The Issue Whether the Petitioner demonstrated just cause for the dismissal of the Respondent from employment as a teacher.
Findings Of Fact In a Joint Pre-Hearing Stipulation, the parties agreed to the following facts: At all times material hereto, Respondent, Marlon J. Pearce was employed by Petitioner as a school teacher within the school district of Miami-Dade County, Florida, assigned to Lawton Chiles Middle School. Respondent was employed by Petitioner pursuant to the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, and subject to the rules and regulations of the State Board of Education and of the School Board in accordance with § 1012.33(6)(a), Fla. Stat. (2002). At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to § 4(b) of Article IX of the Constitution of the State of Florida and § 1001.32(2), Fla. Stat. (2002). On November 5, 2000, a conference-for- record (CFR) was held with the Respondent by the principal at North Glade Elementary School. On March 7, 2001, another CFR was held with the Respondent by the principal at North Glade Elementary School. On March 15, 2002, a CFR was held with the Respondent at the School Board's Office of Professional Standards. On May 28, 2002, a meeting was held with the Respondent at the School Board's Office of Professional Standards. At its regularly scheduled meeting of June 19, 2002, the School Board took action to suspend and initiate dismissal proceedings against the Respondent. John Schoeck is currently and for the last two years has been the Principal of North Hialeah Elementary School. For the preceding five years, he was the Principal at North Glade Elementary School. While at North Glade, Mr. Schoeck hired the Respondent, Mr. Pearce, to teach physical education. (Tr. 13) After a November 5, 2000, conference-for-record (CFR) with Mr. Pearce, Mr. Schoeck issued certain directives to Mr. Pearce. Among those directives were the requirement for professional conduct with parents, students and staff, and prohibitions on using profanity, on making verbal or physical threats to parents, students or staff members, and on having verbal or physical confrontations with coworkers. (Tr. 18, 208- 209, P-6) Mr. Schoeck also referred Mr. Pearce to the Employee Assistance Program based on interpersonal behavior observed on the job. (Tr. 9, P-5) An allegation that the Respondent hit a student in the back with his fist was unsubstantiated, in March 2001. The Respondent testified that the student was loud, easily influenced and had an attitude. (Tr. 185) Another student at North Glade Elementary School became involved in a rock-throwing incident with the Respondent. The Respondent described the student as defiant. He testified that after the student threw a rock and hit him, he grabbed her arm to make eye contact, but after she "started going wild and shaking," he let her go and she fell to the ground. There was testimony that her shirt was torn when she reached the principal's office, but the Respondent denied that it was ripped when she left him. (Tr. 186-188, 212-213) On March 7, 2001, Mr. Schoeck held another CFR with Mr. Pearce, as a result of certain allegations by a student and his mother that Mr. Pearce called the student a "punk." Mr. Schoeck found Mr. Pearce insubordinate and reiterated the directives issued after the November conference. (Tr. 24-25, 209-210, 215-216, P-9) The Miami-Dade Schools Police Department ("the school's police") investigated several students' complaints alleging that Respondent had subjected them to corporal punishment. The police found the complaints to be unsubstantiated. Each time there was an incident, the Respondent was reminded of the School Board's policy prohibiting corporal punishment. (Tr. 32-33) Late in the 2000-2001 school year, the Respondent was reassigned to the region office and, subsequently, for the 2001- 2002 school year to Lawton Chiles Middle School (Tr. 33 and Joint Pre-Hearing Stipulation) On November 7, 2001, a charge of verbal abuse, for calling a student "stupid," was substantiated against the Respondent. (Tr. 219, P-17) The Respondent testified that what he said was "stop acting stupid" because the student was loud and saying she knew why he had been fired from his other job and was quoting the Bible. (Tr. 197-198) He also said that, in the heat of the moment, he also called her stupid. (Tr. 200) On November 8, 2001, the Respondent violated the School Board policy against "unseemly conduct, or the use of abusive and/or profane language in the workplace," by using the word "nigga." (Tr. 60-67 and P-16) The Respondent testified that the racial slur was made "under his breath" and not intended to be heard by students. He testified that what he said was "you're going to drive a nigga crazy," and that the comment was directed to himself, not the student. (Tr. 195) The Respondent testified that he told a student "If I was your dad, I would ring your neck," because the student was disruptive, defiant and not following directions. (Tr. 195-196, 218-219) In December 2001, a student was playing with a toilet valve and water was squirting out on the floor in the boys' locker room. After the student left the stall and walked over towards him, the Respondent grabbed him by the neck and shoved him. After an investigation by the school's police, the charge was found to be substantiated. (Tr. 69-88, 113-117 and P-18) The Respondent testified that he grabbed the student's shoulder but did not push him. (Tr. 201-202) Although the student had stopped spraying water at the time he confronted him, the Respondent considered his intervention appropriate because the wet floor created a safety concern. (Tr. 205, 214-215, 217-218) At the same time, other students began slamming locker doors in the locker room. The Respondent called the students involved "a bunch of assholes," and said "If you do this one more time, I could lose my job for hurting you." (Tr. 69-88, 113-117 and P-18) About the same time, the Assistant Principal at Lawton Chiles Middle School, Alberto Iber, received a complaint from the parents of another student. While he was playing with an injured student's aluminum walker, the Respondent grabbed him to try to retrieve the walker and pushed him to the ground. He also said to the student "fuck you." Charges of corporal punishment and the use of profanity were substantiated. (Tr. 93-112 and P-19) The Respondent admitted that he pulled the student down after saying "This is going to be the final time I ask you to sit down." (Tr. 204) He said he used the "f" word under his voice. (Tr. 205) When the Respondent was first assigned to Lawton Chiles Middle School, the Principal, Karen Robinson met with him to discuss the previous incidents at North Glade Elementary School and to discuss expectations that he would abide by the School Board's rules. Each time there was an incident involving the Respondent, Ms. Robinson called the District's Professional Standards Office which referred the matters to the school's police to conduct the personnel investigations. (Tr. 119-133, 219-220) After the fourth personnel investigation at Lawton Chiles Middle School, Ms. Robinson contacted the personnel director for the region. She was concerned that the incidents involving the Respondent were escalating from inappropriate verbal to more serious physical interactions with students. As a result, she recommended that Respondent's employment be terminated. (Tr. 135-136 and P-21) Barbara Moss, the District Director in the School Board's Office of Professional Standards, agreed with Ms. Robinson's and the region personnel director's recommendations to terminate the Respondent's employment. (Tr. 164-165, P-22 and 23) Ms. Moss, in turn, recommended that the School Board terminate Respondent's employment. She met with Respondent to notify him of the proposed action. (Tr. 165-166) The Superintendent of Schools also recommended that the School Board take action to terminate Respondent's employment and notified the Respondent of that recommendation. (P-24 and 25) The Superintendent also notified the Respondent when the School Board, at its meeting on June 19, 2002, took action to suspend and initiate dismissal proceedings against him for misconduct in office, gross insubordination, willful neglect of duty, and violation of School Board Rules 6Gx13-4.108, on Violence in the Workplace; 6Gx13-4A-1.21, on Responsibilities and Duties; and 6Gx13-5D-1.07, Corporal Punishment - Prohibited. Notice of the availability of an administrative hearing to contest the action was also included. (P-24 through 26)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order sustaining Respondent's suspension without pay on June 19, 2002, terminating Respondent's employment, and denying the Respondent back pay. DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2003. COPIES FURNISHED: Merritt R. Stierhelm, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 1244 Turlington Building Tallahassee, Florida 32399-0400 Luis M. Garcia, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade - Law Department 2200 Biscayne Boulevard, 5th Floor Miami, Florida 33137
Findings Of Fact During December, 1978, James White, then a student at Cutler Ridge Junior High School, in Dade County, was involved in at least two incidents that were drug-related. In one incident, James White was observed behaving in a manner indicative of the abuse of drugs while within the school. Subsequent to that and on the same day, James White, his father, and a great dane dog, confronted an assistant principal on the school grounds or just outside the gate of the school grounds. As a result of that confrontation, James White struck another person with a length of chain and Mr. White was involved in a fight with the assistant principal. Police had to be summoned to relieve the tension of the confrontation. No evidence was presented on behalf of James White.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED: This cause should be DISMISSED. DONE and ORDERED this 10th of February, 1983, in Tallahassee, Florida. CHRIS H. BENTLEY, Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1983. COPIES FURNISHED: Mitchell D. Aronson, Esquire 1461 Northwest 17th Avenue Miami, Florida 33125 Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Ludwig J. Gross, Executive Director Division of Student Services Dade County Public Schools 5975 East Seventh Avenue Hialeah, Florida 33013 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Broward County School Board (School Board) is responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Meadowbrook Elementary School (Meadowbrook), Tropical Elementary School (Tropical), and Everglades Elementary School (Everglades)), and for otherwise providing public instruction to school-aged children in the county. For five years, beginning in 2004, Joseph Tamburino was the area coordinator of student services for the School Board's South Central Office (SCO), overseeing the activities of the office's five-person secretarial staff, as well as the approximately 70 "itinerant" school psychologists and school social workers assigned to work at schools within the SCO's service area. Among these schools were Meadowbrook, Tropical, and Everglades. Respondent has been employed by the School Board as a school social worker since September 2000. She presently holds a professional services contract. From 2004 until August 2009, Respondent worked out of the SCO under the immediate supervision of Mr. Tamburino. During this time, she never received less than a satisfactory annual performance appraisal from Mr. Tamburino; however, in the "comments" section of the last appraisal he gave Respondent (for the 2008-2009 school year), Mr. Tamburino did write, "Jessica should work on improving absenteeism and performance issues such as task completion, timelines and adhering to work hours." During the 2006-2007 school year, Mr. Tamburino "beg[a]n to have problems" with Respondent's being where she was supposed to be during the school day. These "problems" persisted, despite Mr. Tamburino's efforts to address them at meetings with Respondent and in written correspondence he sent her. Following the end of the 2006-2007 school year, Mr. Tamburino issued Respondent a "Letter of Reprimand," dated August 14, 2007, which read as follows: This correspondence is submitted as a formal reprimand for your failure to follow office procedures. This is the second occasion that I have had to meet with you regarding not being present at your assigned schools for the full workday. We met on February 1, 2007 because you were not in your assigned schools for the full workday (7.5 hours) over a period of five days. Furthermore, we met on June 1, 2007, because you were not in your assigned schools during the hours you were required to be present on May 4 and May 24, 2007. Know and understand that this behavior cannot and will not be tolerated by this administration. You are hereby directed from this point forward, to comply with all administrative directives. Failure to comply will result in further disciplinary action such as a referral to Professional Standards and the Special Investigative Unit, suspension or termination. Your signature evidences receipt of and an understanding of this document. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. Ten days after evidence of your knowledge of this correspondence, it will become public record. Respondent signed this "Letter of Reprimand" on August 14, 2007, signifying that she had "read and underst[ood] [its] contents." Less than four months later, Mr. Tamburino issued Respondent another "Letter of Reprimand," which was dated December 7, 2007, and read as follows: This letter is submitted as a formal reprimand for your continued failure to follow office procedure and falsification of records. On November 8, 2007 you were not in your assigned school for 7.5 hours. You called the South Central Student Services office and reported that you were leaving New River Middle School at 4:00 p.m. However, you were seen at a store at a shopping plaza at 3:00 p.m. Although you did not work a full day on November 8, 2007, you falsely reported to a Student Services secretary that you finished your workday after 7.5 hours. This is the second written reprimand that you have received within the last four months for failure to follow office procedures and falsification of records. This behavior cannot and will not be tolerated. You are directed to comply with office procedures, work your full 7.5 hour day, and sign in and out with accurate times. Failure to comply will result in further disciplinary action. Your signature evidences receipt of and an understanding of this document. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. Ten days after evidence of your knowledge of this correspondence, it will become public record. Respondent signed this "Letter of Reprimand" on December 17, 2007, signifying that she had "read and underst[ood] [its] contents." Respondent did not file a grievance "specifically challenging" either the August 14, 2007, "Letter of Reprimand," or the December 7, 2007, "Letter of Reprimand." On March 17, 2008, Dr. Tamburino sent a memorandum to Respondent, which read, in pertinent part, as follows: As you are aware, we have had two recent meetings that have included discussions of following office procedures, the provision of social work services and collaboration with the community liaison and other personnel. On February 1, 2008 we had a meeting with Jerrod Neal from BTU and Ellen Williams, the Social Work BTU Steward. We examined possible discrepancies between dates listed for home visits on a log at New River and your November mileage voucher. Although there were L-panel entries to verify the home visits, there was inconsistent documentation of the addresses on the mileage voucher. However, you decided to withdraw your request for mileage reimbursement. Suggestions to improve your work performance were discussed. These include the following: * * * - Specific time of the home visits, including leaving and returning to campus, need to be documented. During the 2008-2009 school year, Respondent was assigned to provide school social work services at three schools: Meadowbrook, Tropical, and Everglades. She was supposed to be at Meadowbrook on Mondays, Tropical on Wednesdays, and Everglades on Thursdays. On Tuesdays, she went to whichever of the three assigned schools "need[ed] [her]," and she also did "home visits." Fridays were designated as "office days." On these "office days," Respondent was expected to do "paperwork" that needed to be completed. Respondent was allowed to use office space at Meadowbrook as her "Friday office" instead of going to the SCO (which was farther from her residence than was Meadowbrook). Respondent missed a considerable amount of work during the 2008-2009 school year due to her daughter's, as well as her own, health-related issues, "exhaust[ing] her sick leave" before the year was half over. (By December, she "didn't have any sick days" left.) Respondent and the other school social workers and school psychologists working out of the SCO were required to notify the office's secretarial staff, by telephone (or in person, if at the SCO), of their whereabouts whenever they arrived at or left a work-related destination during the school day (Call In Office Procedure). It was the duty and routine practice of the secretarial staff, upon receiving such a call, to enter the information provided by the caller concerning the caller's location (as well as the date and time the call was received) on an "online call-in log" (Call Log) maintained by the SCO so as to have a record of these calls. The Call In Office Procedure and other "[o]ffice [p]rocedures" were discussed in a document entitled, "Office Procedures: 2008-2009 School Year," which Mr. Tamburino provided "[a]ll the South Central Office . . . [p]ersonnel," including Respondent, at the very beginning of the 2008-2009 school year. The document read, in pertinent part, as follows: Attendance is reported daily by Joyce [Doe] (social workers) . . . to the payroll department. You must call Joyce . . . prior to taking any leave (e.g., personal, sick, other.) You must call each day you are taking sick leave (unless otherwise arranged with the Area Coordinator [Mr. Tamburino]). Call the office twice daily, when you arrive at your location and before you leave for the day (for example, for most elementary schools by 7:30 AM, and 3:00 PM). You should call from a school telephone. If you do not call in, you may be considered absent. You are expected to be in your assigned school 7.5 hours (same work hours as the teachers). If you leave a school for another destination, be sure to inform personnel at school and one of the secretaries in our office. When you are at the Area Office, please be sure that our secretaries log you in. A schedule of team meetings is provided at the beginning of each year. Attendance at all scheduled team meetings is mandatory. A planning day is a 7.5 hour workday. * * * Mileage vouchers must be submitted within 30 days after the end of the month per the Superintendent. Use the exact mileage to schools listed in SCA mileage chart. Requests for more than one month may not be approved. * * * You must request and obtain an approved TDA [Temporary Duty Authorization] from the Area Coordinator when performing duties in a different location other than your regular assignment. TDA request forms should be completed 10 days prior to the workshop/event. Return to the office at least once a week to handle office duties. The Area Coordinator monitors the quality of your work and evaluates your performance at least annually. The Area Coordinator makes all school assignments. In addition to having to follow these SCO "[o]ffice [p]rocedures," Respondent and her fellow "itinerant" workers, when they were at their assigned schools, were "under [the] direction" of the school's principal and had to do what the principal "dictated." During the 2008-2009 school year, the principal of Meadowbrook "wanted her ['itinerant'] employees to sign in/sign out when they came on [and when they left] campus," and there was a "sign in/sign out" sheet posted at the school for "itinerant" employees to sign, date, and note their "time in" and "time out." Respondent "knew" of Meadowbrook's "sign in/sign out" "procedure," and routinely complied with it (when she was actually at the school that school year). Respondent was not present, and therefore did not "sign in," at Meadowbrook on any of the following dates: Friday, October 3, 2008; Friday, October 31, 2008; Friday, January 9, 2009; Friday, February 6, 2009; Friday, February 13, 2009; Friday, February 20, 2009; and Monday, February 23, 2009. Nonetheless, she telephonically reported to the SCO secretarial staff that she was at Meadowbrook on each of these days (as reflected by the entries made on the Call Log), obviously knowing this information to be false.4 February 4, 2009, was a Wednesday, the day Respondent was supposed to be at Tropical. On that day, Respondent telephoned the SCO secretarial staff at 8:05 a.m. to report she was at Tropical, and called back at 5:56 p.m. to advise that she was leaving the school (as reflected by the entries made on the Call Log). In fact, Respondent was not at Tropical during the school day on February 4, 2009.5 Her reporting otherwise was a knowingly-made false misrepresentation. March 20, 2009, was a Friday and thus an "office day" for Respondent. Respondent had made arrangements to attend a conference that day. In accordance with the "Office Procedures: 2008-2009 School Year" that Mr. Tamburino had handed out at the start of the school year, Respondent had "request[ed] [on February 25, 2009] and subsequently obtain[ed] [on March 16, 2009] an approved TDA" from Mr. Tamburino to go to the conference (instead of doing the work she was "regular[ly] assign[ed]"). Respondent, however, did not go to the March 20, 2009, conference.6 Nonetheless, at 8:40 a.m. on March 20, 2009, she falsely and deceptively reported to the SCO secretarial staff over the telephone that she was on her "temporary duty" assignment (at the conference). At no time that day did Respondent advise the SCO secretarial staff that she was at her regular "Friday office" location, Meadowbrook,7 or that she was leaving that location (to pick up her sick daughter at school, or for any other reason). Furthermore, Respondent's leave records reveal that she did not take any type of leave that day. (Had she taken leave to care for her sick daughter that day, it would had to have been unpaid leave because she had no paid leave time left.)8 To receive reimbursement for non-commuting "travel expenses [she claimed she incurred] in the performance of [her] official duties" as a school social worker (that is, for mileage in excess of the 22.6 miles from her home to her office (at Meadowbrook) and back, reimbursed at a rate of 55 cents per mile, plus parking and tolls), Respondent had to submit mileage vouchers (on School Board Form 3042, Revised 09/05) to Mr. Tamburino for his approval.9 Respondent certified, by her signature on the forms, that her "claim[s] [were] true and correct" and that the "expenses [claimed] were actually incurred by [her]." Among the mileage vouchers she submitted were those covering the months of January 2009 (January Voucher) and February 2009 (February Voucher). There were entries on both the January and February Vouchers that were inconsistent with what Respondent had telephonically reported to the SCO secretarial staff concerning her whereabouts on the dates for which these entries were made (as reflected by the entries made on the Call Log). On the January Voucher, for Tuesday, January 6, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, January 6, 2009, she had telephonically reported to the SCO secretarial staff that she was first at Meadowbrook, then at the SCO, and finally on a home visit. On the January Voucher, for Friday, January 9, under "Places Visited," Respondent put, "Home to Meadowbrook" (a trip of 0 "Net [Reimbursable] Miles"), "Meadowbrook to KCW [School Board headquarters]" (a trip of 5.3 "Net [Reimbursable] Miles"), "KCW to Everglades" (a trip of 17.7 "Net [Reimbursable] Miles"), and "Everglades to Home (a trip of 14.3 "Net [Reimbursable] Miles"); however, on the day in question, January 9, 2009, she had not reported to the SCO secretarial staff that she was at Everglades any time that day. (She had only reported being at School Board headquarters and at Meadowbrook.) On the January Voucher, for Tuesday, January 20, under "Places Visited," Respondent put, "Home to Everglades to Home" (a trip of 28.6 "Net [Reimbursable] Miles"); however, on the day in question, January 20, 2009, she had reported to the SCO secretarial staff that she was first on a home visit and then at Everglades. On the February Voucher, for Tuesday, February 3, under "Places Visited," Respondent put, "Home to Everglades to Home" (a trip of 28.6 "Net [Reimbursable] Miles"); however, on the day in question, February 3, 2009, she had not reported to the SCO secretarial staff that she was at Everglades any time that day. (She had only reported being at Meadowbrook and on a home visit.) On the February Voucher, for Friday, February 6, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, February 6, 2009, she had reported to the SCO secretarial staff that she was first on a home visit, then at Meadowbrook, and finally at the SCO. On the February Voucher, for Friday, February 13, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, February 13, 2009, she had not reported to the SCO secretarial staff that she was at the SCO any time that day. (She had only reported being on a home visit and at Meadowbrook.10) On the February Voucher, for Wednesday, February 4, under "Places Visited," Respondent put, "Home to Tropical to Home" (a trip of 9.8 "Net [Reimbursable] Miles"). Unlike the other entries on the January and February Vouchers discussed above, this entry was entirely consistent with what Respondent had telephonically reported to the SCO secretarial staff concerning her whereabouts on that day; however, as noted above, she had not been truthful in making such a telephonic report to the SCO secretarial staff. It was Mr. Tamburino's responsibility to check all of his subordinates' mileage vouchers, including Respondent's, "for accuracy" before approving them. Because "there [were] discrepanc[ies] between what was on the [January and February] [V]oucher[s] and what was on the [C]all [L]og," Mr. Tamburino did not approve these vouchers. Instead, he "forward[ed] the mileage voucher issue to the [School Board's Office of Professional Standards and Special Investigative Unit] for investigation."11 On or about April 23, 2009, Respondent was provided a Notice of Investigation (dated April 17, 2008), which read as follows: This correspondence is provided as formal notice of investigation into a complaint received in this office regarding allegations that you falsified records. You will be contacted in the near future for the purpose of giving a statement. You have the right to representation through all phases of this investigation. You are directed not to engage the complainant, or any student witness, or any other witness in any conversation regarding the matter under investigation. A violation of this directive could result in disciplinary action for insubordination. Questions regarding the status of this investigation are to be directed to Joe Melita, Executive Director of Professional Standards & Special Investigative Unit at (754)321-0735. This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file will be part of your personnel file and will be public record and it will become available for inspection by the public ten (10) days after completion of the investigative process. Investigator Johanna Davidson was the School Board employee in the Office of Professional Standards and Special Investigative Unit who conducted the investigation. As part of her investigation, Investigator Davidson took a sworn statement from Respondent on June 4, 2009.12 In her sworn statement, Respondent told Investigator Davidson, among other things, that she arrived at Meadowbrook at "around 8:00" a.m. on March 20, 2009, and stayed there "all day"13; that she "knew that [signing-in] was the procedure" at Meadowbrook; that this "procedure" had been in place for the past year and a half; that she signed in at Meadowbrook "99 percent of the time"; that she "may have missed one or two sign-ins" at Meadowbrook, but she did not "think [she] had"; and that she is "a very procedure and policy oriented person," so it would have been "odd" had she not signed in at Meadowbrook, even during the time, from January to April 2009, when she had been "on crutches."14 When asked by Investigator Davidson "what happened that day, February 4, 2009," Respondent made no mention of having been in the teacher's lounge at Tropical (where, in her testimony at the final hearing, she falsely claimed she had been the entire school day on February 4, 2009, leaving only once to go to the bathroom across the hall). Rather, in response to Investigator Davidson's inquiry, she suggested that this day (February 4, 2009) might have been one of the many days that school year that she had "taken off" because of health-related issues and that she had not "communicated properly" concerning her having "taken off" that day. Investigator Davidson completed her investigation and issued an Investigative Report detailing her findings in late June 2009. Investigator Davidson's Investigative Report contained a section entitled, "Summary of Investigation," the first paragraph of which read as follows: A Personnel Investigation Request pertaining to School Social Worker Jessica Harrison was received in the Office of Professional Standards & Special Investigative Unit. Ms. Harrison was accused of Falsification of Records stemming from the following alleged incidents: Ms. Harrison allegedly submitted a Temporary Duty Authorization (TDA) request to attend a conference but did not attend the conference, and allegedly reported to the South Central Area Student Services office that she was in attendance. Two of Ms. Harrison's assigned schools reported that Ms. Harrison was not in attendance on several days. Ms. Harrison allegedly did not report her absences to the South Central Area Student Services office. Ms. Harrison allegedly falsified mileage vouchers. The information that Investigator Davidson had obtained supporting these allegations was detailed in succeeding paragraphs of this section. (It was this information upon which the "[s]pecific [c]harges" in the instant Administrative Complaint were based.) The School Board's Professional Standards Committee met on September 9, 2009, to consider the results of Investigator Davidson's investigation and "found probable cause of falsification of records" warranting Respondent's termination. On September 16, 2009, Craig Kowalski, the Acting Executive Director of the School Board's Office of Professional Standards and Special Investigative Unit, sent Respondent a letter, which read as follows: The Professional Standards Committee met on September 9, 2009, and found probable cause of falsification of records. The Committee has recommended termination. Please be advised by way of this correspondence that you have been scheduled for a pre-disciplinary conference on Monday, October 5, 2009, at 11:00 a.m. in my office, which is located on the third floor of the Technical Support Services Center, 7720 West Oakland Park Boulevard, Sunrise, Florida. You have the right to representation at this conference. If for some reason you are unable to be present at this conference you must contact my office by 4:00 p.m. on Thursday, October 1, 2009. You have previously been furnished with a full report. You are not to disseminate these documents to the public and/or media since it may contain protected information. If you have a representative, it is your responsibility to furnish him/her with copies of your documentation. Your failure or refusal to appear at this conference will be considered a waiver of this procedural requirement. A copy of the Special Investigative Unit report and this letter are being forwarded to the Professional Practices Department of the State Department of Education to determine if certificate disciplinary action is warranted. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file is now a part of your personnel file and is a public record and it will become available for inspection by the public ten (10) days from receipt of this letter. Any request made by the public for the documentation referred to above will be provided in accordance with the laws of the State of Florida. Questions regarding this correspondence are to be directed to my office (754)321-0735. The "pre-disciplinary conference" was held on October 5, 2009, as scheduled. Present at the conference were Mr. Kowalski; Carmen Rodriguez, Esquire (on behalf of the School Board); Respondent; and Jerrod Neal of the Broward Teachers Union, whom Respondent had asked to speak on her behalf. Prior to the conference, Respondent had received, and had had the opportunity to review, Investigator Davidson's Investigative Report. During the conference, Respondent affirmatively adopted the admission made by her representative at the meeting, Mr. Neal, that she had engaged in the "falsification" of which she was being accused (as described in the Investigative Report). The following is a verbatim recitation of what was said at the October 5, 2009, "pre-disciplinary conference": MR. KOWALSKI: This is a pre-disciplinary hearing for School Board employee Jessica Harrison. We are here pursuant to an investigative report dated June 30th, 2009. This investigation was based upon allegations of falsification of records. The Professional Standards Committee has reviewed this matter and has made a recommendation for disciplinary action. The disciplinary action is for termination. Have you received a copy of the investigative report? MS. HARRISON: Yes. MR. KOWALSKI: The purpose of this pre- disciplinary conference is to give you the opportunity to bring forward any additional matters that you believe should be considered before final decision as to disciplinary action is reached. Such matters include any additional evidence, witnesses or any matter that you believe should be considered. This is also an opportunity to say anything which you believe should be considered on your behalf. I am going to ask you if you identify additional witnesses, please identify what you believe the witness knows or would testify to or what the witness can contribute to this investigation. Do you understand the purpose of this meeting? MS. HARRISON: Um-hm. Yes. MR. KOWALSKI: Is there anything you wish to say, do you have any additional matters that you believe should be considered.? MR. NEAL: Let me speak on her behalf, because I think Ms. Harrison has pretty much said a lot of things at the Professional Standards Committee meeting. Since we've talked, since the information that was gathered during the investigation, I have really had a chance to look over it, I was really surprised by the recommendation of termination. Not eliminating what happened, because what happened as far as falsification of records, it was done. But circumstances surrounding it, I don't think it really warrants termination, considering that it is not an easy thing when you're going through a lot of personal problems. Once again, it doesn't justify what was done. But I think under the circumstances, decisions were made with not a lot of clear thought, and I really believe that Ms. Harrison's intention, from what I have known over the last couple of years, have always been good. I just think it's a matter of the things that she was actually going through. She should have brought them to the forefront earlier so there could have been a better understanding of what was going on, not an excuse for it, but a better understanding for what was going on. And you know, I would not be in my duty if I don't mention the fact that there has been so much, or so many other things that have been done through the district that should have warranted termination and people were not terminated. And I just think this is a situation where termination is to the extreme. Whereas some sort of punishment should happen, but termination is just way too much for this situation, because I think in her state of mind as she is now, I don't think these mistakes will be made again. MR. KOWALSKI: Okay. Do you want to add anything Ms. Harrison? MS: HARRISON: I think he summed it up. MR. KOWALSKI: Okay. Thank you. We'll let you know the outcome. MR. Neal: Okay. About how long will that be. And he will let you know, so that means you will have to let me know once they let you know. MR. KOWALSKI: I have to meet with the Superintendent, and so within two weeks. MR. NEAL: Okay. Until then you just go back to doing what you have been doing. MS. HARRISON: Okay. MR. NEAL: All right. Appreciate it. Ms. RODRIGUEZ: Thank you. Mr. NEAL: Thank you. (emphasis supplied).15 The plea for leniency that Mr. Neal made on behalf of Respondent proved to be unsuccessful. On October 30, 2009, Broward County Superintendent of Schools Notter issued an Administrative Complaint recommending that Respondent be terminated for the "falsification" of attendance records and mileage vouchers described in Investigator Davidson's Investigative Report (conduct that Respondent had admitted, at the October 5, 2009, "pre-disciplinary conference," she had engaged in).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Broward County School Board issue a final order terminating Respondent's employment as a professional service contract school social worker with the School Board for the reasons set forth above. DONE AND ENTERED this 18th day of November, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2010.
The Issue Did Respondent Herman Brown violate the policies of Petitioner Polk County School Board (Board) and thereby justify his dismissal from employment with the Board?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: The Board is the county agency responsible for operating the public schools within the Polk County School District as established in Chapter 228, Florida Statutes. Respondent has been employed in the Polk County School System since 1993. At all times pertinent to this proceeding, Respondent was employed as a paraprofessional at the Polk County Boot Camp for troubled teenage students. Paraprofessionals assigned to these positions are given a salary supplement to attract and retain employees who will be proper role models for these students. At all times pertinent to this proceeding, Respondent’s employment was pursuant to an annual contract which provided that Respondent could only be terminated for just cause. On July 24, 1996, Detectives Kelly Somers and Mary Gaertig of the Polk County Sheriff’s Office were working with an undercover unit in the Medulla area of Lakeland, Florida, a small neighborhood consisting of approximately three blocks, which is predominantly black. Detectives Somers and Gaertig are both female and white, and were attempting to make undercover purchases of illegal drugs. Respondent is a black person who, at all times pertinent to this proceeding, lived in the Medulla neighborhood and had lived in the Medulla neighborhood most of his life. On July 24, 1996, while walking on Lily Road in Medulla, Respondent noticed Detectives Somers and Gaertig in a car that had passed him several times. Assuming the two detectives were attempting to attract his attention, Respondent engaged them in conversation. During the course of this conversation, Detective Gaertig told Respondent that they were looking for an “older” black male who had “ripped her off” by selling her a “false substance” as crack cocaine. Detective Gaertig described this black male to Respondent, but Respondent was unable to identify this person. Also, during this conversation, the detectives brought up the matter of “partying” and told Respondent if he wanted to party with them that it would cost him $50.00 apiece for each of them. Respondent told the detectives to make the block and he would meet them. Instead, Respondent went home and had no further contact with the detectives that day. Respondent did not have any money or crack cocaine with which to pay for any “partying.” The next day, July 25, 1996, Respondent was on the way to sell some scrap gold to purchase desserts for an upcoming church picnic that day when he saw Detective Somers. Detective Somers asked Respondent where he had gone the previous day when he was supposed to meet them, and he told her he had gone home. Detective Somers showed Respondent some money and inquired of Respondent as to where she could by some crack cocaine. Respondent told Detective Somers that he knew where she could buy some crack cocaine, and asked her for a ride to the gold store. For security reasons, Detective Somers did not allow Respondent in the car, but told him she was going after her friend (Detective Gaertig) and they would be back. After Detective Somers left, a friend of Respondent’s told him that Detective Somers was an undercover officer. At this point, Respondent asked a friend for a ride to the gold store, but before they could leave, the detectives pulled up by the car and asked Respondent if he wanted a ride. Respondent told them no, and at this time his friend, realizing that the women were undercover officers, told Respondent to get out of his car. Respondent was arrested and charged on July 25, 1996, with two counts of soliciting prostitution, but was later released on July 25, 1996. Subsequently, the case was terminated and dismissed by the State Attorney. The alleged circumstances surrounding Respondent’s arrest were reported in the Lakeland Ledger on July 28, 1996. The evidence is clear that the Respondent did not at any time on July 24 or 25, 1996, produce any money or illegal drugs, specifically crack cocaine, to pay for sex with Detectives Somers and Gaertig. It is equally clear that Respondent did not at any time on July 24 or 25, 1996, ask Detectives Somers and Gaertig to have sex with him or offer to pay them in any fashion to have sex with him, notwithstanding the testimony of Detectives Somers and Gaertig to the contrary, which I find lacks credibility. There is no evidence in the record from any member of the community that Respondent’s conduct has seriously reduced Respondent’s effectiveness in his assigned position. From all accounts, Respondent has performed credibly in his assigned position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, Recommended that Respondent be reinstated as of the date of the final order and that Respondent be awarded back pay and benefits during the period of suspension without pay. RECOMMENDED this 28th day of April, 1997, in Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997. COPIES FURNISHED: Donald H. Wilson, Jr. LANE, TROHN, CLARKE, BERTRAND, VREELAND and JACOBSEN, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire HERDMAN & SAKELLARIDES, P.A. 34650 U.S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684 Glenn Reynolds, Superintendent Polk County Schools Post Office Box 391 1915 South Florida Avenue Bartow, Florida 33830-0391 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Respondent, Stephen Lauster (Mr. Lauster or Respondent), violated section 1012.795(1)(g) and (j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1. and (2)(a)5.; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Respondent is a teacher in the School District and has been since 1990. He holds Florida Educator’s Certificate 664969, covering the areas of educational leadership and music, which is valid through June 30, 2021. The Commissioner is the head of the state agency, the Florida Department of Education. The Commissioner is responsible for investigating and prosecuting misconduct allegations against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. During the period relevant to the allegations in the Amended Administrative Complaint, Respondent was employed as a music teacher at the Middle School in the School District. Respondent’s annual professional evaluations for the relevant periods show scores considered “effective” and “highly effective.” Despite this, Respondent has an extensive disciplinary history with the School District, which is set forth below. On or about March 17, 2006, Respondent received a letter of reprimand from his then-principal, Frank Zencuch. On or about March 27, 2009, Respondent received a warning of unsatisfactory behavior from Principal Zencuch. On or about April 2, 2009, Respondent submitted a rebuttal to the March 27, 2009, written warning. On or about May 13, 2009, a Grievance Procedure Level II hearing was held to determine whether the letter of reprimand should be removed from Respondent’s personnel file. The grievance was denied by a School District representative and the letter of reprimand remained in Respondent’s file. On or about December 12, 2013, Respondent’s then-principal, Margaret Jackson, completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about February 7, 2014, Principal Jackson completed a conference summary regarding Respondent, concerning insubordination. On or about April 24, 2014, Principal Jackson completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about March 30, 2018, Principal Jackson completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about April 5, 2018, Respondent submitted a rebuttal to the March 30, 2018, conference summary. The Bus Incident on May 28, 2018 On May 28, 2018, Respondent was on his way home from school and was driving behind a school bus, which had left the Middle School ahead of him. Respondent was driving a large sports utility vehicle which allowed him to see into the rear window of the bus he followed. Respondent noticed students on the bus leaving their seats and moving around. Respondent contacted the School District’s transportation center to report the actions of the students on the bus. Respondent testified that after making his complaint to the transportation center, he saw no change in the actions of the students on the bus, who continued to leave their seats. Respondent continued to follow the bus until it made its first stop in a private gated community. Student M.O. lived in the gated community and got off at this stop to go home. At the time of the incident, M.O. was eleven years old. Her mother, K.O., waited in the community parking lot to pick M.O. up from school. When the bus stopped, Respondent pulled his car alongside the bus, exited his vehicle, and hurriedly approached the bus. M.O. disembarked the bus and walked towards her mother’s car. Respondent stood in front of the opened door of the bus and began to yell at the bus driver. Respondent then beckoned M.O. back to the bus. Respondent angrily yelled at M.O., telling her that the next day, “you come to the band room straight to the band office. If I have to come and find you it’ll be worse than what you are going to already get.” Seeing this transpire, K.O. approached Respondent to inquire about what was happening and why he was yelling at her daughter. K.O. asked Respondent who he was. Respondent told K.O. that the bus and M.O. were “in violation” and that M.O. was required to report to him in the morning. Respondent then continued to yell at the bus driver. He demanded the driver send another student to him—a student he claimed he witnessed standing in the bus’s aisles while it was being driven. K.O. touched Respondent’s arm from behind, to gain his attention. Respondent yelled at K.O. that she should not touch him. They engaged in a verbal exchange that was transcribed by a court reporter during K.O.’s. deposition: Respondent: Get your hands off me. Don’t ever touch me. I am doing what I’m supposed to do. K.O.: (Unintelligible.) Respondent: Lady, it’s fixing to get a lot worse. K.O.: What did you say to me? Respondent: I said, “Lady, it’s going to get worse.” Respondent scolded the bus driver for what he considered to be the driver’s inaction. He threatened all of the students on the bus with a “referral.” K.O. remained at the bus stop until the bus left. M.O. was upset and embarrassed by the incident. She did not know Respondent personally; she only knew that he was the school’s band director. The other students witnessed Respondent yelling at M.O. and K.O., which added to M.O.’s embarrassment. Later that evening, when K.O. arrived at home, she emailed Edward Laudise, the assistant principal of the Middle School, regarding the incident. The next day, Respondent reported to the Middle School, where he was told by Principal Jackson that he was not allowed to have any contact with M.O. On or about July 31, 2018, the School District’s Director of Human Resources recommended that Respondent be terminated based on the bus incident. The School District’s Superintendent joined in the recommendation for termination. However, on or about August 21, 2018, the School District suspended Respondent for a period of five days, without pay, instead. Thereafter, Respondent was the subject of several other disciplinary actions, unrelated to the bus incident. On or about August 27, 2018, Principal Jackson completed a conference summary regarding Respondent’s language/conduct toward students, co-workers, and parents, and his poor attendance and tardiness. On or about May 7, 2019, Principal Jackson held a meeting with Respondent to discuss allegations that Respondent told students, among other things, that “they would be the first generation of young people to die before their parents,” and that they “sound like they have stage 4 cancer.” On or about May 28, 2019, Respondent received a letter of reprimand and recommendation for a four-day suspension from the School District Director of Human Resources. On or about May 29, 2019, Respondent received a letter of reprimand and four-day suspension from the School District Superintendent. In September 2019, Respondent entered into a settlement agreement with the School District, through which the four-day suspension was reduced to two days. The P.E. Incident on January 30, 2020 A.H. and L.H. are students who attend the Middle School. On the date of the hearing, which was held approximately six months after the incident, A.H. and L.H. were 13 years old. On or about January 30, 2020, A.H. and L.H. were participating in physical education (PE) class. Melea Morgan was the PE teacher. A.H. and L.H. left PE class to go to the restroom. There is conflicting testimony as to the amount of time A.H. and L.H. spent in the bathroom, but the amount of time is irrelevant. After leaving the restroom, the students walked towards a water fountain. Respondent contacted Ms. Morgan to let her know that A.H. and L.H. were in the bathroom for a long time. He asked if she approved of him going to get them and Ms. Morgan agreed. Respondent approached A.H. and L.H. as they walked towards the water fountain. Respondent admonished A.H. and L.H. for being in the bathroom for an extended amount of time. He told them that they should be participating more in PE class and that he would be referring them to in-school suspension (ISS). Both A.H. and L.H. distinctly and explicitly recalled the events that took place that day. A.H. credibly testified about her interactions with Respondent, stating: And then Mr. Lauster – and then I started telling Mr. Lauster, so we will participate more, can we please not go to ISS. And he said, well, you’re on the soccer team, you shouldn’t be hanging out with a loser. She’s a do-nothing. You can’t -- you shouldn’t be hanging. And then I was just, like, we will participate more and I’m sorry. He was like, I expect more from you because you’re on the soccer team. And I was just -- and L said nothing. And I was just, I will do more. And then he just kept calling L a loser. A.H. distinctly recalled that Respondent referred to L.H. as a “do- nothing” and a “loser.” L.H.’s testimony was the same. She recalled that Respondent referred to her as both a “loser” and a “do-nothing” and that he asked A.H. why she was hanging out with “this loser,” referring to L.H. Respondent threatened to send A.H. and L.H. to ISS, but then told them he would give them another chance. The School District initiated an investigation into the matter. On or about March 6, 2020, Respondent received a letter of termination from the School District’s Superintendent. On or about April 22, 2020, Respondent entered into a settlement agreement with the School District. Pursuant to the terms of the settlement agreement, the School District did not terminate Respondent. Rather, the settlement agreement operated as a “last chance agreement,” which provided for an automatic termination should any future infractions occur. Respondent was neither apologetic nor remorseful for how he handled A.H. and L.H. Instead, in testimony that was wholly unconvincing, he maintained that he did not call L.H. a “do-nothing” or a “loser,” but, rather, that he told the students that they “made a loser decision” and “chose to be do-nothings in the bathroom.” At only 12 or 13 years old at the time of the incident, L.H. was impressionable. By all accounts, she is a very shy girl. L.H.’s mother testified that L.H. struggles with anxiety and that in the past she has felt like she is a loser and does not have friends. She was “shook up” by Respondent’s comments. Similarly, Respondent was unremorseful and unapologetic about his actions during the bus incident. Respondent attempted to justify his behavior towards M.O., her mother, and the bus driver. He testified that he needed to stop the bus because he saw inappropriate activity on the bus that could have been dangerous to everyone onboard. Respondent is correct that the students on the bus were engaging in inappropriate behavior—they were getting in and out of their seats, walking in the aisles, and playfully fighting with each other. However, Respondent handled it poorly. Principal Jackson testified that the appropriate reaction would have been for Respondent to contact the School District’s transportation department (which he did) and then report the inappropriate behavior to school administration the next day. He should not have approached the bus or condemned the students or the bus driver. Respondent was clearly angry when he spoke to M.O. He lost his composure. Worse still, he directed his anger to K.O. Ultimate Findings of Fact The undersigned finds that Petitioner proved by clear and convincing evidence that Respondent inappropriately yelled at and intimidated M.O. who had changed seats on the bus while it was moving. Respondent also became confrontational with M.O.’s mother and threatened the remaining students on the bus with referrals, regardless of whether they were misbehaving or not. Petitioner also proved by clear and convincing evidence that Respondent told L.H., in front of A.H., that she was a “loser” and a “do nothing.” The undersigned finds that based on the findings of fact above, Respondent’s conduct during the bus incident and the PE incident have been proven by clear and convincing evidence and that Respondent, through his actions, violated the statutes and rules as alleged in the Amended Administrative Complaint. None of the other factual allegations contained in the Amended Administrative Complaint were proven by clear and convincing evidence.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission finding that Respondent, Stephen Lauster, violated section 1012.795(1)(j) by violating rule 6A-10.081(2)(a)1. and (2)(a)5.; and as sanctions for such violations, suspending his educator’s certificate for one year from the date of the Final Order. DONE AND ENTERED this 3rd day of November, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 November, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Lisa M. Forbess, Interim Executive Director Department of Education Education Practices Commission Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact The Respondent, Harvey R. Steckler, holds Teacher's Certificate No. 520419 issued by the State of Florida, Department of Education. This Certificate covers the area of substitute teaching. On February 5, 1985, the Respondent was employed as a substitute teacher at Brownsville Junior High School in the Dade County Public School System. On February 5, 1985, while substitute teaching in a physical education class, the Respondent was conversing with a group of minor male students. During this conversation, a minor female student passed the Respondent and the group of students. While looking at the female student, the Respondent began to make sexual remarks about her. She could hear portions of these remarks, such as "Oh, she's so fine; he had a girl on his boat and liked to eat her out; you wouldn't mind getting to her; he would like to eat her out," and other sexual comments. These remarks were also overheard by the boys in the group, as well as by the female student. The female student went to the school office and told the Principal and the Assistant Principal about the incident. They suggested to her that she write out a report on the incident, which she did. The Respondent's remarks caused the female student to be both nervous and frightened, as well as embarrassed. When the Principal of Brownsville Junior High reported this incident to the Dade County school system, the Respondent was informed that his name had been removed from the approved list of substitute teachers, pending further notice. After an investigation and several conferences, the Respondent's name was permanently removed from the list of authorized substitute teachers in the Dade County public school system. On April 24, 1985, the Respondent appeared before a publicly televised meeting of the school board to appeal the removal, but the school board took no action to reinstate him. The nature of the incident described above, together with the awareness of the incident on the part of students, staff, parents and the community, because of its publicity, so impaired the Respondent's effectiveness as a substitute teacher and as an educator, that the school board could not re-employ him in any capacity in the Dade County public schools.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Teacher's Certificate No. 520419 held by the Respondent, Harvey R. Steckler. THIS RECOMMENDED ORDER ENTERED this 17th day of June 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June 1987. COPIES FURNISHED: William E. Williams, Esquire Post Office Box 1739 Tallahassee, Florida 32302 Mr. Harvey R. Steckler 825 82nd Street Miami Beach, Florida 33141 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney Moenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Section 319 West Madison Street, Room 3 Tallahassee, Florida 32301 Karen B. Wilde, Executive Director Education Practices Commission Room 418 Knott Building Tallahassee, Florida 32399
Findings Of Fact Respondent was an employee of the School Board of Dade County, Florida, more particularly a Title One teacher at Miami Carol City Senior High School during the 1981-1982 school year. On May 6, 1982, John Cohn was a student in Respondent's fourth period class. Arnold Coats was a substitute teacher working with Respondent in Respondent's classroom on that day. After Respondent had given the students an assignment, Cohn requested and received permission to leave the classroom to go to the bathroom. While absent from the classroom, Cohn decided he wished to speak with Ronald Golemhieski, another teacher at Miami Carol City Senior High School. Cohn returned to Respondent's classroom to request permission. Coats came to the door and gave Cohn permission to go talk to Golembieski, but Cohn decided he should get permission from Respondent since Respondent was the teacher of the class. Cohn waited in the doorway of Respondent's classroom. When he finally got Respondent's attention, he beckoned with his finger, requesting Respondent to come to the doorway. Respondent went to the doorway, and Cohn requested Respondent's permission to go talk to Golembieski. Respondent grabbed Cohn, pulling him forcefully into the classroom. Commotion broke out in the classroom, and someone yelled for assistance. Golembieski heard the commotion, as did Victoria Bell, the hall monitor. When they arrived at Respondent's classroom, Respondent and Cohn were struggling with each other. They were face to face, and Respondent had his arm around Cohn's neck with his hand on Cohn's throat in a choking manner. Golembieski grabbed Cohn away from Respondent and, after separating them, took Cohn to his classroom to calm him down. Bell and Coats pushed the rest of the students back into their seats and restored order in Respondent's classroom. When the altercation ended, Cohn's shirt was torn and he had scratches on his chest. Just prior to Respondent's outburst, Cohn did nothing to provoke Respondent in any way and was not disrespectful to Respondent. When Cohn got Respondent's attention, Respondent both looked at Cohn and walked to the doorway in a normal manner, thereby giving no warning that he intended to touch Cohn in any way. Respondent interpreted Cohn's beckoning with his finger as an invitation to fight, although Respondent admits that Cohn said nothing to him indicating that he wished to fight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Notice of Charges, approving Respondent's suspension and dismissing him as an employee of the School Board of Dade County, and denying any claim for back pay. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a) and 6A-10.081(5)(d), as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke, suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2016). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2016). Respondent holds Florida Educator's Certificate 829054, covering the areas of Education, Leadership, Physical Education, Social Science, and Exceptional Student Education, which is valid through June 30, 2018. At all times pertinent hereto, Respondent was employed as an Exceptional Student Education Teacher at Holly Hill School in the Volusia County School District. Holly Hill School is a combined K-8 school. During the time in question, Respondent shared a small office with Ms. Pollok and Mr. Edwards. The office was formerly a teachers’ lounge/lunchroom. It still had a counter, sink, and refrigerator, and had bathrooms that continued to be used on occasion by other teachers. Each of the three teachers who shared the office had their own desk. The office also included two smaller tables at which the teachers could provide service to their ESE students when necessary. At the start of the 2013-2014 school year, Ms. Pollok knew Mr. Edwards, who had been in the ESE program, but did not know Respondent. The incidents described herein occurred between the start of the 2013-2014 school year on August 13, 2013, through late November, 2013, when Respondent was removed from the classroom. Racial Comments Over the period of time in question, Respondent made numerous statements of a racial nature. While on hall duty between classes, Respondent would occasionally call African-American children “Bebe’s kids.” The reference was to an animated television show in which “Bebe’s kids” were unruly and ill-mannered African-American children. Mr. Edwards understood the comment to be derogatory, and noted that the children hearing the comment would occasionally react, even to the point of commenting that they did not want to be referred to as such. Respondent’s statements were also heard by Ms. Burnam-Hoyt, who likewise understood the term to be derogatory, and observed that the children at the receiving end of the comment looked shocked. She advised Respondent that he should not call them that name. Ms. Pollok testified that Respondent routinely called children “nappy” during hall duty when students transition from one period to the next. The comments were directed to middle school students, whose reactions were perceived by her as being ones of humiliation or embarrassment.1/ Mr. Edwards testified that he heard Respondent refer to African-American children as “nappy,” though not with the frequency with which he called them “Bebe’s kids.” Respondent testified that he only called one child “nappy” at the request of the child, an ESE student -- though not one of his students -- who wanted to be called “napster” or “nappy.” There was no competent, substantial evidence to support that claim. No other teacher substantiated such a request, and Mr. Edwards and Ms. Burnam-Hoyt testified credibly that the term was used more broadly. In any event, as stated by Ms. Fisher, there would be no reason to address any student by that type of obviously inappropriate term, even if requested. Mr. Edwards perceived Respondent’s comments as inappropriate, and they made him uncomfortable. He believed, rightfully, that the comments made Ms. Pollok uncomfortable as well. There was no evidence that any student’s learning ability or mental health was actually adversely affected by Respondent’s racially-demeaning statements. Nonetheless, under the circumstances described herein, Petitioner proved that Respondent failed to make reasonable effort to protect students at Holly Hill School from humiliation and embarrassment, conditions reasonably understood to be harmful to their learning environment and their mental health. Sexual Comments Over the period of time in question, Respondent repeatedly made statements of a sexual nature. On occasion, when Ms. Pollok arrived to work in less than a cheerful mood, Respondent would state to the effect of “What's the matter, Pollo[]k, why are you grumpy? Am I going to have to go downstairs and talk to your husband about how to wake you up properly?” The first time he made the comment, he accompanied it with hip thrusts and grunts, i.e., sounds that people make when they're having sex, thus accentuating the sexual nature of the comment. The first time Respondent made the statement, Ms. Pollok felt awkward, left the office, and went to her husband’s classroom (he was also a teacher at Holly Hill School) where she stayed until the school day started. When he continued to make such statements on a more regular basis, it made her uncomfortable. Mr. Edwards heard Respondent make the statement to Ms. Pollok on one or two occasions. Respondent denied having ever made the comments, attributing them to Mr. Anderson, who laughingly took credit. Regardless of whether Mr. Anderson may have also made comparable statements, the testimony of Ms. Pollok and Mr. Edwards that Respondent made the statements at issue is more credible, and is accepted. Ms. Burnam-Hoyt, who enjoys a well-known and long-term relationship with her wife, would occasionally visit the office. On one occasion, while in the presence of Mr. Edwards, Respondent told Ms. Burnam-Hoyt that she looked nice that day and said “I wish you would switch teams.” Though she gave an off-hand reply, Ms. Burnam-Hoyt did not discuss her sexuality, especially in the workplace, and was offended by the comment. On several other occasions, when Ms. Burnam-Hoyt was not in the room, Respondent commented in the presence of both Ms. Pollok and Mr. Edwards that he wished “she didn’t bat for the other team.” On one occasion, when Ms. Pollok had returned from ESE training and asked Respondent about his day, he replied that “it was pretty boring until your old boss, what's her name, Mandy [Elzy], bent over and showed me her boobs.” Respondent commented, with regard to Anna Garces, that “she was spicy and he'd like to make her his consuela.” When Donna Mounts, a P.E. instructor, would come to the office, Respondent’s favorite phrase was that he “would like to mount Coach Mounts.” Respondent did not make the statement directly to Ms. Mounts, but he made it in the office on a routine basis. Respondent commented regarding Marcie Lockamy, an African-American assistant principal, that “I don’t normally do black ladies, but she’s pretty hot . . . I’d get at that.” Respondent’s denial that he made the statement, or that he even knew who Ms. Lockamy was, was not convincing. Respondent’s comments were repetitive, and he would make some statement every day. Ms. Pollok and Mr. Edwards told Respondent that he should “tone it down.” In particular, Mr. Edwards testified credibly that he advised Respondent “at different points” that his comments about women were not appropriate, not only because of his own view of the matter, but because he believed them to be disturbing to Ms. Pollok. The requests and recommendations had no identifiable effect. Mr. Anderson’s testimony in this case, apparently designed to exonerate Respondent and transfer responsibility for many of the statements to himself, was not persuasive, and in several instances, conflicted with the more credible testimony of other witnesses.2/ Respondent’s general defense to his sexual comments was that he was just “joking around,” that they occurred when he and the target of his comments “were talking and laughing and having a good time in between classes,” that they were a “jovial gesture,” and the like. He denied that they were perceived as offensive by any the persons within earshot, a statement denied by the persons exposed to his comments. Individually, Respondent’s comments could be categorized as puerile. Collectively, and over time, they rose to the degree that they created a hostile, abusive, offensive, and oppressive environment in the small office that constituted the workplace for the three teachers. Threatening Comments The Administrative Complaint alleges that, over the period of time in question, Respondent made “threatening comments to or around [Ms. Pollok].” As to comments regarding Respondent’s prior work- history as a police officer, Mr. Edwards testified credibly that they were nothing more than “experiences that people have or wanted to share.” Mr. Edwards did not take those statements as threatening. When Respondent discovered that he was being investigated by Holly Hill School, he was understandably upset. He made some comments that expressed his frustration. However, Mr. Edwards testified that Respondent did not threaten him or Ms. Pollok. Respondent admitted to being upset and frustrated, but denied either expressing, or having the intent to harm anyone. The comments, under the circumstances, were not so out of line as to objectively constitute a threat to one’s safety or welfare. Under the circumstances described herein, Petitioner did not prove that Respondent’s allegedly threatening statements created a hostile, intimidating, abusive, offensive, or oppressive environment in violation of rule 6A-10.081(5)(d). Holly Hill School’s Response Ms. Pollok complained of Respondent’s behavior to various administrators at Holly Hill School, including Mr. Strother, and went so far as to request a reassignment of her duties so as to avoid Respondent. On November 1, 2013, Mr. Strother spoke with Respondent. The conversation was “short and brief,” and non-specific, with Mr. Strother generally advising Respondent to “be cognizant of conversations you're having and what you're saying around other people.” On or about November 4, 2013, Ms. Pollok renewed her complaint to Mr. Strother about Respondent’s comments about “the ladies,” and their looks and sexual preferences. Mr. Strother could tell that the comments made Ms. Pollok uncomfortable. Mr. Edwards had also spoken to Mr. Strother regarding Respondent’s comments. As a result of those complaints, Mr. Strother sent out an email directing all teachers to have “professional conversations,” and to lead “by example with appropriate conversation.” Though the email was not specific, included other topics, and was sent to a number of Holly Hill School employees, it nonetheless should have placed Respondent on notice to heed not only Mr. Strother’s earlier advice, but also the earlier admonitions from Mr. Edwards and Ms. Pollok to “tone it down.” It did not have the intended effect. On November 20, 2013, Ms. Pollok reported Respondent’s unabated comments about women and those made towards students to Ms. Fisher. Ms. Pollok was upset and crying during their discussion. Ms. Fisher then spoke with Mr. Strother to confirm Ms. Pollok’s earlier complaints. Ms. Fisher reported the allegations to the school district, and on November 21, 2013, an investigation of Respondent’s conduct was initiated. The investigation delved into the sexually-inappropriate comments, and extended into areas that are not the subject of this proceeding, for which Respondent received a reprimand. As to the comments directed to students, which were determined to be violative of principles of professional conduct and school board policy for failing to protect students or exposing them to excessive embarrassment or disparagement, Respondent was suspended without pay for five days, and transferred from Holly Hill School.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rules 6A-10.081(3)(a) and 6A-10.081(5)(d). It is further recommended that the Education Practices Commission impose a suspension of the Respondent's educator certificate for a period of one year, and a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case. DONE AND ENTERED this 23rd day of January, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 January, 2017.
