The Issue The issues presented are whether the unauthorized use of a school computer to view Yahoo personal websites violates Subsections 1012.795(1)(c), (f), and (i), Florida Statutes (2003), and Florida Administrative Code Rules 6B-1.006(3)(a) and and (4)(c), and, if so, what penalty should be imposed against the teaching certificate of Respondent.1
Findings Of Fact Respondent holds Florida Educator's Certificate Number 719005 (teaching certificate). Respondent is certified to teach English, grades six through 12. The Seminole County School Board (the School Board) has employed Respondent as a teacher for approximately 13 years. The School Board employed Respondent as a teacher on the date of the hearing. For the 2003-2004 school year, Respondent taught honors English and drama at Oviedo High School (Oviedo). Oviedo provided a computer in Respondent's classroom. Oviedo limited acceptable use of the computer to educational and academic business use (the acceptable use policy). The acceptable use policy prohibited personal use of the computer such as viewing the news, weather, or sports. From the start of the school year through February 24, 2004, Respondent violated the acceptable use policy. Respondent used the computer for various personal purposes for as much as 20 to 30 minutes or as little as five minutes; as frequently as every day and as infrequently as one day a week. Respondent viewed various internet sites, including sites for Celtic music, cross-stitching, and Yahoo personal websites. The Yahoo personal websites included pictures of nude adult women, sometimes in sexually explicit scenes. The Complaint alleges that Respondent's use of the school computer to view Yahoo personal websites violates several statutes and rules. Counts 1 through 3 in the Complaint concern alleged violations of statutes. Counts 4 through 6 concern alleged violations of rules. Count 1 alleges that viewing Yahoo personal websites is an act that constitutes gross immorality or involves moral turpitude in violation of Subsection 1012.795(1)(c). Count 2 alleges that the unauthorized use of the computer seriously reduced Respondent's effectiveness as an employee of the School Board in violation of Subsection 1012.795(1)(f). Count 3 alleges that the use of the school computer to view Yahoo personal websites violates the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education Rules in violation of Subsection 1012.795(1)(i). Counts 4-6 identify the specific rules of ethics that were allegedly violated when Respondent used the school computer to view Yahoo personal websites. Counts 4-6 allege that Respondent violated Florida Administrative Code Rules 6B-1.006(3)(a), (3)(e), and (4)(c), respectively, by: failing to make a reasonable effort to protect a student from conditions harmful to learning or to a student's mental or physical health; intentionally exposing a student to unnecessary embarrassment and disparagement; and using institutional privileges for personal gain or advantage. At the hearing, Petitioner dismissed Count 5 in the Complaint. That Count alleged that Respondent intentionally exposed a student to unnecessary embarrassment or disparagement in violation of Florida Administrative Code Rule 6B-1.006(3)(e). The evidence is less than clear and convincing that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect a student from conditions harmful to learning or to a student's mental or physical health. There is no evidence that a student at Oviedo viewed any inappropriate material on the computer. Respondent used the computer during his planning periods after he had graded papers, completed lesson plans, and concluded any other academic business. Students were not present during planning periods. When Respondent used the computer for inappropriate purposes, the classroom door was closed and locked. No students were present, and the computer faced a wall away from the classroom entrance. The evidence is less than clear and convincing that Respondent violated Florida Administrative Code Rule 6B-1.006(4)(c) by using the school computer for personal gain or advantage. There is no evidence that Respondent did anything other view images on a computer. There is no evidence that Respondent copied the material, distributed it, pandered the material, or took any other action for personal profit or gain. The absence of a finding that Respondent violated any of the rules of ethics cited in the Complaint precludes a finding that Respondent violated Subsection 1012.795(1)(i) pertaining to ethical violations. Therefore, clear and convincing evidence does not support the charges in Count 3 of the Complaint. Nor is Count 2 supported by clear and convincing evidence. The act of viewing Yahoo personal websites on the school computer did not seriously reduce Respondent's effectiveness as an employee of the School Board in violation of Subsection 1012.795(1)(f). Respondent continued as an effective employee of the School Board. On February 25, 2007, the School Board removed Petitioner from the classroom for the duration of the school year without pay. However, the School Board continued to employ Respondent in non-teaching positions until October 2005 when Respondent returned to the classroom at Greenwood Lakes Middle School (Greenwood) and then at Millennium Middle School (Millennium).2 The principal at Greenwood and Millennium assessed Respondent as proficient and an asset to the schools.3 Respondent earned satisfactory evaluations.4 Clear and convincing evidence does not support the allegations in Count 1 of the Complaint, which alleges that Respondent is guilty of moral turpitude or gross immorality in violation of Subsection 1012.795(1)(c). Petitioner defines the term "moral turpitude" by rule. Florida Administrative Code Rule 6B-4.009(6) defines moral turpitude, in relevant part, to be a "crime . . . evidenced by an act of baseness, vileness, or depravity. . . ." The use of the school computer to view Yahoo personal websites was not a crime. After an extensive criminal investigation, no criminal charges were filed against Respondent.5 The use of a school computer to view Yahoo personal websites was not an act of baseness, vileness, or depravity. There is no evidence that the Yahoo personal websites are pornographic sites. Oviedo blocks access to pornographic sites, and Oviedo does not block access to Yahoo personal websites. There is no evidence that any of the women depicted as nude or in sexually explicit scenes were underage. Yahoo prohibits persons under 18 from using the personal websites. Petitioner does not define the term "gross immorality" by rule, but Petitioner does define the term "immorality" by rule. Florida Administrative Code Rule 6B-4.009(2) defines immorality, in relevant part, to be conduct that is sufficiently notorious to bring Respondent or his profession into public disgrace and impair Respondent's service in the community. The act of viewing Yahoo personal websites did not satisfy the definitional elements of immorality. The act of viewing Yahoo personal websites did not impair Respondent's service in the community. After the events at issue in this proceeding, Respondent continued to teach at Valencia Community College (Valencia) and Seminole Community College (Seminole). At Valencia, Respondent teaches a dual enrollment class in Western Civilization. A dual enrollment class is one in which high school seniors receive both high school and college credit for the course. At Seminole, Respondent has taught courses in Fundamentals of Writing 1 and 2, both of which are college preparatory courses; Western Civilization; U.S. History; and Medieval Humanities. The act of viewing Yahoo personal websites on the school computer was not sufficiently notorious that it brought either Respondent or his profession into public disgrace or disrespect. Any notoriety that did occur resulted from the actions of the School Board and Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violations charged in the Complaint and imposing no penalty against the teaching certificate of Respondent. DONE AND ENTERED this 31st day of October, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 31st day of October, 2007.
The Issue Whether Respondent committed any of the violations alleged in the Amended Administrative Complaint dated March 24, 2014, and, if so, what is the appropriate disciplinary penalty?
Findings Of Fact The Parties Petitioner, as Commissioner of Education for the State of Florida, is responsible for the investigation and prosecution of complaints against individuals who hold a Florida Educational Certificate when they are appropriately alleged to have committed a violation as provided in section 1012.795, Florida Statutes, and related rules. See § 1012.796, Fla. Stat. Respondent, Shadrick Fields, a male and, at the time of the events pertinent to this case, a middle school teacher employed by the Broward County School District (the District), holds Florida Educator’s Certificate 977090. Valid through June 30, 2017, the certificate covers the areas of English for Speakers of Other Languages (ESOL), Social Science, and Exceptional Student Education. Respondent was employed as a coach and Social Science teacher at Pompano Beach Middle School during the school years 2007-2010. In the 2009-2010 school year, Respondent was also employed as an assistant coach (but not as a teacher) at Coconut Creek High School. Pompano Beach Middle School and Coconut Creek High School are within and part of the District. On or about April 26, 2010, Respondent resigned his teaching position in lieu of termination of his position. The District accepted the resignation and placed Respondent’s identification in its records under “non-hire” status. The personnel action was taken because of allegations of an inappropriate relationship between Respondent and a female student. An Inappropriate Relationship Develops J.D. is a female. Born in 1992, she attended Pompano Beach Middle School in sixth, seventh, and eighth grades. She met Respondent at Pompano Beach Middle School although he was not her teacher or her coach. The events that led to Respondent’s resignation occurred principally in the 2009-2010 school year when J.D. was 17 years of age (her 18th birthday was in March 2010) and a student at Coconut Creek High School. The events had their origin, however, in 2006 when J.D. was a middle school child. J.D. met Respondent as a seventh grader when Respondent was “doing security [for the school] at the time.” Hr’g Tr. 81. Later, J.D. had contact with Respondent in Respondent’s capacity as coach of the middle school football team. On the last day of J.D.’s eighth grade school year (in 2006), Respondent gave J.D. a letter written from him to her. The letter was not produced at the hearing. Respondent asked for it back, and J.D. returned it to him. When asked about the letter at the hearing, the following colloquy took place between and counsel for Petitioner: I have to go in detail about the letter? Q. Well . . . just tell us in general, what was the nature of the letter? A. He liked me. I liked him. Hr’g Tr. 83. J.D. did not see or communicate with Respondent over the summer between her eighth and ninth grade. J.D. resumed contact with Respondent during her freshman year at Coconut Creek High School where she was a student and he was one of the coaches for the wrestling team. Respondent was not J.D.’s coach nor was he one of her teachers; he continued to teach at Pompano Beach Middle School. Nonetheless, they talked on the phone. On Valentine’s Day, Respondent gave J.D. a card. The card opens with the statement, “Falling in love with you was something I hadn’t expected but being in love with you is something I wouldn’t stop, even if I tried.” Pet’r’s Ex. 6. It closes with the statements, “I already have my Valentine’s Day Gift and it’s you! I love you.” Id. J.D. claimed at the hearing that she and Respondent engaged in sexual relations once during her freshman year at Coconut Creek. She said they took place in Respondent’s truck, an arrangement they agreed to both by speaking about it and writing about it. The letters related to their rendezvous in the truck were not produced at the hearing because J.D. disposed of them in a trash receptacle. J.D. claimed that she engaged in sexual intercourse with Respondent only one other time: during her senior year, again in Respondent’s truck. The time that elapsed between the two sexual events, according to J.D., was due to an agreement between Respondent and J.D.: they agreed to cease further sexual involvement until she graduated from high school (albeit, as J.D. testified, the agreement failed in February of her senior year). During the time between the two incidents of sexual relations to which J.D. testified, J.D. and Respondent frequently communicated through writings, cards, and letters. When Respondent wrote to J.D. he delivered the communications through one of two methods: he handed them to her directly or he placed them in an open tube affixed to the wall of a hallway outside the wrestling locker room. When the latter method was followed, Respondent would send a text to J.D. to alert her to the presence of a letter in the tube. The purpose of using the tube was to prevent suspicion by others should Respondent be observed handing written communication to J.D. The letters produced at the hearing that J.D. received are emotionally intimate. The third of the four letters that make up Petitioner’s Exhibit 7 is highly charged and sexually graphic. It refers, for example, in detail to love-making in which Respondent and J.D. had engaged. Respondent’s letters refer to himself as “King” and are signed “M.N.U.A.I.A.,” which stands for “Me and You Against It All.” See Pet’r’s Ex. 7. During J.D.’s senior year in high school, J.D. and Respondent had increased opportunities to interact on school days. J.D. played on a school flag football team and became the assistant manager of the wrestling team for which Respondent was the coach. Family members picked J.D. up after flag football practice or when she stayed after school in her capacity as the wrestling team assistant manager. But Respondent also provided her transportation home in his truck. He gave J.D. a ride home after these extra-curricular events whenever she asked. The question was asked at the hearing, “Generally, who gave you a ride home?” J.D. testified, “Mr. Fields.” Hr’g Tr. 98. Respondent also gave J.D. cards and gifts, including a Teddy Bear that was delivered with a card. The card ends with “I’m your Teddy Bear baby, M.N.U.A.I.A. I Love You.” The card makes reference to the silence of Teddy Bears and that “they will never breath [sic] a word of secrets you may tell.” Pet’r’s Ex. 8. In December and January of the 2009-2010 school year (J.D.’s senior year), Respondent had significant contact with J.D. by cell phone. Pet’r’s Ex. 9. For the month of December 2009, phone calls between J.D.’s cell phone and Respondent’s cell phone averaged more than one per day. Following more than 40 phone calls in January of 2010, the phone contact continued into February. In the middle of the month of February 2010, Respondent handed a Valentine card to J.D. (He did not place it in the tube because “[i]t wouldn’t fit in there.”). Hr’g Tr. 96. The card states, “You know that I would give anything to be in your arms, touching your face, staring into your eyes and tasting your lips. I can’t but I can depend on our love to see me through.” The card addresses J.D. as “Lil Solja” and is signed: Happy Valentine’s Day #1 M.N.U.A.I.A. Love & “Sincerely Yours”, Solja Pet’r’s Ex. 9. Over the late 2009 and early 2010 time period, some of the many phone calls between J.D. and Respondent were for extended periods of time or were at odd hours. One set of calls was both. On February 19, 2010, a call was placed from Respondent’s cell phone to J.D.’s cell phone that is shown by phone records to have lasted for 186 minutes (until 2:50 in the morning of February 20, 2010). The same records show that one minute later, at 2:51 a.m., February 20, 2010, a phone call was placed from J.D.’s cell phone to Respondent’s cell phone. This second “middle of the night” phone call lasted another 76 minutes. The two calls total more than four hours. The lengthy “middle of the night” phone calls in mid-February of 2010 occurred roughly one week before events that precipitated the discovery of J.D.’s relationship with Respondent. The events took place on February 26 and 27, 2010, the weekend before J.D.’s 18th birthday. Discovered February 26, 2010, was a Friday. J.D. worked that evening at Steinmart as a merchandiser. She had worked at Steinmart her entire senior year with a schedule of roughly 20 hours per week. The following are questions and answers from the transcript of the hearing about what occurred the evening of February 26, 2010, when J.D. was at work: Q. Did Mr. Fields come to your work that day? A. Yes. Q. Tell us what happened. A. I went to work, took a break right before the store closed, around eight-something. I had been talking to him throughout the day. He came to my job. We had sex. I got off work and went home. * * * Q. . . . Mr. Fields came to your work, correct? A. Came to my job on my break. Q. And how long of a break did you have? A. Thirty minutes. Q. Thirty minutes. And what did you do on that break? A. I got in the truck with him, we talked, we had sex and I went back to work. Q. When you say you had sex, you had sexual intercourse? A. Yes. Q. And this occurred in Mr. Fields’ truck? A. Yes. Q. Where at in the truck? A. In the back seat. Hr’g Tr. 101. When asked by counsel for Petitioner how she felt about having sex with Respondent in his truck, she testified as if it were nothing unusual: “I really didn’t feel no way.” Hr’g Tr. 102. When asked immediately after, “You felt what?” J.D. reiterated her testimony, “I really didn’t feel any type of way, you know.” Id. During the interlude in the truck, J.D. and Respondent developed plans for the next night, Saturday, February 27. J.D. did not have to work that Saturday, but she “planned to lie to [her] mom” and tell her she did so she could, in her words, “spend the time with him before my birthday.” Hr’g Tr. 103. Hewing to the plan, J.D. told her mother that she was needed at Steinmart on Saturday to help her manager with inventory. J.D.’s mother, accordingly, drove her to work and dropped her off in the middle of the day. Later in the day, J.D.’s mother returned to Steinmart to purchase a shirt for her husband using a family discount by virtue of J.D.’s employment. She asked for J.D. in the store because J.D. had to sign a form to make the discount effective. When it turned out that J.D. was not at work and had not been at work, J.D.’s mother became extremely concerned. She called J.D. and texted her. When the calls and texts to J.D. went unanswered she enlisted other family members to assist in contacting and locating J.D. She lodged a missing person’s report with local law enforcement, and she began her own investigation. J.D.’s cell phone was under her mother’s account. When her mother checked the phone log she saw a number “that had been calling back and forth.” Hr’g Tr. 40. The phone number was Respondent’s: 954-691-6468. J.D.’s mother did not recognize the phone number, but discovered later that it belonged to Respondent. When asked about a voice message she left on Respondent’s phone, J.D.’s mother testified, “I don’t want to say under oath what I said but I was upset once I realized whose phone it was.” Hr’g Tr. 41. After testifying that the pattern and consistency of the phone calls between her daughter and an older male made her distraught, she was asked to explain by counsel. She answered, “Because I just felt like that communication shouldn’t have been going on, as many times as I’d seen it in the call log.” Id. Between being transported to her work place and the frantic activity of her mother, J.D. had talked to Respondent on the phone. He picked her up at Steinmart and drove her across the county to a movie theater in the western part of the county about 35 minutes away by car. After watching a movie, “The Crazies,” the two had something to eat at “TGI Friday’s,” hearing transcript 105, a restaurant in the same plaza as the movie theater. J.D. noticed that she had received phone calls from her mother, but she was “scared,” id., to call her back. While the two were still inside the restaurant, Respondent noticed that he had received telephone calls from J.D.’s mother as well. J.D. told Respondent not to return the call, and he did not. Respondent drove J.D. back to Steinmart and dropped her off at roughly 9 p.m., the time J.D. should have been getting off work had she worked that day. Respondent did not return J.D.’s mother’s call before he left J.D. at Steinmart. J.D.’s brother picked her up at Steinmart and drove J.D. home where she was met by Deputy Matthews, who had responded on behalf of local law enforcement to the missing person’s report. Deputy Matthews’ report indicated that J.D. was questioned about sexual activity with Respondent and that she denied sexual activity. Text Messages On Sunday (February 28, 2010), Respondent texted J.D.: Does she still want to talk to me? I’ll take da day off in effort to make things right by sitting down with her. A million more apologizes from da heart. Pet’r’s Ex. 5, at P010/011 [marked in hand-writing as “83”]. On March 1, 2010, the next Monday, Respondent sent text messages to J.D. At 3:17 in the morning, his text reads, I hope I haven’t tarnished or messed your life first and everyone else that looks up to me. I’ve let so many down . . . mainly you. I pray for ur fams forgiveness. Pet’r’s Ex. 5, P0087/011 [marked in hand-writing as “81”]. Another text follows at 3:45 in the morning: I never lied to you. Everything I said I meant from the heart but I should have never told you. Every day forward free is a blessing & will be cherished. Id. Later in the day, at 3:36 in the afternoon, Respondent texted “I’m going to turn myself in. Its all in your hands, my life.” Pet’r’s Ex. 5, P0097/011 [marked in hand-writing as “82”]. Over several days, J.D. and her mother engaged in a number of emotion-laden conversations. J.D.’s mother reached the point of “yelling” and “crying.” Hr’g Tr. 56. At some point in the midst of the emotional interchanges between J.D. and her mother, J.D.’s mother told her that she intended to take J.D. to a gynecologist for an examination for sexual activity. J.D. did not want her mother to know that she was not a virgin. But she was not concerned for herself alone. She did not want to tell anyone that she had engaged in sexual activity with Respondent because she wanted to protect him. The gynecological examination of J.D. revealed that she had been sexually active. Despite misgivings both for herself and because of the potential impact to Respondent, J.D. told her mother she had engaged in sex with Respondent. J.D.’s mother’s impression was that J.D. had not been sexually active even though she had a boyfriend (who was not Respondent). When J.D. revealed the sexual nature of her relationship with Respondent after the examination, J.D.’s mother called local law enforcement to report it. As a result of the call, a case was opened, and it was assigned to Deputy Julie Bower of the Broward County’s Sheriff’s Office of Sex Crimes. Deputy Bower questioned J.D. and reviewed the phone records, as well as the cards and letters that have been admitted into evidence in this proceeding. Deputy Bower confirmed that J.D. was 17 years’ old, a minor, when Respondent took her to the movies and that Respondent was over the age of 24 at the time. Their ages led Deputy Bower to conduct an investigation into whether Respondent had committed the crime of “Unlawful Sex with Certain Minors.” March 5 Statement to the Sex Crimes Unit On March 5, 2010, Officer Bower took a statement from J.D. In the statement J.D. admitted that she and Respondent had engaged in sexual activity on February 26, 2010. As the interview for the statement progressed, Deputy Bower took J.D. through the history of the relationship. J.D. stated that Respondent seemed to take an interest in her more than the other girls at school (Pet’r’s Ex. 2, p. 4 of 24). She also related that she received the first letter from him at the end of the eighth grade, but that she was not interested in him until her senior year in high school when Respondent started writing her and giving her gifts: “clothes, shoes, . . . cards, letters” id., page 7 of 24, and a bracelet of white gold. In the meantime, during her ninth, tenth, and eleventh grades, J.D. claimed in the statement that their relationship was “nothing . . . just a hi and bye.” Pet’r’s Ex. 2, p. 6 of 24. She related that in December of 2009, however, her relationship with Respondent started changing after “he made the move” (Id., p. 8 of 24), at which time she decided she wanted to start dating. They discussed having sex, and Respondent told J.D. that he loved her. J.D. stated to Deputy Bower that she was a virgin until the encounter with Respondent in his truck on her break from work on Friday, February 26, 2010, at which time she claimed they engaged in sexual intercourse. Deputy Bower was unable to verify J.D.’s claim of sexual intercourse with Respondent through any source other than J.D.’s statement. Nonetheless, Respondent was prosecuted criminally. Acquittal Respondent was charged with the crime of Unlawful Sexual Activity. He was tried by jury in the circuit court in and for Broward County and was found not guilty. See Respondent’s Ex. 1, Circuit Court Disposition Order in and for Broward County, Florida, rendered October 31, 2011, and an attached “Felony Order of Acquittal.” The Administrative Complaint and the Amended Administrative Complaint An Administrative Complaint seeking appropriate disciplinary sanction of Respondent’s educator’s certificate was issued by Dr. Tony Bennett, as Commissioner of Education, on July 8, 2013, 20 months or so after the acquittal. The complaint contains three counts of statutory violations and two of rule violations all based on facts alleged in a section entitled “Material Allegations.” The gist of the material allegations are contained in the section’s first sentence, “During the 2009/2010 school year, Respondent engaged in an inappropriate relationship with J.D., a 17-year-old, female student.” Administrative Complaint. The statutory violations are of section 1012.795(1)(d), Florida Statutes, for “gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education;” section 1012.795(1)(g), Florida Statutes, for “personal conduct which seriously reduced his effectiveness as employee of the school board;” and, of section 1012.795(1)(j), Florida Statutes, for violation of “the Principles of Conduct for the Education Profession prescribed by the State Board of Education rules.” Administrative Complaint, p. 2 of 3. The rule violations are of Florida Administrative Code Rule 6A-10.081(3)(a), “in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety,” and of Florida Administrative Code Rule 6A-10.081(3)(e), “in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement.” On March 24, 2014, Petitioner executed an Amended Administrative Complaint deemed filed as of that date by an Order Granting Leave to Amend. The amended complaint adds two new paragraphs to the material allegations. The new paragraphs expand the time frame for the basis of the statutory and rule violations outside the 2009-2010 school year to prior years back to 2006. The second of the two paragraphs of material allegations alleges: In subsequent years [post-2006], including 2010, Respondent wrote type [sic] letters . . . to J.D., along with cards and music CD’s. Some of the letters contained sexually graphic language . . . Amended Administrative Complaint, para. 3 and 4. The amended complaints also add two new rule violations, one of Florida Administrative Code Rule 6A- 10.081(3)(f) that Respondent intentionally violated or denied a student’s legal rights; and, the second of Florida Administrative Code Rule 6A-10.081(3)(h) that Respondent exploited a relationship with a student for personal gain or advantage. Amended Administrative Complaint, Counts 6 and 7. Respondent’s Defense to the Factual Allegations The following statement appears in the Joint Prehearing Stipulation filed by the parties: “Respondent admitted his text messages and phone calls to J.D. but denied any sexual activity or involvement with the notes and letters.” In addition to Respondent’s testimony under oath that he did not engage in sexual activity with J.D., he points to a number of facts that support his argument for why J.D.’s testimony that it occurred should not be credited: a. her denials to law enforcement the night of February 27, 2014; b. her denials to her mother at first; c. her claim to her mother that she had sex with Respondent only after the pressure of emotional conversations and the gynecological examination that showed her to have been sexually active; d. the inconsistency between her statement under oath to Deputy Bower that the first sexual encounter with Respondent was in her senior year and the statement under oath that her first sexual encounter with Respondent was when she was in the ninth grade; and e. the testimony of Dwanaill Sutton. Mr. Sutton was a year behind J.D. in high school and a member of the wrestling team. He met J.D. when he was in the ninth grade through his best friend at the time, another male member of the wrestling team. The coaches of the wrestling team were “Coach Carradine and Shadrick Fields [Respondent].” Hr’g Tr. 279. Respondent also coached Mr. Sutton on the football team, again as an assistant coach. Eventually, Mr. Sutton and J.D. became “best friends.” Id. They remained so into Mr. Sutton’s junior year (J.D.’s senior year). They do not see each other much anymore but they communicate “[v]ia social media.” Hr’g Tr. 280. Mr. Sutton has no ill feeling about J.D.’s allegations against Respondent. While J.D. and Mr. Sutton were still under the status “best friends,” Mr. Sutton was interviewed at school one day before lunch by a detective who asked him questions about J.D. and Respondent. At lunch, Mr. Sutton asked J.D. what she knew about the detective. J.D. replied that she had given Mr. Sutton’s name to the detective. Mr. Sutton followed up by asking J.D. “what was going on with her and Coach Fields because those were the only two names that the detective mentioned.” Hr’g Tr. 284. J.D. replied “‘nothing happened.’” Id. When asked by counsel if Mr. Sutton asked J.D. “did you guys do something?” id., Mr. Sutton replied that J.D. said “‘We didn’t do anything.’” Hr’g Tr. 285. With regard to the written communication J.D. claims to have received from Respondent, he argues J.D.’s testimony should not be credited because: Respondent denies sending any such items [and did so under oath]. [citation omitted] Respondent testified that he does not write in the fashion the card and letters were written and that it seems as if someone with less than a college education prepared them. [citation omitted] He denies giving J.D. any cards, stuffed bear or bracelet. [citation omitted] Petitioner failed to produce any evidence to support the conclusion that the handwriting on the various cards and letters was that of Respondent. No handwriting expert testimony was adduced and no lay testimony was presented that the writings were that of Respondent. Respondent’s Proposed Recommended Order, p. 6 of 11, para. 16. Respondent claims that the purpose of his relationship with J.D., and the many phone calls and communications with her, was to lift her spirits in the face of personal problems at home, particularly with her step-father and not being able to live with her biological father, and ensuing academic problems and problems at school. But he admits the relationship was inappropriate: [A]s far as lifting her spirits . . . [w]hat I should have did is had a female teacher or mentor be that person for her. I shouldn’t have been there like that. That was inappropriate for me to be there. Hr’g Tr. 228.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be permanently revoked and that he be barred from re-application. DONE AND ENTERED this 5th day of December, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2014. COPIES FURNISHED: Johnny L. McCray, Jr., Esquire Law Office of Johnny L. McCray, Jr., P.A. 400 East Atlantic Boulevard Pompano Beach, Florida 33060 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast Thirteenth Street, Suite E Fort Lauderdale, Florida 33316 (eServed) Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether the Respondent's employment as a teacher with the Petitioner should be terminated.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; § 1001.32, Fla Stat (2004). At all times material to this proceeding, Mr. Epstein was employed by the School Board as a music teacher at Twin Lakes Elementary, under a continuing contract with the School Board. Mr. Epstein was first employed by the School Board in a part-time position in February 1978. Mr. Epstein took a full- time teaching position at Twin Lakes Elementary in 1980, where he taught continuously until he was given an alternate work assignment in June 2003. Mr. Epstein has not previously been the subject of disciplinary action by the School Board. Mr. Epstein consistently received satisfactory annual evaluations during his employment at Twin Lakes Elementary. Although he did not receive an annual evaluation for the 2002- 2003 school year, he received a satisfactory observation during that year. In addition, Mr. Epstein was named Teacher-of-the- Year at Twin Lakes Elementary during the 1988-1989 school year.3 Mr. Epstein had daily access to a computer that was owned by the Miami-Dade County public school district and placed in his classroom. The classroom computers were to be used to develop instructional programs and to gather lesson materials from the Internet. Mr. Epstein and all of the teachers at Twin Lakes Elementary were required to read and adhere to the school district's Acceptable Use Policy for the Internet. Late in the 2001-2002 school year, Mr. Epstein asked Jesus Vigo, a microsystems technician, to check his computer because Mr. Epstein could not access the Internet. Mr. Vigo checked the Internet history file to find out when Mr. Epstein had last accessed the Internet. In the history file on Mr. Epstein's classroom computer, Mr. Vigo found several addresses for pornography web sites. After he made certain that Mr. Epstein's computer was operating properly, Mr. Vigo reported to Michele Lam, the computer coordinator and media specialist at Twin Lakes Elementary, that he had found "questionable" web sites on Mr. Epstein's computer. Ms. Lam believed that Mr. Epstein had most likely visited these web sites accidentally, and she told Mr. Vigo not to tell anyone that he had found the addresses on Mr. Epstein's computer. Instead, Ms. Lam told Mr. Vigo that he should regularly monitor Mr. Epstein's computer. Mr. Vigo monitored Mr. Epstein's computer once a week, at random, for approximately four months, until he left his job at Twin Lakes Elementary. During this time, Mr. Vigo found no questionable web-site addresses in the Internet history on Mr. Epstein's computer. No one regularly monitored Mr. Epstein's computer after Mr. Vigo left Twin Lakes Elementary. A new microsystems technician, Pedro Valdes, began work at Twin Lakes Elementary in September 2002, and, in January 2003, new computers were installed in all the classrooms. These computers operated through the Miami-Dade County public school district's mainframe computer, and the software loaded onto the computers was approved by and licensed to the school district. The mainframe also had a filter that prohibited access to certain web sites from the school district's computers. In February 2003, Mr. Epstein complained to Ms. Lam that he was having problems with his computer. When Mr. Valdes tried to fix the computer, he found that several software programs had been loaded onto the computer. Mr. Epstein admitted that he had loaded Netscape, an Internet browser, so that he could access music sites that he could not access using the school district's Internet browser. Although he tried, Mr. Valdes was not able to fix Mr. Epstein's computer completely, and he moved on to other work. Finally, in April 2003, Mr. Valdes fixed Mr. Epstein's computer and made certain that all of the school district's software was working properly. In early May 2003, however, Mr. Epstein told Mr. Valdes that he could not get into his computer. Mr. Valdes examined the computer and, when he saw that the computer's recycle bin was full, he decided to empty it. When Mr. Valdes opened the recycle bin, he saw that there were several addresses for pornography web sites, as well as addresses for other types of web sites. When Mr. Valdes discovered these web-site addresses, Mr. Epstein admitted to Mr. Valdes that he had downloaded and viewed pornographic videos on the school district computer, in addition to using the computer's Internet access to locate and download information from music and instructional web sites. Mr. Epstein also admitted to Mr. Valdes that he had deliberately by-passed the school district's Internet filter in order to gain access to the pornographic material. Mr. Valdes told Mr. Epstein that he should not view such web sites on the school district's computer, but he agreed not to tell anyone about his discovery. Nonetheless, after he thought about it, Mr. Valdes felt obligated to report his discovery to Ms. Lam because he considered the matter so serious. Mr. Valdes was visibly upset when he told Ms. Lam about the pornography web site addresses. Ms. Lam and Mr. Valdes went to the office of Maria de Leon, the principal of Twin Lakes Elementary, and told her what Mr. Valdes had discovered on Mr. Epstein's computer. Ms. de Leon called Mr. Epstein to her office and, among other things, told him to cease using his classroom computer for any purpose. Mr. Epstein had been downloading pornography from the Internet and viewing pornographic videos in his classroom on the computer provided by the school district for approximately seven months prior to Mr. Valdes's discovery of the pornography web site addresses. Mr. Epstein knew that access to these pornography web sites was blocked by the filter on the school district's mainframe computer, which is the reason he devised a strategy for circumventing the filter. Mr. Epstein downloaded pornographic videos onto the school district's computer at night, during the workday when students were in his classroom, and during the workday when no students were in the classroom. Mr. Epstein always turned the computer monitor off when he was downloading pornography during class time, so that the students could not glance at his computer and see the material he was downloading. Mr. Epstein also hid the downloaded pornographic videos in folders hidden within other folders, so that it would not be obvious to a substitute teacher who logged onto his classroom computer that pornographic videos were stored in the computer. Mr. Epstein never viewed pornographic videos when students were in his classroom. He did, however, view the videos during the times of the school day when he was expected to plan and prepare lessons, and he also viewed these videos after the students had left school for the day, generally between 3:00 p.m. and 4:30 p.m.4 Mr. Epstein viewed pornographic videos and masturbated in his classroom approximately 15 to 20 times during the spring of 2003, after the students had left school for the day but during the time he was expected to work on lesson plans. When he viewed pornographic videos and masturbated in his classroom, Mr. Epstein was careful to lock the classroom door.5 Mr. Epstein took precautions to conceal his activities because he knew that his activities violated School Board rules, and he also did not want the materials to be discovered by a student, a substitute teacher, or anyone else. Even though Mr. Epstein took care to see that his classroom door was locked when he viewed pornographic videos and masturbated in his classroom, there was a risk that he would be interrupted. The Twin Lakes Elementary custodial and administrative staff, including secretaries, had keys to all of the classrooms. Occasionally, a parent would return to school with a student who had left something in a classroom, and a school employee would escort the parent and student to the classroom and use his or her key to enter the classroom. The pornographic material that Mr. Epstein downloaded and viewed on his classroom computer did not involve children. It was, however, obscene, as defined by the School Board in its Acceptable Use Policy for the Internet.6 Ms. de Leon decided to try to keep information about Mr. Epstein's activities confidential because she was very concerned about the reaction of the parents of the children attending Twin Lakes Elementary and of the community as a whole. Ms. de Leon knew that many of the parents of the children attending Twin Lakes Elementary were conservative Catholics who were very protective of their children.7 Ms. de Leon believed that if news of Mr. Epstein's activities became known in the community, Twin Lakes Elementary "would have been in the first page of the [Miami] Herald for quite a long time."8 On May 6, 2003, the day Mr. Valdes discovered the pornography web-site addresses on Mr. Epstein's computer, Mr. Epstein went to Linda Van Leer, the assistant principal at Twin Lakes Elementary, and asked that she put him on the agenda for the faculty meeting scheduled for that afternoon. Ms. de Leon had, by this time, notified Ms. Van Leer of the situation involving Mr. Epstein and of her decision to limit knowledge of the matter to as few people as possible. Mr. Epstein told Ms. Van Leer that he intended to make a statement to the faculty to assure the faculty members that the pornography he downloaded and viewed did not involve children and that he never viewed pornography when students were in the classroom. Ms. Van Leer was as concerned as Ms. de Leon about the disruption at Twin Lakes Elementary if information about Mr. Epstein's activities became known in the community, and she also believed that Mr. Epstein did not appreciate the ramifications of his announcing his activities to the faculty. Ms. Van Leer denied Mr. Epstein's request to speak to the faculty and told him not to speak of the matter to anyone except Ms. de Leon. Ms. de Leon reported Mr. Epstein's activities to the Miami-Dade County Public Schools police on May 6, 2003, and the investigation was assigned to Bradley Rosh on May 13, 2003. Sergeant Rosh found Mr. Epstein very cooperative during the investigation, and Mr. Epstein prepared a statement in which he described the nature and extent of his activities. Sergeant Rosh submitted his preliminary investigation report on July 16, 2003, in which he concluded that the allegations that Mr. Epstein had violated the School Board's Acceptable Use Policy for the Internet and the responsibilities and duties of School Board employees were substantiated. The investigative report was sent to the Office of Professional Standards for final disposition. Reinaldo Benitez, a district director of the Miami- Dade County Public Schools Office of Professional Standards, convened a Conference-for-the-Record on August 11, 2003, to discuss the investigative report and the charges against Mr. Epstein, to review his record, and to discuss his future employment status with the School Board. Mr. Benitez, Mr. Epstein, Ms. de Leon, and Marie Harrison, Business Director of ACCESS Center 1, participated in the Conference-for-the- Record. As reflected in the Summary of the Conference-for-the- Record dated August 22, 2003, the findings in the investigative report were discussed with Mr. Epstein, who admitted that he was guilty of the charge that he had downloaded pornographic videos into the school district's computer located in his classroom, that he was aware when he did so that he was violating School Board rules, and that he had used very poor judgment. Mr. Epstein apologized for his actions, and he requested that, if he were allowed to resume teaching, he be provided a computer without access to the Internet. According to the Summary of the Conference-for-the- Record, Mr. Epstein was assigned to an alternative work location at his home at the beginning of the 2003-2004 school year.9 As reflected in the Summary of the Conference-for-the- Record, Mr. Epstein was offered the option of submitting his resignation, which he refused. Directives were issued to Mr. Epstein at the Conference-for-the-Record, including a directive that he not visit Twin Lakes Elementary at any time. Mr. Epstein was also advised to "keep the information presented in this conference confidential and not to discuss this with any students or staff. Finally, Mr. Epstein was advised that, following a review by the School Board's attorneys, he would be notified of the recommended disciplinary action, which could include dismissal. On August 13, 2003, Ms. de Leon submitted her recommendation to Margarita Alemany-Moreno, Assistant Superintendent in ACCESS Center 1, that Mr. Epstein be terminated from his employment with the Miami-Dade County Public Schools. Ms. Alemany-Moreno sent this recommendation to Virginia Bradford, Assistant Superintendent in the Office of Professional Standards, with the concurrence of the staff of ACCESS Center 1. Mr. Benitez convened a meeting with Mr. Epstein on September 26, 2003, to address his pending dismissal by the School Board at its meeting on October 22, 2003. Ms. de Leon and Ms. Harrison were also in attendance. Mr. Benitez informed Mr. Epstein that the recommendation for his dismissal was based on charges of immorality, misconduct in office, and incompetency. Mr. Epstein was offered the option of resigning his position or pursuing disability retirement, which he declined. Mr. Epstein submitted a statement dated September 29, 2003, in response to the August 22, 2003, Summary of the Conference-for-the-Record. In this statement, Mr. Epstein did not withdraw his admission that he had downloaded and viewed pornographic videos on the school district's computer located in his classroom. The Superintendent of Schools notified Mr. Epstein in a letter dated October 8, 2003, that he was recommending to the School Board that Mr. Epstein be dismissed from his employment. The School Board suspended Mr. Epstein and initiated dismissal proceedings at its October 22, 2003, meeting. Mr. Epstein believes that he has had a sexual problem since he was a teenager, when he first became attracted to pornography. He began using the computer in his classroom to download and view pornography after his wife discovered pornography on their home computer. She became angry, and he decided to move his activities to his classroom computer in order to avoid further family conflict. Approximately three years ago, Mr. Epstein was diagnosed with a "sexual addiction," and he began sessions with a sexual therapist. Mr. Epstein attended four individual therapy sessions, but was released in December 2002. Mr. Epstein attended small group therapy sessions for approximately 12 weeks during the time he was seeing Mr. Gray, and he also attended weekly sessions of an "accountability recovery group" from March 2001 until December 2003, when he began working at the Sam Ashe music store. On September 15, 2003, Carlos Plasencia, a mental health counselor, examined Mr. Epstein and initially diagnosed Mr. Epstein with "sexual disorder not otherwise specified." Dr. Plasencia's diagnosis has evolved, and he now believes that Mr. Epstein's diagnosis is "impulse control disorder," with a sexual component.10 Mr. Epstein is in therapy with Dr. Plasencia, and, at the time of the final hearing, he had been taking Zoloft, an anti-depressant prescribed by a psychiatrist, for approximately two months.11 In Dr. Plasencia's opinion, Mr. Epstein's addiction to pornography began approximately 27 years ago, developed slowly over the course of 24 years, and progressed faster than usual over the course of the last two to three years." According to Dr. Plasencia, Mr. Epstein feels powerless to overcome the compulsion to view pornography; he has tried to stop this behavior and has been unable to do so, even though it has disrupted his family and, now, poses a threat to his job.12 In Dr. Plasencia's opinion, "[c]hances are very likely Mr. Epstein was preoccupied with the attainment of pornography while he was in school. I agree with that because he was viewing it in school and downloading it in school."13 Although Dr. Plasencia acknowledged that Mr. Epstein's addiction to pornography is a preoccupation that has significantly interfered with his life and the life of his wife and son, Dr. Plasencia does not consider Mr. Epstein emotionally unstable, in the sense that he does not have extremes in mood or behavior. Mr. Epstein has always been open during his therapy with Dr. Plasencia and has demonstrated a genuine desire to fix his problem. He has been motivated and has followed Dr. Plasencia's suggestions. Dr. Plasencia believes that Mr. Epstein's prognosis for recovery is good. Mr. Epstein considers himself a "recovering" sexual addict and explains his behavior at Twin Lakes Elementary in the spring of 2003 as a "relapse."14 Summary The evidence presented by the School Board establishes that Mr. Epstein has committed misconduct in office. Mr. Epstein admitted that he deliberately by-passed the Internet filter in the school district's mainframe computer and accessed pornography web sites on his classroom computer; that he downloaded pornographic videos onto his classroom computer while students were in the classroom, during planning periods when the students were in school but not in his classroom, and after the students were dismissed from school; that he viewed pornographic videos on the classroom computer during planning periods when the students were in school but not in his classroom and after the students were dismissed from school; and that he frequently masturbated in his classroom while he watched pornographic videos. Mr. Epstein admitted that he engaged in the activities described above for approximately seven months prior to May 2003, although the evidence presented by the School Board establishes that addresses for pornography web sites were found in Mr. Epstein's classroom computer as early as June 2002. The evidence establishes that Mr. Epstein took precautions such as turning off the computer monitor when downloading pornographic videos while children were in his classroom, hiding the computer folders containing the pornographic videos in other folders, and locking his classroom door when he viewed pornographic videos and masturbated. It may reasonably be inferred, however, that he took these precautions to keep his activities hidden from students and school personnel and not primarily to protect his students from harm. At the time he was committing these acts, Mr. Epstein knew his behavior violated School Board rules; he knew that he was exercising poor judgment; and he knew that, if he were discovered downloading and viewing pornographic videos and masturbating in his classroom, his job could be in jeopardy. By downloading and viewing pornographic videos on his classroom computer, Mr. Epstein violated the School Board's rule prohibiting the transmission of obscene material, and downloading and viewing pornographic videos on his classroom computer and masturbating in his classroom constitute conduct unacceptable in a School Board employee. Mr. Epstein viewed pornographic videos and masturbated during his workday rather than planning lessons and engaging in other pursuits that would enhance his abilities as a teacher. The School Board, therefore, paid Mr. Epstein for time during which he did not work. Mr. Epstein could not use his home computer to download and view pornography videos because he feared discovery and disruption of his family life, so he used the classroom computer provided by the school district to satisfy his compulsion to view pornographic videos. Downloading and viewing pornographic videos and masturbating may not be considered objectionable when done in the privacy of one's home; these acts are, however, not consistent with the public conscience and good morals when, as here, they are done in the public space of an elementary school classroom. Nonetheless, the evidence presented by the School Board is not sufficient to establish that Mr. Epstein's activities have become public knowledge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding that Daniel J. Epstein committed misconduct in office and that he should be dismissed from his employment as a teacher pursuant to Section 1012.33(4)(c), Florida Statutes. DONE AND ENTERED this 26th day of May, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2004.
The Issue The issues are whether Respondent threw a chair at one student, missed him, but hit a desk that impacted and injured another student; if so, whether such conduct constitutes a violation of section 1012.27(5), Florida Statutes (2018), or any of the various School Board Policies (Policies) or Department of Education rules (Rules) discussed below; and, if so, whether Petitioner's termination of Respondent is consistent with the provision of progressive discipline set forth in the Collective Bargaining Agreement for the period, July 1, 2017, through June 30, 2020 (CBA).
Findings Of Fact Respondent is a 61-year-old teacher holding educator certificates in middle school mathematics and business education. Petitioner has employed Respondent as a classroom teacher since 2005. Respondent has no prior discipline. Since 2012, Respondent has taught at Turning Point Academy, which is an alternative school operated by Petitioner. The students at Turning Point Academy have been expelled from, or repeatedly disciplined at, other schools and range in age from 14 to 17 years old. In December 2018, 90 to 95 students were enrolled in the school, but absences, usually unexcused, averaged about 40% each day. The school building is organized with several classrooms opening onto a common area, where a behavior intervention associate (BIA) sits at a desk, ready to help a teacher in an adjoining classroom control disruptive student behavior. In each common area are restrooms and an eating area. The BIA serving Respondent's common area on the date in question had ten years' experience as a BIA and 22 years' prior experience as a sheriff's deputy. Respondent has been fully trained in appropriate interactions with students and classroom management. Respondent's evaluations for 2016-18 were all "Effective"; her evaluation for 2019 was "Highly Effective." However, the assistant principal of the school was dissatisfied with Respondent's classroom management skills. In response to what he viewed to be an excessive number of office referrals, the assistant principal had recently directed Respondent to take care of the behavior problems herself and had assigned her to take a two-part program on classroom management. The assistant principal also directed Respondent to use the school's system of assigning tally marks for good and bad behavior. Absent seriously inappropriate behavior, the tally system requires three bad tally marks before the teacher could refer a student to the BIA, who then could decide whether to refer the student to the office. The record is silent as to the effectiveness of the tally system in shaping student behavior in general, but it is unlikely that the two student disrupters at the center of the incident on December 20, 2018, were deterred by the prospect of a few (more) bad tally marks. During the 2018-19 school year, Respondent taught math to students in sixth through eighth grades. The class at issue was a 100-minute, eighth-grade math class that took place late on the day of December 20, 2018, just before winter break. Midway through the class, which was attended by six students on that day, three students began acting up. Respondent promptly intervened, and one of the students returned to his work. However, the other students left their assigned seats without permission. One student ran toward the back of the classroom, and the other student ran toward the front of the classroom, where Respondent was situated at her desk in the corner opposite from the corner at which the door to the common area was located. The students were yelling profanities and tossing paper in the air--some of both of which were directed at Respondent. One or both of the students demanded to know where Respondent lived and what kind of car she drove in a clear attempt to intimidate her. The student running toward Respondent invaded Respondent's space, as he ran behind her desk in the narrow space between her desk and the whiteboard, where he seized a marker, taunted Respondent that he had the marker, and wrote the word, "fuck," on the whiteboard. The class was equipped with a buzzer to summon the BIA, but the buzzer was located by the classroom door on the opposite side of the room from Respondent's desk. It is unclear if it occurred to Respondent to tell another student to hit the buzzer, but she never did so and had never previously done so. Instead, Respondent leaned over the depth of her desk-- about three feet--and grasped a lightweight chair with a plastic back and seat and metal legs. She shoved or pushed the chair briskly across the tile floor in the direction of the student who had rushed her desk, even though he was now careening toward the classroom door along the front of the classroom in the space between the whiteboard and the first row of desks. The chair missed the fleeing student, but struck the wall under the whiteboard with sufficient force that it ricocheted into the desk of a student who was seated, watching this incident unfold. The chair caused the desk to topple onto the right knee of the student. In his deposition, the injured student testified that, in addition to the ice applied to the knee immediately after the incident, the only treatment that his knee required was a couple of weeks' rest. The next day, the injured student was back at school walking without favoring the injured knee. The assistant principal directed Respondent to telephone the injured student's parent and inform her what had happened, suggesting that the assistant principal considered the injury minor--or else, from a liability perspective, he would have made the call himself, rather than assign the responsibility for making the call to the staffperson who had caused the injury. Respondent made the assigned call to the injured student's parents--and, on her own, several others during the winter break to check on the child whom she had accidentally injured with the shoved chair. In her initial statement, Respondent stated that she had thrown the chair, rather than shoved it along the floor. The injured student testified that Respondent threw the chair above the height of the desks, but desks did not occupy the space between her and the fleeing student, so, at minimum, elevation was unneeded to hit the student with the chair. Other student testimony indicated that the chair did not rise above the tops of the desks. More importantly, Respondent remained behind her desk, and the chair was in front of the desk. If Respondent could gain the leverage to lean across the desk and grasp the chair, she would lack the leverage to throw it with any force at all. The proof establishes no more than that Respondent leaned across her desk and gave the chair a hard shove across the front of the classroom in the direction of the fleeing student. It is difficult to understand why Respondent would state that she had thrown the chair, if she had not thrown the chair in the common sense of the word, "throw," which is "to propel through the air by a forward motion of the hand and arm."1 Clearly, when she gave the statement to the school police investigator shortly after the incident, Respondent remained overwhelmed 1 Merriam-Webster online dictionary, https://www.merriam-webster.com/dictionary/throw. by what had happened to her in her classroom. Also, as demonstrated at the hearing, Respondent's language skills are not so highly developed that she would invariably differentiate between throwing a chair in the air and shoving a chair along a floor. Two key witnesses establish Respondent's condition during and immediately after the incident. According to the BIA, who saw Respondent a few seconds after the incident ended, Respondent was not angry, but was visibly shaken up and upset. She told the BIA that she had been afraid when the student charged her. The injured student testified similarly that Respondent's reaction was fear, not anger. Interestingly, the injured student admitted that he too would have experienced fear, even though the charging student was a classmate. Immediately after testifying to this fact, the injured student added that he had overheard the two disruptive students at lunch discussing school shootings--a highly sensitive issue in schools today and even more so in December 2018, only a few months after the Parkland shootings. Respondent claims that she acted in self-defense. There are two problems with this claim. First, objectively, Respondent did not act in self- defense, because, by the time that she shoved the chair, the student was running away from her, and she was out of immediate peril. On the other hand, the charging student had momentarily terrified Respondent, and it is not inconceivable that, in her fearful or panicked state, she formed a plan of action that, by the time she executed it, was a fraction of a second after the rushing student had turned to run across the front of the classroom. The second problem is the belated emergence of Respondent's claim of self-defense, months after the incident took place, but there are a couple of explanations. As noted above, Respondent's claim of self-defense is a little bit of a mislabeling. Perhaps the two students' outrageous behavior caused Respondent to feel that she needed to defend herself; without doubt, this behavior caused Respondent to react in fear and even panic. Perhaps Respondent did not find even the self-defense label for her claim until represented by counsel. Clearly, Respondent omitted numerous important details concerning the behavior of the two disruptive students in her initial statement--again, not surprisingly, as she was still overwhelmed by what had happened to her and that she had accidentally injured an innocent student--in fear, not in anger. Interestingly, when Respondent finally presented the additional details, the assistant principal rejected them as Respondent's "changing her story." This dismissal betrays Petitioner's misconception of the case, whose center is not the changed fact of the specific action that Respondent applied to the chair, but to her state of mind when she applied the action to the chair. Regardless of whether she had thrown the chair high in the air or shoved it along the floor, Respondent had been driven by the two disruptive students to a state of utter fear and likely panic. To the assistant principal and Petitioner generally, a second changing fact may have been that she acted in fear, not anger, but no competent evidence ever supported characterizing her state of mind as angry. Despite the myriad conferences, emails, and witness statements filling Petitioner's file, there is no thoughtful analysis of what motivated, or drove, Respondent to apply force to the chair in the direction of the fleeing student. To the contrary, Petitioner has ignored strong evidence on this crucial issue from two witnesses--one of whom is disinterested and exceptionally experienced and competent at reading demeanors, collecting evidence, and analyzing evidence. And this evidence clearly establishes the reaction of an older woman in a state of fear or panic, not anger. Nor did student testimony, besides from the injured student, support Petitioner's theory of the case. The deposition testimony of these students was of little value because it was vague or guarded. During a particularly unproductive deposition of one of the disruptive students, likely the one who rushed Respondent,2 the following exchanges occurred: Q: Okay, Mr. O, I want to make something very clear that we're not here today because of anything that you did. You're not in trouble or you're not here because you did something wrong. A: Uh-huh. Q: Okay. We just are trying to get some information and to see if you have any recollection of some events that occurred-- A. All right. Q: last school year in December. Do you recall giving a statement to school police about a situation that happened in Ms. Larson's class, a chair that was thrown? A: (Shakes head) Q: You don't? Say yes or no. A: No, ma'am. Q: All right. One moment please. Do you recall giving a statement to school police that you were getting papers off Ms. Larson's desk when a chair was thrown at another student? A: No. Who this go to? Q. Pardon me? A. Who this go to? Q. What is your question? A. Who do all this go to? 2 It is hard to identify individual students due to the redactions and absence even of students' initials in the Petitioner's investigative paperwork. Q. It's going before a judge in a case, a different case. A. I'm saying, so why do I got something to do with this? Q. Because you gave a statement to the school police. You were in class the day that Ms. Larson threw a chair and hit a student in his knee. A. I gave a statement? * * * [After the student refused to waive reading and signing]: Q. Okay. So we will have [the transcript] sent to Ms. Richardson. A. So this something that I got to go to court for? Q. Well, probably not. We might use your deposition instead of … . Remember, this has nothing to do with you. A. I thought-- Q. This is all about Ms. Larson. A. A deposition like when you get send sent to a program. Deposition of G.O., pp. 10-11 and 16-17. At bottom, Respondent found herself in a very bad situation not at all of her making. In a blatant attempt to reduce the classroom to utter chaos, rather than to cause a mere disruption, two students unfortunately seem to have succeeded in momentarily terrorizing a teacher into incoherence. Neither the school police officer nor any of Petitioner's supervisory employees saw the need to contact outside law enforcement. A document mentions a child protective investigator by name, but the record does not suggest that she pursued an investigation. The prevailing thinking among Petitioner's representatives seems to have been that Respondent was neither negligent nor reckless and that she did not intend to hurt the injured student, whose parents did not wish to pursue the matter due to the negligible injury. Understandably, no one seems to have analyzed the situation from the perspective of the actual target of the chair--the fleeing student--as such an exercise would have uneasily cast the real perpetrator as the victim. But such an exercise might have led Petitioner at least provisionally to set aside its fixation with the "fact" that Respondent had thrown the chair high in the air and, more importantly, its assumption that Respondent had acted in anger.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the charges set forth in the Administrative Complaint and reinstating her with full back pay. DONE AND ENTERED this 2nd day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2020. COPIES FURNISHED: Jean Marie Middleton, Esquire 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 (eServed) Nicholas A. Caggia, Esquire Johnson & Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) 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 Thomas L. Johnson, Esquire Law Office of Thomas Johnson, P.A. 510 Vonderburg Drive, Suite 309 Brandon, Florida 33511 (eServed)
The Issue The issue presented for decision in this case is whether Petitioner, the Pinellas County School Board (the "School Board"), should discipline Respondent, a teacher at Palm Harbor University High School ("Palm Harbor"), for classroom discussions provoked by the Columbine High School tragedy.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Since August 1994, Respondent has been employed as a high school classroom teacher by the Pinellas County School Board. During the 1998-1999 school year, Respondent taught world history, economics, honors economics, and law studies at Palm Harbor. He was also an assistant coach for the junior varsity football team. Prior to becoming a teacher, Respondent spent 15 years in the United States Air Force. During his military career, Respondent received extensive counter-terrorist training, including an individual terrorism awareness course aimed at instructing students on how to teach others to limit their vulnerability to terrorist selection and attack. Respondent came to teaching through the Department of Defense’s "Troops to Teachers" program, in which the military assists placement of retiring soldiers by paying a portion of their teacher salaries. On April 20, 1999, two students at Columbine High School in Littleton, Colorado, killed twelve of their fellow students and one teacher. The incident received massive press coverage. Pinellas County school administrators anticipated that the events at Columbine would be a matter of discussion in the schools the next day. Dr. Hinesley, the Superintendent of Pinellas County Schools, testified that his office made a "general communication" to all principals reminding them to have a safety plan and to calm the fears of parents and students. He testified that he left it up to the individual principals to decide whether to meet with their faculties to discuss a coordinated response to questions regarding Columbine. Bill Williamson, the Area I Superintendent directly responsible for Palm Harbor, testified that putting together a cohesive message for teachers to give students regarding Columbine was "an alternative," but that some individuals would have questioned the wisdom of a "boilerplate" message. Alec Liem, the Principal of Palm Harbor, testified that he made no communication to his teachers on the morning of April 21, 1999, as to how they should discuss Columbine with their students. He testified that the teachers are professionals and he expects them to teach their classes with the appropriate judgment, without specific direction from the principal. Mr. Liem testified that it was important for him as a school leader to present the issues to the school and discuss them openly. He went on the school’s closed circuit television system on the morning of April 21 and acknowledged that a tragedy had occurred on a high school campus in Colorado. He told the students that it was important they respect each other and recognize their differences as strengths, not weaknesses. He encouraged them to broaden their circles of friendship, to work closely with him to monitor safety on the campus, and to be "part of the solution and not part of the problem." Mr. Liem testified that his announcement was intended to set the tone for the day. He assumed that teachers would "follow that leadership in the classroom and provide opportunities for those types of discussions in the classroom." Respondent taught five periods of classes on April 21, 1999. He testified that there was no discussion of Columbine during first period, though he called for a moment of silence for the families after the Pledge of Allegiance. Respondent stated that the students in his second period class were "abuzz" over Columbine as they entered the classroom, and he therefore believed he should address the issue before commencing the day’s world history lesson. Respondent testified that this class was more inquisitive than the first, and asked many questions about events at Columbine. One student asked, "What’s a pipe bomb?" Respondent stated that another student piped up to give the address of an Internet site containing instructions on making pipe bombs. Respondent cut off the second student before he could give the address, saying, "We don’t need to do that. A pipe bomb is very devastating." Respondent testified that he told the students they need not be afraid of pipe bombs, because the investigation is likely to reveal that someone at Columbine knew what these students were up to and didn’t report it. He instructed his students to "keep a thumb on the pulse of people around you," to listen for threatening statements or hate sayings, to observe whether someone spends an inordinate amount of time on the Internet or reading "Soldier of Fortune" type publications, to note when "you see something like a pipe laying there" in someone’s house, and to report such things to school authorities. At this point, the students asked, "How will we know? What does a pipe bomb look like?" Respondent drew a simple sketch of a pipe bomb on the board. The drawing showed a pipe with caps on both ends, and a tail on one end representing a fuse. Respondent told the students that if they see a fellow student working on something that looks like this, they should report it. A student next asked what makes this device so deadly. Respondent answered that the maker will put "nails or something" in the pipe to do harm. He told the class that if they noticed someone taking a piece of pipe with end caps and packing it with nails or tacks "and possibly black powder," then they should report it. Respondent testified that his statements could not be termed "instructions" on how to construct a pipe bomb. He testified that he does not know how to construct a pipe bomb. He also stated that neither his drawing nor his discussion dealt with detonating devices such as blasting caps. The "fuse" he drew on the board was merely illustrative, not the means to actually detonate such a device. Respondent testified that nothing he said could be taken as encouragement to construct a pipe bomb. He emphasized to his students the extreme danger involved in dealing with explosives and that the most likely victims of pipe bombs are the people constructing them. A student then said that if someone threw a pipe bomb into the cafeteria at Palm Harbor, he would run from it. Respondent told the class that "terrorists don’t work that way. Terrorists will find where we’re most vulnerable to pre-place the bomb and then try to get you to circle in that area to detonate it." The students asked specifically about vulnerable areas of Palm Harbor, inquiring as to where they should look for bombs. Respondent spoke generally about being aware of their surroundings, and notifying the teacher if they walk into a classroom and see, for example, a backpack that doesn’t belong there. While emphasizing that the best protection is to spot a bomb before it has been placed, Respondent discussed the vulnerable areas of Palm Harbor: the library, the cafeteria, and the portable classrooms located in an open field behind the school. Respondent stated that the portables were a particular concern because the student population is evacuated to that area during fire drills or bomb threats. Respondent testified that the sketch of the pipe bomb may have stayed on the board for the remainder of the day. He testified that discussions similar to that held in second period also occurred during his fourth and fifth period classes. Respondent stated that none of these discussions lasted for more than five minutes, and that he completed his planned lesson in each of his five classes on April 21, 1999. Respondent testified that his purpose was to protect his students from harm. He believed the best way to do this was to empower them with knowledge of things they should look for around them, warning signs of the kinds of activities that culminated in the Columbine tragedy. His students were aware of his military background, and naturally came to him with technical questions regarding the previous day’s events. Respondent testified that he did not really think that all of his students were now able to go out and spot someone building a pipe bomb, but that "now they feel better knowing that they know how these people work, and they feel safe at school." On April 22, 1999, Robert Heinz, an Assistant Principal at Palm Harbor, received an anonymous phone call from a woman identifying herself as the parent of a Palm Harbor student. The caller told Mr. Heinz that Respondent had shown the class how to construct a pipe bomb and told the class that the most devastating impact on the school could be achieved by placing the bomb in a portable classroom, pulling the fire alarm to cause the students to assemble in the area of the portables, then detonating the bomb. Mr. Heinz reported the phone call to Mr. Liem, who instructed him to call the Office of Professional Standards ("OPS") and get specific directions on how to proceed. Mr. Heinz called OPS and spoke with Martha O’Howell, who is one of two OPS staff members who investigate allegations of employee misconduct and make recommendations as to discipline. Ms. O’Howell instructed Mr. Heinz to inform the School Resource Officer ("SRO"), the Pinellas County Sheriff’s Deputy assigned to Palm Harbor. Ms. O’Howell also contacted the SRO, Deputy David Webb. Deputy Webb contacted his superior, Sergeant John Davis, Jr., and told him he did not wish to conduct the investigation because it involved a teacher with whom he worked on a daily basis. With Sergeant Webb’s consent, Deputy Webb handed the investigation over to Deputy Peter Kolnicki, a substitute SRO who was scheduled to work at Palm Harbor on April 23, 1999. Deputy Webb phoned Deputy Kolnicki on the evening of April 22 to brief him on the matter. Deputy Webb provided Deputy Kolnicki with a list of students in Respondent’s classes. Deputy Webb highlighted certain names on the list as the best students to interview about the incident. Deputy Kolnicki stated that Deputy Webb believed these students "would be more truthful than others in the class." Deputy Kolnicki’s written report provides his summation of interviews with eleven students conducted on April 23, 1999. The student list provided by Deputy Webb contains handwritten notes by Deputy Kolnicki next to the names of more than eleven students, but the names of those students are mostly illegible. The written report indicates that five of the eleven students did not see a sketch of a bomb or hear Respondent discuss placement of a bomb during class, though one of the five stated that he heard from other students that Respondent drew a diagram of a bomb on the blackboard at some point during the day. The other six students generally corroborated Respondent’s version of events. Some of the students’ written statements were riddled with spelling and grammatical errors. In the interest of readability, the undersigned has corrected the more egregious errors without notation. Student E.A. wrote: The class was talking about the Colorado shooting and saying that the guys must have been pretty smart to make bombs. Some kids said no, anyone can make a bomb and you can find out from anywhere on the internet. We were all talking and saying that anyone who had the resources could make one. Coach Falls drew a sketch of a pipe bomb on the board because a student asked what one was. He explained what happened when one blew up. I didn’t think anything of the whole conversation. Coach treats us like adults and we carry on conversations all the time. To me, this was just a bunch of people talking about a big situation. He also said that a smart place to put it would be out by the portables. Student M.B. wrote: All I know is that Coach Falls drew a drawing on the board of a pipe bomb to show how easily kids have accessibility to it and how easy it was for kids to make it and anyone could do it. He did talk of where would be a good place to put one, but no one took it as serious talk. He wasn’t teaching us where to put a bomb, he was just showing how kids misinterpret things and how we need to catch them right away. (He said to put it in the portables.) Student M.D. wrote: Coach Falls was telling us how anyone who got mad enough had the resources to be able to make a home bomb. He was telling us how it wasn’t hard to find the information on how to build one. He then drew a diagram of the kinds of things that could be used to build one. I personally didn’t think anything of it. He said that the place to put it would be a portable. The three statements quoted above are similar not just in content but in form. Of particular note is the fact that each student mentions placing the bomb in the portables only parenthetically at the end of her statement. This fact leads to the inference that Respondent’s discussion of bomb placement made little impression on these three students, and that Deputy Kolnicki had to jog their memories at the conclusion of their statements to obtain any mention of this discussion. Student C.D. wrote as follows: On 4-21-99, Mr. Falls was discussing the events in Littleton, Colorado, the day before. The discussion turned to the bombs used in the assault. Mr. Falls told how the main part of the bomb was made, he also drew a diagram. He told how shrapnel was placed in the bottom of the casing, then the black powder and topped with more shrapnel and finally sealed with a fuse. Mr. Falls went further to say that most deaths associated with pipe bombs occurred during assembly. He also told us the most effective location would be one of the portables. He finished with telling us the consequences of even being in possession of bomb making materials and that plans (even for an atom bomb) could be found on the internet. Mr. Falls also added that the only reason he felt it necessary to demonstrate this was it was history in [the] making and we should know more about what happened in Colorado and we should be equally informed of the problems at hand. Deputy Kolnicki’s written report concluded as follows: Each student spoke very highly of Coach Falls and said that he was the most popular teacher on the campus. All of the students said that they did not believe Falls was trying to give them ideas on how to make a bomb or [where] to place it, but was simply trying to educate them about the Colorado incident and drew the diagram so that should a student come across such a device, they would recognize it and notify the faculty. Deputy Kolnicki testified that in his opinion it was a good idea to educate students about the existence of bombs and where to look for them. He testified that, based on his conversations with the students, he had no reason to believe that Respondent was doing anything other than trying to help his students protect themselves. Mr. Liem, the Principal of Palm Harbor, testified that his understanding of the facts was based on his reading of the police report and meetings with Respondent. He did not speak directly with the students. Mr. Liem stated that Respondent’s actions raised great concerns about the safety of the school and students, and created an atmosphere on campus that could exacerbate the existing climate of fear in the aftermath of Columbine. He was concerned with the potential for "planting seeds" with impressionable students by discussing the components and placement of pipe bombs in such detail. Mr. Liem was especially concerned that the discussion occurred in more than one class, an indication that Respondent was initiating the discussion rather than responding to student questions. Mr. Liem testified that Respondent put the students at risk of harm, though he did not believe such was Respondent’s intention. He testified that it is inappropriate under any circumstances to draw a diagram of a pipe bomb. Mr. Liem stated that it would be sufficient to tell the students that a pipe bomb is an explosive device in a pipe, without going into great detail. He stated that a student could be made aware of what a pipe bomb looks like without being instructed in its components. Ms. O’Howell similarly testified that the School District’s concern was not the fact that pipe bombs were discussed in the context of Columbine, but that "the specificity of the conversation went too far. It wasn’t necessary, the components of the pipe bomb, the how-to placement." She stated that discussion of placement of bombs in the portables was not "a necessary part of an awareness discussion." Unlike Mr. Liem, Ms. O’Howell testified that the sketch drawn by Respondent was acceptable. She stated that her discussions with Respondent led her to believe that he discussed placement of the bomb in the portables in the context of "doing maximum damage," and that Respondent did not mention having discussed bomb placement in other locations. Ms. O’Howell discussed Pinellas County Schools’ "Disciplinary Guidelines for Employees," Board Policy 8.25, which Respondent allegedly violated. She agreed that, of the 26 separate offenses listed in the policy, Respondent was charged with violating only Policy 8.25(1)(v), "Misconduct or Misconduct in Office." She disagreed that this is a "catch-all" offense, but conceded that "misconduct" is nowhere defined in the policy, and that the term is applied essentially on a case by case basis. Mr. Williamson, the Area I Superintendent, based his understanding of the facts on his review of the police report and the students’ written statements, as well as discussions with other administrators. He did not speak to Respondent or anyone else with direct knowledge of the events in the classroom. Mr. Williamson concurred with the recommendation that Respondent receive a ten-day suspension without pay. His chief concerns were that the remarks were "ill-timed" in light of the Columbine events, with the potential for encouraging "copycat" crimes, and that the conversations appeared to be teacher directed because they occurred in more than one class. He agreed that the drawing of the bomb was itself unobjectionable, but that discussion of the components of a pipe bomb and its placement for maximum impact were entirely inappropriate because "Mr. Falls does not know the mental state of every student in his class." Mr. Williamson testified that he received no phone calls complaining of Respondent’s actions, but that he was approached by two members of the School Board at a breakfast meeting. These School Board members told him they had heard complaints that this was "an outlandish kind of conversation to have, period, much less following the tragedy that occurred at Columbine." Mr. Williamson did not state whether the complaints had come from persons with first hand knowledge of what happened in Respondent’s classroom. Dr. Hinesley, the Superintendent, testified that he did not believe Respondent was trying to teach his students how to build a bomb, "but the outcome . . . could have very easily been that." Like the other administrators, Dr. Hinesley saw no problem in a teacher conducting a general "safety awareness" discussion of pipe bombs, but was disturbed by the detail and specificity of Respondent’s discussion as it was reported to him. Dr. Hinesley testified that his recommendation for discipline was based on the report he received from Mr. Liem, with which he concurred, and on the fact that Respondent appeared to show no remorse for his actions. Dr. Hinesley recommended a ten-day suspension in part by analogizing this case to cases in which students make threats. In both situations, he stated, the primary concern is that statements were made that presented a threat to the safety of students. Dr. Hinesley made no mention whether he considered the disciplinary guidelines for employees found in Pinellas County Schools Policy 8.25(3) in recommending discipline for Respondent. In summary, it is found that Respondent conducted his discussion with the intent of teaching his students to protect themselves. No evidence was presented to contradict Respondent’s statements in this regard. Indeed, most of the administrators who testified conceded that Respondent’s intentions were salutary. Nonetheless, it is found that the administrators’ concerns with the impact of the discussion were rational and well taken. While the evidence indicates that all of the students interviewed took Respondent’s presentation as he intended it, Mr. Williamson correctly pointed out that Respondent could not know the mental state of every student in his classroom. Respondent himself conceded that "I don’t know if a kid, when they leave my class for World War II, if they realize how bad the Nazis were or if these guys, in their own little demented mind, might go out and think, 'Hey! White power!'" Respondent simply expressed the hope that his students understood the context of his message, but admittedly did not know whether some student might make pernicious use of the information imparted in those discussions. The administrators also acknowledged that Columbine was an unprecedented event. In the immediate aftermath, no uniform response was provided by the Superintendent to the principals, and Mr. Liem in turn left the response to the individual teachers. Mr. Liem’s statement to the student body on the morning of April 21, 1999, while sounding the noble sentiment of reaching out and broadening circles of friendship, plainly was no answer to the practical questions students were asking. It was only natural that Respondent’s students, aware of his military background and training, would come to him for answers. With the best intentions, Respondent provided more technical detail than was necessary to answer those questions. Several of the administrators observed that Respondent’s actions were more egregious because they were so "ill-timed" in light of Columbine. It is found that Columbine plainly triggered the classroom discussions. Just as plainly, the fear generated by Columbine triggered the administration’s heavy handed response, which evinced less interest in understanding the context of the classroom discussion than in quickly and harshly punishing Respondent. Respondent testified that students came to him and told him that Deputy Kolnicki’s "interviews" consisted of sitting them down and asking two questions: "One, did you draw a pipe bomb on the board, and, two, did you mention the word 'portables?'" This is probably a subjective overstatement of Deputy Kolnicki’s actions, but is partially corroborated by the fact that three of the students’ written statements mention "portables" only as a parenthetical afterthought, at the obvious prodding of their interlocutor. Respondent also testified that at his four meetings with Mr. Liem and Ms. O’Howell, they appeared more interested in forcing him to express remorse and accept his punishment than in learning his version of events. Respondent also testified that he was not informed of his right to representation until the end of the second meeting with Ms. O’Howell and Mr. Liem. Ms. O’Howell disputed this statement, saying Respondent was informed of his rights prior to the second meeting. Even if Ms. O’Howell’s version of events is credited, the fact remains that one interrogation occurred without Respondent’s being informed of his right to representation. Dr. Hinesley’s basis for recommending a ten-day suspension was arrived at by likening Respondent’s statements to overt threats made by students. This reasoning is irrational even if one concedes that "student safety" is a concern in both instances. Dr. Hinesley’s logic would result in equivalent discipline being administered to a student threatening to bomb the school and a teacher providing information to students in an overzealous effort to teach them to protect themselves from a bomb. The two situations are not comparable. In conclusion, it is found that Respondent’s drawing and discussion of the construction of a pipe bomb and his discussion of the logistics of bomb placement did indeed go beyond what was necessary to ease the fears of his students after Columbine. It is also found that the administration of Palm Harbor and Pinellas County Schools overreacted to the situation in a similar effort to ease the fears of the public after Columbine. Once it was reported that, on the day after the Columbine tragedy, a teacher had shown students how to construct a pipe bomb and where to place it, the actual facts of the situation appear to have mattered less than swift and relatively harsh punishment of the alleged offender.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a final order finding that Respondent committed misconduct in office as defined in Rule 6B-4.009(3), Florida Administrative Code, in that he failed "to exercise the best professional judgment" as required by Rule 6B-1.001(2), Florida Administrative Code, and failed to make a reasonable effort to protect students from conditions harmful to their physical safety as required by Rule 6B-1.006(3)(a), Florida Administrative Code; and ordered that a written reprimand be placed in Respondent’s personnel file. DONE AND ENTERED this 11th day of February, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 11th day of February, 2000. COPIES FURNISHED: Jacqueline M. Spoto, Esquire Pinellas County School Board 301 4th Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Dr. J. Howard Hinesley, Jr., Superintendent Pinellas County School Board 301 4th Street, Southwest Largo, Florida 33770
The Issue The issue in this case is whether just cause exists to impose discipline on Respondent, David Meyer, for violating provisions of statutes, rules, and/or policies, and, if so, what discipline should be imposed.
Findings Of Fact The School Board is responsible for hiring, firing, and overseeing all employees within the Franklin County School system. There is one large public school in Franklin County: Franklin County School (the “School”), which contains grades pre-kindergarten through 12. There were approximately 1,220 students enrolled at the School in the 2014-2015 school year. There are approximately 170 employees working for the School Board. There is also a charter school and one private school in the county. At all times relevant hereto, Mr. Meyer was a teacher at the School. At the time of his termination from employment by the School Board, Mr. Meyer was teaching an alternative education class (referred to as “SOAR”) containing only a few students. His classroom was located in Building 8, Room 807, located just behind the School administrative building. Mr. Meyer has been employed by the School Board since 1990 and has held various teaching positions. He also served as the IT director for the School Board for approximately 10 years, but returned to the classroom in the 2013-2014 school year when Eagle Tree Technologies took over IT responsibilities. Mr. Meyer’s teaching certification is in science. During his entire career with Franklin County schools, he was never disciplined before the events related to the present case. Eagle Tree Technologies has a contract with the School Board to provide IT services to the School. Eagle Tree Technologies will be referred to herein as “the IT department.” In August 2014, i.e., at the start of the 2014-2015 school year during which all events of the present action took place, Mr. Meyer was tasked with teaching students in the SOAR program, a project intended to help children who were struggling with school for one reason or another, mostly behavioral or absentee issues. At the beginning of the school year, there were no students in Mr. Meyer’s classroom. Because he had no students of his own to teach, Mr. Meyer would fill in for teachers who were out sick, in training, or otherwise absent from their classrooms. As the year progressed, a few students were assigned to SOAR. Mr. Meyer basically taught those students in all of the core subjects, i.e., math, science, reading, language arts, civics, and history. When the first SOAR students were assigned, Mr. Meyer had several computers in his classroom: his teacher workstation, two or three student computers, his personal computer, and at least one laptop. At some undisclosed time in August 2014, Mr. Meyer was having trouble getting his teacher workstation to “come on right away.” In order to remedy that problem, Mr. Meyer “wiped” his computer and re-installed Windows 7. He did not check with the IT department before doing so, but admits that he probably should have. As a result of Mr. Meyer’s actions, the IT department could not access Mr. Meyer’s computer by way of its “TeamViewer” remote access program. Herrington left Mr. Meyer a note on his classroom white board, telling Mr. Meyer to reconnect to the School network. In December 2014, just prior to the School’s winter break, the IT department sent out an email to all staff warning against non-School Board-issued computers (including laptops) being connected to the School network. There was at that time a concern at the State Department of Education of potential computer hacking in statewide test sites. Personal laptops were a potential source for hacking. Mr. Meyer had, in fact, issued a warning against the use of personal laptops on the School system when he was the IT director back in 2013. Shortly after the IT department’s email warning went out, Herrington went into Mr. Meyer’s classroom and saw non- School Board computer equipment plugged into the School network portals. The equipment included a personal desktop computer, a laptop, and an external hard drive, among other items. Herrington notified an assistant principal, Ms. Walker, about what he had observed in the classroom. On January 6, 2015, Herrington, Ms. Walker, and Patty Kramer (media specialist at the School) went to Mr. Meyer’s classroom to confirm Herrington’s observations. The equipment was just as Herrington had reported. Per Ms. Walker’s direction, Herrington unplugged all the personal computer equipment from the School network. They stacked that equipment in one corner of the room and placed a sign saying “Personal” on top of the equipment. Before leaving the classroom, Herrington made sure that only School-authorized equipment was plugged into the school network. Meanwhile, Ms. Walker organized the classroom, cleaning up superfluous papers and books. The next day, January 7, Ms. Walker went back to Mr. Meyer’s room to address her findings with him, but he was absent from work that day. She came back on January 8 and talked with Mr. Meyer about what she had done two days earlier in his classroom. Ms. Walker also reminded Mr. Meyer that students were to work only on student computers, not on Mr. Meyer’s teacher workstation or on unauthorized laptops. She told him that the personal computer equipment should not be re- connected to the School system. About three weeks later, Ms. Walker went to see Mr. Meyer and saw a student sitting at the teacher workstation. She called Mr. Meyer outside the classroom and reminded him of their conversation earlier about students using his workstation. In February 2015, Herrington noticed that an inordinate amount of the School’s bandwidth was being used. He was able to track the use to Building 8 and then to Room 807, Mr. Meyer’s classroom. When he went into the room to determine what was causing the bandwidth usage, he saw that the personal computer equipment was again plugged into the School network portals. Conversely, the School Board-issued computers were not plugged into the network and their keyboards were in various states of disrepair. The teacher’s workstation was also plugged into the network. Herrington reported his findings to his supervisor, Ward, but did not address the situation with Mr. Meyer directly. On February 18, Herrington, Ward, and London went to Mr. Meyer’s classroom at approximately 6:00 in the evening to further investigate the personal computer equipment situation. They took pictures of the room and inventoried all the equipment found there. A computer audit was conducted of the computers found in the room. Herrington made copies of the computer internet histories and files. He attempted to copy the external hard drive but its contents were too extensive, so he took the hard drive back to his office where he had better copying capability. He was able to copy much – but not all – of the hard drive. The hard drive was then returned to Mr. Meyer’s classroom. Later, on or about February 24, Ward went back to Mr. Meyer’s room for the purpose of confiscating all of the computer equipment. The hard drive was missing at that time and, as of the date of the final hearing, has not been located. Mr. Meyer did not shed any light on the status of the external hard drive in his final hearing testimony. The computer audit showed that there were unauthorized computers and equipment connected to the School network, there were inappropriate internet sites visited on the computer and/or appearing on the hard drive, and there was some suspicious software on the computer. It also appeared that Mr. Meyer had attempted to circumvent the School network security system by plugging a “switch” into one of the school portals. There were two portals in the classroom, one for the teacher workstation and one for the teacher’s school-issued telephone. The switch gave Mr. Meyer the ability to allow other computers to access the teacher’s portal. This connection would presumably give users the ability to surf the internet with fewer restrictions than a student would normally encounter. Unfettered internet usage would increase the possibility of allowing a virus into the school network. That access could potentially give students the ability to access confidential school information. There was also a “bridge,” which provides some sort of network connection, at Mr. Meyer’s desk. He admits that he bought the bridge and brought it to the classroom. However, he was never able to figure out what it was to be used for and so he never connected it in the classroom. His explanation begs the question of why it was lying out on his desk, but that question was never answered at final hearing. The appearance of the bridge, in conjunction with the other devises, is – at the very least – suspicious. One of the unauthorized items found in Mr. Meyer’s classroom by the IT department was an external hard drive, which was connected to Mr. Meyer’s personal computer, which was, in turn, hooked up to the School District network. Mr. Meyer admitted bringing the hard drive to his classroom. He would transport it in his backpack and, on most days, take it home at the end of the school day. The hard drive contained a large amount of data and materials dating back several years. Ward and Herrington found many unauthorized programs on Mr. Meyer’s external hard drive, his teacher workstation, and/or his personal computers. On Mr. Meyer’s laptop computer, for example, there were programs that should only be used by the school network administrator, i.e., Ward and Herrington. Some of the unauthorized programs and material found on Mr. Meyer’s personal equipment by the IT department include: Windows Password Blocker – which could possibly have been used by Mr. Meyer to gain administrative privileges on his computer. This particular software can also help remove a password from a system so that an unauthorized person could access that system; IP Hider Pro – which is used most frequently to hide a user’s history on the internet, or, as Mr. Meyer maintains, it could be used simply to avoid advertisers who rely on a user’s history; A Hacker’s Life – which included a chapter about how to create a computer virus; Virtual Machine (VM) software – which gave Mr. Meyer’s laptop access to his teacher’s workstation; Inappropriate YouTube videos – including sexually- related videos, various prank videos, and others; A how-to book on oral sex – which included provocative pictures and explicit sexual language; and A list of XXX-rated sex questions – which also included provocative photographs and content. As to the Password Blocker, IP Hider Pro, Hacker’s Life, and VM software, Mr. Meyer said those were things he was curious about and investigated. He said that despite his IT background, he was not able to successfully install the programs and never was able to use them. Mr. Meyer’s explanation for the programs on his computer and hard drive is not persuasive and seems inconsistent with his IT background. There was also one instance when someone using Mr. Meyer’s personal computer made a Google search entitled, “Like a hacker; five steps.” If a student did that, it would be a problem; if Mr. Meyer made the search, it suggests more to the hacking issue than admitted by Mr. Meyer. As to the books on oral sex and sex questions, Mr. Meyer’s explanation seemed to change, depending on who asked him about them. In response to his counsel’s question, Mr. Meyer said he downloaded the books “last year sometime.” When asked again on cross examination, Mr. Meyer said that it might have been someone else who downloaded those things, he just did not remember. Although Mr. Meyer said none of his students saw those books, his failure to adequately supervise students means that he could not be certain of that fact. One concern of the School Board was that Mr. Meyer had a “TOR” browser installed on his computer. A TOR is generally used by people who are pirating movies and software and do not want to be detected. It is another tool, like the IP HiderPro, to help users avoid detection. Mr. Meyer admits using the switch and bridge; he asserts that the only reason for doing so was to have enough portals for his laptop, a personal printer, and sometimes other devises. The fact that it also allowed his students access to the internet while using computers in the classroom seems to be lost on Mr. Meyer. Mr. Meyer says he brought his personal computer and laptop into the classroom as a possible means of convincing his students not to destroy computer equipment. He reasoned that if he let the unruly students use his personal equipment instead of School-issued computers, they would be more likely to treat it properly. There is no credible support for this contention. The students had broken keyboards, mouse(s), and other equipment previously. And when they did so, Mr. Meyer did not contact the IT department to have the equipment repaired or replaced. Instead, he came up with the idea of replacing the equipment with his own personal equipment. The use of his personal equipment, however, violated School policies concerning outside, unauthorized equipment being connected to the School network. It was also a violation of School policy to allow the students to use his teacher workstation (even if, as Mr. Meyer alleged, other teachers allowed that to happen as well). The IT department did not find any actual harm to the school network caused by Mr. Meyer’s actions, nor did they find that a major security breach had occurred. However, it is clear there was a strong potential for harm and for a breach. For example, students were using the teacher workstation and the laptop to access social media sites and surf the internet. Students potentially had access to Mr. Meyer’s programs concerning hacking into a computer system. At one point, it was clear that Mr. Meyer’s teacher workstation and his personal computer were being used simultaneously. During that time, there were questionable and inappropriate internet websites being visited on the computers. For example, at least one person was accessing Facebook on the teacher workstation, a clear violation of School policy. Clearly, Mr. Meyer was not properly supervising students who were using the computers in his classroom. He, in fact, admits his failure to adequately supervise his students. His supposition that perhaps his daughter was using one of the computers while he worked on the other is not very likely when looking at the kind of sites being visited during the simultaneous usage. Mr. Meyer admits violating School policy regarding changing or altering a School computer by creating a second account on his workstation. He admits using the TOR browser on his personal computer when it was plugged into the School system. He admits putting a thumb-drive into his teacher workstation, but denies the IT department’s finding that he did so 10 to 15 times a day. Mr. Meyer admits that plugging additional devises into the School system could increase the potential for risk. Both the superintendent of schools and the principal at the School have serious reservations about allowing Mr. Meyer to hold any position at the School due to the fact that he could not be trusted to properly utilize the School computer system. While there could be ways to limit his access or restrict his usage, neither the Superintendent nor the Principal would be comfortable because Mr. Meyer could possibly find a way to circumvent the limitations or restrictions. There are essentially no teaching positions at the School which do not require some use of computers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Franklin County School Board, upholding the termination of Respondent, David Meyer's, employment for the reasons set forth above. DONE AND ENTERED this 14th day of September, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2015.
The Issue Whether just cause exists for Petitioner, Polk County School Board, to terminate Respondent’s employment as a teacher.
Findings Of Fact The School Board is the duly-constituted governing body charged with the duty to operate, control, and supervise public schools within Polk County, Florida. See Art. IX, § 4(b), Fla. Const.; and §§ 1001.30 and 1001.33, Fla. Stat. At all times material to this matter, Respondent was employed by the School Board as a classroom teacher at Lake Shipp Elementary School and held a professional services contract pursuant to section 1012.33, Florida Statutes. Respondent has spent the last 21 years as a teacher in Polk County. She has taught at Lake Shipp Elementary School since 1998. Respondent has not been the subject of any disciplinary actions by the School Board prior to this matter. On May 26, 2017, School Board Superintendent Jacqueline M. Byrd issued a letter (the “Termination Letter”) notifying Respondent that she was immediately suspending her from her teaching position and that Superintendent Byrd would recommend Respondent’s termination to the School Board. See § 1012.27(5), Fla. Stat., and School Board of Polk County Bylaws and Policies (“School Board Policies”) section 3140. The Termination Letter set forth the basis for Superintendent Byrd’s recommendation as follows: In December 2016, the [School Board] . . . received allegations that you were having inappropriate contact with a student via text messages. In a subsequent letter, dated October 6, 2017, the School Board expounded that Respondent violated Florida Administrative Code rules that require a teacher “to make a reasonable effort to protect students from harmful conditions, to not intentionally expose a student to unnecessary embarrassment or disparagement, and to not exploit a relationship with a student for personal gain or advantage.” See Fla. Admin. Code R. 6A-10.081(2)(a)1., 5., and 8. At a meeting held on June 13, 2017, the School Board adopted Superintendent Byrd’s recommendation and suspended Respondent, without pay, pending the outcome of this evidentiary hearing. Respondent’s actions that gave rise to Superintendent Byrd’s recommendation of termination occurred in November and December 2016. The student involved in this matter, Z.B., was ten years old at the time. Respondent was Z.B.’s fourth-grade math teacher. Also at that time, Respondent’s son, S.H., was nine years old. At the final hearing, Respondent explained that her son had difficulty making friends. During that fall, Respondent had observed Z.B. in her class. She believed that he would make a good playmate for her son. In October 2016, Respondent wrote a letter to Z.B.’s mother, Alita P., inquiring whether Respondent could get Z.B. and S.H. together to play. Ms. P. welcomed the invitation and supported the prospective friendship. Over the next few weeks, Respondent invited Z.B. on multiple playdates with her son. On one occasion, Respondent took Z.B. to the movies with S.H. Z.B. also joined Respondent and S.H. on a day trip to Legoland for which Respondent paid. Twice, Z.B. spent a weekend at Respondent’s house. During the sleepovers, Z.B. slept with S.H. in his bedroom. Respondent also gave Z.B. a college team sweatshirt, as well as purchased a skateboard and helmet for Z.B. so that he could join in with S.H. at a skate park. Ms. P. and Respondent also became friends during this period. They communicated frequently. Respondent requested all playdates through Ms. P. Respondent regularly texted Ms. P. while Z.B. was in her care. Respondent professed that she never made any plans for Z.B. without notifying Ms. P. Around this time, Z.B. experienced a contentious confrontation with another student. Respondent commented to Ms. P. that Z.B. was distressed and exhibiting disruptive behavior. To help the situation, Respondent offered to bring Z.B. lunch at school. She also allowed him to eat breakfast in her classroom. A few days after the incident, Ms. P. relayed to Respondent that Z.B. expressed that he was excited to return to school. Ms. P. thanked Respondent for helping Z.B. through his difficulties. On November 28, 2016, Respondent gave Z.B. a cellphone. Respondent explained that she had an extra, unused phone left over from a phone plan upgrade. Before Respondent provided the phone to Z.B., however, she expressly asked Ms. P. for permission. Not only did Ms. P. approve, but she was excited at how enthusiastically Z.B. accepted the gift. Respondent arranged for Z.B.’s cellphone to reconnect to her family phone plan so that he could text her and S.H.’s cellphones. Respondent also purchased several games (apps) for Z.B. to download onto the cellphone. One of these apps was a music program that allowed him to post videos of himself singing. Respondent had access to watch Z.B.’s videos. Respondent’s relationship with Z.B. (and Ms. P.) came to an abrupt halt on the evening of December 3, 2016. That night, Z.B. was staying with his father. (Ms. P. is divorced from Z.B.’s father.) Ms. P. called Z.B. just after 11:00 p.m. She asked what he was doing. Z.B. responded that he was texting Respondent. Because of the late hour, Ms. P. immediately became concerned. She instructed Z.B. to show the cellphone to his father. After taking the phone and scrolling through the text messages, Z.B.’s father became even more alarmed. A sample of the text messages Respondent sent to Z.B. from November 29 through December 3, 2016, includes: Just wanted to tell you goodnight. . . . See you in the morning. Love you like you are mine. [Z.B. responded with “Love you too.”] You really are the sweetest boy. . . . You’re a good person but you put on a show for people at school. I want you to be successful. You are very special to me. . . . There’s just something about you and your personality that I have grown very fond of. You know I love these late night talks we have. Love you too, yes I forgive you [for putting the phone away for the night], but you better prove it next week. Love you bunches that should make you smile. How much do you love me? Do I get more love? Gimme some love or I’m going to keep pestering you! Where’s my love? Gimme love or I’m taking [a gaming app] back. You can never have too much [heart symbol]. Call me later if you want . . . just call when you want. Those are some smokin hot videos you posted! [Respondent texted after viewing several videos Z.B. created using a music app.] You being a little hottie. Like a gangsta video. You breaking up with me???? In a number of other texts, Respondent wrote “love you” to Z.B. In an equal number of texts, Z.B. wrote to Respondent that he loved her. (In texts with Ms. P., Respondent wrote that she loved her as well.) Other text messages between Respondent and Z.B. included heart symbols and “face throwing a kiss” and “smiling face with heart-eyes” emojis. The cellphone had also been used to “FaceTime” Z.B. several times. Ms. P. believed that the language Respondent used and the sizable number of text messages she sent to her son were highly inappropriate. Therefore, just after Z.B.’s father confiscated the cellphone from Z.B., Ms. P. immediately texted Respondent and told her that she (and Z.B.’s father) had decided to return the phone. Ms. P. thanked Respondent for her “kindness and generosity.” But, she did not believe that Z.B. was “ready for that right now!” However, as Ms. P. and Respondent texted throughout the night of December 3, 2016, Ms. P. grew increasing disturbed at the content and “AMOUNT” of the text messages Respondent sent to her son. She finally informed Respondent that she felt it was best to return the phone and “squash it.” Shortly thereafter, despite Respondent’s repeated apologies at having caused any problems, Ms. P. wrote: The friendship is over! There are a few inappropriate texts on there that an adult doesn’t have with a 10yr old child not [sic] alone a student. I trusted you! On Monday morning, December 5, 2016, Ms. P. contacted Lake Shipp Elementary School to complain about Respondent’s interaction with Z.B. Ms. P. divulged that she believed that Respondent was carrying on an inappropriate relationship with her son. Immediately after this incident, Ms. P. was allowed to transfer Z.B. to a new school. Ms. P. testified that her son had become increasingly uncomfortable at Lake Shipp Elementary School. She disclosed that his behavior changed both at school and at home during the time he was the subject of Respondent’s attention. Currently, Z.B. is doing much better at his new school. Ms. P. relayed that Z.B. has not exhibited any of the behavioral issues that arose during that fall and is making straight A’s. At the final hearing, Respondent acknowledged sending the text messages to Z.B. Respondent also imparted that, as his teacher, she had grown fond of him. However, she adamantly declared that she had no improper intentions or motives other than to help Z.B. She was only trying to build his self-esteem. Respondent explained that she develops an attachment to the children she teaches. She has always made an effort to help students who have fallen between the cracks. When she finds a child who struggles, she wants to make them successful. Respondent pointed out that she did help Z.B. with math during their relationship. Respondent further testified that she used the word “love” to mean that she loved Z.B. like her own child. Respondent asserted that she cared for Z.B. just as any mother would have. Respondent also remarked that she bought Z.B. the skateboard and helmet only so that he could play with S.H. She denied that she ever FaceTimed Z.B. over the cellphone. Only S.H. and Z.B. used FaceTime. Respondent insisted that she never had anything but the best intentions for Z.B. Respondent asserted that anyone who perceived an improper or intimate relationship between them was jumping to the wrong conclusions and making incorrect assumptions. No evidence was produced at the final hearing indicating any inappropriate physical or sexual contact between Respondent and Z.B. Respondent called Joseph Palmer to testify on her behalf. Respondent taught Mr. Palmer’s son, D.P., in first and second grade. D.P. is currently in high school. Mr. Palmer expressed that Respondent was extremely helpful with his son in elementary school. Respondent was D.P.’s math teacher in first grade. She continued to help him with his math, reading, and speech skills throughout elementary school. Mr. Palmer relayed that, similar to Z.B., Respondent invited his son on a trip with her family to Legoland. Prior to the trip, D.P. spent the night at Respondent’s home. Mr. Palmer maintained that he was never concerned with, nor did he ever observe, Respondent act in an inappropriate manner with his son. Mr. Palmer proclaimed that he considers Respondent “like family.” Based on the evidence and testimony presented during the final hearing, the School Board proved, by a preponderance of the evidence, that Respondent committed “misconduct in office” in violation of Florida Administrative Code Rule 6A-5.056. Accordingly, “just cause” exists, pursuant to section 1012.33, for the School Board to dismiss Respondent during the term of her teacher’s contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order upholding its decision to dismiss Respondent, Kimberly Horbett, from her employment contract. DONE AND ENTERED this 2nd day of May, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2018.
