The Issue Whether Carl G. Bott, Jr., is guilty of immorality, misconduct in office and/or gross insubordination?
Findings Of Fact During the period of time at issue in this proceeding, Carl G. Bott, Jr., was an employee of the School Board of Putnam County under a continuing contract. Mr. Bott has been employed as a teacher for approximately ten years. Mr. Bott was a teacher and Dean in the County Alternative School Program during the 1984-1985 through 1988-1989 school years. During the 1984-1985 and the 1985-1986 school years the County Alternative School Program was located on the second floor of the Campbell Administrative Building. The County Alternative School Program was renamed the District Opportunity Center and was located on the Davis Lake Road side of the campus of E. H. Miller School during the 1986-1987, school year. Mr. Bott continued to work at the District Opportunity Center during the 1987-1988 school year and part of the 1988-1989 school year. During the 1984-1985 through 1988-1989 school years Diane Wilkinson was employed as a secretary for the County Alternative School Program and the District Opportunity Center. Mr. Bott was her immediate supervisor and prepared Ms. Wilkinson's evaluations during this period of time. During the 1984-1985 and 1985-1986 school years Mr. Bott was in charge of the County Alternative School Program. During the 1984-1985 and the 1985-1986 school years Mr. Bott made comments to Ms. Wilkinson of a sexual nature. In particular, Mr. Bott told Ms. Wilkinson that she had a nice ass, but that [her] stomach needed to be tightened up; and he also made statements in regard to women's nipples showing through their clothes, that's a real turn on to him, for women to get cold on for their nipples to show through their clothing.." Page 199, lines 113-17, Transcript of Administrative Hearing. Sometime during the 1985-1986 school year Mr. Bott intentionally placed his hand on Ms. Wilkinson's right breast without permission, warning or provocation. Mr. Bott's act was a sexual advance toward Ms. Wilkinson. This incident occurred while Mr. Bott and Ms. Wilkinson were in Ms. Wilkinson's small office discussing business. When Mr. Bott touched Ms. Wilkinson, she said nothing and looked at him with a shocked expression. When Ms. Wilkinson did not respond to his advance, Mr. Bott removed his hand and left the room. Ms. Wilkinson did not report the incident to anyone. Nor was anything said about the incident by Ms. Wilkinson or Mr. Bott. Approximately six to nine weeks before the County Alternative School Program was moved to Davis Lake Road, Mr. Bott came into Ms. Wilkinson's office where she was typing, walked up behind her and reached over her shoulders and intentionally touched her breast from behind without permission, warning or provocation. Again, Ms. Wilkinson said nothing. She looked at him with a shocked expression and Mr. Bott then removed his hand and left the room. On the same day that the second incident occurred, Ms. Wilkinson called Evie Shellenberger, the Director of Personnel for the Petitioner, and set up an appointment for the next day to report the incident. The day after the second incident, Ms. Wilkinson told Mr. Bott that I can have your teaching certificate lifted for sexual harassment if you ever touch me again . Page 205, lines 9-10, Transcript of Administrative Hearing. Mr. Bott told Ms. Wilkinson that he realized that she was correct, he apologized to her and promised it would never happen again. Ms. Wilkinson kept her appointment with Ms. Shellenberger and reported both incidents. She did not, however, file a sexual harassment charge against Mr. Bott. Ms. Wilkinson did not file charges because Mr. Bott had apologized and promised not to touch her again and she did not want to harm his family or his career. Ms. Wilkinson was concerned for Mr. Bott because he had a son who had been sick and Mrs. Bott had had cancer. After moving to Davis Lake Road, Mr. Bott continued to make inappropriate comments to Ms. Wilkinson of a sexual nature. The frequency of the statements increased, especially during the 1987-1988 school year. In particular, Mr. Bott made the following statements to Ms. Wilkinson: That he had been a virgin until he was 21 years old, and therefore "he needed to get all the sex he could possibly get to make up for lost time." That he masturbated in the shower with hand cream. That he had had a wet dream about her and he had to get up and clean himself up and clean the sheets up. That "he had had a dream about [them] being in the back seat of a car and that [they] had made love, and that he had climaxed all over the bed, and that it seemed so real to him that he could even smell [her] cologne." That he had calluses on the palms of his hands from masturbating. That "he could really satisfy me [Ms. Wilkinson] sexually without his teeth, and that he knew how -- he could gum me [Ms. Wilkinson] to death, and that he really knew how to satisfy women without his teeth in." That his wife "was so fat and so ugly that he had a hard time making love to her, and that he had to really fantasize when he was having sex with her, to pretend he was with someone else instead of her, because she had dimples in her ass and she was so fat and so overweight it was like she had two sets of breasts, one in the front and one in the back behind her armpit in regard to a fatty kind of area on her." That "I intend to have you [Ms. Wilkinson] in bed before we go our separate ways." That he had made love with a woman (not his wife) in his boat and he had been afraid that he was not going to be able to get his clothes on before the Florida Marine Patrol caught him. That he needed "a piece of ass from someone 18 to 21 years old because he didn't want to get too old to go out and enjoy it." The more explicit sexual statements Mr. Bott made to Ms. Wilkinson were not made continuously. There would be periods of time when he would not make such statements. There were, however, periods of time when the types of statements quoted above would be made and then he would be quiet again. Ms. Wilkinson did not ask Mr. Bott to stop making the statements. She also did not tell anyone about the statements Mr. Bott was making to her. In approximately March, 1988, Ms. Wilkinson did talk to Rita Moody, president of the union to which Ms. Wilkinson belonged, about changing positions and informed her of Mr. Bott's behavior. There were not any positions available, however, and Ms. Moody suggested that Ms. Wilkinson should not "open a can of worms" by reporting the incidents. Despite the incidents related above involving Mr. Bott and Ms. Wilkinson, Ms. Wilkinson and Mr. Bott were friendly to each other and discussed personal matters as well as matters related to their work. They ate lunch with each other on occasion and Mr. Bott gave Ms. Wilkinson rides to and from her home and the office on occasion. Ms. Wilkinson also actively assisted Mr. Bott in protecting the program they worked in and assisted him in remaining with the program because she considered him an asset to the program. At the beginning of the 1986-1987 school year, Jean Herring was assigned as an Assistant Principal in charge of the District Opportunity Center. Ms. Herring was Mr. Bott's immediate supervisor during the 1986-1987 school year. Because Mr. Bott had previously been in charge of the program, he had some resentment about Ms. Herring's position. During the Spring of 1988, Ms. Herring received a complaint from Dana Hales, a female student at the District Opportunity Center. Ms. Hales alleged that Mr. Bott was using inappropriate language and discussing inappropriate topics with female students. (See findings of fact 23 and 24). Ms. Hales indicated that she felt uncomfortable in one-on-one counseling sessions with Mr. Bott. Based upon this complaint, Ms. Herring directed Mr. Bott not to conduct any one-on-one counseling sessions with female students without including Ms. Herring in the session. The next morning, Ms. Herring discovered Mr. Bott conducting a one-on-one counseling session with a female student in violation of her directive to him. Ms. Herring did not see Mr. Bott violate the directive again. Dana Hales complained to Ms. Herring because of statements Mr. Bott made to her of a sexual nature. Those statements included a statement "that he had an affair with a young girl from where he came from before and that he wished he could find a young girl here that he could trust that ... would not tell anyone." Page 142, lines 5-8, Transcript of Administrative Hearing. Mr. Bott also made comments to Ms. Hales concerning his wife. Mr. Bott told Ms. Hales that his wife "was ugly and that she was fat, and in the morning like in the daylight that she was very ugly and unattractive." Page 142, lines 15-17, Transcript of Administrative Hearing. Tonnette Sanders moved to Putnam County after the 1987-1988 school year had begun. Therefore, she was placed in the District Opportunity Center. She was not placed there for disciplinary reasons. Ms. Sanders was approximately 17 or 18 years of age. Mr. Bott was not one of Ms. Sanders' teachers. Mr. Bott and Ms. Sanders did become friends, however, and Mr. Bott provided counseling to Ms. Sanders. While walking into an office together, Mr. Bott patted Ms. Sanders on her buttocks. Ms. Sanders believed that the touching was a sexual advance and it made her feel uncomfortable. Ms. Sanders did not return to school for several days after the incident because she was upset. When she did return, Mr. Bott apologized to her for his action. Mr. Bott also told Ms. Sanders that she was the nicest looking black girl he had had ever seen." Cynthia Bartrum Schmurmand attended the District Opportunity Center during the 1986-1987 school year. Ms. Schmurmand was 14 or 15 year of age at the time. Mr. Bott provided GED preparation training approximately 45 minutes a day to Ms. Schmurmand and other female students. Initially there were four or five students who attended the sessions. Eventually, however, only Ms. Schmurmand and another student, Wendy Parker, attended the sessions. Mr. Bott did not always provide instruction to Ms. Schmurmand and Ms. Parker. Instead, Mr. Bott, Ms. Schmurmand and Ms. Parker would just talk. During these conversations, Mr. Bott told Ms. Schmurmand and Ms. Parker that he had been out with girls their age. He also told Ms. Schmurmand and Ms. Parker that they could get older and more mature men. Mr. Bott offered to take Ms. Schmurmand and Ms. Parker out on his fishing boat with the permission of their parents. Mr. Bott told them that "they would get some beer" even though Mr. Bott knew that they were not of legal drinking age. Mr. Bott allowed Ms. Schmurmand and Ms. Parker to smoke cigarettes in his office during at least one of the sessions. Mr. Bott provided the cigarettes. The use or possession of tobacco or tobacco products on school grounds was prohibited. Mr. Bott warned the students that if they ever let anyone know that they had been allowed to smoke, he would get into trouble and so would they. In addition to Mr. Bott's duties at the District Opportunity Center, he also taught health classes until December 1988 and for approximately three years preceding the 1988-1989 school year at the St. Johns River Community College. The courses taught by Mr. Bott were extra-credit classes taken by senior high students who needed additional credits to graduate from high school. During the Fall of 1988, Mr. Bott's health class was first aid. The class met from 3:30 p.m. until 6:00 p.m. on Monday and Wednesday. The students who attended the class were from Palatka High School and were 17 years of age or older. During the Fall of 1988, Mr. Bott made inappropriate statements to, or engaged in inappropriate conduct in front of, students in his first aid class as follows: Mr. Bott told students that his wife used to have a "nice ass" and "boobs" or "big melons", and now she is "fat and ugly." Mr. Bott wore a pin during class on his shirt which had the following words printed on it: "Sex Cures Headaches." Mr. Bott wore the pin for approximately thirty minutes. When a student asked about the pin, Mr. Bott took it off and indicated that he had forgotten he had it on. While discussing body lice, Mr. Bott told the class that he had once had "crabs." He indicated that he did not know how he had gotten them, implying that he had been involved with several different women. Mr. Bott cussed in front of the students. He used the words "dam", "ass", "bitch", "God damn" and "fuck." On one occasion Mr. Bott, while waking a student up, told the class that males have sexual fantasies every eleven minutes. Mr. Bott, while discussing the subject of drugs, told the class that marijuana makes women want to have sex or that smoking marijuana makes sex better. Mr. Bott told the students a story about a boy and girl who were riding in an automobile with the gear shift located on the floor of the automobile between the two front seats. Mr. Bott indicated that the boy was driving and the girl was sitting on a pillow between the two front seats. Mr. Bott told the class that the automobile was involved in a wreck or stopped suddenly for some other reason and that the gearshift "went up the girl" or that the "gearshift jammed up in her" and that "she took it whole." Mr. Bott also told the students a story about two couples who were riding in an automobile. Mr. Bott indicated that one couple was in the back seat of the car and they were "making out." Mr. Bott then told the class that the automobile was involved in a wreck and the boy "bit the girl's nipple off." He also said that the boy "swallowed it" and that the nipple was "a beautiful one." Mr. Bott also told this story during the 1987-1988 school year. Mr. Bott, while discussing genital injuries, told the class that he knew of a man who had sustained a genital injury. Mr. Bott stated that "his balls swelled up" and that they "were the size of baseballs." Mr. Bott told the class that "oysters put lead in the pencil." During the 1987-1988 school year, Dana Hales attended Mr. Bott's health class. Ms. Hales was walking to her automobile after one class when Mr. Bott told her that she "had the [tits or breasts] of a 25 year old." Mr. Bott also told Ms. Hales during the 1987-1988 school year that she would "stand out more" if she lost some weight. Mr. Bott was referring to Ms. Hales' chest when he made this statement. Vanessa Armster was an eighteen-year-old student at Palatka High School during the Fall of 1988. Ms. Armster attended Mr. Bott's health class during the Fall of 1988. In November, 1988, Ms. Armster missed four classes, in violation of Mr. Bott's policy that students could only miss three or less classes in order to pass the class. Mr. Bott, in deviation from his policy concerning absences, told Ms. Armster that she could make up her fourth absence by coming to his classroom at the District Opportunity Center after school the day after her fourth absence. Ms. Armster had a friend take her to the District Opportunity Center at 3:00 p.m. Mr. Bott gave her work to perform. Most of the time that Ms. Armster was at the District Opportunity Center no one was present in the room with her except Mr. Bott. While Ms. Armster was performing the work given to her by Mr. Bott, Mr. Bott made the following comments to her: Mr. Bott told Ms. Armster that he was scared for her to come to the District Opportunity Center because "he didn't know how he was going to react." Mr. Bott asked Ms. Armster "are those for real?" Mr. Bott was referring to Ms. Armster's breasts. Ms. Armster took these comments to be sexual in nature. Ms. Armster, as a result of Mr. Bott's comments, felt uncomfortable and scared in a one-on-one situation with Mr. Bott. The person who was suppose to give Ms. Armster a ride home did not arrive when she was ready to leave. Mr. Bott offered to give her a ride and Ms. Armster accepted. As Mr. Bott and Ms. Armster left the building, Mr. Bott noticed a football team practicing nearby and said that "someone might think something." Mr. Bott and Ms. Armster got into his pick-up truck. While in the truck Mr. Bott was telling Ms. Armster something about a heart attack and was referring to an area of his chest or side. While trying to indicate a location on his body, Mr. Bott moved his hand toward Ms. Armster. Ms. Armster jumped back when Mr. Bott moved his hand toward her. When Ms. Armster jumped, Mr. Bott said "oh, you just thought I was going to touch there" and intentionally put his hand on Ms. Armster's right breast. When Mr. Bott touched Ms. Armster she jumped back and he laughed. Following this incident, Mr. Bott dropped Ms. Armster off. Mr. Bott's actions have affected the way in which students view him as a teacher. In addition to the effects of Mr. Bott's actions already noted, Mr. Bott's actions had the following effects: At least two students perceived that Mr. Bott looked at Ms. Armster differently than he looked at other students; and Various students in Mr. Bott's health class found many of the sexual statements and incidents to be inappropriate and, in some cases, offensive and embarrassing. Mr. Bott's preoccupation with sexual matters was further evidenced by the following incidents which occurred during the period of time at issue in this proceeding: Mr. Bott told Beverly Emmons, a secretary at E. H. Miller School, that he like the blouses that Debbie Thomas, a teacher's aide, wore because her nipples stuck out. Mr. Bott made a comment about Debbie Thomas nipples being hard while she was lifting weights. This comment was made in front of Ms. Thomas and Diane Alred, an adaptive physical education teacher. Mr. Bott also patted Ms. Thomas on the buttocks. Mr. Bott was suspended with pay by the Superintendent of the Petitioner on December 2, 1988. At a regularly scheduled meeting of the Petitioner on December 5, 1988, Mr. Bott was charged with immorality, misconduct in office and gross insubordination and was suspended without pay. By letter dated December 5, 1988, Mr. Bott requested a formal administrative hearing.
Conclusions The District School Board of Putnam County hereby adopts and incorporates by reference the Conclusions of Law set forth in the Recommended Order. Based on the foregoing, and the recommendation made by the Hearing Officer in the above styled case, it is ADJUDGED that Carl G. Bott, Jr., is guilty of immorality and misconduct in office in violation of Florida Statutes Section 231.36(4)(c) and, accordingly, his suspension without pay from December 5, 1988 through January 5, 1990 is affirmed; it is further ADJUDGED that Carl G. Bott, Jr. is dismissed from his employment with the District School Board of Putnam County effective the date of this Order. DONE AND ORDERED this 12th day of January, 1990, in Palatka, Florida. District School Board of Putnam County Elaine Murray, Chairman
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued in this case finding that Carl G. Bott, Jr., is guilty of immorality and misconduct in office in violation of Section 231.36(4)(c), Florida Statutes, and dismissing him from his employment with the Petitioner. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 21st day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0572 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-4, 34. 2 39. 3 40. 4 41. 5 42. The last two sentences are cumulative and unnecessary. 6 See 42-44. 7 Hereby accepted. 8 44. Not relevant to this proceeding. See 50. The last sentence is not supported by the weight of the evidence. 11 45. 12 46. 13 47. 14 49. 15-27 These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 28 Hereby accepted. 29a 36b. 29b 36f. 29c 36j. The last sentence is not supported by the weight of the evidence. 29d 36i. 29e 36a. 29f 36c. 29j 36g and h. 29h 36e. 29i Not supported by the weight of the evidence. 29j 36d. 30 50. 31-33 See 50. These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 36h, 37-38. The statements were made, however, in 1987 and not in 1988. Not supported by the weight of the evidence. Hereby accepted. 37 2 and 22. 38 22. 39 23. 40 22. Hereby accepted. 22 and hereby accepted. 43 21-22. 44 22. 45 Hereby accepted. 46-49 Not relevant to this proceeding. 50 Hereby accepted. 51-54 Not relevant to this proceeding. 55-56 25. 57 26. 58-59 27-28. 60 29. 61 30. 62 29-30. 63 See 31. 64 32. 65-66 33. 67 Not relevant to this proceeding. 68 31. 69 50. 70 3-5. 71 2 and 5. 72 5. 73 7. 74 Hereby accepted. 75-77 8. Ms. Wilkinson did engage in personal and sexual conversations with Mr. Bott. 78 8-9. 79 10. 80 11. 81 11-12. 82 Hereby accepted. 83 13. 84 14. 85 15. 86 16. 87 16-17. 88 18. 89 19 and hereby accepted. 90-91 Hereby accepted. 92 51. The last two sentences of 92b are rejected as hearsay. 93-101 These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 102-104 Hereby accepted. Mr. Bott's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection See 50. Not relevant to this proceeding. 34 and 36 c and f. 35 and hereby accepted. See 36a. Taken into account in the weight that was given to the testimony concerning the incidents they testified about. 7-9 See 50. The last sentence of proposed finding of fact 7 and all of proposed findings of fact 8 and 9 constitutes a summary of testimony. This testimony was considered in making relevant findings of fact. 10-11 Not relevant to this proceeding. Not supported by the weight of the evidence. Hereby accepted. Taken into account in the weight that was given to the testimony concerning this incident. 15-17 See 50. 18 Hereby accepted. 19-20 See 50. Although it is true that Ms. Walker testified in this manner, the testimony was rejected. Not relevant to this proceeding. See 50. 24 2. 25 See 25-28 and 50. 26 Not supported by the weight of the testimony. 27-28 See 33. 29 37. 30 37-38. 31 Not relevant to this proceeding. 32-33 This testimony was rejected. 34-35 Hereby accepted. 36 22. 37-38 Hereby accepted. Not relevant to this proceeding. 20. The last sentence is not relevant to this proceeding. Not relevant to this proceeding. 42 5. 43-44 See 17-19. Ms. Wilkinson's testimony about not discussing personal matters with Mr. Bott was based upon her definition of "personal matters." 45 Not relevant to this proceeding. 46 19. 47-48 Not relevant to this proceeding. Hereby accepted. Not relevant to this proceeding. COPIES FURNISHED: Joe H. Pickens, Esquire Post Office Box 2128 Palatka, Florida 32078-2128 Lorene C. Powell, Esquire FEA/United 208 W. Pensacola Street Tallahassee, Florida 32399-1700 Mr. C. L. Overturf Superintendent Putnam County School Board 200 South Seventh Street Palatka, Florida 32177 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue Whether just cause exists to suspend and terminate the employment of Respondent, a teacher, for the reasons set forth in the Administrative Complaint.
Findings Of Fact The Parties The Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, the District has the authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes. Respondent began his employment with the District in November 2014. Respondent was employed as a math teacher for grades 9 through 12 at PBLHS until December 12, 2018, which was his last day in a classroom. Respondent is an experienced teacher who was trained on the proper method of interacting with students, exercising best professional judgment, and following policies, rules, and directives. Respondent completed the orientation process for new employees of the District three times. Respondent signed the District’s Code of Ethics each of the three times he received it and was aware it governed his behavior as an employee of the District. Circumstances Giving Rise to Respondent’s Discipline Respondent met former student, S.E., in Haiti in 2015 when she was approximately 15 years old. S.E. and Respondent worked on a political campaign together. While in Haiti, Respondent became friendly with S.E. and her family. Respondent was aware that S.E. was planning to come to the United States to attend high school. In 2018, while S.E. was an 11th grade student at PBLHS, Respondent was a teacher at the same school. Respondent exchanged phone numbers with S.E. so they could communicate outside of school hours. Respondent and S.E. frequently communicated outside of school hours between 5 p.m. and 11 p.m. by telephone and text messages in Haitian-Creole because S.E. did not speak English. According to Respondent, these conversations were primarily personal, as they had “all kind of conversation from family matter[s], from life, from a sexual content, from – you know, everything. Everything like two normal people. Any conversation that two normal people would take. It was about everything.” On or about December 3, 2018, a student reported to school staff at PBLHS that Respondent sent S.E. an inappropriate text stating, “send me a picture in your underwear.” Respondent allegedly also asked S.E. to go to a hotel with him. Detective Eulises Munoz was called to PBLHS to conduct an investigation regarding Respondent. As a part of Detective Munoz’s investigation, he conducted an audio recorded interview with S.E., with the assistance of an interpreter. As part of the investigation, Detective Munoz had the text messages between S.E. and Respondent extracted from S.E.’s phone and transcribed from Haitian-Creole to English. S.E.’s cell phone call log report revealed 48 calls and 94 messages between S.E. and Respondent between October 26, 2018, and December 4, 2018. Respondent admitted to asking S.E. on November 27, 2018, at 8:04 p.m., for “your picture while you are wearing only your underwear.” S.E. refused but instead sent a picture of herself clothed. Respondent told S.E. that she was “mistreating” him because she would not send a naked picture of herself to him. At the final hearing, Respondent admitted that he was aware that it was against Board policy to have asked S.E. for a photograph of her in her underwear while she was a student at PBLHS and he was a teacher at the same school. The investigation also revealed that on December 4, 2018, Respondent told S.E. that she was having headaches because she was not having sex and then sent her an article regarding stress headaches being relieved by sex. Respondent denied asking S.E. to meet him at a hotel. Disciplinary Action After Detective Munoz completed his investigation into the text conversations between Respondent and S.E., he drafted a criminal Probable Cause Affidavit, which was ultimately forwarded to Human Resource Manager Brenda Johnson for further investigation. Ms. Johnson provided Respondent with a letter acknowledging opening an investigative file based on inappropriate interactions with a student. As of December 18, 2018, Respondent was removed from the classroom and directed to have no further contact with students. He was instead assigned to a District warehouse. Respondent was provided with a Pre-Determination Meeting (“PDM”) Notice dated March 9, 2020, signed by Vicki Evans-Pare, Director of Employee & Labor Relations, explaining to him that the investigation was concerning the allegations levied against him and that a meeting was needed to discuss the findings. Prior to the PDM, Respondent was provided with the PDM Notice, as well as a copy of the investigative file. Respondent’s PDM was held on March 13, 2020, at which time he was given the opportunity to provide a response to the allegations against him. After the PDM was completed, Ms. Johnson typed up the notes and summary from the PDM, which were provided to Respondent who was given three business days to review the documents and make any edits or revisions he felt were warranted and add any additional information relative to the investigation. Respondent did not make any changes to the PDM Summary or Notes. After Respondent’s PDM, Ms. Evans-Pare decided to have the investigative file reviewed by the Employee Investigative Committee (EIC), which found the following allegations were substantiated: Soliciting an Inappropriate Relationship with a Student; Ethical Misconduct; Failure to Exercise Best Professional Judgment; and Failure to Follow Policy, Rule, or Directive. The EIC recommendation was that Respondent’s employment be terminated despite Respondent not having any prior discipline history. The EIC proposed skipping the Progressive Discipline steps (verbal reprimand with written notation, written reprimand, and suspension) because Respondent’s inappropriate interactions with the student, his admission that he had the text conversations with the student, and his request to the student for a picture of her in her underwear posed a direct threat to the District and the student. On May 21, 2020, Respondent was notified that Dr. Donald Fennoy, II, the District Superintendent, would recommend Respondent’s termination to the Board at its June 17, 2020, meeting. Termination was the same disciplinary action that was taken against other employees who engaged in the same or similar conduct. Respondent acknowledged that “[a]lmost everybody” at PBLHS found out about the text conversations between Respondent and S.E. Respondent knew that his co-workers knew about the text conversations because people were calling him and asking him about it. Respondent’s co-workers lost confidence in him as a teacher after they learned about the text conversations between him and S.E. Respondent was also aware that S.E.’s guardians lost confidence in him as a teacher as a result of the sexual text conversations he had with S.E. Respondent acknowledged during the final hearing that his conduct was inappropriate and in violation of the Board’s policies. Respondent only contests the level of discipline (termination) as too harsh. He argued that the Board skipped intervening steps of the progressive discipline policy and claimed that his level of discipline was a result of his complaining that he was not physically capable of the work to which he was assigned in the warehouse.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board uphold the suspension and termination of Respondent’s employment. DONE AND ENTERED this 8th day of March, 2021, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2021. COPIES FURNISHED: V. Danielle Williams, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Jean Marie Middleton, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Donald E. Fennoy, II, Ed.D. Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869 Jhonny Felix 5938 Ithaca Circle West Lake Worth, Florida 33463 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in the case is whether the Pinellas County School Board (Petitioner) has just cause for terminating the employment of Gerald A. DiPanfilo (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner under a professional services contract. The Respondent has worked as a Pinellas County teacher for approximately 27 years, serving as an art teacher at Seminole High School for approximately one-half of his career with the Petitioner. On July 11, 2007, the Respondent went to "Grand Central," an apparently "gay bar" located in downtown St. Petersburg, Florida. The Respondent testified at the hearing that he had been at the lounge with friends. After drinking excessively, he decided to go home and asked the bartender to call for a cab to transport him to his condominium. As he waited for the cab to arrive, he sat at the bar. J.G., a male who had just turned 17 years old on June 23, 2007, and who was enrolled in the Pinellas County School System, was also in the lounge as the same time as the Respondent. The Respondent testified that he had limited conversation with J.G. while in the tavern. There is no evidence that the Respondent knew that J.G. was enrolled in the Pinellas County School System. The Respondent testified that, when the cab arrived, he got into the cab and that J.G. "forced" himself into the cab with the Respondent. He testified that he exited the cab at a Publix grocery store about one and a half blocks from his residence, that he apparently walked alone to his condominium, and that, when he entered the ground-floor garage to obtain cigarettes from his car, he discovered J.G. waiting. The Respondent's testimony failed to indicate at what point J.G. exited the cab, why the Respondent would have exited the cab at Publix, or how J.G. would have known where the Respondent's condo was located. The Respondent testified that J.G. asked for a drink of water and the Respondent, despite asserting that he "was a little nervous," admitted the stranger into his residence. The Respondent testified that, after entering the residence, J.G. began "pulling his shirt up." The Respondent also testified as follows: I'm not sure whether he was taking his pants off or not. But at the time I made a gesture of some sort, and I said Whoa. And he said, May I borrow your cell phone or may I borrow your phone. And he took my phone, and he went out into the hallway, which I started to get suspicious at that point of why did he need to use--talk out in the hall. So I went out there immediately. The Respondent testified that he re-entered his condo and noticed his car keys were missing. He testified that he called the cell phone and J.G. answered. The Respondent testified that he then called the police and reported his car as stolen. The Respondent testified that there was never any discussion with J.G. about obtaining drugs. The Respondent denied any discussion with J.G. about having sex or paying for sexual activity. The Respondent denied that J.G. made any statement about age. The Respondent's testimony as to the events of the evening lacked sufficient clarity to be reliable and are not credited. J.G. testified that he entered the "Grand Central" to get a glass of water. J.G. testified that he was not gay, but acknowledged being aware that "Grand Central" was apparently widely-known to have gay customers "because it's full of gay people in there." J.G. testified that he interacted with the Respondent with the intention of hustling him for money. J.G. testified that the Respondent offered to buy him a drink, but that the bartender refused to serve alcohol to J.G., who did not have identification. J.G. testified that the Respondent offered him a "ride home" and he accepted. J.G. testified that the two took the cab to the Respondent's condo and did not talk during the cab ride. J.G. testified that, after arriving at the condo, the Respondent asked if J.G. could obtain drugs, and J.G. said he could; that J.G. and the Respondent then walked to a nearby Publix; and that the Respondent obtained money from the ATM. J.G. testified that they returned to and entered the Respondent's condo and that the Respondent "approached him" with his pants down. J.G. testified that he remained fully clothed while at the Respondent's residence, while the Respondent touched J.G.'s body "everywhere" including his genitals for a period of five to seven minutes. J.G. testified that he told the Respondent at some point during the evening that he was 17 years old "because I wasn't feeling what was going on at the time." While at the Respondent's residence, J.G. pretended to call the supposed resource (his cousin) to obtain drugs, after which J.G. left to obtain the drugs with the Respondent's cash, his car, and his cell phone. J.G. testified that he had no intention of returning to the Respondent's residence. As part of an investigation into the alleged auto theft, the Respondent was interviewed by a law enforcement officer and submitted a written statement to the police. In the written statement, the Respondent wrote that he "messed around briefly" with the person who had allegedly stolen the vehicle. After reviewing the information, the matter was subsequently referred to a second law enforcement officer for the purpose of conducting an investigation into the alleged sexual activity with a minor. According to the testimony of the officer investigating the sexual activity, the Respondent stated that he and J.G. had been kissing in the cab and that, after arriving at the condo, the two had undressed and had rubbed each other's penises. The officer noted that the Respondent stated he might have given money to the minor, but was not sure. The Respondent indicated that he believed J.G. to have been of legal age. At the hearing, the Respondent testified that he had no recollection of making the admissions of sexual activity between himself and J.G. to the police investigator and was unsure why he made the statements. The officer also interviewed J.G. and testified that J.G. stated that he had advised the Respondent of his age during the cab ride. The officer also testified that J.G. stated that the Respondent gave money to J.G. in exchange for sex and drugs and that, after returning to the Respondent's residence, the two had physical contact but that J.G. remained dressed during the contact. J.G. has a substantial criminal arrest record, given his age, for various drug offenses as well as battery, burglary, and grand theft. He was charged with auto theft in connection with taking the Respondent's car. J.G. acknowledged at the hearing that he had previously stated that he was willing to allege sexual activity with the Respondent in an attempt to avoid being charged with auto theft. The greater weight of the evidence presented at the hearing established that the Respondent engaged in sexual activity with J.G. on July 11, 2007, or very early on the morning of the following day. This finding is specifically based upon the admissions made by the Respondent to the investigators; admissions that the Respondent continued to make over a period of several days as the investigation proceeded. As a teacher, the Respondent has an obligation to ascertain the age of persons with whom he is involved. There is no credible evidence that the Respondent realistically considered whether or not J.G. was of legal age. Students at Seminole High School became aware of publicity related to the events of July 11, 2007, and some students posted copies of newspaper articles on campus. Administrators were contacted by some parents who had various concerns. The school principal and a district administrator testified that they believed the Respondent's effectiveness as a teacher had been impaired as a result of the events of July 11, 2007. Prior to the date of these events, the Respondent had been convicted of a DUI offense, but the Petitioner had not yet taken any related disciplinary action. The employment of a Pinellas County teacher would not be routinely terminated on the basis of the Respondent's DUI conviction. While the allegations related to the events of July 11 were being investigated, the Petitioner reassigned the Respondent to work in the district warehouse, where he had numerous absences from work. The Respondent testified without contradiction as to his mental state of mind during this period to explain the absences. The evidence fails to establish that the Respondent's employment should be terminated solely on the basis of the absences.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of Gerald A. DiPanfilo. DONE AND ENTERED this 30th day of July, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2008.
The Issue Respondent's alleged immorality and misconduct in office on March 29, April 5, 6, 8 & 13, 1976, under Section 231.36(6), Florida Statutes, as set forth in letter to Respondent from James E. Maurer, dated June 18, 1976.
Findings Of Fact During the academic year 1975-1976, Respondent was a classroom instructor in science at the Coconut Creek High School, Broward County, Florida. In the fall of 1975, Marcia Vulpis, a 14 year-old student at the school, was assigned to his class. He noticed during the ensuing months that she stared at him frequently which made him somewhat uncomfortable. About December, he spoke to Pamela Quianthy, Attendance Clerk at the school, about Marcia's behavior. Quianthy, who had observed Marcia on several occasions because of her presence in the office as a student aide, agreed that she was a rather strange girl and that she, Quianthy, also felt uncomfortable in her presence. In March, 1976, Marcia came into another class that Respondent was teaching and somewhat hysterically told him that she needed to see him right away. Respondent sensed the urgency in her request and was pleased that she had sought him out since she had seemed somewhat hostile during prior months. They thereafter had a long discussion at his office during which she informed him that a young man who lived next door to her had raped her and that she was bleeding inside. At this time, she also expressed past and present suicidal ideations and thoughts of murdering certain persons. She said that she had not told her mother or the police about the rape and did not wish to do so. He urged her to see a physician about her condition and determined that she was willing to have her 21 year-old aunt take her for such purpose. Respondent asked Quianthy to talk to her concerning the matter and she did so. During this conversation, Marcia told her that she had been raped and had not told anyone about it. Quianthy recommended that she inform her parents and also advised her to see a doctor. The next day the aunt came to the school to take Marcia to a doctor and Respondent sent them to the school dean for necessary permission to leave the grounds. (Testimony of Respondent, Quianthy) During the third week of March, 1976, Marcia, who sat at a desk directly in front of Respondent in his classroom, began writing notes to him during class in which she expressed love for him. On one occasion, after class, she told him that she wanted to go to bed with him. He reprimanded her for her statement. She pursued her request by subsequent notes and he penned some responses thereon advising her to come to his office to talk about it or to call him at home. He was concerned for her welfare and wished to help her. He did not refer her to the school counselor because she refused to talk to anyone else about her problems and he felt capable of providing necessary counseling because of his past experience as a Baptist minister and handling work experience programs in the school system. He made arrangements with Quianthy for her to phone him at his office during Marcia's visits in order that he would have an excuse to leave if necessary because he feared what the student might do on these occasions and wanted some means of leaving gracefully. The meetings in his office were held usually before afternoon classes commenced, and were at the request of Marcia. At one of these meetings, she told him that he was "driving her crazy" and attempted to kiss him. He pushed her away and cautioned her against such demonstrations. On another occasion, she remained after class and kissed him on the cheek, telling him that she loved him. He also admonished her at that time for her conduct. The above-mentioned incidents were the only times when there was physical contact between Respondent and the student. (Testimony of Respondent, Quianthy Petitioner's Exhibits 3-8) Respondent showed Marcia's notes to his wife and they discussed them a number of times. He also showed the notes to Quianthy and Regina Howard, a friend. Mrs. Howard had previously sought out Respohdent to assist her daughter with adolescence problems because she knew of his background as a minister and youth counselor. He discussed Marcia's situation with her and was serious about his concern for the girl. He requested that Howard get in touch with Marcia. She tried to do so several times, but was unable to contact her. (Testimony of Respondent, Ruth Barnett, Howard) During the school Easter vacation in April of 1976, Marcia called Respondent's home and his wife answered the telephone. Marcia asked to speak to "Ronnie" and during a subsequent conversation with Mrs. Barnett, learned that Respondent had shown her notes to his wife. Marcia was quite upset at learning this fact and said, "I'll show him." She also acknowledged to Mrs. Barnett that she had kissed the Respondent in his office and that she would assume the blame for that incident. Respondent attempted to speak with her at this time but she was too upset. The next day her aunt called him and said that Marcia had told her of certain sexual advances that had been made by Respondent. He informed her that this was not true and asked her to have Marcia call him. She did so and they agreed to meet at Fort Lauderdale Beach because she was staying with her father there. They subsequently met at a prearranged place where Respondent picked her up in his car and, after driving around a few minutes looking for a parking space, parked in a vacant motel parking lot. Respondent explained to her that he had retained her notes against her wishes and shown them to others because he did not feel confident to counsel her concerning female problems. There was no physical contact during this meeting. (Testimony of Respondent, Mrs. Barnett) After Easter vacation was concluded, Marcia informed Respondent that her mother had found her diary and that he would have to be careful or she (Marcia) would "put a noose over his head." Her mother, after discovering the "diary" (consisting of several sheets of notebook paper) that contained matters concerning Respondent, took Marcia to their church, Jehovah's Witnesses, where she told the elders of the church about her association with Respondent. Her father, who was divorced from Marcia's mother, was present and heard Marcia relate her alleged experiences with Respondent. He thereafter reported the matter to the authorities at Coconut Creek High School, taking with him one or two pages of Marcia's diary which contained entries for the last week of March. These included references to several of her visits to Respondent's office during which he had purportedly kissed her and fondled her breasts. (Testimony of Respondent, John Vulpis, Petitioner's Exhibit 11) A school investigation ensued during which Marcia initially declined to cooperate, but eventually made a written statement in which she,stated generally that she trusted and respected Respondent, that he was a good man and she did not wish anything to happen to him. Respondent was questioned by school security personnel and he related the two incidents when Marcia had kissed him on one occasion and had attempted to do so on the other. He also told them about the incident at the beach which had not been known to the investigators at the time, and he turned over Marcia's notes to them. Later, Marcia made another written statement in which she said that she and the Respondent had kissed each other three different times in his office and that on at least two occasions, he had put his hands on her breasts inside her blouse and kissed her breasts. Her statement also related that they had kissed one another during the beach incident and that he had kissed her breasts and had put his hands down her pants and that she had touched his "privates." In this statement she also said that he had made certain suggestive statements to her during classes earlier in the school year and that, although she had informed him of a sex experience with a "guy I loved," she had not told him she was raped. (Testimony of Respondent, Stearns, Patterson, Petitioner's Exhibits 9 & 10) Marcia Vulpis testified at the hearing and her version of the relationship with Respondent and their meetings differs in material respects from that of Respondent which is set forth in the foregoing Findings of Fact. She testified that Respondent made several suggestive remarks to her during the school year. She admitted seeking him out to discuss the incident with the boy next door and that he had advised her to see a doctor. She stated that, although she had disliked Respondent at first, she later changed her views and began writing notes to him. She admitted asking him to go to bed with her, but testified that while discussing this request in his office on March 29, 1976, Respondent pulled her in the corner and kissed her. She also testified that during other visits to his office on April 5, 6 & 8, they kissed one another, and Respondent kissed her breasts and touched her on the vagina, and that she touched him on the penis through his trousers. She stated that similar acts occurred during their meeting on the beach in mid-April. After her mother discovered the diary and her father had reported the relationship with Respondent to school authorities, she asked the Respondent what they were going to do and he replied that they were in a lot of trouble. Although conceding that she was upset after discovering that Respondent had showed her notes to his wife and others, she said that she did not tell anyone she would seek revenge for his disclosure. She also conceded that she had taken LSD and "pills" from nine to eleven years of age and had had a few "trips". She testified that she attempted to kill herself when she was ten years old with a needle when she was "freaked out." She further stated that she had thought about suicide a lot of times and that the last time she harbored these thoughts was in early March and that they were prompted by her failure to get along with her mother. Although she had loved Respondent, she decided after the investigation that she loved him no more. (Testimony of Marcia Vulpis) School policy at Coconut Creek High School which is announced to all teachers at the beginning of each school year, is that an upset or disturbed child should be referred by an instructor to the school guidance staff, that included a full-time psychologist. This policy was also contained in a handbook issued to instructional personnel. (Testimony of Weatherred, Roesch, Larson) Respondent is 45 years old and posseses a bachelor of arts degree in theology and linguistics and a masters degree in elementary education. He additionally has completed approximately 90 hours of post-graduate study. He served as a Baptist minister for five years in Lowell, Massachusetts and three years in another pastorate in Newton, New Hampshire. His prior experience includes service as an elementary school principal at Turner Falls, Massachusetts. He entered the teaching profession because of family obligations that required greater remuneration than received in the ministry. He has four children. He entered the Broward County school system in 1970 working with low- achievers at the Pines Middle School in a work experience program for two years. He served one year at Plantation doing the same type of work and in 1974 was transferred to the Coconut Creek High School where he set up a work experience program. He has done extensive work in counseling young people with their problems both as a minister and teacher. Respondent admitted that he had had marital conflicts with his wife in the past and that he had lived alone in Florida for a period of time, but that their marriage relationship was good at the present time. (Testimony of Respondent, Respondent's Exhibits 2, 3) Although denied by Respondent on cross-examination, evidence was received that he had patted two female office employees of the Coconut Creek High School on their posteriors in a "friendly" manner while walking by them in the office, and that he had also ran his finger down the back of their dresses. (Testimony of Ivell, Herter) Respondent was suspended without pay by Petitioner on June 18, 1976 pending final action on the charges involving Marcia Vulpis. (Exhibit l)
Recommendation That the School Board of Broward County, Florida reinstate Ronald R. Barnett as an instructor and restore all back pay and other benefits that have been withheld during the period of his suspension. DONE and ENTERED this 13th day of August, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1976.
The Issue Whether the Respondent, Darrell Timothy Roundtree (Respondent), committed the violations alleged in the Administrative Complaint dated May 30, 2006, and, if so, what penalty should be imposed. The Respondent has denied any and all wrongdoing.
Findings Of Fact At all times material to the allegations of this case, the Respondent was a teacher employed by the Broward County Public School District. He was assigned duties as a physical education teacher during the 2003/2004 school year at Walker Elementary School. The Respondent holds a Florida Educator’s Certificate and is subject to the provisions of law governing the conduct and discipline of teachers within the state. The Petitioner is responsible to investigate and prosecute complaints against persons who hold Florida Educator’s Certificates who have allegedly violated provisions of law. In this case, the Petitioner filed a six-count Administrative Complaint against the Respondent following an investigation of charges that came from the Broward County School District. Although the allegations in the instant case are not the first disciplinary concerns regarding the Respondent, the instant charges, if proved, are sufficient to warrant disciplinary action against the Respondent's teaching certificate. Prior allegations against the Respondent resulted in a Letter of Concern being placed in his file based upon a claim that he had tweaked the nipples of a seven-year-old student. A second charge was not prosecuted due to the lack of cooperation by the alleged victim and his parent. The Respondent resigned his employment with the Broward County School District on September 16, 2005. The resignation followed an investigation into the conduct that is the subject matter of the instant proceeding. Sometime in 2003 the Respondent started a business for the purpose of providing male escorts. As depicted in this record, males hired through the Respondent's company were dispatched to parties or events and asked to dance and provide male companionship for the attendees of the party. Although prostitution was not the stated goal of the enterprise, it was not without possibility given the nature of the information describing the males. Pictures of the males were posted to the Respondent's website with listings as to sexual preference, age, and dimension of the males' anatomy. Although he initially denied involvement in the website, the record is clear the Respondent took pictures of partially nude males for the purpose of posting them on the website, SouthFloridaThugz.com. One of the males was a student in the Broward County GED program. The student, J. M., heard about the Respondent's business through a friend. A partially nude picture of J. M.'s friend was posted on the Respondent's website. According to J. M., the Respondent would take pictures of the males, post them for review, and schedule "parties" for the "clients" to attend. J. M. was scheduled to attend one such party. Based upon his conversation with the Respondent, J. M. expected to attend a party, dance nude for the attendees, and receive $300.00 for compensation. From that $300.00 J. M. expected the Respondent to receive a portion of the compensation. J. M. believed that the party would have women as well as men in attendance. J. M.'s friend had suggested that sometimes "safe sex" might occur. When he got to the party, J. M. was stunned to find that only men attended. He did not expect to be watched by gay men. He did not agree to that and insisted on leaving. He returned the $300.00 and told the Respondent he would not "do business" with him. Later J. M. went to authorities to file a complaint against the Respondent. J. M.'s complaint led to an investigation by the Broward County School District. Thereafter, the Respondent's school-issued computer was examined. The school-issued computer was used to access adult websites, chat sites, and other inappropriate sites. Petitioner's Exhibits 6 and 8 show a complete listing of the sites. The Respondent claimed that the computer use was not his, but such denial has not been deemed credible. After the matter was fully investigated by the Broward School District, it was determined that the Respondent had lost his effectiveness with the school system. The instant case was investigated and prosecuted over a period of time within which the Respondent and others gave multiple statements. The Respondent gave inconsistent and contradictory statements on more than one occasion. The student, J. M., was deemed the more credible of the two. Further, it is determined that the computer history of the Respondent's school-issued computer clearly and unambiguously established that the Respondent accessed inappropriate websites and chat rooms. It is determined that the Respondent did not verify the age of J. M. before making the pictures of his nude torso and groin area. Further, the Respondent did not maintain records to verify that the other nude and partially nude males depicted on the website were adults. Finally, it is determined that the purpose of the website was not for "dancing." The depiction of the males' penises in a state of arousal would not suggest or relate to any dancing ability. The Respondent's claim that his privacy has been invaded is unfounded. Teachers in the State of Florida are held to a high standard of conduct. It is expected that a school- issued computer may be subject to inspection by school authorities. The Respondent has taught for approximately 21 years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking the Respondent’s teaching certificate. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 5th day of March, 2009. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224-E 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Darrell Timothy Roundtree 2388 South Oakland Park Drive, Apartment 202 Oakland Park, Florida 33309
The Issue The issue is whether the Seminole County School Board has just cause to terminate Respondent's employment or to otherwise discipline him based upon the conduct alleged in the Petition for Termination.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties The School Board is the governing body of the local school district in and for Seminole County, Florida. Respondent is a 48-year-old male. He has been employed as an educational support employee of the School Board for approximately five years. During the 2001-02 school year, Respondent worked at Seminole High School (SHS) as a computer specialist. Collective Bargaining Agreement and SHS Handbook Respondent's employment with the School Board is governed by the collective bargaining agreement between the Seminole Educational Clerical Association, Inc., and the School Board (SECA Agreement). Article VII, Section 5 of the SECA Agreement provides in pertinent part: Regular employees who have been hired for a minimum of three (3) continuous years . . . shall not be disciplined (which shall include reprimands), suspended, or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present: Violation of School Board Policy. Violation of work rules. * * * Article VIII, Section 1 of the SECA Agreement provides in relevant part that "[e]mployees may be immediately disciplined including termination for serious violation of the following: misconduct; " Respondent's employment is also governed by the SHS Faculty Handbook (SHS Handbook). The SHS Handbook is provided to SHS employees at an orientation session prior to the beginning of each school year. Respondent acknowledged receipt of the SHS Handbook prior to the 2001-02 school year. The SHS Handbook includes a sexual harassment policy which states that the School Board "will not tolerate sexual/racial harassment activity by any of its employees." As it relates to the circumstances of this case, the policy defines sexual harassment as follows: Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other inappropriate verbal, nonverbal, graphic, written or physical conduct of a sexual nature when: * * * (c) such conduct substantially interferes with . . . [a] student’s academic performance, or creates an intimidating, hostile, or offensive . . . school environment. Sexual harassment, as defined above, may include but is not limited to the following: verbal, nonverbal, graphic, and written harassment or abuse; * * * (c) repeated remarks to a person with sexual or demeaning implications; * * * In determining whether alleged conduct constitutes sexual[] harassment, the totality of the circumstances, the nature of the conduct, and the context in which the alleged conduct occurred will be investigated. . . . . The sexual harassment policy in the SHS Handbook is virtually identical to the School Board's district-wide sexual harassment policy. Thus, a violation of the policy in the SHS Handbook is a violation of School Board policy. Alleged Inappropriate Comments/Conduct by Respondent During the 2001-02 School Year Respondent had four "peer counselors" assigned to him during the 2001-02 school year, including eleventh-grader Nichole Combee. A peer counselor is a student who assists a teacher or other school staff member with designated tasks, such as filing or running errands on campus. The student provides that assistance for one class period per day. Nichole had approached Respondent at some point during the first semester of the 2001-02 school year and asked whether she could be a peer counselor for him. The record does not reflect the process by which that request was processed or approved by the administration at SHS, or even whether such approval is required. Nichole started as a peer counselor for Respondent in January 2002, which is the beginning of the second semester of the 2001-02 school year. Nichole continued in that position through May 23, 2002, when the regular school year ended. Nichole was Respondent's peer counselor during seventh period, which is the last period of the school day. Nichole's primary duty as Respondent's peer counselor was filing computer permission slips. During the time that Nichole was Respondent's peer counselor, she discussed her family troubles and school attendance problems with Respondent and his assistant, Mark Williams. Respondent tried to help Nichole with those problems. On several occasions, he talked to Nichole's mother on the phone in an attempt to help work things out between Nichole and her mother with respect to the "trouble" created at home by Nichole's academic and attendance problems. Nichole also discussed problems that she was having with male students and some male teachers at SHS looking at her large breasts rather than her eyes when they were speaking to her. She told Respondent at the time that he and Mr. Williams always looked her in the eye, and she reaffirmed that statement in her testimony at the hearing. Nichole discussed matters related to her breasts with Respondent on other occasions as well. On at least one occasion, she told Respondent that her breasts caused her back to hurt because of their size. On subsequent occasions when Nichole complained about her back hurting, Respondent replied by saying, "Well, you know why." That comment was intended by Respondent and understood by Nichole to be a reference to Nichole's prior comments that her large breasts were the cause of her back pain. Respondent never told Nichole that she should not discuss her breasts or other personal matters with him. Respondent acknowledged at the hearing that it would have been inappropriate for him to initiate a conversation with Nichole about her breasts (as a source of her back pain or otherwise), but that he did not see anything wrong with the discussions that he had with Nichole on that subject because she brought it up and because there was nothing sexual being implied. After classes had ended on the last day of the 2001-02 school year, a number of students engaged in a "water fight" using water balloons and "water bazookas." This conduct is apparently a "tradition" at SHS. The SHS administration had directed the school staff to try to prevent this conduct and/or to get the students off campus and onto their busses as quickly as possible. Respondent observed a group of students involved in a water fight near his office in the media center, and he went outside to break up the students. The group included Nichole and her friend Natalie Cotto-Caraballo, who was a tenth-grader at SHS. Nichole and Natalie were wearing white tank-top shirts that they had made for the last day of school. The shirts had gotten wet during the water fight and, as a result, the girls' bras were visible through the shirts. Respondent commented to Nichole and Natalie that he could see their bras through their shirts and that they needed to cover themselves up. He then directed the girls and the other students in the group to their buses. Nichole testified that the comment made her feel somewhat uncomfortable because "it's our bras and, you know, even though people see them, usually they don't say anything, you know." Respondent's comment regarding his ability to see the girls' bras was not inappropriate under the circumstances; it was a statement of fact and justified Respondent's direction to the girls to cover themselves up. Nichole did not immediately report the bra comment, either to her parent(s) or the SHS administration. Indeed, the comment did not even come to light until Nichole's second interview with the School Board's investigator in August 2002. Respondent gave Nichole a hug as she was leaving for her bus on the last day of school and told her to have a nice summer. Despite its close proximity in time to the bra comment, Nichole testified that the hug did not make her uncomfortable. She just considered it to be friendly "good bye" hug, which was all that was intended by Respondent. Nichole did not complain about Respondent to her parent(s) or anyone in the SHS administration during the time that she was his peer counselor. Lunch Invitations During Summer School Nichole attended the first session of summer school, which began on June 3, 2002, less than two weeks after the end of the regular school year. The only class that Nichole took during summer school was an English class taught by "Ms. Morris." Nichole was not Respondent's peer counselor during summer school, nor was she working on any school-related project with Respondent during that time. On June 3, 2002, while Respondent and Mr. Williams were in Ms. Morris' class fixing a computer, Respondent asked Nichole if she wanted to go to lunch with him off-campus. Nichole declined the invitation because she was "grounded" and had to pick up her brother from school. Respondent was again in Ms. Morris' class on June 5, 2002, and he again invited Nichole to lunch. Nichole again declined. Respondent did not have permission from Nichole's parent(s) or the SHS administration to take Nichole off-campus. The reason that Respondent invited Nichole to lunch was to thank her for doing a good job as his peer counselor and to congratulate her on deciding to stay in school and attend summer school, which Respondent and Mr. Williams had both counseled her to do. Respondent had taken a former male student off-campus to lunch for the same reasons in the past. Respondent and Nichole were not alone at the time of either invitation. Both invitations occurred in Ms. Morris' classroom, and Ms. Morris and other students were "milling around" in the classroom at the time. At the hearing, Nichole testified that she didn't think anything of the lunch invitations at first since she considered Respondent a "friend." However, she also testified that it "it was a little uncomfortable because he is a teacher." Nichole did not report the lunch invitations to Ms. Morris or to anyone in the SHS administration. Nichole did, however, tell her mother about Respondent's lunch invitations because "she thought she should know." On June 5, 2003, Nichole's mother called the SHS principal, Karen Coleman, and complained about the lunch invitations. Ms. Coleman told Nichole’s mother that she would look into the matter, which she did. The resulting investigation led to this proceeding. Investigation and Preliminary Disciplinary Recommendation Ms. Coleman began the investigation by speaking to Nichole on June 5, 2002. That discussion focused only on the lunch invitations. Nichole provided Ms. Colemen an unsworn written statement regarding the lunch invitations on June 5, 2002. That statement did not include any reference to the "lingerie incident" discussed below or the incidents described above involving the bra comment or the hug that Respondent gave to Nichole on the last day of school. Nichole provided Ms. Coleman another unsworn written statement on June 6, 2002. That statement referenced Respondent's comments about the source of Nichole's back pain, but it did not mention the lingerie incident or the other incidents described above. After speaking with Nichole, Ms. Coleman spoke with Respondent. Respondent admitted that he had invited Nichole to lunch off-campus. He further admitted that he did not have permission from Nichole’s parent(s) to take her off-campus and that he did not obtain permission from the SHS administration. Respondent told Ms. Coleman that he did not realize that such permission was necessary. Respondent had taken a male peer counselor to lunch off-campus in the past without receiving approval from the student's parents or the SHS. After Ms. Coleman's conversations with Nichole and Respondent, she contacted John Reichert, the School Board's director of human resources. Mr. Reichert directed John Byerly, the School Board’s internal affairs investigator, to conduct a formal investigation. Mr. Byerly interviewed Nichole on June 10, 2002, at SHS. Nichole did not mention the lingerie incident, the bra comment, or the hug to Mr. Byerly during that interview. Mr. Byerly also interviewed Respondent and Mr. Williams as part of his investigation. The results of Mr. Byerly's investigation were presented to the Executive Professional Standards Review Committee (Review Committee) on June 27, 2002. Among other functions, the Review Committee is used to make disciplinary recommendations to Mr. Reichert. The Review Committee’s recommendation was characterized at the hearing as "preliminary," and it is apparently not binding on Mr. Reichert when he formulates his recommendations to the Superintendent regarding employee disciplinary actions. The Review Committee recommended that Respondent be suspended for three days and/or be reassigned or transferred to another school. That recommendation was based only upon Respondent’s lunch invitations to Nichole and comments regarding the source of her back pain; it did not take into account the lingerie incident, the bra comment, or the hug because those incidents had not been disclosed by Nichole or Natalie at that point. Mr. Reichert and/or the Superintendent apparently did not accept the Review Committee’s recommendation because the Superintendent's July 26, 2002, letter recommended termination of Respondent's employment. At the hearing, Mr. Reichert testified that the reason for the change in the recommended discipline was the subsequent discovery of the lingerie incident, which he characterized as the "major driving factor" behind the termination recommendation. However, the preponderance of the credible evidence demonstrates that the lingerie incident was not disclosed to School Board staff until after the July 26, 2002, letter. Alleged Gift of Lingerie The lingerie incident was first disclosed by Natalie on August 2, 2002, when she was interviewed by Mr. Byerly.1 Natalie had given an unsworn written statement to Ms. Coleman on that same date, but that statement did not mention the lingerie incident. Based upon the "new information" from Natalie, Mr. Byerly interviewed Nichole again on August 15, 2002. The interview occurred at Lyman High School (LHS), where Nichole had transferred for her senior year.2 After the interview, Mr. Byerly had Nichole prepare a sworn written statement. The statement included the following account of the lingerie incident, which was consistent with Nichole's testimony at the hearing: When I was a peer counselor for Mr. Reeder, I had walked into class on[e] afternoon in 7th period and we were talking and he said ["]oh here I got something for you.["] He handed me a white plastic bag and through the bag I could see a black thing and I knew it was the langera [sic]. I then just put it on the floor and went on with my work. When the bell rang I picked up my belongings including the white plastic bag. When I got on the bus I showed Natalie it. It was a black see[-]through spagatie [sic] strap shirt and black thongs. When I got off the bus I walked home and through [sic] it away. That was the last time anything was ever said about it. Mr. Byerly interviewed Natalie again on August 16, 2002. Natalie's told Mr. Byerly that the lingerie incident occurred "a couple months before the end of the regular school year" and that Nichole showed her the lingerie on the bus. However, the sworn written statement she prepared after the interview indicated that the incident occurred "[a]bout the day before school was over" and that she learned of it "on the bus/car." Nichole told Natalie that the lingerie was from Respondent. Natalie had no independent personal knowledge that it was from him. There were some inconsistencies in Natalie's and Nichole's descriptions of the lingerie, but those inconsistencies were not material. They consistently described the lingerie as having a black see-through top and black panties. Nichole did not report the incident to the SHS administration around the time that it allegedly occurred. Nor did she tell her mother about the incident, even though she considered the lingerie gift to be more inappropriate than the lunch invitations which she did immediately tell her mother about. Nichole testified that she was somewhat embarrassed by the gift and she did not want her mother to think she "led into it." Respondent unequivocally denied that he gave Nichole any lingerie or other clothing, and Nichole's and Natalie's testimony relating to the lingerie incident was not credible. Thus, the School Board failed to prove that Respondent gave Nichole the lingerie. It is undisputed that Respondent never engaged in any type of sexual contact (e.g., kissing, inappropriate touching) with Nichole. Nichole made that point clear in both of her interviews with Mr. Byerly and in her testimony at the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board issue a final order which dismisses the Petition for Termination and provides Respondent the remedial relief that he is entitled under the collective bargaining agreement. DONE AND ORDERED this 17th day of July, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 17th day of July, 2003.
The Issue Whether Respondent's teaching certificate should be revoked or otherwise disciplined on charges that he violated Section 231.28(1), Florida Statutes, and Rule 6B-1.06, Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida.
Findings Of Fact Respondent holds Florida Teaching Certificate No. 234479 issued by the Florida Department of Education and covering the area of Physical Education. (Request for Admissions, dated December 10, 1985.) At all times pertinent to this proceeding, Respondent 1 was employed as a teacher and basketball coach at Vero Beach Senior High School in Vero Beach, Florida. (Request for Admissions, dated December 10, 1985.) During the 1984-85 school year, Respondent was assigned an early morning duty station on the grounds of Vero Beach Senior High School. P.K., a senior at the school, became acquainted with him by passing him each morning as she rode her bicycle to school. (Petitioner's Exhibit 1, p. ll) P.K. attended Vero Beach High School for the eleventh and twelfth grades. She participated in various extra curricular school activities such as the Spanish Club, French Club, Latin Club, Junior Classical League and Future Business Leaders of America. She was a member of the Track and Soccer Teams, and captained the Cross-Country Team. She also worked at various part-time jobs after school. In June 1985, she graduated with a "B" average. (Petitioner's Exhibit 1, p.7) During her attendance at Vero Beach High School, P.K. did not attend any courses taught by the Respondent or participate in any sports which he coached. She became acquainted with him in December 1984. During lunch time she helped him keep statistics for the high school basketball team, which he coached. In January 1985, she would routinely spend her lunch hour in his office, visiting with him and keeping basketball statistics. (Petitioner's Exhibit 1, p. l3) By the first week of February 1985, her relationship with the Respondent had changed and become more intimate. In lieu of her attending track practice after school, the Respondent picked her up at school and drove her to his apartment, where they had sexual intercourse. Respondent then drove her back to school where she retrieved her bicycle. (Petitioner's Exhibit 1, p. 15 ) During February and March 1985, Respondent and P.K. engaged in sexual intercourse at his apartment on 10 to 15 different occasions. (Petitioner's Exhibit 1, p. l6) On most of these occasions, Respondent drove P.K. from the high school to his apartment, had sexual intercourse with her, then returned her to school to retrieve her bicycle. When this occurred, she would skip track or cross country practice. On one or two occasions he picked her up at her place of part- time after-school employment, took her to his apartment and had sexual intercourse. (Petitioner's Exhibit 1, p.l6) On Valentines Day in 1985, Respondent sent her an arrangement of roses which were delivered to the office at Vero Beach High School. (Request for Admissions, dated December 10, 1985: Petitioner's Exhibit 1, p. 19) Toward the end of March 1985, P.K. told her mother about her relationship with Respondent. During the two months in which Respondent repeatedly engaged in sexual intercourse with P.K., he told her that he loved her. During the Summer of 1985, he asked her if she would marry him, and she agreed. (Petitioner's Exhibit 1, p. 22) During the period of time in which they were sexually intimate, Respondent told her that she should find a method of birth control and use it. (Petitioner's Exhibit 1, p. 22) On one occasion in February 1985, Respondent and P.K. visited the local beach after school. There were other students from the high school present on the beach at the time. (Petitioner's Exhibit 1, p.24: Tr. p.ll) After P.K. told her mother about her sexual relations with Respondent, school officials were contacted and advised of the situation. The Superintendent of Schools for the Indian River County School District immediately initiated an investigation into the matter. During the course of the investigation, school officials interviewed P.K. and questioned her extensively concerning the contents, furnishings and physical layout of Respondent's apartment in an attempt to either confirm or disprove her allegations. After obtaining from her a detailed description of Respondent's apartment and furnishings, Assistant Principal Gregory Smith and Personnel Director Douglas King visited Respondent's apartment. They found that her description was accurate, including her description of quilts located on the floor in Respondent's bedroom closet and a bag of frozen clams in his freezer. (Tr. pp. 36-39) When school officials interviewed Respondent, he told them that during the evening of March 22, 1985--when P.K. had indicated that she and the Respondent were together--he was with John Wyatt, a friend, until approximately 11 or 12 o'clock. Although he and Mr. Wyatt were together on the evening of March 22, 1985, watching an NCAA basketball game, Respondent drove Mr. Wyatt home at approximately 9 p.m., at which time he told Mr. Wyatt that he was going to pick up P.K. at Gringo's Restaurant, where she worked after school. (Tr. p. 14,40) During the course of the School Board's investigation, the local news media learned of the matter and began providing extensive coverage of the allegations and investigation. The three newspapers serving the Vero Beach area, as well as local radio and television stations, provided extensive coverage of the incident. (Petitioner's Exhibit 2 Tr. pp. l9,28) As a result of the extensive coverage by the news media, allegations against Respondent became well known among students, faculty and staff at Vero Beach High School. As a result of the notoriety, P.K. suffered embarrassment and disparagement. Her friends avoided her for several weeks. A member of the school basketball team confronted her on more than one occasion because he was upset over Respondent's resignation. (The basketball player felt that this ruined his chance of going to college Respondent had been helping him in that effort.) On another occasion, a student pointed out P.K. to a reporter who was on campus gathering information about the incident. P.K. was so upset and embarrassed that the Principal recommended that she leave school for a day or so. (Petitioner's Exhibit 1, pp. 40, 41 Tr. pp.l7, 28, 30) In addition to the embarrassment and disparagement which P.K. suffered as a result of the notoriety surrounding the incident, her grades suffered. (Tr. pp.23,24) P.K. had a good reputation for truth and veracity at Vero Beach Senior High School. (Tr. pp.24,28) P.K. received mental health counseling to help her deal with mental and emotional problems resulting from her relationship with Respondent and the notoriety surrounding the incident. (Tr. pp.43,44) Prior to her involvement with Respondent, P.K. planned to attend college. Her relationship with Respondent and its after effects contributed, at least in part, to her subsequent decision to forego college. (Petitioner's Exhibit 1, pp. 45,46) Respondent's sexual involvement with a female high school student, recognized by administrators, teachers and students as improper conduct, has seriously diminished his effectiveness as a teacher.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's Florida teaching certificate be permanently revoked for violating Section 231.28(1), Florida Statutes, and rules of the State Board of Education. DONE and ORDERED this 9th day of April, 1986, in Tallahassee, Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1986.
The Issue The issues are whether Respondent threw a chair at one student, missed him, but hit a desk that impacted and injured another student; if so, whether such conduct constitutes a violation of section 1012.27(5), Florida Statutes (2018), or any of the various School Board Policies (Policies) or Department of Education rules (Rules) discussed below; and, if so, whether Petitioner's termination of Respondent is consistent with the provision of progressive discipline set forth in the Collective Bargaining Agreement for the period, July 1, 2017, through June 30, 2020 (CBA).
Findings Of Fact Respondent is a 61-year-old teacher holding educator certificates in middle school mathematics and business education. Petitioner has employed Respondent as a classroom teacher since 2005. Respondent has no prior discipline. Since 2012, Respondent has taught at Turning Point Academy, which is an alternative school operated by Petitioner. The students at Turning Point Academy have been expelled from, or repeatedly disciplined at, other schools and range in age from 14 to 17 years old. In December 2018, 90 to 95 students were enrolled in the school, but absences, usually unexcused, averaged about 40% each day. The school building is organized with several classrooms opening onto a common area, where a behavior intervention associate (BIA) sits at a desk, ready to help a teacher in an adjoining classroom control disruptive student behavior. In each common area are restrooms and an eating area. The BIA serving Respondent's common area on the date in question had ten years' experience as a BIA and 22 years' prior experience as a sheriff's deputy. Respondent has been fully trained in appropriate interactions with students and classroom management. Respondent's evaluations for 2016-18 were all "Effective"; her evaluation for 2019 was "Highly Effective." However, the assistant principal of the school was dissatisfied with Respondent's classroom management skills. In response to what he viewed to be an excessive number of office referrals, the assistant principal had recently directed Respondent to take care of the behavior problems herself and had assigned her to take a two-part program on classroom management. The assistant principal also directed Respondent to use the school's system of assigning tally marks for good and bad behavior. Absent seriously inappropriate behavior, the tally system requires three bad tally marks before the teacher could refer a student to the BIA, who then could decide whether to refer the student to the office. The record is silent as to the effectiveness of the tally system in shaping student behavior in general, but it is unlikely that the two student disrupters at the center of the incident on December 20, 2018, were deterred by the prospect of a few (more) bad tally marks. During the 2018-19 school year, Respondent taught math to students in sixth through eighth grades. The class at issue was a 100-minute, eighth-grade math class that took place late on the day of December 20, 2018, just before winter break. Midway through the class, which was attended by six students on that day, three students began acting up. Respondent promptly intervened, and one of the students returned to his work. However, the other students left their assigned seats without permission. One student ran toward the back of the classroom, and the other student ran toward the front of the classroom, where Respondent was situated at her desk in the corner opposite from the corner at which the door to the common area was located. The students were yelling profanities and tossing paper in the air--some of both of which were directed at Respondent. One or both of the students demanded to know where Respondent lived and what kind of car she drove in a clear attempt to intimidate her. The student running toward Respondent invaded Respondent's space, as he ran behind her desk in the narrow space between her desk and the whiteboard, where he seized a marker, taunted Respondent that he had the marker, and wrote the word, "fuck," on the whiteboard. The class was equipped with a buzzer to summon the BIA, but the buzzer was located by the classroom door on the opposite side of the room from Respondent's desk. It is unclear if it occurred to Respondent to tell another student to hit the buzzer, but she never did so and had never previously done so. Instead, Respondent leaned over the depth of her desk-- about three feet--and grasped a lightweight chair with a plastic back and seat and metal legs. She shoved or pushed the chair briskly across the tile floor in the direction of the student who had rushed her desk, even though he was now careening toward the classroom door along the front of the classroom in the space between the whiteboard and the first row of desks. The chair missed the fleeing student, but struck the wall under the whiteboard with sufficient force that it ricocheted into the desk of a student who was seated, watching this incident unfold. The chair caused the desk to topple onto the right knee of the student. In his deposition, the injured student testified that, in addition to the ice applied to the knee immediately after the incident, the only treatment that his knee required was a couple of weeks' rest. The next day, the injured student was back at school walking without favoring the injured knee. The assistant principal directed Respondent to telephone the injured student's parent and inform her what had happened, suggesting that the assistant principal considered the injury minor--or else, from a liability perspective, he would have made the call himself, rather than assign the responsibility for making the call to the staffperson who had caused the injury. Respondent made the assigned call to the injured student's parents--and, on her own, several others during the winter break to check on the child whom she had accidentally injured with the shoved chair. In her initial statement, Respondent stated that she had thrown the chair, rather than shoved it along the floor. The injured student testified that Respondent threw the chair above the height of the desks, but desks did not occupy the space between her and the fleeing student, so, at minimum, elevation was unneeded to hit the student with the chair. Other student testimony indicated that the chair did not rise above the tops of the desks. More importantly, Respondent remained behind her desk, and the chair was in front of the desk. If Respondent could gain the leverage to lean across the desk and grasp the chair, she would lack the leverage to throw it with any force at all. The proof establishes no more than that Respondent leaned across her desk and gave the chair a hard shove across the front of the classroom in the direction of the fleeing student. It is difficult to understand why Respondent would state that she had thrown the chair, if she had not thrown the chair in the common sense of the word, "throw," which is "to propel through the air by a forward motion of the hand and arm."1 Clearly, when she gave the statement to the school police investigator shortly after the incident, Respondent remained overwhelmed 1 Merriam-Webster online dictionary, https://www.merriam-webster.com/dictionary/throw. by what had happened to her in her classroom. Also, as demonstrated at the hearing, Respondent's language skills are not so highly developed that she would invariably differentiate between throwing a chair in the air and shoving a chair along a floor. Two key witnesses establish Respondent's condition during and immediately after the incident. According to the BIA, who saw Respondent a few seconds after the incident ended, Respondent was not angry, but was visibly shaken up and upset. She told the BIA that she had been afraid when the student charged her. The injured student testified similarly that Respondent's reaction was fear, not anger. Interestingly, the injured student admitted that he too would have experienced fear, even though the charging student was a classmate. Immediately after testifying to this fact, the injured student added that he had overheard the two disruptive students at lunch discussing school shootings--a highly sensitive issue in schools today and even more so in December 2018, only a few months after the Parkland shootings. Respondent claims that she acted in self-defense. There are two problems with this claim. First, objectively, Respondent did not act in self- defense, because, by the time that she shoved the chair, the student was running away from her, and she was out of immediate peril. On the other hand, the charging student had momentarily terrified Respondent, and it is not inconceivable that, in her fearful or panicked state, she formed a plan of action that, by the time she executed it, was a fraction of a second after the rushing student had turned to run across the front of the classroom. The second problem is the belated emergence of Respondent's claim of self-defense, months after the incident took place, but there are a couple of explanations. As noted above, Respondent's claim of self-defense is a little bit of a mislabeling. Perhaps the two students' outrageous behavior caused Respondent to feel that she needed to defend herself; without doubt, this behavior caused Respondent to react in fear and even panic. Perhaps Respondent did not find even the self-defense label for her claim until represented by counsel. Clearly, Respondent omitted numerous important details concerning the behavior of the two disruptive students in her initial statement--again, not surprisingly, as she was still overwhelmed by what had happened to her and that she had accidentally injured an innocent student--in fear, not in anger. Interestingly, when Respondent finally presented the additional details, the assistant principal rejected them as Respondent's "changing her story." This dismissal betrays Petitioner's misconception of the case, whose center is not the changed fact of the specific action that Respondent applied to the chair, but to her state of mind when she applied the action to the chair. Regardless of whether she had thrown the chair high in the air or shoved it along the floor, Respondent had been driven by the two disruptive students to a state of utter fear and likely panic. To the assistant principal and Petitioner generally, a second changing fact may have been that she acted in fear, not anger, but no competent evidence ever supported characterizing her state of mind as angry. Despite the myriad conferences, emails, and witness statements filling Petitioner's file, there is no thoughtful analysis of what motivated, or drove, Respondent to apply force to the chair in the direction of the fleeing student. To the contrary, Petitioner has ignored strong evidence on this crucial issue from two witnesses--one of whom is disinterested and exceptionally experienced and competent at reading demeanors, collecting evidence, and analyzing evidence. And this evidence clearly establishes the reaction of an older woman in a state of fear or panic, not anger. Nor did student testimony, besides from the injured student, support Petitioner's theory of the case. The deposition testimony of these students was of little value because it was vague or guarded. During a particularly unproductive deposition of one of the disruptive students, likely the one who rushed Respondent,2 the following exchanges occurred: Q: Okay, Mr. O, I want to make something very clear that we're not here today because of anything that you did. You're not in trouble or you're not here because you did something wrong. A: Uh-huh. Q: Okay. We just are trying to get some information and to see if you have any recollection of some events that occurred-- A. All right. Q: last school year in December. Do you recall giving a statement to school police about a situation that happened in Ms. Larson's class, a chair that was thrown? A: (Shakes head) Q: You don't? Say yes or no. A: No, ma'am. Q: All right. One moment please. Do you recall giving a statement to school police that you were getting papers off Ms. Larson's desk when a chair was thrown at another student? A: No. Who this go to? Q. Pardon me? A. Who this go to? Q. What is your question? A. Who do all this go to? 2 It is hard to identify individual students due to the redactions and absence even of students' initials in the Petitioner's investigative paperwork. Q. It's going before a judge in a case, a different case. A. I'm saying, so why do I got something to do with this? Q. Because you gave a statement to the school police. You were in class the day that Ms. Larson threw a chair and hit a student in his knee. A. I gave a statement? * * * [After the student refused to waive reading and signing]: Q. Okay. So we will have [the transcript] sent to Ms. Richardson. A. So this something that I got to go to court for? Q. Well, probably not. We might use your deposition instead of … . Remember, this has nothing to do with you. A. I thought-- Q. This is all about Ms. Larson. A. A deposition like when you get send sent to a program. Deposition of G.O., pp. 10-11 and 16-17. At bottom, Respondent found herself in a very bad situation not at all of her making. In a blatant attempt to reduce the classroom to utter chaos, rather than to cause a mere disruption, two students unfortunately seem to have succeeded in momentarily terrorizing a teacher into incoherence. Neither the school police officer nor any of Petitioner's supervisory employees saw the need to contact outside law enforcement. A document mentions a child protective investigator by name, but the record does not suggest that she pursued an investigation. The prevailing thinking among Petitioner's representatives seems to have been that Respondent was neither negligent nor reckless and that she did not intend to hurt the injured student, whose parents did not wish to pursue the matter due to the negligible injury. Understandably, no one seems to have analyzed the situation from the perspective of the actual target of the chair--the fleeing student--as such an exercise would have uneasily cast the real perpetrator as the victim. But such an exercise might have led Petitioner at least provisionally to set aside its fixation with the "fact" that Respondent had thrown the chair high in the air and, more importantly, its assumption that Respondent had acted in anger.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the charges set forth in the Administrative Complaint and reinstating her with full back pay. DONE AND ENTERED this 2nd day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 2nd day of December, 2020. COPIES FURNISHED: Jean Marie Middleton, Esquire V. Danielle Williams, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 (eServed) Nicholas A. Caggia, Esquire Johnson & Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Donald E. Fennoy II, Ed.D., Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869 Thomas L. Johnson, Esquire Law Office of Thomas Johnson, P.A. 510 Vonderburg Drive, Suite 309 Brandon, Florida 33511 (eServed)
The Issue Whether Respondent violated Pinellas County School Board policies related to sexual harassment, inappropriate sexual conduct with students, and inappropriate relationships with students, and if so, whether the violations constitute just cause for her dismissal as a teacher.
Findings Of Fact Respondent, Dorothy Simon (Respondent), has been employed as a teacher by the Pinellas County School Board (School Board) since 1980. Her entire teaching career in the Pinellas County School District has been spent at the Pinellas Technical Education Center (PTEC). Pursuant to her employment, Respondent was issued a professional services contract. During the 1995-96 school year, Respondent taught an electronics technology course at PTEC in which approximately twenty-six (26) to thirty (30) students were enrolled. The course lasted one year, and upon completion of the course work, the students received a certificate. Except for one seventeen year old who was enrolled in the course, all of the students in Respondent's class were between the ages of twenty (20) and forty-eight (48) years old. On or about March 1996, a male student named Thomas Mitchell, who was approximately forty (40) years of age, enrolled in the electronics technology course taught by Respondent. Mitchell, who was not married, held himself out as an ordained minister and told Respondent that he wanted to be called "Reverend Mitchell". Consequently, Respondent as well as students in the class referred to and addressed Thomas Mitchell as Reverend Mitchell. On or about July 15, 1996, Mr. Mitchell gave the Respondent a letter in which Mr. Mitchell expressed a physical and emotional attraction to her and discussed starting a relationship with the Respondent. Prior to July 19, 1996, while on school premises, Respondent approached Mr. Mitchell and asked him if he would accompany her and her thirteen year old daughter to the Summer Olympics in Atlanta, Georgia, and act as their bodyguard during their stay. On or about July 19, 20 and 21, 1996, Mr. Mitchell accompanied Respondent and her daughter to the Summer Olympics in Atlanta. Mr. Mitchell drove the Respondent's car to Atlanta. While in Atlanta, Mr. Mitchell stayed with Respondent and her daughter in a hotel room which Respondent had reserved and paid for a year in advance. Respondent paid for Mr. Mitchell's meals and gave him $50.00 spending money. Mitchell later return the $50.00 to Respondent. After class, on or about July 22, 1996, Respondent drove several students to a nearby bus stop and Mr. Mitchell to Workforce, a center near PTEC where he tutored children. While Respondent was driving Mr. Mitchell to Workforce, she asked him if he would house-sit for her while she and her daughter were on vacation for two weeks. The Respondent offered to pay Mr. Mitchell $100.00 each week, and in return he was to feed her pets, clean her pool and live in her house while she was vacationing. Mr. Mitchell accepted the Respondent's offer. After class, on July 25, 1996, the last day of school before the summer break, Respondent drove several students to the bus stop and gave Mr. Mitchell a ride to his mother's apartment where he lived. Both the bus stop and Mr. Mitchell's mother's apartment were in the vicinity of PTEC. Respondent had given Mitchell a ride home on one other occasion and often gave other students rides to various places when they so requested. Shortly after Respondent dropped Mr. Mitchell off at his mother's apartment, while driving home, Respondent was involved in an automobile accident in which Respondent's vehicle struck a teen-age girl. After police and paramedics arrived at the scene of the accident, Respondent remained on the scene. However, about one hour after their arrival, the police who were investigating the accident advised Respondent to go home. Respondent was quite shaken, and did not feel that she was in any condition to drive herself home. Rather than driving herself home, Respondent went to Mr. Mitchell's residence, which was nearby, and asked him to drive her home. Mr. Mitchell complied with Respondent's request. On the way to Respondent's house, Mitchell and Respondent made two stops. The first stop was at a bank where the Respondent made a cash withdrawal for the $200.00 that she was going to give Mr. Mitchell for house-sitting. The second stop was at a liquor store where Mr. Mitchell, at the Respondent's request, went inside and purchased a bottle of vodka. Mr. Mitchell then drove Respondent home and when they arrived, Respondent had one drink of orange juice and vodka. Respondent then went into her swimming pool to calm herself and was shortly thereafter joined by Mr. Mitchell. While both were in the pool, Respondent asked Mr. Mitchell to hug her because she wanted to be comforted. Mr. Mitchell then hugged Respondent and the two engaged in sexual intercourse. On or about July 27, 1996, Respondent and her daughter drove to Mr. Mitchell's residence and picked him up. Mr. Mitchell accompanied Respondent and her daughter to a swim meet in which the daughter was participating. After the swim meet, Mr. Mitchell drove the Respondent and her daughter to the airport for their departure on a two-week vacation. Mr. Mitchell returned to Respondent's home and house- sat for Respondent for two weeks while she was away on vacation, pursuant to their previously made agreement. As promised, Respondent paid Mr. Mitchell $100.00 per week for house-sitting. While on vacation, Respondent received one phone call from Mr. Mitchell in which he requested an additional $100.00. Respondent wired Mr. Mitchell the $100.00. When Respondent returned from vacation, she found that Mr. Mitchell had trashed and vandalized her house. She later determined that Mitchell had run up an exorbitant phone bill and had stolen approximately $2,300 from her by making unauthorized cash withdrawals on a credit card that had been mailed to her home while she was away. When school began at PTEC in August 1996, Mr. Mitchell was still enrolled as a student in Respondent's electronics technology course. At that time Mr. Mitchell had approximately two weeks of course work remaining to be completed in order to receive a certificate of completion. Upon returning to PTEC after the summer break, Respondent went to see Dr. Warren Laux, Director at PTEC, concerning Mr. Mitchell. Respondent was afraid of Mr. Mitchell, and requested that he be removed from her class because she did not want to come in contact with him. Respondent explained that Mr. Mitchell house-sat for her during a two-week vacation and left the house a mess, stole money from her and ran up an exorbitant phone bill during his stay. Because she had notified police of these incidents involving Mr. Mitchell, the Respondent told Dr. Laux that the situation created a conflict for her if Mr. Mitchell remained in her class. During their discussion, Dr. Laux asked Respondent if there had been any sexual relationship between herself and Mr. Mitchell. The Respondent stated that she had sex with Mr. Mitchell on one occasion. However, Respondent did not give details of the time, place, or circumstances surrounding that encounter. Dr. Laux explained to Respondent that for the moment it appeared that Mr. Mitchell had done nothing which violated the Student Code of Conduct and, accordingly, there was no valid reason to remove him from her class. During August 1996, Respondent told some students in her class that the person who had house-sat for her when she was away on vacation had trashed her house. However, Respondent did not identify Mr. Mitchell as that person. During August 1996, while in her classroom, Respondent told Mr. Mitchell that she would rather scratch his eyes out than have him in her class. At the time this comment was made by Respondent, there were students in the classroom, but on the other side of the room. Respondent's comments to Mr. Mitchell were not made loudly enough for other students to hear. The School Board's Office of Professional Standards conducted an investigation regarding the allegations that the Respondent had been involved with a student. As a part of this investigation, Respondent was interviewed on three occasions: August 28, 1996; September 3, 1996; and mid-September 1996. During each interview, Respondent admitted that on one occasion she had engaged in sexual intercourse with one of her students, Thomas Mitchell. Respondent's conduct impaired her effectiveness as a teacher. Respondent failed to maintain a professional relationship with her student Thomas Mitchell and used her position to enter into a personal relationship with him. Once that relationship deteriorated, as admitted by Respondent, it was impossible for her to work with that student, and her effectiveness was significantly impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be dismissed from her position as a teacher with the Pinellas County School Board.DONE and ENTERED this 4th day of April, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1997. COPIES FURNISHED: Keith B. Martin Assistant School Board Attorney Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Tampa, Florida 33675-0638 J. Howard Hinesley, Ed.D. Superintendent Pinellas County School Board 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Ms. Dorothy Simon 6315 Eight Avenue North St. Petersburg, Florida 33710
