The Issue Whether Respondent committed any of the violations alleged in the Amended Administrative Complaint dated March 24, 2014, and, if so, what is the appropriate disciplinary penalty?
Findings Of Fact The Parties Petitioner, as Commissioner of Education for the State of Florida, is responsible for the investigation and prosecution of complaints against individuals who hold a Florida Educational Certificate when they are appropriately alleged to have committed a violation as provided in section 1012.795, Florida Statutes, and related rules. See § 1012.796, Fla. Stat. Respondent, Shadrick Fields, a male and, at the time of the events pertinent to this case, a middle school teacher employed by the Broward County School District (the District), holds Florida Educator’s Certificate 977090. Valid through June 30, 2017, the certificate covers the areas of English for Speakers of Other Languages (ESOL), Social Science, and Exceptional Student Education. Respondent was employed as a coach and Social Science teacher at Pompano Beach Middle School during the school years 2007-2010. In the 2009-2010 school year, Respondent was also employed as an assistant coach (but not as a teacher) at Coconut Creek High School. Pompano Beach Middle School and Coconut Creek High School are within and part of the District. On or about April 26, 2010, Respondent resigned his teaching position in lieu of termination of his position. The District accepted the resignation and placed Respondent’s identification in its records under “non-hire” status. The personnel action was taken because of allegations of an inappropriate relationship between Respondent and a female student. An Inappropriate Relationship Develops J.D. is a female. Born in 1992, she attended Pompano Beach Middle School in sixth, seventh, and eighth grades. She met Respondent at Pompano Beach Middle School although he was not her teacher or her coach. The events that led to Respondent’s resignation occurred principally in the 2009-2010 school year when J.D. was 17 years of age (her 18th birthday was in March 2010) and a student at Coconut Creek High School. The events had their origin, however, in 2006 when J.D. was a middle school child. J.D. met Respondent as a seventh grader when Respondent was “doing security [for the school] at the time.” Hr’g Tr. 81. Later, J.D. had contact with Respondent in Respondent’s capacity as coach of the middle school football team. On the last day of J.D.’s eighth grade school year (in 2006), Respondent gave J.D. a letter written from him to her. The letter was not produced at the hearing. Respondent asked for it back, and J.D. returned it to him. When asked about the letter at the hearing, the following colloquy took place between and counsel for Petitioner: I have to go in detail about the letter? Q. Well . . . just tell us in general, what was the nature of the letter? A. He liked me. I liked him. Hr’g Tr. 83. J.D. did not see or communicate with Respondent over the summer between her eighth and ninth grade. J.D. resumed contact with Respondent during her freshman year at Coconut Creek High School where she was a student and he was one of the coaches for the wrestling team. Respondent was not J.D.’s coach nor was he one of her teachers; he continued to teach at Pompano Beach Middle School. Nonetheless, they talked on the phone. On Valentine’s Day, Respondent gave J.D. a card. The card opens with the statement, “Falling in love with you was something I hadn’t expected but being in love with you is something I wouldn’t stop, even if I tried.” Pet’r’s Ex. 6. It closes with the statements, “I already have my Valentine’s Day Gift and it’s you! I love you.” Id. J.D. claimed at the hearing that she and Respondent engaged in sexual relations once during her freshman year at Coconut Creek. She said they took place in Respondent’s truck, an arrangement they agreed to both by speaking about it and writing about it. The letters related to their rendezvous in the truck were not produced at the hearing because J.D. disposed of them in a trash receptacle. J.D. claimed that she engaged in sexual intercourse with Respondent only one other time: during her senior year, again in Respondent’s truck. The time that elapsed between the two sexual events, according to J.D., was due to an agreement between Respondent and J.D.: they agreed to cease further sexual involvement until she graduated from high school (albeit, as J.D. testified, the agreement failed in February of her senior year). During the time between the two incidents of sexual relations to which J.D. testified, J.D. and Respondent frequently communicated through writings, cards, and letters. When Respondent wrote to J.D. he delivered the communications through one of two methods: he handed them to her directly or he placed them in an open tube affixed to the wall of a hallway outside the wrestling locker room. When the latter method was followed, Respondent would send a text to J.D. to alert her to the presence of a letter in the tube. The purpose of using the tube was to prevent suspicion by others should Respondent be observed handing written communication to J.D. The letters produced at the hearing that J.D. received are emotionally intimate. The third of the four letters that make up Petitioner’s Exhibit 7 is highly charged and sexually graphic. It refers, for example, in detail to love-making in which Respondent and J.D. had engaged. Respondent’s letters refer to himself as “King” and are signed “M.N.U.A.I.A.,” which stands for “Me and You Against It All.” See Pet’r’s Ex. 7. During J.D.’s senior year in high school, J.D. and Respondent had increased opportunities to interact on school days. J.D. played on a school flag football team and became the assistant manager of the wrestling team for which Respondent was the coach. Family members picked J.D. up after flag football practice or when she stayed after school in her capacity as the wrestling team assistant manager. But Respondent also provided her transportation home in his truck. He gave J.D. a ride home after these extra-curricular events whenever she asked. The question was asked at the hearing, “Generally, who gave you a ride home?” J.D. testified, “Mr. Fields.” Hr’g Tr. 98. Respondent also gave J.D. cards and gifts, including a Teddy Bear that was delivered with a card. The card ends with “I’m your Teddy Bear baby, M.N.U.A.I.A. I Love You.” The card makes reference to the silence of Teddy Bears and that “they will never breath [sic] a word of secrets you may tell.” Pet’r’s Ex. 8. In December and January of the 2009-2010 school year (J.D.’s senior year), Respondent had significant contact with J.D. by cell phone. Pet’r’s Ex. 9. For the month of December 2009, phone calls between J.D.’s cell phone and Respondent’s cell phone averaged more than one per day. Following more than 40 phone calls in January of 2010, the phone contact continued into February. In the middle of the month of February 2010, Respondent handed a Valentine card to J.D. (He did not place it in the tube because “[i]t wouldn’t fit in there.”). Hr’g Tr. 96. The card states, “You know that I would give anything to be in your arms, touching your face, staring into your eyes and tasting your lips. I can’t but I can depend on our love to see me through.” The card addresses J.D. as “Lil Solja” and is signed: Happy Valentine’s Day #1 M.N.U.A.I.A. Love & “Sincerely Yours”, Solja Pet’r’s Ex. 9. Over the late 2009 and early 2010 time period, some of the many phone calls between J.D. and Respondent were for extended periods of time or were at odd hours. One set of calls was both. On February 19, 2010, a call was placed from Respondent’s cell phone to J.D.’s cell phone that is shown by phone records to have lasted for 186 minutes (until 2:50 in the morning of February 20, 2010). The same records show that one minute later, at 2:51 a.m., February 20, 2010, a phone call was placed from J.D.’s cell phone to Respondent’s cell phone. This second “middle of the night” phone call lasted another 76 minutes. The two calls total more than four hours. The lengthy “middle of the night” phone calls in mid-February of 2010 occurred roughly one week before events that precipitated the discovery of J.D.’s relationship with Respondent. The events took place on February 26 and 27, 2010, the weekend before J.D.’s 18th birthday. Discovered February 26, 2010, was a Friday. J.D. worked that evening at Steinmart as a merchandiser. She had worked at Steinmart her entire senior year with a schedule of roughly 20 hours per week. The following are questions and answers from the transcript of the hearing about what occurred the evening of February 26, 2010, when J.D. was at work: Q. Did Mr. Fields come to your work that day? A. Yes. Q. Tell us what happened. A. I went to work, took a break right before the store closed, around eight-something. I had been talking to him throughout the day. He came to my job. We had sex. I got off work and went home. * * * Q. . . . Mr. Fields came to your work, correct? A. Came to my job on my break. Q. And how long of a break did you have? A. Thirty minutes. Q. Thirty minutes. And what did you do on that break? A. I got in the truck with him, we talked, we had sex and I went back to work. Q. When you say you had sex, you had sexual intercourse? A. Yes. Q. And this occurred in Mr. Fields’ truck? A. Yes. Q. Where at in the truck? A. In the back seat. Hr’g Tr. 101. When asked by counsel for Petitioner how she felt about having sex with Respondent in his truck, she testified as if it were nothing unusual: “I really didn’t feel no way.” Hr’g Tr. 102. When asked immediately after, “You felt what?” J.D. reiterated her testimony, “I really didn’t feel any type of way, you know.” Id. During the interlude in the truck, J.D. and Respondent developed plans for the next night, Saturday, February 27. J.D. did not have to work that Saturday, but she “planned to lie to [her] mom” and tell her she did so she could, in her words, “spend the time with him before my birthday.” Hr’g Tr. 103. Hewing to the plan, J.D. told her mother that she was needed at Steinmart on Saturday to help her manager with inventory. J.D.’s mother, accordingly, drove her to work and dropped her off in the middle of the day. Later in the day, J.D.’s mother returned to Steinmart to purchase a shirt for her husband using a family discount by virtue of J.D.’s employment. She asked for J.D. in the store because J.D. had to sign a form to make the discount effective. When it turned out that J.D. was not at work and had not been at work, J.D.’s mother became extremely concerned. She called J.D. and texted her. When the calls and texts to J.D. went unanswered she enlisted other family members to assist in contacting and locating J.D. She lodged a missing person’s report with local law enforcement, and she began her own investigation. J.D.’s cell phone was under her mother’s account. When her mother checked the phone log she saw a number “that had been calling back and forth.” Hr’g Tr. 40. The phone number was Respondent’s: 954-691-6468. J.D.’s mother did not recognize the phone number, but discovered later that it belonged to Respondent. When asked about a voice message she left on Respondent’s phone, J.D.’s mother testified, “I don’t want to say under oath what I said but I was upset once I realized whose phone it was.” Hr’g Tr. 41. After testifying that the pattern and consistency of the phone calls between her daughter and an older male made her distraught, she was asked to explain by counsel. She answered, “Because I just felt like that communication shouldn’t have been going on, as many times as I’d seen it in the call log.” Id. Between being transported to her work place and the frantic activity of her mother, J.D. had talked to Respondent on the phone. He picked her up at Steinmart and drove her across the county to a movie theater in the western part of the county about 35 minutes away by car. After watching a movie, “The Crazies,” the two had something to eat at “TGI Friday’s,” hearing transcript 105, a restaurant in the same plaza as the movie theater. J.D. noticed that she had received phone calls from her mother, but she was “scared,” id., to call her back. While the two were still inside the restaurant, Respondent noticed that he had received telephone calls from J.D.’s mother as well. J.D. told Respondent not to return the call, and he did not. Respondent drove J.D. back to Steinmart and dropped her off at roughly 9 p.m., the time J.D. should have been getting off work had she worked that day. Respondent did not return J.D.’s mother’s call before he left J.D. at Steinmart. J.D.’s brother picked her up at Steinmart and drove J.D. home where she was met by Deputy Matthews, who had responded on behalf of local law enforcement to the missing person’s report. Deputy Matthews’ report indicated that J.D. was questioned about sexual activity with Respondent and that she denied sexual activity. Text Messages On Sunday (February 28, 2010), Respondent texted J.D.: Does she still want to talk to me? I’ll take da day off in effort to make things right by sitting down with her. A million more apologizes from da heart. Pet’r’s Ex. 5, at P010/011 [marked in hand-writing as “83”]. On March 1, 2010, the next Monday, Respondent sent text messages to J.D. At 3:17 in the morning, his text reads, I hope I haven’t tarnished or messed your life first and everyone else that looks up to me. I’ve let so many down . . . mainly you. I pray for ur fams forgiveness. Pet’r’s Ex. 5, P0087/011 [marked in hand-writing as “81”]. Another text follows at 3:45 in the morning: I never lied to you. Everything I said I meant from the heart but I should have never told you. Every day forward free is a blessing & will be cherished. Id. Later in the day, at 3:36 in the afternoon, Respondent texted “I’m going to turn myself in. Its all in your hands, my life.” Pet’r’s Ex. 5, P0097/011 [marked in hand-writing as “82”]. Over several days, J.D. and her mother engaged in a number of emotion-laden conversations. J.D.’s mother reached the point of “yelling” and “crying.” Hr’g Tr. 56. At some point in the midst of the emotional interchanges between J.D. and her mother, J.D.’s mother told her that she intended to take J.D. to a gynecologist for an examination for sexual activity. J.D. did not want her mother to know that she was not a virgin. But she was not concerned for herself alone. She did not want to tell anyone that she had engaged in sexual activity with Respondent because she wanted to protect him. The gynecological examination of J.D. revealed that she had been sexually active. Despite misgivings both for herself and because of the potential impact to Respondent, J.D. told her mother she had engaged in sex with Respondent. J.D.’s mother’s impression was that J.D. had not been sexually active even though she had a boyfriend (who was not Respondent). When J.D. revealed the sexual nature of her relationship with Respondent after the examination, J.D.’s mother called local law enforcement to report it. As a result of the call, a case was opened, and it was assigned to Deputy Julie Bower of the Broward County’s Sheriff’s Office of Sex Crimes. Deputy Bower questioned J.D. and reviewed the phone records, as well as the cards and letters that have been admitted into evidence in this proceeding. Deputy Bower confirmed that J.D. was 17 years’ old, a minor, when Respondent took her to the movies and that Respondent was over the age of 24 at the time. Their ages led Deputy Bower to conduct an investigation into whether Respondent had committed the crime of “Unlawful Sex with Certain Minors.” March 5 Statement to the Sex Crimes Unit On March 5, 2010, Officer Bower took a statement from J.D. In the statement J.D. admitted that she and Respondent had engaged in sexual activity on February 26, 2010. As the interview for the statement progressed, Deputy Bower took J.D. through the history of the relationship. J.D. stated that Respondent seemed to take an interest in her more than the other girls at school (Pet’r’s Ex. 2, p. 4 of 24). She also related that she received the first letter from him at the end of the eighth grade, but that she was not interested in him until her senior year in high school when Respondent started writing her and giving her gifts: “clothes, shoes, . . . cards, letters” id., page 7 of 24, and a bracelet of white gold. In the meantime, during her ninth, tenth, and eleventh grades, J.D. claimed in the statement that their relationship was “nothing . . . just a hi and bye.” Pet’r’s Ex. 2, p. 6 of 24. She related that in December of 2009, however, her relationship with Respondent started changing after “he made the move” (Id., p. 8 of 24), at which time she decided she wanted to start dating. They discussed having sex, and Respondent told J.D. that he loved her. J.D. stated to Deputy Bower that she was a virgin until the encounter with Respondent in his truck on her break from work on Friday, February 26, 2010, at which time she claimed they engaged in sexual intercourse. Deputy Bower was unable to verify J.D.’s claim of sexual intercourse with Respondent through any source other than J.D.’s statement. Nonetheless, Respondent was prosecuted criminally. Acquittal Respondent was charged with the crime of Unlawful Sexual Activity. He was tried by jury in the circuit court in and for Broward County and was found not guilty. See Respondent’s Ex. 1, Circuit Court Disposition Order in and for Broward County, Florida, rendered October 31, 2011, and an attached “Felony Order of Acquittal.” The Administrative Complaint and the Amended Administrative Complaint An Administrative Complaint seeking appropriate disciplinary sanction of Respondent’s educator’s certificate was issued by Dr. Tony Bennett, as Commissioner of Education, on July 8, 2013, 20 months or so after the acquittal. The complaint contains three counts of statutory violations and two of rule violations all based on facts alleged in a section entitled “Material Allegations.” The gist of the material allegations are contained in the section’s first sentence, “During the 2009/2010 school year, Respondent engaged in an inappropriate relationship with J.D., a 17-year-old, female student.” Administrative Complaint. The statutory violations are of section 1012.795(1)(d), Florida Statutes, for “gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education;” section 1012.795(1)(g), Florida Statutes, for “personal conduct which seriously reduced his effectiveness as employee of the school board;” and, of section 1012.795(1)(j), Florida Statutes, for violation of “the Principles of Conduct for the Education Profession prescribed by the State Board of Education rules.” Administrative Complaint, p. 2 of 3. The rule violations are of Florida Administrative Code Rule 6A-10.081(3)(a), “in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety,” and of Florida Administrative Code Rule 6A-10.081(3)(e), “in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement.” On March 24, 2014, Petitioner executed an Amended Administrative Complaint deemed filed as of that date by an Order Granting Leave to Amend. The amended complaint adds two new paragraphs to the material allegations. The new paragraphs expand the time frame for the basis of the statutory and rule violations outside the 2009-2010 school year to prior years back to 2006. The second of the two paragraphs of material allegations alleges: In subsequent years [post-2006], including 2010, Respondent wrote type [sic] letters . . . to J.D., along with cards and music CD’s. Some of the letters contained sexually graphic language . . . Amended Administrative Complaint, para. 3 and 4. The amended complaints also add two new rule violations, one of Florida Administrative Code Rule 6A- 10.081(3)(f) that Respondent intentionally violated or denied a student’s legal rights; and, the second of Florida Administrative Code Rule 6A-10.081(3)(h) that Respondent exploited a relationship with a student for personal gain or advantage. Amended Administrative Complaint, Counts 6 and 7. Respondent’s Defense to the Factual Allegations The following statement appears in the Joint Prehearing Stipulation filed by the parties: “Respondent admitted his text messages and phone calls to J.D. but denied any sexual activity or involvement with the notes and letters.” In addition to Respondent’s testimony under oath that he did not engage in sexual activity with J.D., he points to a number of facts that support his argument for why J.D.’s testimony that it occurred should not be credited: a. her denials to law enforcement the night of February 27, 2014; b. her denials to her mother at first; c. her claim to her mother that she had sex with Respondent only after the pressure of emotional conversations and the gynecological examination that showed her to have been sexually active; d. the inconsistency between her statement under oath to Deputy Bower that the first sexual encounter with Respondent was in her senior year and the statement under oath that her first sexual encounter with Respondent was when she was in the ninth grade; and e. the testimony of Dwanaill Sutton. Mr. Sutton was a year behind J.D. in high school and a member of the wrestling team. He met J.D. when he was in the ninth grade through his best friend at the time, another male member of the wrestling team. The coaches of the wrestling team were “Coach Carradine and Shadrick Fields [Respondent].” Hr’g Tr. 279. Respondent also coached Mr. Sutton on the football team, again as an assistant coach. Eventually, Mr. Sutton and J.D. became “best friends.” Id. They remained so into Mr. Sutton’s junior year (J.D.’s senior year). They do not see each other much anymore but they communicate “[v]ia social media.” Hr’g Tr. 280. Mr. Sutton has no ill feeling about J.D.’s allegations against Respondent. While J.D. and Mr. Sutton were still under the status “best friends,” Mr. Sutton was interviewed at school one day before lunch by a detective who asked him questions about J.D. and Respondent. At lunch, Mr. Sutton asked J.D. what she knew about the detective. J.D. replied that she had given Mr. Sutton’s name to the detective. Mr. Sutton followed up by asking J.D. “what was going on with her and Coach Fields because those were the only two names that the detective mentioned.” Hr’g Tr. 284. J.D. replied “‘nothing happened.’” Id. When asked by counsel if Mr. Sutton asked J.D. “did you guys do something?” id., Mr. Sutton replied that J.D. said “‘We didn’t do anything.’” Hr’g Tr. 285. With regard to the written communication J.D. claims to have received from Respondent, he argues J.D.’s testimony should not be credited because: Respondent denies sending any such items [and did so under oath]. [citation omitted] Respondent testified that he does not write in the fashion the card and letters were written and that it seems as if someone with less than a college education prepared them. [citation omitted] He denies giving J.D. any cards, stuffed bear or bracelet. [citation omitted] Petitioner failed to produce any evidence to support the conclusion that the handwriting on the various cards and letters was that of Respondent. No handwriting expert testimony was adduced and no lay testimony was presented that the writings were that of Respondent. Respondent’s Proposed Recommended Order, p. 6 of 11, para. 16. Respondent claims that the purpose of his relationship with J.D., and the many phone calls and communications with her, was to lift her spirits in the face of personal problems at home, particularly with her step-father and not being able to live with her biological father, and ensuing academic problems and problems at school. But he admits the relationship was inappropriate: [A]s far as lifting her spirits . . . [w]hat I should have did is had a female teacher or mentor be that person for her. I shouldn’t have been there like that. That was inappropriate for me to be there. Hr’g Tr. 228.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be permanently revoked and that he be barred from re-application. DONE AND ENTERED this 5th day of December, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 5th day of December, 2014. COPIES FURNISHED: Johnny L. McCray, Jr., Esquire Law Office of Johnny L. McCray, Jr., P.A. 400 East Atlantic Boulevard Pompano Beach, Florida 33060 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast Thirteenth Street, Suite E Fort Lauderdale, Florida 33316 (eServed) Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged misconduct which is set forth in an Administrative Complaint. The misconduct alleged consists primarily of allegations that the Respondent engaged in inappropriate physical touching of a female student.
Findings Of Fact M. A. is a thirteen year old student at West Miami Middle School. At the time of the alleged incident, she was twelve years of age, was approximately five feet, three inches, tall, and weighed about one hundred sixty pounds. She had gained about twenty or thirty pounds more as of the time of the formal hearing in this case. The School Trust Counselor, Diana De Cardenas, had been seeing M. A. and M. A.'s sister for eating disorder problems because both girls were somewhat overweight. The counsellor had seen M. A. on several occasions because of allegations that M. A.'s mother and M. A.'s brother were hitting her at home. Her brother did not want her to eat and when he saw her eating he would beat her. M. A. saw the counsellor because of these facts and was often upset and crying. The Respondent, Millard Lightburn, is forty-two years old and has been a teacher for over fifteen years. The Respondent is Hispanic. He previously taught school in Nicaragua and speaks both English and Spanish. The accusing child, M. A., is also Hispanic. The Respondent taught a computer application course and from time to time he would use students to help file papers and keep records. Shortly before the time of the alleged incident, the Respondent asked two students, M. A. and a male student named L. D., to help him file papers and perform other similar paperwork tasks. The student named L. D. did not come to help the Respondent on the day in question because L. D. was asked by another teacher to help with a problem in the cafeteria. On the day in question, the Respondent was having lunch while working in his classroom. M. A. was in the class alone with him helping him file papers and perform other similar paperwork tasks. This was the second day that M. A. had assisted the Respondent with the paperwork. As the work was finished, the Respondent said to M. A., "Thank you very much; thank you for your help." He put his hand on her shoulder and put his cheek next to hers and gave her a peck on the cheek in a manner that is customary and traditional among Hispanics in Dade County, Florida. The Respondent demonstrated this gesture at the hearing. This same gesture was also demonstrated by two other witnesses, Shirley B. Johnson and Assistant Principal Eldon Padgett. West Miami Middle School is about 93 percent or 94 percent Hispanic. In that school and in the Hispanic community served by the school, it is customary for people to hug and to touch one another on the cheek or to give one another a peck on the cheek. Such conduct is common at all Hispanic schools in Dade County, Florida. The gesture demonstrated by the Respondent and by two other witnesses is a customary Hispanic gesture in Dade County, Florida, and is not considered to be offensive or inappropriate by other members of the Hispanic community. The Respondent, Millard E. Lightburn, did not at any time touch the student, M. A., in an inappropriate or offensive way.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 11th day of October, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-06174 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, and 5: Accepted in substance. Paragraph 6: Accepted in substance, but with the additional findings to the effect that another student had been invited to be present at the same time as the student, M. A. Paragraph 7: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraph 8: Rejected as constituting subordinate and unnecessary details, or as irrelevant. Paragraph 9: Rejected in part as subordinate and unnecessary details and in part as contrary to the greater weight of the persuasive evidence. Paragraph 10: Accepted in substance. Paragraphs 11 and 12: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraph 13: First line rejected for reasons stated immediately above. The remainder of this paragraph is accepted in substance. Paragraphs 14, 15, 16, 17, and 18: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraphs 19, 20, 21, 22, 23, 24, and 25: Rejected as subordinate and unnecessary details. Paragraph 26: Accepted in substance. Paragraphs 27, 28, 29, 30 and 31: Rejected as subordinate and unnecessary details. Paragraph 32: The first three full lines and the first four words of the fourth line are accepted. The remainder of this paragraph is rejected as contrary to the greater weight of the persuasive evidence. Paragraph 33: Rejected as contrary to the greater weight of the persuasive evidence. Findings submitted by Respondent: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10: Accepted in substance. Paragraph 11: Rejected as subordinate and unnecessary details and as also irrelevant. Paragraph 12: Accepted in substance. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. 3rd Avenue, Suite One Miami, Florida 33129 Karen Barr Wilde, Executive Director Education Practices Commission 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue posed for decision herein is whether or not the Respondent, Henry L. Penia, engaged in acts of immorality or immoral conduct, in that during the month of July, 1978, he improperly touched a female student in an indecent or improper manner on school grounds during school hours in violation of Sections and 231.09, Florida Statutes, and Section 6B-1, Rules of the State Board of Education. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the documentary evidence received and the entire record compiled herein, I hereby make the following:
Findings Of Fact Respondent, Henry L. Penia, holds Florida Teaching Certificate No. 044411, Graduate, Rank III, which by its terms is valid through June 30, 1981, for the areas of elementary education, history and political science. Respondent began his employment with the Hillsborough County School Board in February, 1952, and continued to be so employed until he was discharged on May 10, 1979. Respondent was assigned to LaVoy Elementary School (LaVoy) in 1974, where he taught nursery operations for the trainable mentally retarded (TMR) classified students. By way of background, the Florida Professional Practices Council, Petitioner, received a report from Hillsborough County school officials on May 24, 1979, indicating that Respondent had been charged with immoral conduct with a female student. Pursuant thereto, and under authority contained in Section 6A-4.37, Rules of the State Board of Education, staff of the Department of Education conducted a professional inquiry into the matter, and on September 10, 1979, reported the matter to the Petitioner's Executive Committee. The Executive Committee found that probable cause existed to believe that Respondent is guilty of acts which provide grounds for revocation of his teaching certificate. The Commissioner of Education found probable cause on October 1, 1979, and directed that Petitioner file a petition to revoke Respondent's teaching certificate pursuant to the authority contained in Rule 6A-4.37 of the State Board of Education and the guiding authority in Section 231.28, Florida Statutes. The material allegations of the Petition as filed by Petitioner are that during the month of July, 1978, Respondent committed an act of immorality in that he improperly touched a female student in an indecent manner during school hours on the school grounds of LaVoy. Concluding, the Petition alleged that the Respondent had violated Sections 231.28 and .231.09, Florida Statutes, and Rule 6B-1, Rules of the State Board of Education, in that based on the above-cited alleged conduct by Respondent, he committed acts of immorality which were inconsistent with good morals and the public conscience and failed to set a proper example for students. The Petition adds that Respondent's conduct as alleged was sufficiently notorious to bring the education profession into public disgrace and disrespect and seriously reduced his (Respondent's) effectiveness as a School Board employee. Michael Sails, presently the head custodian at Foster Elementary School, Hillsborough County, was, during times relevant herein, a custodian at LaVoy. During a school day in July of 1978, Mr. Sails, while standing at the rear of Mrs. Evans', a teacher at LaVoy, portable observed Respondent's arm around the neck of Irene (last name unknown) while Respondent and the other students were standing around the agricultural area at LaVoy. Kennedy Watson, the head custodian at Dickinson Elementary School, was, during times material herein, employed as a custodian at LaVoy. During July of 1978, Messrs. Watson and Sails were seated in Mrs. Evans' portable where they could view the agricultural area at LaVoy. Mr. Watson was situated a distance of approximately seven feet from Respondent and Miss Martin when he observed Respondent with his hands and arms around student Irene Martin's breast and crotch areas. Student Martin, according to Watson, is a "very developed teenager". Watson's view was not obstructed when he observed Respondent's hands draped around Miss Martin's crotch and breast. (See location "X" on Petitioner's Exhibit 1.) Mr. Watson, to get a better view of the acts by Respondent toward student Martin, situated himself at the rear of Mrs. Bennett's pod. Mr. Watson observed Respondent and student Martin for approximately ten minutes. Mrs. Bennett, who was in her classroom at the time, observed that something unusual was happening outside her classroom and inquired of Mr. Watson as to what was occurring. Mr. Watson declined to discuss the incident then but agreed to do so later since he was, at that time, very upset about what he had observed. On July 13, 1978, Mrs. Sandra Kilpatrick, a staffing specialist for exceptional education for the Hillsborough County School System and formerly a teacher at LaVoy, sent Mrs. Bennett a message that student Irene Martin was in Respondent's class. Mrs. Kilpatrick confirmed that Irene Martin is a TMR student with an I.Q. of less than 50. Mary Bennett, an employee of the Hillsborough County School System for approximately thirteen years, is presently the Director of the Mentally and Profoundly Handicapped Program for students. Mrs. Bennett serves as diagnostician for student placement. Mrs. Bennett knows Kennedy Watson and recalled the day that Mr. Watson entered her room in July, 1978, when he appeared to be upset. Mrs. Bennett observed Respondent from a distance of approximately sixty feet from her pod with his body closely against Miss Martin in a "bumping, grinding manner" which lasted approximately several minutes. She observed Respondent touch Miss Martin in a few places in the breast area with one of his hands down along side Miss Martin's. Mrs. Bennett emphasized that no training was taking place while Respondent and student Martin were engaged in the conduct as described herein. When questioned specifically about the incident, Mrs. Bennett made certain the fact that no instructional activity was taking place and that Respondent made no attempt to free himself of Miss Martin if indeed that was his claim. She also indicated that no shovel was being used by Respondent for a training activity. After observing the incident, Mrs. Bennett discussed it with Mrs. Kilpatrick later that afternoon and made an attempt to contact Ms. Davidson, the Principal at LaVoy. Mrs. Bennett was sure that the date was July 13 because she left for Ohio to celebrate her parents' fiftieth wedding anniversary on Friday, July 14, 1978. Mrs. Bennett has great distance vision and was not mistaken as to what she observed by Respondent relative to student Martin. Conceding that she was not an expert on guessing distances and that she could be mistaken as to the exact distance that her pod is situated from the area in which she observed Respondent and Miss Martin, Mrs. Bennett was unequivocal in her testimony charging that what she witnessed was not any attempt by Respondent to train or otherwise instruct student Martin. Millicent Davidson, the Principal at LaVoy, is familiar with student Irene Martin. Principal Davidson was formerly a teacher at LaVoy and noted that student Martin has an I.Q. range of a four year old. Student Martin is unable to judge "right" from "wrong" and reacts to physical stimuli differently than a person with a normal I.Q. Principal Davidson also confirmed that student Martin has a habit of grabbing the wrists or hands of persons to gain their attention. (Testimony of Millicent Davidson.) On July 24, 1978, Principal Davidson contacted school security as she observed Respondent in the agricultural area from portable No. 371. (See Petitioner's Exhibit 2.) On that date, while she observed Respondent and Miss Martin, Principal Davidson's view was not obstructed. Irene Martin and the other students were potting plants with Respondent when Respondent grabbed one female student on her buttocks. Principal Davidson observed Respondent's arm draped around student Martin from the time that they left the agricultural area until they reached the portables, at which time the hugging ceased. Principal Davidson related (during the hearing) that physical contact with students was banned at LaVoy. On that day, July 24, 1978, Principal Davidson had a conference with Respondent and security employees Dossinger and Tyrie, wherein Respondent denied that he engaged in any physical touching of students. He was at that time suspended pending the outcome of the School Board hearings which ultimately resulted in Respondent's dismissal from employment. Based on Principal Davidson's observance of Respondent on July 24, and subsequent unfavorable press accounts of the incident relative to the school, she would not want Respondent to return as a teacher at LaVoy. S. E. Dobbins, the Personnel Services Director for the School Board, read several newspaper articles in the "Tampa Times", the "Florida Sentinel Bulletin" and other local newspapers respecting the subject incident between Respondent and student Irene Martin. Veda Bird, the former Principal at LaVoy and a teaching professional for more than forty-seven years, retired from the Hillsborough County School System during 1978. Principal Bird recommended Respondent for employment by the School Board. She observed him on a daily basis and was unaware of any character charges having been leveled against Respondent during his tenure of employment. Principal Bird is also familiar with student Irene Martin. She recalled that student Martin had a habit of grabbing teachers and was generally very vocal and hyperactive while at school. Principal Bird remembered student Martin as being a very strong student who constantly had to be counselled about grabbing instructors and other students to gain their attention. Finally, Principal Bird recalled that Respondent and Mr. Kennedy Watson had personality clashes and that she considered that Mr. Watson thought that Respondent was "out to get his (Watson's) job." RESPONDENT'S DEFENSE Respondent appeared on his own behalf and generally denied all of the material allegations of the Petition for Revocation filed herein. Specifically, Respondent denied that student Irene Martin attended his class on the date of July 13, 1979. He related his policy of not permitting students to attend his classes when they were not assigned to be there. Respondent recalled one occasion wherein he was showing a student how to dig with a shovel. At that time, he stood in front of the student and demonstrated how to dig a hole with a shovel. Respondent denied that there was any body contact between himself and the female student while he gave the digging instructions. Respondent also denied that there was any body contact between himself and a female student during July of 1978, as testified by Mrs. Davidson and Mrs. Bennett. He related that on one occasion he struggled to get Irene Martin back to the classroom area and that he had to, in essence, pull her back from the agricultural area to the class pod. Respondent believed that Mr. Watson's testimony herein was motivated and stemmed from a disagreement he had with Watson concerning the disappearance of approximately two hundred azalea plants that Respondent had given Watson to plant for the school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's Teaching Certificate No. 044411, be REVOKED. RECOMMENDED this 28th day of August, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1980.
The Issue Whether just cause exists to suspend Respondent from her employment with the Broward County School Board.
Findings Of Fact Background Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times relevant to this proceeding, Respondent was employed as an art teacher at Western High School ("Western High"). Respondent's career with the School Board, which spans some 21 years, has not proceeded entirely without incident: on January 31, 1997, Respondent uttered profanity in the presence of her students, which resulted in the issuance of a written reprimand that directed her to "cease and desist from inappropriate remarks"; several months later, Respondent's further use of colorful language led to a second written reprimand; and, in August 2009, Respondent agreed to serve a three-day suspension "for inappropriate language." The School Board now seeks to suspend Respondent for five days based upon an allegation that, on August 16, 2013, she used profanity and "aggressively grabbed" a female student's arm during an episode in Western High's parking lot. The facts relating to the instant charges are recounted below. Instant Allegations On the morning of August 16, 2013——the final weekday before the start of the 2013-2014 school year——Respondent arrived at Western High's campus to place the finishing touches on her classroom. On several occasions throughout the day, one of Western High's assistant principals announced that the school's parking lot would be locked at 5:30 p.m. The final such warning, which was made at 5:15 p.m., prompted Respondent to exit the building approximately five minutes later. As she headed toward her vehicle, Respondent (accompanied by her mother, Carol Fischer, herself a longtime educator) noticed several groups of students decorating parking spaces in the school lot. As explained during the final hearing, the students' presence was not unusual, for incoming seniors at Western High were authorized, pursuant to a school fundraiser, to "purchase" a parking space and adorn it as each saw fit. Mindful that the school gate would soon be locked, Respondent walked toward the groups and, from a distance of approximately 50 yards, loudly directed them to pack up their belongings and leave the campus. Each of the groups complied, save for one, which prompted Respondent to approach the stragglers and repeatedly announce——with diminishing volume as she made her way closer——that they needed to go home. Suffice it to say that these importunings had no discernable effect on the group's activities; as a result, Respondent continued toward the parking spot where the students were working. Now in their immediate vicinity, Respondent informed the group (which included two female students, N.S. and T.C., both of whom were incoming seniors at Western High) that they had two minutes to gather their possessions and leave the campus. During the ensuing interaction, T.C. began to argue with Respondent and, to make matters worse, acted as if she intended to continue painting. Her patience understandably waning, Respondent reached toward T.C. and, in a non-violent fashion, placed her hand on the student's upper arm. This brief physical contact, intended to secure T.C.'s complete attention and gesture her in the direction of the exit, was instantly met with a vocal objection. Respondent immediately reacted by stepping backwards,1/ at which point the group began to gather up the painting materials. T.C. and the other students departed the parking lot a short time later. Contrary to the complaint's allegations, the credible evidence demonstrates that, although Respondent addressed the students with an elevated voice (but only as she approached from a distance), she at no point used profanity or any other inappropriate language.2/ Further, the record is pellucid that Respondent's momentary, gesturing contact with T.C. was completely innocuous and in no way constituted an "aggressive grab."3/ Indeed, T.C. acknowledged during her final hearing testimony that Respondent plainly intended no harm.4/ Finally, and with respect to the charge of insubordination, there has been no showing that Respondent's behavior ran afoul of any direct order. Although the School Board attempted to prove the existence of a "no touching whatsoever" rule, the testimony on that point was internally contradictory and ultimately unpersuasive. In any event, and as discussed shortly, a general policy——i.e., one applicable to all employees——does not constitute a direct order for the purpose of sustaining an insubordination charge. Ultimate Findings It is determined, as a matter of ultimate fact, that Respondent is not guilty of misconduct in office. It is determined, as a matter of ultimate fact, that Respondent is not guilty of insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: exonerating Respondent of all charges brought against her in this proceeding; and awarding Respondent any lost pay and benefits she experienced as a result of the five-day suspension. DONE AND ENTERED this 3rd day of June, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 3rd day of June, 2014.
The Issue The issues to be determined in this proceeding are whether Respondent has committed the violations alleged in the Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Stipulated Facts Respondent, Seneka Rachel Arrington, holds Florida Educator's Certificate 1012300, which is valid through June 2009. Respondent was employed as a Language Arts Teacher at Matanzas High School in the Flagler County School District during the 2006/2007 year. On or about October 9, 2006, Respondent was terminated from her teaching position with the school district. On or about April 3, 2007, Respondent removed merchandise from a retail establishment without paying for it and with the intention of converting it to her own use. Respondent was arrested and charged with one count of retail theft. On or about May 29, 2007, Respondent entered into a deferred prosecution agreement with the state attorney's office with regard to the charge of retail theft. Findings of Fact Based Upon Evidence Presented at Hearing Dr. Hugh Christopher Pryor is the principal at Matanzas High School (Matanzas). Dr. Pryor hired Respondent in May 2006 for a position as an English teacher, to begin work in August 2006. During her employment at Matanzas, Respondent also worked as an assistant cheerleading coach. K.M. was a freshman at Matanzas during the 2006-2007 school year. She was on the cheerleading squad and knew Respondent as one of her coaches. She was not a student in any of Respondent's classes. M.H., K.M.'s boyfriend at all times material to the allegations in this case, was a 14-year-old freshman on the Matanzas football team and a student in one of Respondent's classes. C.J. was another freshman member of the football team and a friend of M.H.'s. He was not a student in any of Respondent's classes. Respondent was well-liked by students at the high school. Although K.M. testified that she was authoritative and strict with the girls on the cheerleading squad, she got along with all of the girls and "kind of was like us." K.M. regarded her more as a friend than as a teacher. On occasion, K.M. used Respondent's cell phone. On October 6 or 7, 2006, Donald Apperson Jr., the school's resource officer, was approached by a friend at a social outing who suggested he check into whether "the black cheerleading coach" at Matanzas was having a sexual relationship with some of the football players. Respondent was the only teacher who could fit this description. On Monday, October 9, 2006, Mr. Apperson reported this information to Ken Seybold, who was an assistant principal and the athletic director at Matanzas. The principal was notified and an investigation was initiated. Respondent was notified of the allegations, which she denied, and was sent home pending completion of the investigation. The investigation consisted of speaking with several members of the football team and was completed in a single day. At the end of the day, the principal determined that Respondent's employment would be terminated because she was still under a 97- day probationary period wherein she could be terminated without cause. Respondent was notified of the decision to terminate her employment the next day, October 10, 2006. Because she was terminated within the statutory probationary period for the initial contract for employment, no cause was listed. While Dr. Pryor testified that he was generally dissatisfied with her performance, his testimony regarding why was sketchy at best, and there was nothing in her personnel file to indicate that she was counseled in any way with respect to her performance. Teachers in the Flagler County School District are generally admonished not to transport students in a teacher's personal vehicle. Transporting students is only condoned where the student's parent has been notified and permission granted, and where an administrator has been notified of the need to transport the student. This procedure is apparently covered during orientation for new employees. However, no written policy regarding the transport of students was produced or cited, and Dr. Pryor indicated that Respondent was late to the orientation session prior to the beginning of the school year. It cannot be determined from the record in this case whether Respondent was aware of this policy. Respondent transported students in her personal vehicle on two occasions. On the first occasion, Respondent took K.M. and one other cheerleader to the Volusia Mall in order to look for dresses for a dance at school. K.M. testified that her mother had given permission for K.M. to go with Respondent on this outing. Respondent and the two girls were accompanied on this outing by Respondent's mother and sister. The second outing also involved shopping for clothes for the school dance. On this trip, Respondent took K.M. as well as M.H. and C.J. in her car after football and cheerleading practice. The four went first to the St. Augustine outlet mall and then to the Volusia Mall to shop for clothes. K.M. testified that her mother had given her permission to go with Respondent, but probably would not have given permission if she had known the boys would also be going. Neither M.H. nor C.J. had permission from a parent to ride in Respondent's car. The boys testified that they both drove Respondent's car while on this trip, although the testimony is inconsistent as to who drove when, and is not credible. Neither boy had a learner's permit to drive. No evidence was presented regarding the dates of these two shopping trips, other than they both occurred prior to September 29, 2006, which was the date identified for the dance. This same date is identified as the date for a football game in Cairo, Georgia, discussed below. After the conclusion of the second shopping trip, Respondent dropped K.M. off at her home. At this point, the boys testified, and stated as part of the district's investigation, that Respondent offered to take them back to her apartment to spend the night. According to M.H. and C.J., they went with Respondent back to her apartment where they ate fast food and watched television. They claimed that Respondent told them they could sleep in her bed while she slept on the couch. At some time during the night, Respondent allegedly crawled in the bed between the two boys, ground her hips against M.H.'s crotch, and took his hand and placed it outside her shorts against her vaginal area. M.H. claimed this made him uncomfortable and he moved to the floor, while Respondent continued to sleep in the bed with C.J. In the morning, the boys claim that Respondent woke them up and drove them to school. M.H. testified that he was in Respondent's English class and that she treated him differently than the other students. He, along with other boys at school, fantasized about the "fine, black English teacher." He thought it was cool to spend extra time with her and led others to believe he was having sex with her until one of his friends questioned the propriety of doing so. He testified that he "freaked out" while on a bus going to an out-of-state football game September 29, 2006, because Respondent kept calling him on his cell phone and he did not want to talk to her. Juxtaposed against the testimony of C.J. and M.H. is the testimony of Monica Arrington and Karastan Saunders. Monica Arrington, Respondent's younger sister, testified that during the period of time Respondent was employed at Matanzas, she shared Respondent's apartment and sometimes helped her out with the cheerleaders. Monica was a freshman at Bethune Cookman College and did not like living on campus, so instead lived with her sister. Ms. Arrington did not have her own transportation and relied on her sister to drop her off at school each day. Ms. Arrington confirmed that she went with Respondent, her mother and two female students to Volusia Mall to shop for clothes on one occasion, but did not identify any other time where students were at Respondent's apartment. Karastan Saunders also testified that during the fall of 2006, he lived at Respondent's apartment in exchange for paying a portion of the utilities. Mr. Saunders testified that he spent every night at the apartment because he did not have the funds to go elsewhere, and that he did not recall anyone coming over to the apartment other than family and mutual friends. After considering all of the evidence presented, the more credible evidence is that while Respondent took students shopping on at least one occasion, the testimony of M.H. and C.J. that they spent the night at Respondent's apartment is not credible. M.H. admitted that he has lied to his dad "because everybody lies to their dad sometimes." He claimed he lied to Respondent to avoid going to Orlando with her and about having a learner's permit to drive, and that he lied to his father about where he was the night he claims to have been at Respondent's apartment. M.H. also insinuated to his friends that he had a sexual relationship with Respondent, and that all of the boys thought she was the prettiest teacher at the school. However, he did not want Respondent to be arrested and would not cooperate with authorities. Even during the course of the hearing, his testimony was inconsistent regarding whom he told about his relationship with Respondent and what he told them. Significantly, C.J.'s testimony did not corroborate the alleged inappropriate touching M.H. claimed. C.J. did not witness any inappropriate touching or M.H. and Respondent having sex. While M.H. claimed that Respondent kept calling him while on the bus to Georgia for a football game, no phone records were produced and no one else's testimony was presented to support the claim. K.M. admitted that M.H. has lied to her on occasion and that he has had some issues with drugs and alcohol.1/ C.J.'s testimony is also not very credible. Like M.H., C.J. lied to his father about his whereabouts on the night in question. While he testified that he sometimes drove his dad's car to school without permission, his father testified that he only has one car and uses it every day to get to work. While M.H. claimed C.J. told him that Respondent and C.J. had sex the night they were allegedly at the apartment, C.J. denied it. He also stated that he was suspended for five days for bringing a laser to school during the timeframe related to this case, a suspension that his father knew nothing about. Likewise, C.J.'s claim that he went with Respondent on some unspecified weekend to Orlando while she got her cheerleading certification is not credible. By contrast, both Monica Arrington and Karastan Saunders were candid, consistent, calm and forthright while testifying. While both C.J. and M.H. were not where they were supposed to be on the night in question, they were not at Respondent's apartment. After Respondent was terminated from her employment, the allegations that she engaged in an appropriate relationship with a student were reported by local media. The publicity was extensive. Because the allegations involved alleged sexual conduct with a minor that would have occurred in Volusia County as opposed to Flagler County, the matter was referred to authorities in Volusia County. However, no criminal charges were ever brought against Respondent because neither M.H. nor his father wished to cooperate with authorities.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent violated Section 1012.795(1)(c), Florida Statutes, as alleged in Count 1, and dismissing Counts 2-7 of the Amended Administrative Complaint. It is further recommended that the Commission reprimand Respondent, impose a $500 fine and place her on one year of probation in the event that she works as a teacher in a public school setting. DONE AND ENTERED this 24th day of March, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 24th day of March, 2009.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges and, if so, the discipline, if any, that should be imposed against Respondent’s employment.
Findings Of Fact The Parties Petitioner is the authorized entity charged with the responsibility to operate, control, and supervise the public schools within Miami-Dade County, Florida. Respondent was hired by Petitioner as a school security monitor in March of 1993. Although Respondent was initially assigned to Miami Northwestern High School, he was transferred to Norland High in April 1994, where he remained until the incident that is the subject of this proceeding. Respondent's employment is governed by the collective bargaining agreement between Petitioner and United Teachers of Dade ("UTD"). Pursuant to Article XXI, Section 3.D of the UTD contract, Respondent may only be discharged for "just cause," which includes, but is not limited to, "misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude." The Allegations It is undisputed that during the 2009-2010 school year, an unknown number of students staged a series of unauthorized boxing matches1 at various locations on the grounds of Norland High. Of the multiple boxing incidents, this proceeding concerns only one: a match that took place in Norland High's wrestling room at some point between the beginning of the school year and February 2010. On that occasion, approximately 20 students gathered in the wrestling room (a location where the students were not authorized to be) during the second lunch period to view a match between D.L. and another student. Respondent, who was present2 during the entire incident, neither orally directed the students to stop fighting, nor did he physically intervene.3 A videotape of the incident, which was introduced into evidence during the final hearing, depicts the following: 00:07 - D.L. and unidentified student, both of whom are wearing boxing gloves, begin fighting. 00:19 - Several student "referees" separate D.L. and other participant. 00:30 - Respondent, wearing green golf- style shirt (the standard uniform for security monitors), standing in corner of room. 01:07 - Fighting resumes. 01:35 - D.L. and other participant broken up by students; match concludes. 02:00 - Respondent standing near unidentified student participant. 02:25 - Students begin to leave. 02:32 - Video ends. As the forgoing timeline indicates, D.L. and the unidentified student boxed for a total of 40 seconds. Although both students threw a number of punches during that span, most of the blows were wild and either missed or did not land cleanly. Nevertheless, the undersigned finds that the episode presented a condition that was potentially harmful to the physical health or safety of D.L. and the other student participant. Although the boxing incident detailed above is one that should have been reported, at no time did Respondent notify any member of Norland High's administration of what occurred. Respondent's explanation, which the undersigned credits with some reluctance, is that he unsuccessfully attempted to contact school administration upon discovering the incident, only to be informed by a front office worker that the administrators were in a meeting. After the students dispersed, Respondent went to lunch and forgot to follow up on the matter.4 Eventually, one of Norland High's assistant principals, Peter Melton, learned of the incident after a student told him to search YouTube for "Norland fights." Mr. Melton promptly notified the principal of Norland High, and an investigation ensued on or around February 2010. During the initial stages of the investigation, Petitioner suspected that Respondent had organized multiple boxing matches between students on Norland High's campus, charged admission, and awarded prizes to the winners.5 Ultimately, however, Petitioner determined that no probable cause existed to support such allegations, and instead charged Respondent with failing to intervene in the match involving D.L. and with not informing school administration of the incident. Although Norland High's administration faced some level of parental backlash as a result of the boxing incidents, Petitioner did not demonstrate that the backlash was attendant to the charges ultimately filed against Respondent, as opposed to the initial, more serious allegations that Petitioner could not substantiate. Petitioner failed to establish by a greater weight of the evidence that Respondent's effectiveness as a school security monitor has been impaired as a result of his conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order: (1) finding that just cause does not exist to terminate Respondent's employment; and (2) imposing an appropriate punishment other than dismissal based upon Respondent's failure to make reasonable effort to protect students from conditions harmful to their physical health or safety. DONE AND ENTERED this 6th day of April, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2011.
The Issue Whether the Respondent, Kim Littrell, committed the acts complained of and should be terminated from her employment with the School District.
Findings Of Fact The Petitioner, St. Lucie County School Board, is the entity charged pursuant to Florida law to operate, govern and administer school personnel employed by the St. Lucie County School District (Petitioner or School District). At all times material to the allegations of this case, the Petitioner employed the Respondent to serve as a teacher at Westwood High School. The Respondent has been a teacher with the School District for 16 years. At all times material to the allegations of this case, Respondent held a professional services contract with the Petitioner. The Respondent’s seventh-period class on March 5, 2004, was composed of ninth-grade students. The class was designated as a creative writing course. The purpose of the class was to assist students with the Florida assessment known in this record as the “FCAT.” Students in the class were encouraged to develop “critical thinking” skills. Presumably such skills enhance performance on the FCAT examination. The Respondent was responsible for developing the curriculum for the class but was assisted by aides and instructive materials available through the school, the School District, as well as state resources. Although Respondent did not have a textbook for the “critical thinking” component of the class, appropriate resources were available from which appropriate educational materials could be prepared. For the subject lesson (seventh-period class, March 5, 2004), the Respondent elected to offer an assignment that she hoped would encourage “critical thinking.” In substance, the Respondent asked a series of questions and the students were asked to formulate an answer. The title of the subject lesson, “Is Your Mind Clean?” sought to elicit answers that were not profane or “dirty.” Respondent thought the subject lesson would be challenging and “fun.” The Respondent advised the students that none of the answers required the students to answer with profanity or improper language. The students were not supposed to verbally respond to the questions but were to write their answers on a sheet of paper. Although perhaps not verbatim, it is found that Respondent posed the following questions, in substantially this form, to her class during the “Is Your Mind Clean?” assignment: What is a four-letter word that ends in “k” and means the same as intercourse? What is it that a cow has four of and a woman has only two of? What can you find in a man’s pants that is about six inches long, has a head on it, and that women love so much that they often blow it? What word starts with “F” and ends with “u- c-k”? Name five words that are each four letters long, end in “u-n-t” one of which is a word for a woman? What does a dog do that you can step into? What four-letter word begins with “F” and ends with “k,” and if you can’t get one you can use your hands? What is hard, six inches long, has two nuts, and can make a girl fat? What four-letter word ends in “i-t” and is found on the bottom of birdcages? What is it that all men have one of; it’s longer on some men than on others; the pope doesn’t use his; and a man gives it to his wife after they’re married? Inappropriate responses were verbalized during the administration of the assignment. In many instances the most apparent answer to the question posed could be considered profane. The Respondent should have foreseen that students would react inappropriately to the questions. The students thought the assignment was unusual. The assignment made the students feel uncomfortable. Some students were unable to come up with any non-profane response. Some students were fearful their responses would get them in trouble. One student yelled out an inappropriate answer. Some students thought the answers to the assignment were the profane words. Teachers are required to get prior approval from school administrators if they want to use any teaching material that might be considered “controversial.” The Respondent was aware of the procedure to obtain such approval. The Respondent did not get prior approval before delivering the “Is Your Mind Clean?” assignment. When students responded with inappropriate answers, the Respondent laughed. The parent of one of the students complained to the principal regarding the “Is Your Mind Clean?” assignment. The complaint was the first notice the school administrators had regarding the subject lesson. The use of inappropriate words in the Respondent’s class was not permitted. Nevertheless, on more than one occasion the Respondent elected to explain the origins of certain words. For example, the Respondent lectured on the origin of the word “fuck.” Respondent claimed the word was an acronym for “fornication under command of the king” or “for unlawful carnal knowledge.” The Respondent believed that setting the record straight on the origin of the word would take the amusement value out of using the word such that usage would be deterred. Similarly, the Respondent instructed the class regarding the origin of the word “shit.” According to Respondent, historically, it was important that manure be “shipped high in transport.” Manure left in the lower cargo holds created problems. The origins of inappropriate words were not part of the Respondent’s curriculum. Moreover, the Respondent did not have approval to discuss the origins of such words with her class. When the school administration began to investigate the “Is Your Mind Clean?” assignment complaint, the Respondent confronted a student and claimed another student (the first student’s friend whose parent had made the complaint) was trying to get her in trouble. This encounter made the confronted student uncomfortable. The Respondent did not understand that the use of inappropriate words could and did make some students uncomfortable. Additionally, the Respondent did not comprehend that challenging the student about the complaint would also intimidate a student. The Respondent was disciplined in the past regarding her failure to create a learning environment that does not embarrass or disparage students. The Respondent knew or should have known that embarrassing students is not acceptable professional conduct. The Respondent knew or should have known that efforts to intimidate a student are not appropriate. In fact, reprimands issued to Respondent during 2000 cited unprofessional conduct directed toward students. In connection with prior conduct, the Respondent was required to complete a course on professionalism or ethics. The Respondent had a responsibility to protect students from conditions that would be harmful to learning. The Respondent had a responsibility to refrain from exposing students to unnecessary embarrassment or disparagement. After being fully apprised of the facts of this case, the Superintendent recommended that the Petitioner take action to suspend the Respondent from her employment without pay. In fact, the Petitioner approved that recommendation and initiated the instant action to terminate Respondent’s employment. The Respondent timely responded to the action and requested an administrative hearing to challenge the proposed action. The Respondent maintained that the “Is Your Mind Clean?” assignment was a reasonable effort to teach “creative thinking” and that none of the students were unduly embarrassed, disparaged, or humiliated by the assignment. Such assertion is contrary to the persuasive weight of the evidence presented in this matter.
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 sustaining the termination of Respondent’s employment. S DONE AND ENTERED this 1st day of April, 2005, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2005. COPIES FURNISHED: Michael Lannon, Superintendent St. Lucie County School Board 4204 Okeechobee Road Fort Pierce, Florida 34947-0000 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A. 215 West Verne Street, Suite D Tampa, Florida 33606 David Miklas, Esquire J. David Richeson & Associates, P.A. Post Office Box 4048 Fort Pierce, Florida 34948
The Issue The issue in this case is whether a high-school assistant principal made inappropriate remarks to two female students on campus during school hours, and then later harassed one of them, thereby entitling the district school board to suspend the administrator for 30 workdays without pay.
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. As of the final hearing, Respondent Anthony C. Brooks ("Brooks") had been employed as either a teacher or administrator in the Miami-Dade County Public School System for approximately 23 years. At all times relevant to this case, Brooks was an assistant principal at Miami Jackson Senior High School, where his primary responsibility was discipline. The operative contract of employment between Brooks and the School Board required Brooks to "observe and enforce faithfully the state and federal laws, rules, regulations, and School Board Rules insofar as such laws, rules, regulations, and policies are applicable to the position of employment." Pursuant to the contract, Brooks agreed "to become familiar and comply with state and federal laws, rules, regulations and policies of the School Board and of the Department of Education for which [he] w[ould] be held accountable and subject to[.]" The agreement entitled the School Board to suspend or dismiss Brooks for just cause including "the failure to fulfill the obligations under this Contract." The Alleged Inappropriate Remarks The School Board alleges that on February 12, 2004, Brooks told M. D., a female student, that she should consider becoming a model, and that he would take pictures of her at the beach. The School Board alleges further that, the same day, Brooks separately encouraged another female student, F. J., to think about modeling. The evidence presented at hearing failed persuasively to substantiate these charges. The findings that follow in this section, based on evidence that is in substantial conflict, depict the likeliest scenario derivable from the instant record,1 though the undersigned's confidence in the accuracy of some aspects of this historical narrative is relatively limited.2 On the morning of February 12, 2004, a security monitor called Brooks to a classroom where some students were creating a disturbance. Upon his arrival, the teacher pointed out to Brooks the four students who had been causing problems. Brooks asked them to step outside. One of the four was M. D. Brooks told the students, in effect, to straighten up. In the course of lecturing the students, Brooks said to M. D., "You could be a model or something like that." Brooks was not attempting to proposition M. D. His remark was intended to boost her self-esteem and encourage M. D. to set higher standards of personal behavior for herself. Later that day, Brooks ran into M. D. outside the cafeteria. M. D. was talking to a security monitor, and Brooks overheard her say, "Mr. Brooks said I could be a model." The security monitor loudly and rudely scoffed at that idea. Thereafter, Brooks took M. D. aside, to the doorway of the SCSI (indoor suspension) room, and warned her not to discuss her personal business with everyone. Sometime later (perhaps the same day), Brooks was walking in the cafeteria, and F. J., a friend of M. D.'s, stepped on his foot. F. J. continued on her way without pausing and sat down at a table outside the SCSI room. Brooks walked over to her and invited an apology. F. J. declined. Brooks informed her that he would "model" good manners for her and proceeded to deliver an apology. Then, he left. Soon M. D. and F. J. reported to their cheerleading coach that Brooks had expressed interest in taking them to the beach for a photo shoot. The coach passed this allegation along to the administration, which in turn called the school police and the State Attorney's Office. The prosecutor declined to press criminal charges against Brooks; the Office of Professional Standards ("OPS") requested a personnel investigation. Detective Pedro Valdes conducted the investigation. He interviewed M. D., F. J., Brooks, and Trust Counselor Patricia Manson (who disclaimed personal knowledge of the events in dispute). The detective evidently did not believe (or at least gave little weight to) Brooks's denial of wrongdoing, for he determined that the students' statements were sufficiently credible to support the conclusion that Brooks had violated a School Board rule prohibiting improper employee/student relationships. The detective's report announcing that this charge had been "substantiated" was released in July 2004. Having effectively been found guilty by the detective, Brooks was summoned to a conference-for-record ("CFR"), which was held on August 11, 2004. There, Brooks was given an opportunity to deny the charge (but not to confront M. D. and J., whose statements comprised the "evidence" against him). He failed to persuade the administrators that the detective had reached the wrong conclusion. The administrators issued several directives to Brooks, including the following: Refrain from contacting anyone involved in this investigation at any time. Refrain from inappropriate contact and/or comments with students. The Alleged Harassment On August 25, 2004, F. J. came to school dressed inappropriately, in a short skirt and tank top. At the beginning of second or third period, a security monitor named Frantzy Pojo noticed that F. J. was in violation of the dress code and attempted to remove her from class. The teacher refused to let F. J. leave with the security monitor. Faced with the teacher's obstructiveness, Mr. Pojo called Brooks, the assistant principal in charge of discipline whose portfolio included dress code enforcement. Mr. Brooks came to the classroom and spoke with the teacher. He asked that the teacher instruct F. J. to put on a jacket to cover up. The teacher——and F. J.——complied. The very next day, Mr. Pojo spotted F. J. and saw that she was, once again, not dressed appropriately. Mr. Pojo called Brooks to handle the situation. Brooks found F. J. in the library and agreed that she was in violation of the dress code. He observed that two or three other girls were also dressed inappropriately. Mr. Pojo and Brooks escorted these girls to the SCSI room and left them there. Brooks instructed the teacher-in-charge not to suspend the students but rather to let them call their parents and request that appropriate clothes be brought to school. F. J. called her mother and complained that Brooks was harassing her. F. J.'s mother became angry and arranged to meet with the principal, Deborah Love, that afternoon. When F. J., her mother, and Ms. Love met as scheduled, F. J. accused Brooks of having followed her to classes and singled her out unfairly for discipline in connection with the dress code violations. At Ms. Love's request, F. J. submitted written statements concerning the events of August 25 and August 26, 2004.3 Ms. Love believed F. J. and apparently had heard enough. Without investigating F. J.'s allegations or even asking Brooks to respond to them, Ms. Love prepared a memorandum, dated August 27, 2004, in which she charged Brooks with insubordination. Specifically, Ms. Love alleged that Brooks had violated the directive, given at the recent CFR, to refrain from contacting anyone involved in the investigation stemming from the allegation that Brooks had made inappropriate remarks to M. D. and F. J. On or about August 27, 2004, Ms. Love ordered Brooks not to return to campus but instead to report to an alternate worksite pending further action on the charges against him. At its regular meeting on December 15, 2004, the School Board voted to accept the recommendation of OPS that Brooks be suspended without pay for 30 workdays. Ultimate Factual Determinations Brooks's conduct was not shown to have been outside the bounds of accepted standards of right and wrong. He is therefore not guilty of immorality, as that offense is defined in Florida Administrative Code Rule 6B-4.009(2). Brooks did not fail to make a reasonable protective effort to guard either M. D. or F. J. against a harmful condition; had he neglected such duty, Brooks could have been disciplined for misconduct in office. Brooks did not intentionally expose either M. D. or F. J. to unnecessary embarrassment or disparagement; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not harass or discriminate against M. D. or F. J. on the basis of any improper consideration, such as race, color, or religion; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not exploit a relationship with either M. D. or F. J. for personal gain or advantage; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not constantly or continually refuse intentionally to obey a direct and reasonable order, which willful defiance, had he shown it, would have constituted "gross insubordination" under Florida Administrative Code Rule 6B- 4.009(4). Brooks did not violate School Board Rule 6Gx13-4A- 1.21, which prohibits unseemly conduct and abusive or profane language. Brooks did not violate School Board Rule 6Gx13-4-1.09, which prohibits unacceptable relationships and/or communications with students. Accordingly, it is determined that Brooks is not guilty of the charges that the School Board has brought against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Brooks without pay and (b) awarding Brooks back salary, plus benefits, that accrued during the suspension period of 30 workdays, together with interest thereon at the statutory rate. DONE AND ENTERED this 17th day of October, 2005, 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 17th day of October, 2005.
