The Issue The issue in this case is whether there is just cause to terminate Lontay Finney's employment with Palm Beach County School Board based upon the allegations made in its Petition.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Palm Beach County, Florida. Article IX, Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Finney started his employment with the School Board on December 19, 2005. He was employed pursuant to an annual contract. Finney taught at Glades Central High School ("Glades Central") from 2010 through 2015. He was last employed as both a science teacher and assistant athletic director. Finney's annual evaluations were acceptable and effective during each year of his employment at Glades Central. As a teacher, Finney was expected to comply with the Code of Ethics. On June 1, 2010, he signed an acknowledgment that he received training, read, and would abide by School Board Policy 3.02, Code of Ethics. Reniqua Morgan ("Morgan") was a female student at Glades Central from 2011 to 2015. She was a cheerleader athlete but never had Finney as a teacher. Finney knew of Morgan as one of the daughters of his teacher colleague, Renee Johnson Atkins ("Atkins") and from seeing Morgan around school. Morgan and Finney also knew who each other were because they had a niece in common and lived in the small town of Belle Glade. However, Finney and Morgan did not associate with one another directly before March 2015. On or about March 22, 2015, Finney initiated contact, reaching out to Morgan by poking her on Facebook. Morgan poked him back and then Finney followed up by inboxing her next. Morgan was surprised that Finney was conversing with her. They continued to chat for several weeks not on an open feed of Facebook but messaging each other's inbox privately. Between 10:30 and 11:00 p.m. on Sunday, April 12, 2015, Finney initiated a conversation with Morgan and they chatted on Facebook. Finney suggested that the two of them get together and asked Morgan, do you want to "chill?" Morgan agreed and said "I don't mind." They then decided to meet up. Finney did not offer to pick Morgan up at her house. Finney instructed her to meet him at the stop sign, around the corner and down the street from where she lived.1/ Morgan, unbeknownst to her mother, met Finney by the stop sign. At the stop sign, Morgan got in Finney's mother's truck with Finney. When Finney first made contact with Morgan that night, he gave her a hug. He then drove her to his home. At all times relevant to these proceedings, Morgan was a 17-year-old minor. Finney did not have permission from Morgan's parents to either pick her up or take her to his house. His inappropriate actions were outside of school and not in connection with any school-related activity in any way. At approximately 12:24 a.m. on Monday, April 13, 2015, Morgan's mother, Atkins, was at her residence and went to use the restroom and she then discovered that Morgan was not at home. Morgan had left home without her permission. Atkins was worried about Morgan being out that early in the morning because it was "unsafe because [of] the neighborhood that [she] live[d] in, there [were] some people in that neighborhood that [were] unsafe."2/ While at Finney's house, Finney and Morgan remained in the parked truck alongside of the house alone together for approximately an hour and a half to two hours and spent some of the time talking and scrolling through Netflix on Finney's phone. Neither Morgan nor Finney can recall the name of any of the movies they watched on Netflix. Morgan's mother was looking for Morgan and found out from Bethanie Woodson ("Woodson"), Morgan's friend, that her daughter was with Finney. Atkins took Woodson with her and drove to Finney's house looking for Morgan. While in the truck with Finney, Morgan's friend contacted her and let her know that her mother was looking for her. Morgan told Finney she needed to go home. Atkins also learned while at Finney's house that Morgan was on the way home, so she got back in her vehicle and returned home. Morgan told Finney to drop her off near the railroad track, which is not the same place he picked her up. He then dropped her off where she suggested near Avenue A, a neighborhood on the opposite side of the railroad tracks from where Morgan lived, and several blocks away from her home. After Finney dropped Morgan off in the early school day morning while it was dark outside, Morgan had to walk down the street, come through the neighborhood and then walk across the bushy railroad tracks to get to her residence. The foot path Morgan took was also unlit, grassy, and rocky near the train tracks. No streetlights were near the tracks.3/ When Morgan got home, her mother, sister, and Woodson were waiting for her. Morgan's mother was irate that Morgan had been with Finney and drove Morgan back to Finney's home to address his actions with her daughter. Finney lived with his parents. When Atkins knocked on the door, Finney's father came to the door and Atkins requested to see Finney. Atkins confronted him angrily and berated him for being a teacher, picking up Morgan, and taking her to his house at that hour of the night. Atkins also informed Finney's mother what occurred while she was at their house. Morgan and Finney have had no contact since the incident. Morgan's mother reported the incident to Glades Central. As a result, the principal assigned Finney to his residence by letter, with pay, starting April 13, 2015, pending the investigation or notification of a change in assignment in writing. On April 15, 2015, Finney was assigned to temporary duty at Transportation Services pending investigation. An investigation by the school police found no violation of a criminal law by Finney, and the case was referred to Petitioner's Office of Professional Standards, which is charged with conducting investigations into alleged violations of School Board policy. On or about May 11, 2015, the Office of Professional Standards opened an administrative investigation. Dianna Weinbaum ("Weinbaum"), now director of Office of Professional Standards and former human resources manager, was assigned to investigate the matter. Around the time the investigation was being conducted, Finney deactivated his Facebook page due to the mostly negative comments and statuses, as well as rumors surrounding the incident of him picking up Morgan and taking her to his house. Finney was able to finish the school year working back at Glades Central between investigations. Weinbaum performed a thorough and complete investigation regarding the allegations against Respondent. She interviewed all the witnesses and obtained statements, as well as visited the locations where Finney picked up and dropped off Morgan. On August 4, 2015, consistent with District policy, Respondent was removed from the classroom and reassigned from his teaching position back to a temporary duty location again. On October 8, 2015, a pre-determination meeting was held with the director of the Office of Professional Standards and Finney, who was represented by counsel regarding the interactions between Finney and Morgan. Finney was provided a copy of the investigative file. At the end of the investigation, it was determined that Finney's actions were both an inappropriate relationship with Morgan and posed a clear threat to Morgan's health, safety and welfare. Weinbaum recommended discipline for Finney consistent with discipline received by other employees based on the superintendent and School Board's position that employees who engage in inappropriate relationships with students and who endanger the health, welfare and safety of a child will be terminated. On November 19, 2015, Petitioner notified Finney of the superintendent's recommendation for termination of his employment at the School Board Meeting set for December 9, 2015. The School Board accepted the superintendent's recommendation and voted to suspend Finney for 15 days and thereafter terminate his employment. Finney timely requested a hearing to contest the superintendent's recommendation. Finney's disciplinary history does not include any discipline for actions similar to these for which suspension and termination are recommended. Petitioner charged Finney by Petition with soliciting an inappropriate relationship with a student that jeopardized her health, safety and welfare. The Petition charged Finney with the following violations: School Board Policies 0.01(2)(c),(2)(f) Commitment to the Student Principle 1; 3.02(4)(a)(b)(d)(e),(g); 3.02 5(a),(a)(iii),(a)(v),(a)(vii); Code of Ethics; 1.013(1) and (4), Responsibilities of School district Personnel and Staff; School Board Policies 1.013 and 3.27, Criteria for Suspension and Dismissal, and Code of Ethics of the Education Profession in Florida; the Collective Bargaining Agreement Article II, Section M; and (C) Rule 6A-5.056 (2)(a),(b) and (4) F.A.C., Criteria for Suspension and Dismissal; 6A-10.081 (3)(a) and (3)(e), F.A.C.; 6A-10.080(1),(2) and (3) F.A.C. Code of Ethics for the Education Profession of Florida; and 6A-10.081(3)(a) and (3)(h) F.A.C. Principles of Professional Conduct for the Education Profession. During the final hearing in this matter, Finney testified that his decision to drive Morgan to his house "was a lapse in judgment and it was just a bad decision that I made." At hearing, the testimony and exhibits established that Finney initiated contact with Morgan and solicited an inappropriate relationship with a student that jeopardized her health, safety and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order: dismissing charges of violations of policies 0.01(2)6., 3.02(4)(a), (d), (e), and (g); 5(a), (a)(iii), (a)(v), and (a)(viii); 1.013(4); and rule 6A-10.081(3)(e) and (h); finding Respondent in violation of rules 6A-10.080(2) and (3), 6A-5.056(2), 6A-10.081(3)(a), policies 0.01(2)3., 1.013(1), 3.02(4)(b), and 3.02(5)(a)(vii), as charged; and upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 4th day of January, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2017.
Findings Of Fact The Respondent, Harvey R. Steckler, holds Teacher's Certificate No. 520419 issued by the State of Florida, Department of Education. This Certificate covers the area of substitute teaching. On February 5, 1985, the Respondent was employed as a substitute teacher at Brownsville Junior High School in the Dade County Public School System. On February 5, 1985, while substitute teaching in a physical education class, the Respondent was conversing with a group of minor male students. During this conversation, a minor female student passed the Respondent and the group of students. While looking at the female student, the Respondent began to make sexual remarks about her. She could hear portions of these remarks, such as "Oh, she's so fine; he had a girl on his boat and liked to eat her out; you wouldn't mind getting to her; he would like to eat her out," and other sexual comments. These remarks were also overheard by the boys in the group, as well as by the female student. The female student went to the school office and told the Principal and the Assistant Principal about the incident. They suggested to her that she write out a report on the incident, which she did. The Respondent's remarks caused the female student to be both nervous and frightened, as well as embarrassed. When the Principal of Brownsville Junior High reported this incident to the Dade County school system, the Respondent was informed that his name had been removed from the approved list of substitute teachers, pending further notice. After an investigation and several conferences, the Respondent's name was permanently removed from the list of authorized substitute teachers in the Dade County public school system. On April 24, 1985, the Respondent appeared before a publicly televised meeting of the school board to appeal the removal, but the school board took no action to reinstate him. The nature of the incident described above, together with the awareness of the incident on the part of students, staff, parents and the community, because of its publicity, so impaired the Respondent's effectiveness as a substitute teacher and as an educator, that the school board could not re-employ him in any capacity in the Dade County public schools.
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 Teacher's Certificate No. 520419 held by the Respondent, Harvey R. Steckler. THIS RECOMMENDED ORDER ENTERED this 17th day of June 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June 1987. COPIES FURNISHED: William E. Williams, Esquire Post Office Box 1739 Tallahassee, Florida 32302 Mr. Harvey R. Steckler 825 82nd Street Miami Beach, Florida 33141 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney Moenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Section 319 West Madison Street, Room 3 Tallahassee, Florida 32301 Karen B. Wilde, Executive Director Education Practices Commission Room 418 Knott Building Tallahassee, Florida 32399
Findings Of Fact At all times material hereto, Respondent Norrine W. Williams was employed by Petitioner as a teacher aide. She worked at Amelia Earhart Elementary School, a center for special education, for about eight years, including the 1986-1987 school year. While employed at Amelia Earhart, Respondent had continuing financial problems, which caused bill collectors to call and visit the school site on a daily basis. As a result, the work of the school's office staff was disrupted, many people became aware of Respondent's financial problems, and Respondent and her bill collectors were discussed throughout the school. On March 30, 1987, Respondent was arrested in the principal's office and taken into custody by United States Secret Service agents. She was charged with credit card offences. On April 14, 1987, Respondent appeared at a Piggly Wiggly store and attempted to cash a check in the name of Flora Linton. The store manager recognized her as the person who had cashed two previous checks in that name, which checks had been returned to the store because they had been written on a closed account. The store manager summoned a Miami Springs police officer, and Respondent went to the police station with the police officer at his request to discuss the matter. She was joined by a male and by her 76 year-old aunt Flora Linton. During the questioning at the police station, the police officer determined that Flora Linton did not know that her niece had stolen checks from her and had been forging her name to those checks and cashing them for her own personal gain. Respondent admitted to having issued the two previous worthless checks in the amounts of $125.75 and $84.90. She was not charged with a crime on the condition that she make full restitution to Piggly Wiggly. She did so approximately one week later. Several months later the Piggly Wiggly store owner was present in his new store on the other side of town when Respondent attempted to cash a check at that store. The check she was attempting to cash was another of the Flora Linton stolen checks, and she had again forged her aunt's name to that check written on a closed account. When approached by the store owner, she recognized him and turned in her check cashing card and walked away. While Respondent was at the Miami Springs police station on April 14, 1987, a routine background check was run regarding her. It was discovered that there was an outstanding bench warrant for her, and she was taken to the Dade County jail. On April 20, 1987, Respondent was arrested a second time at the school site and taken into custody by law enforcement officers. She admitted that she had in fact fraudulently obtained a Nieman-Marcus credit card by providing fictitious information on the credit card application. She had subsequently charged $972 worth of merchandise at the Nieman-Marcus store using the fraudulently-obtained credit card. She was charged with second degree grand theft, a felony offense, for fraudulently obtaining a Nieman-Marcus department store charge card. She advised the arresting officers that she had no intention of making restitution to Nieman-Marcus. As was the case with Respondent's first arrest at the school site on March 30, 1987, her second arrest on April 20, was observed by office personnel. In the process of being escorted out of the building her second arrest was evident to teachers and students in the areas outside of the principal's office. Respondent plead "no contest" to the criminal charges regarding the fraudulent credit card. She was sentenced to probation and was ordered by the Court to make restitution to Nieman-Marcus in the sum of $972. As of the time of the formal hearing in this cause, the deadline for making restitution had passed, and restitution had still not been made. Although Respondent appeared for the formal hearing in this cause, she left as the proceedings commenced and did not return. Had she remained she would have been arrested by the police officers who testified in this cause since there was still pending an open felony warrant for probation violation for previous worthless checks. While shopping at the Grand Union, formerly the Miami Springs Piggly Wiggly, the principal of Amelia Earhart saw Respondent's name scotch taped to the cash register with a notice advising the cashiers not to cash checks for that person. That Grand Union is located near Amelia Earhart Elementary School. The school board rules concerning employee conduct are contained in a staff handbook. Teacher and teacher aides have staff meetings with administrative teams to review the rules and policies of the school board. Respondent attended those meetings and was specifically advised of the school board rules. Respondent's conduct concerning the issuing of forged and worthless checks, fraudulently obtaining a credit card, having difficulties with bill collectors at the school site, having been adjudicated guilty of grand theft, and failing to pay court costs and make restitution as ordered by the court, constitutes conduct unbecoming a school board employee and misconduct in office in violation of school board rules 6Gx13-4A- 1.21 and 6Gx13-4C-1.01.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT: A final order be entered affirming the Respondent's suspension without pay and dismissing Respondent from her employment with the School Board of Dade County. DONE and RECOMMENDED this 17th day of March, 1989, in Tallahassee, Florida. LINDA M. RIGOT 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 17th day of March, 1989. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William DuFresne, Esquire 2929 S.W. Third Avenue Suite One Miami, Florida 33129 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
The Issue As to DOAH Case No. 00-3581, the issue is whether the Respondent's employment with the Petitioner, the School Board of Miami-Dade County, Florida (School Board), should be terminated for the reasons set forth in the Notice of Specific Charges. As to DOAH Case No. 00-5123PL, the issue is whether the Education Practices Commission should take disciplinary action against the Respondent's teaching certificate for the reasons set forth in the Administrative Complaint dated November 21, 2000.
Findings Of Fact 1. The Petitioner, School Board, is authorized to operate, control, and supervise the public schools within the school district of Miami-Dade County, Florida. As such, it is charged with the responsibility for all personnel decisions for the school district. 2. At all times material to this matter, the Petitioner, Tom Gallagher, as Commissioner of Education, was authorized by Florida law to recommend cases for disciplinary action to the Education Practices Commission.* 3. At all times material to this matter, the Respondent, Edward Cohen, held Florida Educator's Certificate No. 640334 valid through June 30, 2001. Such certificate authorized the Respondent to teach physics in grades 6 through 12. 4. At all times material to this matter, the Respondent was employed pursuant to a professional service contract as a teacher assigned to Homestead Middle School, a public school within the Miami-Dade school district. As such, the Respondent was subject to the rules and regulations of the State of Florida and the School Board. 5. Prior to March 8, 2000, several female students enrolled in the Respondent's class at Homestead Middle School complained to an assistant principal regarding the Respondent's behavior and comments in class. 6. The students expressed their discomfort with the manner in which the Respondent held their hands, or touched their backs, or commented on their romantic interests or other topics not related to their studies. In essence, the students wanted the touches and comments to stop. 7. The students did not allege sexual contact with the Respondent. The conduct was more subtle: a handshake held longer than greeting required, a pat on the back more stroking than normal, or an arm/shoulder rubbed. The discomfort stemmed from the continuing pattern of the behavior despite the students having pulled away or having told the Respondent to stop. 8. The students were not disruptive in class, did not conspire to cause the Respondent problems, and were not racially motivated. They were simply middle school girls venting their discomfort at the situation. 9. As is the normal practice when confronted by complaints against a teacher, the assistant principal asked the girls to complete written statements outlining the basis for their concerns. 10. The complaints also alleged that the Respondent had ignored one male student who was beaten up by other students while in the Respondent's class. All of the girls identified the male student by name. 11. The assistant principal advised the Respondent that the students had made allegations and requested a written statement in response. Instead of attempting to work with the administrator regarding the complaints, the Respondent assumed a defiant and defensive attitude. 12. Over the course of the next few days a new principal was assigned to Homestead Middle School. When the new principal, Mrs. Reineke, arrived for duty she was unaware of the student complaints and had never met the Respondent. 13. When a parent of one of the girls confronted Mrs. Reineke with a demand for action regarding the complaints, the principal initiated a formal review of the matter. Allegations of inappropriate statements or touches are always taken seriously. Mrs. Reineke was obligated to follow-up with a prompt review of the complaints. 14. When the Respondent learned that an investigation would result he requested that "the offending or offended students" be removed from his class or that he be moved to another location. 15. Although Mrs. Reineke inquired into the possibility of moving the Respondent to another location, the School Board policy (approved by the teachers' union) prohibited a move at that time during the school year. 16. Additionally, as there was no basis upon which to justify removal of the students from the class, Mrs. Reineke elected to change the Respondent's teaching schedule effective March 20, 2000. 17. This decision was necessitated by the Respondent's refusal to allow the students who had complained against him into his class. Subsequent to their filing the written statements against him, the Respondent sent three of the girls to the office. Further, the Respondent verbally advised an assistant principal that he would not accept them back into his class. 18. When the Respondent learned of Mrs. Reineke's proposed solution (the schedule change), he advised her that he would not accept the change and claimed it was a "racial move." 19. In an effort to resolve the conflict, Mrs. Reineke met with a union steward and agreed to modify the schedule change to assure that the Respondent was qualified to teach all of the subjects on the modified schedule. Nevertheless, the Respondent refused to accept the change. 20. The Respondent would not admit the complaining students back into class, would not accept the schedule change as proposed by the principal (and negotiated by the teacher's union representative), and the investigation of the underlying allegations against the Respondent had not been completed. Given these facts, Mrs. Reineke sought support and assistance from the School Board’s region office. 21. On March 21, 2000, when the Respondent reported to school and again refused to teach his scheduled classes, he was removed from the school and placed on alternative assignment effective that date. Mrs. Reineke also referred the Respondent to the Employee Assistance Program (EAP). 22. As Mrs. Reineke could discern no reason for the Respondent's refusal to accept the schedule change or allow the students back into class, it was hoped that the services available through the EAP might assist the Respondent. 23. The Respondent did not participate in the EAP and continued to allege that Mrs. Reineke's actions were racially motivated. 24. There is no rational or factual basis for the Respondent's claim that the principal's conduct was racially motivated. None of the students' complaints related to the Respondent's race. Persons of the Respondent's race testified as to the factual matters in dispute in this cause and none of them supported the Respondent's claim of racial bias or motivation. 25. Eventually, the investigation resulted in the matter being referred to the School Board's Office of Professional Standards. That office, as required by law, then referred the case to the Education Practices Commission. 26. In completing the investigation of the Respondent's conduct, the following improprieties were substantiated. First, in shaking hands with female students the Respondent would hold the hand longer than necessary for a formal greeting. In fact, requiring students to shake hands in greeting was unnecessary. That the female students were made uncomfortable by the practice should have demonstrated its inappropriateness. It is undisputed that female students would pull away from the Respondent when the hand was held an inappropriate length of time. 27. Second, the Respondent rubbed or patted backs or shoulders in an improper stroking manner causing female students to be uncomfortable. Such conduct was only directed to female students and was inappropriate. 28. Third, the Respondent made improper comments to the students regarding how gay men contract AIDS through anal sex. 29. The Respondent made inappropriate comments to students unrelated to the subject matter taught regarding sexual behavior. He disparaged one student for alleged sexual conduct and falsely attributed her vomiting to pregnancy. 30. When directed to admit complaining female students back into his class, the Respondent refused to do so. Such directive was reasonable in nature and given with and by proper authority. 31. When directed to adhere to an amended schedule change, the Respondent refused to do so. Such directive was reasonable in nature and given with and by proper authority. 32. When a male student was being beat-up by students in the Respondent's class during class, the Respondent failed or refused to intercede on the male student's behalf. 10 33. Parents of students in the Respondent's class lost confidence in his effectiveness to perform as a teacher given the Respondent's acts, omissions, and inappropriate comments. 34. Administrators who attempted to resolve the dispute lost confidence in the Respondent's effectiveness to perform as a teacher, given his refusal to work with the system to effect a mutually agreeable solution to the problem presented by the students' complaints and his refusal to comply with directives. 35. On June 7, 2000, school administrators conducted a final conference for the record (CFR) with the Respondent. This CFR, held at the district level, reviewed the findings of the investigation, reiterated the Respondent's repeated failures to comply with directives issued, and addressed future disciplinary action. 36. Subsequently, the principal recommended that the Respondent's employment with the school district be terminated. This recommendation was reviewed and supported by the region superintendent who is of the same race as the Respondent. According to the region superintendent, the Respondent's refusal to follow directives of the principal as outlined above is so egregious that termination became the school district's only option. 37. In response to the recommendation, the Respondent labeled the administrators "liars" and continued to falsely malign the principal as a "bigot." The Respondent did not and 11 has not recognized the inappropriateness of his sexual comments to students or his refusal to accept the complaining students back into his class. His assertions regarding the schedule change that was initiated and offered to accommodate his concerns pending the investigation were unpersuasive.
Conclusions For Petitioner Timothy A. Pease, Esquire School Board of Miami-Dade County School Board Miami Dade 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 For Petitioner Charles T. Whitelock, Esquire Commissioner of Whitelock & Associates, P.A. Education: 300 Southeast 13th Street Fort Lauderdale, Florida 33316 For Respondent : Edward J. Cohen, pro se 19707 Southwest 118th Place Miami, Florida 33177
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order sustaining the suspension and termination of the Respondent's employment contract. Further, it is recommended that the Educational Practices Commission suspend the Respondent's teaching certificate and require him to complete an approved course in professional ethics. 14 DONE AND ENTERED this 17 day of June, 2001, in Tallahassee, Leon County, Florida. . 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 Divisio Administrative Hearings this 2 j ay of June, 2001.
The Issue The issue is whether just cause exists for Petitioner, Polk County School Board (School Board), to terminate Respondent's employment as a classroom teacher.
Findings Of Fact The School Board is charged with the duty to operate, control, and supervise public schools in Polk County. This includes the power to discipline classroom teachers. See §§ 1012.22(1)(f) and 1012.33, Fla. Stat. (2018). The record does not disclose whether Respondent holds a professional service contract or has an annual contract with the School Board. In any event, he has been employed with the School Board as a classroom teacher since September 2016. Before moving to Florida in 2016, Respondent taught motion picture television arts in Ohio for four and one-half years. Before that, he worked in the motion picture industry for 27 years. From September 2016 until he was suspended in January 2018, Respondent taught Television (TV) Production at Haines City High School and supervised the school's TV news program. In the program, students film events on campus before and after school, learn how to edit the film, and then prepare videos for school use. Mr. Lane is the school principal. Based on an allegation that he was observed sleeping in class on November 29, 2017, coupled with a three-day suspension, without pay, that he served a month earlier, the School Board seeks to terminate Respondent's employment. Specifically, the termination letter alleges that on November 29, 2017, Respondent "was found sleeping at [his] classroom desk," "students [were] unsupervised and scattered about [the] classroom," and this conduct constitutes "serious misconduct." Sch. Bd. Ex. 4. To terminate Respondent, the School Board relies upon the fourth step in the four-step progressive discipline process found in the Teacher Collective Bargaining Agreement (CBA), which governs the employment of instructional personnel. Article 4-4.1 provides that, "except in cases where the course of conduct or the severity of the offense justifies otherwise," a teacher may be terminated only after progressive discipline has been administered in Steps I, II, and III. Sch. Bd. Ex. 8. On October 24, 2017, Respondent received a three-day suspension without pay for making inappropriate comments during a discussion with students in his class. Due to the serious nature of the incident, the School Board accepted the principal's recommendation that it bypass the first two steps of progressive discipline and invoke discipline under Step III. Respondent did not contest or grieve that action. Therefore, Respondent has not been given progressive discipline under Step I (a verbal warning in a conference with the teacher) or Step II (a dated written reprimand following a conference). In the fall of school year 2017-2018, Respondent taught TV Production-Editing during fourth period. The TV Production area encompassed a large suite of rooms, including a main classroom, a TV news room, a control room, and two hallways with lockers for equipment. Typically, there were between 25 and 30 students in the class. Respondent wears contact lenses, but because of chronically dry eyes, he must use artificial tears four to eight times per day in order to avoid swelling of the eyelids. To properly hydrate his eyes, after using the artificial tears, Respondent tilts his head back, closes his eyes, and rolls his eyes for a few minutes to allow the eyes to absorb the solution. Midway through his fourth-period class on November 29, 2017, Ms. Young, the assistant principal, entered Respondent's classroom to do an unannounced walk-through. She observed the lights off and Respondent sitting at his desk with his eyes closed and "leaned back" in his chair with his mouth open. Ms. Young assumed he was asleep so she cleared her throat, then waved her hand, and finally knocked on his desk twice, but he did not open his eyes. She then knocked louder on the desk and called his name. This appeared to startle Respondent and he sat up and looked around the class. After she informed him that she was performing a walk-through in his class, Respondent replied "okay," and said he was aware she was there. Ms. Young was in Mr. Smith's classroom area approximately five minutes. After getting his attention, she walked through the entire suite of rooms and observed "some" students on their phones, "some" on the computer, and "some" walking in the back of the room. Even though Mr. Smith testified at hearing that his students were "absolutely malicious" and "they'll do anything," Ms. Young did not report seeing any unusual or unsafe conditions that might result in placing any student's safety in jeopardy. Mr. Smith denies that he was asleep. He testified that just before the assistant principal did her walk-through, he had put drops in his eyes, cocked his head back, closed his eyes, and was in the process of rolling his eyes to rehydrate them. A few minutes earlier, he had given permission for a student to use the restroom. When Ms. Young entered the classroom, he knew someone had entered the room but assumed it was the student returning from the restroom. When he opened his eyes, he greeted Ms. Young, who replied that she was "walking through [his] classroom." According to Ms. Young, it was "very evident" that he was asleep, "100 percent," and it was not possible that he just had his eyes closed. Ms. Young's testimony concerning her observations is the most persuasive and has been credited. The incident was reported to Mr. Lane the same day. After the incident was reported to Mr. Lane, he recommended that Respondent be terminated for serious misconduct. Sch. Bd. Ex. 4. Mr. Lane explained that this action was justified because of concerns over the "safety of the children" in Respondent's class, given the large suite of rooms under his supervision. He also testified that the incident brought into question Respondent's effectiveness as a teacher. The School Board's attempted reliance at the hearing on a few other times when Respondent allegedly was sleeping in class has been disregarded for two reasons: they are based mainly on hearsay testimony, which does not supplement or corroborate other competent evidence; and, more importantly, they are not included as charges in the termination letter or parties' Pre-hearing Stipulation. Pilla v. Sch. Bd. of Miami-Dade Cnty., 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995) (the teacher must have fair notice and an opportunity to be heard on each of the charges brought against him). On December 13, 2017, the School Board's human resource services department informed Respondent by letter that he was suspended, with pay, pursuant to Article 4-4.1 of the CBA pending the School Board's consideration of a recommendation that he be terminated, effective January 24, 2018. Sch. Bd. Ex. 5. According to the termination letter, the School Board determined that Respondent's actions "constitute serious misconduct" for which "just cause" for termination exists, and "[t]ermination constitutes Step IV of Progressive Discipline as outlined in Article 4-4.1 of the [CBA]." Sch. Bd. Ex. 5.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Polk County School Board enter a final order issuing a verbal warning (Step I) or a dated written reprimand (Step II) to Respondent for being observed sleeping in class on November 29, 2017. DONE AND ENTERED this 6th day of March, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2019.
The Issue Whether just cause exists for Petitioner to terminate Respondent’s employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times material to this case, Respondent was employed by the School Board as a physical education teacher at Riverglades Elementary School (“Riverglades”), pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes (2014). At all times material to this case, Respondent’s employment with the School Board was governed by Florida law and the School Board’s policies. 2007-2008 School Year On February 13, 2008, the executive director of the School Board’s Professional Standards and Special Investigative Unit issued to Respondent a written reprimand based upon allegations of assault and battery. On February 13, 2008, the principal of Village Elementary School, Respondent’s employer at the time, held a meeting with Respondent at which time Respondent was directed to: 1) “follow the school wide discipline plan”; 2) “take a class in Behavior Management and/or Classroom Management, such as ‘Champs’”; 3) “discipline with respect”; and 4) “not to yell at children” 2012-2013 School Year On March 7, 2013, Barton Christopher Duhart, interim principal at Riverglades, met with Respondent and directed that his: [l]anguage with all students be kept professional at all times. Please refrain from using language that is abusive or may be easily misconstrued as being abusive toward any students regardless of their behavior. 2013-2014 School Year On January 15, 2014, JoAnne Seltzer, interim principal at Riverglades, held an informal conference with Respondent regarding an alleged incident involving S.W., a fifth-grade student in Respondent’s physical education class. At that time, it was alleged that Respondent had grabbed S.W.’s arm, yelled at her in her ear, told her “to shut up,” and made inappropriate remarks about the way she talks. In the conference summary report issued on January 21, 2014, Principal Seltzer directed Respondent to refrain from touching, embarrassing, screaming at, or demeaning students in the future. The School Board proposed to suspend Respondent based on the alleged incident involving S.W. Respondent requested an administrative hearing to challenge the School Board’s proposed action. On August 24, 2015, following a one-day hearing, Administrative Law Judge F. Scott Boyd issued his Recommended Order in the case of Broward County School Board v. Robert Konnovitch, DOAH Case No. 14-2696TTS. Based on the evidence presented at the May 22, 2015, final hearing, Judge Boyd found, in pertinent part: On January 10, 2014, Respondent was attempting to move his students inside after their time on the playground. One student, S.W., was talking loudly and frustrating Respondent’s efforts. In response to this, Respondent pulled down on S.W.’s arm or wrist and screamed “Be quiet!” in her ear. S.W. was not physically harmed by this incident and did not cry. However, when asked about how the incident made her feel, she testified “not good.” As a result of Respondent’s conduct involving S.W. and evidence presented at that hearing, Judge Boyd concluded that Respondent was guilty of misconduct in office, incompetency, and insubordination, and recommended that Respondent’s employment be suspended for ten days without pay. Subsequently, the School Board entered a final order adopting Judge Boyd’s Recommended Order. The incident giving rise to the School Board’s proposed termination of Respondent in the instant case occurred on April 1, 2014. On April 1, 2014, M.Z. was a fifth-grade student in Respondent’s physical education class. Shortly before class ended, M.Z. was misbehaving and got out of line. In response to M.Z.’s misbehavior, Respondent became angry and threatened to punch M.Z. in the face. Respondent, who was standing very close to M.Z., turned around and yelled at M.Z.: “If you don’t get in line, then I will punch you in the face.” M.Z. was not physically harmed by this incident and did not cry. However, he was scared by Respondent’s threatening comment and got back in line. Respondent made the threatening comment in front of the entire physical education class. Respondent’s conduct was inappropriate and verbally abusive. Respondent could certainly have projected authority and corrected M.Z.’s behavior without the need to resort to a physical threat of violence.2/ The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A-5.056. By verbally threatening M.Z. with physical violence, Respondent violated Florida Administrative Code Rules 6A-10.081(3)(a) and (e) by failing to make reasonable effort to protect his students from conditions harmful to learning and intentionally exposing a student to unnecessary embarrassment or disparagement. Respondent also violated rules 6A-5.056(2)(d) and (e) by engaging in conduct which disrupted the students’ learning environment and reduced Respondent’s ability to effectively perform duties. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of incompetence in violation of rule 6A-5.056(3). By verbally threatening M.Z. with physical violence, Respondent failed to discharge his required duties as a teacher as a result of inefficiency. Respondent was inefficient by failing to perform duties prescribed by law and by failing to communicate appropriately with and relate to students. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of gross insubordination in violation of rule 6A-5.056(4) by intentionally refusing to obey a direct order, reasonable in nature, and given by and with proper authority. By failing to comply with the specific directives detailed above, Respondent intentionally refused a direct order, reasonable in nature, and given by and with proper authority. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of immorality in violation of rule 6A-5.056(1). The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of violating School Board Policy 4008(B). No such policy was offered into evidence at the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order upholding the termination of Respondent’s employment.3/ DONE AND ENTERED this 8th day of January, 2016, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 8th day of January, 2016.
The Issue This case concerns the propriety of Respondent's abolishment of Petitioner's position of Occupational Specialist within the Gilchrist County School System. In particular, it is to be determined whether Respondent has failed to meet requirements of law in that its action of abolishing the position was arbitrary and capricious and contrary to Petitioner's constitutionally protected rights to free speech and assembly.
Findings Of Fact Petitioner is the holder of a Rank 111 Teaching Certificate, issued by the State of Florida. The certification recognizes her as an Occupational Specialist. On July 8, 1974, she was granted a continuing contract of employment with the Gilchrist County School Board as an Occupational Specialist in the Trenton and Bell schools within the Gilchrist County School District. A copy of that contract may be found as Respondent's Exhibit No. 7, admitted into evidence. The contract by its terms states at Paragraph 9, "This contract shall not operate to prevent discontinuance of a position as provided by law." It is the discontinuance or abolishment of the position of Occupational Specialist held by the petitioner that occasioned the formal hearing in this cause. Since being granted the position of Occupational Specialist in permanent status, Petitioner has performed those duties described in the job description, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. Those functions include career planning for students, considering their personal problems, preparing them for assessment tests and the execution of job application forms. In the school year 1981-82, Petitioner worked three- fifths of her time in Trenton High School and two-fifths in Bell High School. In her capacity, Respondent considered her to be acting as the equivalent of a guidance counselor. She has never been certified by the State of Florida as a guidance counselor. Around the beginning of April 1982, the superintendent of Schools in Gilchrist County, Ray Thomas, decided that the position of Occupational Specialist held by the petitioner should be abolished. At that time, and at all relevant times, this position of Occupational Specialist was the only position of its type in the Gilchrist County School System. The basis for the abolition or discontinuation of the position concerned anticipated revenue shortfalls or budget inadequacy for the upcoming school year 1982-83, pursuant to information from persons within the State of Florida responsible for educational funding. In arriving at his decision, Thomas sought comment from Robert Ervin, the principal at Hell High School and James Surrency, the principal at Trenton High School. Ervin was asked if the guidance responsibility at Bell High School could best be achieved by the provision of a full-time guidance counselor. Thomas gave the impression to Surrency that the basis for requesting the discontinuation of the position of Occupational Specialist pertained to funding. No particulars were revealed to the two principals on the question of the financial position of the school system facing the advent of the 1982-83 school year. Respondent's Exhibits Nos. 1 and 2, admitted into evidence, are the comments of the Trenton and Bell principals on the subject of the abolition of the position of Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist position based upon his belief that a full-time guidance counselor would be provided to his school, as contrasted to the half- time guidance counselor and two-fifths time work of the Petitioner during the school year 1981-82. In his remarks, Surrency indicates reconciliation to the idea of losing the three-fifths time that the Petitioner was spending at Trenton High; however, he indicates his preference to have the Occupational Specialist position remain if it could be afforded. In the school year 1981-82, Trenton had a full-time guidance counselor in addition to the work being done by the Petitioner. After receiving the comments of the principals and in keeping with his choice, the Superintendent of schools wrote to the petitioner on April 21, 1982, advising her that he would recommend to the School Board, effective the beginning of the school year 1982-83 that the position of Occupational Specialist not be filled and offering Bowdoin a leave of absence without pay for one year. A copy of this correspondence may be found as Respondent's Exhibit No. 3. On April 22, 1982, the recommendation of the Superintendent was presented to the School Board and in the course of that meeting, the Petitioner was represented by counsel. Action on this recommendation by the Superintendent was tabled. On May 3, 1982, the Superintendent wrote the School Board and modified his position on the question of Occupational Specialist from one recommending that the position of Occupational Specialist not be filled in 1982- 83 school year to one of recommending the discontinuance of the position for economic and curriculum reasons, stating that the duties of that position could be assumed or transferred to the guidance counselor at each school in Gilchrist County. A copy of this correspondence may be found as Respondent's Exhibit No. On May 4, 1982, consideration was given to the suggestion of total abolishment of the position of Occupational Specialist and the School Board in a 3 to 2 vote determined to abolish the position of Occupational Specialist. This action was in keeping with Chapter 230, Florida Statutes. Prior to the vote, no specific information was imparted by the Superintendent or other school officials as to the financial benefits to be derived from the action or effect of the abolishment in terms of curriculum changes. The school board simply accepted the Superintendent's word that it was necessary to abolish the position for financial reasons. (The Superintendent, since taking office in 1981, has abolished other positions within the Gilchrist County School System, such as assistant principal at Trenton High School, general supervisor of instruction, food services supervisor, brick and block masonry teacher, librarian at Trenton High School and has left vacant teacher's aide positions.) At the May 4, 1982, meeting, Petitioner asked for and the Board agreed to afford a formal hearing to the Petitioner to challenge the abolishment of the Occupational Specialist position. Again, on June 1, 1982, a request was made in the Petitioner's behalf to have a grievance hearing before the board concerning the board's decision to abolish the job and it was determined that grievance hearing should be held on July 6, 1982. On July 6, 1982, the Board requested the Superintendent to prepare a list of vacancies which Mrs. Bowdoin might be certified for, the salary schedules related to those positions, a list of programs offered other than K-12 and the state certification requirements for those positions and the name of those persons filling the positions at the time. On July 20, 1982, the Board considered the level III grievance of the Petitioner in the presence of the Petitioner's attorney on the topic of an alternative placement of the Petitioner and the salary associated with that placement. On August 3, 1982, the Board entered a written resolution of decision pertaining to the level III grievance pertaining to the Petitioner, a copy of that resolution being found as Respondent's Exhibit No. 5. In this resolution, the School Board properly identified that the Petitioner could not be placed as a guidance counselor in that she did not hold a master's degree required for such position. In lieu of the position of Occupational Specialist which had been abolished by the School Board on May 4, 1982, by its August resolution, the Board offered the position of Teacher's Aide at Trenton Elementary School, with a substantial reduction in salary from approximately $15,000 a year to approximately $6,300 a year. This position of Teacher's Aide was reserved until August 16, 1982. Petitioner did not elect to accept the position of Teacher's Aide and has been unemployed since August 1982. In the course of an August 11, 1982 meeting, the Superintendent reported to the Board that the petitioner had "responded" at a level IV grievance procedure. On August 31, 1982, the Board was asked to consider litigation which had been presented to it by the Superintendent. On September 2, 1982, in an Executive Board session of the School Board of Gilchrist County, discussion was made of certain civil litigation brought by Petitioner against the Board. On October 5, 1982, an update was given to the Board concerning that case of the Petitioner versus the Board. Another update was made on October 5, 1982. On December 7, 1982, the Board was made aware of the fact that the case was to be considered in arbitration. (Various minutes of School Board meetings as described in this paragraph are more completely set forth in Respondent's Exhibit No. 8, admitted into evidence.) The matter was presented before the American Arbitration Association and the Arbitrator in his report absolved the Board of any violation related to the job abolition. The copy of that report may be found as Respondent's Exhibit No. 6, admitted into evidence. The date of the report is July 21, 1983. As stated before, the Bell High School in 1982-83, employed a full-time guidance counselor in substitution for an approximately half-time guidance and two-fifths time from Bowdoin the prior year. The Trenton school went from a 1981-82 school year in which a full-time counselor and three-fifths of Bowdoin's time was devoted to counseling activities to a full-time counselor, an aide working two-thirds time mostly in a clerical capacity and some assistance by a vocational teacher in school year 1982-83. Bad Bowdoin returned as an aide to the Trenton school in 1982-83, she would have been used in the guidance department in the same role as she had been given as Occupational Specialist. There was a revenue surplus left at the end of the 1982-83 school year and it was sufficient to have allowed the funding of the position of Occupational Specialist for the 1982-83 school year; however, that surplus was less than the 1981-82 school year by approximately 65,000. This funding difference in the face of providing essentially the same services in the school system, pointed out the more difficult economic circumstance that Thomas had made mention of in his initial decision to abolish the position of Occupational Specialist. In the 1982-83 School year, employees in the school system received salary increases. At the conclusion of the 1981-82 school year, there were approximately 900 students at the Trenton school which included grades K-12. According to Petitioner's Exhibit No. 11, excerpts from the standards of the Commission on Secondary Schools of the Southern Association of Colleges and Schools, schools of a population of 750-999 need two guidance professionals. Therefore, the reduction of one and three-fifths counselors in 1981-82 to one counselor and something less than three-fifths in 1982-83 was contrary to the statement of standards. This excerpt is at 4.10.0, Figure 1, minimum personnel requirements. Respondent replies to that assertion through its Exhibit No. 9, which are excerpts of the standards for unit schools by the Commission on Secondary Schools and Commission on Elementary Schools of the Southern Association of Colleges and Schools. At Page 9, 9.16.0-9.16.2, Respondent argues that one guidance counselor suffices for any school with a membership of 500 or more students up to 999 students. Without determining which of these guidelines related to accreditation by the Southern Association of Colleges and Schools is correct, it suffices to say that the changes that were made by the School Board in abolishing the position of Occupational Specialist as it might affect accreditation were made in good faith in that it can arguably be said that Trenton school, having 900 students, only needed one guidance counselor to meet conditions of accreditation. There were no curriculum changes made in the 1982-83 school year as a result of abolishing the Occupational Specialist position. There were curriculum changes but they were not the result of any influence provided by the abolishment of the Occupational Specialist job.
The Issue Whether the Respondent should be dismissed from his employment with the Miami-Dade County School District.
Findings Of Fact Petitioner is charged by Florida law with the operation, control, management, and supervision of all public schools within the Dade County School District. At all times material to the allegations of this case, Respondent, Maurice Cherry, was employed by Petitioner as a security monitor at Thomas Jefferson Middle School (TJMS). Sergeant Buck is a seventeen-year veteran police officer employed by the Metro-Dade Police Department. During the month of November 1996, Officer Buck was deployed in an undercover assignment related to activities and complaints at several adult bookstores. These complaints alleged lewd and lascivious acts were occurring on the premises of several named bookstores. While in his undercover capacity at or near one of the adult bookstores, Officer Buck met the Respondent. During this initial conversation with the Respondent, Officer Buck noted that the Respondent wore what appeared to be a school security jacket. Because Respondent made several suggestive sexual comments and verbal advances, Officer Buck determined to investigate the Respondent further as he was concerned that Respondent might be pursuing improper sexual conduct on school property with minors. In furtherance of his investigation, Officer Buck discovered that Respondent did, in fact, provide security monitor services at TJMS. The officer went to the school property and was attempting to verify that the security monitor employed at TJMS was the individual he had previously encountered at the adult bookstore site. While not expecting to run into Respondent, Officer Buck did make contact with the suspect in the school hallway. On this occasion Respondent ushered the police officer into a locked, second-story classroom (for which Respondent had the key) and engaged in conversation of a sexual nature. During the course of this brief encounter, Respondent grabbed Officer Buck in the groin area, and, as the police sergeant interpreted it, attempted to touch the officer's penis. Officer Buck resisted the sexual advance and, after making an excuse to Respondent, left the school premises. At no time during this episode did Respondent say or indicate to Officer Buck that students or minors were involved in any sexual activities with the Respondent. After several months of reassignment on another police project, Officer Buck returned to TJMS in April 1997 to resume his investigation of the Respondent. Again, his primary focus was to assure that the security monitor was not engaged in any sexual activities with minors. In this connection, Officer Buck approached the Respondent and engaged in conversation to determine if the Respondent would divulge any information related to minors. Respondent did not. It did not appear that Respondent was interested in minors. On the other hand, Respondent again attempted to make sexual contact with Officer Buck. Although during school hours and with students present on campus, Respondent ushered the undercover officer into a locked room, asked him to show him his penis, grabbed Officer Buck in the groin area as if to attempt to remove his penis from his pants, and exposed his own penis to Officer Buck. All of this occurred within a matter of moments. Since Officer Buck had sounded a verbal signal to officers who were waiting outside, police backups were making their way to the classroom where the officer and Respondent were located. Within a short time, Respondent was in police custody and was charged with criminal offenses stemming from the lewd behavior. This event made the evening television news. It was also covered by at least one prominent Miami-area newspaper. As a result of the publicity generated by Respondent's arrest, the principal at TJMS did not want the security monitor back at her school. Parents expressed concerns regarding Respondent and his presence at the school. The allegations related to Respondent's arrest resulted in a disturbance at the school such that to permit him to return would have caused additional turmoil and disruption. Such turmoil would result in the school system being brought into further disgrace and disrespect because of the unacceptable conduct Respondent exhibited. Respondent's effectiveness as a school security monitor has been greatly diminished as a result of his conduct and the resulting criminal charges. That the case was not criminally prosecuted does not mitigate the damage done to Respondent's effectiveness because, while he was not prosecuted, the lewd acts were committed on school property during the school day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order dismissing Respondent from his employment with the school district. DONE AND ENTERED this 27th day of August, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1998. COPIES FURNISHED: Carlos E. Mustelier, Jr., Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Frank T. Brogan Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132
The Issue Whether Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Miami Palmetto Senior High School (Palmetto) and the Miami Lakes Education Center (MLEC)) and for otherwise providing public instruction to school-aged children in the county. At all times material to the instant case, Palmetto was the site from where William McCoogle, Ph.D., a School Board instructional employee, operated his own continuing education enterprise, Move on Towards Education and Training (M.O.T.E.T.), which offered courses, including driver education courses, for which teachers could receive college credit. MLEC opened in August 2000. It offers, among other things, classroom instruction in driver education, but, unlike Palmetto, it does not have a driving range (for practical instruction in driver education). James Parker is now, and has been for approximately the past three years, the principal of MLEC. From August 2000 until the end of the summer of 2006, James Willenborg was the "head" of the "driver's ed/health and physical education department" at MLEC, responsible for "lead[ing]" and "mentor[ing]" the teachers in the department. As part of his duties, he fielded questions from these teachers regarding a variety of matters, including certification/ endorsement requirements. When a question arose concerning driver education that he needed help answering, he consulted with the School Board's supervisor of driver education. Mr. Willenborg was certified in physical education (grades six through 12) and middle school mathematics. He did not have an endorsement in driver education. From 1996 until 2003, David Reams, Ph.D., was the School Board's supervisor of driver education. Among Dr. Reams' responsibilities as the supervisor of driver education was to make sure that the School Board's driver education teachers had a driver education endorsement or received an appropriate waiver of the endorsement requirement. Respondent graduated from Florida International University in 1992 with a Bachelor of Science degree in physical education (grades six through 12). In 2001, he received a Masters of Arts degree in religion from Trinity International University. Respondent has been employed by the School Board as a teacher since August 2000, when he was hired to teach the "theory [or] academic portion" of driver education at MLEC. Respondent remained at MLEC until his suspension, teaching driver education, as well as serving as the school's activities director and as a reading teacher. He was a dedicated, resourceful, and effective member of the school's instructional staff. As a School Board employee, Respondent is expected to conduct himself in accordance with School Board rules, including School Board Rules 6Gx13-4A-1.21 and 6Gx13-1.213. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I has provided as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. At all times material to the instant case, School Board Rule 6Gx13-4A-1.213 has provided, in pertinent part, as follows: Permanent Personnel CODE OF ETHICS INTRODUCCTION All . . . teachers . . ., because of their dual roles as public servants and educators are to be bound by the following Code of Ethics. Adherence to the Code of Ethics will create an environment of honesty and integrity and will aid in achieving the common mission of providing a safe and high quality education to all Miami-Dade County Public School students. As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.001): The educator values . . . the pursuit of truth . . . . . . . . The educator . . . will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. * * * APPLICATION This Code of Ethics applies to all . . . teachers . . . . Employees are subject to various other laws, rules, and regulations, including but not limited to "The Code of Ethics for the Education Profession in Florida and the Principles of Professional Conduct of the Education Profession in Florida," Chapter 6B-1.001 and 1.006, F.A.C., . . . which are incorporated herein by reference and this Code of Ethics should be viewed as additive to these laws, rules and regulations. . . . FUNDAMENTAL PRINCIPLES The fundamental principles upon which this Code of Ethics is predicated are as follows: * * * Honesty – Dealing truthfully with people, being sincere, not deceiving them nor stealing from them, not cheating nor lying. Integrity – Standing up for your beliefs about what is right and what is wrong and resisting social pressure to do wrong. * * * Responsibility – Thinking before you act and being accountable for your actions . . . . Each employee agrees and pledges: To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles. To obey local, state and national laws, codes and regulations. * * * 5. To take responsibility and be accountable for his or her actions. * * * As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract). Article V of the UTD Contract addresses the subject of "[e]mployer [r]ights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate bargaining unit employees "for just cause." Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1A of Article XXI provides, in part, as follows: Conferences-for-the-Record- Disciplinary Action and Reprimand The Board and Union recognize the principle of progressive discipline. The parties agree that disciplinary action may be consistent with the concept of progressive discipline when the Board deems it appropriate, and that the degree of discipline shall be reasonably related to the seriousness of the offense. 1. Any employee summoned to the office of a principal or immediate supervisor, where there exists no supervisor, ACCESS Superintendent, or the Senior Executive Director for Professional Standards, or their designees for a Conference-for-the- Record which may lead to disciplinary action or reprimand, shall have the right to request Union representation and shall be informed of this right. If Union representation is provided, the employee shall have the right to be accompanied at the Conference-for-the-Record by up to two representatives of the Union and shall be informed of this right. * * * A Conference-for-the-Record which may lead to disciplinary action or reprimand not held in accordance with these conditions, shall not be considered a part of the employee's personnel file of record, and neither the fact of the conference nor any statements made at the conference may be used in any subsequent proceedings or reprimand involving the employee. Where Union representation is provided herein, the employee shall be represented by the bargaining agent. The bargaining agent shall have the right to refuse representation in accordance with its own internal, nondiscriminatory rules. An employee may not be represented by an attorney in a conference-for-the-record. * * * Section 2 of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " At the time of his hire by the School Board in August 2000, although he held a teaching certificate in physical education (grades six through 12), Respondent did not have an endorsement in driver education; however, he was able to teach driver education at MLEC pursuant to, what was described to Respondent as, a "three-year waiver." In the latter part of his third year of teaching driver education at MLEC, Respondent inquired as to what he needed to do to obtain an endorsement in driver education. He first asked the head of his department at MLEC, Mr. Willenborg, who advised him that taking coursework through Dr. McCoogle's continuing education enterprise, M.O.T.E.T., at Palmetto was an acceptable means of obtaining such an endorsement.4 Respondent then contacted the School Board's supervisor of driver education, Dr. Reams, to verify the accuracy of the information Mr. Willenborg had provided him. Dr. Reams told Respondent, consistent with what Mr. Willenborg had said, that it was "acceptable for [Respondent] to go pursue [his] endorsement through attending the M.O.T.E.T. program." Dr. Reams mentioned only one other alternative: "go[ing] to the University of Florida in Gainesville . . . for the summer . . . and tak[ing] courses up there." Respondent reasonably relied on this advice that the "M.O.T.E.T. [program] was an acceptable option available to [him]." After speaking with Dr. Reams, Respondent telephoned Dr. McCoogle (using the telephone number Mr. Willenborg had given him) to express his interest in taking the coursework he needed to obtain an endorsement in driver education. Dr. McCoogle invited Respondent to meet him at Palmetto to further discuss the matter. Respondent met with Dr. McCoogle at Palmetto on or about April 12, 2003, at which time Respondent registered for three three-credit courses (Driver Education I, Driver Education II, and Organization and Administration of Driver Traffic Safety Education) offered by Eastern Oklahoma State College through M.O.T.E.T. During the registration process, he gave Dr. McCoogle a check in the amount of $1,442.00, representing almost half of the $2,885.00 he had to pay to take these three courses. Respondent subsequently (on May 17, 2003) paid Dr. McCoogle (by check) the remaining $1,443.00 he owed. Dr. McCoogle was Respondent's instructor for all three courses. He promised Respondent syllabi for these courses, but never delivered on his promise. For each of the three courses, Dr. McCoogle directed Respondent to go to the Palmetto driving range on three Saturdays when students were being taught and stay for two hours each visit (for a total of six hours) to observe the instruction taking place and "see how a driver's range was conducted." Respondent did as he was told by Dr. McCoogle. On three Saturdays in April and May, he spent a total of six hours (two hours each day) conducting observations at the Palmetto driving range. He spoke with the instructors who were teaching there on these days and observed them interact with their students (albeit not "inside the cars"). The only instruction he was able to observe was "what was taking place near the stand where the students sat." From his observations, he learned how the driving range was "managed." In making these observations, Respondent had a "driver's ed textbook that [he] referred to." Following his initial meeting with Dr. McCoogle on or about April 12, 2003, Respondent met with Dr. McCoogle on two subsequent occasions.5 Dr. McCoogle gave Respondent a grade of "A" in each of the three courses. To get these grades Respondent simply "did the observations that Dr. McCoogle required." Respondent was not required to attend any classroom lectures, to take any examinations or quizzes, to write any research papers, or to turn in any notes he took of the observations he made. Respondent received a transcript from Eastern Oklahoma State College reflecting the grades he had received in the three courses he had taken through M.O.T.E.T. He submitted a copy of his transcript, along with an application for endorsement in driver education, to the School Board's certification office (for transmission to the state Department of Education). Given what he had been told by Mr. Willenborg and Dr. Reams, he believed that, based on the coursework he had taken through M.O.T.E.T., he was eligible to receive the endorsement for which he was applying. Respondent ultimately obtained this endorsement from the state Department of Education. A criminal investigation of Dr. McCoogle and his M.O.T.E.T. program led the School Board police to investigate the allegation that Respondent had violated School Board Rule 6Gx13-4A-1.21 by engaging in the following conduct: Mr. Abner Reyes, Driver Education teacher, fraudulently obtained credit(s) from Eastern Oklahoma State College through the intricate and unlawful enterprise of Moving on Toward Education and Training, Inc. (MOTET), under the auspices of Mr. McCoogle. In essence, Mr. Reyes paid to obtain academic credit(s) for the purpose of certification, re- certification, and/or endorsements without availing himself of actual academic class time, work, or effort. This allegation was "substantiated" by the School Board police. The matter was then referred to the School Board's Office of Professional Standards. On February 24, 2006, Lucy Iturrey of the School Board's Office of Professional Standards, along with two other School Board administrators, conducted a conference-for-the- record with Respondent to address the allegation against him that had been "substantiated" by the School Board police. Respondent, who appeared without any legal or union representation, provided a statement to Ms. Iturrey describing what he had done to obtain his endorsement in driver education.6 The School Board's Superintendent of Schools, consistent with the recommendation made to his office by the School Board Attorney, recommended to the School Board that it suspend Respondent and initiate dismissal proceedings against him "based on the allegation that he fraudulently obtained and utilized credit(s) from Eastern Oklahoma State College through Moving On Toward Education and Training, Inc. (MOTET)." The School Board took such action at its March 15, 2006, meeting. After his suspension, Respondent was "basically unemployed for a little bit of time," doing some "odd jobs . . . for funds," until he became the executive director of Kidz Excel (which offers summer and after school programs for children), a position he presently holds.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order reinstating Respondent with back pay and dismissing the charges against him. DONE AND ENTERED this 13th day of February, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2007.
