The Issue The issue posed herein is whether or not the Respondent's recommendation received by the Superintendent made to the School Board that George H. Steel, Petitioner, be terminated for "gross insubordination and willful neglect of duty", as more particularly set forth hereinafter, should be upheld.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the documentary evidence received during the course of the proceedings, the following relevant facts are found. The School Board of Hendry County is the governing body of the school district of Hendry County, and as such, is the employer of all personnel within the school system. Section 230.23, Florida Statutes (1977). James C. Edwards, as the Superintendent of Schools for Hendry County, Florida, is the Chief Executive Officer for the entire school system. (TR. I-20). The Superintendent is charged with the responsibility for controlling and directing all employees of the school system. Subsection 230.33(7)(i), Florida Statutes, (1977). The position of Superintendent of Schools of Hendry County is an elected position. In the November, 1976, general election, George H. Steele, the Petitioner herein, was the incumbent Superintendent. The other candidate in that election was James C. Edwards, who was, at that time, principal in the Hendry County School System under Mr. Steele. Edwards defeated Steel in the election and assumed the office of Superintendent in January, 1977. Upon leaving office as Superintendent, the defeated Mr. Steele was re- employed by the Hendry County School Board and placed in the position of Director of Pupil Personnel Services for the remainder of the school year. The basis of the charge of gross insubordination was as follows: From the months of August through November, 1977, Steele failed to follow specific directives of the Superintendent and School Board policies concerning submitting payrolls through the sub-office. From the months of August through November, 1977, Steele failed to follow procedures for ordering textbooks and other items through the sub-office. During the months of September and October, 1977, Steele failed to secure all doors and gates of the school before going off duty each night as he was directed by the Superintendent and his job description. Steele attempted to undermine the programs of the adult community school by prematurely cancelling classes without proper authorization; improperly discouraging students from registering in the program of the adult community school; complaining about the organization and operation of the school in the presence of students; and being openly hostile and antagonistic toward the coordinator of the community schools. On November 3, 1977, Steele closed the school without authorization and without following the prescribed procedures as set forth in School Board policy. The basis of the charge of willful neglect of duty was as follows: During the months of June through November, 1977, Steele was absent from his assigned work location during the times that he should have been present, such absences not being authorized by duly approved leave. During the month of September, 1977, Steele failed to secure a teacher for a scheduled class and did not inform the coordinator of the unavailability of the teacher. On September 29, 1977, Steele was absent from his assigned work location and was not performing his assigned duties while watching a junior varsity football game with students in the night classes. On December 6, 1977, the School Board suspended Steele without pay pending a hearing on the charges, if requested. On November 29, 1977, prior to the School Board action suspending him without pay, Steele requested a hearing under the Administrative Procedures Act. On April 18, 1977, Mr. Edwards, the new Superintendent, called Mr. Steele in for a conference regarding his assignment for the next school year. Also present at that conference were William Perry (Director of Vocational, Technical, and Adult Education) and Thomas Conner (Community School Coordinator). Steele's attitude at that meeting has been characterized as belligerent. (TR I-44-46; TR II-231-234.) He started off the meeting by telling the Superintendent which assignments he would refuse to accept. (TR I- 45; TR II-232.) When the Superintendent informed Steele that he was going to be recommended as principal of the Adult Community School, Steele's reaction was openly hostile. (TR I-46.) Steele appeared at the next School Board meeting to protest his new assignment. At that meeting, he read a prepared statement to the School Board accusing the new Superintendent of "political hatchery". (TR I-49; Petitioner's Exhibit No. 3.) While Steele's right to speak directly to his public employer regarding the operation of the school system is unquestioned, his choice of works and his quarrelsome tone exceeded the bounds of propriety. Although Steel's conduct at this meeting is not cited as grounds for his termination, it is indicative of his attitude, which was repeatedly displayed thereafter, until the Superintendent recommended his dismissal. In August of 1977, when Steele assumed the position of principal of the Adult Community School, his immediate supervisor was Clarence Jones, the new Community School Coordinator. Jones' supervisor was William Perry, Director of Vocational, Technical and Adult Education. Perry's supervisor, in turn, was Mr. Edwards, the Superintendent. (TR-I-62, 131, 132; TR II-229.) As a result of Steele's desiring a clarification of his duties in his new position, a meeting was held on August 18, 1977, between the Superintendent and Steele. (TR I-52, 174, 175; TR II-236.) Perry and Jones were also present at this meeting. The Superintendent reviewed Steele's job description explaining, item by item, what he expected of Steele in his new assignment. Steele had a copy of the job description before him during this discussion. (TR I-56, 175; TR II-236.) Superintendent Edwards reminded Steele that his office hours were to be from 3:30 p.m. to 10:30 p.m., and that he must not leave the campus under any circumstances, except in an emergency. (TR I-63, 175, 176; TR II-237.) Whenever it became necessary for Steele to leave the campus--either for emergencies or because he was ill--he was instructed to call Jones, Perry, or the Superintendent before leaving. (TR I-63, 175, 176; TR II-237.) On August 31, 1977, Jones received a call from the Superintendent asking him to meet the Superintendent at the Adult Community School, Clewiston. Jones went to the school and arrived there at approximately 9:58 p.m. Jones and the Superintendent inspected the campus and did not find Steele present. Steele's car was not present. They remained there until approximately 10:30 p.m. (TR I-181.) On September 15, 1977, Jones went to the school at 10:17 p.m. and found all the lights off and nobody there. Steele's car was not present. He stayed there until 10:30 p.m. Steele had not called Jones to tell him that he was leaving that night. (TR I-187 and 188.) On September 19, 1977, Jones went tot he office of the Adult Community School, Clewiston, during the first night of classes to assist in registration. He noticed that on the first night eleven classes had been cancelled. Some of the classes cancelled were some of the most important ones that were offered, such as English, GED, mathematics and drivers education. (TR I-190 and 191.) The proper procedure and the procedure that has always been followed since the beginning of the program under Steele as Superintendent was that registration was to be held open for two weeks. At the end of two weeks, if the class was under the fifteen students that were needed to continue the class, the class would be cancelled after a conference between Perry and Jones. There was no conference to cancel any of the classes, and if any cancellations occurred, they were done without going through Perry and without following the proper procedures. (TR I-194 and 196; TR II-241, 244, 245 and 247.) In September, 1977, Steele changed the course offering of shorthand to speedwriting. (TR II-247 and 247; TR III-18.) The proper procedure for changing a course that had been scheduled would be for the principal, Mr. Steele, to consult with the Coordinator of Community Schools, Mr. Jones, and then consult with the Director of Vocational, Technical and Adult Education, Mr. Perry, and then change the course from what had been offered. Perry had not been consulted before the course was changed from shorthand to speedwriting, but subsequently approved the change after the fact. (TR II-247, 248, 249 and 250.) During the night of registration for the fall term of 1977, Steele was complaining to the students that he did not know what was going on around the adult school and did not have the authority to do anything and did not know what was happening. Steele's attitude toward Jones that night in front of the students was belligerent. (TR I-191 and 201.) On September 20, 1977, the first night that the class of bookkeeping was scheduled to begin, Steele called Jones about 3:40 p.m. and informed Jones that Steele did not have a teacher for the bookkeeping course that was to begin at 7:00 p.m. that night. There were twenty people enrolled in the class. It is the principal's responsibility to be sure that each class that is to be taught has a teacher and it is unusual for a class to start without a teacher, particularly when there are twenty people enrolled in it. Jones had to secure the person to teach the class. (TR I-203, 206; TR II-245.) On September 21, 1977, Jones went to Steele's work location at 10:00 p.m. and found that Steele was not present. Jones called the Superintendent and the Superintendent arrived at the school at approximately 10:12 p.m. and remained until about 10:30 p.m. During that period of time Steele was not present. (TR I-66 and 213.) On September 22, 1977, Jones went to Steele's work location at 10:05 p.m. and Steele was not present. Jones and Phifer, the principal of Clewiston High School, walked around the campus to see if they could find Steele, but could not find him. Jones remained there until approximately 10:30 p.m. and Steele was not present. Steele had not called him to inform him that he would not be there. (TR II-9 and 10.) On October 11, 1977, at 10:05 p.m. Jones went to Steele's work location and found that Steele was not on duty. He found the gates were not locked and that both access gates on the north side of the campus were standing open and unlocked. Jones secured the campus and inspected the entire campus, but could not find Steele. There were no cars present at the campus. He was there until around 10:30 p.m. and did not see Steele the entire time. Steele had not called in to say that he would not be there. (TR II-56, 57 and 58.) On October 14, 1977, Jones went to Steele's work location at approximately 9:30 p.m. and all the lights were out and doors were locked. Steele was not on campus and had not called Jones to say that he would not be there. Jones inspected the campus and did not find Steele. There were no cars on the campus. Jones stayed there for about twenty minutes and Steele did not return. (TR II-59.) On October 21, 1977, Jones went to Steele's work location at 8:30 p.m. and found that Steele was not there. All the doors were locked and lights were out. Steele had not called him about leaving. Jones discovered that Steele had filed a leave form for October 21, 1977, but it was filed in the county office in LaBelle and did not come through the suboffice as instructed by the Superintendent. (TRII-60 and 61.) On November 2, 1977, at 9:55 p.m. Jones went to Steele's work location and Steele was not present. The lights in the office were out and all doors were locked. Jones searched the entire campus and Steele was not there. Jones remained there for about forty minutes. Steele had not called him to say that he would not be there. (TR II-65, 66 and 67.) The Superintendent also directed Steele to send his payrolls through the county sub-office in Clewiston, where Jones maintained an office, rather than directly to the district office in LaBelle. Similarly, the Superintendent directed Steele to send all purchase orders for materials, books and supplies through the county sub0office in Clewiston for Jones' review, rather than directly to the supplier. The Superintendent also directed Steele to send all sick leave forms, whether for himself or his employees, through Jones in the county sub0office in Clewiston. In short, the Superintendent re-emphasized that Jones was Steele's supervisor. Finally, the Superintendent directed Steele to insure that the school plant was secure each night before he left campus. (TR I-64.) At the conclusion of this August 18, 1977, meeting, the Superintendent requested Steele to conform to all School Board policies and all of the orders that he had been given at the conference. There can be little doubt that Steele fully understood the Superintendent's orders. After each item, the Superintendent asked Steele if he understood what he had just been told; on each occasion, Steel acknowledged that he understood his instruction. (TR I-65, 177; TR II-239, 240.) In closing, the Superintendent warned Mr. Steele that if he did not follow each and every directive of the Superintendent and adhere to School Board policy, the Superintendent would consider each breach an act of gross insubordination. (TR I-65, 177; TR II-239.) Steele indicated that he understood the import of the Superintendent's orders. (TR I-65, 177; TR II-239, 240.) The tone of the meeting was very serious and the other administrators present testified that they had no problem understanding exactly what the Superintendent had directed Steele to do. (TR I-178.) Following that August meeting, Steele, based on the acts and conduct set forth above, failed or refused to follow the standards of conduct laid down by the Superintendent, ultimately resulting in the Superintendent's recommendation to the School Board that Steele be terminated for gross insubordination and willful neglect of duty. The particular conduct by Steel is detailed below. On numerous occasions after the August meeting, Steele left school early without informing Jones, Perry or the Superintendent. (TR I-66, 97, 181, 188, 213; TR II-9, 10, 56-61, 65-67.) He refused to send his payrolls through Jones at the sub-office, but persisted in sending them directly to the county office in LaBelle (TR II-11, 65; Respondent's Exhibit Nos. 2 & 4), in clear violation of the Superintendent's express orders. He also refused to send his book orders and his requisitions for materials and supplies through Jones, choosing instead to send them directly to the suppliers. (TR II-13, 14,15, 17, 18; Respondent's Exhibit Nos. 3 & 4.) He consistently failed to send his sick leave forms through Jones in the sub-office (TR II-60, 61), as he had been specifically instructed to do. On several occasions, he failed to secure the school plant before leaving the campus. (TR II-56, 57 &58.) In addition to repeatedly disobeying various lawful orders of the Superintendent, Steele openly displayed a hostile and contemptuous attitude toward his supervisors. From the first meeting between Jones and Steele, Steele was contemptuous and hostile toward Jones. (TR I-51.) Jones, as was his practice, recorded those encounters with Steele which he considered out of the ordinary, either favorable or unfavorable. (TR I-141.) Steele's attitude towards his immediate supervisor, Clarence Jones, was particularly disrespectful, discourteous, and belligerent -- not only in private, but in public. On occasion, he would totally ignore Jones in the presence of others, under circumstances where his refusal to acknowledge Jones' presence could reasonably be considered as an attempt to demonstrate his contempt for Jones. On other occasions, Steele displayed open hostility toward his supervisor. For example, he angrily slammed a handful of papers down on his desk and invited Jones outside to settle the matter of who was going to be principal of the school. (TR I-288.) In view of the circumstances, Jones perceived Steel's statement as an invitation to fight; however, Steele -- further displaying his contemptuous attitude toward Jones -- claimed he would never challenge Jones to a fight because he did not feel Jones was a man. (TR III-104, 170.) On another occasion, Steele told Jones' supervisor, Mr. Perry, that he thought Jones was a "pip squeak" and that he "would like to bust him in the mouth" (TR II-260.) Steele's insolent attitude toward Jones became apparent to others, as well. In September, 1977, a student, Margaret DeCastro, wrote a letter to Perry commenting on the rude and disrespectful attitude Steele had displayed toward Jones in her presence. Upon receiving Ms. DeCastro's letter, Perry requested a report from Jones about his relationship with Steel. In response, Jones detailed all the problems he had with Steele up to that point. Perry, in turn, reported this matter to the Superintendent. However, Clarence Jones was not the only administrator to face Mr. Steele's wrath: Steele also acted in a disrespectful manner toward William Perry, who was director of all adult and vocational-technical programs in Hendry County. For example, in the latter part of September, 1977, Steele upbraided Perry in front of several staff members. (TR II 256-260.) Mr. Perry was sufficiently upset by the incident that he wrote a letter to Steele directing him to change his attitude. (TR II-261; Respondent's Exhibit No. 7.) Finally, Steele's hostile, belligerent, and insubordinate attitude extended directly to the Superintendent. In a meeting with Steele on November 7, 1977, in the presence of Perry and Jones, the Superintendent informed Steele that he and Clarence Jones had, on several occasions as set forth above, discovered that Steele was absent from his assigned work location during duty hours. Steele angrily responded that anybody who said that he had not been at his work location when he was supposed to be was "a damn liar and full of shit." (TR II-267.) At that same November meeting, the Superintendent also questioned Steele about closing the adult school on the evening of November 3, 1977, without prior permission from Jones, Perry or Edwards. District policy prohibits principals from closing their schools without first receiving approval from the County office. (TR I-101.) Mr. Steele had been instructed to comply with all School Board policies at the August 18, 1977, meeting between Steele, Edwards, Perry and Jones. (TR I-65, 177; TR II-239.) Steele admitted that he had closed the school that evening; however, he claimed the weather was extremely bad and contended that he was justified in closing the school. (TR I- 102; TR II-73, 266.) While Steele's decision to close the school may have been sound, in view of the weather, he had once again failed to follow School Board policy, and the Superintendent's direct orders that he advise Jones, Perry or the Superintendent of the conditions so that they could make the decision. School Board policy did not give a principal, such as Steele, the discretion to close a school without first consulting with the Superintendent or his delegate. The mere fact that his decision may have ultimately proved proper does not excuse Steele from his obligation to follow the procedures set down by the Superintendent. ANALYSIS AND DISCUSSION A Principal with continuing contract status may be dismissed for gross insubordination or willful neglect of duty. Subsection 231.36(5), Florida Statutes (1977). The harmful effect of an administrator's insubordinate attitude on the operation of the school system has long been recognized. For example, in Board of Education of the City of Los Angeles v. Swan, 250 P.2d 305 (Cal. 2d DCA 1952) the Court, citing precedent, noted: A teacher, and more particularly a principal, in the public school system is regarded by the public and pupils in the light of exemplar, whose words and conduct are likely to be followed by the children taught. An important part of the education of any child is the instilling of a proper respect for authority and obedience to necessary discipline. Lessons are learned from example as well as from percept. The example of a teacher who is continually insubordinate and who refuses to recognize constituted authority may seriously affect the discipline in a school, impairs efficiency and teach children lessons they should not learn. Such conduct may unfit a teacher for service in a school even though her other qualifications may be sufficient. Johnson v. Taft School District, 19 Cal.App. 2d 912, 913; Voorhees, Law of Public Schools, p. 136. Id. at 309 (emphasis added). Unfortunately, the term "gross insubordination" has not yet been defined by Florida courts. However, in conformity with a fundamental rule of statutory construction, the term should be accorded its plain and ordinary meaning. Pederson v. Green, 105 So.2d 1 (Fla. 1958). Webster's Seventh New Collegiate Dictionary (1976 Ed.) defines "insubordination" as "unwilling to submit to authority." In the context of public education, the term has been defined as: "A constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority." Ray v. Minneapolis Board of Education, 202 N.W. 375, 378 (Minn. 1972). Another Court has stated: Insubordination imports a willful disregard of express or implied directions of the employer, and a refusal to obey reasonable orders. McIntosh v. Abbot, 231 Mass. 180, 120 N.E. 383. A practically indentical definition is found at 21A, Words and Phrases, Insubordination, 554, and was applied to uphold the dismissal of a teacher in Ellenburg v. Hartselle City Board of Education, 349 So.2d 605, 509, n. 2d (Ala.Civ.Appl1977): Insubordination imports willful disregard of express or implied directions or such defiant attitude as to be the equivalent thereto. (emphasis supplied) In the single Florida case construing the term, a teacher's dismissal for insubordination was upheld where he displayed "a disobedience of orders, infractions of rules, or a generally disaffected attitude toward authority." Muldow v. Board of Public Instruction of Duval County, 189 So.2d 415 (Fla. 1st DCA 1966). Lack of cooperation has been considered "a subtle species of insubordination." School District No. 8 v. Superior Court of Pinal County, 433 P.2d 28, 30 (Ariz. 1977). However, Florida Statutes requires something more than "a subtle species of insubordination" in order to terminate a continuing contract. The Continuing Contract Law says that the attitude or conduct of the educator must be "gross insubordination." Subsection 231.36(6), Florida Statutes (1977). The modifier "gross" when used with the term "insubordination" may also be interpreted in its common sense: "glaringly noticeable." Webster's Seventh New Collegiate Dictionary (1976 Ed.). One Federal Circuit Court, in Horton v. Orange County Board of Education, 464 F.2d 536 (4th Cir. 1972) affirming 342 F.Supp. 1244, construed the following actions as "downright" subordination: A teacher required her students to purchase two paperback books, despite a district policy which prohibited teachers from buying books for use in class or selling books to students, or collecting any fee from students, without first obtaining approval from the local Board of Education. When told of her violation, and informed that she must refund student monies, the teacher allowed a student to sell the book, in an apparent effort to avoid the regulation. 342 F.Supp. at 124. In Delaware, the statutory term analogous to "gross insubordination" is "willful or persistent insubordination", 14 Del. C. Subsection 1411. That term has been judicially defined as: "A constant or continuing intentional refusal to obey a direct or implied order which is reasonable in nature and has been given by and with proper authority." Shockley v. Board of Education, 149 A.2d 331, 334 (Del. Superior Ct., 1959). Although not dealing in those terms, a sensible and workable distinction between simple insubordination and "gross" insubordination is suggested by the Court in Fernald v. City of Ellsworth Superintending School Committee, 342 A.2d 704 (Me. 1975): In short, we are not dealing here with a teacher's ephemeral bad mood, minor clerical omission, or arguable negligence or inattention concerning an incidental matter. Rather, Plaintiff's conduct has the marks of a persistent, sustained, and unreasonable course of defiance. Such an attitude, over a course of time, breaches harmonious relations among colleagues and administrators. Id. at 708 (emphasis added). 1/ In other words, an occasional lapse of decorum or failure to follow orders may not be "gross" insubordination, since it may merely reflect an "ephemeral bad mood" rather than a disaffected attitude toward authority. But, when the misconduct is repeated, the breaches are more likely to be the result of persistent defiance rather than an "ephemeral bad mood." In order to flesh out the concept of insubordination as it applies in the context of public schools, a brief review of the manner in which the term has been applied in several specific cases is helpful. In Ray v. Minneapolis Board of Education, 202 N.W.2d, 375 (Minn. 1972) a "well-qualified Minneapolis high school teacher" (Id. at 377) was discharged for insubordination based upon his refusal to fill out an eight-page form which was part of the curriculum evaluation study conducted by an independent professional group, the North Central Association of Colleges and Secondary Schools. 1. In Fernald, a teacher had notified the Superintendent that she intended to take leave. When he denied her request, she absented herself from class for two days. Her termination for insubordination was affirmed by the Supreme Court of Maine. When Mr. Ray finally completed the form, he failed to answer several questions. A month later, when his principal asked him to fill out a second form, Mr. Ray again left several questions blank and answered some of the questions in an unresponsive fashion. At that point, he told his supervisor to quit harrassing him. Thereafter, Mr. Ray was advised by the Associate Superintendent that his failure to complete the form would be regarded as an act of insubordination. When, in April, Mr. Ray once again refused to complete the from, he was dismissed for insubordination. Even though Mr. Ray had contended that he had a First Amendment right to refuse to fill out the form, the Court found that he was discharged because he deliberately failed to cooperate in a program which was within the scope of his duties as an educator. (Id.) After reviewing the evidence, the Minnesota Supreme Court affirmed, ruling that Mr. Ray's refusal to complete the form was insubordinate (Id. at 378). In Calvin v. Rupp, 334 F.Supp. 358 (E.D. Mo., 1971), the Court rejected Mr. Calvin's contention that the true reason for his dismissal was his union organization activities (Id. at 359). Instead, the Corut--after taking testimony--found that Mr. Calvin "was guilty of undermining the school administration and of insubordination." (Id. at 362.) The specific acts of misconduct which the Court found constituted insubordination were his repeated failure to comply with the District policy regarding the report of drug use by students, coupled with his directing the publications class to cease working on the school newspaper. 2/ 2. The specific acts which were cited were: failure to report evidence of student drug activity, an omission which Mr. Calvin knew violated school policy (Id. at 361); notifying the Federal Narcotics Bureau about the suspected drug activity without first notifying the school officials (Id.); conferring with a narcotics agent on school property, without first notifying the school administration (Id.); discussing his suspicions with a student, after having been ordered by Superintendent Rupp "to say nothing further about the incident to anyone." (ID.); and directing his publications class to cease work on the student newspaper (Id. at 362). In Barnes v. Fair Dismissal Appeals Board, 548 P.2d. 988 (Oregon Court of Appeals, 1976), a tenured teacher was dismissed for insubordination where, on three separate occasions, he violated district procedures relating to corporal punishment of students. After the first incident, Mr. Barnes was warned by the principal that his conduct did not conform to the district policies. Nevertheless, some three years later, MR. Barnes again violated the district policies. A year later, in May, 1975, Mr. Barnes again punished a student without following the proper procedures. Two weeks later, the Superintendent notified Mr. Barnes that he was recommending his dismissal or insubordination. One other event which occurred between the second and third disciplinary incidents was cited by the Superintendent as evidence of Barnes' insubordination: On or about August 28, 1974, while attending the first day of in-service as a teacher *** you were asked to sign a roster of the record of your attendance. When you were advised it necessary that you do so, you did sign it by scrawling your name completely across the paper and making the remark, 'Give me that thing, and I will sign it for the son-of-a-bitch.' 548 P.2d at 990 n. 4. The Fair Dismissal Appeals Board concurred with the Superintendent and the School Board of Scappoose School District that Mr. Barnes' actions constituted insubordination, and upheld his dismissal. The Court of Appeals of Oregon, in the Opinion cited, affirmed the Appeals Board's action. Id. at 991. In view of the foregoing cases, and the misconduct of Steele cited herein, it is evident that Steele had engaged in a willful and persistent defiance of his duties as laid down by the Superintendent of Schools at the August 18 meeting. Steele's misconduct was exacerbated by his openly hostile and contemptuous attitude toward his immediate supervisor, Clarence Jones, whom he subjected to verbal abuse, snubbing, and even threatened with physical harm. Despite the express orders of the Superintendent, Steele often left school early, occasionally failing to even secure the campus. Apparently, Mr. Steele's defeat at the polls festered within him, and made him unwilling to graciously accept the fact that he was now subject to the direction and control of other administrators, whom he held in contempt. Steele's behavior during the period August through November, 1977, clearly constitutes gross insubordination and justifies his dismissal. As with "gross insubordination", the Florida Legislature failed to define "willful neglect of duty", which is another ground for dismissal under Section 231.36, Florida Statutes (1977). However, the term "neglect of duty", as used in Art. IV, Subsection 7, Fla. Const. (1968) and its predecessor, Art. IV, Subsection 15, Fla Const. (1885), was defined in State, ex rel Hardie v. Coleman, 115 Fla. 119, 155 So. 129 (1934): Failure on the part of a public officer to do and perform some duty or duties laid on him as such by virtue of his office or which is required of him by law. 155 So. at 132 Although both "gross insubordination" and "willful neglect of duty" involve failure to obey orders, the Legislature must have intended some distinction between the terms, or its use of the two terms in Section 231.36 would be redundant. Since the Superintendent of Schools has lawful authority to supervise or provide for the supervision and management of all school district personnel, Subsection 230.33(7), Florida Statutes' failure to abide by his orders would constitute willful neglect, if the failure to obey the orders was intentional, and gross insubordination if the disobedience was attended by disrespect. To avoid the redundancy, then, one must assume that breach of even minor rules could constitute "gross insubordination" where it is repeated, and where the breach is attended by overt defiance or hostility toward one's superiors. For willful neglect of duty, the contemptuous attitude may be lacking, but the rule or order violated must be somewhat more important to the efficient operation of the schools. Thus, for neglect of duty, one should look for the actual harm done; for insubordination, one should look to the attitude displayed towards the employer or supervisor. Statistical evidence is useful in gauging the extent of the harm Steele caused the Hendry County School System, generally, and the adult evening program, particularly, because of his persistent refusal to follow orders. The most telling statistic in this regard is the enrollment of the school before, during, and after Steele's tenure as principal. While Steele was principal of the adult evening school, enrollment in October, 1977, was down 40% from the previous year. The following October, after Steele had departed, enrollment was up over 100% above the level of enrollment for October, 1977. (TR II-84, 85, 88; Respondent's Exhibit No. 5). Thus, there was a severe dip in enrollment under Steele, followed by a significant rise after he left. The loss in enrollment under Steele, which is evidence of his neglect of duties, could logically be attributed to incidents such as the following: On August 17, 1977, Steele displayed his distaste for his new assignment by stating to Jones that he did not intend to be a "flunky" for the Adult Community School Program (TR I-149, 153, 159, 161-162). On September 19, 1977, the first night of registration for the Adult Community School, eleven classes had already been cancelled by Steele, including ones which Jones considered important, such as driver's education, GED, English and mathematics (TR. I-190-191). Even when Steele was Superintendent, classes were not normally cancelled until two weeks after registration night, (TR I-194, 196; TR II-241, 244, 245, 247). Steele changed a course in shorthand to speedwriting without first consulting with Jones or Petty, which was the proper procedure. (TR II-247- 250). More damaging was Steele's apathetic attitude towards the program: On registration night, he openly complained to students that he did not know what was going on around the school and that, in any event, he had no authority to do anything. (TR I-191, 201). Late in the afternoon of the day the bookkeeping class was to begin, Steele informed Jones that he had not yet secured a teacher for the class, even though it turned out that twenty students had already registered. (TR I-203, 206; TR. II-245.) As noted earlier, Steele was absent from school during assigned hours on numerous occasions during the fall of 1977. This, in spite of the Superintendent's direct order that he not leave campus without authorization, even to get a newspaper. (TR I-63, 175, 176; TR II-237.) On October 11, 1977, Steele not only left campus early, he failed to secure the building, as he had been specifically instructed to do. (TR II-59.) In summary, Steele's persistent failure to follow the rules of conduct laid down by the School Board, the Superintendent, or which are obvious requisites of his job as principal constitute willful neglect of duty and justifies his termination under Section 231.36, Florida Statutes. The statutory penalty for "gross insubordination" or "willful neglect of duty" is dismissal. For lesser offenses, lesser penalties may be authorized. However, where a continuing contract principal's misconduct constitutes gross insubordination or willful neglect of duty, as it has in the instant case, dismissal is appropriate. I shall so recommend
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, is is hereby, RECOMMENDED: That the Respondent, District School Board of Hendry County's recommendation that the Petitioner, George H. Steele, be terminated be UPHELD. RECOMMENDED this 14th day of September, 1979, in Tallahassee, Florida JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. Leonard Fleet, Esq. 4001 Hollywood Boulevard Hollywood, Florida 33021 John W. Bowen, Esq. and Andrew B. Thomas, Esq. Rowland, Bowen & Thomas Post Office Box 305 Orlando, Florida 32802 Owen Luckey, Jr., Esq. Post Office Box 865 LaBelle, Florida 33935
Findings Of Fact Respondent, Dasie M. Melton, at all times material hereto, was employed as a teacher under a written contract of continuing employment with Petitioner, School Board of Glades County. For the 1982-83 school year Ms. Melton was assigned to Moore Haven Junior-Senior High School (High School) where she taught physical education. Her evaluations for that school year were quite satisfactory. For the 1983-54 school year Ms. Melton was assigned to Moore Haven Elementary School (Elementary School) where she was assigned to teach trainable mentally retarded (TMR) students. Although Ms. Melton had not requested the assignment and was not certified in the area, she accepted this new and difficult task and proved to be an effective and loving teacher with her special students. Ms. Melton was respected by her peers at the Elementary School. Her principal, Gary L. Clark, testified at final hearing that he would have no reservations about Ms. Melton rejoining his staff. One of Ms. Melton's TMR students for the 1983-84 school year was Lisa Fournier. Lisa had a pleasant disposition but tired easily and often became nauseous and sick to her stomach. Although capable of communicating, Lisa did not grasp instruction quickly, and instructions had to be simply stated and repeated several times. During the 1983-84 school year, Lisa was to reach her twenty-first birthday. Consequently, pursuant to law, she would be required to leave the public school system at the conclusion of that term. Ms. Melton, recognizing that Lisa would be leaving the school system that year, thought it appropriate and beneficial for Lisa to participate in the ceremonies and functions attended by graduating students at the High School since no functions or ceremonies were otherwise contemplated for students such as Lisa. Accordingly, she discussed the matter with Lisa's legal guardian, as well as Lisa's natural mother. Both were enthusiastic and supportive of Lisa's participation. Having secured the support of Lisa's legal guardian and natural mother, Ms. Melton approached the administration for approval. With the exception of George H. Steele, the principal of the High School, the remainder of the administration, including the superintendent, approved of the concept. Consequently, for the first time in the history of the Glades County school system, a TMR student was to be afforded the opportunity to receive the benefits and recognition afforded other students who had applied themselves during their public school career. In addition to her normal duties, Ms. Melton assumed the responsibility of guiding Lisa through the various events for graduating seniors at the High School. Her efforts were met with a lack of cooperation or open resistance by the administration and staff of the High School. Although directed by Superintendent Lester M. Mensch to cooperate with Ms. Melton and to accord Lisa the privileges of a graduating senior, the High School administration and staff continuously failed to keep Ms. Melton advised of upcoming events and otherwise continued to resist implementation of the concept. Friction quickly developed between Ms. Melton on one side and Mazie Ford, assistant principal of the High School, and Patricia Ringstaff, senior class sponsor, on the other side. This friction came to a head during preparation for and during Grad Nite, an annual activity hosted by Walt Disney World for graduating seniors. In order to assure Lisa's participation at Grad Nite, Ms. Melton had to agree to accompany Lisa to Disney World. Notwithstanding Ms. Melton's commitment to chaperone Lisa, Ms. Ringstaff listed Ms. Melton as a guest. Ms. Melton felt her classification as a guest, rather than as a chaperone, to be a personal affront. She was further insulted by the fact that while she was required to serve as Lisa's exclusive chaperone, she was required to pay $22 for her own admission to Disney World. No other chaperone was required to pay for their ticket. The day before Grad Nite, Ms. Melton and Ms. Ford were involved in a heated discussion. The discussion involved the question of whether Ms. Melton was a guest or a chaperone and whether or not Ms. Melton would, under the circumstances, accompany Lisa on Grad Nite. Both parties became increasingly angry during this conversation, which was concluded by Ms. Ford hanging up the receiver. Subsequent to that phone call, Mr. Steele spent nearly an hour with its. Melton and her principal, Mr. Clark, trying to straighten out the confusion and alleviate the tension created by the confrontations Ms. Melton had with Ms. Ford and Ms. Ringstaff. In an effort to assure tranquility during Grad Nite, Mr. Steele clearly delineated the responsibilities of Ms. Melton and Ms. Ringstaff so, hopefully, there would be no cause for further tension. He designated Ms. Melton as the exclusive chaperone for Lisa and made Lisa her complete and sole responsibility. He designated Ms. Ringstaff, who was the senior class sponsor, in charge of all other chaperones and students. Ms. Ringstaff and Ms. Melton were directed by Mr. Steele, in the presence of Ms. Ford, to have as little to do with each other as possible. On Saturday, May 12, 1984, while the Grad Nite Participants were boarding their buses for the trip to Disney World, Ms. Melton and Mr. Clark discussed the advisability of Ms. Melton and Lisa riding to Disney World in the school station wagon that would accompany the buses. At that time Ms. Melton told Mr. Clark that they did not want any special favors and would prefer being treated like everyone else. Before departing Mr. Clark cautioned Ms. Melton to call him collect if any problem arose. After Ms. Melton and Lisa had boarded the bus, Mr. Clark had a conversation with Superintendent Mensch regarding the circumstances under which the station wagon would be used. Since the station wagon was to provide alternative transportation should the need arise, Mr. Clark left that conversation with a clear understanding that, if necessary, it would be permissible for Ms. Melton and Lisa to use the station wagon for transportation. The nonstop trip to Disney World was hot and difficult for Lisa. By the time they arrived at Disney World, she was uncomfortable, nauseated, and her complexion had paled. Consequently, at eight o'clock that evening Jets. Melton called Mr. Clark and advised him of the effect the bus ridehad on Lisa and that "nine times out of ten we'll be riding the station wagon back." Mr. Clark advised Ms. Melton that he had spoken with Mr. Mensch and he had said it was "okay." Thereafter, Ms. Melton and Lisa spent the evening and early morning hours together at Disney World. At approximately 4:00 a.m. Lisa became tired, so Ms. Melton returned with her to the parking lot before the arrival of the other students. Relying on her conversation with Mr. Clark, Ms. Melton advised Frank L. Gill, the transportation director, that, with the permission of Mr. Clark and Mr. Mensch, she and Lisa would be returning to Moore Haven in the station wagon. Thereupon, she put Lisa in the back seat of the station wagon, went to the bus for pillows, and returned to rest beside Lisa, who was already asleep. By this time, Ms. Melton had been awake for almost 24 hours, had constantly cared for and assisted Lisa, and, not surprisingly, was exhausted and suffering a severe headache. At approximately 4:45 a.m., while Ms. Melton and Lisa were resting in the station wagon and awaiting the return of the rest of the party, Ms. Ringstaff returned to the area. The events which subsequently transpired, and which form the basis of the charges leveled against Ms. Melton, incredibly enough stem from Ms. Melton's decision to have Lisa return in the station wagon. When Ms. Ringstaff returned to the parking lot, Mr. Gill advised her that Ms. Melton and Lisa were in the station wagon and that there would be no insurance coverage if Wayne Reese (who had driven the station wagon to Disney World) drove them back, because he only had an operator's permit as opposed to a chauffeur's license. Mr. Gill apparently did not consider the simple alternative of driving the station wagon himself, although he concedes then there would have been no problem as he had the necessary license. Following Mr. Gill's "revelation," Ms. Ringstaff seized command and called Superintendent Mensch without even inquiring of Ms. Melton as to why she and Lisa desired to return to Moore Haven in the station wagon. Neither Ms. Ringstaff nor Mr. Mensch agree to the substance of their early morning telephone conversation. Ms. Ringstaff insists the conversation centered around the insurance question. Mr. Mensch does not recall insurance being mentioned and testified at final hearing that there would have been no insurance problem under the circumstances. Mr. Mensch testified that Ms. Ringstaff simply told him that she was having trouble with Ms. Melton because she would not do as she requested and he advised Ms. Ringstaff that "she was senior sponsor of the program and that if she was having any difficulty, to get with Ms. Ford" and work it out. Mr. Mensch does not recall having advised Ms. Ringstaff that Ms. Melton could not return in the station wagon. The Hearing Officer finds Mr. Mensch's recollection the more credible. Ms. Ringstaff, armed with Mr. Mensch's direction to "work it out" went directly to the station wagon and advised Ms. Melton that the superintendent wanted her to return on the bus. Ms. Melton, embraced her prior directive, which delineated the parties' respective responsibilities, and declined to discuss the matter with Ms. Ringstaff. At no time during this conversation did Ms. Ringstaff inquire as to why Ms. Melton wished to return in the station wagon. Ms. Ringstaff then left the station wagon to consult with Ms. Ford. There is substantial confusion regarding Ms. Ford's status during Grad Nite. Although Ms. Ford was assistant principal of the High School and was, thereby, the senior administrator on the trip, it is uncertain whether she was actually acting in such capacity. It is Ms. Ford's position that she went to Disney World "merely as an assistant chaperone to assist the other chaperones, and that Ms. Ringstaff, as senior class sponsor, was in charge of the group. The Hearing Officer adopts Ms. Ford's description of her function during Grad Nite since she of all people should be knowledgeable of her capacity, and since her characterization comports with Mr. Steele's prior delineation of responsibility. At Ms. Ringstaff's direction, Ms. Ford went to the station wagon to discuss the matter with Ms. Melton. Although Ms. Ford never asked why Ms. Melton wished to return with Lisa in the station wagon, Ms. Melton did affirmatively advise her that she was sick, that she had a headache, and that her nerves were shot. Since Ms. Melton refused to leave the station wagon, Ms. Ford, Mr. Gill, and Ms. Ringstaff cloistered to work out this "problem." They resolved the issue by removing Lisa from Ms. Melton's custody and placing her in the custody of Ms. Ringstaff who was certified in learning disabilities and mental retardation. While Lisa rode back on the bus, Mr. Gill, who could have driven Ms. Melton and Lisa back in the first place, then drove Ms. Melton back to Moore Haven. At no time was Ms. Melton contemptuous, hostile, or abusive toward Ms. Ford, Ms. Ringstaff, or any other person on Grad Nite. Lisa had an uneventful trip back to Moore Haven. Mr. Clark, at Ms. Melton's request, met the returning party in Moore Haven. While strictly not necessary to the resolution of this case, the events which subsequently transpired lend credence to Ms. Melton's testimony and cast serious doubts on the motivations of her accusers. Upon returning to Moore Haven that morning, Ms. Melton, in the presence of Mr. Clark, asked Superintendent Mensch if he wanted to see her. Mr. Mensch advised her to get a good night's rest and that they would talk on Monday. On Monday Mr. Mensch avoided Ms. Melton until she cornered him late in the afternoon. At that time Mr. Mensch said he did not remember saying he would speak with her that day, and advised Ms. Melton he would see her the next day. In fact, Ms. Melton was never to have an opportunity to speak with Superintendent Mensch prior to her suspension. On Tuesday she was interviewed by Leonard Crowell, assistant superintendent, who had been appointed by the superintendent to act as an investigator and to gather statements. On Wednesday morning, May 16, 1984, Ms. Melton finally saw Mr. Mensch. At that time he advised her of his decision to suspend her and recommend her dismissal. At no time during this meeting did Superintendent Mensch ever ask Ms. Melton for her version of the incident. He also does not recall whether he listened to the taped statement Ms. Melton gave Mr. Crowell on Tuesday, before making his decision to suspend her. By letter dated May 16, 1984, Ms. Melton was formally suspended by the superintendent, with pay, from her duties as a classroom teacher at Moore Haven Elementary School for alleged gross insubordination and willful neglect of duty. On June 28, 1984, the Glades Count School Board changed her status to suspension without pay.
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
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 drama teacher at Miramar High School (“Miramar”), pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes. 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. 2010-2011 School Year On November 3, 2010, the vice-principal of Miramar held an informal conference with Respondent due to concerns regarding Respondent’s personal interactions with students and staff, at which time Respondent was directed to: 1) “not meet with another teacher’s students during his or her class time”; 2) “speak in a calm, respectful and professional tone at all times”; and 3) “always represent Miramar High School in a positive and professional manner.” 2011-2012 School Year On February 10, 2012, the vice-principal of Miramar issued a written reprimand to Respondent because of Respondent’s alleged “insubordination during a previous meeting.” According to the written reprimand, Respondent exhibited conduct during a meeting that “was unbecoming of a professional.” 2012-2013 School Year By the end of the 2012-2013 school year, Respondent no longer had any desire to teach drama, and he had requested to be transferred to another school. In an email dated May 30, 2015, Respondent stated: I think it would be best if we parted ways. I think the drama program deserves a fresh start and a teacher with a passion and drive to take the students to the next level. If, for some reason, I do return to Miramar, I would like to teach 9th grade English. 2013-2014 School Year Respondent was unsuccessful in his efforts to obtain a transfer to another school. On September 6, 2013, Respondent wrote to the School Board requesting unpaid leave under the Family and Medical Leave Act. In his explanation for requesting leave, Respondent alleged: “Miramar High is a hostile and harassing environment and it is effecting [sic] my mental and physical well being.” Respondent provided the School Board with documentation from a health care provider in support of his request for unpaid medical leave. The School Board granted Respondent’s request for Family and Medical Leave, and Respondent was on unpaid medical leave from September 6, 2013, until December 4, 2013. The proposed discipline is based upon conduct occurring on Monday, February 24, 2014, during Respondent’s second-period Drama II class. On Friday, February 21, 2014, Respondent was absent from work. Respondent’s son, who was a substitute teacher at Miramar, taught Respondent’s second-period Drama II class in Respondent’s absence. Respondent’s Drama II class was an elective class. There were 31 students in the class. Some of the students were serious about the class and hard-working, while others were not. On Friday, February 21, 2014, the students were supposed to be preparing for an upcoming school play performance called “The Mask.” The Mask was an original collaboration by the students. Approximately six weeks had been spent preparing for the play. However, as of February 21, 2014, the play was not performance-ready and a lot of work still needed to be done. The students should have utilized the time during their class on Friday, February 21, 2014, to prepare for the play. However, because there was a substitute teacher, some students wasted their time and were rude and disrespectful to Respondent’s son. Respondent was very upset when he found out that some of the students were rude and disrespectful to his son. On Monday, February 24, 2014, shortly after Respondent’s second-period Drama II class began, Respondent gave five of the students a pass to go to another class (history or debate). These students had minor parts in the play, and they were given assignments to work on independently in either the history or debate class. After these five students left the classroom, Respondent “took the stage.” The stage is located above and in front of the students’ desks. After waiting a few moments, Respondent proceeded to berate the class in a loud, angry, and profane tirade, stating: You disrespected my son. How dare you. How dare you. I will give every single person in this class an “F,” and you all just go screw yourselves. You don’t deserve me. You don’t deserve me. What are you going to do? [STUDENT] I’m going to stay -- Sit your ass down and shut up. Not a single sound. You laugh, you make a noise, you’re out; you understand me? I am sick of this class and I am sick of this school. You want a play, show me a goddamn play. Respondent’s tirade was captured on audio and video by one of the drama students in the class. A copy of the audio-visual recording of the incident was received into evidence at the hearing as the School Board’s Exhibit 2. Respondent’s verbal tirade directed at the class was inappropriate, verbally abusive, and disparaging. Respondent could certainly have projected authority and addressed the students’ behavior toward his son without resorting to the abusive, profane, and disparaging tirade. 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. Through the verbal tirade directed at his students, 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 his students 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 his duties. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of incompetence in violation of rule 6A-5.056(3). Through the verbal tirade directed at his students, Respondent failed to discharge his required duties as a teacher as a result of inefficiency. Respondent was inefficient by failing to communicate appropriately with and relate to students. The persuasive and credible evidence adduced at hearing establishes that Respondent violated School Board Policy 4008. Through the verbal tirade of his students, Respondent failed to treat his students with kindness and consideration. In addition, Policy 4008 requires compliance with the Principles of Professional Conduct of the Education Profession in Florida. 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 directive detailed above “to speak in a calm, respectful and professional tone at all times,” Respondent intentionally refused a direct order, reasonable in nature, and given by and with proper authority. At hearing, Respondent acknowledged that his language and use of profanity toward his students in the classroom on February 24, 2014, was inappropriate. At hearing, Respondent conceded that “[u]nfortunately, I lost my cool.” Respondent was remorseful of his verbal tirade at the hearing. 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) as alleged in the Administrative Complaint. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of willful neglect of duty as alleged in the Administrative Complaint.1/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order upholding the termination of Respondent’s employment. DONE AND ENTERED this 13th day of April, 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 13th day of April, 2016.
The Issue Whether just cause exists for Petitioner to suspend without pay and 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 St. Lucie County, Florida. At all times material hereto, Respondent was employed by the School Board as a music teacher at Manatee Academy K-8 School (“Manatee”), pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes. Respondent’s employment with the School Board as a teacher began in 2006. At all times material hereto, Respondent’s employment with the School Board was governed by Florida law and the School Board’s policies. Prior to the incidents giving rise to this proceeding, Respondent was not the subject of any discipline. She had received overall ratings of “Exceptional” or “Above Expectation” on her teaching evaluation forms. The incidents giving rise to this proceeding occurred on October 18 and 19, 2012, during the 2012-2013 school year. October 18 and 19 Respondent awoke around 6:00 a.m. on Thursday, October 18, 2012, and reported to work at Manatee. That afternoon, Respondent finished her work day at Manatee and left the school sometime after 3:15 p.m. After running some errands, Respondent arrived at her single-family residential home in Fort Pierce, sometime after 5:00 p.m. Respondent shared the home with her long-time boyfriend and fiancé, Dominic Madison (“Madison”). Madison was also a teacher employed by the School Board. At that time, Madison was a band director at a local high school. By the time Respondent got home, Madison had not yet returned home from his work day at the high school. Shortly after arriving home, Respondent sat down at her personal laptop computer to check e-mails and do some work. The computer was connected to the home’s wi-fi network. While working on the computer, Respondent discovered an unfamiliar icon and link to a file on the home network. The icon peaked Respondent’s interest. Upon clicking on the icon, a video opened with Madison’s face. Respondent then observed Madison and a white female engaged in sexual activity in a room inside their home.1/ While Respondent was unsure, it appeared that the female might be a former student of Madison’s who might also be a minor. As she continued watching the video, Respondent recognized the female as one of Madison’s 17-year-old students, K.M. After watching the video, Respondent was devastated, upset, angry, and unable to process what she saw. She called Madison at 6:36 p.m., to confront him about the video and confirm her suspicions that he, in fact, engaged in sexual activity with a minor student. They spoke for approximately 36 minutes. During the call, they argued, and Madison neither admitted nor denied engaging in sexual activity with K.M. By this point, Respondent was in tears and so upset and completely devastated that she experienced chest pains. After getting off the phone with Madison and while still at home, Respondent called her pastor, Theodore Sanders, for guidance. They spoke around 7:13 p.m., for approximately 14 minutes. Pastor Sanders knew Madison because his children had been members of the band at Madison’s high school. Pastor Sanders was shocked by Respondent’s allegation that Madison had engaged in sexual activity with a minor student. Due to the ramifications of such a “huge allegation,” Pastor Sanders was cautious and wanted to make sure that Respondent was certain about what she saw on the video. It is understandable that Respondent needed some period of time in which to process the situation, given that Madison was her fiancé; they had a long relationship together; and she observed Madison on her personal computer engaging in sexual activity with a minor student in their home. Sometime after 7:30 p.m., Respondent left the home. At 7:26 p.m., Respondent and Madison spoke again on the phone for approximately 38 minutes. Respondent and Pastor Sanders spoke again on the phone at 8:03 p.m. and 8:45 p.m., with such calls lasting one minute and 10 minutes, respectively. In the interim, Respondent spoke again on the phone with Madison for 43 minutes starting at 8:03 p.m. As a teacher, Respondent is a mandatory reporter of child abuse under sections 39.201(2)(a) and 1006.061(1), Florida Statutes. Respondent clearly understood that she had a mandatory obligation to report the sexual activity she saw on the video between Madison and K.M.2/ Respondent and Pastor Sanders discussed the need to report what Respondent saw. There was never any doubt that the abuse needed to be reported. Because of Respondent’s distraught emotional state at the time, they agreed that Pastor Sanders would make the call. Pastor Sanders told Respondent to get off the road and go home. Pastor Sanders then called “911” at some point after they got off the phone at 8:55 p.m., to report the abuse. At the hearing, Respondent acknowledged that there was almost a four-hour gap from when she first saw the video until the time that Pastor Sanders stated he was going to report the abuse. Respondent further acknowledged that prior to 8:55 p.m., she had never made a phone call to report the abuse to 911, DCF, or her principal. However, given that Respondent had just recently seen a video on her personal computer of her fiancé engaged in sexual activity with a minor female student in their home, it was understandable that Respondent needed time to process the situation. A less than four-hour delay from when Respondent first saw the video to Pastor Sanders’ call to 911 was immediate, and not an unreasonable delay given the unique facts of this case. Sometime before 10:00 p.m., Respondent returned to her residence. She saw Madison’s vehicle and assumed he was inside the home. According to Respondent, she knew the police were on their way. Respondent nevertheless entered the home, but she did not approach Madison in any manner. At approximately 10:00 p.m., two St. Lucie County Sheriff’s deputies arrived at the home and rang the doorbell at the front door. Madison answered the door, and was told by one of the deputies that they were there to talk to Respondent. The officer asked Respondent to step outside to speak with them and Madison was directed to step back. Madison then went back inside the home and closed the door behind him. One of the deputies remained at the front porch area while Respondent and the other deputy began to discuss what Respondent had seen on the video. At this point, one of the deputies requested to see the video so Respondent and the deputies proceeded to attempt to go back inside the front door. However, they discovered that Madison had locked the door behind him when he re-entered the home. By this point, no law enforcement officer had explored the perimeter of the home to determine whether there were any other entrances or exists from the home. Nor was Respondent asked by either deputy if there were any other entrances or exits from the home. Respondent began ringing the doorbell and knocking on the front door. In the midst of Respondent ringing the doorbell, knocking on the door, and receiving no response from Madison, the deputies asked Respondent, for the first time, if there were any guns in the home and any other entrances and exits. Respondent advised the deputies that there was a back door. Ultimately, it was determined that Madison had snuck out the back door of the home to elude law enforcement. Respondent gave the deputies permission to enter and search the home. They entered through the open back door. Once the house was cleared by the officers, Respondent and the officers went inside the home. Respondent was cooperative during the search of the home and she consented to allowing the officers to look at the computer. Respondent attempted to show one of the deputies what she saw on the computer, but nothing would come up. Ultimately, it was determined that Madison took the evidence with him when he fled the home. When officers went into the front office and wanted to collect some items belonging to Madison, Respondent told the officers that she would prefer if they got a search warrant. The officers obtained a search warrant and stayed all night searching the home until approximately 5:00 a.m. Respondent did not sleep or eat while the officers were at the home and she was visibly “shaken-up” and crying at times during the evening and early morning hours of October 19. Detective Wentz was at the home and spoke with Respondent throughout the night and early morning of October 19. At some point, Detective Wentz “flat out asked” Respondent if she knew where Madison was located. Respondent responded, indicating she did not know where he fled to. Detective Wentz made it clear to Respondent on multiple occasions during the evening of October 18 and early morning of October 19 that if she knew Madison’s whereabouts, she should let him know. Before he left the home on the morning of October 19, Detective Wentz reiterated to Respondent that she needed to contact law enforcement immediately if she had any information about Madison’s whereabouts. Respondent clearly understood this directive. At no time during the evening of October 18 and early morning of October 19 did Respondent ever volunteer information as to where she thought Madison might be. On the other hand, the persuasive and credible evidence adduced at hearing establishes that Respondent did not know of Madison’s whereabouts at any time during the evening of October 18 and early hours of October 19 after he fled the home. However, by 11:45 a.m., on October 19, Respondent discovered that Madison might be staying at the local Holiday Inn Express, based on information she received from Madison’s father. Respondent called the front desk of the hotel at 11:47 a.m. and 12:01 p.m., in an effort to confirm that Madison was indeed at the Holiday Inn. Respondent and Madison spoke at 12:09 p.m., at which time Respondent knew Madison was still at the hotel, about to check-out of the hotel. At no time between 11:47 a.m. and 1:39 p.m., did Respondent make any calls to law enforcement to let them know that Madison might be at the Holiday Inn. Master Deputy Horowitz was at Respondent’s home before 1:39 p.m. However, Respondent failed to inform Master Deputy Horowitz that Madison was at the Holiday Inn. Master Deputy Horowitz specifically asked Respondent if she knew where Madison was. Respondent responded, stating that she “did not know where his whereabouts were at the time.” Respondent spoke with Master Deputy Horowitz by telephone on two or three occasions later that afternoon. Respondent’s testimony that she told Master Deputy during one of these telephone conversations that Madison had been at the Holiday Inn is not credited and is rejected as unpersuasive. Later that afternoon, Respondent was transported to the Sheriff’s Office for an interview. During the interview, Respondent admitted she failed to inform law enforcement that Respondent had been staying at the Holiday Inn: DETECTIVE NORMAN: I know you’ve talked to several detectives throughout yesterday evening, last night, this morning, this afternoon. Probably seen more faces that you want to see. Here’s--here’s what we’re trying to figure out, where your fiancé is. Do you know where he is? MISS THOMAS: And I understand that. And like I told the officers that came to the home, it was information that was left out. And it truly was not intentional. I know the way it looked, intentionally, it made me look bad, but I honestly do not know where he is. At the time when I did speak to him, he told me that’s where he was, that he was leaving that location so I haven’t a clue. He hasn’t contacted me since the last time I spoke with him today. * * * And I mean, I’m disappointed because I made a mistake. I did. I omitted something that I didn’t realize at the time and I don’t know if it was, you know, just, you know, just did it just because I guess deep down I was maybe trying--you know, I don’t know why I didn’t say, “Oh yea, by the way this.” I don’t know why. That was so stupid. Petitioner’s Exhibit 12, pp. 5-7. Following the interview, Respondent was placed under arrest and charged with one felony count of failing to report child abuse in violation of sections 39.201(1)(b) and 39.205, Florida Statutes, and one felony count of being an accessory after the fact, in violation of section 777.03(1)(c), Florida Statutes. After Respondent was arrested, she was placed on temporary duty assignment at home with pay. On Monday, October 22, Respondent self-reported her arrest and the abuse of K.M. by Madison to her principal and the District. Subsequently, the State Attorney charged Respondent in the Nineteenth Judicial Circuit for the felony charges of failing to report child abuse in violation of sections 39.201(1)(b) and 39.205, and for the felony charge of being an accessory after the fact in violation of section 777.03(1)(c). The persuasive and credible evidence adduced at hearing establishes that Respondent did not call Madison while he was at the Holiday Inn Express to warn him so that he could elude arrest. Nevertheless, Respondent knew Madison was at the Holiday Inn at least by 12:09 p.m. on October 19, when she spoke to Madison on the telephone. Respondent failed to inform law enforcement that he was at the Holiday Inn, or that he had been at the Holiday Inn, until her interview at the Sheriff’s office later that afternoon just prior to her arrest. After a 23-hour manhunt, law enforcement officers found and arrested Madison at the Holiday Inn Express around 7:00 p.m. Respondent’s delay in informing law enforcement of Madison’s whereabouts or that he had been at the Holiday Inn Express delayed his arrest by at most, approximately seven hours. Notably, the video was discovered by Respondent, reported by Respondent to law enforcement, and Madison was arrested, within the span of approximately 25 or 26 hours. Ultimately, it was Respondent who identified the victims of Madison’s crimes. It was Respondent’s discovery of the video, her immediate reporting of the abuse, and her later identification of the victims, which led to Madison’s arrest and his conviction on all charges. The State Attorney charged Madison in the Nineteenth Judicial Circuit with 40 counts of criminal activity: 34 felony charges of sexual activity with a minor; five felony charges of sexual battery on a child in custodial relationship; and one felony charge of using a child in a sexual performance. On April 1, 2016, Madison was adjudicated guilty on five counts of sexual activity with a minor. Madison was sentenced to 15 years, consecutive, for each count. On August 7, 2013, Respondent pled no contest to both charges. On the plea form, Respondent checked section 25, which states: “I specifically believe the plea is in my best interest even though I am innocent of the charge, charges, or violations, or may have defenses to them.” After Madison was adjudicated guilty, all criminal charges against Respondent were Nolle Prossed. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A- 5.056(2)(d) or (e). The evidence does not establish that Respondent engaged in behavior that disrupted a student’s learning environment or reduced her ability or his or her colleagues’ ability to effectively perform duties. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a). The evidence does not establish that Respondent failed to make reasonable efforts to protect a student from conditions harmful to learning and/or to the student’s mental and/or physical health. Indeed, Respondent protected students from any further abuse by Madison. Respondent is responsible for Madison’s abuse of K.M. being brought to the attention of law enforcement immediately after she observed the video on her personal computer. Within about four hours after observing her fiancé engaging in sexual activity with a minor on her personal computer and processing the situation and speaking with her pastor, the matter was reported to 911, and law enforcement arrived at Respondent’s home. Madison was at the home when the deputies arrived. Notably, the deputies who arrived at Respondent’s home did not ask to speak with Madison first. Instead, they asked to speak with Respondent, and Respondent was asked to step outside the home. Madison, the alleged perpetrator of the sexual abuse, was ordered by one of the deputies to go back inside the home. Knowing full well that the suspect, Madison, went back inside the home through the front door, neither deputy undertook any efforts to determine whether Madison might have an escape route through another door. A perimeter was not established until after law enforcement officers discovered that Madison had fled the home. Respondent cooperated with law enforcement while they were at her home. She cooperated fully in the prosecution of Madison and she was instrumental in securing Madison’s criminal conviction for the abuse. Given the totality of the circumstances, Respondent’s failure to inform law enforcement during the afternoon of October 19 of Madison’s whereabouts at the Holiday Inn, which delayed the arrest of Madison by seven hours, at most, does not rise to the level of conduct sufficient to support a finding of guilt in violation of rule 6B-1.006(3)(a). The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated rule 6B-1.006(3)(n). Respondent reported the abuse to appropriate authorities when Pastor Sanders called 911. She also reported the abuse to appropriate authorities when deputies arrived at her home. Respondent also self-reported the incident to her principal and the District on the following Monday, October 22. 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). Insufficient credible and persuasive evidence was adduced at hearing to establish that Respondent engaged in conduct inconsistent with the standards of public conscience and good morals, and that the conduct was sufficiently notorious so as to disgrace or bring disrespect to Respondent or the teaching profession and impair Respondent’s service in the community. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 5.37(8)(a). Respondent “directly” reported her knowledge of Madison’s abuse of K.M. as required by the policy when Pastor Sanders called 911 within four hours of Respondent’s view of the video. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 6.301(3)(b). As to Policy 6.301(3)(b)(viii), Respondent did not engage in immoral conduct, nor was it shown that Respondent’s conduct was “indecent.” As to Policy 6.301(3)(b)(xxx), the School Board failed to prove that Respondent engaged in off-duty conduct that does not promote the good will and favorable attitude of the public toward the School District, its programs, and policies. In reaching this conclusion, it is notable that the School Board did not call any members of the public or any administrators, teachers, or other personnel as witnesses to support this claim. Moreover, the School Board does not argue in its proposed recommended order that it proved that Respondent violated Policy 6.301(3)(b)(xxx). Paragraphs 71 through 73 refer to another specific subdivision within Policy 6.301(3)(b), 6.301(3)(b)(viii). However, there is no specific argument that Respondent violated Policy 6.301(3)(b)(xxx). The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 6.94(2)(a). As detailed above, Respondent reported the abuse when Pastor Sanders called 911. Respondent also reported the incident to the deputies when they arrived at her home shortly after Pastor Sanders called 911, and when she self-reported the abuse to her principal and the District on the following Monday, October 22.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order rescinding Respondent’s suspension without pay and termination, and reinstate her with back pay and benefits. DONE AND ENTERED this 23rd day of May, 2017, 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 23rd day of May, 2017.
The Issue The first issue in this case is whether, as the district school board alleges, a teacher who failed immediately to notice that her paraprofessional had left a child behind during a student activity is guilty of negligent supervision; if the alleged wrongdoing is proved, then it will be necessary to decide whether the school board has just cause to terminate the teacher's employment.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. At all times relevant to this case, Respondent Luz M. Morales ("Morales") was employed as a teacher in the Miami-Dade County public schools. During the 2013-2014 school year, and for many previous years, Morales taught at the Neva King Cooper Educational Center, a school that provides special educational services to students with severe intellectual disabilities. Among the services provided at Neva King Cooper is community-based instruction ("CBI"), which entails taking students with disabilities into the community on a regular basis to learn and practice basic skills in real-life settings. On May 6, 2014, Morales took her six students on a CBI trip to the local Walmart. Accompanying Morales on this trip, to help supervise and control the students, were two paraprofessionals, Natalie Glover and Efrain Cestero. The group left the school on a bus at around 9:30 in the morning. The plan was to explore books and toys in the store, purchase a snack in the McDonald's Restaurant located inside Walmart, and return to school by around 11:00 a.m. Upon arriving at Walmart, Ms. Glover informed Morales that she was having some difficulty with one of the students and asked if she could skip the shopping component of the lesson and take this student straight to McDonald's. Morales agreed. Before setting out to shop, Morales assigned to Mr. Cestero the primary custodial responsibility for two students, one of whom, A.P., is unable to walk or talk and must be transported in a wheelchair. Mr. Cestero was an experienced employee with a record of good performance, and Morales's delegation to Mr. Cestero of responsibility for the safety of these students while in the store was authorized and proper. Morales herself took charge of the three remaining students, including one who was in a wheelchair. After looking at toys, Morales led the group to the candy aisle. As they moved through the store, Morales and her three students stayed ahead of Mr. Cestero and his pair of students. Morales and Mr. Cestero talked with one another, but she could not see Mr. Cestero or the two students under his supervision, all of whom were following behind Morales. Morales selected some candy to purchase. The group proceeded to the checkout aisles with Morales still in the lead. Mr. Cestero told Morales that he and his students would go ahead of her to McDonald's, where they would all meet again after Morales (with three students in tow) had paid for the candy and caught up with them. Morales thought this was fine and said so. She could not see Mr. Cestero and, having no reason to believe that anything might be amiss, did not turn around to look at him. In fact something was wrong. Unbeknown to Morales, Mr. Cestero inexplicably had left A.P. behind in the candy aisle, unattended. When he departed for McDonald's, therefore, Mr. Cestero was escorting only one student, not the two who had been placed in his care. It was shortly after 10:00 a.m. Morales completed her purchase without incident. Unaware of any problem, she made her way to McDonald's, at the front of the store. As she approached the restaurant, Morales saw Ms. Glover and Mr. Cestero sitting at adjacent tables with the students, behaving as though everything were under control and showing no signs of concern or distress. She brought her three students over to the paraprofessionals, and left them in their care so that she could order snacks for the group. To Morales, the situation appeared to be normal. Responsible adults had charge of the children. Neither paraprofessional was upset or flustered; to the contrary, their demeanors were calm, even relaxed. No patently dangerous, suspicious, or unusual condition was visible to Morales. She did not notice that A.P. was missing. As Morales waited in line at the McDonald's counter, she glanced over at the tables where her students and the paraprofessionals were sitting and counted heads. Morales thought she saw six students. She ordered hash browns. With hash browns in hand, Morales returned to the group. As soon as she got there, she began distributing the snacks. Before she could sit down to eat, however, a police officer arrived with A.P., who had been sitting alone in the candy aisle for nearly 20 minutes until——after worried Walmart employees had called for help——being rescued at around 10:20 a.m. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Morales is guilty of the offense of misconduct in office, which is defined in Florida Administrative Code Rule 6A- 5.056(2).1/ The greater weight of the evidence fails to establish that Morales is guilty of violating School Board policies: (a) on standards of ethical conduct; (b) establishing a Code of Ethics; and (c) governing student supervision and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Morales of all charges brought against her in this proceeding, reinstating her as a teacher, and awarding her back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 26th day of May, 2015, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 26th day of May, 2015.
