The Issue The issue in this case is whether there is just cause to terminate Respondent’s employment.
Findings Of Fact Mr. Overhoff began his employment with the School District on October 20, 2006, as a roofer in the School District’s maintenance department. As a roofer, Mr. Overhoff’s job duties included maintaining and repairing roofs of the School District’s schools and ancillary buildings. His duties also included procuring roofing materials needed on a job, when those materials were not available at the maintenance department’s central warehouse. The School District hired private contracting companies to do major roof repair, and Mr. Overhoff’s duties included meeting with the contractors to discuss the contract work being performed. At all times relevant to this case, Mr. Overhoff was a member of the Support Personnel Association of Lee County (SPALC). During June 27, 2008, through July 11, 2008, Mr. Overhoff resided at 4613 Vinsetta Avenue, North Fort Myers, Florida. Mr. Overhoff’s work hours were from 7:00 a.m. to 3:30 p.m. with a 30-minute unpaid lunch break and a 15-minute paid break in the morning and a 15-minute paid break in the afternoon. Mr. Overhoff reported to the School District’s maintenance office each morning to receive his work assignments for the day. Each employee was assigned more than eight hours of work to ensure that each employee would have sufficient work for the entire day. After receiving his work assignments, Mr. Overhoff gathered the materials he needed for his jobs that day and traveled to the various locations in the county to work on the School District’s buildings. He was expected to return to the School District’s maintenance office by 3:00 p.m. each day to complete the paper work for the roofing work that had been performed that day and to conference with his supervisors concerning work assignments. Mr. Overhoff was assigned a white pick-up truck owned by the School District and designated as M404. Mr. Overhoff was to use this vehicle to go to his work assignments pursuant to The School Board of Lee County Policy 7.04, which provides that employees who drive School District vehicles “shall [u]se the vehicle strictly for approved District business.” Sometime in April 2008, the School District received a call from a neighbor of Mr. Overhoff, who reported that a School District vehicle was parked in Mr. Overhoff’s driveway during work hours. Donald Easterly, the director of Maintenance Services for the School District, met with Mr. Overhoff in April 2008 to discuss the telephone call. Mr. Easterly made Mr. Overhoff aware that the use of a School District vehicle for personal use was prohibited and that personal business could not be conducted during work hours unless it was during a break. The School Board of Lee County Policy 5.33 prohibits the transaction of personal business on school time and provides: The following rules, regulations and guidelines are to be used to prohibit personal business on school time. No employee of the School District may conduct personal business on school time except for emergencies approved by the principal or Superintendent. No School District equipment or supplies shall be used to conduct personal business or any other activity not connected with the School District. During the time relevant to this case, employees in the maintenance department were allowed to stop at restaurants, convenience stores, and fast food establishments for their lunch and morning and afternoon breaks, if the stops were made while the employees were in transit to a job location. It had also been the practice to allow employees to stop by their bank, if the time was counted as break time, and the stop was while in transit to a job location. It was not permissible for an employee to use a School District vehicle to go to his home unless the employee had permission from his supervisor. In May 2008, the School District began installing Global Positioning Systems (GPS) on some of the vehicles used in the maintenance department. The selection of the vehicles for installation of a GPS was made at random. On June 2, 2008, a GPS was installed on the vehicle M404, which was driven by Mr. Overhoff. The superintendent of the School District has alleged in the Petition for Termination of Employment that Mr. Overhoff used a School District vehicle for his personal use on June 27, June 30, July 1, July 2, July 7, July 8, July 9, July 10, and July 11, 2008. Each day will be discussed individually below. On each day in question, Mr. Overhoff was driving the School District vehicle identified as M404. The locations to which the vehicle traveled and the times of arrivals and departures are based on the information captured by the GPS system installed in vehicle M404 during the relevant time periods. There has been no dispute concerning the accuracy of the information. At the end of each work day, Mr. Overhoff and other employees in the maintenance department were required to complete a daily labor sheet, which identified the work that was performed by work order number, task number, and description of the work; identified the location where the work was performed; and listed the amount of travel time and work hours for each work order. The time was to be listed in 15-minute increments. All locations where work had been performed were to be listed on the daily labor sheet. However, if an employee had to return to the maintenance department during the day, the time spent there was not usually recorded on the daily labor sheet. Mr. Overhoff had never been given any formal instruction on how to complete the daily labor sheet. He understood that the number of hours for travel and work should equal eight hours. His daily labor sheets did not always accurately reflect the locations at which Mr. Overhoff had stopped during the workday and did not always accurately reflect the time that he spent working at School District facilities. Prior to August 2008, the employees in the maintenance department were not required to list their break times on the daily labor sheets, and there was no requirement to list every stop made during the day. After August 2008, the maintenance department employees were required to accurately account for all their time during the day, including break times and stops at the maintenance department on Canal Street. June 27, 2008 On June 27, 2008, vehicle M404 was turned on at 6:29:07 a.m. at the maintenance department located at Canal Street. At 8:01:17 a.m., the vehicle entered the 7-11 store located at Southland Court, and, at 8:12:57 a.m., the vehicle departed the 7-11 store. At 8:31:17 a.m., the vehicle arrived at San Carlos Park Elementary School and remained there until it left at 9:19:27 a.m. The vehicle left San Carlos Park Elementary School and went to a Hess Station/Dunkin Donuts business, where the vehicle remained from 9:22:07 a.m. to 9:39:57 a.m. After leaving the Hess Station, the vehicle arrived at Lexington Middle School at 9:57:57 a.m. The vehicle departed the school at 10:16:17 a.m. and arrived at the Canal Street maintenance department at 10:40 a.m. The vehicle remained at the maintenance department until 11:01 a.m. The next stop for the vehicle was at 11:19:37 a.m. at Mr. Overhoff’s home, where the vehicle remained until 11:28:17 a.m. The vehicle left Mr. Overhoff’s home and went to One Price Optical in Cape Coral, Florida, where it arrived at 11:34:07 a.m. and left at 11:37:07 a.m. At 11:43:47 a.m., the vehicle arrived at Bank of America, and, at 11:44:17 a.m., the vehicle departed from the bank. The vehicle returned to Mr. Overhoff’s home at 11:51:58 a.m. and remained there until 11:53:17 a.m., when it departed for One Price Optical. The vehicle arrived at One Price Optical at 12:00:17 p.m. and left at 12:01:27 p.m. heading for Tanglewood/Riverside Elementary School, where it arrived at 12:22:37 p.m. and left at 12:37:47 p.m. The next stop the vehicle made was at another 7-ll store, where it arrived at 12:53:27 p.m. and left at l:01:57 p.m. The vehicle traveled past Mr. Overhoff’s house and arrived at One Price Optical at 1:18:17 p.m. and remained there until 1:33:47 p.m. From One Price Optical the vehicle proceeded to North Fort Myers High School, where it arrived at 1:38:37 p.m. and left at 1:52:17 p.m. From North Ft. Myers High School, the vehicle proceeded to the Professional Building on Dixie Parkway, arriving at 2:01:37 p.m. The vehicle remained stationary for 16 minutes and 40 seconds, circled the block around the Professional Building, and left at 2:21:37 p.m. From the Professional Building, the vehicle proceeded to Dunbar High School, arriving at 2:30:27 p.m. and leaving at 2:43:47 p.m. From Dunbar High School, the vehicle proceeded to the maintenance department at Canal Street, where it arrived at 2:53:47 p.m. Mr. Overhoff spent a total of 29.5 minutes in the morning at a convenience store and a service station. He spent from 11:01 a.m. to 12:01 p.m. on personal business, including stops at his home, a bank, and an optical business. The total time for his personal business was one hour. He left the maintenance department at 11:01 a.m. and could have taken his personal vehicle to run his personal errands and gone back to the maintenance department when he was finished. The locations where he conducted his personal business were northwest of the maintenance department. The next work assignment after he completed his personal business was located southwest of the maintenance department, which means that the errands that he was running were not on the way to a work assignment. In the afternoon, Mr. Overhoff stopped at another 7-11 store for 8.5 minutes, took a circuitous route by his home, and went back to One Price Optical. The amount of time that elapsed from the time he reached the 7-11 until he left One Price Optical was over 40 minutes. His home and One Price Optical were not located on a route that would have taken him logically to his next work assignment. Mr. Overhoff started his workday at approximately 6:30 a.m. Subtracting Mr. Overhoff’s lunch time and break times, Mr. Overhoff used .6 hours of work time above his allotted break times for his personal business. No evidence was presented to show that Mr. Overhoff took annual or sick leave for this time. Based on his daily labor sheets, Mr. Overhoff recorded eight hours of travel and work time for June 27, 2008. On June 27, 2008, a lens fell out of Mr. Overhoff’s glasses. Mr. Overhoff had permission from his supervisor, Michael Hooks, to go to an optical business to have the lens replaced. Mr. Hooks did not give Mr. Overhoff permission to stop by a Bank of America to conduct his banking business. The stop at the bank was not made while in transit to another job. Mr. Hooks did not give Mr. Overhoff permission to make multiple trips to One Price Optical. Mr. Hook had given Mr. Overhoff permission to stop by his house one time to check on Mr. Overhoff’s son. According to Mr. Overhoff, June 27, 2008, was the date that Mr. Hook had given him permission to stop to check on his son at home. Mr. Hook was not certain of the date that he gave such permission, but it was for one time only. June 30, 2008 Vehicle M404 left the maintenance department at Canal Street at 7:29:27 a.m. and arrived at Dunbar High School at 7:38:17 a.m. The vehicle left Dunbar High School at 7:38:17 a.m. and arrived at Kuhlman Concrete, LLC, at 7:40 a.m. The vehicle left Kuhlman Concrete, LLC, at 7:41 a.m. and arrived at North Fort Myers High School at 7:55:37 a.m. The vehicle left the high school at 8:50:27 a.m. and proceeded to Villas Elementary School, arriving at 9:02:47 a.m. and leaving at 9:31:57 a.m. The vehicle arrived at the James Adams Building at 9:45:37 a.m. and departed at 9:52:57 a.m., proceeding to a Hess Gas Station, where it arrived at 10:15:37 a.m. and left at 10:18:57 a.m. The next stop was at the North Fort Myers Academy of the Arts, where the vehicle arrived at 10:26:47 a.m. and departed at 10:41:17 a.m. The vehicle arrived at Diplomat Middle School at 10:59:27 a.m. and left at 11:35:37 a.m. From the Diplomat Middle School, the vehicle arrived at Mr. Overhoff’s house at 11:46:47 a.m., departed at 11:56:07 a.m., and arrived at North Fort Myers High School at 12:00:57 p.m. The vehicle did not stop at the school, but drove through the school grounds and left at 12:02:57 p.m. The vehicle turned in at Kentucky Fried Chicken at 12:21:57 p.m. and exited at 12:22:37 p.m. The vehicle proceeded to McDonald’s, arriving at 12:36:57 p.m. and leaving at 12:40:27 p.m. At 12:52:17 p.m., the vehicle arrived at Three Oaks Middle School and departed at 1:29:57 p.m. From the middle school, the vehicle proceeded to a Bank of America, arriving at 1:35:37 p.m. and leaving at 1:42:17 p.m. After leaving the bank, the vehicle went to South Fort Myers High School, arriving at 1:54:47 p.m. and leaving at 2:04 p.m. The next stop was Ray V. Pottorf Elementary School, where the vehicle arrived at 2:13:47 p.m. and left at 2:29:27 p.m. The vehicle proceeded to High Tech Central/New Directions, arrived at 2:37:57 p.m., drove through the campus, and exited at 2:44:57 p.m. At 2:54:07 p.m., the vehicle arrived at the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for three minutes mid-morning. At lunch time, he stopped at his home for nine minutes. The stop at his home was not authorized and was not in transit to another job location. The travel time to and from his home was eight minutes. He turned into a Kentucky Fried Chicken restaurant for 40 seconds. According to Mr. Overhoff, he went into the Kentucky Fried Chicken parking lot to take a telephone call or open a work folder. The next stop is a McDonald’s fast food place where he remains for 3.5 minutes. According to Mr. Overhoff, this is another stop to do paperwork. In light of his earlier stop at Kentucky Fried Chicken, Mr. Overhoff’s testimony is not credited. Additionally, Mr. Overhoff’s general assertions that his many stops at convenience stores were to do paperwork is not credible. He was given 30 minutes at the end of each work day for the specific purpose of completing his paperwork. The many inaccuracies in his paperwork do not support his assertion that he was making stops to keep his paperwork accurate and in order. Later in the afternoon, he made a six-minute stop at Bank of America. The side trip to the bank did not appear to be on a logical route to his next work assignment. Thus, four minutes’ travel time is assessed for the bank trip. The total time for his personal business was 33.5 minutes. July 1, 2008 On July 1, 2008, vehicle M404 left the maintenance department on Canal Street at 7:03:37 a.m. and arrived at a gas station/convenience store off Metro Parkway at 7:10 a.m. Leaving the convenience store at 7:14 a.m., the vehicle proceeded to Three Oaks Middle School, arriving at Three Oaks Middle School at 7:39 a.m. and leaving at 8:16 a.m. From the middle school, the vehicle traveled to Ray V. Pottorf Elementary School arriving at 8:36 a.m. and leaving at 8:41 a.m. The vehicle returned to the maintenance department at 8:50 a.m. and remained there until 9:16 a.m. The vehicle proceeded to Bonita Middle School, arrived there at 9:52 a.m., and left at 10:22 a.m. The next stop was Orange River Elementary School, where the vehicle arrived at 11:01:27 a.m. and departed at 11:05:27 a.m. At 11:12 a.m., the vehicle stopped at a restaurant/convenience store and remained there until 11:33 a.m. The vehicle arrived back at the maintenance department at 11:41 a.m. and departed at 12:20 p.m. The vehicle arrived at Trafalgar Middle School at 12:55 p.m. and departed at 1:18 p.m. The next stop was Gulf Middle School, where the vehicle arrived at 1:27 p.m. and left at 1:40 p.m. At 1:48:57 p.m., the vehicle arrived at Bank of America off Skyline Boulevard. The vehicle left the bank at 1:56:07 p.m. From the bank at Skyline Boulevard, the vehicle proceeded to the Bank of America at Viscaya Parkway, arriving at 2:09 p.m. and leaving at 2:19 p.m. At 2:23:07 p.m., the vehicle arrived at One Price Optical. The vehicle left One Price Optical at 2:27:07 p.m. The next stop was the James Adams Building, where the vehicle arrived at 2:44 p.m. and left at 2:46 p.m. At 3:02:57 p.m., the vehicle was parked at the maintenance department. The stop at the convenience store in the morning consumed ten minutes of Mr. Overhoff’s morning break time. The lunch at a restaurant took 21 minutes. In the afternoon, Mr. Overhoff stopped at two banks for a total of 17 minutes. Another stop was made at One Price Optical for four minutes. The stop at One Price Optical was not authorized and, based on the map contained in Petitioner’s Exhibit 7, the trip was not on the route back to the next job location. Thus, the travel time from the last bank stop, four minutes, should be added to the time. The time expended on personal business was 56 minutes. July 2, 2008 On July 2, 2008, vehicle M404 left the maintenance department at 7:04 a.m. and arrived at the James Adams Building at 7:13 a.m. The vehicle left the James Adams Building at 7:56 a.m. and arrived back at the maintenance department at 8:05 a.m. The vehicle left the maintenance department at 8:27 a.m. and arrived at the 7-11 store off Metro Parkway at 8:33 a.m. The vehicle left the 7-11 at 8:37 a.m. and returned to the James Adams Building at 8:50 a.m. At 8:57 a.m., the vehicle left the James Adams Building and returned to the maintenance department at 9:04 a.m., where it remains until 9:26 a.m. The vehicle arrived at Fort Myers High School at 9:41 a.m. and left at 9:56 a.m. Arriving at Orange River Elementary at 10:18 a.m., the vehicle remained until 11:03 a.m. when it proceeded to the Taco Bell off Palm Beach Boulevard. The vehicle reached Taco Bell at 11:05 a.m. and left at 11:38 a.m. At 11:47 a.m., the vehicle arrived at Edgewood Academy, where it left at 11:50 a.m. The vehicle arrived at Dunbar High School at 11:59 a.m. and departed at 12:05 p.m. From Dunbar High School, the vehicle proceeded to Mr. Overhoff’s house, where the vehicle remained from 12:27:17 p.m. to 12:30:07 p.m. At 12:49 p.m., the vehicle arrived at the James Adams Building, where it remained until 12:57 p.m. From the James Adams Building, the vehicle proceeded to a 7-11 store located off Winkler and Colonial Boulevard. The vehicle arrived at the 7-11 at 1:09 p.m. and departed at 1:11 p.m. At 1:17 p.m., the vehicle arrived at Lowe’s Shopping Center off Colonial Boulevard and Ben C. Pratt Parkway. The vehicle left the shopping center at 1:27 p.m. The next stop was Colonial Elementary, where the vehicle arrived at 1:34 p.m. and departed at 1:36 p.m. The vehicle returned to the maintenance department on Canal Street at 1:47 p.m. and remained there. In the morning, Mr. Overhoff went to a convenience store, which was not in route to a job location. The time spent at the convenience store was four minutes and the travel time to and from the convenience store from the maintenance department was 12 minutes for a total of 16 minutes for his morning break. Mr. Overhoff had lunch at Taco Bell for 33 minutes. In the afternoon, Mr. Overhoff stopped at his home for almost three minutes; however, the stop at his home was not on route to any job location. Thus, the travel time to his home and back to the next job should be included in any break time. The travel time for the trip home was 41 minutes, and the total time taken for his trip home was 44 minutes. The stop at his home was not authorized. Mr. Overhoff’s excuse for the stop at his home was to get boots and use the bathroom. His testimony is not credited. Mr. Overhoff testified that he needed his boots to clean off water, but the job in which he had been cleaning off water was before he stopped at his home. In the afternoon, Mr. Overhoff stopped at a convenience store for two minutes and went to Lowe’s for ten minutes. The stop at Lowe’s was not authorized. The stops at the convenience store and at Lowe’s were not in transit to another job location. The travel time should be calculated based on the time it took to get from Lowe’s to his next work location, which was 14 minutes. The total time that Mr. Overhoff spent on personal business was 1.95 hours. Thus, Mr. Overhoff spent .95 hours above his allotted break time for his personal business. No evidence was presented that leave was taken, and his daily labor sheet showed that he worked for eight hours on that day. July 7, 2008 On July 7, 2008, vehicle M404 left the maintenance department on Canal Street at 7:22 a.m. and proceeded to a 7-11 at the corner of Winkler and Colonial Boulevard, arriving there at 7:33 a.m. and leaving at 7:38 a.m. The vehicle arrived at Ray V. Pottorf Elementary at 7:43 a.m. and left at 9:35 a.m. The next stop was Lexington Middle School, where the vehicle arrived at 9:51 a.m. and departed at 10:05 a.m. From Lexington Middle School, the vehicle went to Fort Myers Beach Elementary School, arriving at 10:18 a.m. and leaving at 10:22 a.m. The vehicle arrived at Tanglewood/Riverside Elementary School at 10:46 a.m. and left at 11:04 a.m. At 11:21 a.m., the vehicle returned to the maintenance department at Canal Street. Leaving the maintenance department at 12:04 p.m., the vehicle proceeded to Dunbar High School, arriving at 12:10 p.m. and leaving at 12:23 p.m. At 12:39 p.m., the vehicle arrived at Crowther Roofing and remained there until 12:52 p.m. The vehicle made another stop at One Price Optical at 1:12 p.m. Leaving One Price Optical at 1:21 p.m., the vehicle arrived at Taco Bell off Santa Barbara Boulevard at 1:27 p.m. and left at 1:46 p.m. The vehicle arrived at Mariner High School at 1:53 p.m. and departed at 2:09 p.m. At 2:14 p.m., the vehicle entered the Publix Shopping Center off Santa Barbara Boulevard, departing at 2:17 p.m. From 2:22 p.m. to 2:37 p.m., the vehicle was stopped at a warehouse. At 2:44 p.m., the vehicle arrived at Mr. Overhoff’s house, where it remained until 2:47 p.m. At 3:07 p.m., the vehicle returned to the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for five minutes in the morning. In the early afternoon, he made a nine- minute stop at One Price Optical, which was not an authorized stop. He stopped at Taco Bell for 19 minutes. He went to a Publix Shopping Center for three minutes, to a warehouse for 15 minutes, and to his home for three minutes. The stops at the Publix Shopping Center, the warehouse, and Mr. Overhoff’s home were not authorized, were for personal business, and were not in transit to a job location. Thus, the travel time from the shopping center to his home, which totals 12 minutes should be added to the time taken for personal business. The total time for personal business on July 7, 2008, was 65 minutes, which was five minutes above the allotted break times. July 8, 2008 On July 8, 2008, vehicle M404 left the maintenance department at Canal Street at 7:44 a.m., arrived at ALC Central/New Directions at 7:53 a.m., and departed ALC Central/New Directions at 8:23 a.m. The vehicle returned to the maintenance department at 8:28 a.m. and remained there until 8:41 a.m. At 8:58 a.m., the vehicle arrived at Tropic Isles Elementary School and remained there until 9:37 a.m. From the elementary school, the vehicle proceeded to the 7-11 store located off Pondella and Orange Grove. The vehicle arrived at the 7-11 at 9:39 a.m. and left at 9:42 a.m. From the 7-11, the vehicle proceeded to New Directions, arriving at 9:55 a.m. and leaving at 9:57 a.m. The vehicle returned to the maintenance department at Canal Street at 10:03 a.m. and departed at 10:33 a.m. The next stop was Cypress Lake High School, where the vehicle arrived at 10:56 a.m. and left at 11:28 a.m. From Cypress Lake High School, the vehicle traveled to Bank of America off Cypress Lake Drive. The vehicle arrived at the bank at 11:30 a.m. and left at 11:38 a.m. From the bank, the vehicle arrived at the 7-11 store off Metro Parkway at 11:45 a.m. and departed at 11:55 a.m. After leaving the 7-11 store, the vehicle proceeded to South Fort Myers High School, arriving at 11:59 a.m. and departing at 12:31 p.m. The next stop was Roofing Supply Company, where the vehicle stopped at 12:46 p.m. and left at 12:59 p.m. The vehicle proceeded to New Directions and arrived at 1:07 p.m. The vehicle remained at New Directions until 1:53 p.m. From New Directions, the vehicle headed to the maintenance department at Canal Street, where the vehicle arrived at 2:06 p.m. and remained. Mr. Overhoff stopped at a convenience store in the morning for four minutes, at a bank for eight minutes at lunch time, and at a convenience store for ten minutes at lunch time. These stops were made in transit to a job location. July 9, 2008 On July 9, 2008, vehicle M404 left the maintenance department at Canal Street at 7:12 a.m. and arrived at the 7-11 store off Metro Parkway and Colonial at 7:23 a.m. The vehicle remained at the 7-11 store until 7:30 a.m., when it left for Six Mile Cypress School, arriving at 7:42 a.m. and leaving at 7:53 a.m. The next stop for the vehicle was The Sanibel School, where the vehicle arrived at 8:29 a.m. and departed at 9:19 a.m., headed for Bailey’s General Store off Periwinkle Way. The vehicle arrived at Bailey’s General Store at 9:25 a.m. Mr. Overhoff made an authorized purchase of a 6-volt lantern at the store and left the store in the vehicle at 9:35 a.m. to return to The Sanibel School at 9:42 a.m. The vehicle remained at The Sanibel School until 10:29 a.m. At 10:39 a.m., the vehicle arrived at the 7-11 store off Periwinkle Way, where the vehicle remained until 11:02 a.m. From the 7-11, the vehicle traveled to Riverdale High School, where it arrived at 11:53 a.m. The vehicle remained at Riverdale High School until 1:36 p.m. The next stop was a convenience store on Palm Beach Boulevard, where the vehicle arrived at 1:42 p.m. and left at 1:46 p.m. From the convenience store, the vehicle proceeded to Edgewood Elementary School, arriving at 1:59 p.m. and leaving at 2:09 p.m. From Edgewood Elementary School, the vehicle traveled to New Directions/ALC Central, arriving at 2:16 p.m. and leaving at 2:23 p.m. The next stop was Dunbar High School, where the vehicle arrived at 2:28 a.m. and left at 2:56 p.m. The last stop was the maintenance department at Canal Street at 3:00 p.m. Mr. Overhoff stopped at a convenience store early in the morning for six minutes, at another convenience store at mid-morning for 23 minutes, and at a convenience store in the afternoon for four minutes. These stops were in transit to job locations. July 10, 2008 On July 10, 2008, vehicle M404 left the maintenance department at 8:30 a.m. and arrived at the Hess Service Station off River Road at 8:50 a.m. The vehicle remained at the Hess Service Station until 8:53 a.m., when it departed for Lee County Electric Company off Electric Lane. The vehicle arrived at the utility company at 8:56 a.m. and left at 8:59 a.m. The next stop was North Fort Myers Academy of the Arts, where the vehicle arrived at 9:06 a.m. and departed at 9:40 a.m. From North Fort Myers Academy of the Arts, the vehicle proceeded to Hector A. Cafferata, Jr., Elementary School, arrived there at 10:07 a.m. and left at 10:47 a.m. The next stop was Ida S. Baker High School, where the vehicle arrived at 11:05 a.m. and left at 11:26 a.m. At 11:29 a.m., the vehicle arrived at Gulf Middle School and left at 11:45 a.m. From Gulf Middle School, the vehicle traveled to Three Oaks Elementary School arriving at 12:41 p.m. and leaving at 1:11 p.m. The vehicle next arrived at Bonita Springs Elementary School at 1:30 a.m. The vehicle left Bonita Springs Elementary School at 1:55 p.m. and arrived at Lowe’s at Rolfes Road at 2:27 p.m. Mr. Overhoff made an authorized purchase at Lowe’s, and the vehicle left Lowe’s at 2:54 p.m. and arrived at the maintenance department at 3:04 p.m. Mr. Overhoff stopped at a convenience store for three minutes in the early morning and at the electric company for three minutes. The stop at the electric company was not an authorized stop. July 11, 2008 On July 11, 2008, vehicle M404 left the maintenance department at Canal Street at 7:34 a.m. and arrived at the 7-11 store off Lee Boulevard at 8:00 a.m. The vehicle remained at the 7-11 until 8:04 a.m., when it departed for Veteran’s Park Academy, where it arrived at 8:18 a.m. and left at 9:58 a.m. From Veteran’s Park Academy, the vehicle traveled to North Fort Myers High School, where it arrived at 10:45 a.m. and departed at 11:38 a.m. The vehicle returned to the maintenance department at Canal Street at 12:03 p.m., where it remained until 12:24 p.m. From the maintenance department, the vehicle traveled to the 7-11 store off Pondella Road, where it arrived at 12:39 p.m. and left at 12:43 p.m. From the 7-11, the vehicle traveled to Mariner High School, where it stopped at 12:57 p.m. and left at 1:28 p.m. The next stop was Riverdale High School, where the vehicle arrived at 2:07 p.m. and departed at 2:17 p.m. After leaving Riverdale High School, the vehicle went to Bank of America, arriving at 2:20 p.m. and leaving at 2:24 p.m. The vehicle left the bank and headed to Dunbar High School, where it arrived at 2:44 p.m. and left at 2:51 p.m. The last stop for the vehicle was at the maintenance department at Canal Street at 2:56 p.m. Mr. Overhoff stopped at a convenience store for four minutes in the early morning, at a convenience store for three minutes at lunch time, and at a bank in the afternoon for four minutes. The stops were in transit to job locations. The School District initiated an investigation into Mr. Overhoff’s use of a School District vehicle for personal business while on School District time. A predetermination conference was held on September 25, 2008. Mr. Overhoff appeared at the predetermination conference along with a representative of the SPALC. At the conclusion of the investigation, the School District determined that probable cause existed to impose discipline on Mr. Overhoff. On December 18, 2008, Mr. Overhoff was suspended with pay and benefits. By Petition for Termination of Employment, the superintendent for the School District recommended to the School Board that Mr. Overhoff be terminated from his employment. Mr. Overhoff requested an administrative hearing. On February 24, 2009, the School Board suspended Mr. Overhoff without pay and benefits pending the outcome of the administrative hearing. Mr. Overhoff had no prior disciplinary actions taken against him while he has been employed with the School District. Prior to the incidents at issue, Mr. Overhoff had received good performance evaluations. He is regarded by the director of maintenance for the School District as a good roofer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Overhoff violated The School Board of Lee County Policies 5.02, 5.29, 5.33, and 7.04; finding that Mr. Overhoff willfully neglected his assigned duties; suspending him from employment without pay from February 24, 2009, to September 30, 2009; and placing him on probation for one year. DONE AND ENTERED this 13th day of August, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2009.
Findings Of Fact Introduction At all times relevant hereto, respondent, Lawrence J. Ferrara, was an instructional employee of petitioner, School Board of Palm Beach County, Florida (School Board or petitioner). When the relevant events herein occurred, Ferrara was a classroom teacher under a continuing contract assigned to John I. Leonard High School (JIL) in Lake Worth, Florida. He has been employed as a classroom teacher with petitioner since August 16, 1965 and received his continuing contract of employment in June, 1969. He holds teaching certificate number 150262 issued by the State Department of Education and is certified in the areas of American Government and social studies for grade levels 7 through 12. Respondent received a bachelor of education degree from the University of Miami. His first assignment with petitioner was in school year 1965-66 at Lantana Junior High School. He remained there through school year 1967-68. At the end of that year, Ferrara was placed on a fourth year annual probationary contract because he had insufficient control of his classes. He transferred to John F. Kennedy High School for school year 1968-69, and received a continuing contract of employment at the end of that school year. Respondent then transferred to Boynton Beach Junior High School for the 1969-70 school year. Ferrara desired to teach at the high school level because he preferred to teach students having greater maturity and interest in learning. He secured an assignment to JIL in September, 1970, where he remained until his suspension in 1986. Ferrara was initially assigned to the social studies department teaching American History to the eleventh grade. He remained in that position until the fall of 1981. During this period of time, Ferrara's evaluations showed steady improvement in his performance, and Ferrara characterized the 1980-81 school year as the happiest and most enjoyable year in his teaching career. In fact, he referred only two students to the dean for disciplinary reasons during the entire year, and both were referred during the final week of school. Prior to the 1981-82 school year, Ferrara had a reputation as a good teacher, and his relationship with other faculty members was favorable. JIL sits on a forty acre campus in Lake Worth, Florida. During the relevant years the school had a student enrollment ranging in size from 2,200 to 2,850 students. Most recently its faculty numbered approximately 145. The principal is the chief administrator at JIL. In dealing with employees, the principal follows guidelines set out in the collective bargaining agreement with the Classroom Teachers Association (CTA), School Board policy, administrator's directives and the JIL Teacher and Student Handbooks. There are several assistant principals, including deans, who have been given authority to counsel with and reprimand employees. Among other things they are responsible for discipline of students. There are also guidance counselors who may counsel with other staff members and students as the need arises. The principal designates department chairmen who have authority to reprimand or evaluate teachers, and to recommend course assignments within the department. In the case at bar, Ferrara was assigned to the social studies department, which had approximately sixteen teachers. Its chairman was responsible for reviewing lesson plans of all teachers to insure that curriculum objectives were being met. This action is mandated by the School Board. At JIL lesson plans were required to be prepared one week in advance. In addition, faculty were required to prepare emergency lesson plans to be used by substitute teachers if the regular teacher was absent. Finally, the department head issued textbooks to each teacher who was obligated to turn in the books (or monies from the student) at the end of the semester or school year. According to the CTA-School Board contract introduced into evidence as petitioner's exhibit 9, and which is applicable to Ferrara's employment, Subsection A1. of Article II provides that "teachers are expected to serve on school committees, self-evaluation and accreditation committees, attend meetings and workshops . . . such service (to be) on a voluntary basis . . " Subsection A2. provides that "employees shall assume reasonable responsibility for the safe return of all school property." Subsection F4. of the same Article requires employees to "assume the responsibility for taking a positive approach to discipline and to maintain constructive classroom control." Subsection B1. of Article III prescribes a duty day for faculty at JIL of seven and one-half consecutive hours per day. Subsection B2. requires that an employee obtain approval from the principal to leave the school premises for personal reasons during the defined duty hours. Subsection E4. of the same Article provides that "the teacher shall be responsible for the preparation of daily lesson plans to be made available to the substitute in the absence of the teacher. Such plans shall be made in advance at all times." The School Board has also promulgated various "local" rules which pertain to suspension and dismissal of employees, as well as the rehabilitation process to be following once a teacher is cited for deficiencies. They apply to Ferrara's employment. School Year 1981-82 In the spring of 1981, Ferrara heard rumors that he was being reassigned the following school year from exclusively teaching eleventh graders to teaching ninth grade American Government classes as well. At the same time he learned that the teacher of an advanced history class was leaving JIL at the end of the school term. Ferrara approached the social studies de- partment head, Catherine Thornton, concerning the vacancy but was told the vacant slot had been promised to a new teacher named Martin. Ferrara then met with the JIL principal, Dr. Munroe, in June, 1981 and asked that his teaching assignment not be changed. During that meeting he criticized Munroe's selection of athletic coaches to teach in the social studies department. Ferrara considered the department as a dumping ground for coaches and other unqualified teachers. Ferrara's request was turned down and he was reassigned to teach three periods of ninth grade American Government classes and two periods of eleventh grade American History the following year. Moreover, JIL was on double sessions at that time, and Ferrara was switched from the early session (6:45 a.m. to 2:15 p.m.) to what he considered to be the less desirable second session that ran from 9:45 a.m. to 5:15 p.m. He was also required to teach during the last three periods of the second session. Ferrara was extremely displeased, and felt that he was being treated as the new teacher who was typically given the lower grade assignment and the afternoon shift. In an effort to get the new assignment changed, Ferrara met with the department head and later with Dr. Munroe. After having no success, he met with the area superintendent and finally the school superintendent. Their advice was to take the assignment, be evaluated and then see what happens. Ferrara thereafter approached five of the seven members of the school board seeking their assistance in overriding the reassignment decision. This too was unsuccessful. At one of the meetings in Dr. Munroe's office on September 4, one administrator said that if Ferrara was unhappy with the new assignment then maybe he should quit. By this time Ferrara had engaged the services of an attorney, and after he and his attorney were unsuccessful in persuading the administration to change the assignment, he instructed the attorney to file a civil rights action in federal court. This was done on July 29, 1982. The lawsuit sought, among other things, the reassignment of Ferrara to his former teaching assignment in the eleventh grade. That suit has remained pending since then, and at time of final hearing, was on rehearing of an order of the Eleventh Circuit Court of Appeals which affirmed the trial court's earlier dis- missal of the action. Charles L. Thornton (no relation to the department chairman) replaced Dr. Munce as principal at JIL in October, 1981. He had previously served as dean of boys at JIL in 1970-71 and recalled that he frequently visited Ferrara's eleventh grade class that year because Ferrara was having a "hard time" with his students. Before he left JIL in September, 1971, Thornton told the then principal of JIL that they had "problems" with Ferrara because of his inability to control his students. This was borne out by Ferrara's 1970-71 evaluation which cited Ferrara for deficiencies in no less than five areas, most of which were attributable to the fact that Ferrara was then an inexperienced high school teacher. When Thornton returned to JIL in October, 1981, he learned that Ferrara had hired an attorney to challenge the school's decision to reassign Ferrara to the ninth grade classroom. Even so, when Ferrara approached Thornton about changing his assignment, Thornton told Ferrara that no teacher assignments would be made mid-stream in the semester, but he would "revisit" the matter at the end of the semester. His denial was confirmed in a written memorandum to Ferrara. He also told Ferrara the change was not to be considered a demotion and that he would keep the same title, salary and number of work hours. At the end of the first semester, Thornton did not change respondent's course assignment because it would have disrupted the master schedule and he had some concern about respondent's performance. Unquestionably, ninth grade students are less mature and more difficult to control from a disciplinary standpoint than other students, but the subject matter of their coursework is easier than the subjects taught to higher grade levels. Although Ferrara considered his new assignment as being the most undesirable of all assignments in the social studies department, other teachers stated that it made no difference to them as to which group of students they were assigned to teach. During the batter part of the first semester, Ferrara was absent due to illness on several occasions. In the second semester he took a leave of absence for the entire semester due to illness apparently brought on by job stress. According to Ferrara, teachers assigned to the first session, which he preferred, were allowed to leave the school around 2:15 p.m. each day. Ferrara's classroom faced the parking lot and he could see them through his windows departing the school while he was required to remain there teaching until 5:15 p.m. He also acknowledged having "problems" with students during the last three periods of each day, and when coupled with the aggravation of seeing his colleagues leaving early, it induced a physical ailment which led to his taking the lengthy sick leave. During his second semester absence, Ferrara prepared no regular or emergency lesson plans for his substitute, although he was responsible for doing so for the entire year. His substitute contacted him for assistance, but Ferrara declined to offer any, saying it was the substitute's responsibility to do the work. It is noteworthy that Ferrara's substitute had some disciplinary problems when she took over his class, but after receiving assistance from the deans, she had only "minor" problems the remainder of the semester. Thornton prepared an annual evaluation of Ferrara in June, 1982, and gave him an overall rating of satisfactory. However, he found Ferrara deficient in the following areas: discipline of students, attending required extracurricular activities, teaching in a manner in which all students in the class could comprehend and relating in a more positive manner with his peers. Other than Ferrara's use of "various methods and materials," Thornton made no comments concerning Ferrara's areas of strength. The first deficiency was based upon Ferrara's inability to control the classroom environment. More specifically, Ferrara referred more students to the dean than any other classroom teacher at JIL, and for what appeared to be minor infractions. These included talking out of turn, squeaking a chair, going to the pencil sharpener without permission and leaving one's desk without permission. On some occasions Ferrara would refer entire groups of students. In all, Ferrara's referrals constituted around 25 percent of all referrals made by the 145 JIL faculty members. The dean of students was asked by Ferrara on at least three occasions to visit his classroom because his class was out of control. The dean observed that Ferrara had very little control over his students, managed the class "poorly," and concluded that very little learning was taking place. The dean discussed with Ferrara how to handle minor classroom infractions and advised Ferrara to review the JIL Handbook provisions regarding discipline. However, Ferrara was not responsive to these suggestions. Ferrara was also criticized because his students had difficulty in understanding "his approach to teaching." This was apparent from the fact that Ferrara had an extremely high rate of failure for his students. Ferrara himself conceded that his teaching performance began deteriorating in the 1981-82 school year and never again reached the level of performance achieved by him prior to that year. The evaluation noted that Ferrara did "not have an effective relationship with associates." This was confirmed through testimony that after his reassignment became effective, Ferrara would not speak to most of the members of the department, and no longer socialized with staff at the department's workroom. Even Ferrara acknowledged that after September, 1981 he became "reserved," did not talk to colleagues arid appeared unhappy and upset. Thornton required mandatory attendance by faculty at only two school functions each year: open house when parents, students and faculty met at the school, and graduation. Ferrara attended neither saying graduation was "too sentimental" and that he was always ill whenever open houses were held. Ferrara was given a copy of the above evaluation by Thornton, reviewed it and signed it on June 8, 1982. However, he told Thornton he disagreed with the contents of the evaluation. At their meeting, Thornton acknowledged to Ferrara that he had sufficient knowledge of the subject matter, and found Ferrara to be well-versed in his subjects. School Year 1982-83 Because of problems with Ferrara in 1981-82, the department chairman recommended that Ferrara be assigned to teach five ninth grade American Government classes in school year 1982-82. This recommendation was approved by the assistant principal for curriculum who draws up the semester schedule, and later by Thornton. While teaching a class in November 1982, respondent caught a student, K. B., mimicking him in class, grabbed the student by his arm and escorted him to his seat. He did so with such force that it left bruise marks on the student's arm. Ferrara was counseled by Thornton following this incident. In January, 1982, respondent gave a student an F in her coursework for disciplinary reasons. This is contrary to school board policy and resulted in the issuance of a memorandum by Thornton to Ferrara on January 21, 1983. Various former students of Ferrara during the 1982-83 school year testified concerning their impression of his teaching style and manner. Their comments included statements that he "wasn't normal" and was "different" from other teachers. It was established that he would not answer questions from many students, either ignoring them or telling them the answer was in the textbook. He called them "stupid," "immature" and "jackasses" on a number of occasions, that he `hated" teaching them, and told them he should be teaching a higher grade level but was being punished by the administration. It was further established that Ferrara frequently yelled in class, and that his efforts to discipline students were unsuccessful. After awhile, some students would make deliberate efforts to provoke Ferrara by beginning coughing, spells or squeaking their chairs, knowing that his efforts at discipline were merely a "show" and that they need not obey him. Ferrara would also frequently discuss in class his lawsuit against the school board without relating it to the subject matter. His most common teaching technique was to give students a reading assignment from the textbook and have the students answer the review questions at the end of the chapter. Only occasionally did he give a lecture. Most students indicated they did not learn a great deal in his class, and found the instruction boring. It was established that cheating frequently occurred when tests were given, and answer sheets were passed around while Ferrara was in the room. Many believed he was punishing them by keeping the windows shut and the air-conditioner turned off on hot days. Indeed, on one day in late April, Thornton went to Ferrara's class and found it extremely "hot" with the air-conditioner off and the windows closed. Ferrara was teaching the class wearing a sweater. Thornton ordered that the windows be opened to avoid having a student pass out from the heat. Ferrara justified his actions by contending the air-conditioner was frequently inoperative and that the windows often times stuck. This was disputed by the building maintenance chief. He also stated that he kept the windows closed because of traffic noises emanating from a nearby street. However, he conceded that he kept the students in a hot room on at least one occasion as punishment. Because of complaints made by parents and students to Thornton during the first semester, a conference was called by Thornton with respondent on January 28, 1983. At that time he gave Ferrara written notice that his behavior was "inappropriate," and that he must regain control of his classroom. On April 20, 1983, Thornton had a conference with Ferrara concerning an allegation that he had called a student an "ass." After Ferrara admitted this was true, Thornton told him not to call students such names again, that it would not be tolerated and that he should refer to the teacher's Code of Ethics which proscribed such conduct. On May 23, 1983, Thornton found two of Ferrara's students wandering in the hallway without a hall pass. They had been told to leave Ferrara's class, and that he did not care where they went. During the school year, Ferrara continued to disregard the requirement to complete lesson plans. On occasions when Ferrara was absent, the substitutes found no regular or emergency lesson plans available. Instead, the substitutes had to write their own plans and give assignments, without having any idea when Ferrara would return. The assignments completed by the students for the substitute teacher were thrown in the waste basket when Ferrara returned because he found them ungraded. However, substitute teachers do not normally grade papers. During the school year the dean of students continued to receive numerous discipline referrals from respondent. The reasons for referral were generally minor, which indicated Ferrara did not have proper control of his classes. In contrast, his substitute teachers did not experience this type of problem when they substituted for Ferrara. Some of the referred students were those who had no other disciplinary problems with other teachers. On some occasions, entire groups were once again referred to the dean. In short, there was no improvement in respondent's classroom management from the prior year. At the same time, the guidance counselors continued to receive numerous requests from students to transfer out of his classes. At the end of school year 1982-83, the department chairman wrote Thornton a memorandum which listed by teacher the number of textbooks missing or not returned to the teacher. Ferrara had sixty-three textbooks missing, which was far in excess of other department staff. In addition, although he returned twenty-three of forty-eight new textbooks assigned to him at the beginning of the semester for one course, seventeen were so defaced with obscenities that they were unusable. Ferrara did not deny that he lost the textbooks, but stated that some books were smaller than normal classroom size, and could be easily carried out of class in a concealed fashion by a student. He feared that if he began searching students, he would suffer possible repercussions from doing so. Despite these losses, Ferrara refused assistance from the area director of secondary education in creating a system of inventory and control for textbooks. In his annual evaluation prepared on May 26, 1983, Ferrara was cited for deficiencies in the following areas: teaching techniques, classroom environment, teacher attitudes and professional standards and work habits. In addition, Thornton attached to the evaluation a typed sheet containing specific recommendations for improvement in each of the four areas. The sheet noted that Thornton was "willing to provide (Ferrara) whatever assistance necessary in each of the . . . cited areas." Thornton also noted that Ferrara has strength in the areas of knowledge and understanding of the subject matter, appearance, educational qualifications and in adherence to the defined duty day. Thornton and Ferrara held several meetings concerning the annual evaluation. Each deficiency was discussed, and Thornton made suggestions on how to improve in those areas. However, Ferrara was not receptive to these suggestions, and complained of unfair treatment in his course assignments. He also repeatedly discussed his lawsuit. He continued to maintain he was better suited to teach the eleventh grade even though he was certified to teach both the ninth and eleventh grades. Thornton advised Ferrara he was responsible to his students no matter what other problems he believed he had, and that he should work to improve his performance. School Year 1983-84 In school year 1983-84, Ferrara's teaching assignment did not change. In fact, unlike the prior two years, Ferrara did not request a change in his teaching assignment. He also did not request a transfer to another school although these were procedures for doing so. 1/ Ferrara's failure to control his classroom continued into the new school year. During the year the assistant principal (dean) in charge of discipline visited Ferrara's classroom at least ten to fifteen times after Ferrara requested his assistance in regaining control of the classroom. On his visits the dean found a "hostile" atmosphere, and verbal exchanges taking place between Ferrara and his students. He concluded that no learning could take place in this atmosphere. The dean noted that no other regular teacher or substitute had such classroom management problems. Ferrara's referrals to the dean represented a larger number than all other faculty members combined. The dean also observed Ferrara telling his students that he did not like teaching immature ninth graders. Similar observations were made by another JIL dean. Ferrara was counseled by the dean who told him that students felt Ferrara did not like them, and that his discipline techniques were unfair. Testimony by Ferrara's students confirmed that his teaching style did not change. He continued to call them names such as "stupid" and "immature" and told them he did not enjoy teaching ninth graders. His lawsuit was also a frequent subject of class discussion. The students also complained that Ferrara refused to open the windows on hot days when the air-conditioning was inoperative because of outside noise. The latter complaint was noteworthy since Thornton had previously given written instructions to Ferrara on September 16 and 26, 1983 concerning complaints about Ferrara keeping the room too hot. During the year, a parent requested that she and her daughter meet with Ferrara and a school counselor concerning a problem the daughter was having in Ferrara's class. At the conference, Ferrara dwelled primarily on his lawsuit against the school board and did not seem concerned with the real purpose of the conference. This prompted a complaint by the parent against Ferrara. Students continued to request transfers out of Ferrara's classroom at an increasing rate. Although two guidance counselors advised Ferrara of these complaints, they observed no change in his behavior. Based upon student and parent complaints about a high failure rate, Ferrara was instructed by Thornton in October, 1983 to furnish each student with a mid-marking report (progress reports) advising them they were not performing to expectations. This report would alert students and parents that a student was in danger of failing. Although such reports are required by school board policy, Ferrara frequently did not prepare these reports. In fact, he advised Thornton he felt they were unnecessary and would not prepare them unless Thornton allowed teachers to complete them during class time. There were thirty-six weeks during school year 1983-84. All teachers were required to prepare lesson plans for each of those weeks, and to turn them in prior to the beginning of each school week. The plans were then filed, and in the event a teacher was absent, the substitute teacher would use the plans and instruct the class without a break in continuity. Ferrara was absent for three weeks in the spring of 1984. However, he left no regular or emergency lesson plans for his substitute. During his absence, the substitute had no disciplinary problems. When he unexpectedly returned to class after this absence, the students booed him, and then, according to the substitute, the "entire class went out of control." Ferrara thereafter required his students to repeat the work previously done for the substitute. Ferrara continued to ignore repeated requests by the department chairman to make lesson plans available. These requests were in the form of memoranda to all department personnel on August 25, October 5, November 17 and December 7, 1983 and January 17, 1984. As of February, 1984 he had turned in only three weeks' plans for the preceding twenty-week period. The department chairman wrote him a memorandum on February 10 requesting that such plans be filed. Even so, in June, 1984 the department chairman reviewed the lesson plans filed by department staff for the prior year. She found that Ferrara had completed plans for only five of the thirty-six weeks during the just completed school year. Of those completed most were generally unsatisfactory. Ferrara did not deny this, but pointed to the fact that two or three other department teachers were also continually tardy in filing their plans. This was confirmed by the department chairman. Ferrara began to come to work late and leave early during the school year although he was warned several times to adhere to the defined duty days. He also had the second highest rate of textbook losses for the social studies department. Because of Ferrara's continuing performance problems, Thornton placed Ferrara on a remedial program known as the Notice, Explanation, Assistance and Time (NEAT) procedure effective April 25, 1984. This procedure is designed to provide assistance to teachers having performance problems. Basically, it provides the teacher with an explanation of any deficiencies, assistance and guidance in the cited areas, and an "adequate" period of time in which to correct them. Its main purpose is to salvage an employee's career. In his letter, Thornton told Ferrara he was being placed on the NEAT procedure because of deficiencies in the following areas: inability to use acceptable teaching techniques; inability to maintain a positive classroom environment; inability to establish and maintain a professional and effective working relationship with parents, students and colleagues; and failure to submit proper records, including, but not limited to, progress reports and lesson plans, as required by the school center, the School Board and state law. Ferrara was given until October 16, 1984 to "fully correct these deficiencies." The two met in a conference May 4, 1984 to discuss the procedure and Ferrara's responsibility to correct the deficiencies by the established date. It was pointed out to Ferrara that he would be given time off to visit other personnel while seeking assistance, and that three individuals on the county staff were available for consultation on his noted deficiencies. Ferrara viewed the NEAT procedure as a "charade" and a way for the School Board to fire him. Although he admitted he resented being placed on NEAT, Ferrara stated he respected the system and did not intend to ignore it because he knew that to do so would give grounds to the Board to dismiss him. On May 30, 1984, Thornton prepared an annual evaluation reflecting the same deficiencies as were used to place Ferrara on the NEAT procedure. It also noted that Ferrara's areas of strength were his educational qualifications and his use of good oral and written language. Ferrara was given a copy of the evaluation and, although he disagreed with its contents, signed it on May 30, 1984. School Year 1984-85 On August 21, 1984, Ferrara met with Thornton and the assistant principal and discussed various types of assistance that were available to him which had not yet been provided. Ferrara told Thornton he was not interested in any assistance and walked out of Thornton's office. On October 22, 1984, Thornton advised Ferrara by letter that the following deficiencies required corrective action: continued failure to submit timely lesson plans; continued inability to establish positive rapport with staff, parents and students; continued failure to maintain a positive classroom atmosphere; and a continued deficiency in his teaching techniques. Ferrara was also told that there had been "some improvement in (his) performance," and that Thornton believed he was "making an effort to improve (his) performance, and because of this, the time for correcting his deficiencies under the NEAT procedure was being extended until the end of the school year. During the school year Ferrara's classroom management problems continued. For example, one guidance counselor observed that most of the students visiting her were students in Ferrara's classes. In fact, over half of the students she gave counseling to desired to transfer out of Ferrara's class and sought her assistance in doing so. The dean of students observed that some 35 percent to 40 percent of total disciplinary referrals by all teachers came from Ferrara, including six students at one time. This dean found most of the referrals unnecessary, and ones that could have been handled by Ferrara. In addition, she was called to Ferrara's classroom about four times each semester to calm down the class. It was established that the students deliberately "egged" Ferrara on, particularly when he made personal comments about them. Other credible testimony established that Ferrara's class was out of control on many occasions, and that this disruption affected the amount of learning that took place in the classroom. One dean suggested to Ferrara that he observe other teachers so that he might improve his classroom performance. In teacher-parent conferences, Ferrara preferred to discuss his personal problems with the school board administration rather than the problems that the student was experiencing. In other instances, Ferrara would not respond to requests by parents to contact them. On September 19, 1984, at Thornton's request, the area administrator, H. W. Berryman, visited Ferrara's classroom to observe and monitor Ferrara. This was the only teacher observation that Berryman had performed as an area administrator. On that particular day Ferrara needed some ten minutes to get the class started. Berryman noted that during Ferrara's lecture, only a few students were attentive, and that most were note-passing, carrying on conversations and creating mild disruptions which Ferrara failed to stop. However, Berryman complemented Ferrara on his knowledge of the subject matter and said his overall delivery was reasonably good. He suggested Ferrara take less time to "start-up the class, and to take steps to insure that his class was more attentive during the lecture. On October 4, 1984, Ferrara was observed by another administrator, Dr. Mona Jensen, for the purpose of assessing his teacher performance. This was also done at Thornton's request. Jensen is a consultant certified by the Florida Performance Measurement System (FPMS) and a trainer of other administrators in the use of FPMS. The FPMS utilizes a form for evaluating teacher performance by recording the types of effective and ineffective behaviors observed in four areas: management of student conduct, instructional organization, presentation of subject matter and communication skills. Dr. Jensen monitored Ferrara in these four areas and provided Thornton and Ferrara with a copy of her written report. Among other things, she observed a negative interaction between Ferrara and his students, and that there was a lack of positive reinforcement on the part of Ferrara. Some of his comments were caustic in nature, and he never smiled in class. Like Berryman, she observed students talking to one another and not participating in the activity. She recommended that improvements be made in all areas which her report addressed. On October 29, 1984, Ferrara was observed by Lois Biddix, who is also a FPMS certified state trainer. Biddix used the same type of form as did Jensen in evaluating Ferrara. On her visit, Biddix observed students talking to one another, and participating in activities unrelated to the lesson. She described the class as sedentary and lethargic, with students suffering from boredom and frustration. She attributed this to Ferrara's lack of enthusiasm and failure to introduce new content into the lesson. These observations were consistent with those made by Berryman and Jensen, and her recommendations for improvement were in the same areas as those of Jensen. Dr. Jensen returned to Ferrara's class for a second observation on January 31, 1985. While Ferrara spoke clearly and directly on that day, and had good communicative skills, Dr. Jensen found most students did not participate in the discussion. She also found a lack of positive reinforcement on the part of Ferrara. During the lecture, Ferrara demonstrated anger at a remark made by a student, and told the student that if she wanted a confrontation, he would gladly accept her challenge. Dr. Jensen's evaluation and notes were given to Ferrara after the visit. The recommendations for improvement were basically the same as those proposed by her in October, 1984. A number of Ferrara's 1984-85 students testified at final hearing. Their testimony painted a picture of continued class management problems. For example, it was confirmed that groups of students would collectively begin coughing at one time or squeaking their chairs in harmony to antagonize Ferrara or test his mettle. It was also confirmed that he continued to call freshmen "stupid" and "immature," that he told his students he hated teaching ninth graders and that the school administration was wrong in making him teach that level of students. He also discussed his pending lawsuit during class hours and referred to the school administration in a negative manner. On at least one occasion he discussed the qualifications or lack thereof of another department teacher. It was further pointed out that Ferrara refused to give credit for assignments given by his substitute teacher. There were complaints that Ferrara punished the students for talking by making them sit in a hot classroom without opening the windows or running the air-conditioning. There was also a "lot" of cheating during class even though Ferrara was present in the room. The general consensus of most students was that the class was boring, and that they did not learn a great deal in this type of environment. Ferrara was required to spend 7 1/2 hours each day on campus. 2/ During the year, he did not always arrive at school on a punctual basis or spend the required number of duty hours at school. On April 11, 1985, the department head wrote Thornton a memorandum criticizing Ferrara for his repeated tardiness, and leaving before 2:15 p.m. After Thornton notified Ferrara about this complaint, there was an improvement on his part. During the second semester of the school year, a guidance counselor, Elizabeth Konen, approached Ferrara and told him that the parents of one of his students desired a parent-teacher conference to discuss their child. Ferrara told Konen he did not have time to meet with parents. Konen found this to be the usual response of Ferrara whenever such a request was made. On another occasion, he wrote a note to Konen stating he had no time to meet with parents, but after Thornton intervened and ordered a conference, Ferrara attended. In December 1984, Thornton requested that Ferrara produce proof that he gave his students progress reports as required by Board policy. Ferrara could produce only two such reports, although he claimed four others had also been given reports. This was after Ferrara had been previously criticized on October 21, 1984 for the same deficiency. On January 8, 1985, Thornton again gave written notice to Ferrara that he give timely progress reports to all students who were failing or working below expectation. Even after this second warning, a student, S. Z., complained to Konen in February, 1985 that she had not been given a progress report by Ferrara. This was brought to Thornton's attention in a letter written by S. Z.'s mother. On March 25, 1985, Thornton wrote respondent a letter outlining his continued areas of "serious deficiencies," and his lack of improvement in those areas since being placed on the NEAT procedure. He was warned that unless there was "significant improvement," Thornton would have no choice except to recommend he be terminated. Ferrara was urged to implement the suggestions outlined in the letter, and was told that "any reasonable assistance" requested by him would be given. Despite receiving numerous criticisms for failing to turn in lesson plans, respondent did not turn in any lesson plans during the entire school year 1984-85. However, he did turn in a complete set of plans at the end of the year, but they did not indicate what part of the unified curriculum objectives had been met. On June 10, 1985, Ferrara was given his annual evaluation for the school year. It noted numerous continued deficiencies in three broad areas: classroom environment, teacher attitudes and professional standards and work habits. The only noted areas of strength were knowledge of the subject matter and use of proper grammar and written language. In his meeting with Thornton, Ferrara was told, among other things, that he should not make unprofessional remarks to his students, that he must adhere to defined duty days, that he must file lesson plans and progress reports on a timely basis, and his attitude with peers should improve. School Year 1985-86 Despite Ferrara's failure to correct all deficiencies by the end of school year 1984-85, Thornton made a decision to give Ferrara one last chance to rehabilitate himself under the NEAT procedure. On August 19, 1985 Thornton advised Ferrara by letter that the NEAT procedure was being extended until November 1, 1985 and that he must correct all deficiencies by that date. This gave, Ferrara a total of sixteen academic months under the remedial program. The letter also stated that if the deficiencies were not corrected by November 1, Thornton would make a recommendation to the Superintendent of Schools concerning Ferrara's employment status. Respondent had been criticized for giving an unusually high rate of failing grades to his students during prior years. It was established that his failure rate was substantially higher than for other teachers in school years 1981-82 and 1982-83. For example, his failure rates in 1981-82 and 1982-83 were 24 percent and 33 percent, respectively. In 1983-84, it was a little more in line (18 percent) with that of the other teachers to whom he was compared. After the first semester of school year 1985-86 had ended, Thornton reviewed Ferrara's grades and found the failure rate had been substantially reduced. Indeed, it was then slightly over 10 percent, thereby supporting Ferrara's contention that he had improved in this cited area of deficiency. On November 18, 1985, a thirty minute evaluation of Ferrara's class was conducted by Sandra Cowne, an assistant principal at JIL. Among other things, Cowne found that Ferrara still had no up-to-date lesson plan book. She noted that Ferrara was in need of improvement in four areas of performance. All other areas indicated satisfactory performance. On December 2, 1985, D:. Jensen visited Ferrara's classroom to monitor and evaluate his performance. The purpose of the visit was to determine if Ferrara had implemented the recommendations for improving instruction previously made after her earlier visits. Dr. Jensen asked to meet with Ferrara just prior to the hour of observation but he refused saying he didn't want to discuss anything. She then asked for his lesson plan and was given a plan that was too brief and had insufficient detail. During the actual observation, she found that Ferrara had not added any positive teaching behaviors to his technique although she had suggested this to him after her earlier observations. According to Dr. Jensen, Ferrara's main deficiency was that he failed to provide motivational or positive reinforcement to his students. She concluded that Ferrara was an ineffective teacher, ranking below average due to his lack of positive behaviors. A copy of her evaluation and notes was given to respondent. H. W. Berryman made a second visit to Ferrara's classroom on December 10, 1985 for a repeat evaluation. Berryman initially noted that Ferrara had heeded his prior advice from September, 1984, and had speeded up the start-up time for beginning his instruction. However, Berryman continued to be concerned with the lack of involvement by a large majority of the students in the classroom. Although he found that Ferrara had "in-depth content knowledge" of the subject matter, he concluded that Ferrara had "serious negative attitudinal problems in reacting to all of the students assigned to his classes." Several of Ferrara's students testified about their experiences in Ferrara's classroom during the first semester. They confirmed that respondent's teaching techniques had not changed from prior years. For example, it was established that the usual disruptions occurred during his class, such as students sleeping, passing notes, talking and generally being inattentive. Ferrara again called his freshmen students "immature" and "childish," and told them that he had been demoted to the freshman class because the school board could not fire him. It was pointed out that once he told the students that they were immature, Ferrara would lose control over the class. There were continuing complaints that the classroom was too hot, and that Ferrara told the students if they were unhappy about the room temperature to complain to the administration. On one occasion, he refused to move his classroom to an adjacent empty room even though a student had vomited on the floor and the stench remained after the area was cleaned. It was also established that Ferrara continued to talk in class about his pending lawsuit and the problems he was having with the school administration. During the first semester, Ferrara continued to send large numbers of students to the dean for minor infractions. He also sent as many as six at a time. Ferrara was now disciplining his students before referral by making them write repetitious sentences. However, this is considered to be an inappropriate form of discipline. This form of discipline prompted complaints from both students and parents to the administration. It was confirmed through testimony of an assistant principal that respondent's classroom control had not improved over a three- year period. This observation was concurred in by various guidance counselors who received visits from Ferrara's students. During the first semester of the school year, there was no improvement in respondent's professional relationship with his peers. He refused to speak to most colleagues, and openly expressed his disdain for the department chairman. When respondent was in the department workroom, the atmosphere was hostile and uncomfortable. Similarly, like in other years Ferrara did not attend open house. He also failed to provide adequate lesson plans as previously ordered on a number of occasions. At the end of the first semester, Thornton concluded that sixteen academic months was a sufficient time to allow Ferrara to correct his deficiencies. Finding that respondent was "damaging" his students, that no improvement in Ferrara's performance or attitude had occurred, that he was making no contribution to the school program, and that he was still besieged with student and parent complaints, Thornton concluded that disciplinary action was justified. Thornton did acknowledge that Ferrara had improved in the areas of adhering to duty hours, issuing progress reports, taking roll call and reducing the number of failures. Even so, he concluded that this was insufficient to satisfy his overall teaching performance deficiencies. Moreover, he found that Ferrara's effectiveness as a teacher had been impaired. Thornton accordingly recommended that Ferrara be terminated. Ferrara's suspension without pay became effective on February 19, 1986 and he has remained in that status since that time. Respondent's Case Ferrara traced all of his problems to what he perceived to be an uncalled for demotion to the ninth grade classroom in school year 1981-82. He felt it to be unjust, and an action which ignored the seniority he had attained over the years. He acknowledged that once the reassignment occurred he became demoralized and bitter and was never the same teacher again. Ferrara did not deny that he called students names. He also conceded that he had problems maintaining classroom discipline, but suggested he was being paid to teach, not to discipline. Ferrara further admitted he yelled at students, and sent a great many to the dean's office, but blamed much of this on a small group of students who always instigated trouble in his classroom. Ferrara asserted his classroom discipline would actually improve at times during this period, but that each time Thornton sent a note criticizing him, he became demoralized and would again lapse into his prior ways. Although Ferrara considered the NEAT procedure a means by which petitioner could fire him, he contended he attempted to correct his deficiencies. However, it was Ferrara's contention that only through reassignment to the eleventh grade could he actually improve and correct his deficiencies. He believes Thornton to be biased since Thornton is a defendant in Ferrara's lawsuit. However, independent administrators confirmed that the deficiencies cited in Thornton's memoranda were real, and that Ferrara had made no visible effort to correct most of them. Moreover, contrary to his assertions, Ferrara was accorded adequate notice, sufficient means and ample time to correct his cited deficiencies. In this regard, the School Board satisfied all regulations pertaining to the rehabilitation and dismissal of an employee. Ferrara also pointed out that Thornton prepared a special file called the "Larry Ferrara Drawer" in November, 1982 so that Ferrara's actions and performance could be documented. However, Ferrara's teaching performance was in issue by this time, and Thornton was simply conforming with various state, local and union requirements that potential disciplinary action have a well-defined paper trail. Ferrara did not deny he missed all graduations and open houses from 1981 through 1985. He justified his absence from graduation ceremonies on the ground they were too "sentimental," and stated he was always ill whenever open houses were scheduled. Ferrara denied that students were punished by keeping the room hot. He blamed the heat on an often inoperative and inadequate window air- conditioning unit in his classroom, and windows that were difficult to open. This was denied by the school maintenance chief. Various students corroborated Ferrara's claim that the air-conditioner did not always work, but it is found that Ferrara sometimes punished his students in this manner. Ferrara attempted to repudiate the testimony of former students who testified for petitioner at final hearing by offering favorable testimony of other former students. However, the latter testimony either pertained to time periods too remote to be relevant to this proceeding, or was discredited by more persuasive and credible testimony from petitioner's witnesses. Ferrara contended he prepared all required lesson plans but waited until the end of the school year to turn them in. However, even it this were true, this was contrary to school policy since such plans were required to be turned in the week before they were to be used. Ferrara suggested that most of his difficulties were caused by his creating "waves" at JIL. As noted above, he believed Thornton and the administration were biased against him because he had sued them, and because he had publicly criticized various school policies and individuals in the news media. But it was never established that such animosity existed, or if it did, that it played a role in the dismissal process. Finally, Ferrara professed a sincere desire to continue in the teaching profession, albeit at a more mature grade level. He does not wish to be terminated after a twenty-one year career. He desires to be reinstated at JIL and allowed to teach the eleventh grade as he did during the years 1970- 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of incompetency (inefficiency), misconduct in office, gross insubordination and willful neglect of duties as set forth in the Conclusions of Law, and that he be dismissed as-an employee of the Palm Beach County School Board. DONE and 0RDERED this 11th day of August, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1986.
Findings Of Fact On November 27, 1985, Respondent Samuel David Sorrells entered the seventh grade at Nautilus Junior High School. On January 10, 1986, Respondent did not have his textbook with him in his math class. He was given permission to get another book to use during that class, and when he did so another student took that book away from him. Respondent started cursing that other student. When a third student told Respondent to control his language, Respondent physically attacked that third student. On February 14, 1986, Respondent's apparent intention to cut school that day was thwarted when he was picked up by the Miami Beach Police Department and escorted by the police to school in time for his second period class. Although Respondent went to the physical education field, he refused to "dress out" for physical education, refused to stand where he was instructed to by the teacher, and then cursed the teacher and threatened her with physical violence. On March 17, 1986, Respondent was caught writing on the walls in the school hallways and in the school bathrooms. A conference among various school personnel and Respondent's mother was held on March 17, 1986, to determine how to best fulfill Respondent's needs. The recommendation by school personnel attending that conference was that Respondent would be better served by the educational alternative program at Jan Mann Opportunity School-North for the reasons that that school offers smaller classes so that more attention can be given to each individual student and there are more trained counselors available to assist the students with their specialized needs. Between November 27, 1985, when Respondent first enrolled at Nautilus Junior High School and April 8, 1986, when Petitioner determined that Respondent should be administratively re-assigned, Respondent was absent from school on 10 days and was suspended from attending classes on 18 additional days. Respondent received F's in all classes at Nautilus Junior High School although he is able to do the work given to him. He simply does not do it.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Samuel David Sorrells to the educational alternative program at Jan Mann Opportunity School-North until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 9th day of September, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1986. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Patricia Sorrells Simpson 1321 Biarritz Drive Miami Beach, Florida 33184
The Issue Whether Respondent violated sections 1012.795(1)(f), (1)(g), and (1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a), as alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2016). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent holds Florida Educator's Certificate 1128573, covering the areas of Elementary Education, English, English for Speakers of Other Languages (ESOL) and Middle Grades Integrated Curriculum, which is valid through June 30, 2021. During the 2013-2014 school year, until her voluntary resignation effective June 3, 2015, Respondent was employed as a language arts teacher at Gulf Breeze High School. Since that time, Respondent has been employed as a third-grade teacher at a private Christian academy in Pensacola, Florida. Material Allegations The material allegations upon which the alleged violations are predicated are, in their entirety, as follows: On or about July 19, 2008, Respondent illegally operated a boat while under the influence of alcohol. As a result of conduct, she was arrested and charged with Boating Under the Influence. On or about February 18, 2009, Respondent was adjudicated guilty of Boating Under the Influence. In or around January 2015 through March 2015, Respondent provided a forum where underage students illegally consumed alcohol and/or consumed alcohol in the presence of students. This conduct includes, but is not limited to, instances: in or around February 2015, wherein Respondent provided alcohol to underage students; and on or about March 20, 2015, when Respondent drove to J.H.'s, a student's, home, while under the influence of alcohol, and thereafter, attempted to drive J.H. while so inebriated. On or about April 24, 2015, Respondent illegally operated a motor vehicle while under the influence of alcohol. On or about May 26, 2015, as a result of the aforementioned conduct, Respondent was arrested and charged with DUI-Second Conviction More Than Five (5) Years After Prior Conviction. On or about April 7, 2016, Respondent pled nolo contendere to an amended charge of Reckless Driving; adjudication was withheld. Count 1 Count 1 alleged a violation based upon Respondent having “been convicted or found guilty of, or entered a plea of guilty to, regardless of adjudication of guilt, a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.” The Count was based on the two incidents described in paragraphs 3 and 5 of the Amended Administrative Complaint as follows: Boating Under the Influence -- 2008 On or about July 19, 2008, Respondent was maneuvering a boat onto a trailer at the Navarre Beach boat ramp. Her husband was driving their vehicle, and had backed their trailer into the water. As a result of actions at that time, Respondent was placed under arrest for Boating Under the Influence (BUI), a misdemeanor (her husband was arrested for Driving Under the Influence). Respondent entered a plea of no contest to the BUI offense and, on February 18, 2008, was adjudicated guilty. Subsequent to the final hearing, counsel for Petitioner researched the issue and discovered that the incident occurred prior to Respondent’s initial certification as a teacher. As a result, Petitioner correctly concluded and stipulated “that no disciplinary action should be taken as a result of this conviction.” Driving Under the Influence -- 2015 On April 24, 2015, Respondent and a friend drove, in the friend’s car, to Pensacola Beach for drinks. Respondent left her car in a Publix parking lot. Upon their return, Respondent correctly perceived that she was not fit to drive home. Her phone was dead, so she got into her car and started it in order to charge the phone. She called her son and asked that he come pick her up. At some point after calling her son, Respondent called her soon-to-be ex-husband, from whom she was in the process of a bitter divorce, and engaged in a heated and animated discussion with him. A complaint was called in, and Officer Kidd was dispatched to the scene. Upon his arrival, Officer Kidd observed Respondent in her car, with the engine running, “yelling at someone on the phone.” He noticed a bottle of Crown Royal in the center console. Respondent refused to perform field sobriety tasks. Office Kidd’s observations of Respondent while she was in the car and upon her exiting the car led him to believe that she was impaired. Respondent had been in the car, with the engine running, and was clearly in control of the vehicle regardless of her intent to drive. Although Respondent’s son arrived on the scene to take her home, Respondent was arrested and transported to jail.2/ Respondent was charged with DUI. The charges were reduced, and she entered a nolo plea to reckless driving. The trial judge withheld adjudication. Count 2 Count 2 alleged a violation based upon Respondent having “been found guilty of personal conduct that seriously reduces that person’s effectiveness as an employee of the district school board.” The Count was based on the incidents described in paragraph 4 of the Amended Administrative Complaint. March 20, 2015 -- The Garage On or about March 20, 2015, over spring break, Joshua Hartley was at Pensacola Beach with friends, including Respondent’s son. He had his father’s car. Apparently, Joshua’s father, Jon Hartley had been trying for some time to reach Joshua and have him return the car. Joshua and his group of friends had plans to stay at the beach into the evening. Respondent’s son suggested that Respondent, who he knew to be at the beach, could follow Joshua home, and then return him to his friends at the beach. Respondent was called, and she followed Joshua from the beach to his house, a drive of perhaps 15 minutes. When Joshua and Respondent arrived at the house, Mr. Hartley, Ms. Barrett, and a third man were sitting and drinking in the open garage. Other than agreement that Respondent and Joshua showed up at the house at the same time, the description of the events by Joshua Hartley, Mr. Hartley, and Ms. Barrett were so divergent that the three might well have been in different places. Ms. Barnett described the incident as occurring between 8:00 and 8:30 p.m., when it was dark. She testified that Joshua and Respondent pulled up in separate vehicles, and that Mr. Hartley initially approved of Joshua returning to the beach with Respondent as a good deed, since Joshua purportedly indicated that “she’s really drunk.” She indicated that Joshua got into the passenger seat of Respondent’s vehicle, whereupon Respondent put the vehicle in gear, and lurched forward, almost hitting Mr. Hartley’s vehicle. At that time, Ms. Barrett indicated that Mr. Hartley ran down, startled by the driving error, told Joshua that he could not go with her, and offered to let Respondent stay with them until she sobered up. Ms. Barrett further described Respondent as essentially falling out of her bathing suit, barefoot, staggering, with slurred and vulgar speech, and highly intoxicated. After about an hour, and as Respondent was preparing to leave, Ms. Barnett testified that Joshua, who had remained with the adults in the garage since his arrival, went to his room. Ms. Barnett testified that Respondent then excused herself to use the restroom. Ms. Barnett testified that after 15 minutes or so, she went inside, and found Respondent “exiting Joshua’s bedroom.” Her description of the event is not accepted, and her veiled insinuation that something improper occurred -- for which no evidence exists -- did not go unnoticed. Mr. Hartley described the incident as occurring between 6:00 and 7:00 p.m. He testified that Joshua and Respondent arrived at the house in Respondent’s car with Joshua as the passenger. He was “positive” that Joshua was not driving because he was 15 years old and did not have a driver’s license. When they pulled into the driveway, Mr. Hartley testified that he walked down to the vehicle and that Joshua got out of the car. Mr. Hartley was unsure if Joshua stayed in the garage at all, but at most went to his room after a matter of minutes. Respondent joined the adults in the garage. Mr. Hartley indicated that Respondent “looked like she had been at the beach” and, though her speech was not slurred, he could tell she had been drinking because he could smell alcohol and by “the way she was speaking.” His description of Respondent was far from the florid state of intoxication as described by Ms. Barnett. Mr. Hartley offered no description of Respondent’s vehicle lurching forward, Respondent staggering, or of Joshua asserting that Respondent was really drunk. Finally, his concern that “the grown, intoxicated woman [as described by counsel in his question] was in your 15 year old son’s bedroom” was based solely on Ms. Barnett’s description of what she claimed to have seen. Joshua testified that he drove to his house in his father’s black Lincoln Aviator, and that Respondent followed in her white Ford Expedition. It was daylight, around 4:00 in the afternoon. Upon their arrival, Respondent pulled onto the grass next to the driveway. Mr. Hartley was mad, possibly about Joshua having the car, would not let him return to the beach, and sent him to his room within a minute of his arrival. Joshua testified that Respondent was in typical beach attire. He had no complaint as to Respondent’s actions either at the beach or at his house, and did not see her drinking. He did, however, indicate that “they” told him that “she might have been drunk or something.” He testified that after Respondent spent some time with the adults in the garage, she then went inside to use the restroom. Joshua’s door was open, and Respondent stood at the door and apologized if she had gotten him into trouble. She then left. Given the dramatic divergence in the stories of the witnesses, the evidence is not clear and convincing that anything untoward occurred when Respondent agreed to give Joshua a ride to his house to return his father’s car, and offered to return him to his friends at the beach. Though credible evidence suggests that Respondent had alcohol on her breath, there was no evidence that she was “under the influence of alcohol,” that she was not able to lawfully drive a vehicle, or that Joshua suspected that she had been drinking. Ms. Barrett’s more dramatic testimony that Respondent was drunk and staggering, falling out of her clothes, with her speech slurred and profane, and the intimation that she was in Joshua’s bedroom in that condition, is not accepted. The evidence adduced at the hearing was not clear and convincing that, on March 20, 2017, Respondent engaged in personal conduct that seriously reduced her effectiveness as an employee of the district school board. February 15, 2015 -- Mardi Gras There was a good bit of evidence and testimony taken that Petitioner was seen drunk and staggering down the street at the 2015 Pensacola Mardi Gras, and was seen and assisted by students in that condition. However, the basis for the Amended Administrative Complaint was not that Respondent was publically intoxicated, but that she “provided alcohol to underage students.” Pensacola has a Mardi Gras event with a parade and floats. In 2015, “Fat Tuesday” was on February 17. The big 2015 Mardi Gras parade was on Sunday, February 15. Respondent had a group of friends that were in a Mardi Gras Krewe and she had been helping them with the float. She apparently drank a good bit. By the time her friends were ready to join the parade, around noon to 1:00 p.m., Respondent determined that she was drunk enough that she should go to the hotel room the group had rented. Unlike the evidence for the “Garage” incident, the evidence was convincing that Respondent was very intoxicated. Ms. Smith testified that Respondent joined a group of alumni and students at a Subway parking lot where they had gathered to watch the parade. The evidence is persuasive that Respondent came upon the scene by happenstance, and that the parking lot was not her destination. While there, Respondent very likely consumed one or more “Jello-shots.” However, the suggestion that Respondent was in any condition to have brought the Jello-shots with her to the parking lot is rejected. Rather, the evidence supports that the shots were there, and that she partook. It would not have been out of character for Respondent to have taken them and handed them around. Furthermore, the testimony that Respondent was distributing beers to students is, for the same reason, simply not plausible. After a while, Ms. Smith, followed but not assisted by Mr. Brayton, assisted Respondent to her hotel. Respondent was, by this time, in a state colloquially known as “falling-down drunk.” She could not walk unassisted, and at one point laid down on a picnic table. It was at this time that Respondent and Ms. Smith were photographed, a picture that received some circulation. Ms. Smith finally delivered Respondent to her hotel, where Respondent’s son saw them and relieved Ms. Smith of any further duties. Mr. Brayton’s testimony that he thereafter entered Respondent’s hotel room was not supported by Ms. Smith or others. His testimony regarding Respondent’s son and his friends at the hotel was not clear and convincing. January 2015 -- The House Party Amelia Smith testified to an alleged incident in the fall of 2014 in which she was at Respondent’s house and students were having a party in the garage at which students were drinking. There was no allegation in the Amended Administrative Complaint as to any event in the fall of 2014. Ms. Klisart testified to an incident involving students drinking at Respondent’s house around the Martin Luther King holiday, which in 2015 was on January 19. That corresponds to Petitioner’s statement that she returned to her house after an evening celebrating her birthday,3/ to find her son and his friends having a party in the garage at which students were drinking. The allegation in the Amended Administrative Complaint that Respondent provided a forum where underage students illegally consumed alcohol in January 2015 was adequately pled. The evidence supports a finding that Respondent had been drinking when she arrived at her house. The evidence is not clear and convincing that she joined the students in the garage, but she clearly knew the party was ongoing, that it involved high school students, that the students were drinking, and that she made no effort to put a halt to the party. Notoriety of the Incidents The evidence is clear and convincing that the incidents described herein were widely known by students at Gulf Breeze High School, by other teachers, and by the school administration. Counts 3 and 4 Count 3 alleges that “Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.” Count 4 alleges “that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to student's mental health and/or physical health and/or safety.” Rule 6A-10.081(3)(a) “does not require evidence that Respondent actually harmed [a student’s] health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2012; EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, by allowing, if not condoning, student drinking at her home in January 2015, failed to make reasonable effort to protect students from harm.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated sections 1012.795(1)(g) and (1)(j), and rule 6A- 10.081(3)(a). It is further recommended that Respondent be placed on probation for a period of five years, and be required to obtain treatment through the Recovery Network Program at a frequency and for a duration deemed appropriate by the Education Practices Commission. DONE AND ENTERED this 7th day of June, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2017.
Findings Of Fact Shane Joseph Johnson is a child under commitment to the Department of Health and Rehabilitative Services who was granted the privilege of transferring to a community placement under the supervision and authority of the Division of Youth Services. The transfer was the subject of a furlough agreement entered into by Johnson with HRS. On August 30, 1983, Shane Johnson signed a furlough agreement which required him to attend the Starting Place and to obey his parents and counselor. On February 21, 1984, Shane Johnson was terminated from the Starting Place for violation of the rules. On March 7, 1984, Shane Johnson entered into another furlough agreement which required him to enroll in school full-time at Hollywood Hills High School and to engage in part-time employment at Ferrara's Restaurant. The furlough agreement additionally required that Shane Johnson obey all laws and comply with other general conditions of the furlough. On March 22, 1984, Shame Johnson was fired from his job at Ferrara's Restaurant. On April 2, 1984, Shane Johnson was suspended from Hollywood Hills High School because he was caught in possession of marijuana on the school grounds. According to Carol Connor, Shane Johnson's human services counselor, Shane Johnson admitted that he was using marijuana while at the Starting Place and admitted that he had a marijuana joint at school when he was suspended. Additionally, Shane Johnson acknowledged that he had lost his job. Based on these violations, Ms. Conner recommended that Shane Johnson's furlough be revoked. A hearing was held by the Department of Health and Rehabilitative Services on the recommendation of revocation and an order of Revocation was entered on April 11, 1984. It is this order of Revocation which is appealed herein.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the revocation of Shane Joseph Johnson's furlough be affirmed. DONE and ENTERED this 5th day of July, 1984, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1984. COPIES FURNISHED: Harold Braynon, Esquire District X Legal Counsel 201 W. Broward Boulevard Ft. Lauderdale, Florida 33301-1185 David L. Kreider 9015 Harrison Street Hollywood, Florida 33020 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated January 16, 2003, and in the Notice of Specific Charges filed February 27, 2003, and, if so, the penalty that should be imposed.
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; Section 230.03, Florida Statutes (2002).3 At the times material to this proceeding, Mr. Lefkowitz taught emotionally handicapped and seriously emotionally disturbed students in North Miami Beach High's Bertha Abbess exceptional student education program. He has been employed by the School Board since 1993, and is currently employed under a professional services contract. At the times material to this proceeding, Mr. Lefkowitz and at least one other person were making a music video for a course they were taking at Florida International University. Alvarro Gutierrez was working with Mr. Lefkowitz on the video, and Mr. Gutierrez had chosen the girl who would sing and would choreograph the dances for the video. Mr. Gutierrez did not, however, have any dancers, and Mr. Lefkowitz told Mr. Gutierrez that he knew some girls "from school" who were dancers and that he would ask them if they wanted to dance in the video. J.D. was, at the times material to his proceeding, an 11th-grade student at North Miami Beach High, although she was not a student of Mr. Lefkowitz. Rather, J.D. met Mr. Lefkowitz in a school hallway, while she was selling candy for her French class, and they apparently had several conversations during school hours. In one of these conversations, Mr. Lefkowitz mentioned that he was filming a music video for a college class. J.D. asked if she could be in the video, and Mr. Lefkowitz agreed and asked J.D. if she had any friends who could also dance in the video. J.D. introduced Mr. Lefkowitz to her friend N.F. N.F. was, at the time, an 11th-grade student at North Miami Beach High, but she did not know Mr. Lefkowitz until J.D. introduced them. Mr. Lefkowitz did not know at the time he met her that N.F. was a student at North Miami Beach High. J.D. also introduced Mr. Lefkowitz to Glamour Legros, whom she knew because she and Ms. Legros attended the same church. Prior to introducing Mr. Lefkowitz to Ms. Legros, J.D. had told him on a number of occasions how much Ms. Legros wanted to meet him.4 Ms. Legros and N.F. shared an apartment. Ms. Legros was not a student at the times material to this proceeding, and she was older than N.F. and J.D. J.D., N.F., and Ms. Legros agreed to dance in the music video and went to Mr. Lefkowitz's apartment several times to discuss, rehearse, and shoot the video. Mr. Lefkowitz picked up J.D., N.F., and Ms. Legros and drove them to his apartment on the occasions when they were working on the video. Mr. Lefkowitz also took J.D. and her friends home on these occasions. M.D., J.D.'s brother and a student at North Miami Beach High at the time, went to Mr. Lefkowitz's apartment once, and H.D., another student at North Miami Beach High, was at Mr. Lefkowitz's apartment on at least one occasion, when she danced for the music video. These two students also rode with Mr. Lefkowitz in his car on at least one occasion. In addition to her visits to Mr. Lefkowitz's apartment and her rides in his car, J.D. spoke with Mr. Lefkowitz numerous times on the telephone. When working on the video, J.D. went to Mr. Lefkowitz's apartment with her friends. She was alone with Mr. Lefkowitz once, after her friends left Mr. Lefkowitz's apartment; Mr. Lefkowitz took her home after about an hour. Mr. Gutierrez did not observe Mr. Lefkowitz engage in any improper behavior with J.D. or her friends at Mr. Lefkowitz's apartment during the time they were discussing, rehearsing, and shooting the music video. On April 21, 2003, Ms. Legros called the police and she and N.F. reported that Mr. Lefkowitz had come to their apartment, beat on the door, and threatened them verbally. According to the police incident report, the police were dispatched at 10:09 p.m. and arrived at Ms. Legros's and N.F.'s apartment at 10:12 p.m. Mr. Lefkowitz had outpatient surgery on April 18, 2002. Mr. Lefkowitz's mother was with him at his apartment from April 18 through the morning of April 22, 2002, the day he returned to work. According to Ms. Lefkowitz, Mr. Lefkowitz was in bed, asleep, on the night of April 21, 2002. On April 22, 2002, Raymond Fontana, the principal of North Miami Beach High, received a telephone call from a woman who identified herself to Mr. Fontana's secretary as J.D.'s aunt and who told Mr. Fontana that an exceptional student education teacher named "Neil" was having a relationship with J.D., a student at North Miami Beach High; the caller also reported that the teacher had been involved in an "incident" that had been reported to the police. Ms. Legros was the person who called Mr. Fontana.5 Mr. Fontana called Allyn Bernstein, an assistant principal at North Miami Beach High, into his office and asked her to look into the allegations made by the caller. Dr. Bernstein called Mr. Lefkowitz into her office and, before she could say anything, Mr. Lefkowitz told her that he knew why she had summoned him, that an ex-girlfriend had threatened to make trouble for him because he wouldn't give her money. When Dr. Bernstein questioned Mr. Lefkowitz about his relationship with the student J.D., Mr. Lefkowitz denied knowing her. Dr. Bernstein also called J.D. into her office. In response to Dr. Bernstein's questions, J.D. denied knowing Mr. Lefkowitz. She stated that she did not have a social relationship with any teacher outside of school and that she had never met any staff member outside school. After Dr. Bernstein reported to Mr. Fontana that she believed that there might be "something there,"6 Mr. Fontana reported the matter to the school district personnel, who referred the matter to the Miami-Dade School Police Department, and an investigation was initiated. Once the investigation was initiated, Mr. Lefkowitz was placed on alternate assignment at his home effective May 3, 2002. The investigator, Detective Victor Hernandez, interviewed N.F., Ms. Legros, J.D., H.D., M.D., and Mr. Lefkowitz. During the course of his investigation, Detective Hernandez was told that Mr. Lefkowitz and N.F. had dated and that they had had sexual intercourse. When Detective Hernandez interviewed Mr. Lefkowitz, Mr. Lefkowitz denied that he knew either J.D. or N.F. In a report dated September 2, 2002, Detective Hernandez described his investigation and set forth the substance of the statements given by the witnesses. Detective Hernandez concluded that the charges that Mr. Lefkowitz had violated Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, and School Board Rules 6Gx13-4.109 and 6Gx13-4A-1.21 were substantiated. A Conference-for-the-Record was held on October 2, 2002, with Paul Greenfield, District Director, presiding. Mr. Lefkowitz attended the Conference-for-the-Record, together with the School Board's Director of Region II and Mr. Fontana. Mr. Lefkowitz requested that his attorney be allowed to attend, but this request was denied.7 Mr. Greenfield reviewed Mr. Lefkowitz's history with the Miami-Dade County public school system and presented the results of the investigation. Mr. Lefkowitz denied having met J.D. and N.F. and denied that they were ever in his apartment. After the Conference-for-the-Record, Mr. Fontana recommended to the Superintendent of Region II that Mr. Lefkowitz's employment be terminated. Mr. Lefkowitz lied to Dr. Bernstein, to Detective Hernandez, and to the participants in the Conference-for-the- Record about his relationships with J.D. and N.F. because he knew it was improper for the students to be in his apartment and for him to associate with students outside of school. Mr. Lefkowitz expressed remorse at his behavior and acknowledged that his conduct was not appropriate. J.D. testified that she and Mr. Lefkowitz never dated or had sexual intercourse. Ms. Legros testified that she did not know whether Mr. Lefkowitz and J.D. had had sexual intercourse. She claimed, however, to have observed Mr. Lefkowitz and J.D. at Mr. Lefkowitz's apartment hugging and kissing and acting like "boyfriend and girlfriend to me."8 Ms. Legros has no personal knowledge that Mr. Lefkowitz had sexual relations with N.F., but testified that N.F. told Ms. Legros that she had had a relationship with Mr. Lefkowitz. An 11th-grade student testified at the hearing that he considered Mr. Lefkowitz to be a good teacher, a role model, and a teacher that he would remember after high school. Mr. Fontana testified that he thought Mr. Lefkowitz's effectiveness as a teacher had been impaired because of the "manner in which he dealt with students, having students come to his apartment, dealing with students that are out of the realm of his teaching responsibilities." Mr. Fontana observed that "once you breach that student/teacher relationship and you lose that professionalism I don't think you can ever go back and have the same degree of effectiveness as a teacher."9 In making his decision to recommend that Mr. Lefkowitz be terminated from his employment as a teacher, Mr. Fontana considered Mr. Lefkowitz's employment history with the Miami- Dade County public school system. Mr. Lefkowitz was twice referred for evaluation as to his medical fitness to perform his duties as a teacher and was twice found fit to perform these duties. Mr. Lefkowitz was the subject of three allegations of battery on a student, one in February 1995, one in February 1999, and one in March 1999; the February 1995 charge was substantiated,10 and Mr. Lefkowitz was given a verbal warning; the remaining two charges were unsubstantiated. Finally, in August 1995, Mr. Lefkowitz had an unacceptable annual evaluation, was given a TADS Category VII prescription in the area of Professional Responsibility, and successfully completed the prescription within the specified time. Summary The greater weight of the credible evidence presented by the School Board is insufficient to establish that Mr. Lefkowitz dated either J.D. or N.F. or that Mr. Lefkowitz had sexual intercourse with N.F. The School Board presented no direct evidence establishing that J.D. and Mr. Lefkowitz had a romantic relationship or that N.F. and Mr. Lefkowitz had a sexual relationship. The School Board relied exclusively on Ms. Legros's testimony to establish that these relationships existed,11 and most of her testimony was based on hearsay, not personal knowledge. Ms. Legros had no personal knowledge that N.F. had sexual relations with Mr. Lefkowitz, and the only behavior that Ms. Legros testified that she personally observed was Mr. Lefkowitz and J.D. in Mr. Lefkowitz's apartment hugging and kissing and, in Ms. Legros's estimation, acting like boyfriend and girlfriend. Ms. Legros is found not to be a particularly credible witness, and her uncorroborated testimony is not sufficiently persuasive to establish that Mr. Lefkowitz and J.D. more likely than not were dating or that the hugging and kissing, if she indeed observed such behavior, was sexual in nature. Both J.D. and Mr. Lefkowitz denied having a romantic relationship, but it is difficult to credit fully their testimony, given that both J.D. and Mr. Lefkowitz lied to School Board personnel about knowing one another and that Mr. Lefkowitz lied to School Board personnel about being acquainted with N.F. However, on reflection and after a careful review of the evidence, the testimony of J.D. and Mr. Lefkowitz is credited over that of Ms. Legros. The greater weight of the credible evidence presented by the School Board is not sufficient to establish that Mr. Lefkowitz telephoned N.F. on April 21, 2002, and threatened her or that he went to the apartment shared by Ms. Legros and N.F. on the night of April 21, 2002, and made threats to harm them. Mr. Lefkowitz's mother testified unequivocally that she was with Mr. Lefkowitz from April 19 through the morning of April 22, 2002, and that he was recovering from surgery and sleeping on the night of April 21, 2002. The School Board presented no evidence that Mr. Lefkowitz telephoned N.F. and threatened her, and Ms. Legros was the only witness to testify that Mr. Lefkowitz came to her apartment and made threats. The testimony of Mrs. Lefkowitz is credited over that of Ms. Legros.12 The evidence presented in this case is sufficient to establish that Mr. Lefkowitz failed to exercise the best professional judgment, failed to maintain the highest ethical standards, and used his position as a teacher to his personal advantage by recruiting young women students to perform as dancers in the music video he was filming as part of a college assignment. Mr. Lefkowitz admitted that he had engaged in inappropriate conduct: He had had a personal relationship outside of school with both J.D. and N.F.; J.D. and N.F. danced in a music video he made for a college project; J.D. and N.F. were in his apartment several times; and he drove J.D. and N.F. in his car to and from his apartment. The contents and tone of the written statement Mr. Lefkowitz adopted as his testimony supports an inference that he was on very familiar terms with both J.D. and N.F., and with Ms. Legros as well.13 Mr. Lefkowitz's poor judgment in developing significant social relationships outside of school with two female students at North Miami Beach High and his inappropriate behavior in having these students as guests in his car and in his apartment reflect poorly on him as a teacher employed by the School Board. Mr. Lefkowitz also failed to exercise the best professional judgment and to maintain the highest ethical standards with respect to his dealings with the School Board during the investigation of his conduct. Mr. Lefkowitz lied to Dr. Bernstein and Detective Hernandez and at the October 2, 2002, Conference-for-the-Record when he said he did not know J.D. or N.F., and he admitted at the final hearing that he lied because he knew that he should never have involved these students in making the music video, should never have given these students rides in his car, and should never have invited the students to his apartment. Mr. Lefkowitz's lack of truthfulness reflects poorly on him as a teacher employed by the School Board. The evidence presented by the School Board is also sufficient to establish that Mr. Lefkowitz engaged in one instance of inappropriate behavior involving students M.D. and H.D. Mr. Lefkowitz admitted that, on one occasion, he picked up these two students in his car and drove them to his apartment, where H.D. danced in the music video and M.D. observed Mr. Lefkowitz and cohorts filming the music video. Mr. Lefkowitz did not have repeated out-of-school contacts with these two students, as he did with J.D. and N.F., but his behavior with M.D. and H.D. reflected poorly on him as a teacher employed by the School Board. The evidence presented by the School Board, which consisted only of Mr. Fontana's conclusory and general statements, is not sufficient to establish that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami- Dade County public school system. The evidence presented by the School Board is, however, sufficient to permit an inference that Mr. Lefkowitz's effectiveness as a teacher was impaired. Mr. Lefkowitz encouraged students to develop personal relationships with him and to spend significant amounts of time with him in his apartment. Even though J.D., the young woman with whom he was primarily involved, was not a student in his class, his willingness to become involved with this student and her friends brings his personal and professional judgment into question and necessarily affects the school administration's assessment of his fitness for supervising high school students. It may also be inferred that Mr. Lefkowitz's effectiveness as an employee of the School Board was also impaired because he lied to the principal and assistant principal of his school and to the regional superintendent of the Miami-Dade County public school system about even knowing J.D. By not being truthful with the school system administrators, Mr. Lefkowitz diminished his credibility as a professional educator.
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 Neil D. Lefkowitz is guilty of having committed misconduct in office and of violating School Board Rules 6Gx13-4-1.09 and 6Gx13-4A-1.21; Suspending Mr. Lefkowitz without pay for a period of 24 months, retroactive to the date on which the School Board suspended him from his employment without pay; and Imposing such conditions on Mr. Lefkowitz upon his return to employment as the School Board deems appropriate. DONE AND ENTERED this 31th day of July, 2003, 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 31th day of July, 2003.
Findings Of Fact Upon consideration of the testimony adduced at the hearing, the following relevant facts are found: Respondent Randolph Rice has been employed by the petitioner Dade County School Board for seven years. At all times relevant to the charges involved in this proceeding, he was employed as a physical education teacher at Miami South Ridge Senior High School. In the school years 1977-78 and 1978-79, Randy Turner regularly appeared on the campus of South Ridge. Mr. Turner was never enrolled as a student at said high school. Believing that Mr. Turner was a student at South Ridge, respondent Rice allowed him to participate in Rice's physical education classes. Respondent Rice knew that Turner was not enrolled in his class, but he believed that Turner was enrolled at South Ridge to complete two credits he needed for graduation. When Mr. Turner participated in class, he wore the school's regular physical education uniform. At least six students attending and enrolled at South Ridge observed Mr. Turner on campus almost daily for the school years 1977-78 and 1978-79. They saw him in the hallways carrying books, around the physical education area, participating in physical education classes and in the locker room. Turner shared a locker with an enrolled student. He was also observed in a class in plastics. Mr. Turner's photograph appeared in the school's yearbook along with the pictures of enrolled students. Four employees at South Ridge -- a physical education teacher and three persons who work in security -- observed Mr. Turner in the hallways of South Ridge carrying books and around the physical education area. Three of these employees assumed Mr. Turner was an enrolled student at South Ridge. Another, who knew Turner from another high school, had the impression that Mr. Turner had probably finished school. The basketball coach at South Ridge, Everett Moncur, allowed Mr. Turner to help out and keep the statistics in the basketball games end courses. Mr. Moncur assumed Mr. Turner was not enrolled as a student as he had known Turner from another high school. Moncur worked closely with respondent Rice and did not discuss with Rice Mr. Turner's status as a student or non-student. On or about February 9, 1979, respondent Rice's physical education class was having a special challenge with the other physical education classes, and several games were occurring simultaneously. During this period, Mr. Turner became involved in a fight with an enrolled student and the other student was injured. Respondent Rice did not witness this event. The parties have stipulated that there is no legal causal connection between Turner's participation in class and the injury that was received by the other student. Excerpts from the minutes of a March 21, 1979, Dade County School Board meeting indicate that the Board approved the suspension without pay of respondent Rice. By letter dated March 26, 1979, Mr. Rice was notified that the Board bad suspended him without pay for a period of thirty days for willful neglect of duty in allowing a nonschool youth to participate in his class. He was further advised that prior to the expiration of his suspension, he would be advised of his reassignment to another work location to be effective May 3, 1979. The respondent requested a hearing on the suspension, and, on April 9, 1979, the School Board filed "Notice of Charges" charging respondent with willful neglect of duty by allowing a nonschool youth to participate in his physical education class. The Board asked for a thirty-day suspension and reassignment to another school in Dade County. Respondent has served his period of suspension without pay and has been assigned to another school. Respondent seeks to be reinstated at South Ridge High School and further seeks back pay for the period of suspension.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that a final order be entered by petitioner rescinding respondent's suspension and transfer to another school, and that respondent be reimbursed for the salary lost during his suspension and be reinstated to his former position at South Ridge High School. Done and entered this 2nd day of July, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jesse J. McCrary, Jr. Assistant Board Attorney 3050 Biscayne Boulevard Suite 300-E Miami, Florida 33137 William du Fresne Suite 1782 One Biscayne Tower Miami, Florida 33131 Phillis Douglas Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY, Petitioner, CASE NO. 79-768 RANDOLPH RICE, Respondent. / ORDER OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA THIS CAUSE came on for hearing before The School Board of Dade County, Florida at its regular meeting of September 5, 1979, upon the Hearing Officer's findings of fact, conclusions of law and recommended order, and upon the exceptions filed by counsel for the School Board. The Board having considered the same and having heard argument of counsel, IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that: The Hearing Officer's findings of fact, conclusions of law and recommended order attached hereto be and the same hereby is adopted as the final order of the School Board, with the exception of the recommendation that the respondent be reinstated to his former position at Miami Southridge Senior High School, which is rejected by the School Board; and The suspension of Randolph Rice for the period March 22, 1979 through May 2, 1979 be and the same is hereby rescinded, and the respondent, Randolph Rice, shall be reimbursed for all salary lost during the period of that suspension. DONE AND ORDERED this 5th day of September 1979. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA By Phyllis Miller, Chairman
Findings Of Fact Respondent was reassigned to Douglas MacArthur Senior High School- North, an alternative school, on December 16, 1982, because of his unacceptable conduct in Grade 9 at North Miami Junior High School. Petitioner presented evidence of 16 incidents of conduct by Respondent which required disciplinary action in the year preceding his reassignment to the alternative education program. Additionally, his grades in all courses were unsatisfactory at the time of reassignment. Respondent did not accept the alternative school assignment and instead obtained employment at a restaurant. He is now living with his grandmother, Mrs. Helen Wood, who seeks his return to a regular junior high school program. She has discussed this proposal with the principal of Thomas Jefferson Junior High School and he apparently agrees with her. Respondent's evidence established that his family life was difficult and disruptive during the period of his misconduct. His situation has now stabilized and he is responsive to his grandmother's supervision. He should, therefore, be given an opportunity to return to the regular academic program (Grade 9) at Thomas Jefferson Junior High School.
Recommendation In consideration of the foregoing, it is RECOMMENDED that Petitioner enter a Final Order classifying Respondent as a disruptive student, but permitting him to attend the Thomas Jefferson Junior High School in a probationary status. ENTERED this 6th day of May, 1983, at Tallahassee Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Helen Ward 1000 Northwest 153rd Street Miami, Florida 33169 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed September 28, 2010, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on a professional service contract that is subject to a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade (hereinafter "the UTD Contract"), applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." The School Board has adopted Rule 6Gx13-4A-1.21, Responsibilities and Duties, which provides in pertinent that: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. School Board Rule 6Gx13-4A-1.213, Code of Ethics, requires employees of Petitioner to abide by state regulations. The Principles of Professional Conduct for the Education Profession in Florida are set forth in Florida Administrative Code Rule 6B-1.006. Subsections (3)(a) and (e) thereof provide as follows: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety. * * * (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner has employed Respondent as a full-time P.E. teacher at South Miami Heights since the 2006-07 school year. South Miami Heights is a public school located in Miami-Dade County, Florida. Respondent has not been the subject of any disciplinary actions by Petitioner other than the incident that is the subject of this matter. Respondent's practice throughout her tenure at South Miami Heights was to require students arriving at P.E. to line up, stop talking, and generally exhibit good behavior prior to starting class. On those occasions when students were not well- behaved, Respondent required the students to walk in an orderly fashion until they calmed down and showed they were ready for class. On hot days, she would required them to walk around the inside corridors of the school, while on cooler days the students would walk outside. In prior years, with a different principal, Respondent would have the students walk in front of the principal's office, who would then go out and call the students to attention to get them to calm down. During the 2009-10 school year Respondent taught P.E. at South Miami Heights to second, third, fourth, and fifth-grade students between the hours of 8:30 a.m. and 3:00 p.m. Her last P.E. class started at 2:00 p.m. and ended at 3:00 p.m. Students in her last class typically brought their book bags with them. On April 15, 2010, at approximately 2:00 p.m., third- grade students from Ms. Fuentes-Garcia's class walked from her class to Respondent's class. There were approximately 25 students in the class. Each student had a book bag. When Respondent took responsibility for the class, many students were talking or otherwise misbehaving. Respondent directed all students in the class to make laps around an outdoor basketball court by walking the white lines that define the outer boundaries of the basketball court. The temperature on April 15, 2010, was 81 degrees. The students were exposed to the sun while they were walking. Respondent required the students to carry or wear their backpacks while walking around the outdoor basketball court.1 According to Respondent, the students were required to walk around the basketball court until they calmed down. She had no idea how long the students would have to walk until they calmed down when she first directed them to start walking. All students in the class were required to walk without stopping for 32 minutes. A student who tried to put her book bag on the ground was told by Respondent to pick it up and keep walking. At the end of the 32-minute period, Respondent escorted the class back to the vicinity of Ms. Fuentes-Garcia's classroom and had the students walk in an orderly fashion to the playground, where they played games until approximately 2:54 p.m. There was a water fountain on playground, but it was not functioning on April 15, 2010. Water was available in a building adjacent to the playground. The students were not permitted to drink water between 2:00 p.m. and 2:54 p.m. At approximately 2:54 p.m. the students left the playground and entered the adjacent building to drink water. A video of the students walking the white lines of the basketball court was captured by the school's security cameras. In one portion of the video, a child can be seen dragging a backpack on the ground. It cannot be determined from the video whether the backpack had wheels. In another portion of the video, Respondent can be seen monitoring the students while standing in the shade of a tree. On April 16, 2010, Ms. Hernandez, the school principal, received complaints from four or five parents of students in the class. M.V., the mother of one of the students in the class, confronted Respondent about the incident on April 16, 2010. This parent testified, credibly, that Respondent told her that she had the class walk the white lines of the basketball court to calm them down and as punishment for being hyper. Following the complaints, the matter was referred to Petitioner's Civil Investigation Unit (CIU) where it was assigned to CIU investigator Terri Chester. Ms. Chester prepared a report after she concluded her investigation. Ms. Duboulay reviewed the report with Respondent in a Conference for the Record on June 8, 2010, and provided Respondent an opportunity to respond to Ms. Chester's report.2 Thereafter a Disciplinary Review Team convened and reviewed the case and concluded that probable cause existed that Respondent had committed the violations subsequently alleged in the Notice of Specific Charges dated September 23, 2010. The Disciplinary Review Team recommended that Respondent be suspended without pay for 30 days based on the totality of the circumstances of the case and the exposure of the students to harm. The manner in which Respondent disciplined her class on April 15, 2010, did not reflect credit on herself or on Petitioner. The manner in which Respondent disciplined her class on April 15, 2010, was inconsistent with her duty to "make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety."3 There was insufficient evidence to establish that Respondent "intentionally expose[d] a student to unnecessary embarrassment or disparagement." Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay for a period of 30 workdays. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 March, 2011.
