The Issue Whether just cause exists to suspend Respondent, a teacher, for ten days without pay for putting hand sanitizer in a student’s mouth.
Findings Of Fact The Parties The Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, the District has the authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes. Respondent began her employment with the District in 2007. In October 2019, she was teaching at PPMS as a science teacher. Prior to the incident involved in this case, Respondent received no discipline from the Board. Respondent is an experienced teacher who has been trained on the proper method of interacting with students, exercising best professional judgment, and following policies, rules, and directives. Respondent received training concerning ethics relative to her position with the District as a teacher. Respondent has been through the orientation process for new employees of the District three times. The Incident Giving Rise to Discipline On October 14, 2019, Respondent was teaching a science class of approximately 30 sixth and seventh grade students. In this class was sixth grade student X.S., who was being verbally disruptive. Although X.S. was not cussing, Respondent told him that he needed to have his “mouth washed out with soap.” Respondent reached behind herself to grab a bottle on her desk which was either hand soap or hand sanitizer. X.S. and Respondent walked towards each other. X.S. challenged Respondent to “Do it!” Respondent raised the bottle to X.S.’s mouth and pumped in a substance from the bottle. X.S. bent over and spit on the floor. Respondent asked X.S. what he was doing, and he stated that he got hand sanitizer in his mouth. As X.S. stood up, X.S. was observed wiping his mouth and Respondent told him not to spit on the floor. X.S. left the classroom to go to the bathroom and rinse his mouth. His fellow students immediately began talking about the incident while Respondent returned to her desk. The Investigation X.S. did not immediately report the incident because he did not want to anger his foster mother. However, on the day after the incident, October 15, 2019, three students approached PPMS Principal Aronson and Officer Michaels and reported that Respondent had squirted hand sanitizer into X.S.’s mouth. Officer Michaels spoke to the students and X.S. individually and asked them to provide written statements regarding what they observed.1 Principal Aronson and Officer Michaels questioned Respondent regarding the incident. When approached by Officer Michaels, Respondent asked, “What is this about?” He responded that, “this is about squirting hand sanitizer into a student’s mouth.” Respondent said, “It wasn’t hand sanitizer. It was soap.” Respondent did not deny squirting something into X.S.’s mouth to either Principal Aronson or Officer Michaels. Principal Aronson asked Respondent to leave campus. He accompanied her to her classroom and observed a bottle of hand sanitizer on her desk. Principal Aronson also contacted Human Resources to report the incident and spoke to Human Resources Manager Jose Fred who handled overseeing the investigation from that point forward. 1 These written statements, Exhibits 11 through 16, were admitted over Respondent’s objection that they contain impermissible hearsay and are unduly prejudicial because these students refused to attend their scheduled depositions or appear for final hearing. However, their general descriptions of the incident were corroborated by the deposition of student J.C., as well as in part by Respondent. As discussed in Florida Administrative Code Rule 28-106.213(3), hearsay evidence may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless the evidence falls within an exception to the hearsay rule as found in sections 90.801-.805, Florida Statutes. On October 15, 2019, Respondent was issued the one-day stay at home letter from Mr. Aronson titled “Assignment to Your Residence with Pay for October 15, 2019.” On October 15, 2019, Respondent was also issued a letter advising her that she was assigned to her residence for October 16 and October 17, 2019. Mr. Fred, under the supervision of Vicki Evans-Paré, Director of Employee and Labor Relations, compiled written statement of six students, took a written statement of Respondent on October 17, 2019, and drafted an Investigative Report dated October 18, 2019, which substantiated violations of applicable rules and Board policies. In her statement to Mr. Perez, Respondent claims it was X.S. who put his hand on hers and pulled the bottle to his own mouth and that she did not squirt anything. However, the remainder of her statement is consistent with the students’ reports of the incident.2 Post-Investigation Due Process On October 30, 2019, Respondent was provided with a Notice of Pre- Determination Meeting, which provided her with the allegations of misconduct. Respondent was provided with a copy of the entire investigative file and time to review it with the representative of her choice. Respondent attended a Pre-Determination Meeting on November 9, 2019, to give her the opportunity to provide any additional information, dispute, and explain or elaborate on any information contained in the Investigative Report. The Employee and Labor Relations (“ELR”) Department enlists the Employee Investigatory Committee (“EIC”) which reviews all of ELR’s case 2 At final hearing, Respondent testified that the bottle was never near the student’s mouth. This is wholly inconsistent with her prior written statement to Mr. Perez, her deposition testimony, and the statements of the students. This conflict negatively impacted Respondent’s credibility. files, inclusive of all documents maintained by ELR, of anything that might lead to suspension or termination, to make a suggestion to the Superintendent, if the allegations are substantiated. Once the EIC decides that the allegations are substantiated and recommends discipline, Ms. Evans-Paré takes the entire employee investigative file, inclusive of the EIC’s recommendations, to the Superintendent who then makes the ultimate recommendation for employee discipline. On November 22, 2019, Respondent was provided with supplemental information to the investigative file and provided an opportunity to respond to the documents by December 6, 2019. On December 9, 2019, Respondent requested that her response be placed in her file. She wrote “in response to the copies of the information from the District that is being used as evidence against me …” after reviewing the case file, complained that only six of 22 students were interviewed or provided statements and it was not an ethical, random sample of the class. Respondent also alleged that the documents had been altered; however, she did not provide any evidence of such during the final hearing or within the response. On December 6, 2019, Respondent again provided a response to the student witness statements to ELR wherein she stated “I have 22 students in my class, only 6 students filled out statements? You have 3 black children submitted in reporting, of which one is not accurate. Yet, they are the minority in this class, of which, 2 out of the 6 statements were from Hispanic students. It is surprising that not a single white student in my class noticed the incident.” On January 24, 2020, Respondent was notified that the Superintendent would recommend her a ten-day suspension without pay to the Board at its February 19, 2020, meeting. On February 19, 2020, the School Board adopted the Superintendent’s recommendations to suspend Respondent without pay for ten days. Respondent’s Post-Suspension Status Respondent’s suspension by the Board was picked up by the Associated Press and reported across social media and traditional media platforms locally and nationwide. Ms. Evans-Paré testified that typically, when a teacher is alleged to have done something inappropriate with students, the District cannot have the teacher in a classroom around students, so the teacher is reassigned to another location. Respondent was reassigned to adult and community education, so she was in a no-student contact position. Respondent was then moved into Human Resources Funding 9920 status due to the press and comments from the parents received by Principal Aronson and her inability to be returned to PPMS. This allowed Principal Aronson to hire another teacher to take her place. Respondent has not been back in the classroom as a teacher for the District since October 15, 2019.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board uphold the ten-day suspension without pay and return Respondent to the classroom. DONE AND ENTERED this 30th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S MARY LI CREASY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2021. V. Danielle Williams, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 867 West Bloomingdale Avenue, Suite 6325 Brandon, Florida 33508 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Donald E. Fennoy, II, Ed.D. Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869
The Issue The issue in the case is whether the Respondent's employment with the Sarasota County School System should be terminated.
Findings Of Fact At all times material to this case, the Respondent George H. Lewis was employed as a teacher by Petitioner Sarasota County School Board. The Petitioner initially hired the Respondent in October of 1987. During his employment with the School Board, the Respondent has at various times worked as a teacher and as a guidance counselor. Although during the hearing, there was testimony of minimal competence by some witnesses, the Respondent's performance evaluations were all within an acceptable range. Leslie Bachtel is employed by the Petitioner as a teacher. During the 1990-1991 school year, Ms. Bachtel worked at the Venice Middle School, where the Respondent was also employed. On one occasion during the 1990-1991 school year, the Respondent became angry and aggressive towards Ms. Bachtel as they passed in a school courtyard. The Respondent walked towards Ms. Bachtel, stating "you're a fucking bitch," and grabbed her arm with sufficient force to leave an impression on the arm. Students were in the courtyard at the time of the aggression. Ms. Bachtel immediately reported the event to the school principal. According to the testimony of Ms. Bachtel, within an hour, the Respondent confronted Ms. Bachtel's daughter, a Venice Middle School student, in a similar manner. During the 1990-1991 school year, the Respondent received a written reprimand for use of profanity in the presence of administrators, teachers, and students. During the 1994-95 school year, Ms. Bachtel was assigned to an alternative school program ("IDEAL") where the Respondent was also employed. Towards the beginning of the school year, the Respondent confronted her in her classroom and stated that he thought he'd "gotten over it but I haven't," that he would "get even" with her, and that he "hated" her. Ms. Bachtel reported the situation to the school principal. Ms. Bachtel is unaware of the reason for the Respondent's behavior towards her. The Respondent began working at the Wilkinson Elementary School during the 1995-1996 school year. Theresa Hand, a teacher of students with varying exceptionalities, is married and has two children. She first met the Respondent during the summer of 1996 when daughters from each family participated in Asolo Theatre ballet classes. The families became friendly. The daughters became, and continue to be, friends. When Ms. Hand began teaching at the Wilkinson Elementary School, the Respondent was employed there as a guidance counselor. The Respondent and Ms. Hand interacted frequently, as he also did with Ms. Hand's teacher's aide. The Respondent became infatuated with Ms. Hand. He told the aide of his feelings. The aide eventually told Ms. Hand of the situation. By that time, even though the Respondent had not directly spoken to her about the infatuation, Ms. Hand was already aware of his feelings. Eventually, the Respondent confessed his feelings to Ms. Hand during a car ride after a "going-away" party for a colleague. Ms. Hand reminded him that she was married, and that "it wouldn't work out." He appeared to accept her statement. Ms. Hand assumed the matter was resolved. Thereafter, the Respondent was transferred to another school. After his transfer, Pat Fink, a teacher at Wilkinson Elementary, ran into the Respondent in a music store. During their conversation, the Respondent told Ms. Fink of his continuing infatuation with Ms. Hand, and admitted he'd discussed his infatuation with Ms. Hand's daughter, who'd been in ballet classes with his own daughter. The next day, Ms. Fink contacted Ms. Hand to advise her of the situation. According to the testimony of Erica Hand, Ms. Hand's daughter, Erica had a new car and went to the school to meet with friends. The Respondent approached her and she offered him a ride in her car. They rode in the car for approximately 15 minutes during which he told her he was "in love" with her mother. She testified she told the Respondent "that was crazy." When she returned home, she told her mother about the Respondent's remarks. She opined that her mother appeared to be aware of the situation. Soon thereafter, Ms. Hand and her husband composed a letter detailing the situation and suggesting that some action was necessary to protect both the Hand family and the Respondent. Mr. Hand signed the letter, dated October 18, 1998, and sent it to school officials. During the 1998-1999 school year, the Respondent taught at Venice High School. Elizabeth Villares was also teaching at Venice High School and was assigned to teach the same classes as those assigned to the Respondent. One Friday, towards the end of October 1998, the Respondent asked to meet with Ms. Villares after school. She agreed to meet with him. During the meeting, he told her he was divorcing his wife and wanted to initiate a relationship with Ms. Villares. He spoke of sexual matters to her in Spanish. He told her he was "passionate" and "virile" and had "a lot to offer." Ms. Villares was very uncomfortable and spoke little during the conversation. Someone eventually entered the room during the conversation to advise her of a phone call. She left to take the call and did not return. The next day, she advised her department chairman of the situation and then made efforts to avoid contact with the Respondent. One of the classes the Respondent was assigned to teach during the fall of 1998 was economics. According to the testimony of students, the Respondent rarely taught economics. Students testified that the Respondent spent much of the class time talking about himself. He gave no tests to the class. He used profanity frequently. The Respondent told the class that he did not "like" them, and that people who were not "liked" in life would "fail." Some students were forced to do "push-ups" as punishment. He refused to permit some students to use the restroom during the 80-minute long class. He criticized students and disparaged their abilities. He used class time to discuss various methods to kill people. He became physically aggressive towards one student, and challenged others. One student testified that the Respondent complained her work was unreadable and would refuse to grade it. She began to type her work, but he still refused to grade it. Other students testified that they got other grades, but did not know how the grades were assigned. The school principal received a steady stream of complaints from students, parents, and other teachers about the Respondent's behavior. On October 6, 1998, the principal met with the Respondent to address numerous concerns regarding the Respondent's behavior. A four-page memorandum dated October 8, 1999, reflects the discussions conducted during the meeting and sets forth the "consensus" plan to address the specific concerns. The consensus plan includes visiting another social studies teacher at another site, sharing lesson plans with administrators, "use other department members to prioritize . . . curriculum," working to "mend . . . fences" with students, and writing discipline referrals for appropriate "behavior consequence." The principal also drafted a "Memorandum of Understanding" dated October 14, 1998, to follow up on the meeting of October 6. The memo identifies further classroom procedures to be followed by the Respondent and states as follows: There will be no profanity in classes or on the campus. The touching or "poking" of students will stop. Shadowboxing will not occur. Unreasonable punishments will not be allowed, i.e., dunce caps, push-ups. Student intimidation must stop, i.e., name calling and ridiculing. On October 13, 1998, after the October 6 conference but before the October 14 memo was drafted, Carl Williams, an aide at Venice High School, was taking the Respondent for a ride around campus in a golf cart. A student, Logan Rodgers, approached the cart and attempted to shake hands or "high five" the Respondent, who was apparently not amused. The Respondent told Mr. Rodgers to "stand at attention." Mr. Rodgers placed his hand on the Respondent's right knee. The Respondent pushed off Mr. Rodger's hand saying "What are you, a fucking faggot? If you touch me again, I'll crush your fucking skull." The student walked away from the situation and reported the incident to the principal. On October 15, 1998, the school principal met with the Respondent to discuss the Logan Rogers incident. The Respondent did not deny that the event had occurred. The Respondent was thereafter relieved of his duties at Venice High School. Teachers are required to maintain grade books. When the Respondent was relieved from teaching at Venice High School, school authorities requested that the Respondent provide his grade book so that students could receive grades for the classes. Although the Respondent provided attendance sheets, he failed to provide a grade book. The lack of a grade book posed a problem for school administrators who had no information by which to assign grades to students who had been taught by the Respondent. Eventually, students received grades based on their performance during the second half of the school year or based on the decision of a "grade challenge" committee process. The Respondent asserts that he left his grade book lying against the doorway to the principal's secretary's office. The assertion is not supported by credible evidence and is rejected. At some point prior to November of 1998, Ms. Fink again ran into the Respondent, this time in a craft supply store. The Respondent explained he'd discovered he had Native American heritage and was buying feathers to create a headdress. He also disclosed that Ms. Hand had filed a complaint against him, and that he was going to sue the School Board. On November 13, 1998, the Respondent arrived at the offices of the School Board, bare-chested, dressed in brown slacks, a beaded vest, numerous necklaces, and an "indian" headband trailing feathers. He walked unchallenged into the office of the startled superintendent. Persons outside the office immediately became concerned about the situation, and began to seek assistance from other School Board administrators. Several School Board employees entered the superintendent's office and, at the superintendent's request, took seats and remained there during the incident. The Respondent's speech during the event was described as rambling. He discussed a variety of topics, including his past experiences, teaching terrorists in Latin America, strip clubs, playing professional football, becoming a filmmaker and receiving his paycheck. He also expressed his concern about his treatment by the school system. He stated that he wanted his contract bought out for the years remaining until he was able to retire. He advised that if the School Board did not respond to his demand, he would go to "the media" with unidentified allegations regarding the school system. Persons in the superintendent's office attempted to end the meeting several times but were unable to stop the Respondent's conversation. Eventually, they prevailed on the Respondent to allow the superintendent to attend another meeting, at which time the Respondent left the office and exited the building. As a result of the incident, the School Board enacted additional security measures to prevent unauthorized entry into the facility. Several days later, the Respondent returned to the School Board offices to retrieve his paycheck. At that time, he met with William Delp, an assistant superintendent, and asked Mr. Delp whether the superintendent had decided to comply with his request to have his contract "bought out." There is no evidence that the School Board agreed to any demand. On November 20, 1998, the Respondent went to Booker High School, again wearing the headdress. He talked to a number of students collected near the school theatre. He described "death moves" he'd learned as a trainer for the Dominican Republic's "special service." He demonstrated some of the moves on the students who were listening to him. He told the assembled students he was working as a "bouncer" at a local bar, and about how he'd broken the gold chain necklace of a customer who spoke back to a security officer at the bar. He also told the students about a recent sexual encounter, stating "I love to fuck; God, I love to fuck." The Respondent does not dispute much of the evidence related to his behavior. According to the testimony of the Respondent, he suffers from bipolar disorder. Other than the testimony of the Respondent, there is no evidence that the Respondent suffers from bipolar disorder. Bipolar disorder can produce a broad range of emotional instability and can result in inappropriate behaviors. The evidence establishes that the behaviors associated with bipolar disorder can be controlled through the continued administration of medication. According to the Respondent's testimony, the Respondent was prescribed such medication in 1997. The Respondent acknowledges that he has been noncompliant with the requirements of his treatment, and that he'd stopped taking the medication. He asserts that the behaviors that form the basis for the proposed termination of employment are the result of his discontinuation of the prescribed medication. There is no credible medical evidence that the specific inappropriate behaviors that form the basis for the proposed termination of the Respondent's employment are directly or indirectly related to bipolar disorder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Sarasota County School Board enter a final order terminating the employment of George H. Lewis. DONE AND ENTERED this 18th day of November, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1999. COPIES FURNISHED: Robert K. Robinson, Esquire Bowman, George, Scheb, Toale & Robinson 22 South Tuttle Avenue, Suite 3 Sarasota, Florida 34237 Charles L. Scalise, Esquire Bogin, Munns & Munns 250 North Orange Avenue, 11th Floor Orlando, Florida 32802 Dr. Thomas H. Gaul, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3331 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issues for determination in this proceeding are whether Respondent should be terminated from his employment with the Broward County School Board and whether Respondent's teaching certificate should be revoked, suspended, or otherwise disciplined.
Findings Of Fact Background Respondent holds Florida Teaching Certificate 595579 in science and elementary education. Respondent's teaching certificate is valid through June 30, 1992. Respondent has filed an application for renewal. Respondent has held a professional service contract with the Broward County School Board (the "School Board") since September 11, 1987. Respondent began teaching in the Broward County school system in 1987. He taught at Seminole Elementary School. His mid-year evaluation indicated he needed some improvement in the preparation of lesson plans. His final evaluation indicated that Respondent had improved his lesson plans and had good control of his class. For the 1988-1989 school year, Respondent was employed as a fourth grade teacher at Banyan Elementary School. His mid-year evaluation indicated a need for improvement in lesson plans. His final evaluation, however, was satisfactory. Respondent continued teaching at Banyan Elementary School until December, 1989. From December, 1989, until he was suspended on January 16, 1992, Respondent taught at Rogers Middle School. Respondent's initial evaluation at Rogers Middle School indicated the need for some improvement, but his final evaluation for the 1989-1990 school year was satisfactory. At the end of the 1989-1990 school year, Mr. Sterling Dupont replaced Mr. Greg Clark as the principal of Rogers Middle School. Ms. Ellen Etling and Mr. Mike Newman, two of the three assistant principals, were also new members of the administration at Rogers Middle School. Mr. Dupont assigned Respondent to a self-contained drop out prevention class during the Summer of 1990. A class is self-contained when its students remain with the same teacher for the entire day. The drop out prevention class required a teacher certified in elementary education so that the students' academic needs could be individualized. Mr. Dupont wanted a male teacher in the class because of the students' inability to perform in a school setting and behavioral problems. Respondent is approximately 5 feet 7 inches tall and weighs approximately 112 pounds. Mr. Dupont did not consider other factors in applicable School Board guidelines for assignment of teachers to a disciplinary drop out prevention class. Mr. Dupont did not consider Respondent's: desire and ability to work with problem students; expertise in behavior management techniques; desire and ability to identify and solve underlying causes of student behavior rather than merely modify behavior; ability and expertise in diagnosing difficulties opposed to motivational achievement; ability to utilize school and community resources to benefit students; and ability to utilize a variety of instructional approaches to meet individual needs and learning styles of students. Mr. Dupont did not ask Respondent if he wanted to teach the drop out prevention class and did not otherwise confer with Respondent prior to making the assignment. Respondent was informed of his assignment in August, 1990, in accordance with customary practice for all class assignments. Criteria for placement in the drop out prevention class included excessive absences, being held back a grade or being older than other students, failing to perform at the appropriate grade level, and behavior difficulties. While a majority of the students were not placed in the class due to disruptive behavior, most of the students demonstrated disruptive behavior. The class was officially categorized as a drop out prevention class but was also a very disruptive class. Many students in the class came from single parent homes, disadvantaged socio-economic environments, and exhibited low self-esteem. One of the objectives of the class was to raise the students' self-esteem and grade level performance. The class was also intended to ensure that the students made a successful transition to the middle school setting. The Broward County school system has eliminated corporal punishment as a form of discipline. Teachers are not to become physically involved with students in order to discipline or control them. The use of force is appropriate only to prevent harm or injury to a teacher or student. Teachers may not use physical means to control students, punish their behavior, or maintain order in the classroom. Respondent violated the policy against corporal punishment. During the 1990-1991 school year and the 1991-1992 school year, Respondent engaged in inappropriate physical contact with students as a means of discipline or control. Respondent used excessive force to control students, yelled at students, faculty, and administrative staff, violated rules of the State Board of Education, and engaged in misconduct. Respondent's misconduct was so serious that it impaired his effectiveness in the school system. See paragraphs 21-44, infra. In most instances, the students involved in the events at issue in this proceeding were engaged in inappropriate behavior which warranted correction, discipline, and punishment. In addition, the relationship between Respondent and the administrative staff at Rogers Middle School was strained by Respondent's dissatisfaction with administrative support and his lack of success in obtaining a transfer. However, the underlying problems between Respondent and the administration and the disruptive behavior of Respondent's students did not justify Respondent's misconduct and violation of applicable rules. The School Board complied with the requirements in Florida Administrative Code Rule 6B-4.008 for fair dismissal procedures. Respondent received an unsatisfactory evaluation for the 1990-1991 school year. On January 9, 1991, Ms. Etling issued an evaluation that Respondent needed improvement in behavior management, lesson design, and oral speech. Ms. Etling advised Respondent verbally and in writing that he would be given the opportunity to improve his performance by observing other teachers and attending workshops. On April 22, 1991, Mr. Dupont issued an evaluation that Respondent needed to improve in behavior management, classroom atmosphere, and lesson design. Mr. Dupont advised Respondent to observe other drop out prevention teachers, attend workshops, and review articles and tapes on positive attitudes. The administration arranged for Respondent to visit drop out prevention classes at other middle schools and offered Respondent the opportunity to attend workshops. Respondent attended some drop out prevention classes at other middle schools. Mr. Dupont made every reasonable effort to assist Respondent in obtaining a transfer to another school, but Respondent was unable to obtain a transfer. The School Board investigated a complaint regarding Respondent's conduct at school. On March 13, 1991, the Professional Standards Committee found probable cause to support the complaint. The Committee recommended that Respondent receive a letter of reprimand, be referred to Professional Practices Services, and be suspended for a period of time. In lieu of suspension, the School Board and Respondent entered into a Memorandum of Understanding. Pursuant to the agreement of the parties, Respondent received a letter of reprimand on May 3, 1991, sanctioning him for verbal abuse and battery against his students. The letter of reprimand was issued by Mr. Ronald Wright, Director of Professional Standards for the School Board. Respondent was referred to Professional Practices Services, required to attend in-service programs, required to implement those programs in his classroom, and required to participate in an employee assistance program. Respondent was assigned to teach seventh grade science for the 1991- 1992 school year. Many of the students in his seventh grade class also demonstrated behavior problems. Some of the students had been in the drop out prevention class during the previous school year. Respondent was placed on administrative leave effective January 17, 1992. He was suspended with pay on March 11, 1992, and suspended without pay on April 7, 1992. Reduced Effectiveness And Rule Violations In December, 1990, Respondent used excessive force to restrain a female student who was involved in a fight with a smaller male student. Quanika Murray was beating Ladarian Griffin with her fist. After Quanika failed to respond to Respondent's verbal commands, Respondent put both of his arms around Quanika in a "bear hug." Quanika hit Respondent in the ribs with her elbow. Respondent threw Quanika to the ground and pinned her there by holding both of her arms behind her back. When an administrator came to the scene in approximately 60 seconds, Respondent released Quanika Murray. She lunged at Ladarian Griffin again, and Respondent threw Quanika against the wall and pinned her there until the administrator took her away. On December 12, 1990, Respondent used excessive physical force to break up a verbal confrontation between two students and precipitated a physical confrontation between one of the students and Respondent. William Boyd and Tanika Boyd were arguing in the hall. Respondent told the students to go to class. William left but Tanika became verbally abusive and confrontational toward Respondent. Respondent pushed Tanika toward her class. Tanika hit Respondent. When another teacher approached, Respondent and Tanika backed away from each other. Tanika backed into the teacher and fell to the ground. The teacher pinned Tanika to the ground by holding both of her arms behind her. Respondent approached the two and inadvertently kicked sand in Tanika's face. On February 25, 1991, Respondent used unnecessary and excessive physical force to control and discipline a student. School policy prohibited students from being in designated areas without a pass. The policy was intended to give teachers time to prepare for class before school started each morning. Respondent was monitoring a gate to one of the designated areas. Quincy Wilkins attempted to enter the designated area without a pass. When Respondent told Quincy not to proceed without a pass, Quincy became loud, verbally abusive, and pushed Respondent. Respondent grabbed Quincy's arm, put it behind the student's back, and pushed Quincy against the wall. The hold was painful, and Quincy broke free. Respondent took the student to the front office, and charged Quincy with attempting to fight Respondent. On March 20, 1991, Respondent was verbally abusive toward a student, used unnecessary physical force to control and discipline the student, and engaged in unprofessional conduct during an IOWA testing procedure in the school cafeteria. Respondent was acting as one of the monitors for the test. He reprimanded a student for failing to follow instructions by yelling at the student, throwing the student's books on the floor, grabbing the student by the arm, and seating the student at a table closer to the front of the room. The incident created a major disturbance and caused some of the students to miss directions for taking the test. On April 15, 1991, Respondent used excessive physical force to control a student who was not threatening another teacher. Alex Hernandez had been involved in an altercation with another student. Another teacher broke up the fight and reprimanded Alex. Alex was a good student, and the teacher felt that a verbal warning was sufficient under the circumstances. While the teacher was speaking with Alex, Respondent approached Alex from behind, grabbed him by the arms, and threw him against the lockers. Respondent led Alex to the front office with both arms behind the student's back. Respondent charged Alex with trying to hit another teacher. The teacher informed the front office at a later time that Alex had not threatened him or tried to hit him. Respondent yelled at students over minuscule matters. On September 6, 1991, Respondent yelled at a student for chewing gum. Respondent's conduct prompted a complaint by the student's parents and required a conference with the parents to resolve a matter that would have been trivial in the absence of Respondent's conduct. On September 13, 1991, Respondent yelled at students over minuscule matters and called them stupid, arrogant, and rude. An administrator was required to intervene in Respondent's class. On September 16, 1991, Respondent denied a female student's request to use the bathroom. About 15 minutes after class started, a student with menstrual problems requested permission to use the bathroom. The student returned to her seat and approximately five minutes later began leaking blood onto her clothing. The student left the room and sought the assistance of an administrator. On September 20, 1991, Respondent engaged in a confrontation with the assistant principal in the presence of approximately 200 students. Respondent's anger, over the behavior of another student, was misdirected at the assistant principal. Respondent screamed and pointed his finger in the assistant principal's face. On September 30, 1991, Respondent used unnecessary and excessive physical force on a student and filed criminal charges against the student. Ladarian Griffin refused to comply with Respondent's request to behave in class. Respondent properly disciplined Ladarian by placing Ladarian in a separate chair at the front of the class. Ladarian persisted in his disruptive behavior. Respondent called the front office to have someone cover Respondent's class while Respondent ushered Ladarian to the front office. No coverage was provided. When the class was over, Respondent let all of his students leave except Ladarian and blocked Ladarian's exit through the classroom door. Ladarian attempted to run through Respondent. Respondent physically subdued Ladarian and took him to the front office. Respondent requested that the principal file charges against Ladarian with the public resource officer. When the principal refused, Respondent filed charges against Ladarian with the Fort Lauderdale Police Department. Respondent later requested that the charges be dropped. On October 4, 1991, the parents of two students telephoned the school administration to complain about Respondent yelling at their children during a class. The yelling interfered with the students' school work. On October 10, 1991, Respondent improperly accused a student of committing a felony against him. When the bell rang to end the sixth hour class, Respondent refused to allow his students to leave until the students returned their books. Respondent stood at the door to the classroom until each student placed a book on his or her desk. When Respondent turned to answer a knock at the door, Anthony Maclemore ran into Respondent with his head, shoved Respondent to the side, and ran out the door. Respondent mistakenly thought the student was Lashaun Johnson. Respondent wrote a referral for Lashaun and asked the principal to have Lashaun arrested. Mr. Dupont refused. Respondent filed a report and a complaint for prosecution against Lashaun with the local police department. Respondent told Lashaun's guardian that the police were going to arrest Lashaun that evening. The following day Lashaun and Lashaun's guardian participated in a conference with Ms. Etling and Respondent. Respondent realized his mistake and apologized. The mistaken identity caused substantial distress to Lashaun and Lashaun's guardian. Anthony Maclemore was suspended for three days. On October 15, 1991, Respondent yelled at Ms. Etling during a discussion on an educational matter. This incident occurred in the presence of numerous students. On November 13, 1991, Respondent issued a semester grade of "F" to 72 of his 160 students. During a conference with the parents of one of the students who received an "F", Respondent engaged in a tirade against the students' behavior and the failure of the administration to assist him in correcting that behavior. During a conference with the parent of another student, Respondent alluded to the student's bad behavior as a basis for the poor grade but was unable to present one disciplinary referral for that student. Between November 14 and November 21, 1991, several students or their parents complained to the administration of Respondent's verbal abuse and mistreatment of students. Respondent repeatedly yelled at students and disparaged them for their lack of academic effort. On November 21, 1991, Respondent took a folder away from Alex Holmes and told Alex he could get the folder back from Ms. Etling at the end of the day. Alex was disrupting the fifth period class by banging the folder on his desk. The folder contained materials Alex needed for another class. At the end of the class, Alex attempted to retrieve the folder himself, and Respondent attempted to prevent Alex from retrieving his folder before the end of the day. Alex hit Respondent. Respondent attempted to restrain Alex by placing his arms around Alex and pulling Alex's shirt over his head. Before Alex was restrained by other students, Alex hit Respondent in the head, forehead, face, and chest. Alex also used a bone from a skeleton that had been knocked over during the fight to hit Respondent on his leg and leave puncture wounds. Respondent filed criminal charges against Alex. Alex was arrested, prosecuted, and sentenced to one day house arrest. Respondent was absent from work until December 20, 1991, due to injuries sustained from the incident with Alex Holmes. From December 20, 1991, through January 13, 1992, Respondent was involved in several confrontations with students and administrative staff in which Respondent yelled at students and staff. On January 16, 1992, Mr. Dupont informed Respondent that Respondent was being placed on administrative leave. Mr. Dupont instructed Respondent to return to his classroom and remove his personal belongings. Respondent was escorted to the classroom by the school's resource officer. Respondent threw his personal belongings on the floor of the classroom. Documents were discarded and tossed about the classroom leaving it in complete disarray. The school resource officer was instructed by Mr. Dupont not to arrest Respondent. A police officer was called in to escort Respondent from the school campus. Respondent used a school cart to transport his personal belongings to his automobile. Respondent pushed the cart over prior to leaving the school campus. Respondent left his classroom in disarray. The classroom was cleaned by the cleaning service that night and used the next day for another class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the School Board enter a Final Order finding Respondent guilty of misconduct in office and terminating Respondent from his employment with the School Board. It is recommended that The Educational Practices Commission enter a Final Order finding Respondent guilty of engaging in conduct which seriously reduced Respondent's effectiveness as an employee of the School Board and otherwise violated applicable rules of the State Board of Education. It is further recommended that the Final Order of the Educational Practices Commission suspend Respondent's teaching certificate for one year from the date Respondent was first suspended without pay and place Respondent on probation for two years after the expiration of his suspension. Respondent's probation should be subject to such terms and conditions as may be determined by the Educational Practices Commission to be reasonable and necessary. DONE AND ENTERED this 9th day of August, 1993, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 9th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2388 and 92-3425 Proposed findings of Petitioner, Virgil L. Morgan. 1.-2. Accepted in substance 4.-5. Accepted in substance 7.-8. Accepted in substance 10.-13. Accepted in substance 18. Accepted in substance 3.,6.9. Rejected as not supported by the weight of evidence 14.-17. Rejected as not supported by the weight of evidence 19.-21. Rejected as not supported by the weight of evidence Proposed findings of Petitioner, Betty Castor. 1.-16. Accepted in substance 17.-21. Rejected as not supported by the weight of evidence Accepted in substance Rejected as not alleged in the administrative complaint 24.-25. Accepted in substance 26.-27. Rejected as not alleged in the administrative complaint Accepted in substance Rejected as not supported by the weight of evidence 30.-32. Rejected as not alleged in the administrative complaint Rejected as not supported by the weight of evidence Rejected as not alleged in the administrative complaint 35.-36. Accepted in substance 37.-40. Rejected as not alleged in the administrative complaint 41.-46. Accepted in substance 47.-50. Accepted in substance 51.-52. Rejected as not supported by the weight of evidence 53.-68. Accepted in substance Respondent's Proposed Findings of Fact Accepted in substance Rejected in part as irrelevant and immaterial 2.-13. Accepted in substance 14. Accepted in part and rejected in part as not supported by the weight of evidence 15.-16. Accepted in substance Accepted in part and rejected in part as not supported by the weight of evidence Accepted in substance Accepted in specifics but rejected as to the generalization for the reasons stated in findings 21-44 Accepted in substance Rejected as contrary to the weight of evidence 22.-25. Accepted in substance 26. Accepted in part and rejected in part as contrary to the weight of evidence 27.-33. Accepted in substance 34. Accepted in part and rejected in part as contrary to the weight of evidence 35.-38. Accepted in substance 39. Rejected as contrary to the weight of evidence 40.-55. Accepted in substance COPIES FURNISHED: Charles T. Whitelock, Esquire 1512 East Broward Boulevard Suite 300 Ft. Lauderdale, Florida 33301 Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sally C. Gertz, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest 4th Street Ft. Lauderdale, Florida 33312
The Issue The issue for consideration in this matter is whether Respondent's certification as a teacher in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner was the official responsible for the certification of teachers and educational professionals in this state. The Respondent was certified as a teacher in Florida by certificate No. 615085, covering the areas of guidance, physical education and health education, and which is valid through June 30, 1993. During the 1990 - 1991 school year, Respondent was employed as a teacher of exceptional education math and social studies at Charles R. Drew Middle School, a school under the administration of the School Board of Dade County. Respondent has taught for between 11 and 12 years and took the course in crisis prevention and intervention offered by the National Crisis Preventon Institute in 1988. In September, October and November, 1991, Respondent was teacing exceptional math and social science to classes of between 4 and 7 students, all of whom were classified as either educable mentally handicapped, learning disabled, or emotionally handicapped. He had neither teaching aides nor assistants. In order to keep the class size small, the instructors in these classes were required to forego their planning period and spend that period in the classroom setting. On or about September 26, 1991, between the 4th and 5th class periods, Respondent was standing out in the hallway of the school, positioned in such a way that he could monitor the students' behavior in the hall as well as in his classroom. He heard a confrontation arise between K.G., a minor male student, and M.B., a minor female student. He went into the room and saw the two students screaming at and hitting each other. Though he told them to quiet down, they did not do so and he stepped in and broke up the fight, sending each student to his/her respective seat. Since their seats were near to each other in the back of the room, he removed K.G. to the front to the room to put as much distance between them as was possible. The two students still continued their verbal assaults on each other regardless of his efforts so he again stepped in and settled them down. Having determined that the argument arose out of M.B.'s accidentally stepping on K.G.'s sore foot, he advised K.G. that hitting was no basis for settling any dispute. K.G. allegedly responded that he hit anyone he wanted at any time. As Respondent subsequently crossed the room, he accidentally bumped K.G's foot which, he claims, K.G. shoved out in front of him. When he did, K.G. came out of his chair, struck Respondent twice in the stomach, and kicked him in the shin. K.G., who was not present to testify, claimed that Respondent intentionally stepped on his foot. This evidence is hearsay and no other direct evidence on the matter was offered. It is found, therefore, that if Respondent did come in contact with K.G.'s foot, the contact was accidental and not intentional. Regardless of the prompting, there is little question that K.G. struck the Respondent in the stomach and when he did, Respondent, applying the techniques for crisis prevention and intervention he had been taught, took K.G. to the floor with his arm behind him and sent another student for security. As a result of this altercation, K.G. was not injured at all but Respondent had to see a doctor for the blows to the stomach and the kick to the shins. He was given two days off from work to recuperate and offered more if he needed it. From that point on, K.G., who within two weeks of the incident, handed Respondent a letter of apology, was one of the best behaved students in the class. In addition, he was one of the two students who gave Respondent a Christmas present that year. He was subsequently removed from Respondent's class and from the school, but that departure was voluntary and had nothing to do with the altercation described above. When the matter was reported to Ms. Annunziata, the school board's Director of Professional Standards, she decided that an administrative review of the incident was sufficient action. The memorandum of understanding between Respondent and the school principal, Ms. Grimsley, regarding the incident, referred him to procedures for handling student discipline and commented on the need to use sound judgement and call school security before a situation escalated into a physical confrontation between the teacher and a student. Less than a month later, on October 15, 1991, Respondent was putting some information on the blackboard during class when another student, A.C. came up and stood beside him close enough to interfere with his work. He moved to another section of the board, and noting that A.C. had a toothpick in his mouth, directed him to resume his seat and remove the toothpick. A.C. did as he was told, but immediately came back up and stood beside the Respondent with another toothpick in his mouth. Again Respondent directed the student to sit down and take the toothpick out of his mouth, and the student did as told. However, he shortly again came up to stand near Respondent at the board with a toothpick in his mouth, so close as to cause concern in Respondent for the safety of his eye. Having already told the student to sit down and remove the toothpick twice without lasting success, Respondent reached over and took the tooth pick out of the student's mouth. A.C. claims that in doing so, Respondent grabbed his lips, but this is doubtful. The other student called to testify about this incident was not clear on details and it is found that while Respondent removed the toothpick from A.C.'s mouth, he did not grab the student's lips. In any case, however, the student reacted violently. Respondent again told the student to sit down but he refused and shouted he was leaving. Respondent asked another student to go for security since there was neither an intercom system nor a workable phone in the room, but no one did. A.C. started out of the room and on his way, veered over to where the Respondent stood and struck him in the rib cage with his elbow. At this Respondent, again using the CPI techniques he had been taught, took A.C. down to the floor and, holding the student's arms behind his back, opened the door and called for help. A teacher from another classroom came into the room and took A.C. to the school office. Shortly thereafter, Ms. Grimsley, the Principal, heard a teacher trying to calm A.C. down after what she was told was an incident with the Respondent. In her discussion with the student he told her that Respondent had hit him in the mouth, thrown him to the floor, and pulled his arm up behind his back. An investigation into this incident was reportedly conducted by the school administration. Thereafter, a conference was held in the Dade County Schools' Office of Professional Standards, attended by Respondent; Ms. Grimsley; Ms. Menendez, Coordinating Principal; the Union representative; and Ms. Annunziata, Director of the Office of Professional Standards, to discuss, inter alia, this alleged battery and Board policies and rules regarding discipline. A copy of the report was given the Respondent and he was afforded an opportunity to respond to the allegations. He denied using intentional restraint on A.C., and when asked why he had not called security, pointed out that all prior efforts to seek security assistance were met with no response. Thereafter, on February 26, 1991, he was administered a letter of reprimand by Ms. Grimsley. This reprimand indicated he had violated the provisions of the teacher contract as well as the School Board Rules and that he was being rated as unacceptable in Category VII, Professional Responsibilities, of the TADS. Neither the memo of the conference nor the letter of reprimand reflect any specific findings of fact regarding the incident. Only the conclusion that Respondent inappropriately disciplined a student is listed as a reason for the reprimand. Respondent accepted the Reprimand on March 1, 1991 without exception. A.C.'s disciplinary record for the months of the pertinent school year prior to the incident in question, maintained by school authorities, reflects that on September 5, 1990, he was the subject of a parent conference because of his general disruptive conduct and his defiance of school authority. On September 19, 1990 he was found guilty of fighting; on October 11, 1990, reprimanded for general disruptive conduct; on October 23, 1990, reprimanded for defiance of school authority; and on October 30, 1990, suspended for the use of provocative language. This is not the picture of a young man who would reasonably feel mistreated by a teacher who stood up to him. Respondent continuously maintains he did not initiate any physical contact with the student nor did he intend to use physical restraint. He made that clear at the conference in early February. Yet he was apparently not believed though the student's disciplinary record would tend to support Respondent's recollection of the incident. Dade County Schools prohibit the use of corporal punishment and allows restraint only for the protection of students or teachers. The application of these guidelines must be effected with common sense and a recognition of the empirics of the situation, however. Under the circumstances Respondent's actions do not appear inappropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Administrative Complaint filed in this matter be dismissed. RECOMMENDED in Tallahassee, Florida this 5th day of June, 1992. ARNOLD H. POLLOCK 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 5th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0176 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. 6. First two sentences accepted and incorporated herein. Third sentence rejected as not supported by competent evidence of record. 7. Rejected as argument and contra to the weight of the evidence. 8. Accepted and incorporated herein. Rejected as not supported by competent evidence. In an interview with Mr. Kerr after this incident, as per her testimony at hearing, Ms. Grimsley related that he indicated he asked K.G. what he would do if he, Kerr, stepped on K.G.'s foot. When she indicated she thought to challenge a student like that was an error in judgement, he agreed, but at no time did he indicate he had stepped on K.G.'s foot. & 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. & 15. Accepted and incorporated herein except that the incident was repeated three times before Mr. Kerr removed the toothpick from A.C.'s mouth. Accepted and incorporated herein with the modification that A.C. was standing very close to Respondent at the time the toothpick was removed and was not in his seat. & 18. Accepted in part. The better evidence indicates that A.C. left the room only after assaulting Mr. Kerr by hitting him in the stomach. Accepted and incorporated herein. Accepted and incorporated herein. Accepted in part. An inquiry was made, but only the ultimate conclusion was presented to the Hearing Officer. Neither the report of investigation nor specific findings of fact were presented. Accepted and incorporated herein. Accepted as Ms. Annunziata's opinion. The policy was not introduced into evidence. All cases of physical contact might well not constitute a violation. Accepted. This was not found to have happened, however. For the Respondent: 1. - 4. Accepted and incorporated herein. & 6. Accepted and incorporated herein. Accepted but what was in the Respondent's mind - his purpose - is unknown. Accepted and incorporated herein. Accepted and incorporated herein. - 13. Accepted and incorporated herein. & 15. Accepted. Accepted and incorporated herein. Accepted. A.C.'s partial disciplinary record has been incorporated herein. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 William Du Fresne, Esquire 2929 SW Third Avenue, Suite One Miami, Florida 33129 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Jerry Moore Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 George A. Bowen, Acting Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in misconduct by making inappropriate comments to a student as alleged in the Administrative Complaint and, if so, what disciplinary action should be imposed on his Florida Educator’s Certificate.
Findings Of Fact Respondent holds Florida Educator’s Certificate 716042 covering the areas of emotionally handicapped, mathematics, general science, and psychology, which is valid through June 30, 2005. At all times pertinent hereto, Respondent was employed as a mathematics teacher at Young Middle Magnet School in the Hillsborough County School District (School District). Young Middle Magnet School is a school specializing in the areas of math, science, and technology. During his career, Respondent has been employed by the Pasco County and Hillsborough County School Boards. He has been teaching for 11 years. During his career in Hillsborough County, he has taught mathematics. Respondent explains that he teaches because he loves teaching. The testimony of his co-workers and administrators confirm that Respondent loves teaching and is an excellent teacher. During the 2000-2001 school year, A.S. was a seventh grade student at Young Middle Magnet School in Tampa, Florida. He was a good student who earned A’s and B’s. At that time, it was fashionable for music performers and other young celebrities to grab at their crotch areas. Many of the students at Young Middle Magnet School, including A.S., emulated that behavior. In or about September or October of 2000, on one particular occasion, while standing in line in the lunchroom at school, A.S. placed his hand on his groin area. Respondent saw A.S. touch himself in this manner, pulled him out of the line, and asked him if he knew what he had done. When A.S. said no, Respondent told him "that was picking your dick" or “you picked your dick” or some similar comment. A day or two after the comment in the lunch line, there was an "incentive" party being given for all students who had straight A's in conduct. A.S. had received one B in conduct, apparently for talking too much, and, therefore, was not going to the party. Instead A.S. was assigned to a class and/or study hall that was being supervised by Respondent. During this class period, Respondent assigned A.S. a variety of projects, all of which A.S. completed without difficulty. At some point during the class session, Respondent asked A.S. to come into the hall so they could talk. The purpose of the conversation was to discuss why A.S. was in the class and not in the party, given that A.S. was the type of student who should have been at the party. Respondent and A.S. talked about homework and the need for A.S. to be thorough in his work for his regular math teacher. At some point, sexual topics came up during the conversation. A.S. maintains that he did not instigate any conversations about sexual topics and, thus, asserts that Respondent initiated the conversation. Respondent does not recall how the topic arose. The reasonable conclusion is that Respondent introduced the topic dealing with sexual issues. The testimony of A.S. is found to be credible. Respondent asked A.S. if he knew about safe sex. A.S. responded that his mother told him abstinence was the only safe sex. Respondent said that there was another way, to which A.S. asked, "Are you talking about whacking off?" Respondent told A.S. that the correct terminology was "masturbation." A.S. contends that Respondent then stated that as a single man he had to do this. Respondent adamantly denies making this statement. Respondent and A.S. then talked about sports. In fact, most of their conversation centered around sports. During this conversation, Respondent became aware that both he and A.S. enjoyed tennis. Respondent asked A.S. if he wanted to play tennis. A.S. indicated that he did. Respondent told A.S. that he would contact his parents to arrange a tennis game. During the following weekend, Respondent called the home of A.S. and spoke with A.S.’s mother about the tennis game. A.S.’s mother said she would check with A.S. and her husband and would get back in touch with him. Respondent called again the next day and was told by A.S.'s mother that, subject to certain conditions, A.S. could play tennis with Respondent. However, the tennis game never materialized. A.S. felt uncomfortable about the conversation involving sexual topics which he had with Respondent. A.S. was not used to having such conversations with a teacher, and after the conversation, for a brief time, he was worried that he might become a homosexual. Initially, A.S. only told his older sister about the conversation, and his sister advised his mother of what A.S. had shared with her. Subsequently, A.S.'s mother talked to A.S. about the conversation that he and Respondent had at school. On the Monday following the weekend that Respondent called A.S.'s mother about A.S. playing tennis and after A.S. had told his mother about his conversation with Respondent, A.S.'s parents complained to School District officials about the incident. Based on the complaint from A.S.’s parents, School District investigators spoke with Respondent about the conversation with A.S. The School District had concerns about the nature of the conversation and sought medical opinions about Respondent’s fitness as a teacher. Respondent saw two medical professionals. He saw Sidney J. Merin, Ph.D., a clinical psychologist. Dr. Merin conducted interviews with Respondent and performed psychological testing. Dr. Merin concluded, in part, that the conversation with A.S. appeared to be a function of this man’s natural gregariousness without any malevolent intent. Dr. Merin’s overall impression of Respondent was as follows: On the basis of the above examinations and the observations made, it is this examiner's opinion Mr. Setter is free of any debilitating psychological symptoms. Of particular note, and the concerns that would be addressed, there are no indications of pedophilia or sexual perversions. Rather, Mr. Setter is a bright man, gregarious, friendly, trusting, and even naive. The latter is in particular reference to his reported comments to Andrew and the plans that the two play tennis. Such behavior would be in keeping with teaching principles as related to sexual behavior, and also in keeping with his high degree of sociability. Given those characteristics in today's social climate wherein parents are understandably alert to adult and even teacher behavior they may question, it would not be out of keeping for responsible parents to question the behavior of Mr. Setter in relation to their son. Mr. Setter's teaching experiences and his sociability, need for admiration, and the ease with which he can socialize can obscure for him interpretations made by others of his behavior. That is, what he may consider to be appropriate, not offensive, educational, and innocent may not be interpreted in a like manner by others. Mr. Setter knows his intent as he relates his comments, but his thinking is often so directed toward his own interests, he fails to recognize that others may perceive his comments and his behavior with great suspicion. On the basis of what Mr. Setter related to this examiner, this entire matter may come down to the normal and understandable concerns by parents who are alert to behavior they may view as being questionable and out of place. From there, the authorities would understandably be alerted, with a subsequent investigation that, according to this examiner's understanding of Mr. Setter's comments, brought out little, if anything, that would be pointedly incriminating or descriptive of a sexually deviant personality. It would be well if Mr. Setter would be educated in the direction of understanding how sensitive healthy parents can be concerning their offspring, and to limit his comments, which he may view as being material for a casual conversation and thus innocent, as carrying ominous interpretations for others. Unless other examiners or investigators have contrary, substantive, relevant, and proven information contrary to this examiner's psychological findings, Mr. Setter would do well to return to his work, having been significantly educated now in the potency of his comments, even though they may be expressed innocently and naively. Respondent also saw James R. Edgar, M.D., P.A., who conducted similar psychological testing and interviews, and concluded in relevant part, “. . . currently I believe Mr. Setter is able to make sound personal and professional judgments and to safely instruct minor children.” Following these reports, Respondent was transferred to another school and has maintained his career in Hillsborough County. However, for the above-described incident, the School District also issued a reprimand to Respondent. The evidence establishes that Respondent had a conversation with A.S. that briefly centered on sexual topics that were inappropriate under the circumstances. Respondent's discussion of these topics with A.S., a seventh grade student, were not only inappropriate, but exposed A.S. to conditions harmful to his mental health, and exposed him to unnecessary embarrassment or disparagement. After the conversation he had with Respondent, A.S. did not want to see Respondent and, in December 2000, A.S. transferred to a different school. Also, after the conversation with Respondent, A.S. had to attend at least three counseling sessions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education issue a final order finding that Respondent violated Section 231.2615(1)(i), Florida Statutes (2000), and Rule 6B-1.006(3)(a) and (e), Florida Administrative Code, but did not violate Section 231.2615(1)(c), Florida Statutes (2000). It is further RECOMMENDED that a final order be entered issuing a reprimand to Respondent, with a copy to be placed in his certification file. DONE AND ENTERED this 2nd day of July, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 July, 2003. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Bruce Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated Pinellas County School Board policies related to sexual harassment, inappropriate sexual conduct with students, and inappropriate relationships with students, and if so, whether the violations constitute just cause for her dismissal as a teacher.
Findings Of Fact Respondent, Dorothy Simon (Respondent), has been employed as a teacher by the Pinellas County School Board (School Board) since 1980. Her entire teaching career in the Pinellas County School District has been spent at the Pinellas Technical Education Center (PTEC). Pursuant to her employment, Respondent was issued a professional services contract. During the 1995-96 school year, Respondent taught an electronics technology course at PTEC in which approximately twenty-six (26) to thirty (30) students were enrolled. The course lasted one year, and upon completion of the course work, the students received a certificate. Except for one seventeen year old who was enrolled in the course, all of the students in Respondent's class were between the ages of twenty (20) and forty-eight (48) years old. On or about March 1996, a male student named Thomas Mitchell, who was approximately forty (40) years of age, enrolled in the electronics technology course taught by Respondent. Mitchell, who was not married, held himself out as an ordained minister and told Respondent that he wanted to be called "Reverend Mitchell". Consequently, Respondent as well as students in the class referred to and addressed Thomas Mitchell as Reverend Mitchell. On or about July 15, 1996, Mr. Mitchell gave the Respondent a letter in which Mr. Mitchell expressed a physical and emotional attraction to her and discussed starting a relationship with the Respondent. Prior to July 19, 1996, while on school premises, Respondent approached Mr. Mitchell and asked him if he would accompany her and her thirteen year old daughter to the Summer Olympics in Atlanta, Georgia, and act as their bodyguard during their stay. On or about July 19, 20 and 21, 1996, Mr. Mitchell accompanied Respondent and her daughter to the Summer Olympics in Atlanta. Mr. Mitchell drove the Respondent's car to Atlanta. While in Atlanta, Mr. Mitchell stayed with Respondent and her daughter in a hotel room which Respondent had reserved and paid for a year in advance. Respondent paid for Mr. Mitchell's meals and gave him $50.00 spending money. Mitchell later return the $50.00 to Respondent. After class, on or about July 22, 1996, Respondent drove several students to a nearby bus stop and Mr. Mitchell to Workforce, a center near PTEC where he tutored children. While Respondent was driving Mr. Mitchell to Workforce, she asked him if he would house-sit for her while she and her daughter were on vacation for two weeks. The Respondent offered to pay Mr. Mitchell $100.00 each week, and in return he was to feed her pets, clean her pool and live in her house while she was vacationing. Mr. Mitchell accepted the Respondent's offer. After class, on July 25, 1996, the last day of school before the summer break, Respondent drove several students to the bus stop and gave Mr. Mitchell a ride to his mother's apartment where he lived. Both the bus stop and Mr. Mitchell's mother's apartment were in the vicinity of PTEC. Respondent had given Mitchell a ride home on one other occasion and often gave other students rides to various places when they so requested. Shortly after Respondent dropped Mr. Mitchell off at his mother's apartment, while driving home, Respondent was involved in an automobile accident in which Respondent's vehicle struck a teen-age girl. After police and paramedics arrived at the scene of the accident, Respondent remained on the scene. However, about one hour after their arrival, the police who were investigating the accident advised Respondent to go home. Respondent was quite shaken, and did not feel that she was in any condition to drive herself home. Rather than driving herself home, Respondent went to Mr. Mitchell's residence, which was nearby, and asked him to drive her home. Mr. Mitchell complied with Respondent's request. On the way to Respondent's house, Mitchell and Respondent made two stops. The first stop was at a bank where the Respondent made a cash withdrawal for the $200.00 that she was going to give Mr. Mitchell for house-sitting. The second stop was at a liquor store where Mr. Mitchell, at the Respondent's request, went inside and purchased a bottle of vodka. Mr. Mitchell then drove Respondent home and when they arrived, Respondent had one drink of orange juice and vodka. Respondent then went into her swimming pool to calm herself and was shortly thereafter joined by Mr. Mitchell. While both were in the pool, Respondent asked Mr. Mitchell to hug her because she wanted to be comforted. Mr. Mitchell then hugged Respondent and the two engaged in sexual intercourse. On or about July 27, 1996, Respondent and her daughter drove to Mr. Mitchell's residence and picked him up. Mr. Mitchell accompanied Respondent and her daughter to a swim meet in which the daughter was participating. After the swim meet, Mr. Mitchell drove the Respondent and her daughter to the airport for their departure on a two-week vacation. Mr. Mitchell returned to Respondent's home and house- sat for Respondent for two weeks while she was away on vacation, pursuant to their previously made agreement. As promised, Respondent paid Mr. Mitchell $100.00 per week for house-sitting. While on vacation, Respondent received one phone call from Mr. Mitchell in which he requested an additional $100.00. Respondent wired Mr. Mitchell the $100.00. When Respondent returned from vacation, she found that Mr. Mitchell had trashed and vandalized her house. She later determined that Mitchell had run up an exorbitant phone bill and had stolen approximately $2,300 from her by making unauthorized cash withdrawals on a credit card that had been mailed to her home while she was away. When school began at PTEC in August 1996, Mr. Mitchell was still enrolled as a student in Respondent's electronics technology course. At that time Mr. Mitchell had approximately two weeks of course work remaining to be completed in order to receive a certificate of completion. Upon returning to PTEC after the summer break, Respondent went to see Dr. Warren Laux, Director at PTEC, concerning Mr. Mitchell. Respondent was afraid of Mr. Mitchell, and requested that he be removed from her class because she did not want to come in contact with him. Respondent explained that Mr. Mitchell house-sat for her during a two-week vacation and left the house a mess, stole money from her and ran up an exorbitant phone bill during his stay. Because she had notified police of these incidents involving Mr. Mitchell, the Respondent told Dr. Laux that the situation created a conflict for her if Mr. Mitchell remained in her class. During their discussion, Dr. Laux asked Respondent if there had been any sexual relationship between herself and Mr. Mitchell. The Respondent stated that she had sex with Mr. Mitchell on one occasion. However, Respondent did not give details of the time, place, or circumstances surrounding that encounter. Dr. Laux explained to Respondent that for the moment it appeared that Mr. Mitchell had done nothing which violated the Student Code of Conduct and, accordingly, there was no valid reason to remove him from her class. During August 1996, Respondent told some students in her class that the person who had house-sat for her when she was away on vacation had trashed her house. However, Respondent did not identify Mr. Mitchell as that person. During August 1996, while in her classroom, Respondent told Mr. Mitchell that she would rather scratch his eyes out than have him in her class. At the time this comment was made by Respondent, there were students in the classroom, but on the other side of the room. Respondent's comments to Mr. Mitchell were not made loudly enough for other students to hear. The School Board's Office of Professional Standards conducted an investigation regarding the allegations that the Respondent had been involved with a student. As a part of this investigation, Respondent was interviewed on three occasions: August 28, 1996; September 3, 1996; and mid-September 1996. During each interview, Respondent admitted that on one occasion she had engaged in sexual intercourse with one of her students, Thomas Mitchell. Respondent's conduct impaired her effectiveness as a teacher. Respondent failed to maintain a professional relationship with her student Thomas Mitchell and used her position to enter into a personal relationship with him. Once that relationship deteriorated, as admitted by Respondent, it was impossible for her to work with that student, and her effectiveness was significantly impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be dismissed from her position as a teacher with the Pinellas County School Board.DONE and ENTERED this 4th day of April, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1997. COPIES FURNISHED: Keith B. Martin Assistant School Board Attorney Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Tampa, Florida 33675-0638 J. Howard Hinesley, Ed.D. Superintendent Pinellas County School Board 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Ms. Dorothy Simon 6315 Eight Avenue North St. Petersburg, Florida 33710
The Issue Whether Respondent's educator's certification should be sanctioned for alleged inappropriate conduct with K.M., a female student, from December 1999 through February 2000 in violation of Section 231.2615, Florida Statutes, and Rule 6B-1.006(3)(a), (e), (h), and (5)(a), Florida Administrative Code.
Findings Of Fact Respondent, Ginger Dudley, holds Florida Educator Certificate 726210, which was valid through June 2002. Respondent was employed as a mathematics teacher and athletic coach at Frostproof Middle/Senior High School in the Polk County School District during the 1999/2000 school year. Respondent taught mathematics on the middle school campus of Frostproof. Respondent enjoyed a good reputation at Frostproof of being a good teacher, a compassionate and caring person who related well with students and teachers alike. K.M. was a senior student at Frostproof Middle/Senior High School during the 1999/2000 school year and graduated at the end of the year. K.M. turned 18 years of age on January 5, 2000. As a senior at Frostproof during the 1999/2000 school year, K.M. was on the high school campus. K.M enjoyed a good record and reputation as a pupil and athlete of the school. K.M.'s grades were good, and she was not a disciplinary problem. At the times material hereto, K.M. was not in any of Respondent's classes, but had contact with Respondent in regard to athletic, tutoring, and personal matters. The community of Frostproof is a small, closely-knit, rural and somewhat isolated community in Polk County, Florida. Frequently, teachers go out of their way to help the students. A teacher may even be something like a substitute parent. Frostproof Middle/Senior High School (Frostproof) consists of two campuses with one administration. The two campuses share the library, lunchroom, and Physical Education area. There are strict rules at Frostproof regarding the co- mingling of high school and middle school students. Middle school students are not allowed in the high school area unless they either have a pass to be on the high school campus or are designated to be at the high school during that period. The same rules apply to high school students; unless the high school students have a class on the middle school campus or are doing an "executive internship," they are not permitted on the middle school campus. An executive internship is treated as a class at Frostproof. During an executive internship, a student shadows a teacher as an assignment, for one period during the day. In the event that a teacher observes a high school student on the middle school campus without approval, and who is not doing an executive internship, that teacher is expected to immediately notify the administration. This can be accomplished in two ways: (1) the teacher can write the student up on a discipline referral; or (2) the teacher can press the intercom button that is located in the classroom, which is connected to the front office. K.M. first met Respondent while helping out with the Frostproof girls volleyball team, which Respondent coached. After the initial meeting, K.M. began spending time during her lunch period in Respondent's classroom, grading papers and using the computer. Respondent's Inappropriate Conduct with K.M. K.M. and Respondent developed a friendship relationship during the 1999/2000 school year. In December 1999, a couple of months after K.M. first began spending time in Respondent's classroom, their relationship developed beyond mere friendship, and their meetings became more secretive. Despite strict rules at Frostproof that prohibited high school students from being on the middle school campus unless they had permission and/or were doing an executive internship, Respondent allowed K.M. to spend an exorbitant amount of time in her class room on the middle school campus. K.M. was not doing an executive internship with Respondent. Respondent never notified Dean Carter that K.M. was in an unauthorized area. Respondent did not notify anyone in the administration that K.M. was in an unauthorized area. In fact, the administration became aware that K.M. was in an unauthorized area only after Respondent's roommate, Michelle Davis, notified Dean Carter that K.M. was in Respondent's classroom, which was in an unauthorized area for a high school student. After receiving Davis' complaint, Dean Carter spoke with Respondent and warned her that Respondent should not allow K.M. in an unauthorized area. Respondent continued to allow K.M. in her middle school classroom. In addition, Respondent had one of her sixth grade middle school students, K.S., take personal notes from Respondent to K.M. on the high school campus. Most of them were stapled together prior to giving them to K.S. Although, K.S. did read one note that was not stapled, which read: "Meet me . . . by the buses," and had a time for the meeting. It is improper for a teacher to utilize a student in her class to deliver notes to another student for personal reasons. Respondent's Contact with K.M. after School Hours Not only did Respondent and K.M. spend an exorbitant amount of time together at school, but this close relationship also extended beyond school hours. In fact, Respondent repeatedly met with K.M. outside of school hours, for non- academic reasons: Respondent visited K.M. at her sister's, E.M.H., residence on more than one occasion, where they watched television and left to take drives together. Respondent picked K.M. up at a Taco Bell in Lakeland, Florida, and took K.M. to Respondent's apartment. K.M. spent the night at Respondent's home and returned the following morning around six or seven in the morning. Respondent took K.M. to her home on two separate occasions. Respondent and K.M. were together late at night, at 11:05 p.m., on February 18, 2000 when Respondent received a speeding ticket. In an attempt to hide their relationship from Respondent's roommate, Davis, Respondent gave K.M. the ticket and a check to pay the ticket. Respondent did not gain parental approval, or approval from any other family member or guardian, and/or any school official prior to visiting K.M. at her sister's home, driving in vehicles alone with K.M., and/or taking K.M. away from her home. When K.M. spent the night at Respondent's home, K.M.'s parent or guardian had never given permission to Respondent, nor was Respondent's roommate present. It is inappropriate for a teacher to let a student spend the night at their house on a one-on-one basis. Telephone Calls Respondent's frequent and lengthy telephone calls with were inappropriate: Respondent admitted that she had called K.M. on her cellular telephone ("cell phone") approximately 79 times from December 15, 1999, until February 2000. Respondent called K.M. on February 4, 2000, and talked to K.M. on her cell phone for 72 minutes. On February 21, 2000, Respondent also spoke to K.M. on seven separate occasions in one day within a two and one-half- hour time period. Respondent called K.M. on January 29, 2000, at 4:31 a.m. Respondent called K.M. at her mother's house. Respondent called K.M. at Sheila Farrow's house. Respondent called K.M. at the Hoxie's house. Even though Respondent testified that she called K.M. numerous times because she was concerned K.M. was going to fail English, and refused to attend class, there has been no evidence that K.M. was failing a class or refusing to attend her classes. Calling a student at 3:30 or 4:30 in the morning was highly inappropriate. Respondent's Statements Throughout the course of the investigation, into this matter, Respondent made the following statements: Interview with Principal Lewis and Vice Principal Bush: During her first interview with Principal David Lewis and Vice Principal Bush, Respondent indicated she had only had contact with K.M. outside of school on two occasions, one involved a ballgame and the other involved car trouble. This was not a truthful statement by Respondent. March 7, 2000: Mr. McDonald, an investigator for the Department of Education authorized to administer oaths, and Principal Lewis placed Respondent under oath and conducted an investigative interview with Respondent. However, despite being placed under oath, Respondent was not truthful with Mr. McDonald and Principal Lewis. In fact, during the investigative interview, Dale McDonald had to remind Respondent that she was under oath. While under oath, Respondent never admitted to Mr. McDonald and Principal Lewis that K.M. had spent the entire night at Respondent's house. November 8, 2002: During the final hearing, Respondent finally admitted she did not tell Principal Lewis about K.M. spending the night at her house. Moreover, Respondent also admitted that during the course of her interview with McDonald, she denied that K.M. had ever been to Respondent's home. During her testimony at the final hearing, Respondent also admitted that even after McDonald reminded her that she was under oath, she still denied that K.M. had spent the night at her home. During the final hearing, Respondent also added new information that she had not previously disclosed during her interviews with Principal Lewis, Ms. Bush, and Mr. McDonald. Specifically, at the final hearing, Respondent admitted that she had contact with K.M. outside of school hours and called K.M. late at night/early in the morning, talking for extended periods of time. She stated that she had contact and made the calls only because she was concerned that K.M. was being mentally or physically abused. Respondent admitted that she knew that as a teacher she was required by Florida law to report any suspected child abuse. Respondent also admitted that she had actually called in a child abuse report prior to the 1999/2000 school year in reference to another child, but in this case, despite fearing that K.M. was allegedly being both physically and emotionally abused, she did not call the abuse hotline. Frostproof's protocol for reporting abuse is that teachers are asked to make reports in an administrator's or guidance counselor's office to ensure privacy when making the report. Further, teachers are to notify administration of any reports so they can keep a record. Teachers at Frostproof are not only advised of their mandatory obligation to report suspected abuse each year during the preplanning time but there are also posters posted in common areas like the faculty mail room. Respondent's Alleged Sexual Contact with K.M. There were also a number of alleged intimate sexual encounters between Respondent and K.M. during the period of December 1999 and February 2000. The testimony of K.M. and other supporting evidence is not clear and convincing so as to find Respondent guilty of misconduct on this count. The allegations of sexual misconduct cannot stand up to the clear and convincing evidence test because K.M. was characterized as not always being honest and truthful. K.M. repeatedly and materially contradicted herself in statements to friends, officials, and in prior proceedings. She even initially denied, under oath, any impropriety. K.M.'s allegations were not corroborated in regard to significant or material events. The accusations are essentially based on K.M.'s credibility. Respondent has denied the accusations and is sufficiently credible. Although Respondent was not entirely forthcoming in her initial interview as to the full extent of her contact with K.M., by the end of the interview, she made corrections, and clear and convincing evidence is lacking that she was, finally, dishonest or less than truthful.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Section 231.2615(1)(f) and (i), Florida Statutes, and Rule 6B-1.006(3)(a), (e), and (5)(a), Florida Administrative Code, but did not violate Section 231.2615(1)(c), Florida Statutes or Rule 6B-1.006(3), Florida Administrative Code. It is further RECOMMENDED that a final order be issued suspending Respondent's teaching certificate for one year, a $1,000 fine for the above violations, and that the suspension be followed by a two-year period of probation subject to such conditions as the Commission may specify. DONE AND ENTERED this 28th day of February, 2003, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 28th day of February, 2003. COPIES FURNISHED: Kelly B. Holbrook, Esquire Broad and Cassel 100 North Tampa Street Suite 3500 Tampa, Florida 33602 John Liguori, Esquire 345 West Davidson Street Suite 201 Bartow, Florida 33830 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Mary Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400
Findings Of Fact Respondent holds Florida teaching certificate 310395 covering the areas of biology and science. During the 1985-1986 school year, he taught ecology and science courses at Winter Park High School in the Orange County School District until he was relieved from duty on March 13, 1986, as a result of an investigation into the incidents and behavior described below. During the school day, Respondent repeatedly harassed the female students with sexual remarks, attempts at sexual humor, and requests for sexual favors and intimacies. The sexual harassment so permeated the classroom that Respondent was completely unable to discharge his professional teaching responsibilities. Faye Zentner was a senior at Winter Park High School during the 1985- 1986 school year. Notwithstanding the fact that Respondent knew that she was a student, he repeatedly asked her to go with him on a date, followed by dinner and bed. Unsolicited, he gave her his home telephone number and told her to call him. He frequently remarked on her clothing, advising her that she should not wear such nice clothes. He often communicated by notes that he would show her and then tear up. Ruth Evans was a senior at Winter Park High School during the 1985-1986 school year. She was in Respondent's science class. Respondent repeatedly complimented her on her dress. He would intentionally drop a pencil and watch her while she picked it up. At different times, Respondent told her that he "wanted her body" and thought that she had a "nice ass." He also told her that he wanted to "get between her legs." He asked her to go out with him and then to his place. One afternoon when Ms. Evans asked to leave class 10 minutes early for a school-sponsored softball game, Respondent's response was, "If you're not going to do anything for me, why should I do anything for you?" Kristen Fischer was a senior at Winter Park High school during the 1985-1986 school year. She was in Respondent's ecology class. Looking at her breasts and body while speaking, Respondent would frequently tell Ms. Fischer that he liked what he saw, including her tight jeans. As with the other female students, Respondent asked Ms. Fischer to go out with him and have a drink. The testimony of the remaining female students reiterated the above testimony and established a pattern of sexual harassment on the part of Respondent. Respondent summoned Juliana Gomes from the classroom and, in the hall, commented on her appearance and asked her out on dates. Ms. Gomes finally began reporting to school late in order to avoid her first-period class with Respondent. Respondent told jokes involving female body parts, such as the vagina, to Laurie Kreitner, another student. When she would not listen to these jokes privately at his desk, Respondent would tell them publicly to the entire class. Respondent regularly asked Sheila Buchanan, another of his students, what she was doing on that Friday night and where she would be. At spring break, he found out where she and her girlfriends would be staying at the beach and gave them his hotel room and telephone numbers with an invitation to call him. During the entire term in ecology, Respondent administered only one test and a couple of quizzes. Otherwise, the students and Respondent sat around and talked about movies and matters unrelated to the subject of the class. On more than one occasion, Respondent admitted that his grades were a reflection of whom he liked and whom he did not like. Respondent even allowed Ms. Buchanan to grade half of the finals, and she gave good grades to her friends.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Respondent's teaching certificate be permanently revoked. ENTERED this 3rd day of May, 1989, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Martin Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 J. David Holder, Esquire Rigsby & Holder Suite 200 1408 North Piedmont Way Tallahassee, Florida 32312 Reginald Crooms 617 South Delaney Avenue, No. 19 Orlando, Florida 32801
Findings Of Fact During times pertinent to this consolidated proceeding, the Respondent, Eugene Lamar Moore, has held teacher's certificate number 271828 issued by the State of Florida Department of Education for the subject areas of English and Bible studies. The Respondent was employed as a teacher by the Escambia County School District at Washington High School during times pertinent to the facts in this proceeding. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 231, Florida Statutes, as they relate to licensure of teachers and regulation - and enforcement of the practice standards which teachers are required to observe in the practice of that profession in the State of Florida. The Petitioner, Escambia County School Board, is a local government agency charged, as pertinent hereto, with regulating the practice and practice standards of teachers and professional conduct of teachers in its employ in the Escambia County school system. The Respondent was employed at times pertinent hereto by the Escambia County school system as a teacher at the Washington High School. He began teaching in the County under an annual contract of employment in 1970. At the conclusion of the 1973-74 school year, the Respondent was awarded a continuing contract of employment by the County School Board and has been employed by Escambia County as a continuing contract teacher ever since. On May 27, 1985, during a change of classes in his classroom, at a time when other students were present, the Respondent kissed student Rebecca Cleveland on the cheek. He had known her for approximately one year and eight months at the time the incident occurred. He felt he knew and understood her personality well enough to have no fear that lightheartedly kissing her on the cheek would embarrass her or offend her. It was not his intention to derive personal benefit or gratification by hugging or kissing Rebecca Cleveland on the cheek nor did he intend to offend, embarrass or expose her to disparagement in any way. Rebecca Cleveland acknowledged that the Respondent had never attempted to kiss her before that day and also acknowledged that she did not really believe Respondent intended to hurt her or to intentionally embarrass her. Michelle Clawson was another female student at Washington High School and contended in her testimony that the Respondent put his arm around her, attempted to kiss her and attempted to "french kiss" her. Indeed, the Respondent had put his arm around Michelle Clawson on a number of occasions for the purpose of generally encouraging her and encouraging her to take tests, but had not attempted to kiss her on any occasion. Ms. Clawson additionally contended that Mr. Moore was trying to maintain a good personal relationship with her by giving her undeserved high grades and stated that she asked several boys in the class to stay with her in Mr. Moore's room after class on the day he allegedly attempted to kiss her (presumably for protection). She also stated that Mr. Moore requested that she go to a football game with him, presumably as his date. This testimony is not credited, however, for a number of reasons. Firstly, Ms. Clawson's claim that Respondent tried to "french kiss" her was a recent addition to previous and different versions of the alleged kissing incident related in her previous statements. Concerning her charge that he was giving her undeserved good grades, it was established unequivocally that indeed Mr. Moore had actually given her an "F" during the grading period in question. Concerning her staying in his class after others had left and asking several boys to remain with her, Ms. Clawson was unable to explain why she remained in Mr. Moore's room in the first place, especially after the "boys" supposedly informed her that they could not stay with her. Concerning the alleged "football game date," she conceded that the entire class was present when the conversation occurred. It is very implausible that Mr. Moore would have asked Ms. Clawson for a date, had he been inclined to do so at all, in the presence of any other students, especially not the entire class. If such an incident had occurred it seems likely that there would have been at least one other witness to verify the nature of the conversation in question. It was also established by independent, uncontradicted proof that the Respondent was in charge of arranging buses and other logistics for football game trips and other school trips and served as a chaperone on some occasions for such events. The Respondent's version of this conversation to the effect that, if it occurred, he was merely trying to determine if Michelle Clawson would be able to attend the football game and offering to obtain permission for her from her parents, is accepted over Ms. Clawson's version. Ms. Georgette Floyd is another ninth grade English teacher at Washington High School, like Respondent. Michelle Clawson had been in Ms. Floyd's class the year previous to the one when the alleged incident supposedly occurred in the Respondent's class. Ms. Clawson did not pass Ms. Floyd's freshman English class and was required to repeat the course. She was thus assigned to repeat freshman English in the Respondent's class the year after she was in Ms. Floyd's class. Prior to the time Respondent had Michelle Clawson enter his class, Ms. Floyd warned him that Ms. Clawson might present some problems. Ms. Floyd had found that Ms. Clawson, on occasion, would attempt to provocatively expose parts of her body by sitting in a suggestive or provocative fashion and had been known to spread false comment about teachers, particularly Ms. Floyd. In summary, it is concluded that Michelle Clawson's testimony is not credible and is not credited herein. Her version of the events is simply not plausible in the face of the Respondent's and Ms. Floyd's testimony; further, she was shown to have a motive for giving an untruthful version of the events in question, to wit, her poor academic performance and failing grades in Respondent's and Ms. Floyd's classes. Ms. Floyd's testimony that Ms. Clawson had previously made a false accusation against her was uncontradicted. 1/ Concerning the charges about the Respondent's alleged loss of effectiveness in the school system, Mr. Sherman Robinson, the principal of Washington High School testified that he did not believe Mr. Moore was any longer an effective teacher at Washington High School. Mr. Robinson based this opinion on his belief that the Respondent's effectiveness was diminished as a result of the Rebecca Cleveland incident of May 1985. He conceded, however, that the Respondent had taught school at Washington High School for the entire following 1985-86 school year and indeed for a portion of the 1986-87 school year. The Respondent's formal teaching evaluation for the 1985-86 school year was prepared after the incident became known concerning Rebecca Cleveland. That evaluation covers areas involving professional responsibility (encompassing the types of conduct in question) as well as academic performance. The Respondent's evaluation for the 1984-85 school year demonstrates that he received the highest possible score in four out of five sub-categories. He received the next highest score in the remaining sub-categories. No part of that evaluation was unsatisfactory. The Respondent's formal teaching evaluation for the 1985-86 school year was prepared after the incident concerning Rebecca Cleveland became known. The Respondent's 1985-86 evaluation demonstrated that he received the highest possible score on that part of the evaluation that deals with professionalism or professional responsibility. All of the Respondent's teaching, after the Rebecca Cleveland incident occurred, was at Washington High School, and he received all satisfactory or higher evaluations on each category for that period of time after the Rebecca Cleveland incident.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Education Practices Commission dismissing the complaint by the Department of Education against the Respondent, Eugene Lamar Moore, in its entirety. It is Further RECOMMENDED that the Petition for Dismissal filed by the Superintendent of Schools for Escambia County should be denied and that the Respondent, Eugene Lamar Moore, should be reinstated to his position of employment as a continuing contract teacher with full back pay from the date of suspension. DONE and ORDERED this 12th day of October, 1987, in Tallahassee, Florida. P. MICHAEL RUFF 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 12th day of October, 1987.
The Issue The issues in this case are whether Respondent, Nancy S. Lowery ("Respondent"), violated Subsections 231.2615(1)(c), (f), and (i), Florida Statutes (2001),1/ and Florida Administrative Code Rule 6B-1.006(3)(a) and (e), as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent held a Florida Educator's Certificate No. 365470, issued by the Department of Education. The certificate covered the area of family and consumer science and was valid through June 30, 2002. During the 2001-2002 school year, Respondent was a teacher at Oakridge High School ("Oakridge"), a school in the Orange County School District ("School District"), and taught exceptional education students. On February 1, 2002, while employed as a teacher at Oakridge, Respondent showed the movie, "Jaws III," in her classroom to the students in her fourth-period class. That day there were about ten students in Respondent's fourth-period class. Prior to or soon after starting the movie, Respondent turned off the lights in the classroom, and the lights remained off while the movie was playing. While the movie was playing, the students in Respondent's class sat at their desks. However, at some point during the movie, D.C., a female student in the class, asked J.G., another student, if she (J.G.) gave "head." In response, J.G. answered in the affirmative. After J.G. responded, D.C. and G.J., a male student in the class, then coaxed J.G. to perform oral sex on G.J. Then, G.J. unzipped his pants and told J.G. to put her head "down there," and she did so. At or near the same time, G.J. put his hand in J.G.'s pants. For most of the class period, J.G.'s head was in G.J.'s lap. While J.G. was performing oral sex on G.J., some of the students in the class positioned their desks so that Respondent could not see what J.G. and G.J. were doing. At all times relevant to this proceeding, B.D. was about 16-years-old and a student at Oakridge. B.D. was in Respondent's fourth-period class on February 1, 2002, and observed the events and incident described in paragraphs four through six. Petitioner was in the classroom during the entire fourth period while "Jaws III" was playing. However, once the movie began playing, Petitioner was at the computer in the classroom "working on" or "typing" something. Petitioner was working at the computer most of the class period and did not see J.G. and G.J. engaging in the inappropriate sexual conduct described in paragraph five. At all times relevant to this proceeding, Kari Sperre was the chairman of the Exceptional Education Department at Oakridge, the department in which Respondent worked. On the morning of February 1, 2002, Ms. Sperre took her class on a field trip. Ms. Sperre and her class returned to the school during the fourth period. As Ms. Sperre walked by Respondent's classroom, she noticed that the lights in that classroom were out. Later that day, it was reported to Ms. Sperre that J.G. had told another student, L.C., that she (J.G.) had performed oral sex on G.J. Upon hearing this report, Ms. Sperre investigated the matter. Ms. Sperre first talked to L.C., a female student in the ninth grade at Oakridge. L.C., who was not in Respondent's fourth-period class, reported to Ms. Sperre that J.G. told her (L.C.) that she (J.G.) had performed oral sex on G.J. After she spoke with L.C., Ms. Sperre then talked to J.G. Although initially reluctant to talk to Ms. Sperre, J.G. eventually told Ms. Sperre what had happened that day in Respondent's class. J.G. told Ms. Sperre that she had only recently transferred to Oakridge, that she was in Petitioner's fourth-period class, and that the lights in the class were out during class that day. J.G. also reported to Ms. Sperre that two students in the class, D.C., a female student, and G.J., a male student, encouraged her to perform oral sex on G.J. According to J.G., D.C. and/or G.J. told her that all she had to do was put her head underneath G.J.'s jacket and nobody would know what was going on. J.G. also told Ms. Sperre that G.J.'s pants were open and admitted that, "I just bent down and did it." J.G. told Ms. Sperre that this incident occurred while the class was watching the movie and while Respondent was working on the computer. At all times relevant to this proceeding, J.G. was classified as an exceptional education student, having been classified as educable mentally handicapped. A student classified as educable mentally handicapped has an IQ of below 70, well below the average IQ of 100. After the February 1, 2002, incident that occurred in Respondent's class, J.G. was suspended from school for engaging in inappropriate conduct at school. Also, since the incident, J.G. withdrew from school and is no longer enrolled in the School District. On February 1, 2002, Respondent violated several policies of the School District. First, the School District requires that teachers supervise their students at all times when they are in the classroom. In order to do this, the teacher should have the students within sight. This is especially important with regard to exceptional education students, who have special and unique challenges. Respondent did not supervise her fourth-period class on February 1, 2002, although she was in the classroom. Instead of supervising her class, Respondent was working at the computer most of the class period and was unaware of what the students were doing. Clearly, Respondent was not supervising her students, as evidenced by her failure to ever notice or observe the sexually inappropriate conduct by students in her class. By failing to properly supervise her class on February 1, 2002, Respondent failed to protect her students from conditions harmful to their learning and/or physical health and/or safety. The incident that occurred on February 1, 2002, in Respondent's class could have a negative impact on both the students who observed the incident, as well as the student who was encouraged to perform oral sex on the male student. The educable mentally handicapped student who was coaxed into performing the act could be the victim of teasing as a result of her involvement in the incident. According to Ms. Sperre, those students who witnessed the incident could also be negatively impacted by being exposed to and observing the incident. For example, many of the students in the exceptional education class could also be encouraged to engage in the same type of activity that they witnessed in Respondent's fourth-period class on February 1, 2002. The School District has a policy that prohibits teachers from turning out all the lights in their classrooms during class time. This policy is for safety reasons and requires that even if there is a need to turn off the classroom lights, at least one "bank" of lights must remain on at all times. On February 1, 2002, Respondent violated the policy discussed in paragraph 22, by turning off all the lights at or near the beginning of the fourth period, and they remained off while the students were watching the movie. This violation contributed to Respondent's failure to supervise the students because with all the lights out, even though she was in the classroom, Respondent was unaware and unable to see what the students, including J.G. and G.J., were doing. During the 2001-2002 school year, Oakridge had a policy that allowed teachers to show only movies that were educational or had some relevance to the lesson being taught in the class. At the beginning of every school year, including the 2001-2002 school year, teachers at Oakridge are given faculty handbooks, which include various policies and procedures that they are required to read. In addition to these written policies and procedures, Oakridge administrators would "discuss" various "oral procedures" with teachers at facility meetings. It is unclear if the policies or procedures regarding the kinds of movies that could be shown at Oakridge and the prohibition against having all the lights off in classrooms at Oakridge were written or oral policies and/or procedures. On February 1, 2002, Respondent violated the policy related to the kind of movies that are allowed to be shown in the classroom by showing the movie, "Jaws III." "Jaws III" is not an educational movie, nor was it relevant to any lesson being taught by Respondent at or near the time it was being shown to the students. The School District investigated the February 1, 2002, incident, and thereafter, the committee reviewed the incident and voted unanimously to recommend that Respondent be terminated as a teacher in the School District. Despite the unanimous recommendation of termination, because Respondent's teaching contract for re-appointment was to be considered soon, instead of terminating Respondent, the School District decided that it would simply not recommend her for re-appointment for the 2002- 2003 school year. On February 20, 2002, after the February 1, 2002, incident was investigated, Oakridge's principal, J. Richard Damron, issued to Respondent a letter of reprimand and a letter of directives regarding the incident that occurred in Respondent's classroom on February 1, 2002. The letter of reprimand specifically referenced the February 1, 2002, incident and stated that Respondent had "failed to use reasonable care in supervising" the students in her class. Next, the letter of reprimand stated that a directive would be issued in a separate correspondence that outlines the School District's expectations regarding Respondent's conduct in the future. Finally, the letter of reprimand noted that "should there be another incident of a similar nature in the future[,] discipline, up to and including dismissal could be recommended." On February 20, 2002, Principal Damron issued written directives to Respondent which required her to do the following: (1) establish a safe, caring, and nurturing environment conducive to learning and the physical and psychological well- being of students; (2) refrain from showing films that are not directly associated with lessons that contribute to the education of children; (3) keep children under her [Petitioner's] direct supervision at all times and not leave students alone, with other teachers, or be absent from her duties unless she makes prior arrangements with the principal or one of the assistant principals; and (4) comply with all district and school directives, policies, rules, and procedures. Respondent's job performance as a teacher at Oakridge for the 2001-2002 school year was evaluated in March 2002. The results of the evaluation are reported on the School District's form entitled, Instructional Personnel Final Assessment Report ("Assessment Report"). The Assessment Report dated March 25, 2002, noted two areas in which Respondent "Needs Improvement": (1) Professional Responsibilities; and (2) Classroom Management and Discipline. Respondent was rated as "Effective" in four areas: (1) Curriculum Knowledge; (2) Planning and Delivering Instruction; (3) Assessment of Student Performance; (4) Development and Interpersonal Skills. On March 25, 2002, the same day the Assessment Report was completed, Principal Damron notified Respondent that he was not recommending her for re-appointment for the 2002-2003 school year. According to the letter, Principal Damron decided to not recommend Respondent for re-appointment "based upon performance- related reasons and the temporary contract" that she held at that time. Alfred Lopez, a senior manager with the Orange County School District, testified that by failing to supervise the students in her fourth-period class on February 1, 2002, Respondent's effectiveness as a teacher in the School District had "definitely" been reduced. Ms. Sperre testified that she would not ever want Respondent employed in a school in Orange County in which she (Ms. Sperre) was employed. Notwithstanding the beliefs of Mr. Lopez and Ms. Sperre, based on the letter of reprimand and the letter of directives issued on February 20, 2002, it appears that Respondent continued to teach at Oakridge after the February 2002 incident through the end of the school year. Furthermore, no evidence was presented which established that after the incident, Respondent was reassigned, relieved of, or otherwise removed from her position as an exceptional education teacher at Oakridge after the incident.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a final order finding that Respondent violated Subsection 231.2615(1)(i), Florida Statutes, and Florida Administrative Code Rule 6A-1.006(3)(a), but did not violate Subsections 231.2615(1)(a) and (f), Florida Statutes, and Florida Administrative Code Rule 6A-1.006(3)(e). It is further RECOMMENDED that the final order impose the following administrative sanctions on Respondent: Upon employment in any public or private position requiring an educator's certificate, Respondent shall be placed on two years' probation with the conditions that during this period, she shall: Notify the Education Practices Commission, upon employment and immediately upon termination of employment in any public or private position requiring a Florida educator's certificate; Have her immediate supervisor submit annual performance reports to the Education Practices Commission; Violate no law and fully comply with all School District regulations, school rules, and the State Board of Education; Satisfactorily perform assigned duties in a competent, professional manner; and Bear all costs of complying with the terms of this probation. Enroll in and successfully complete a three-hour college course in classroom management within the first year of probation and submit to the Bureau of Education Standards an official college transcript verifying successful completion of the course with a grade of "B" or higher. This course must be taken in person, and a correspondence or on-line course will not satisfy this requirement. Issue a letter of reprimand, with a copy to be placed in Respondent's certification file. DONE AND ENTERED this 18th day of March, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 March, 2005.
