty would be a five-day suspension without pay, which would be progressive discipline because of the written reprimand of March 28, 2000. Summary. The School Board presented no evidence that establishes that Mr. Fox used inappropriate language or made inappropriate comments to students or parents on December 19 or 20, 2000. But even going beyond the limited time frame alleged in the Administrative Complaint, the evidence is simply not qualitatively or quantitatively sufficient to establish clearly and convincingly that Mr. Fox made inappropriate comments and used inappropriate language in the classroom or to parents. And, even had the evidence supported a finding that Mr. Fox had made inappropriate comments or used inappropriate language on December 19 and 20, 2000, or even during the 2000-2001 school year, such behavior does not involve conviction for an act of moral turpitude, the only specific violation with which Mr. Fox is charged. The only direct evidence of Mr. Fox's behavior in the classroom was the testimony of B.W.. The remaining evidence was either hearsay or hearsay within hearsay: It consisted of the testimony of L.G. with respect to B.W.'s complaints to her about Mr. Fox's comments and language in the classroom; the testimony of Mr. Rochon and Mr. Smith with respect to complaints of primarily unspecified comments and language attributed to Mr. Fox conveyed to them by students and parents, who reported only what their children had told them about Mr. Fox's comments and language in the classroom; and the summaries of the interviews Mr. Johnson conducted with a few students and the aunt and mother of one student. Given all the facts and circumstances in this case, including B.W.'s demeanor as a witness and the use of leading questions to develop his testimony, B.W.'s testimony is not sufficiently credible or persuasive of itself to constitute clear and convincing evidence that Mr. Fox made inappropriate comments and used inappropriate language in his classroom. Furthermore, the hearsay evidence regarding the student complaints about Mr. Fox's language and comments in the classroom, which formed the primary body of evidence against Mr. Fox, cannot be used to enhance B.W.'s credibility and is not sufficiently persuasive, when viewed as supplementing or explaining B.W.'s testimony, to establish clearly and convincingly that Mr. Fox made inappropriate comments or used inappropriate language in the classroom.22 The only direct evidence of Mr. Fox's behavior towards parents is the rather vague testimony of L.G. that Mr. Fox was unprofessional and rude and that, one time, Mr. Fox used the word "damn" in a conversation with her; the other evidence consisted of the testimony of Mr. Rochon and Mr. Smith regarding the complaints of two parents and the summaries of interviews with a student's mother and aunt that were included in the investigation report. A description of Mr. Fox's comments as rude and unprofessional is not sufficiently specific to establish that his comments were inappropriate, and L.G.'s testimony that Mr. Fox said "damn" in one conversation with her, even if true, is not sufficient to support a finding that Mr. Fox's use of the word was inappropriate, especially given the absence in the record of any evidence that the School Board considers inappropriate the use of the word "damn" to a parent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order rescinding the five-day suspension of William Fox and ordering that his salary for these five days be paid. DONE AND ENTERED this 20th day of May, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2002.
Findings Of Fact Respondent, Jean-Baptiste Guerrier (Guerrier), holds Florida Teaching Certificate No. 59692 covering the area of English which is valid through June 30, 1995. Guerrier was employed as a teacher at Miami Edison Middle School during the 1992-93 school year. On September 20, 1993, the following disciplinary action was taken by the Dade County School System against Guerrier for conduct unbecoming a school employee: Directives were issued to Respondent to refrain from making inappropriate remarks. Respondent was issued a letter of reprimand. Respondent was placed on prescription. Respondent received an unacceptable rating for Category VII and an overall summary rating of unacceptable on his 1992-93 TADS Annual Evaluation. On November 29, 1994, the Commissioner of Education issued an Administrative Complaint against Guerrier alleging that he made inappropriate comments of a sexual nature to three eighth grade female students during the 1992-1993 school year. Based on the evidence presented Guerrier did not make such comments. The Administrative Complaint alleged that Guerrier engaged in inappropriate behavior of a sexual nature with two eighth female students during the 1992-1993 school year. Based on the evidence presented Guerrier did not engage in such behavior. A teacher at Miami Edison Middle School observed Guerrier putting his arm around female students during the changing of classes. He did not identify the students. During these occasions, Guerrier's back was turned towards the teacher. The teacher characterized Guerrier as a gregarious teacher. During the 1992-1993 school year, Guerrier had three female cousins who were attending Miami Edison Middle School. Guerrier would put his arm around his cousins' shoulders when he would see them at school. Guerrier did not put his arm around any other female students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against Jean-Baptiste Guerrier be DISMISSED. DONE AND ENTERED this 24th day of July, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 24th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-649 Neither Petitioner nor Respondent filed proposed findings of fact. COPIES FURNISHED: Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald G. Stowers, Esquire Department of Education Suite 1701, the Capitol Tallahassee, Florida 32399-0400 William Du Fresne, Esquire 2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129 Kathleen M. Richards, Administrator Professional Practices Services 352 Fla. Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent's employment as a teacher by the Duval County School Board should be terminated for the reasons specified in the Notice of Termination of Employment Contract and Immediate Suspension without Pay dated March 27, 2013.
Findings Of Fact The Duval County School Board (School Board) is charged with the responsibility to operate, control, and supervise all free public schools within the School District of Duval County, Florida. Ms. Beverly L. Howard has been employed by the Duval County School Board as a classroom teacher for over 32 years. She went to Paxton Senior High School and then to Florida A & M University, graduating with a bachelor of science degree in elementary education. The School Board seeks to terminate Ms. Howard’s employment. Her substantial interests are affected by this intended action. Ms. Howard has a history of past misconduct and disciplinary action. While teaching at Hyde Grove Elementary School in 1992, Ms. Howard received three memoranda from Principal Theresa Stahlman concerning her interactions with parents and students and her teaching performance. Among other comments, Ms. Stahlman noted that Ms. Howard needed significant improvement to “show sensitivity to student needs by maintaining a positive school environment.” Ms. Stahlman testified that Ms. Howard exhibited a “very loud punitive behavior management style” and that she wanted to help Ms. Howard improve. A note at the end of one memorandum indicates that Ms. Howard had said that she did not need cadre assistance and that she would request assistance if she needed it. A note on another memorandum indicates that Ms. Howard refused to sign it. Ms. Howard testified at hearing that the things Ms. Stahlman wrote in the three memoranda were lies. Ms. Howard said that Ms. Stahlman was a racist and was prejudiced. Ms. Stahlman gave Ms. Howard an unsatisfactory evaluation. The next year, Ms. Howard got an option to go to another school. On March 8, 1995, a conference was held between Ms. Howard, a parent of one of her students, and Principal Debbie Sapp. The student had alleged that Ms. Howard had pushed her down. Principle Sapp noted in a memorandum that Ms. Howard “vehemently denied this, in an extremely rude and unprofessional manner” and said that she would never put her hands on a student. Principal Sapp advised Ms. Howard that being argumentative and defensive with parents was unacceptable and only made bad situations worse. On March 10, 1995, Principal Sapp was making morning classroom checks when she overheard Ms. Howard repeatedly yell at a student, “Get out of my classroom.” Ms. Howard’s final comment was “Get out before I throw you out.” Principal Sapp then entered the classroom and saw a student standing at her desk, about to leave. Ms. Howard said that the student had been misbehaving all morning. Principal Sapp told the students that she did not expect teachers to yell at them or threaten them and admonished them to behave. In a memorandum to Ms. Howard, Principal Sapp wrote that Ms. Howard needed to work on controlling her temper, noted that Ms. Howard’s classroom was frequently in disarray, and stated that yelling at students and threatening them was inappropriate behavior that only made things worse. Ms. Howard testified at hearing that when Ms. Sapp came down the hall and heard a teacher yelling, Ms. Sapp never came face-to-face with her, and that it could have been the voice of another teacher which Ms. Sapp heard. On May 27, 2003, the Office of Professional Standards investigated a complaint from a student’s parent that Ms. Howard had grabbed the student by the arm, choked him, and caused him to vomit. The student said that Ms. Howard dug her fingernails into his arm when he got up to retrieve a paper that another boy had taken from his desk. He said that her nails were hurting him, so he began hitting Ms. Howard. He then said that she put her hand around his throat and made him choke. He said he felt sick and threw up. Ms. Howard denied the accusation. She stated that the student was in a fight with a female student in her class and that she separated them. She said she asked the female student to sit down and attempted to gain control of the male student. Ms. Howard showed the investigator a scratch on her thumb that she said was made by the student. She stated that after she assisted the student to his desk he began gagging and attempting to vomit. She said that only saliva came up and she asked him to go to the bathroom to clean himself up. The investigation was closed as “unable to prove or disprove.” The Office of Professional Standards investigated allegations of unprofessional conduct against Ms. Howard on April 28, 2004. The mother of student T.J. had left a message with Ms. Howard to call her to talk about scratches on T.J.’s arm. Ms. Howard called the mother at her workplace, University of Florida Jacksonville Physicians. The mother asked Ms. Howard if she knew where the scratches came from, and Ms. Howard said they came from an incident in the library. The mother could then hear Ms. Howard asking T.J. and another girl in her class about what had happened. The other girl said that T.J. had done things to cause the incident. Ms. Howard immediately relayed to the mother that the incident had been T.J.’s fault. The mother became upset, realizing that Ms. Howard had not been present and yet was completely accepting the other girl’s version of what had happened. The mother then told Ms. Howard that this was not right and that she would go to see the principal. Ms. Howard told the mother that she could talk to whomever she wanted to, and then put the phone down as if intending to disconnect the call, but the mother could still hear what was going on in the classroom. Ms. Howard said, “Class, isn’t T.J. a nasty little girl?” The class responded, “Yes, ma’am.” The mother heard Ms. Howard say, “Class, don’t I send home paperwork?” The children responded, “Yes, ma’am.” The mother could hear T.J. trying to ask Ms. Howard a question, and Ms. Howard saying, “Go sit your behind down.” At this point the mother became angry that Ms. Howard was verbally abusing her child in front of the other children. She asked her “lead” at her workplace to continue to monitor the call. She immediately left, and drove directly to the school to talk to the principal, Ms. Blackshear. The investigator received statements from the mother’s lead and several co-workers which contained additional statements Ms. Howard made to the students. Ms. Howard said: [T.J.] get out of my face, you can go home and tell your mama all of those lies. Yeah, she is probably going to want to have a conference with Ms. Blackshear. Go ahead and get out of my face with your nasty disrespectful face. Ms. [T.J.] sit down, I have already told your mama that you will be retained in the second grade. You want to be all that, well I can be more. The investigator determined that the phone number shown on the workplace caller ID feature was the number of Ms. Howard’s cell phone. When interviewed by the Office of Professional Standards, Ms. Howard denied making the above comments regarding T.J. She stated that T.J. had been a problem all year and that the student’s mother “got an attitude” with her. Ms. Howard did admit she placed a “shelter kid,” who was a juvenile inmate, outside of her classroom without supervision “for a few minutes.” She stated that everyone in the school knew it was a bad class, but she was being blamed. Ms. Howard testified at hearing that the lead and co-workers of T.J.’s mother were lying when they made statements about her interactions with the students in her classroom. She said she put the phone in her purse, and the purse in her desk drawer, and that no one could have heard any conversations in the classroom. Student T.J. was then reassigned from Ms. Howard’s class. At hearing, T.J. testified that when she was in Ms. Howard’s third-grade class, she “got her card flipped to pink” on a daily basis (this color indicating the worst conduct). She admitted that she deserved this sometimes, but not all the time. She testified that she remembered that Ms. Howard used to pinch her arm when she was “in trouble.” T.J. remembered that Ms. Howard called her names, saying she was nasty, disrespectful, and in need of home training, in front of the other students. She testified that she had problems in Ms. Howard’s class because she needed to go to the bathroom frequently and Ms. Howard would only let her go once a day. She would sometimes wet her pants. She then would have to wait until she was allowed to go to the office to call her mother to get clean clothing. On May 17, 2004, the Duval County School Board administered discipline to Ms. Howard for her interactions with her class as reported by T.J.’s mother and her co-workers. She was issued a written reprimand, suspended for five days without pay, and required to attend an anger management session. Ms. Howard was informed that she had been given the opportunity of constructive discipline instead of a reduction of pay or dismissal to afford her progressive discipline, and that any further improper conduct on Ms. Howard’s part would subject her to more severe disciplinary action. The written reprimand set forth Florida Administrative Code Rule 6B-1.006(3)(a) in its entirety, with its requirement that she “make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.” Ms. Howard signed a Receipt and Acknowledgement that she received a copy of the reprimand. On September 6, 2012, shortly after the start of the 2012-2013 school year, Louis Sheffield Elementary School held an open-house night. Ms. Lindsey Connor, assistant principle at the school, credibly testified to Ms. Howard’s response to a parent’s assertion that Ms. Howard had refused to allow her son, T.S., to go to the bathroom and that he had wet his pants in her class. Ms. Howard said to the mother of T.S., “What seems to be the problem?” in a harsh tone. After some discussion, Ms. Howard said something to the effect of: “Your son is a liar. He lies. He doesn’t need to be in my classroom anymore.” Ms. Howard denied that she ever told the mother of T.S. that her child was a liar. She stated that that would have been unprofessional. Ms. Howard testified that Ms. Connor’s statement that this had happened was a lie and that Ms. Connor was always taking the parents’ side. Ms. Howard testified that she never prevented a child from going to the bathroom and that T.S. just wet himself. Ms. Conner received numerous complaints about Ms. Howard from parents of Ms. Howard’s kindergarten students. Ms. Connor received six requests from parents to remove their children from Ms. Howard’s class. Ms. Connor testified that this was an unusually high number of requests and that she was concerned. J.F. was a student in Ms. Howard’s kindergarten class who exhibited behavioral problems. She would do acrobatic flips in the classroom and would tie her shoelaces to the chairs. She appeared to be hyper-active and would fall out of her chair when she was at her seat. J.F. would go all around Ms. Howard’s classroom and did not listen to Ms. Howard. She would back-talk Ms. Howard and showed her no respect. J.F. was frightened of Ms. Howard and often cried. Ms. Howard testified that she wanted to get specialized treatment or placement for J.F. but that the parents would not agree. In response to a complaint from the parents of J.F., Ms. Connor asked Ms. Howard to prepare a chart on which stickers could be placed to document J.F.’s progress in school. Ms. Connor asked Ms. Howard to bring the chart to a meeting to discuss how to help J.F. advance. Ms. Howard did not bring anything to the meeting and said nothing about how she might be able to help J.F. The mother of W.B. testified that her son was in Ms. Howard’s kindergarten class and that he loved Ms. Howard as a teacher. On one occasion in Ms. Howard’s classroom, W.B.’s mother observed Ms. Howard pull J.F. by the arm over to her when J.F. had gotten into trouble. The mother stated that J.F. appeared scared and she would not have liked Ms. Howard to do that to her child. In response to a call from the parent of C.B., a student in Ms. Howard’s class, Ms. Connor suspected that Ms. Howard may have hit one or more of her kindergarten students with a book. In a discussion with the Professional Standards office, Ms. Connor was told that she should investigate, advise the teacher, and contact the Department of Children and Families. Ms. Conner conducted interviews with students assigned to Ms. Howard’s class in the presence of a witness and took notes as to what the students told her. She testified that she brought the students into her office individually, that they didn’t know beforehand what she was going to talk to them about, and that they had no opportunity to collaborate or coordinate their statements. After conducting interviews with the children, Ms. Connor advised Ms. Howard of an allegation that Ms. Howard struck J.F. on multiple occasions with a book. Ms. Howard responded that she would not provide a written statement because she had never hit a student. Ms. Connor notified the Department of Children and Families. The report and testimony of the child protective investigator indicated that J.F was open, happy, and smiling during the “non-threatening” portions of the interview, but the investigator testified that when asked about Ms. Howard’s class, J.F. became nervous, chewed on the ends of her clothes, began to fidget, and asked if Ms. Howard was going to know what J.F. was saying. The investigator interviewed several students in the class. The report indicated that J.F. was free of suspicious marks or bruises. When the investigator interviewed Ms. Howard, she denied ever hitting J.F. with a book or slamming her down in her seat when J.F. was misbehaving. Ms. Howard indicated that she was close to retirement and would not hit a child. Student J.F. testified at hearing that she did not like Ms. Howard as her kindergarten teacher because Ms. Howard “did not want to be nice to me.” She testified that Ms. Howard “hurt me.” She testified that Ms. Howard “hit me on the leg with a book.” She testified that Ms. Howard hit her with the book because Ms. Howard had told her to get down on the carpet. She held up five fingers when asked how many times Ms. Howard had hit her. During cross-examination, she testified that she had been hit five times in succession on a single occasion. On redirect, she testified that she had been hit on five separate days. Student K.D., aged six, testified that J.F. did bad things in Ms. Howard’s class. He testified that J.F. put her head in her shirt. He testified that the class would sit on the carpet every day for a little while. He testified that sometimes J.F. would stay on the carpet when she was supposed to go to her seat. He said that J.F. got spanked on her back by Ms. Howard with a book. He testified that Ms. Howard hit her on more than one day, and when asked how many days, said “sixteen.” He did not know how he knew it was 16 days. He later testified that Ms. Howard hit her “sixteen times every day.” The father of student J.C.M. testified that he transferred J.C.M. from a Montessori school to Louis Sheffield Elementary because his wife was going to have another baby and that school was closer to their home, which would mean a shorter drive for her. The first day that J.C.M. went to Ms. Howard’s class was February 11, 2013. The parents immediately began receiving “agenda notes” from Ms. Howard saying that J.C.M. was not behaving well. The father testified that J.C.M. did not want to go back to Ms. Howard’s class the next few days and would cry when they dropped him off. The father testified that since J.C.M. had never been a discipline problem and had done well at his prior school, he sent a note in after the second day to schedule a conference with Ms. Howard. The father testified that on the second or third day, J.C.M. came home complaining that his arm hurt, but when questioned as to what had happened, J.C.M. gave different stories. First he said a lady had grabbed his arm in the classroom. When asked “What lady?” J.C.M. said that it was a friend, another student. Later, he said that the injury had happened on the playground. Still later, he said that the injury was caused by his grandfather. The father was confused by these different answers. When the parents received no response to the request to meet with Ms. Howard, the parents went to the school and met with Ms. Connor, who advised them that Ms. Howard was no longer in the classroom, but she did not tell them why. Since J.C.M. now had a new teacher, his parents did not ask that he be moved to another class. Student J.C.M., aged six, testified that he had been moved into Louis Sheffield Elementary in the middle of the school year and only had Ms. Howard as his teacher for a few days. J.C.M. testified that on one of those days, “I was in the door and then I -- I didn’t kicked it. I didn’t kicked it, I touched it with my feet.” He testified that Ms. Howard grabbed him and put him by her desk or table and that his “arm hurted for a little bit –- a little bit long.” He testified that he saw Ms. Howard hit J.F. on the head with a book because she was not writing when she was supposed to be writing. He testified that on a later day Ms. Howard also hit him on the head with a book when he was on the rug, but he forgot if he was supposed to be on the rug or not. Ms. Howard testified at hearing that she never put her hands on any of the students. She did not know why the children would say that she had, except that they had been coerced to say it. She testified that she had been under a doctor’s care and that she had had back surgery and that her medical condition affected her ability to lift or throw items. She testified she could not bend over or lift heavy objects because it probably would have torn her sutures. She testified that she had been under a doctor’s care since January 30 and that it took her until February 14, the day she was reassigned, to recover. She testified that not only was it not in her character to hit a child, she was physically incapable of doing so at the time. The testimony of Ms. Connor that the kindergarten children had no opportunity to coordinate their statements and that they did not even know in advance why she wanted to talk to them is credited. Ms. Connor’s notes as to what each child told her supplement and corroborate the testimony of the children later at hearing. Although the direct testimony as to Ms. Howard’s actions all came from these young children, they were capable of observing and recollecting what happened in their kindergarten class and capable of relating those facts at hearing. Their responses to questions at hearing showed that the children had a moral sense of the obligation to tell the truth. There was no objection from Respondent as to the children’s competency, and they were competent to testify. These young children’s accounts of events were sufficiently credible and corroborative to prove that Respondent struck J.F. with a book on multiple occasions. There was credible testimony that J.F. was struck on her legs with a book when she would not get down on the carpet as she was supposed to, was struck on her back with a book when she would not get up off of the carpet as she was supposed to, and was struck on the head with a book when she would not write as she was supposed to. These physical contacts took place in front of other students. While the exact number of times she was struck was not clear, the testimony that it was deliberately done and was constantly repeated is credited. Ms. Sonita Young is the chief human resource officer of Duval County Schools. She reviewed Ms. Howard’s personnel file in making her recommendation to the Superintendent that Ms. Howard be suspended without pay pending termination. Ms. Howard’s employment record, including both performance issues and disciplinary issues, was considered in determining the appropriate recommendation to be made to the Superintendent and ultimately to the Board. A Notice of Termination of Employment Contract and Immediate Suspension without Pay from her position as a kindergarten teacher at Louis Sheffield Elementary was presented to Ms. Howard on March 27, 2013. The Notice alleged that Respondent had violated certain provisions of the Code of Ethics, contained in Florida Administrative Code Rule 6A-10.080, and a Principle of Professional Conduct for the Education Profession in Florida, contained in rule 6A-10.081. Ms. Howard challenged the grounds for her termination and sought a hearing before an administrative law judge with the Division of Administrative Hearings. The rules cited above were adopted by the State Board of Education and relate to the public schools or the public school system. Rule 6A-10.081 was renumbered, but is substantively identical to the rule cited to Ms. Howard earlier in her May 17, 2004, Written Reprimand. Ms. Howard was well aware of her responsibility to protect students from conditions harmful to learning or to students’ mental or physical health or safety, because she had previously been disciplined for failing to do so. Ms. Howard’s actions in striking J.F. with a book failed to protect her students from conditions harmful to their mental and physical health and safety in violation of rule 6A- 10.081. Ms. Howard’s constantly repeated actions in striking J.F. constitute persistent violation of the rule and are cause to terminate her employment as a teacher. Ms. Howard’s deliberate actions in striking J.F. constitute willful refusal to obey the rule and are cause to terminate her employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Duval County School Board enter a final order terminating the employment of Beverly L. Howard. DONE AND ENTERED this 15th day of October, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 15th day of October, 2013.
The Issue The issue is whether Respondent violated specified Miami- Dade County School Board rules, giving Petitioner just cause to suspend Respondent for five work days without pay.
Findings Of Fact The Parties Petitioner is a school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, pursuant to article IX, section 4(b) of the Florida Constitution, and section 1012.23, Florida Statutes.1/ Respondent is a 27-year teacher employed by the Miami- Dade County Public Schools ("M-DCPS"). For the first 24 years of his career, Respondent taught adult vocational classes. For the past three years, Respondent has taught at Miami Lakes Educational Center ("Miami Lakes"). He is a television production teacher, teaching students entry-level television production skills to prepare them for careers in the television industry. Background of this Proceeding At all times material, Respondent's employment was governed by the collective bargaining agreement between M-DCPS and the United Teachers of Dade, Petitioner's rules and policies, and Florida law. This matter had its genesis in late 2010, when two or three female students complained to Miami Lakes Assistant Principal Michael Tandlich that they felt uncomfortable in Respondent's classroom, specifically because Respondent touched them. In response to the complaints, Mr. Tandlich took written statements from approximately ten students in Respondent's class.2/ He took the statements to the Miami Lakes principal. As a result, the school initiated an investigation of Respondent's actions regarding the students in his class. Once the investigation was complete, the matter was referred to Petitioner's Office of Professional Standards ("OPS") for a comprehensive review of all information related to the matter. On March 1, 2011, Milagros Hernandez, District Director for OPS, sent Respondent a letter stating that as a result of the investigation, "[t]he initial investigative findings indicate that Probable Cause has been established for the allegation of violation of School Board Rule 6Gx13-4.109, Employee Student Relationships. Probable cause is defined as '[b]ased upon an evaluation of the evidence, it is more likely than not the alleged act occurred.'" On March 8, 2011, OPS conducted a Conference-for-the- Record ("CFR"). Respondent and Ms. Hernandez were among the attendees. The CFR is a fact-finding conference held to discuss the incident and to afford the subject of the investigation the opportunity to tell his or her side of the story. Following the CFR, OPS sent a letter to Respondent, dated May 4, 2011, advising him that OPS recommended that he "be suspended without pay for 5 workdays for violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4A-1.213, Code of Ethics " On May 11, 2011, Petitioner suspended Respondent for five work days without pay for alleged violation of the above- stated rules.3/ Incidents Giving Rise to Alleged Violations A.S. is a female student in Respondent's television production class. She is in her junior year of high school at Miami Lakes. A.S. testified that Respondent touched her on the shoulders on more than one occasion, the touching made her feel uncomfortable, and she told him to stop. On one occasion when Respondent touched her on the shoulders, A.S. yelled at Respondent, "Stop touching me, you pedophile!" or something to that effect. She testified that Respondent did not touch her on any part of her body other than her shoulders, and has stopped touching her. Testimony was elicited from A.S. and another student, J.G., establishing that A.S. is overly-dramatic, blows things out of proportion, and acts out in class in order to be the center of attention. The evidence also established that A.S. may have some animus toward Respondent because he is much stricter and has set much higher academic and behavioral standards than did his predecessor, and does not tolerate A.S's disruptive behavior in class. J.C. is a female student in Respondent's class, and is A.S.'s friend. She is in her junior year of high school at Miami Lakes. J.C. testified that Respondent sometimes touched her on the shoulders, and that once, Respondent touched her dress at about mid-thigh level. The touching made her uncomfortable, but she never asked him to stop. Respondent did not touch her on any other part of her body. She acknowledged that Respondent's conduct likely was meant as complimentary and encouraging. J.C. testified that Respondent had made the class much more demanding than had his predecessor, and that her classmates and friends had discussed their unhappiness with the change. She acknowledged that around that time, some students went to the assistant principal and complained that Respondent was touching students and making them feel uncomfortable. J.G. is a male student in Respondent's class. J.G. testified that Respondent is a very strict teacher and that his class is very demanding "in a good way." J.G. testified that Respondent is very respectful of his students and encourages them during class, verbally and by patting them on the back or touching them on the shoulders. He treats male and female students the same in that regard. J.G. has never seen Respondent touch any of his students, male or female, in an inappropriate manner. J.G. stated that Respondent is a very professional teacher. Respondent also presented the testimony of Dr. Angela Thomas Dupree, Vice Principal at Lindsay Hopkins Technical Education Center. Before assuming her current position, Dr. Dupree served at Miami Lakes for 12 years as an assistant principal and a vice principal. For approximately ten of her 12 years at Miami Lakes, she worked with Respondent as his direct supervisor and observed Respondent interacting with his students. She testified that he was very knowledgeable and always engaged in the classroom, and that he treated students with respect and dignity. She never observed, and was not aware of, any instances in which Respondent did not honor the integrity and retain the respect of his students. During her time in working with Respondent, he always conducted himself in a manner that reflected credit on him and on the school system. Respondent testified on his own behalf. Respondent's goal in teaching the television production class is to prepare his students to enter the workforce in the television production industry. His classes are structured according to the grade level of the students in the class. For his higher level classes (i.e., junior and senior classes), students are given assignments for the day, then move into different areas to work on their specific assignments. Respondent supervises the students by walking back and forth between the work areas to make sure everyone is on task. One studio is very small, so it is not unusual for Respondent to walk up behind students when they are working and to touch them as he is showing them how to perform a task or use the computer. Respondent also encourages his students, verbally, by patting them on the back or touching their shoulders, and by giving them "high five." Respondent testified that in one of his college communication courses, there was discussion about the importance of "breaking the shield" that each person has, in order to enhance interpersonal communication. Respondent noted that is often why people shake hands. Respondent testified that he tries to "break the shield" with his students, in part by touching them, in order to more effectively communicate with them. Touching always has been a part of the way Respondent teaches and conducts his class, until this incident. Respondent testified that he did touch A.S. on her shoulders. On the day on which A.S. called Respondent a "pedophile," A.S. had been doing her homework for another class while in Respondent's class, and Respondent had asked her to stop. She ignored Respondent's request. Respondent was lecturing and walking around the studio, and the students' chairs and desks were arranged in the middle of the studio. As Respondent was walking around the studio, he observed A.S. continuing to do her homework despite being asked to stop. He walked up behind her and put his hands on her shoulders to get her to stop. A.S. jumped up and yelled at him. Respondent testified that he touched A.S. on her shoulders, and, on another occasion, may have touched her hair, but that he did not touch her on any other part of her body. Respondent recalled touching J.C.'s dress. On the day in question, the students were wearing professional clothing, rather than their usual uniforms, as part of a "dressing for success" program being conducted at the school. Respondent was sitting down and J.C. was standing next to him. He touched the skirt of her dress and complimented her on her appearance. Respondent testified that he only meant to compliment her, and that she did not appear to be uncomfortable. Respondent testified that he never has inappropriately touched students, and that when he has touched students, it has never been with intent to do anything wrong. He acknowledged that he understands the difference between touching adult students and minor students while encouraging them in their class work. Assistant Principal Michael Tandlich testified that Petitioner's policy is to prohibit the touching of students in any way; however, Mr. Tandlich was unable to identify any such policy or provision in Petitioner's rules. He also testified that he and the teachers at Miami Lakes routinely touch students——which he acknowledged would constitute widespread violation of such a policy, if one existed. Finally, he testified that he considers touching of students other than a handshake to be inappropriate——contradicting his previous testimony that there is an absolute prohibition on touching students. Mr. Tandlich testified that teachers are informed, in the first meeting with school administration personnel at the beginning of the school year, regarding Petitioner's policies. However, Respondent credibly testified that he never was told that all touching of students is prohibited.4/ IV. Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213 Petitioner's rule 6Gx13-4A-1.21, "Responsibilities and Duties," provides in pertinent part: I. Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a matter that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive or profane language in the workplace is expressly prohibited. Petitioner's rule 6Gx-4A-1.213, "Code of Ethics," provides in pertinent part:
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order rescinding the suspension of Respondent from his employment for five days without pay, and paying Respondent’s back salary for the five-day period for which he was suspended. DONE AND ENTERED this 28th day of November 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 28th day of November, 2011.
