The Issue The issues in this case are whether Respondent violated Section 231.28(1)(i), Florida Statutes (2000), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e), by using unauthorized methods of disciplining a student before allowing the student to visit the school nurse. (All chapter and section references are to Florida Statutes (2000) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for regulating certified teachers in the state. Respondent holds Florida Educator's Certificate Number 416888. Respondent's Florida teaching certificate is valid through June 30, 2003. Respondent is employed as a Special Education Teacher at Moore Haven Junior High School (the "school") in the Glades County School District (the "District"). Respondent has a long-standing practice in his classroom of disciplining male students by making them do push-ups and hold books while their arms are extended in front of them. Both practices violate rules and policies of the school and the District. Respondent had actual or constructive knowledge that discipline by push-ups and holding books violated the policies of the school and the District. The student handbook distributed to each teacher, including Respondent, prescribed the authorized methods of discipline. None of the authorized methods included pushups or holding books. Respondent submitted some evidence that administrators in the school deviated from officially stated policies and rules by condoning unauthorized methods of discipline such as pushups or holding books. However, the evidence submitted by Respondent was less than a preponderance of the evidence and was adequately refuted by evidence submitted by Petitioner. All of the students in Respondent's class are exceptional education students. Each student has an identified disability. Any method of discipline other than that authorized by applicable policies and rules must be clearly stated and authorized in each student's individual education plan ("IEP"). C.W. was an exceptional education student in Respondent's class on February 9, 2000. The IEP for C.W. did not authorize any alternative methods of discipline. During class on February 9, 2000, Respondent approached C.W. because C.W. had his head on his desk during class. Respondent instructed C.W. to do his assignment. C.W. complained that he felt sick and requested to see the school nurse. Respondent and C.W. exchanged brief repartees. The evidence is less than clear and convincing that during the exchange Respondent prevented C.W. from going to the nurse's office. Some witnesses testified that Respondent refused C.W.'s request to go to the nurse's office. Other witnesses in the classroom during the exchange testified that Respondent initially instructed C.W. to go to the nurse's office but that C.W. refused either to go to the nurse's office or to do his assignment. The testimony of all of those witnesses was credible. Because C.W. refused to do his assignment in class, Respondent instructed C.W. to stand at the back of the class with his arms extended in front of him. C.W. complied with Respondent's instruction. Respondent successfully completed the alternative method of discipline that required C.W. to stand at the back of the class. However, Respondent failed to effectuate other unauthorized methods of discipline that Respondent attempted. When Respondent placed books in C.W.'s arms, C.W. did not hold the books in his arms. Rather, C.W. dropped his arms, and the books fell to the floor. When Respondent instructed C.W. to do push-ups, C.W. refused Respondent's instruction. C.W. left Respondent's classroom under his own volition and went to the office of the school nurse. The evidence does not reveal the amount of time that transpired between Respondent's initial instruction for C.W. to stand at the back of the class and the time when C.W. left for the nurse's office. Therefore, there is no evidentiary basis to quantify the delay in medical attention. When C.W. arrived at the nurse's office, the school nurse determined that C.W. was feverish, suffered chills, and that his complexion was "splotchy." The nurse telephoned C.W.'s parents. The parents took C.W. home and subsequently to the hospital. The examining physician at the hospital diagnosed C.W. as suffering from mastoiditis. The physician admitted C.W. to the hospital for two days and successfully treated the medical condition. The medical condition represented an exigent threat of harm to C.W.'s physical safety within the meaning of Rule 6B-1.006(3)(a). As previously found, however, the evidence is less than clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect the student from a medical condition that was harmful to the student's physical safety. Conflicting evidence was less than clear and convincing evidence that Respondent delayed C.W.'s attempt to see the school nurse or the length of any delay allegedly caused by Respondent. C.W. left Respondent's class under his own volition and went directly to the nurse's office. The conflicting evidence was less than clear and convincing that any delay between Respondent's initial contact with the student and the student's departure to the school nurse was significant enough that Respondent failed to make a reasonable effort to protect C.W. from conditions harmful to the student's physical safety. The evidence is clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect C.W. from conditions harmful to learning. The methods of discipline attempted by Respondent were harmful to C.W.'s ability to learn, violated C.W.'s IEP, and violated school policy. For the same reasons, Respondent violated Rule 6B-1.006(3)(e) by intentionally exposing a student to unnecessary embarrassment and disparagement. Administrative staff at the school conducted a full investigation of the matter. Upon conclusion of the investigation, the District issued a written letter of reprimand to Respondent. The letter of reprimand issued by the District is disciplinary action by Respondent's employer. The judicial doctrine of double jeopardy does not preclude disciplinary action by Petitioner against Respondent's license. No evidence shows that Respondent has any prior disciplinary history by either Petitioner or the District. Petitioner seeks to have Respondent's teaching certificate suspended for 12 months. However, Petitioner's proposed penalty is based on the premise that Respondent committed all of the allegations in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Section 231.28(1)(i) and Rule 6B-1.006(3)(a) and (e), and suspending Respondent's teaching certificate in Florida for six months. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY 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 2nd day of February, 2001. COPIES FURNISHED: Ron Weaver, Esquire Ron Weaver & Associates 528 East Park Avenue Tallahassee, Florida 32301-1518 Kathleen M. Richards, Executive Director Educational Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Carl Zahner, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399 Moses N. Mwaura 214 Tenth Street Post Office Box 856 Moore Haven, Florida 33471
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary). For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant Principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for termination of employment. A copy of the written reprimand was provided to Ms. Maynard. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred. PMPs During the 2006-2007 School Year Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s). The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE. Cypress Elementary had a Reading Coach, Jennifer Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction. Ms. Portman directed Ms. Murphins to contact Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by Ms. Maynard. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL). Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns. Dr. Harrison provided a copy of both reports to Ms. Maynard. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time. Also, included in the findings by Dr. Quintana were: the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card, was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as Principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs. A finding of fact is made that the directives were reasonable and lawful. Interaction with Students and Parents Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues. Ms. Maynard was heard by staff and teachers yelling at her students. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from Ms. Maynard's classroom and had no doors. On one occasion, Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students. Some teachers reported the yelling to Ms. Portman in writing. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to Ms. Portman in writing regarding Ms. Maynard yelling at her students. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act. Ms. Portman was not aware that the parent had filed a complaint against her with DOE. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things, Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child. Interaction with Staff (Non-Teachers) A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to Ms. Williamson with any problems that they had involving the cafeteria. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson. Ms. Williamson felt intimidated by Ms. Maynard. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers. Another cafeteria situation occurred in December 2006. A paraprofessional, who was in charge of the section where Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted. Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals. Interaction with Staff (Teachers and Administrators) Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns, Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader, Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary. Ms. Vaughn's personality is to avoid confrontation. Ms. Vaughn had an agenda for each team meeting. During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings. An administrator began to attend team meetings. Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman designated Ms. DiVeronica to attend the team meetings. Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice. At one team meeting attended by Ms. Portman, Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention. Ms. Portman dismissed the meeting. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or Ms. DiVeronica attended the meetings. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her (Ms. Maynard's) own personal interest, which resulted in long conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when Ms. Maynard became agitated. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and strongly encouraged some of the students to go to Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard. Excessive Emails Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary. Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails. None of Ms. Maynard's emails threatened teachers, staff, or students. Additional Directives During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things, Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure." Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers. Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct. Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed. On January 9, 2007, a Child Study Team (CST) meeting was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were Ms. Maynard and Ms. Castiglione, who, at that time, was an Intern Principal. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time Intern Principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent, regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised Ms. Maynard that any further failure to perform consistent with the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand. After the Written Reprimand of January 17, 2007 Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard. Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees at the meeting included, among others, Ms. Castiglione; Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria; (2) yelling at both the principal and assistant principal on December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and (5) accusing the principal of lying to a parent at a conference. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without Mr. Melita's authorization. The SIU investigator assigned to the case was Frederick Davenport. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with Ms. Maynard in private in the conference room and advised her of his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening. Investigator Davenport did not immediately follow Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot. After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment. The Flyer On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials. Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting. Filing Various Complaints with Investigative Agencies Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints. Contract Status At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, a fact which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract. Employment Requiring a Teaching Certificate At the time of hearing, Ms. Maynard had not found employment requiring a teaching certificate since being suspended, without pay and benefits, by the School Board on or about March 18, 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education enter a final order: Finding that Doreen Maynard committed Counts 2 (only as to gross immorality), 3, 4, 5, 7, 10, 12, 15, and 16; Dismissing Counts 1, 6, 8, 9, 11, 13, 14, and 17; and Suspending Doreen Maynard's educator's certificate for three years, with denial of an application for an educator's certificate for the three-year period, and, after completion of the suspension, placing her on probation for one year under terms and conditions deemed appropriate by the Commissioner of Education. DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2011.
The Issue Case Number 95-l967: Whether the Respondent should be dismissed from his employment with the Duval County School Board [School Board] for the violations alleged in the Superintendent's Notice of Dismissal dated April 7, 1995. Case Number 95-l987: Whether the Education Practices Commission [EPC] should revoke or suspend the Respondent's Florida teaching certificate, or impose any other penalty provided by law, for the violations alleged in the Commissioner's Administrative Complaint dated February 23, 1995.
Findings Of Fact The Petitioner takes exception to the findings of fact contained in the Recommended Order at paragraphs 12, 19, and 27, wherein the Hearing Officer found that the evidence did not prove that the Respondent had committed the violations charged as referenced in each finding. This conclusion is not supported by competent and substantial evidence as required by section 120.57(1)(a)10., Florida Statutes. The Hearing Officer was convinced that the altitude of forms utilized by the Respondent in selling the non-insurance products (motor clubs) to Hulan Mitchell, Jenna Chester and Michele Humose demonstrated that they had given their informed consent. However, the Hearing Officer overlooked the blatant misrepresentation and false statement contained in the "premium" receipts issued to each of the insured. Although the Hearing Officer is free to determine the credibility of the witness' testimony, the Hearing Officer cannot ignore or reject unrefuted competent and substantial evidence in the record that clearly and convincingly demonstrates that the premium receipts are a misrepresentation of fact or false statement. No witness testimony is necessary to make this finding. The documents speak for themselves and were not otherwise questioned or refuted. The record unequivocally established the following: Hulan Mitchell - The "premium" receipt (Pet. Ex. "1") issued to Mr. Mitchell indicates a total premium of $378. The actual cost of the "insurance" was $328 with a downpayment of $98 required. See Premium Finance Agreement (Pet. Ex. "1") This is absolutely unrefuted on the record. The premium receipt includes $50 for the cost of the motor club, which is not a policy of insurance and accordingly is not "premium". Also the downpayment required, purportedly for insurance, included $50 for the motor club ($98 + $50 = $148). Furthermore, based on clear documentary evidence in the record, Mr. Mitchell was again subject to a misrepresentation of fact (undisputed) wherein on July 9, 1993 he received a letter (Pet. Ex. "1") threatening to cancel his "insurance" policy because he did not pay a $48 balance due on the motor club. Accordingly the record clearly indicates that the Respondent has made a false or misleading statement with reference to the insurance transaction for Mr. Mitchell. The fact that the Hearing Officer held that Mr. Mitchell knew (despite his testimony otherwise) that he had purchased a motor club, does not negate the fact that the Respondent made a false or misleading statement. JENNA CHESTER - The deceptive premium receipt practice was visited upon Ms. Chester on two occasions. First on February 1, 1994 a "premium" receipt (Pet. Ex. "2") was issued in an amount of $670 for "total premium" due and a required downpayment of $261. The actual cost of the "insurance" was $585 with a required downpayment of $176. See Premium Finance Agreement (Pet. Ex. "2") The "premium" receipt and downpayment included a non-insurance fee for a motor club in the amount of $85. On May 23, 1994 Ms. Chester went to the Respondent to repurchase coverage which had been cancelled. At that time, another "premium" receipt was issued to her in the amount of a "total premium" of $719 and a required downpayment of $286 (Pet. Ex. "2") The actual cost of the insurance was $619 and a required downpayment of $186. See Premium Finance Agreement (Pet. Ex. "2") The additional $100 was for the non-insurance motor club which was sold to Ms. Chester. Although the Hearing Officer held that Ms. Chester knew she was purchasing this motor club (despite Ms. Chester's testimony otherwise) this does not negate the fact that the Respondent has made false or misleading statement in this insurance transaction with Ms. Chester. Michelle Humose - The unrefuted documentary evidence indicates that on May 5, 1994, Ms. Humose was issued a "premium" receipt (Pet. Ex. "3") indicating a "total premium" in the amount of $92 and a required downpayment of $348. The actual cost of the "insurance" was $826 with a required downpayment of $248 See Premium Finance Agreement (Pet. Ex. "3") The additional $100 included in the "premium" receipt was for the non-insurance motor club sold to Ms. Humose. Again despite the Hearing Officer's finding contrary to Ms. Humose's direct testimony that she did not know she was purchasing a motor club, the Respondent has clearly and convincingly made a false or misleading statement with respect to this insurance transaction with Ms. Humose. It is implicit in the Findings of Fact by the Hearing Officer that each referenced transaction took place as described herein. The Hearing Officer merely failed to explicitly state in the Recommended Order that the unrefuted documentary evidence establishes a prima facie misrepresentation of fact. Indeed, the exact factual scenario established herein was determined to constitute a misrepresentation in In the Matter of: Kenneth Michael Whitaker, Case Number 93-L-432DDH (Final Order dated July 3, 1995). It was specifically determined "that the Respondent's standard business practice of combining the costs of insurance overages with the costs of the auto club memberships and then calling such costs "total premium" on receipts issued to customers constituted a misrepresentation and was deceptive." Also, it was further determined "that the Respondent's standard business practice of deducting all or part of the ancillary product fee up front resulted in false statements on other documents that the full downpayment for premium or financing of premium had been made, when in actuality it had not." Whitaker Final Order at pp's 9-10. The Department determined that this activity was a violation of section 626.611(9), Florida Statutes. This finding was also affirmed on appeal in Whitaker v. Department of Insurance and Treasurer, Case No. 95-2702, (21 FLW 1353, Slip Opinion dated June 13, 1996). The court upheld this violation when it summarized the practice in the opinion as follows: Appellant took all or part of the ancillary product from the required premium downpayment and gave the consumer a receipt which listed the full downpayment as "Total Premium". The receipt did not reveal that part of the "premium" went to purchase an ancillary product. Whitaker Slip Opinion at pp's 3-4. This type of fraudulent and deceptive practice also constitutes a violation of section 626.9541(1)(b), Florida Statutes, by placing before the public a representation or statement which is untrue, deceptive or misleading. The Hearing Officer has already considered the unrefuted facts on the record and was clearly in error to make a finding otherwise. Accordingly, pursuant to section 120.57(a)(a) 10., Florida Statutes, which reads in part: 5 The agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the complete record, and states with particularity in the order, that findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. the Department may modify the findings of fact. In this case there was no competent and substantial evidence to make a finding that the Respondent did not make a false or misleading statement with the premium receipts issued in this cause. A review of the entire record demonstrates unrefuted documentary evidence which supports the modified findings of fact contained herein. Therefore, Petitioner's exceptions to findings of fact 12, 19 and 27 are hereby GRANTED. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW The Petitioner takes exception to conclusions of law at paragraphs 30 and 31, based on the Hearing Officer's rejection of unrefuted facts established on the record, i.e., deceptive and misleading premium receipts. Conclusions of Law 30 and 31 are revised to reflect that the premium receipts issued to insureds constitute fraudulent and deceptive practices as well as placing before the public a representation or statement which is untrue, deceptive, or misleading. Conclusion of Law 30 is modified as follows: In this case, the Respondent was charged with violating sections 2.11 (4), 626.611(5), 626.611(7), 626.611(9), 626.611(13), 626.621(2), 626.621(6), 626.9541(1)(b), 626.9541(1)(e), 626.9541(1)(k)1., and 626.9541(1)(z), Florida Statutes. Boiled down to the essentials the Department alleged that Respondent violated the provisions listed above by unlawfully selling insured motor club memberships without their informed consent, made false and misleading statements regarding the coverage provided and falsely represented and illegally required insured to purchase motor club membership as part of their purchase of automobile insurance and that Respondent engaged in the prohibited practice of "sliding" additional coverages or products into the purchase of the insured without the informed consent of the insured. This revision is necessary because the Hearing Officer failed to include sections 626.9541(1)(b) and 62.9541(1)(e), Florida Statutes, as alleged violations. Conclusion of Law 31 is likewise revised as follows: The Department failed to establish by clear and convincing evidence that Respondent attempted to "slide" coverage or ancillary products involved in this case. Likewise, the evidence did not clearly or convincingly demonstrate that Respondent did not obtain the informed consent of her customers prior to selling them the auto club memberships involved here. However, based on the unrefuted evidence in the record, the Respondent has violated sections 626.611(9) and 626.9541(1)(b), Florida Statutes, by issuing "premium receipts" which falsely and deceptively represented "total premium" which included a fee for a non-insurance product, ie. motor club membership. Accordingly, the Respondent is guilty of three counts of violating sections 626.611(9) and 626.9541(1)(b), Florida Statutes. The Petitioner's exceptions to conclusions of law 30 and 31 are-hereby GRANTED. RULING ON EXCEPTIONS TO RECOMMENDATION The Petitioner takes exception to the recommendation that the Administrative Complaint be dismissed. The Penalty Guidelines contained in Chapter 4-231, Florida Administrative Code, should be applied in this case. There are three documented violations (one for each count) of engaging in fraudulent and dishonest practices as prohibited in section 626.611 (9), Florida Statutes, and placing before the public a representation 6r statement which is untrue, deceptive or misleading in violation of section 626.9541(1)(b), Florida Statutes. Under the penalty guidelines, a violation of section 626.611(9), Florida Statutes, requires a suspension of 9 months per count. Under the penalty guidelines, a violation of section 626.9541(1)(b), Florida Statutes, requires a suspension of 6 months per count. Based on Rule 4-231.040, Florida Administrative Code, the highest penalty per count should be assessed, therefore the appropriate penalty is three counts at 9 months for a total suspension period of 27 months. Since the total required suspension exceeds 2 years, the appropriate sanction is the revocation of the Respondent's licenses in accordance with section 626.641(1), Florida Statutes. The violation of section 626.9541(1)(b), Florida Statutes, permits the assessment of an additional fine on top of any other administrative sanction, pursuant to section 626.9521, Florida Statutes. This section permits fines for wilful violations of up to $10,000 per violation not to exceed $100,000. The Petitioner recommends that a fine of $3,000 be assessed against the Respondent. However, insufficient grounds have been demonstrated to justify the assessment of a $3,000 administrative fine. Therefore, Petitioner's exceptions to the recommendation are hereby GRANTED, except for the Petitioner's argument for an additional sanction in the form of a $3,000 administrative fine which is hereby DENIED. PENALTY Rule 4-231.160, Florida Administrative Code, prescribes the aggravating and mitigating factors which the Department shall consider and, if warranted, apply to the total penalty in reaching the final penalty. Aggravating factors in this matter, as delineated in Rule 4-231.160, Florida Administrative Code, are the willfulness of the Respondent's conduct and the existence of secondary violations established in Counts I-III of the Administrative Complaint. Only minimal mitigating factors exist which are outweighed by the aggravating factors. The existence of these aggravating factors would increase the Respondent ` s total penalty, thereby resulting in a higher final penalty. Increasing the Respondent's total penalty would be pointless, however, for section 626.641(1), Florida Statutes, limits a licensee's period of suspension to a maximum of 2 years. The Respondent's 27-month total penalty already exceeds the two-year statutory limit. Consequently, the Department has determined that a revocation of the Respondent's insurance agent license is warranted and appropriate in this matter, and is necessary to adequately protect the insurance-buying pubic. IT IS THEREBY ORDERED: All licenses and eligibility for licensure held by TARA JEANNE SMITH, are hereby REVOKED, pursuant to the provisions of sections 626.611, 626.621, 626.641(2) and 626.651(1), Florida Statutes, effective the date of this Final Order. As of the date of this Final Order, the Respondent shall not engage in or attempt or profess to engage in any transaction or business for which a license or permit is required under the Florida Insurance Code, or directly or indirectly own, control or be employed in any manner by an insurance agent or agency. Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Final Order pursuant to section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a Notice of Appeal with the General Counsel, acting as the agency clerk, at 612 Larson Building, Tallahassee, Florida 32399-0333, and a copy of the same and the filing fee with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order. DONE and ORDERED this 4th day of September, 1996, in Tallahassee, Florida. BILL NELSON Treasurer and Insurance Commissioner COPIES FURNISHED: Tara Jeanne Smith 2588 Panther Creek Road, Apt. A Tallahassee, Florida 32308-5628 Charles J. Grimsley, Esquire Charles J. Grimsley and Associates, P.A. 1880 Brickell Avenue Miami, Florida 33129 Diane Cleavinger, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Stephen C. Fredrickson, Esquire Division of Legal Services 200 E. Gaines Street Tallahassee, Florida 32399-0333
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, as to DOAH Case Number 95-1987, the Respondent be found guilty of violating Sections 231.28(1)(i), Florida Statutes, by violating Rules 6B-1.006(4)(b) and (5)(a), (g), (h), and (i), Florida Administrative Code. It is further recommended that: Respondent's teaching certificate be revoked for a period of one year. Respondent shall pay the EPC a fine in the amount of $2,000.00. Prior to being recertified in the State as an educator, Respondent shall successfully complete one three-hour college level course in the area of ethics. Should the Respondent be recertified as an educator in the State of Florida after his period of revocation, Respondent shall be placed on probation for a period of three years, under such terms and conditions as the EPC may prescribe. During the period of probation, Respondent's scope of practice shall be restricted so that he shall have no administrative authority over any employee. Respondent receive a letter of reprimand. IT IS FURTHER RECOMMENDED that, as to DOAH Case Number 95-1967, the Respondent be found guilty of violating Sections 231.28(1)(i), Florida Statutes, by violating Rules 6B-1.006(4)(b) and (5)(a), (g), (h), and (i), Florida Administrative Code. It is further recommended that: 1. The School Board of Duval County take such actions as it deems appropriate to include suspension and discharge, however, because of the lack of general public knowledge, that the Respondent be considered for reinstatement after having completed any penalties imposed by the Department, and being recertified. DONE and ENTERED this 24th day of May, 1996, in Tallahassee, Florida. STEPHEN F. DEAN, 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 May, 1996. APPENDIX TO RECOMMENDED ORDER CASE NOS. 95-1967 and 95-1987 The parties submitted proposed findings of fact which were read and considered. The following sates where the findings were adopted or where they were rejected: DOE'S FINDINGS RECOMMENDED ORDER Paragraphs 1-18 Adopted as 1-18 Paragraph 19 Conclusion of law Paragraphs 20-46 Adopted, although renumbered in some instances. DUVAL COUNTY'S FINDINGS Duval County's findings were a verbatim repetition of the DOE's findings. TASKETT'S FINDINGS RECOMMENDED ORDER Paragraphs 1-22 Adopted or subsumed in the findings. Paragraphs 23 and 24 Are not necessary to the factual conclusion reached. Paragraph 25 Adopted or subsumed in the findings. COPIES FURNISHED: Ronald G. Stowers, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, FL 32399-0400 Thomas E. Crowder, Esquire 600 City Hall 220 East Bay Street Jacksonville, FL 32207 John M. Merrett, Esquire 220 East Forsyth Street Jacksonville, FL 32202 Karen Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 325 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, FL 32399-0400 Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, FL 32207-8154
The Issue The issues in this case are whether Respondent, Thomas Masters, violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Amended Administrative Complaint; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Based on the evidence and testimony presented at the final hearing, the following Findings of Fact are made: Background Respondent holds Florida Educator’s Certificate 743504, covering the areas of Elementary Education and Physical Education, which is valid through June 30, 2024. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is then responsible for filing a formal complaint and prosecuting the complaint pursuant to chapter 120, if the educator disputes the allegations in the complaint. Since 1994, Respondent has been responsible for the care and development of elementary school-aged children. He became certified to teach elementary education in Florida in 1995, and at that time began teaching physical education (P.E.) for the Archdiocese of Miami. In approximately 1999, Respondent was certified in P.E. He taught P.E. for 19 years and theology for one year. He was the Athletic Director for 18 of those 20 years. In 2015, Respondent relocated from South Florida to St. Johns County to assist with the care of his mother after his father’s passing. He taught P.E. in the St. Johns County School District (SJCSD) from 2015 through 2019. At the time of the allegations in the Amended Administrative Complaint, Respondent was employed as a P.E. Teacher at W.D. Hartley Elementary School in the SJCSD. Mr. Masters also served as the volunteer coach for the Gamble Rogers Middle School girl’s softball team, also known as the Gamble Rogers Stingrays. The SJMSAA is an independent, private non-profit corporation. SJMSAA uses district middle school names and facilities under a license agreement with the district. SJMSAA is solely responsible for the operation of the SJMSAA middle school sports programs and their individual teams. The organization’s mission is to promote community citizenship, good sportsmanship, and physical and mental development through healthy, organized competition’ and team work for 12 to 15-year-old middle school students. SJMSAA is responsible for operation of the sports programs for 13 middle school sports teams and seven different sports. Thus, all middle school students from various schools within the district may participate in sports. The sports the SJMSAA oversees are: football, baseball, softball, golf, tennis, cheer, and soccer. Middle school students J.M., H.B., and S.P. were on the SJMSAA girls’ softball team Respondent coached. Allegations in the Complaint The allegations in the Amended Administrative Complaint took place during softball practice and did not involve any of Respondent’s students at Hartley. The allegations stem from a complaint made by the mother of J.M. (softball team member). At the time of the incident, J.M. was a middle school student at Gamble Rogers and a member of the softball team within SJMSAA. She was 13 years old at the time of the incident. J.M. is now a 15-year-old high school student. On April 3, 2018, J.M. told Mr. Masters that her stomach hurt because she did not have “[any] food in her stomach.” Mr. Masters then asked other players if they had any food that he could give J.M. Since none of the players had food, Mr. Masters gave J.M. a soda from his car to help her feel better. Shortly after she drank the soda, J.M. returned to practice. Before practice, Mr. Masters told the girls that they must do push-ups if they drop the ball. While throwing the ball with her partner, J.M. dropped the ball. J.M. then positioned herself to do the push-ups. Since the push-ups were modified, her hands and knees were on the ground. J.M. testified that while doing the push-ups, Mr. Masters kicked her in the stomach and placed his foot on her back. She was confused and embarrassed because she did not expect him to kick her. J.M. didn’t say anything after the incident, but rather, she looked at Mr. Masters with a shocked facial expression. Shortly thereafter, she returned to practice. She remained in practice for the duration, which was approximately 1.5 to two hours. J.M. stated that the kick caused her stomach to hurt more, increasing the pain to 9 out of 10, with 10 being the highest level of pain. However, there was no evidence offered to establish the level of stomach pain before the incident. J.M.’s teammates, S.P. and H.B., witnessed the incident. Before practice, J.M. told S.P. that she was not feeling well. Later, during warm-ups, she was standing nearby when J.M. dropped the ball. While J.M. was doing the requisite push-ups, S.P. witnessed Mr. Masters kick J.M. in the stomach. S.P. was shocked and believed Mr. Masters’ actions were wrong. S.P. did not see Mr. Masters place his foot on J.M.’s back. H.B. did not testify at the hearing. However, she provided a written statement to described what she witnessed on the date of the incident. Similar to S.P., H.B. stated that Mr. Masters kicked J.M. in the stomach while she was doing push-ups. Although the statement is hearsay, it further explains and is corroborated by admissible evidence in this matter. S.W. arrived late to practice to pick-up her daughter, J.M. S.W. recalled that her daughter seemed as if she was not as engaged as the other team members. J.M. told her mother that Mr. Masters kicked her and placed his foot on her back while she was doing push-ups. S.W. observed that her daughter was “very upset” about the incident. S.W. believed Mr. Masters’ placement of his feet on J.M. was disrespectful. S.W. contacted the SJMSAA commissioner to report what happened to her daughter. Justin Palesotti, the President of the SJMSAA, received a complaint from S.W. that Mr. Masters had inappropriately touched her daughter. Mr. Palesotti approached Mr. Masters before a softball game and asked him about the complaint. Mr. Masters told Mr. Palesotti that he swept his foot underneath J.M. while she was doing push-ups to confirm the student had space between her stomach and above the ground. After the discussion, Mr. Palesotti asked for Mr. Masters’ resignation, and he complied. Mr. Masters disputes J.M.’s complaint. He testified that J.M. arrived at practice and she did not look well. She told Mr. Masters that she was not feeling well because she had not eaten all day. He did not have snacks and none of the other girls had snacks, so he gave her a soda that he had in his car. After giving her the soda, he gave her the option to return to practice when she could. During warm-ups he told the girls that they would need to do three push-ups if they dropped the ball. J.M. and other players had to do push-ups. When J.M. had to do push-ups she had already drunk the soda. As J.M. was doing push-ups, he was being silly to help change her mood, and “pretended to fake kick her under her stomach.” J.M. unexpectedly “came down onto his foot.” She then gave him a look to communicate, “are you kidding me?” He was not trying to harm J.M., but, rather, he was “kidding” with her to lighten her mood. His attempt to make J.M. feel better was not well received. While he acknowledged that his foot made contact with J.M.’s stomach, he denied placing his foot on J.M.’s back. Character Witnesses The allegations were a surprise to Respondent’s character witnesses who disagreed that he would kick a student. Ms. Ivey Brown, the assistant softball coach at the time, testified that Mr. Masters enjoyed coaching. She had never witnessed Respondent kick a student. Likewise, John Samuels who coached basketball with Mr. Masters for a few weeks at Hartley only observed positive interactions with students. Mr. Samuels described Mr. Masters as a compassionate coach who helped improve the player’s self-esteem. Ms. Gonzalez, another assistant coach and former player coached by Respondent, testified that Respondent was always positive and encouraged players. Even at a time when players were disciplined, including herself, he spoke to them with compassion. St. Johns County Circuit Court Judge Mathis (ret.) met Mr. Masters in 2016. Judge Mathis volunteered to help coach the basketball team, of which his grandson was a member, and observed Respondent regularly interact with the students. Judge Mathis testified that Respondent had positive interactions with students, even the students who may have been difficult. He also had a reputation for helping people. Disciplinary History Although he had favorable experiences about other students, this is not the first time Mr. Masters has been subject to allegations of inappropriate contact with students. Mr. Masters was disciplined for a prior incident in Richard Corcoran, as Commissioner of Education, Case No. 19-6071PL, (Fla. DOAH Apr. 28, 2020; Fla. DOE Oct. 7, 2020), for his actions, filed on September 16, 2020.2 Respondent was issued a reprimand, placed on probation for 12 months, and required to pay administrative costs of $150.00. Ultimate Findings of Fact Petitioner has established by clear and convincing evidence that Respondent’s foot made contact with J.M.’s stomach. While the undersigned acknowledges J.M.’s recollection of Mr. Masters placing his foot on her back, the other witnesses present did not recall this and Respondent disputes it. While the possibility exists that Mr. Masters placed his foot on J.M.’s back, J.M.’s uncorroborated statement is not sufficient, without more, to establish by clear and convincing evidence that Respondent placed his foot on her back.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rule 6A- 10.081(2)(a)1., that Respondent receive a Reprimand, and that he be placed on suspension for 30 days, followed by probation for a period of 12 months following reinstatement, with conditions of probation to be determined by the Education Practices Commission. DONE AND ENTERED this 4th day of January, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 4th day of January, 2021. COPIES FURNISHED: Lisa Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Heidi B. Parker, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 2nd Floor 231 East Colonial Drive Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in this case is whether Respondent, Harriett S. Parets, committed the offenses alleged in an Administrative Complaint issued by Petitioner, and dated July 27, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact 1. Petitioner filed his Administrative Complaint on July 27, 2004, alleging certain material allegations and Statutory and Rule violations and seeking an appropriate penalty pursuant to the authority provided to the Education Practices Commission in Sections 1012.795(1) and 1012.796(7), Florida Statutes. Respondent filed her Election of Rights and requested a formal hearing on August 23, 2004. The parties’ previous attempt at resolving this matter met without success, and a formal hearing was requested which was scheduled for March 1 and 2, 2006. 2. At all times material to the allegations of this case, Respondent, Harriett Parets, was employed as an elementary school teacher in the Broward County School District. 3. Respondent holds Florida Educator’s Certificate Number 592721. Her certificate covers the areas of elementary education and English for Speakers of Other Languages. It is valid through June 30, 2008. 4. Prior to the incidents complained of in this cause, Respondent taught in the Broward County School District without discipline for six years. Respondent was in her seventh year with the system when the allegations of this case arose. 5. Respondent had no prior disciplinary concerns. 6. Respondent had received satisfactory evaluations every year. 7. Respondent had administered the Florida Comprehensive Assessment Test (FCAT) on five prior occasions without incident. 8. During the 2002 school year Respondent was assigned to teach fourth grade at McNab Elementary School (McNab). Her class was scheduled to take the FCAT on March 11 through 13, 2003. 9. Prior to the dates of testing, teachers at McNab were instructed to view a resource video. The video instructed and directed the teachers in the administration of the FCAT. It included information not previously addressed by the video. 10. Additionally, teachers at McNab were provided testing procedures to guide the administration of the FCAT. Teachers were to follow specifically worded texts in the directions provided to their students. A verbatim reading of the text was required by the FCAT testing protocols. Additional comments outside the text were prohibited. 11. Teachers at McNab were advised on the importance of the FCAT results, the requirement of adhering to the testing protocols, and the opportunities available to the school should McNab students perform well on the FCAT. 12. In fact, as McNab had received an “A” rating in the past (following good FCAT results), the school had received special funding tied to that performance. 13. In connection with the FCAT testing at issue herein, McNab administrators took precautions to provide test administrators with the schedule of the exam dates, the materials needed to administer the test, and training in the proper administration of the FCAT. Testing protocols were reviewed. 14. Proctors also received training regarding the administration of the exam. Each class was assigned a proctor along with the teacher who was primarily responsible for the test administration. 15. In this case, the proctor and several students verified comments from Respondent that deviated from the scripted instructions. 16. Contrary to the scripted instructions Respondent looked at the students’ test booklets, told more than one student to re-examine their work for errors, and pointed out a wrong answer. Respondent announced to the class as a whole that she was “seeing a lot of wrong answers.” 17. The Respondent was not authorized to make comments during the administration of the test. More important, the Respondent was not permitted to assist by any means the students who were taking the FCAT. 18. Respondent admitted that she did not watch the FCAT training video (known in this record as the BECON video). Respondent knew or should have known that she had been directed to watch the video. 19. Respondent admitted that she made comments to students that were beyond the scripted instructions provided in the teacher’s testing manual. 20. The issues of Respondent’s comments to the class and the level of assistance she had provided to students came to light when a student told her mother of Respondent’s conduct. The mother then contacted a school administrator to make the alleged improprieties known. 21. After determining that Respondent had assisted students in her class, administrators invalidated the test results from Respondent’s class. 22. As a result of the invalidation, the school did not have a sufficient number of test results to qualify as an “A” performing school under the state guidelines. Had the results from Respondent’s class been included, the school might have qualified and received recognition as it had in the past. 23. Following a formal hearing on the identical facts, the school district suspended Respondent for thirty (30) days. 24. Respondent has proctored the FCAT every year since the incident, including this year, without problem. 25. The District found that a 30-day suspension plus training was sufficient discipline.
Conclusions Stipulated Conclusions. 26. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. 27. Petitioner bears the burden of proof in this case to establish the allegations in the Administrative Complaint by clear and convincing evidence. Petitioner has met that burden. 28. Section 228.301, Florida Statutes, governs FCAT security and prohibits anyone from coaching students or assisting them in any manner in the administration of the exam. 29. Additionally, Florida Administrative Code Rule 6A- 10.042 prohibits interfering “in any way” with persons who are taking the FCAT in order to assist their performance. Clearly, Respondent inappropriately assisted students in her classroom. Had she watched the BECON video or more closely read the FCAT manual, she would have known that the comments and actions she made were inappropriate. The importance of test security was well known to all teachers. 30. By deciding to only suspend Respondent (as opposed to dismissal), Petitioner has recognized her past contribution to the school district. That Respondent blames others for her violation of testing protocols is regrettable. Petitioner has established that Respondent violated testing protocols and should be disciplined. 31. Respondent has violated the statutory rule violations alleged in Counts 1 through 4 of the Administrative Complaint. Other Conclusions. 32. Section 1012.795(1), Florida Statutes, gives the Education Practices Commission (hereinafter referred to as the “EPC”) the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, or to impose any penalty provided by law, if he or she is guilty of certain acts specified in the statute. 33. The Commissioner has alleged in Count 1 of the Administrative Complaint that Respondent violated Section 1012.795(1)(c), Florida Statutes; in Count 2, that Respondent violated Section 1012.795(10(f), Florida Statutes; and in Count 3, that Respondent violated Section 1012.795(1)(i), Florida Statutes. 34. Section 1012.795(1)(c), Florida Statutes, provides that a teacher may be disciplined if he or she "[h]as been guilty of gross immorality or an act involving moral turpitude." 35. Section 1012.795(1)(f), Florida Statutes, provides that a teacher may be disciplined if he or she “has been found guilty of personal conduct which seriously reduces that person’s effectiveness as an employee of the district school board.” 36. Section 1012.795(1)(i), Florida Statutes, provides that a teacher may be disciplined if he or she “[h]as violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.” The Principles of Professional Conduct for the Education Profession in Florida (hereinafter referred to as the "Principles") are set out in Florida Administrative Code Chapter 6B-1.006. Having failed to reference any particular part of the Principles, it is assumed that the allegations of Count 4 are intended to refer to the actual portion of the Principles Respondent violated. Count 4 charges that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a), which requires that teachers “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.” 37. Given the parties’ stipulation that “Respondent has violated the statutory rule violations alleged in Counts 1 through 4 of the Administrative Complaint,” the only issue which remains to be decided in this case is the appropriate penalty. In recommending a penalty, however, the extent to which the facts stipulated to by the parties actually supports their stipulation as to the statutory and rule violations must be considered. In particular, the Commission should take into account that the facts actually do not support the conclusion that Respondent violated Section 1012.795(1)(c), Florida Statutes, the basis for the alleged violation in Count 1. 38. The terms "gross immorality" and "an act involving moral turpitude" are not defined in Chapter 1012, Florida Statutes. See Sherburne v. School Board of Suwannee County, 455 So. 2d 1057 (Fla. 1st DCA 1984). Florida Administrative Code Rule 6B-4.009, which applies to dismissal actions initiated by school boards against instructional personnel, does, however, provide guidance as to the meaning of the terms as they are used in Section 1012.795, Florida Statutes. See Castor v. Lawless, 1992 WL 880829 *10 (EPC Final Order 1992). 39. Florida Administrative Code Rule 6B-4.009(2) defines "immorality" as follows: Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community. 40. "Gross immorality" has been defined by the courts as misconduct that is more egregious than mere "immorality": The term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practices Commission v. Knox, 3 FALR 1373-A (Department of Education 1981). Frank T. Brogan v. Eston Mansfield, DOAH Case No. 96-0286 (EPC Final Order 1996). 41. Florida Administrative Code Rule 6B-4.009(6) defines "moral turpitude" as follows: Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude. 42. The court in State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (1933), observed that moral turpitude: involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. 43. In determining whether any teacher is guilty of gross immorality or an act involving moral turpitude in violation of Section 1012.795(1)(c), Florida Statutes, it must be remembered that "[b]y virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams v. Professional Practices Council, 406 So. 2d 1170, 1171 (Fla. 1st DCA 1981). 44. The acts committed by Respondent in this case were not sufficiently egregious to constitute gross immorality or acts involving moral turpitude. Respondent’s conduct, while inconsistent with the conduct expected of a teacher administering the FCAT, does not constitute an act ". . . which constitutes a flagrant disregard of proper moral standards" or an act of "inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society." 45. As for the violation of Section 1012.795(1)(f), Florida Statutes, while the parties have stipulated that Respondent's conduct reduced her effectiveness as an employee of the School Board, the facts show that the School Board has considered Respondent's effectiveness as an employee adequate to continue her in its employment and to continue allowing her to administer the FCAT. 46. While clearly inappropriate conduct on the part of the Respondent, her conduct barely constitutes a violation of the other statutory violation alleged in Count 3. Recommended Penalty. 47. Section 1012.795(1), Florida Statutes, gives the EPC the following disciplinary authority: The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, . . . provided it can be shown that the person [violated one of the subsections that follow]. 48. In its Proposed Recommended Order for Appropriate Penalty, Petitioner has requested that it be recommended that Respondent’s certificate be permanently revoked and that she be permanently barred from re-application. Respondent has requested that it be recommended that Respondent’s 30-day suspension by the Broward County School Board (hereinafter referred to as the “School Board”) serve as her penalty in this case. In the alternative, Respondent has suggested that a one- year period of probation be added to the already served suspension. 49. In deciding the appropriate penalty to recommend in this case, consideration has been given to Florida Administrative Code Rule 6B-11.007(3), which provides aggravating and mitigating circumstances to be considered in determining the appropriate penalty in a case such as this: (3) Based upon consideration of aggravating and mitigating factors present in an individual case, the Commission may deviate from the penalties recommended in subsection (2). The Commission may consider the following as aggravating or mitigating factors: The severity of the offense; The danger to the public; The number of repetitions of offenses; The length of time since the violation; The number of times the educator has been previously disciplined by the Commission. The length of time the educator has practiced and the contribution as an educator; The actual damage, physical or otherwise, caused by the violation; The deterrent effect of the penalty imposed; The effect of the penalty upon the educator’s livelihood; Any effort of rehabilitation by the educator; The actual knowledge of the educator pertaining to the violation; Employment status; Attempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation; Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served; Actual negligence of the educator pertaining to any violation; Penalties imposed for related offenses under subsection (2) above; Pecuniary benefit or self-gain inuring to the educator; Degree of physical and mental harm to a student or a child; Present status of physical and/or mental condition contributing to the violation including recovery from addiction; Any other relevant mitigating or aggravating factors under the circumstances. 50. Based upon the facts stipulated to by the parties, the following mitigating circumstances exist: the offense in this case is a single, isolated one; the actual danger to the public in this incident was minimal; it has been three years since the violation occurred (and in the interim, Respondent has continued to monitor the FCAT without incident); and Respondent has not been previously disciplined by the EPC. 51. The following aggravating circumstances have been shown to exist: Respondent actions deprived students of the educational process, likely resulting in the loss of school funding and hindering the school’s ratings; and a harsh penalty will send the message that Respondent’s conduct will not be tolerated. 52. Petitioner has argued that an additional aggravating circumstance is the failure of any evidence that Respondent has been rehabilitated. In particular, Petitioner has suggested that Respondent lacks any rehabilitation because she has “consistently accused other individuals, including the FCAT’s administrators and supervisors, for her misdeeds rather than accepting the blame.” Petitioner’s argument on this point must be rejected. First, there is no stipulated fact or any evidence that has been offered in this case to support Petitioner’s position. Secondly, Petitioner has failed to consider the fact that Respondent has agreed to the stipulated facts and law which form the basis of this Recommended Order. 53. Ultimately, in recommending a penalty in this case, the most important considerations in this matter should be the extent to which Respondent actually violated the provision alleged in the Administrative Complaint, which has been addressed, supra, and the action taken by Respondent’s employer, the School Board. 54. The extent to which Respondent actually violated the provisions alleged in the Administrative Complaint has been discussed, supra. 55. Just as significantly, the School Board, which, along with the parents and children it serves, suffered the actual harm of Respondent’s conduct, concluded that Respondent was adequately punished by a 30-day suspension rather than termination of her employment. The School Board, therefore, has indicated a willingness to continue to employ Respondent, something it will no longer be able to do if Petitioner’s recommended penalty is carried out. Nor will the School Board be able to continue Respondent’s employment if Petitioner were to suspend Respondent’s certificate for any period of time. 56. Given the School Board’s decision to continue to employ Respondent, any discipline taken by Petitioner should be limited to discipline which will not thwart the local government’s decision to continue to employ Respondent. A suspension of 30 days, considered already served at the time she served her School Board imposed suspension; five years probation; and a requirement that Respondent attend, at her own expense, any seminars or courses the EPC deems appropriate is an appropriate penalty in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered imposing the following penalty: (1) suspending her teaching certificate for 30 days, such suspension to be considered already served; (2) placing her on probation for five years subject to any conditions deemed appropriate by the EPC; and (3) requiring her to attend, at her own expense, any seminars or courses the EPC deems appropriate. DONE AND ENTERED this day 4th day April of, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2006.
Findings Of Fact Based on my obersvation of the witnesses and their demeanor while testifying, the arguments of counsel, and the briefs which were filed post- hearing, the following relevant facts are found. Ernest B. Brown is the holder of Post-Graduate Rank II Florida Teaching Certificate No. 167290, covering administration and supervision, elementary education and junior college which by its term is valid until June 30, 1985. Ernest Brown, Respondent, has been employed in the public schools of Pinellas County as fifth grade teacher at Gulf Beaches Elementary School since August, 1975, and was on continuing contract during the 1976-77 school year. He resigned effective May 31, 1977 after inquiries were raised concerning his personal conduct with a female fifth grade student (Michelle Stewart). Thereafter the Department of Education received a report from the Pinellas County School officials on or about June 1, 1977 indicating that Respondent had been charged with lewd and lascivious acts in the presence of a female child under the age of 14 and handling and fondling a female child under the age of 14 years. Pursuant thereto and following an inquiry by the staff of the Professional Practices Council, on July 18, 1977, said Council issued a report to the Executive Committee of the Professional Practices Council whereupon the Executive Committee recommended that the Commissioner of Education find that probable cause exist to believe that Respondent is guilty of acts which provide grounds for the revocation of his Florida teaching certificate. By letter dated July 27, 1977, the Commissioner found probable cause and directed the filing of the instant petition herein. Michelle Stewart, eleven years old and presently a fifth grade student at Gulf Beaches Elementary School, was a student of Respondent while she completed here third grade instruction. Ms. Stewart was approximately three weeks late reporting for classes during her third grade school year. After being in school for approximately two weeks, she sought assistance from Respondent regarding problems she was having with her math. At that time, there were approximately three or four other students also seeking assistance from the Respondent. Respondent asked Michelle to sit in a chair behind his desk where she waited until the other students had received their assistance. According to Ms. Stewart, Respondent asked to touch her pants in the crotch section. Ms. Steward was shocked but did not protest when the Respondent touched her in the seat of her pants for approximately one minute. On another occasion, Respondent was invited to attend a birthday party given at Michelle's house by her. Respondent was reluctant to attend inasmuch as he did not have a gift to give her. He reluctantly agreed to attend based on the enticement of Ms. Stewart, her mother, and several other students who attended the party. When persuaded to attend the party, Respondent agreed only to come if Ms. Stewarts mother permitted him to take Ms. Stewart shopping for some clothing within the next few days. As best as can be determined from the record, it appears that the birthday party was during the early part of May, 1977. Within a few days, Respondent arranged to take Ms. Stewart shopping by obtaining permission from her mother. However, as the facts were later brought out, it appears that Respondent obtained permission from Ms. Stewart's mother by telling her that he wanted Ms. Stewart to assist him in arranging some books on his book shelves, and Ms. Stewarts mother agreed with the condition that Ms. Stewart be brought back home before six oclock. Ms. Stewart testified that she was picked up by Respondent and taken to his home where they were alone. Immediately after entering Respondents house, he asked here if she was hungry and whether or not she would like to fix herself a sandwich and watched TV for a few minutes. Thereafter Respondent took some pictures of here with his Polaroid camera. Respondent later offered her some clothing and brought them out telling her that she could try the dresses on in his presence. Ms. Stewart undressed in Respondent's presence and when she finished trying on her dresses that he had purchased, Respondent went to the bathroom and undressed, entering his living room area with only his shirt on. During this time Ms. Stewart was undressed and Respondent asked her to lie down on the floor where he had placed a towel and had relocated an electric fan positioned so that it would blow down on them. She testified that he laid on top of her for approximately ten minutes stroking and kissing her. After this incident was over (approximately ten minutes) Respondent pleaded with Ms. Stewart to refrain from telling anyone about the incident to which she agreed. However she testified that she did tell some of her friends about the incident. Ms. Stewart testified that during the next school year she opted to be in another teacher's classroom and Respondent rebelled by talking to her and here mother in an attempt to get her to change her mind. She refused to do so because she wanted to be in the class with a neighbor and her boyfriend. During the school year Ms. Stewart recalled that she and approximately two other students were taken to several extracurricular activities by Respondent after school hours, including the circus, lipizian stallions, and Holiday on Ice. Detective William Creekbaum presently employed as a real estate salesman, was formerly employed as a detective with the St. Petersburg Police Department was assigned to investigate complaints regarding incidents that the Respondent had allegedly been engaged with several minor students including Michelle Stewart. Detective Creekbaum was assigned to investigate the case on or about May 19, 1977 at which time, and during the course of his investigation, he interviewed approximately ten minor female students. On May 31, 1977, he decided that he should contact the Respondent and make certain inquiries of him, which he did at the school. He visited the school and asked the Respondent to come with him down to the police station for some questions. The Respondent drove his car down to police headquarters and a statement was given to Detective Creekbaum. Prior therto, Respondnent was apprised of his rights per Miranda. Detective Creekbaum explained to Respondent the necessity of his being truthful during his investigation, although he stressed the fact that he made no promises that the matter would be handled internally". He testified, and the statements bear out the fact that the Respondent was, in fact, advised that the investigation was criminal in nature. Initially, during the interview, Respondent denied the material allegations of the charges that he had fondled Michelle Stewart, however, upon repeated questioning by Detective Creekbaum, Respondent admitted that he had fondled Michelle Steward as charged. Although Respondent's position on this admission is that he only told Detective Creekbaum that he had fondled Michelle Stewart because he "thought that was what he wanted to hear and further he was led to believe that nothing would come of it". After the admissions by Respondent, Detective Creekbaum advised Respondent that he was under arrest where he was taken to the booking section of the police department. Immediately thereafter, Douglas McBriarty, an employee of the personnel department for the Pinellas County school system and charged with resolving teacher problems, visited Respondent at the jail where Respondent also admitted to the charge of fondling Michelle Stewart. Dr. McBriarty advised Respondent that it would be the Board's recommendation to immediately suspend him pending a decision on the merits and further action by the board to seek revocation of his (Respondent's) teaching certificate by the Professional Practices Council. Respondent asked if he had any options whereupon Dr. McBriarty told him that he could resign. At that point, the Respondent resigned effective May 31, 1977. The Respondent took the stand and testified that he was misled by Detective Creekbaum into thinking that nothing would come of the incident and that while he denied initially fondling Ms. Stewart, he only changed his story to an admission because he was of the opinion that that was what Detective Creekbaum wanted. He also testified that he was of the opinion that nothing would come of the incident as related by Detective Creekbaum. 1/ Without question, the Respondent enjoys a good reputation in the community and by his fellow peers at the school. He is regarded as a very good instructor who goes over and above his call of duty with respect to his classroom duties. Witnesses Nancy H. Akins and Catherine Smith, both instuctors in the Pinellas County school system, testified of their familiarity with the Respondents professional life and both gave him high marks. As stated, the Respondent denied the material allegations of the charging allegations in this case. Presently he is project director for the Tampa sickle cell disease project. In addition to denying the allegations of the complaint herein he testified that he was "set up" by Detective Creekbaum. He voiced his opinion that he felt that if he were cooperative and stated what Detective Creekbaum wanted him to say that he would go free. The undersigned has examined the record to see whether or not any misrepresentations or other statements were made to prompt Respondent to admit to the fondling of Michelle Stewart and the record is barren in this regard. Based thereon, I shall recommend that the allegations contained in the petition filed herein be sustained.
Recommendation Based on the foregoing Findings and Conclusions, it is hereby RECOMMENDED that the teaching certificate of Respondent, Ernest B. Brown, be suspended for a period of two years. ENTERED this 20th day of September, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue for determination is whether Respondent should be suspended without pay and dismissed from employment with Petitioner.
Findings Of Fact Mr. Hurst holds a Florida teaching certificate. Mr. Hurst was employed as a teacher with the School Board. He has been employed with the School Board since 1984. Mr. Hurst taught at Poinciana Elementary School, Citrus Cove Elementary School, Crystal Lakes Elementary School, and Lake Worth Middle School. At each of these schools, Mr. Hurst received disciplinary actions. No dispute exists as to paragraph numbered 7 of the Petition, which states: "On or about September 3, 1996, Respondent [Mr. Hurst] received a written reprimand from his principal for failing to allow a child to use the restroom causing her to wet her pants and, as a result, incur public humiliation; failing to use good judgment by going to a student's house unannounced, at a time when parents are not normally at home, for the purpose of informing the parents that the child had not turned in a math paper; and for his continued use of sarcastic comments towards parents. Respondent [Mr. Hurst] did not grieve or otherwise appeal the imposition of this discipline." No dispute exists as to paragraph numbered 8 of the Petition, which states: "On or about March 10, 1998, Respondent [Mr. Hurst] received a formal written reprimand for inappropriate behavior because of his use of offensive nicknames towards students, including the use of phrases such as "shut-up" and "hiney," and for not reporting a child who had left Respondent's [Mr. Hurst's] class to go to his school's front office. Respondent [Mr. Hurst] was advised that his use of sarcasm and teasing of students must stop immediately, or he would be considered grossly insubordinate and more serious disciplinary action would be taken. Respondent [Mr. Hurst] did not grieve or otherwise appeal the imposition of the discipline." No dispute exists as to paragraph numbered 9 of the Petition, which states: "Between February 4, 1999 through February 10, 1999, Respondent [Mr. Hurst] served a five (5) day suspension without pay for pushing a student and using profane language towards the student. Respondent [Mr. Hurst] did not grieve or otherwise appeal the imposition of the discipline." No dispute exists as to paragraph numbered 10 of the Petition, which states: "On or about February 1, 2001, Respondent [Mr. Hurst] began serving, and did serve, a ten (10) day suspension without pay for inappropriately touching a student and for making inappropriate romantic/sexual comments towards a co-worker while working as a teacher at Crystal Lakes Elementary School. Respondent [Mr. Hurst] did not grieve or otherwise appeal the imposition of the discipline." No dispute exists as to paragraph numbered 11 of the Petition, which states: "Subsequent to the aforementioned suspension, Respondent [Mr. Hurst] was transferred to Starlight Cove Elementary School. His first day of work was on or about February 15, 2001." At each disciplinary action, Mr. Hurst was advised and directed that any future inappropriate conduct would result in further disciplinary action, up to and including dismissal. During the 2001-2002 school year, Mr. Hurst was employed with the School Board pursuant to a professional services contract. At hearing, Mr. Hurst did not deny the previous disciplinary actions. Furthermore, he agreed that the pertinent time period for proving the allegations of fact of the Petition was February 15, 2001 through March 16, 2001. Mr. Hurst is a member of the collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (PBCTA). Mr. Hurst was aware that the School Board engages in progressive discipline. Furthermore, he was aware that the use of profanity and other inappropriate conduct for which he was previously disciplined was not allowed and violated the laws and rules under which the School Board operated. At Starlight Cove Elementary School (Starlight Cove), Mr. Hurst was to assist where needed. He was eventually assigned to assist another teacher, Mr. Barrett, with his fifth grade class. Mr. Hurst's assignment with Mr. Barrett's fifth grade class was to be a temporary assignment. Mr. Barrett's class was one of the most challenging classes at Starlight Cove. The students needed structure and a disciplinarian. Mr. Barrett had no problems with his class. In the beginning, Mr. Hurst and Mr. Barrett were in the classroom together. Some time later, Mr. Barrett took leave for the birth of his child, which resulted in Mr. Hurst's being in the classroom alone, as the sole teacher. Temporary and substitute teachers usually have a difficult time with students in the area of discipline. Students, recognizing that a teacher is temporary or a substitute, generally become discipline problems. On or about March 2, 2001, Mr. Hurst was the sole teacher. One of the students in the fifth grade class complained to Mr. Hurst that another student had used profanity. Mr. Hurst gave the class, what he considers his routine lecture on the use of profanity, giving them examples as to what may be accepted language and as to what may be unacceptable language for which the students could be disciplined. On or about March 2, 2001, after school, the principal of Starlight Cove, Susan Saint John, inquired of Mr. Hurst about his routine lecture on profanity because she had received several written communications from the students in his class, complaining that he had used profanity. At hearing, Ms. Saint John testified that Mr. Hurst informed her that he used both a profane word and alphabet substitutes for profane words in his examples during his routine lecture. Moreover, Ms. Saint John testified that her notes of the incident, which were made at the time of her conversation with Mr. Hurst and which showed that he used the word "ass," were accurate. Mr. Hurst denies that he used profanity but insists that he used only alphabet substitutes for the profane words. The more credible evidence is that Mr. Hurst used both alphabet substitutes for profane words and used the profane word "ass" in his routine lecture.2 The evidence also shows that students complained of Mr. Hurst using profane language although the evidence is insufficient to show that he used all the profane words, other than "ass," complained of by the students. The evidence is insufficient to show that Mr. Hurst used profanity other than in the routine lecture and that he used any other profane word than "ass." The evidence is insufficient to show that Mr. Hurst was advised that the use of alphabet substitutes for profane words was unacceptable and would be contrary to the directive for him not to use profane words. The use of profanity, whether by words or alphabet substitutes, by teachers with students constitutes unethical conduct. Ms. Saint John reported the incident to the School Board's Professional Standards department on or about March 2, 2001, but the intake sheet for Professional Standards was not completed until about a week later. Since 1996, Starlight Cove has used a system of discipline for students that uses color codes from green to red. The color of green is the beginning point and indicates that a student is following the rules. If a student fails to follow the rules, the colors progress from green to yellow (a warning) to red. The color code system is posted in classrooms and in the teachers' faculty handbook. Mr. Barrett used the color code system of discipline, and it was posted in his classroom. On March 2, 2001, Ms. Saint John was frequently called to the classroom at which Mr. Hurst was substituting for Mr. Barrett for discipline reasons. Her prior experience with the class was that Mr. Barrett had control of the class and that she had not been called into the classroom for discipline problems. Furthermore, previously, when persons, other than Mr. Barrett, were in charge of the class, she had been infrequently called to the class for discipline reasons. When Ms. Saint John entered the classroom on March 2, 2001, one of the things that she noticed was the color code had been changed from green to yellow and red. Based upon her prior experience with the class, she assumed that Mr. Hurst was incorrectly utilizing the color code system of discipline since the color had changed to yellow for the entire class. At no time did she discuss her assumption with Mr. Hurst. Mr. Hurst denied incorrectly using the color code system. However, he admitted that he "bluffed" the students into behaving appropriately by telling them that he would change the color code for the entire class from green to yellow. Because the students were well-behaved when Mr. Barrett was in the classroom, Mr. Hurst had no opportunity to observe Mr. Barrett using the color code system. Ms. Saint John does not recall specifically advising or training Mr. Hurst on the use of the color code system. The color code system is reviewed at faculty meetings. Mr. Hurst attended the faculty meetings. Mr. Hurst was aware of the color code system and of how to use the system. The evidence is insufficient to demonstrate that Mr. Hurst incorrectly or inappropriately used the color code system. On March 16, 2001, Mr. Hurst was transferred to Lake Worth Middle School. On June 29, 2001, the Petition was executed by the Superintendent of the School Board. An investigation was performed before the determination was made to seek suspension and termination of Mr. Hurst from employment with the School Board. As part of the investigation, statements from some of the students in Mr. Hurst's class were taken. These statements by the students, as well as the previously indicated disciplinary actions against Mr. Hurst, were some of the documents relied upon by the School Board for the determination to seek suspension and termination of Mr. Hurst. After the determination to suspend and terminate was made, the statements were sworn to by the students.3 The evidence at hearing shows that, based upon the evidence before the School Board at its meeting, the School Board's action to suspend and dismiss Mr. Hurst was reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order: Suspending Dennis W. Hurst as a teacher. Dismissing Dennis W. Hurst from employment. DONE AND ENTERED this 31st day of December, 2003, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2003.
