The Issue Whether Petitioner has just cause to suspend Respondent’s employment for thirty days without pay based on the allegations in the Notice of Specific Charges.
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. Petitioner has continuously employed Respondent since 1984 as the band director at Nautilus. The band curriculum taught by Respondent consists of beginning band, concert band, jazz band, beginning guitar, guitar ensemble, and classical guitar ensemble. Respondent runs a very good band program at Nautilus. Ms. Bernstein, the current principal at Nautilus, opined that Respondent has done a remarkable job with his band students. Throughout his 24 years at Nautilus, Respondent has taken hundreds of field trips both in-state and out-of-state with band students. As a result of these trips, Respondent is fully aware of the paperwork required by the School Board to authorize band students to go on field trips. With the exceptions to be discussed below, Respondent has correctly filled out the required paperwork and has otherwise complied with School Board policies pertaining to field trips. The School Board has developed specific field trip procedures that have been adopted as School Board Rule 6Gx13-6A- 1.22 (Field Trips). The rule provides, in relevant part, as follows: Trips for students are permitted which have value in meeting educational objectives, are directly related to the curriculum . . . In the planning of field trips, absences from school should be restricted to the least number of school days possible. The educational purpose and length of the filed trip must be approved by the principal. Provisions for students to make up assignments for classes missed due to participation in field trips must be in accordance with procedures outlined in Board Rule 6Gx-5A-1.04 - - Student Attendance. A signed parental permission form must be on file at the school prior to student’s participation. . . . A roster is to be submitted along with the field trip application request that includes the names, addresses and telephone numbers of all students who are eligible to participate in the field trip regardless of the student’s decision to participate in said trip. . . . The School Board has also adopted a Field Trip Handbook, which sets forth the responsibilities of the field trip sponsor under the heading “Sponsor’s Responsibilities” (Petitioner’s Exhibit 25, at Bates stamp page 168). Among the delineated Sponsor’s Responsibilities, the sponsor is to secure completed and signed parent permission form from each student who will participate in the field. The sponsor is to place emphasis on complete medical information. The sponsor is to ensure that all chaperones have available and accessible to them during the trip a copy of all parental permission forms with emergency contact information. 2005 Field Trip Matthew Welker served as principal of Nautilus during the 2004-2005 school year. During the Spring term of the 2004- 2005 school year, Respondent sponsored a field trip for the Nautilus band to attend a music festival in Tennessee. Prior to the field trip, Mr. Welker was informed by parents of band students that Respondent intended to take one or more high school students on the field trip. Mr. Welker met with Respondent prior to the field trip to remind him of the field trip procedures and further advised him that he should arrange to ensure that only Nautilus students attend the festival. While the field trip was in progress, Mr. Welker learned that Respondent had permitted a former Nautilus band student to participate in the festival with the Nautilus band. The former Nautilus student was in high school when he was permitted to participate in the festival with the Nautilus band. Prior to seeing him at the festival, Respondent did not know that the former Nautilus student, who had traveled to the festival independently of the Nautilus band, would be at the festival. Respondent did not violate the festival rules by permitting the former student to participate in the festival. On or about May 31, 2005, following Respondent’s return to Nautilus, Mr. Welker conducted a “Conference for the Record” with Respondent, which was memorialized by a Memorandum (Petitioner’s exhibit 1).3 The Memorandum provides, in relevant part, as follows: . . . On Friday, August 13, 2004, you received documentation and in-service training regarding District and school site Field Trip procedures. On Friday, April 15, 2005, I conducted a personal conversation in my office with you regarding information that I received regarding the possibility that two former Nautilus Middle School students who are currently enrolled at Miami Beach High School would be participating with our students at the Smokey Mountain Music Festival in Tennessee. You indicated that you needed their presence to fill out the band. I stated to you that these students were not authorized to participate in the field trip nor were they eligible to participate in the festival as representatives of Nautilus Middle School. I further stated to you that no student or person who is not enrolled or directly affiliated with Nautilus Middle School may attend or participate in the festival. You stated that you understood. On April 29, 2005, I received information regarding the presence of a Miami Beach Senior High School student who was allowed by you to participate in the festival competition representing Nautilus Middle School. The student was also allowed to represent the school in both the ensemble and solo musical performances. On Wednesday, May 11, 2005, I questioned you regarding the participation of the students and you confirmed the fact the student was present at the festival and participated in performances representing Nautilus Middle School. I asked why you permitted the student to attend and perform after I gave you specific directions to the contrary. You responded that you needed the student to fill out the band. * * * Action Taken You were advised that this incident represents a violation of School Board Rule 6Gx-4A-1.21 Responsibilities and Duties. You were directed to follow all School Board and school-site rules and policies regarding field trips. You were directed that no student who is not enrolled as a seventh or eighth grade student at Nautilus Middle School may participate in any extra-curricular activity, co-curricular activity, performance, or field trip. These directives remain in effect as of the date of the conference and are restated to prevent adverse impact to the operation of the work unit and the services provided to students. Any non-compliance by you with respect to these directives will necessitate further review and the possible imposition of disciplinary measures. . . . Copies of the following documents were given to you and discussed at the conference: Miami-Dade County School Board Rule 6Gx- 4A-1.21 Responsibilities and Duties The Code of Ethics of the Education Profession in Florida Field Trip Procedures Common sense suggestion for instructional personnel . . . The Memorandum also contained the following statement: You were advised that the information presented in the conference is confidential and you were directed not to disclose or discuss the information presented with students and staff. The Memorandum contains no statement that the Respondent had been reprimanded or otherwise disciplined because of the 2005 field trip. 2008 Field Trip Respondent sponsored the subject Field Trip for certain members of the Nautilus band to the Fiesta Val National Festival in Gatlinburg, Tennessee, in April 2008. The subject Field Trip left on Wednesday, April 23, 2008, and returned on Sunday, April 27, 2008. The Nautilus band participants consisted of members of the following: the concert band, jazz band, guitar ensemble, and classical guitar ensemble. The participants included Respondent, the band students, and volunteer, adult chaperones. Respondent, his students, and parents of band members began planning for the trip in October 2007. Fund raisers were held to help defray the costs of the trip. Respondent and the band members worked hard to prepare for the trip. As the sponsor of the subject Field Trip, Respondent was required to complete several forms, including a Field Trip Request Form, a Field Trip Chaperone List, Field Trip Permission Request Form, Travel Expense Report, and a Field Trip Roster. The Field Trip Permission Request Form (School Board’s Exhibit 7) includes the following statement: PARENT PERMISSION SLIPS for participating students must be on file in the Office of the Principal prior to the field trip. [Emphasis is in the original.] Both the School Board Rule on field trips and the Field Trip Handbook clearly require a signed parental permission form for each participating student prior to the field trip. The parental permission forms for the subject Field Trip required the parent or guardian to give permission for the student to participate in the subject Field Trip, provide emergency contact information, and authorize medical treatment for the student in the event of accident or illness.4 The Field Trip Roster, which identifies all student participants, is used to excuse the days the students are absent from school because of the field trip. As of the afternoon of April 22, 2008, Respondent had completed or otherwise secured all appropriate paperwork. The subject Field Trip had been approved by Dr. Bernstein as the principal of Nautilus and by the appropriate Regional Director. At approximately 3:00 p.m. on April 22, 2008, Respondent heard that a drummer who had been scheduled to go on the subject Field Trip may have gotten into trouble. Because he was packing musical instruments and equipment for the trip, Respondent did not further investigate. Between 4:30 p.m. and 5:15 p.m. on April 22,5 Dr. Bernstein reached Respondent on his cell phone and informed him that a band member who played drum for the jazz band and the guitar ensemble had been suspended from school (the suspended drummer) and would not be permitted to go on the subject Field Trip, which was scheduled to leave early the next day. Dr. Bernstein stated that Respondent would have to find one of his other students to fill in. The jazz band and the guitar ensemble could not have performed without a replacement for the suspended drummer. The concert band and the classical guitar ensemble could have performed without the suspended drummer. Shortly after his conversation with Dr. Bernstein on the afternoon of April 22, 2008, Respondent began receiving calls from parents of band students who were worried that the subject Field Trip would be cancelled. Rueben Coto, a band parent and volunteer chaperon for the subject Field Trip, called Respondent between 5:30 and 6:00 p.m. on April 22. Respondent was uncertain as to what would happen and stated to Mr. Coto: “Look, I don’t think we’re going to be able to pull this off because we don’t have a drummer. We can’t perform without a drummer.” (Transcript, page 157, beginning at line 14). Mr. Coto located a replacement drummer for the suspended drummer. The replacement drummer (a male) was an ex- Nautilus band member who in April 2008 was a senior at Miami Beach Senior High School. Respondent told Mr. Coto to get something in writing from the replacement drummer’s parents giving permission for the replacement drummer to go on the subject Field Trip. The replacement drummer’s mother never gave written permission for her son to go on the subject Field Trip. Mr. Coto did not follow up on Respondent’s request to obtain written permission from the replacement drummer’s mother. On the morning of April 23, 2008, Respondent knew that the replacement drummer’s mother had not signed a written parental permission form.6 Respondent did not attempt to contact Dr. Bernstein or any other administrator after learning that the replacement drummer did not have written permission to participate in the subject Field Trip. Respondent permitted the replacement drummer to travel with the other students on the bus to and from Tennessee and to participate in certain of the activities of the Fiesta Val. While the subject Field Trip was in progress, Dr. Sidener, principal of Miami Beach Senior High, received a complaint from the band director at her school that the replacement drummer was absent from school and did not attend band rehearsal because he was on the subject Field Trip. Dr. Sidener immediately called Dr. Bernstein to determine whether she knew that the replacement drummer was participating in the subject Field Trip. Dr. Sidener did not excuse the replacement drummer’s absences from Miami Beach Senior High for the school days on which the replacement drummer participated in the subject Field Trip. The subject Field Trip was unrelated to the replacement drummer’s curriculum at Miami Beach Senior High. The subject Field Trip participants returned to Miami as scheduled on April 27, 2008. Prior to Dr. Sidener’s call, Dr. Bernstein was unaware that the replacement drummer was on the subject Field Trip. Respondent did not inform Dr. Bernstein before or during the subject Field Trip that the replacement drummer would be participating in the subject Field Trip. Immediately after Dr. Sidener’s call, Dr. Bernstein requested that the School Board’s Civilian Investigation Unit (CIU) conduct an investigation as to the replacement drummer’s participation in the subject Field Trip.7 The CIU investigation report was forwarded to the School Board’s Office of Professional Standards (OPS) for a CFR with Respondent. After the CFR, OPS sought input as to the appropriate discipline from Dr. Bernstein and Mr. Greenfield (the Administrative Director for the North Regional Center). OPS convened a disciplinary review team, which reviewed all available information. The disciplinary review team recommended to the Superintendent that Respondent’s employment by suspended without pay for 30 days. Following his review, the Superintendent adopted the recommendation from the disciplinary review team and forwarded the recommendation to the School Board. At its meeting of October 15, 2008, the School Board voted to suspend Respondent’s employment for a period of 30 days without pay. The School Board followed all relevant procedures leading up to its vote to discipline Respondent by suspending his employment for 30 days. Although Respondent has served his 30-day suspension without pay, Respondent timely requested a formal administrative hearing to challenge the suspension.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner 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 uphold the suspension of Respondent's employment without pay for 30 days. DONE AND ENTERED this 2nd day of June, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2009.
The Issue The issues in this case are whether Respondent violated Section 231.28(1)(i), Florida Statutes (2000), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e), by using unauthorized methods of disciplining a student before allowing the student to visit the school nurse. (All chapter and section references are to Florida Statutes (2000) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for regulating certified teachers in the state. Respondent holds Florida Educator's Certificate Number 416888. Respondent's Florida teaching certificate is valid through June 30, 2003. Respondent is employed as a Special Education Teacher at Moore Haven Junior High School (the "school") in the Glades County School District (the "District"). Respondent has a long-standing practice in his classroom of disciplining male students by making them do push-ups and hold books while their arms are extended in front of them. Both practices violate rules and policies of the school and the District. Respondent had actual or constructive knowledge that discipline by push-ups and holding books violated the policies of the school and the District. The student handbook distributed to each teacher, including Respondent, prescribed the authorized methods of discipline. None of the authorized methods included pushups or holding books. Respondent submitted some evidence that administrators in the school deviated from officially stated policies and rules by condoning unauthorized methods of discipline such as pushups or holding books. However, the evidence submitted by Respondent was less than a preponderance of the evidence and was adequately refuted by evidence submitted by Petitioner. All of the students in Respondent's class are exceptional education students. Each student has an identified disability. Any method of discipline other than that authorized by applicable policies and rules must be clearly stated and authorized in each student's individual education plan ("IEP"). C.W. was an exceptional education student in Respondent's class on February 9, 2000. The IEP for C.W. did not authorize any alternative methods of discipline. During class on February 9, 2000, Respondent approached C.W. because C.W. had his head on his desk during class. Respondent instructed C.W. to do his assignment. C.W. complained that he felt sick and requested to see the school nurse. Respondent and C.W. exchanged brief repartees. The evidence is less than clear and convincing that during the exchange Respondent prevented C.W. from going to the nurse's office. Some witnesses testified that Respondent refused C.W.'s request to go to the nurse's office. Other witnesses in the classroom during the exchange testified that Respondent initially instructed C.W. to go to the nurse's office but that C.W. refused either to go to the nurse's office or to do his assignment. The testimony of all of those witnesses was credible. Because C.W. refused to do his assignment in class, Respondent instructed C.W. to stand at the back of the class with his arms extended in front of him. C.W. complied with Respondent's instruction. Respondent successfully completed the alternative method of discipline that required C.W. to stand at the back of the class. However, Respondent failed to effectuate other unauthorized methods of discipline that Respondent attempted. When Respondent placed books in C.W.'s arms, C.W. did not hold the books in his arms. Rather, C.W. dropped his arms, and the books fell to the floor. When Respondent instructed C.W. to do push-ups, C.W. refused Respondent's instruction. C.W. left Respondent's classroom under his own volition and went to the office of the school nurse. The evidence does not reveal the amount of time that transpired between Respondent's initial instruction for C.W. to stand at the back of the class and the time when C.W. left for the nurse's office. Therefore, there is no evidentiary basis to quantify the delay in medical attention. When C.W. arrived at the nurse's office, the school nurse determined that C.W. was feverish, suffered chills, and that his complexion was "splotchy." The nurse telephoned C.W.'s parents. The parents took C.W. home and subsequently to the hospital. The examining physician at the hospital diagnosed C.W. as suffering from mastoiditis. The physician admitted C.W. to the hospital for two days and successfully treated the medical condition. The medical condition represented an exigent threat of harm to C.W.'s physical safety within the meaning of Rule 6B-1.006(3)(a). As previously found, however, the evidence is less than clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect the student from a medical condition that was harmful to the student's physical safety. Conflicting evidence was less than clear and convincing evidence that Respondent delayed C.W.'s attempt to see the school nurse or the length of any delay allegedly caused by Respondent. C.W. left Respondent's class under his own volition and went directly to the nurse's office. The conflicting evidence was less than clear and convincing that any delay between Respondent's initial contact with the student and the student's departure to the school nurse was significant enough that Respondent failed to make a reasonable effort to protect C.W. from conditions harmful to the student's physical safety. The evidence is clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect C.W. from conditions harmful to learning. The methods of discipline attempted by Respondent were harmful to C.W.'s ability to learn, violated C.W.'s IEP, and violated school policy. For the same reasons, Respondent violated Rule 6B-1.006(3)(e) by intentionally exposing a student to unnecessary embarrassment and disparagement. Administrative staff at the school conducted a full investigation of the matter. Upon conclusion of the investigation, the District issued a written letter of reprimand to Respondent. The letter of reprimand issued by the District is disciplinary action by Respondent's employer. The judicial doctrine of double jeopardy does not preclude disciplinary action by Petitioner against Respondent's license. No evidence shows that Respondent has any prior disciplinary history by either Petitioner or the District. Petitioner seeks to have Respondent's teaching certificate suspended for 12 months. However, Petitioner's proposed penalty is based on the premise that Respondent committed all of the allegations in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Section 231.28(1)(i) and Rule 6B-1.006(3)(a) and (e), and suspending Respondent's teaching certificate in Florida for six months. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2001. COPIES FURNISHED: Ron Weaver, Esquire Ron Weaver & Associates 528 East Park Avenue Tallahassee, Florida 32301-1518 Kathleen M. Richards, Executive Director Educational Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Carl Zahner, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399 Moses N. Mwaura 214 Tenth Street Post Office Box 856 Moore Haven, Florida 33471
Findings Of Fact The Respondent holds Florida teaching certificate 195597 covering the area of industrial arts. During the school years of 1973-1974 to 1983-1984, Respondent had no persistent pattern involving professional incompetency or unprofessional conduct. The Respondent was employed as a teacher of industrial arts at Vero Beach Junior High School in the Indian River County School District during the 1983-1984, 1984-1985, and the first three weeks of the 1985-1986 school years, until his suspension effective September 16, 1985. During 1983-1984, he also apparently taught mathematics. At various times, the classes Respondent taught at Vero Beach Junior High School included some classes directed to regular students and others directed to exceptional students, including the educable mentally handicapped (EMH). EMH students have intelligence quotients (IQs) of less than 70. At all times, all of the industrial arts classes taught by Respondent were elective. THE 1983-1984 SCHOOL YEAR Mr. Marion Bass was the Respondent's supervising principal at all times material to the administrative complaint. As the Respondent's supervising principal, Mr. Bass observed and evaluated the Respondent's teaching performance. Prior to evaluating the Respondent's teaching performance, Principal Bass received formal training in the evaluation of teachers and had 12 to 13 years of practical experience in conducting teacher evaluations. Principal Bass observed the Respondent's teaching performance informally on two or three occasions during the 1983- 1984 school year and twice formally at the end of that school year. In his observations and evaluation of Respondent, Bass found the Respondent's performance to be unsatisfactory. Specifically, Bass observed that the Respondent did not satisfactorily control students in his classroom, his planning was not as complete as it should be, implementation of his lesson plans was not acceptable, and Respondent's "voice procedures" (i.e., diction and volume) were unsatisfactory. Bass opined that the Respondent did not have a specific structure to his industrial arts class. Even if students were knowledgeable of their assigned task on a given day, the students were not always on-task. Instead, they would be out of their seats, moving around the room and discussing topics unrelated to class work. In Bass' view, Respondent failed to provide proper supervision of the students, and as a result, the students did not appear to respect the Respondent's instructions. Bass observed that students ignored Respondent's instructions to sit down and be quiet. On other occasions, he observed that the Respondent ignored some students' off-task behavior while he was involved with others. However, none of Bass' observations in the 1983- 1984 school year were reduced to writing nor formally discussed with Respondent, and the formal year-end evaluation of Respondent of March 16, 1984, by Laurent Smith, Assistant Principal, rated Respondent as overall satisfactory and his contract was subsequently renewed for the 1984-1985 school year. On or about May 15, 1984, Bass inadvertently discovered that the Respondent was not knowledgeable of his mathematics students' progress in their skills continuum. This was particularly disturbing to Bass in that each student is required by the Indian River County School Board to accomplish at least 70 percent proficiency in state-mandated skills in order to be promoted to the next higher grade. Thereafter, Bass made an attempt to ascertain the level of skills accomplishment by the students in Respondent's classes. While doing so, Bass questioned Respondent about the matter. The Respondent indicated that certain students were in the Compensatory Education Program. Bass subsequently learned that those students were not compensatory education students but were Level Two students. It alarmed Bass to discover that the Respondent did not even know what level of students he had been teaching for seven months. THE 1984-1985 SCHOOL YEAR On September 17, 1984, Bass prepared a memorandum to Dr. Douglas King, Director of Personnel for the School Board. In that memorandum, Bass outlined his concerns regarding Respondent's teaching performance. The memorandum addressed seven general areas of deficiency: failure to control students' behavior; failure to provide meaningful structure and direction and failure to support an enthusiasm for learning; failure to demonstrate the ability to plan a course of study with overall goals and objectives providing direction and continuity in the subject matter; difficulty in implementing what lesson plans the Respondent did develop; addressing only a small percentage of the students in his class when presenting a lesson; difficulty with proper grammar and diction; and a demonstrated lack of understanding for the basic academic and social skill needs of his students. Following preparation of his September 17, 1984 memorandum, Bass continued to make observations of the Respondent's teaching performance. Bass observed the Respondent's teaching performance on October 15, 1984 and completed a Classroom Observation Instrument containing his notes of that observation which rated the Respondent's performance in the classroom as "extremely poor, one of great concern." The notations on the Classroom Observation Instrument itself indicate that the Respondent gave directions to a limited number of students, assisted only a small number of students, engaged in very little class communication, did not enunciate well, used poor diction, utilized "very poor" classroom management, and failed to keep the students on task. Following Bass' observation of the Respondent on October 15, 1984, he prepared a written memorandum of his concerns and his suggestions for improvement. He met with the Respondent and discussed both his concerns and suggestions for improvement. The Respondent received a copy of the memorandum. During this conference, Bass told the Respondent that he was there to help him in any way that he knew how to help. Bass expressed similar sentiments in other conferences with Respondent regarding Respondent's teaching performance and offered to allow Respondent to visit other schools and other teachers both in and out of the school district in an effort to help Respondent remediate his observed deficiencies. On September 13, 1984, Theresa Wagner, chairperson of the vocational department of Vero Beach Junior High School, sent all teachers within that department a memorandum establishing dates for computer usage. One of the components of the Respondent's industrial arts curriculum was demonstration of computer literacy. Respondent received a copy of the memorandum. On October 15, 1984, the first day of the Respondent's assigned time block for use of the computers, the Respondent advised Ms. Wagner that his class was not ready to use the computers and would probably not be ready the following week. However, until that date, Respondent had expressed no problem with the time block assigned to him and had requested no assistance in preparing for this new function of the curriculum. When Ms. Wagner reminded him that computer skills were a part of his required curriculum at that time, Respondent replied that he could not understand why he had to teach something he did not know anything about. Further, he stated that he could not learn it. Respondent apparently made two attempts to learn the computer and gave up. Respondent's failure to adapt himself to the new computer programming time blocks inconvenienced Ms. Wagner and others who were required to share the single computer during the finite time available in a school day/school year. At hearing, Respondent advanced the theory that because his major was in TIE (Trade Industrial Education), he ought not to be required to adapt to teaching manufacturing, woodworking, and computer literacy, which are outside of his expressed field of interest, but which apparently are very much contemplated within the general field of industrial arts. Additionally, he felt he certainly should not be required to adapt to teaching all these "new" areas at one time. However, it appears he had been teaching woodworking for some period of time anyway. Overall, Respondent made it clear he did not want to teach the curriculum assigned to him. As a part of her assigned responsibilities as department chairperson, Ms. Wagner was required to observe each of the teachers within the vocational department. On October 10, 1984, she observed the Respondent. Her memorandum to the Respondent dated October 10, 1984, outlined her observations as well as her suggestions for his improvement. Ms. Wagner had difficulty understanding the Respondent when he was teaching. She suggested that he talk louder and make a special effort to enunciate clearly. She observed that the Respondent failed to provide a handout for one girl in the class. The girl raised her hand and had it up for five minutes before the Respondent noticed the student and gave her the handout. Ms. Wagner observed a lot of non-essential, non-productive movement of students in the classroom. Finally, she noted among other things that the last lesson plans which the Respondent turned in were for the week of September 17, 1984, although he was on notice that he was supposed to turn in lesson plans weekly. Ms. Wagner observed little, if any, instruction being provided by the Respondent. The students failed to respond to the Respondent's directions and did not pay attention to him or obey his directions. In fact, the majority of the students ignored the Respondent during this observation by Ms. Wagner. Lesson plans were an on-going problem between Ms. Wagner and Respondent. Only when Ms. Wagner specifically asked the Respondent for lesson plans did she receive them. Those which she did receive from the Respondent were not satisfactory. In her opinion, any substitute teacher would have had a very difficult time teaching effectively based upon the plans which Respondent did submit to her. Although other departmental personnel sometimes missed turning in lesson plans timely, everyone except the Respondent eventually "caught up" with their lesson plans. Ms. Wagner later observed Respondent on several other occasions. Those observations of the Respondent's teaching performance were consistent with her observations on October 10, 1984. On September 14, 1984, Richard Thomas, Vero Beach Junior High School Dean and Assistant Principal, observed the Respondent's classroom performance. Mr. Thomas is trained for such evaluations. Using the teacher evaluation form containing 39 observable "behaviors," Thomas rated the Respondent as "needs improvement" in 14 of the 39 categories based upon his observations on September 14, 1984. Thomas categorized the Respondent's performance on that date as incompetent. On September 20, 1984, Thomas became aware that the Respondent was sending a large number of student referrals to the Guidance Department for the purpose of having the students seek reassignments from his classes to other classes. Respondent's action was creating problems for the Guidance Department, the students, and the Respondent himself because by that point in the school year, a change of classes under the circumstances was impossible. Thomas prepared a letter dated September 20, 1984 to Respondent requesting that he refrain from such conduct. In the letter, Thomas offered to discuss the matter with the Respondent. Respondent's reasons for his acceleration of referrals was never made entirely clear. However, one explanation offered by the Respondent at formal hearing was that when he had behavioral problems with students in his classes and was not permitted to lock them out of the class (see findings of fact 21, 32, and 33 infra.) and was not otherwise "backed up" by Principal Bass and Assistant Principal Thomas, Respondent felt justified, as a strict disciplinarian, in referring those students whom he viewed as troublemakers to the Guidance Department either to be dealt with by Thomas or for reassignment elsewhere. Under the circumstances, this explanation by Respondent of strict discipline is flawed and unreasonable and evidences lack of classroom control. At hearing, Respondent expressed his objection to having exceptional and special education students in his classes due to their low IQs, even though he admittedly had taken courses in this area. Although all school and School Board personnel assumed Respondent was certified for EMH students, Respondent was not specifically so-certified. He maintained that because of their low IQs, EMH students created special discipline problems, which fact was confirmed by Mr. LaPointe and Mr. Bass. However, Mr. LaPointe, a specialist in the field, also opined that an industrial arts certificate should qualify Respondent to teach industrial arts to EMH students. Respondent attributed much of his professional troubles to the inability of the exceptional education students to learn as opposed to his own inability to teach. At first, Respondent further suggested Bass and Thomas had also assigned students with disciplinary problems to both his regular and exceptional classes. However, he could not substantiate this premise in light of the elective nature of all industrial arts classes. Overall, Respondent only made it clear that he did not want to teach the students assigned to him. On October 17, 1984, as a follow-up to his September 14, 1984 visit, Thomas observed Respondent teaching and prepared a Classroom Observation Instrument. He concluded that the Respondent's "with-it-ness" was poor because Respondent was oblivious to a fight which was about to break out between students in the back of his classroom and because a student had to approach the Respondent and almost physically pull on the Respondent's arm to get his attention. Thomas observed that the Respondent was not in control of his class and that he failed to maintain the attention of all students. Thomas observed no improvement in Respondent's performance on his October 17, 1984 return, except that on that particular date, the Respondent did attempt to implement some organizational structure through the use of an overhead projection covering four items. On November 9, 1984, Thomas wrote the Respondent a letter in regard to the manufacture of weapons by students in the Respondent's manufacturing class. Prior to that date, Thomas had verbally cautioned the Respondent about the manufacture of weapons by students in his class. No direct competent substantial evidence nor any corroborated hearsay supports a finding of fact that "weapons" per se were in fact created in Respondent's class with his knowledge. It was, however, demonstrated that various lathe-produced wooden objects, possibly intended by Respondent for use as chair legs, were smuggled out of his class by students. Although Respondent denied certain items described as "swords" and "paddles" were weapons and even that some of the "chair legs" were made in his class, the fact that he admitted that a paddle and certain "chair legs" could have been smuggled out by students indicates an appalling nonchalance for his duties of supervision of young people. It was further demonstrated that a sign bearing the expression "I LOVE SEX" and that a paddle bearing the expression "DUCK BUT!" [sic] were manufactured in Respondent's class without his disapproval. On October 16, 1984, Jean Carter, the Director of Vocational Adult and Community Education for the Indian River County School District, observed the Respondent's second period class. Ms. Carter is a qualified observer with the Florida Performance Measurement System. During her observation on October 16, 1984, Ms. Carter noted that the Respondent did not begin his class promptly. Students talked in loud voices and milled around the room. The Respondent had difficulty communicating with his students. Most of his comments were inaudible. The Respondent turned his back on some students when he spoke to other students. Few students attempted to write the notes shown on the overhead projector as the Respondent ordered. Other students never faced the projector, and the Respondent seemed to be unaware that they were not taking notes. Ms. Carter observed several students off task. Four or five students were throwing paper and spitballs around the room. The word "important" was misspelled on the transparency. Respondent exhibited no enthusiasm for the subject matter, never praised the students, spoke positively, or smiled. He did not appear to enjoy teaching. In November 1984, a request was made to the Florida Department of Education to provide an assistance review of the Respondent's teaching performance. The purpose of the assistance review was to provide the Respondent with assistance in becoming a more proficient teacher. Following the assistance review, a very lengthy, detailed report was prepared by the reviewer and submitted to the Indian River County School District. On February 7, 1985, a conference was held involving Superintendent Burns; Principal Bass; Dr. Eddie Hudson, Personnel Coordinator; Mrs. Shirley Hanawait, Assistant Superintendent; Ms. Carolyn Sheppard, CEA President; Jean Carter, Director of Vocational Education; Dr. Douglas King, Director of Personnel; and the Respondent. The purpose of the conference was to review the report prepared by the Department of Education assistance reviewer and to make arrangements to provide Respondent with additional help and assistance as needed. In that conference, Respondent's supervisors made arrangements to correct, repair, or adjust equipment in Respondent's classroom; to have another industrial arts teacher assist Respondent; to provide Respondent with relief time to observe other professional teachers in the same vocational area; to send the Respondent to two professional conferences; to provide Respondent with professional journals; to provide Respondent with assistance through the department head; and to provide assistance from Mr. Bass in the areas of grading, lesson plans, supervision, management, and organization. Mr. Bass, Superintendent Burns, and Dr. King emphasized to Respondent that he must begin to show improvement in his performance immediately. Respondent was advised that if no improvement were demonstrated immediately, Respondent could be removed from continuing contract status or dismissed altogether. The Respondent received a copy of the conference summary prepared by Dr. King as a reminder of the action Respondent was expected to take to improve his classroom performance. Ms. Carter participated in the conference held with the Respondent on February 7, 1985, to review the assistance review report and to provide the Respondent with help. Her purpose in attending the conference was to provide the Respondent with assistance in any way possible to improve his performance. Ms. Carter later made sure that all of the Respondent's equipment was in proper working order, that he had copies of the performance standards mandated for the courses he taught, that he received professional journals, and that he was authorized to attend two conferences relating to his subject matter area. Respondent did not, however, attend either conference. Subsequent to the February 7, 1985 conference, Bass conducted five classroom observations of the Respondent's teaching performance. On each occasion, Bass completed a Classroom Observation Instrument. On March 8, 1985, Bass observed the Respondent's class and found that no valid learning activity was going on in the classroom. On March 12, 1985 at 7:35 a.m., Bass observed the Respondent's industrial arts class for exceptional education students. There were seven or eight students in the class. Bass observed that the Respondent gave the students approximately 15 vocabulary words to look up while the Respondent straightened up the classroom. In Bass' opinion, such an assignment for exceptional education students was inappropriate due to their limited intelligence, attention span, and the purpose for which such students were enrolled in the course. Mr. Bass characterized Respondent's performance on that date as poor. Subsequently, on the same date, Bass observed the Respondent teaching manufacturing to a regular class of about 17 students. Although Bass characterized Respondent's performance in this class as better, he still gave it an overall score of poor because Respondent's presentation lacked continuity and his discourse was "disjointed." Bass continued to note that the Respondent had difficulty with grammar, enunciation, and projection of an enthusiasm for the subject matter. On March 18, 1985, Bass again observed Respondent's manufacturing class for exceptional students. Although Bass also termed this observation better than those he had made of Respondent in the past, he still considered it a below average observation. On the observation instrument itself, Bass noted that the Respondent was late to class, wasted time by marching the students to a film which was set up in a classroom in a separate building, provided no orientation or preview prior to showing the film, and conducted no discussion of the film after it had been shown. He further noted that the Respondent performed much of the project work himself, thereby limiting the hands-on experience that the students were in the class to receive. That same day, Bass observed the Respondent's manufacturing class for regular students, which viewed the same film as had been shown to the exceptional education students. The content of the film would have been acceptably pitched for both types of classes if Respondent had appropriately introduced the film and had led post-film discussions appropriate to each level, which he did not. Bass felt that once again a lot of time was wasted, there was scant review of the film's content, and there existed the same problems with diction and discourse by the Respondent. Bass concluded that the Respondent's teaching performance remained virtually unchanged from what it had been prior to the assistance review. Bass' March 27, 1985 Annual Teacher Evaluation for Respondent's 1984- 1985 school year resulted in a rating of "needs improvement" in 23 of the 39 "behaviors" evaluated on the form. Bass met with Respondent on March 28, 1985 to review the evaluation and discuss it with him. Before Bass could begin discussion of the evaluation, Respondent stated, "Let me make a long story short, Mr. Bass, I am not going to sign my evaluation even if we talk all week. You're 100 percent right on what you wrote, but I'm still not signing it." On more than six occasions, Thomas found the Respondent's students out of class when they were supposed to be in his room. On certain occasions Respondent locked them out. When the Respondent locked students out of his classroom, those students were free to roam the halls with the excuse that they had been locked out of their classroom. On one occasion, school staff members caught one of the Respondent's students committing a theft at a time when he was supposed to be in Respondent's class. Although the theft incident was not conclusively tied to a date Respondent locked students out of his classroom, Respondent was still responsible for indicating to the administration that the student was "cutting" and had not done so. On June 4, 1985, Bass learned that the Respondent was locking his students out of his classroom. Final examinations were being conducted at the time. The Respondent told Bass that he could not make the students stay in class without this procedure, which he had designed to catch students when a student still in the classroom tried to let those who had left the classroom back into the classroom from the outside. Respondent also told Bass he could not give an examination and control the students if the door were not locked. Respondent repeated this explanation from the stand at formal hearing as if his plan were designed to catch those who "cut" class, but Respondent also maintained it was a method of timing the number of minutes students remained out of class so that Respondent could tell their parents why he would not permit them ever to leave the room again, apparently even for reasons as mundane and urgent as using the bathroom. Such reasoning process is flawed and unreasonable, if not downright silly. The Respondent refused to sign the incident report resulting from this incident and further refused to discuss the incident report with Mr. Bass. As a vocational education teacher, Respondent was required to submit end of the year reports to Ms. Carter as a part of state and federal funding requirements. Ms. Carter had informed Respondent of the requirement that he prepare and submit the reports prior to leaving school. Respondent testified he submitted the required reports at the end of the 1984-1985 school year by placing them in the school office mail box of Ms. Wagner. Ms. Carter testified that she did not receive them. The problem with transmittal of the reports appears to be one that could have been resolved by Ms. Wagner or someone notifying the Respondent immediately by telephone that they had not been received. This was not done, although Ms. Carter and Dr. King followed up with written reproofs. Such an infraction under these circumstances will not support discipline of Respondent. Respondent's annual evaluation for the 1984-1985 school year, dated March 27, 1985 and referenced above, was not satisfactory, but Respondent's contract was subsequently renewed for the 1985-1986 year. THE 1985-1986 SCHOOL YEAR On September 3, 1985, Howard LaPointe, then a staff associate in the Exceptional Education Program of the Indian River County School District, observed Respondent teaching exceptional students in his manufacturing class. Although school had begun on August 17, 1985, Respondent took his class on a tour of the other building on September 3, 1985. Mr. LaPointe observed numerous deficiencies during his observation and noted that the Respondent needed assistance in the areas of classroom management, instructional materials, orientation to class work, utilization of student notebooks, and competency based upon the curriculum guide. On September 13, 1985, the Respondent met in Principal Bass' office with Bass, LaPointe, Carolyn Sheppard (president of the teachers' union) and Dr. King to review LaPointe's observation conducted on September 3, 1985 and to discuss suggestions for Respondent's professional improvement. As Mr. LaPointe began to present his plan for providing assistance to the Respondent, Respondent became angry and upset. After a sharp exchange between LaPointe and Respondent, wherein LaPointe asked Respondent "What the hell do you expect the children to do?" or some similarly-phrased question, Respondent left the meeting and did not return. Bass and Dr. King walked down to the Respondent's office, a glass- enclosed room. They could see Respondent was in a highly emotional, agitated state. The Respondent had knocked his personal television set onto the floor. It was not demonstrated that Respondent damaged a projector or any other school property or that two obscenities uttered by Respondent were heard by anyone other than a fellow teacher, Mr. Humphrey, who had entered the enclosed room as a friend to calm down the Respondent. Had Bass and King not followed Respondent to his own office they would not have even observed his agitated state. Respondent was excused for the remainder of the school day after Mr. Humphrey calmed him down. Later that day, Superintendent Burns suspended the Respondent without pay. Respondent was subsequently terminated by the School Board for incompetence, misconduct, and gross insubordination. On December 12, 1985, Dr. King notified the Florida Department of Education that the Respondent had been dismissed from his position of employment. Dr. King recommended that the Respondent's teaching certificate be permanently revoked. Based upon Bass' observations and evaluations of the Respondent's teaching performance over a period of more than two years, Bass holds the professional opinion that the Respondent is an incompetent teacher. Bass would not recommend the Respondent for employment in Indian River County or any other school district. In Bass' professional opinion, students in the Respondent's regular classroom did not receive even a minimal educational experience and the exceptional students received only a minimal educational experience. No evidence whatsoever supporting the allegations of unprofessional conduct at Clemans Elementary School was offered and no such unprofessional conduct is found. No direct competent substantial evidence nor any corroborated hearsay supports the allegation that Respondent used profanity in the presence of students and no such conduct is found. Respondent's pre-1983-1984 school year evaluations are technically irrelevant to the charges at bar but were admitted to give Respondent every opportunity to "prove up" his allegations that his current problems arose from personal or personality conflicts with Bass and Thomas. Unfortunately for Respondent, these exhibits show some of his deficiencies are long-standing but were sporadic as opposed to forming a consistent pattern early on. Otherwise, these exhibits are too remote in time to have great weight. Respondent also defended, pursuant to Rule 6B-4.08(2), Florida Administrative Code, upon the premise that after a bombardment of evaluations and conferences he felt he was being harassed rather than given corrective assistance and that he was given too little time in which to make the adjustments required. Rule 613-4.08(2) requires Respondent's immediate supervisor to make all efforts possible to aid Respondent to correct the matter which caused his dismissal. Although this is a questionable defense when, as here, Petitioner and the School Board are not one and the same entity, some of Respondent's allegations have a mitigating effect. There is some merit to his allegations with regard to the timeframe and limited assistance provided but none as to the allegation of harassment. Respondent did unsuccessfully apply for transfer and volunteer to accept a custodial job at the same pay in order to avoid his problems with Bass and Thomas, but he could not demonstrate at formal hearing any reason other than his own attitude and teaching performance for Bass' and Thomas' poor evaluations and refusal to transfer him. Moreover, the consistency of the other observers' analyses belies any conspiracy or vendetta against Respondent on the part of Bass and Thomas. There is some evidence that Respondent made some minimal improvements in technique after assistance was provided by the professional reviewer, which assistance Mr. Bass characterized as the only significant remediation provided the Respondent. Upon his superiors' advice, Respondent also conferred with at least one other teacher in his field who came to his school. Ms. Carter testified that Respondent was authorized to attend two professional conferences and he did not, in fact, attend, but it is unclear from her testimony and the supporting documentary evidence whether federal grant monies were ever authorized for Respondent's attendance at either of these conferences. Mr. LaPointe's evidence that special assistance with regard to exceptional students was offered by him but rebuffed by Respondent is indicative of Respondent's poor attitude. There is evidence that equipment was repaired for Respondent and although not stated by any one witness in so many words, it may be inferred from the collective testimony of several witnesses that Respondent could have requested time off to observe other industrial arts classes and confer with other industrial arts teachers outside his own school but failed to do so. In light of Respondent's satisfactory rating in the 1983-1984 school year, the fact that significant efforts to assist Respondent did not commence until November 1984 (reviewer visit) and that internal assistance did not begin in earnest until the February 7, 1985 conference, I find Respondent had really only from February to March 1985 to avoid an initial unfavorable annual evaluation. From March 1985 to school's closing in June and part of August and September in the 1985-1986 school year was all the time permitted Respondent for remediation because he was dismissed in mid-September 1985. Even so, he showed some minimal improvement which has been considered.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's Florida teaching certificate be suspended for three years with provision for reinstatement as provided by statute. DONE AND ORDERED this 22nd day of June, 1987, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4101 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF). Petitioner's Proposed FOF: Covered in FOF 1. Covered in FOF 3. Covered in FOF 5. 4-5 Covered in FOF 6. 6-8 Covered in FOF 7 but amplified to conform to the record as a whole. Covered in FOF 8. Covered in FOF 9. Accepted that there were such reports but rejected as set forth in FOF 41. Covered in FOF 10. Covered in FOF 11 except as to the subordinate and unnecessary. 14-15. Covered in FOF 12 except as to the subordinate and unnecessary. Covered in FOF 25. Covered in FOF 26. 18-19. Covered in FOF 27. 20. Covered in FOF 29. 21-23. Covered and amplified in FOF 30 to conform to the record, but eliminating the legal argument from proposal 23. 24. Covered in FOF 31. The commentary about the presence of a secretary and Respondent's mood are rejected as immaterial in light of no charges of insubordination. Further, mild anger in the presence of the Principal's secretary is hardly likely to impair Respondent's effectiveness. 25-26. Covered, modified and amplified as necessary in FOF 33 to convey the full scope of the material facts of record. That which is cumulative, subordinate and unnecessary has been rejected. 27. Covered in FOF 36; what is rejected is subordinate and unnecessary. 28-29. Covered in FOF 39; what is rejected is cumulative. 30-31. Covered in FOF 13-14 and amplified to more accurately convey the evidence of record as a whole. Covered in FOF 16 but modified for clarity. Covered in FOF 18. Except for elimination of the cumulative, covered in FOF 17. Except as cumulative, subordinate and unnecessary, covered in FOF 19. Covered in FOF 19. 37-38. Covered and amplified in FOF 20 to more accurately reflect the evidence of record as a whole. 39-42. Except as cumulative, subordinate or unnecessary, covered in FOF 22. 43-46, and 49 Rejected as not supported by the direct, credible competent substantial evidence of record as a whole. 47-48. Accepted that reports were written but rejected on the basis of uncorroborated hearsay, unsupported by direct credible competent substantial evidence in the record as a whole as covered in FOF 41. 50. Covered and amplified to more accurately reflect the record evidence as a whole in FOF 32. See also FOF 33. 51-53. Except for the cumulative, subordinate and unnecessary, covered in FOF 24. Covered in FOF 28 and 42. Rejected as not supported by the record as a whole. All witnesses are entirely credible on this point and Respondent's testimony is not truly contrary to other testimony. The benefit of the doubt must be resolved in his favor in this penal procedure. 56-58. Rejected as stated as not supported by the credible competent substantial evidence of record as a whole which is set out in FOF 37. 59. Covered in FOF 38. 60-61. Rejected as subordinate and unnecessary except as covered in FOF 38. 62. Covered in FOF 38. 63-65. Rejected as irrelevant except as covered in FOF 42. Rejected as cumulative. See FOF 20, 21, 32 and 33. Accepted but covered as set forth in FOF 23 since the proposal does not constitute an ultimate, material fact. Rejected as legal argument except to the extent it is peripherally covered in FOF 42. Respondent's Proposed FOF: 1-3. Accepted but cumulative upon the acceptance of similar proposals by Petitioner. 4. Rejected as stated in that it constitutes argument but the topic is covered in FOF 7, 21 and 42, as supported by the record as a whole. 5-8. Accepted but cumulative upon the acceptance of similar proposals by Petitioner. This proposal is not a sentence and is therefore rejected. Accepted that Respondent had the feelings and made the statement but rejected as stated as misleading of the record as a whole. See FOF 37. Except as covered in FOF 4, rejected as irrelevant, although true. Accepted but this goes to Respondent's overall incompetency and is not an ultimate material fact and therefore not adopted. See FOF 21. Rejected as some of these were not admitted in evidence and those in evidence do not support the proposal, neither does the record evidence as a whole. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Charles L. Hendley, Esquire 1500 Delaware Avenue Fort Pierce, Florida 33450 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 =================================================================
Findings Of Fact William Burnett Washington's primary residence is 106 Westwind Court, Sanford, Florida. Mr. Washington and his wife, Betty Washington, have jointly owned the house at 106 Westwind Court house for 10 years. On a highly infrequent basis, Mr. Washington spends the night at 2020 Old Lake Mary Road, Sanford, Florida. This is the primary residence of Mr. Washington's brother, who is normally the sole occupant of the house. The Westwind Court house is occupied by Mr. Washington, Mrs. Washington, and their children, Shawn Washington, aged 16 years, and Niki, aged 14 years. Apart from infrequent overnight visits with friends, the Westwind Court home is the exclusive residence of Shawn and Niki. The Westwind Court house is served by the Seminole High School attendance zone. The Old Lake Mary Road house is served by the Lake Mary High School attendance zone. At the beginning of the 1989-90 school year, Shawn and Niki were attending Lake Mary High School. By letter dated September 21, 1989, Respondent informed Petitioner that his children were enrolled in Lake Mary High School on the basis of false information. The letter explained that they were being administratively withdrawn from Lake Mary High School and administratively enrolled at Seminole High School.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Seminole County, Florida enter a Final Order confirming the enrollment of Shawn and Niki Washington in Seminole High School. ENTERED this 22nd day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5651 Treatment Accorded Proposed Findings of Respondent 1: adopted except that Petitioner primarily resides at 106 Westwind Court. Even if he were to reside primarily at 2020 Old Lake Mary Road, however, the result would be the same because the children primarily reside with their mother. 2-3: adopted. 4: rejected as unsupported by the greater weight of the evidence. The children primarily reside with their mother. 5: adopted. 6-9: rejected as subordinate and recitation of evidence. 10: rejected as irrelevant. COPIES FURNISHED: Harry L. Lamb, Jr. Perry & Lamb, P.A. 135 Wall St. Suite 200 Orlando, FL 32801 Ned N. Julian, Jr. Stenstrom, McIntosh, Julian, et al. P.O. Box 1330 Sanford, FL 32772-1330 Robert W. Hughes Superintendent The School Board of Seminole County, Florida 1211 Mellonville Avenue Sanford, FL 32772 Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
Findings Of Fact At all times relevant hereto, respondent, Carlos C. Garay was a student in the school system of petitioner, School Board of Dade County. Most recently, he was a seventh grader at South Miami Junior High School until he withdrew from school on January 5, 1987. Petitioner proposes to reassign Carlos from the regular school program to J.R.E. Lee School. The basis for reassignment is Carlos' "disruptive behavior and failure to adjust to the regular school." This action was formalized in a letter dated December 17, 1986, a copy of which was forwarded to Carlos' mother. The reassignment prompted a request for a due process hearing. Carlos has been a student in the Dade County public school system since at least academic year 1984-85. That year he attended West Miami Junior High School (WJHS), and received final grades of F in all six subjects. His effort was generally rated insufficient, and his conduct was unsatisfactory in most classes for all grading periods. As a result of having a knife in his possession on or about June 7, 1985, Carlos was expelled from WJHS for the first semester of school year 1985- 86, and reassigned to another school for second semester. On February 3, 1986, he enrolled at South Miami Junior High School (SMJHS). At SMJHS, Carlos exhibited a continuing pattern of disruptive and rebellious behavior. This is documented in numerous case management referral forms received in evidence as petitioner's exhibits 2, 3 and 6. These forms are prepared whenever a student is referred by a teacher to the principal's office for disciplinary action. Carlos' conduct included incidents of disruptive behavior in class, hitting other students and refusing to obey his teachers. This conduct not only prevented Carlos from learning in the classroom, but also interfered with the educational process of other students. As a result of the above referrals, school officials held a number of conferences with Carlos' parents in an effort to improve his behavior. In addition, Carlos was given frequent counseling, and was referred to a child team study. None of these measures produced any positive change in his behavior. During 1986 Carlos did not demonstrate satisfactory academic progress. Indeed, he received more F's than any other grade. He also had numerous absences from class, and his effort in class was generally rated unsatisfactory. Because of his disruptive behavior and lack of academic progress, a reassignment of Carlos to an alternative school is justified.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Carlos C. Garay be reassigned to J.R.E. Lee School. DONE AND ORDERED this 23rd day of September, 1987, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Frank R. Harder, Esquire 175 Fontainebleau Boulevard Suite 2A-3 Miami, Florida 33172 Ms. Carmelino Garay 6707 Southwest 215th Terrace Miami, Florida 33155 Dr. Leonard Britton Superintendent Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 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 23rd day of September, 1987.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, the stipulations of the parties, and the record as a whole, the following Findings of Fact are made: Teaching Certification and Experience Respondent holds Florida teaching certificate 177890, which covers the area of music and is valid through June 30, 1995. He has been a teacher for the past 27 years. Respondent has spent his entire teaching career teaching music in the Dade County public school system. For fourteen of these years, including the 1990-91 school year and a portion of the 1991-92 school year, he was a music teacher at Sunset High. In terms of student population, Sunset High is one of the largest high schools in the state. During the 1990-91 school year there were approximately 3200 to 3300 students enrolled at the school. As a result of its large student enrollment, classrooms and hallways were crowded and teaching conditions were less than optimum. At all times material to the instant case, Respondent was the teacher responsible for Sunset High's choral program, which enjoyed an excellent reputation due in large measure to Respondent's efforts and dedication. He often stayed at school until late in the afternoon working with his students. Respondent taught beginning, intermediate and advanced chorus at Sunset High. The advanced chorus classes had fewer students than did the other chorus classes. One of the advanced chorus classes Respondent taught was comprised exclusively of female students, approximately 20 in number. It was referred to as "Nightingales." The other advanced chorus class had both male and female students. It was known as "Camelot." The students in "Nightingales" and "Camelot" not only sang in class, they also performed for others, particularly during the holiday season. Rehearsals for these performances were held after the regular school day. Verbal Attacks Respondent was very demanding of his students. He reprimanded them, often loudly and in an angry tone of voice, when they did not follow his instructions or when their singing in class or during rehearsals failed to meet his expectations. These reprimands became more frequent as a performance date grew nearer. Occasionally, Respondent's reprimands included foul language, such as the words "asshole," "bitch" and "shit." There were also times that Respondent called a student with whom he was displeased "stupid" or an "idiot." Respondent's outbursts reduced some of his students to tears because they did not want to be a disappointment to Respondent. The students in Respondent's classes were not the only ones subjected to his tirades. Respondent also lambasted other students at the school and, on isolated occasions, even staff members. For example, during the 1990-91 school year Respondent occasionally yelled at guitar students who were practicing in the hallway in the only space that was available to them for that purpose and threatened to throw them against the wall if they did not leave the area. During that same school year, he was also rude to Marilyn Smith, another music teacher at the school, in the presence of students. Respondent also yelled at Judy Cospito, the school treasurer, for a considerable amount of time in front of approximately 200 people waiting in the lobby of the school auditorium to purchase tickets to a student choral performance. Cospito had volunteered to sell tickets to the performance and Respondent was upset that she had not arrived at the auditorium earlier. Cospito never again offered to do any volunteer work for Respondent. Touching of Students Respondent was not always ill-tempered. On many occasions he acted as a deeply caring teacher with great affection for his students. Respondent openly displayed his affection for his students, particularly his female students towards whom he was more affectionate than their male counterparts. He hugged female students, on some occasions approaching them from the side and on other occasions approaching them from the front. On one occasion, one of Respondent's female students, E.H., was seated at the piano, when Respondent approached her from behind, put his arms around her and touched her breasts. E.H. was startled by Respondent's actions and she jumped up from her seat. Respondent then walked away. This was not the only time that Respondent touched the breast of a female student in his class. After class one day at the beginning of the 1991- 92 school year, J.J., a member of "Nightingales," tried on for Respondent at his request a used performance costume that one of the returning members of the class had offered to sell to her. Upon seeing J.J. in the costume, Respondent thought that it might be too tight around J.J.'s chest. He therefore, pointing at her chest, asked her if it fit there. The finger with which Respondent pointed made contact with one of J.J.'s breasts. Immediately after touching her, Respondent moved his finger away. Respondent kissed female students on the cheek. J.S. was among the female students that Respondent kissed in this manner. Respondent put his hand on the knee of female students, including E.H., T.G. and A.B., when they were sitting next to him. He did this to E.H. with some regularity. On one such occasion, when E.H. and Respondent were alone in Respondent's office, Respondent moved his hand a little above her knee. Respondent shook the hands of female students and, as he did so, rubbed one his fingers against the palms of their hands. J.J. was one of the students to whom Respondent did this. Respondent also held the hands of his female students. One such instance of hand-holding occurred during a school trip to Tampa, Florida, where five of Respondent's students, including T.G., performed in a statewide competition. As T.G. entered the auditorium where the competition was being held, Respondent grabbed her hand and led her to her seat. He continued to hold her hand after they were seated, making her feel uncomfortable. He eventually let go of her hand. Respondent gave his female students shoulder rubs and back massages. He also scratched their backs. T.G. was one of the students whose back Respondent scratched. On one occasion, Respondent playfully stroked the hair of V.N., a member of "Nightingales." On another occasion, he patted M.F., a female student of his, on the buttocks with his hand. M.F. was angered by the incident. Some of Respondent's students, such as E.H., J.J., J.S., and T.G., felt uncomfortable when he touched them, but said nothing about their discomfort to Respondent. Neither did they bring the matter to the attention of the school administration. They thought that if they did tell, the school's choral program would suffer, which was something that they did not want to happen. V.N. and M.F. were two students who let Respondent, at least, know that they did not like it when he touched them. After being made aware of their feelings on the matter, Respondent stopped touching them. There were some students, such as A.B., 2/ who did not find Respondent touching them objectionable. Stares and Suggestive Remarks Respondent appeared at times to stare at T.G., making her feel uncomfortable. He also made comments in class regarding the physical appearance and clothing of his female students. For instance, during deep breathing exercises he commented to the larger breasted girls in the class that he liked the way they were sitting in their chairs. To girls who were wearing outfits that were more revealing than usual he would remark that they looked sexy and that they should wear these outfits more often. Among the girls to whom such remarks were directed were J.J. and J.S., both of whom suffered embarrassment as a result. The remarks embarrassed J.S. to such an extent that when she came home from school she cried. On one occasion, Respondent jokingly told the class that he was going out on a date with J.J. Although Respondent was simply trying to be funny (there was no "date" planned), J.J. was not amused. To the contrary, she was embarrassed by the remark. Handling of Booster Club Monies The Sunset Choral Parents Association (hereinafter referred to as the "Association") is a booster club that supports the choral program at Sunset High. It is an independent entity that operates outside the control of the Dade County School Board. Dade County School Board policy prohibits School Board employees from participating in the fund-raising activities of booster clubs such as the Association. The Association sold jackets and shirts to raise money. Normally, one of the parent members of the Association would come to school to collect money from any student or staff member who wished to purchase a jacket or shirt. On one occasion, a security guard at the school wanted to purchase a jacket from the Association, but there was no Association member available to take her money and give her a receipt. She therefore handed the money to Respondent, who provided her with a receipt. Respondent turned the money over to the Association that afternoon. School Board Disciplinary Action and Respondent's Subsequent Conduct On or about February 4, 1992, Respondent was temporarily transferred from Sunset High and reassigned to administrative duty pending the completion of the Dade County School Board's Special Investigative Unit's investigation of allegations of misconduct made against him. The investigation substantiated that Respondent had engaged in conduct that was unbecoming a School Board employee. Following the completion of the investigation, Respondent returned to Sunset High. On June 11, 1992, he was given the following written reprimand by the principal of Sunset High, Dennis Davis: On January 31, 1992, it was reported that you had displayed inappropriate behavior by yelling at students, using profanity to students and touching female students in an improper manner while teaching chorus in room 122. You violated the United Teachers of Dade Contract Article VII, Section I, as well as School and Dade County School Board Rule 6GX13-4A-1.21 Employee Conduct, and Chapter 6B-1.01(3) Code of Ethics of the Education Profession in Florida. You are accountable for your actions in your capacity as a certificated professional educator and should act in a manner which is consistent with the documents listed above. You are directed to refrain from using inappropriate behavior in the performance of your assigned duties. Any recurrences of the above infractions will result in further disciplinary action. On June 11, 1992, Respondent also received the following written administrative directives from Principal Davis: As stated to you during the re-entry conference on Tuesday, April 21, 1992, written administrative directives would be forthcoming. By this memorandum, I am direct- ing you to refrain from yelling. Additionally, there is to be no use of profanity in class. You are further directed to curtail all touching of female students and remarks that can be construed as sexual or improper. The names and statements of the students who were involved in this investigation have been made known to you. You are directed to avoid any remark or action to any of these students that can be construed as punitive or retaliatory. Your signature below signifies receipt of this memorandum and your intent to comply with these directives. Respondent has complied with these administrative directives since his return to the classroom. 3/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations alleged in Counts I through VI of the Administrative Complaint and disciplining him for having committed these violation by imposing the punishment proposed in Petitioner's recommended order which is set forth above. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of August, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1993.
The Issue The issues are whether Respondent is guilty of inappropriate sexual conduct with a female student, so as to constitute gross immorality, in violation of Section 231.2615(1)(c), Florida Statutes; personal conduct that seriously reduces Respondent's effectiveness as an employee of the School Board, in violation of Section 231.2615(1)(f), Florida Statutes; failure to make a reasonable effort to protect a student from conditions harmful to learning or her mental health or physical safety, in violation of Rule 6B-1.006(3)(a), Florida Administrative Code; intentional exposure of a student to unnecessary embarrassment or disparagement, in violation of Rule 6B-1.006(3)(e), Florida Administrative Code; or exploitation of a relationship with a student for personal gain or advantage, in violation of Rule 6B-1.006(3)(h), Florida Administrative Code. If guilty of any of these violations, an additional issue is what penalty that Petitioner should impose.
Findings Of Fact Respondent is a certified teacher, holding certificate number 649196. He was first employed by the Miami-Dade School District in January 1989. After working as a substitute teacher, Respondent was hired in a permanent capacity in 1990 or 1991. At the time of the alleged incidents, Respondent was a teacher at Coral Reef Senior High School, where he was the head basketball coach and assigned to teach English classes in the Center for Student Instruction. In the summers of 1998 and 1999, Respondent taught in the Summer Youth Employment Program that took place at Coral Reef. In this program, high-school students from Coral Reef and elsewhere attended classes to develop job skills and received monetary compensation while so enrolled. B. L. was born on November 3, 1982. She graduated from Coral Reef in 2000. During the summers of 1998 and 1999, B. L. took classes at Coral Reef that were sponsored by the Summer Youth Employment Program. The first summer she took a class in business and finance, and the second summer she took a class in legal and public affairs. Respondent was a coinstructor for both classes. During the summer of 1998, B. L., who was not a discipline problem, engaged in an argument with two other classmates, who were sisters. Respondent and his coinstructor intervened before any blows were exchanged. The coinstructor took the sisters and counseled them, and Respondent took B. L. and counseled her. Respondent removed B. L. from the classroom momentarily to talk to her outside of the hearing of her classmates and advise her that he was disappointed in her because she was one of the top-performing students and she should not "lower her standards" to the level of the sisters with whom she had been arguing. Respondent told B. L. that she was a "bright student, . . . articulate," that she was a "beautiful young lady [with] a lot going for her," that she seemed to have come from a "good family" and "had good standards," and that Respondent did not think that she should conduct herself like that in class. In the context in which it was said, "beautiful" refers to the totality of a person, including intelligence, attitude, and personality," and is not an inappropriate focus upon a person's physical appearance. After a couple of minutes of talking to B. L. outside the classroom, Respondent returned her to the classroom. He then spoke to the coinstructor and reported the incident to the counselor who dealt with classroom discipline. Respondent was unaware of what, if any, further action the counselor took against B. L. or the sisters. Respondent's other contact with B. L. was unremarkable that summer. A couple of times, he and the coinstructor cited B. L. for violations of the dress code. Generally, though, he taught her and treated her as he did the other students in his class. The following summer, B. L. signed up for Respondent's legal and public affairs class. Concerned that B. L. would be duplicating some of the material that they had covered the previous summer, Respondent spoke with the job counselor, who worked in his classroom. She and Respondent then advised B. L. to transfer to another class, but B. L. refused to do so. During this summer, B. L. confided in a classmate that she had a crush on Respondent and that her relationship with her current boyfriend was unsatisfactory. Nothing significant occurred during that summer between B. L. and Respondent, who again treated her as he did his other students. Obviously, B. L. has testified differently. She testified that, during the first summer, when Respondent had her out in the hall, he told her that a blue dress that she had worn the prior day had been driving him "crazy." She testified that Respondent asked her if she felt attracted toward him, and she said that she did not. B. L. testified that Respondent concluded the conversation by saying words to the effect, "if you're 'bout it 'bout it, you know where I am." B. L. testified that this meant that if she was serious about getting intimate with Respondent, such as kissing him, he would be available. B. L. testified that this was the only inappropriate conduct the first summer. B. L. testified that the following summer, she and Respondent happened to see each other outside of school at a shopping mall while B. L. was with her boyfriend. She testified that they exchanged brief greetings. B. L. testified that the following week at school Respondent brought up their chance encounter and asked if she recalled their conversation last year. She testified that she answered that she did, and he added, "if you want to talk about it, we can talk about it in a private conversation." B. L. testified that this was the only inappropriate conduct the second summer. B. L. testified that Respondent's conduct made her feel "weird," but she was not scared. She testified that her boyfriend was jealous of Respondent; she testified that he probably thought that she was tempted to engage in an inappropriate relationship with Respondent. She testified that she told her boyfriend of Respondent's advances, and he threatened to tell B. L.'s parents and a school counselor if she did not complain about Respondent. One time, while talking to her boyfriend about this matter on the phone, B. L. began to cry and her parents overheard enough of the conversation to learn of B. L.'s claims against Respondent. Several problems preclude crediting B. L.'s testimony. First, she acknowledged that Respondent and the job counselor advised her to change classes the second summer, but she declined to do so because it was too much trouble. Second, she denied having a crush on Respondent, but she described any attention from him as though it came from a "movie star." There is no doubt that she had a crush on Respondent based on her description of Respondent at the hearing, the testimony of the friend in whom she confided, and the testimony of the job counselor, who added that B. L. was breathless and "lovesick" and that she told B. L. that Respondent was happily married and to "get over it." It is likely that B. L.'s obvious infatuation with Respondent bothered her boyfriend. It is plausible that stories of resisted advances would gain B. L. credibility with her boyfriend, although B. L.'s motivation in fabricating these claims against Respondent necessarily remains unknown. Additionally, B. L.'s demeanor while testifying did not add to her credibility. Frequently, her tone and expression suggested that she felt uncomfortable testifying, but her discomfort was not due to victimization by Respondent. Unable to describe her emotions at the time of these claimed advances, B. L.'s discomfort was more likely attributable, at best, to a feeling that Respondent's inappropriate behavior was too trivial for this much attention or, at worst, to an admission of guilt over fabricating these stories and causing Respondent so much trouble. After considering the above-discussed factors, the latter explanation of B. L.'s tone and demeanor is more likely than the former. In any event, Petitioner has failed to prove that Respondent behaved inappropriately toward B. L. at any time.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 20th day of December, 2002. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316-1924 Leslie A. Meek United Teachers of Dade Law Department 2200 Biscayne Boulevard, Fifth Floor Miami, Florida 33137
The Issue The issue is whether Respondent School Board of Bay County (the “School Board”) has good cause under Section 1012.22(1)(a)2., Florida Statutes (2006), to reject the recommendation of Petitioner James E. McCalister, Sr., Superintendent of the Bay County School District (the “Superintendent”), to transfer the Intervenor Larry Bolinger (“Bolinger”) from the position of principal of Bay High School (“Bay High”) to the position of principal of Jinks Middle School (“Jinks”).
Findings Of Fact The Superintendent is the duly elected superintendent of the Bay County School District. He is serving his second consecutive term in that capacity. The School Board consists of five duly elected members: Thelma Rohan, Ron Danzey, Johnny Brock, Jon McFatter, and Donna Allen. Bolinger is an employee and former superintendent of the Bay County School District. The Superintendent defeated Bolinger for the superintendent’s office in the 2000 general election. Bolinger was principal at Merritt Brown Middle School (Merritt Brown) during the 2004-2005 school year. He was principal at Bay High for the 2005-2006 school year. His proposed reassignment from Bay High to Jinks for the 2006-2007 school year is the subject of this proceeding. Bay High, Jinks, and Merritt Brown are located in Panama City, Bay County, Florida. Florida has an “A+ Plan for Education” that grades schools based on student performance. The school grade is determined by student scores on the Florida Comprehensive Assessment Test (“FCAT”). Fred Goodwin was the principal at Bay High for 27 years. Mr. Goodwin’s final year at Bay High was the 2004-2005 school year. He retired after Bay High received a school grade of “D” for two consecutive years. Bay High’s 2004-2005 school score improved by 28 points over the score received during the previous year. The school would have received a grade of “C” for the 2004-2005 school term but for the failure of more than 50 percent of the lowest scoring 25 percent of Bay High’s students (“the lowest quartile”) to make gains on the FCAT exam. Relevant to the subject of Bay High’s performance on the FCAT in recent years, the School Board opened Arnold High School (“Arnold”) on Panama City Beach in 1998. The new high school resulted in a significant reduction in Bay High’s student population because all of the beach students previously had attended Bay High. In order to increase the student population at Bay High and the school’s academic performance, the School Board started a Magnet program at Bay High. Bay High was given $250,000 through a grant to get the Magnet program started. The School Board also provided Bay High with extra teaching units for every year of the Magnet program’s existence. Along with the Magnet program, the Advanced International Certificate of Education (“AICE”) program was initiated at Bay High. One purpose of starting the AICE program at Bay High was to attract high-performing students. Despite such efforts, Bay High received a school score of “D” during the 2003-2004 and 2004-2005 school years. In the years prior to Goodwin’s retirement, Bay High experienced significant problems in areas other than academics. The problems included, but were not limited to the following: (a) the school grounds and facilities were deplorable; (b) many students wandered campus during class time unattended; (c) teacher morale was low; (d) administrators, including Goodwin, were not visible on campus or at school events; (e) students and teachers were disciplined inconsistently; and (f) instructional class time was interrupted for nonacademic events. Knowing that the principal position at Bay high would be vacant after the 2004-2005 school year, the Superintendent advertised the position. Bolinger did not apply to fill the position. The general practice is that during the advertising process, some applicants for a position are screened out simply based upon an assessment of the application. A committee then selects and interviews five applicants. After the interviews, the committee sends the Superintendent the names of three applicants for the position advertised. In the case of the vacancy for principal at Bay High, the Superintendent did not select any of the top three applicants. Instead, he placed the applicants at other schools. On June 21, 2005, the Superintendent contacted Bolinger. The Superintendent requested Bolinger to meet at the Superintendent’s office. At the meeting, the Superintendent offered the Bay High principal position to Bolinger. The Superintendent’s offer did not foreclose Bolinger’s option to remain as principal at Merritt Brown. In the course of their discussion regarding the Bay High position, Bolinger told the Superintendent that he had four years left in the Deferred Retirement Option Program (“DROP”). Bolinger stated that he would take the job at Bay High with the understanding that he would be the Bay High principal for the remaining four years before his retirement.1/ The Superintendent agreed that Bolinger would be allowed to stay at Bay High until his time in the DROP program was complete. Bollinger also told the Superintendent that if he was going to Bay High as principal, he must have two assistant principals. The Superintendent agreed to this condition. Randall McElheney and William Harrison are businessmen in Panama City, Florida, with close connections to Bay High as alums, parents, and volunteers. For the 2005-2006 school year, Mr. McElheney and Mr. Harrison served as business partners in the Partnership to Advance School Success (PASS) program. The PASS program is a cooperative effort between the State, the School Board, Bay High, and the business partner to improve the academic status of individual schools. Prior to the June 21, 2005, meeting between the Superintendent and Bolinger, the Superintendent told Mr. McElheney that there was only one person that could turn Bay High around. That person was Bolinger. After Bolinger accepted the position at Bay High, the Superintendent contacted several other School Board members to inform them of his decision. The Superintendent told Mr. Danzey that Bolinger was the one person in the school district that could lead Bay High. The Superintendent told Ms. Allen that Bolinger was the best person for the Bay High job. Mr. McFatter understood the Superintendent to believe that there was no one else in the district other than Bolinger who could handle the Bay High job. All of the School Board members supported the Superintendent’s decision to transfer Bolinger to Bay High. Not everyone in the community agreed with the Superintendent’s decision. The Superintendent knew that some people, unidentified here, opposed the transfer in part for political reasons. The Superintendent also knew that Bolinger would “ruffle some feathers” and upset certain individuals as he made needed changes at Bay High. On or about June 23, 2005, the Superintendent transferred Bolinger from Merritt Brown to Bay High for the 2005-2006 school year. Bolinger started working at Bay High that same day. The School Board subsequently voted unanimously to approve the reassignment. Bolinger signed a one-year written contract with the School Board for the 2005-2006 school year. The written contract provides as follows in pertinent part: THIS CONTRACT entered into between THE SCHOOL BOARD OF BAY COUNTY, FLORIDA, party of the first part, hereinafter called “the School Board,” and Larry Bolinger (0061), party of the second part, hereinafter called “the Employee.” * * * The School Board agrees to employ the Employee in a position of PRINCIPAL for a period of 12 calendar months beginning July 1, 2005 (same being hereinafter referred to as the “employment period”) . . . . * * * 10. It is expressly understood and agreed by and between the parties hereto . . . that neither the Employee nor the School Board owes any further contractual obligation to the other after the last day of the employment period. The Superintendent has never recommended that the School Board contract with administrative personnel in excess of one year. During his first year at Bay High, Bolinger was able to resolve many of the school’s past problems. With the help of the PASS program business partners, the grounds and facilities were cleaned. The business partners also worked with Bolinger to implement incentive programs to motivate student academic achievement. Attendance improved and students were in class during instructional time. Bolinger established clear definitive roles for each administrator. Teacher and staff morale increased as a clear chain of command and written policies eliminated favoritism. Student discipline became consistent and non-discriminatory. Bolinger and other administrators were visible on campus and at school events. All administrators were accessible to faculty, students, and parents. The faculty was included in decisions regarding the school. Most important, during the 2005-2006 school year, Bay High improved its school score from a “D” to a “C”. The school was eligible to receive a score of “B” on the FCAT, with a numeric score that was 11 points higher than the score received in 2004-2005. However, because less than 50 percent of the lowest quartile made adequate gains on the test, Bay High received a “C”. Beginning around the start of 2006, Bolinger heard rumors that he was going to be removed from his position because he had ruffled some feathers at Bay High. Certain individuals had complained to the Superintendent when they became upset with Bolinger for changing the status quo. Through out the year, Bolinger frequently consulted with the Superintendent about problems at the school. The Superintendent always reassured Bolinger that he was “doing the right thing” and needed to “keep on track.” The Superintendent encouraged Bolinger to be sensitive to students, teachers, and staff, but to keep his focus on improving student performance, especially the performance of the lowest quartile. In May 2006, the Superintendent met with Bolinger. At the meeting, the Superintendent stated that he would recommend Bolinger back as a principal, but not at Bay High. Bolinger stated that he felt betrayed because he had been loyal to the Superintendent. The Superintendent stated that he did not see it that way. The Superintendent never gave Bolinger any other reason for the decision. Once the transfer became public knowledge, the Superintendent and School Board members received e-mails from Bay High students, staff, parents, and community members. A significant majority of these e-mails discussed the improvements that Bay High made under Bolinger’s leadership. They expressed support for his remaining at Bay High. School Board members also received telephone calls from the public for and against Bolinger’s impending transfer from Bay High. The School Board members and Bay High’s business partners questioned the Superintendent’s decision to remove Bolinger as principal at Bay High. The Superintendent would not give anyone a reason, except to say to a couple of people, “That man is going to do what I tell him to do.” Mr. McElheney, one of Bay High’s business partners, funded a radio and sign campaign advocating that Bolinger remain at Bay High. The radio messages urged the public to attend the School Board meeting on May 30, 2006. After speaking with the School Board members, the Superintendent instituted a teacher hiring freeze. The hiring freeze allowed teachers to interview for positions throughout the district but prohibited anyone from being hired. The Superintendent did not want a teacher being hired at a school expecting certain individuals to be the administrators and then change his or her mind after an administrative change. At the May 30, 2006, School Board meeting, the Superintendent recommended the retention of Bolinger, and several other principals and assistant principals, as employees of the School District for the 2006-2007 school year. The Superintendent’s recommendation did not identify the particular school to which Bolinger, or any other principal or assistant principal, would be assigned. This was a departure from the custom of making administrative recommendations, including the school assignment for each administrator. At the May 30, 2006, meeting, the School Board allowed for public comment. At times growing heated, 47 people, consisting of students, parents, teachers, staff, and community members, spoke at the meeting. Again, a significant majority spoke positively of Bolinger and the difference he was making at Bay High. Many people requested that the Superintendent reconsider his decision. After the public comment portion of the meeting, the Superintendent stated that he did not intend to reconsider his decision about transferring Bolinger and would not give a reason for his decision. The School Board then unanimously voted to approve the recommendations as submitted without school assignments and with the understanding that no principals or administrators would be transferred from their current assignments without School Board approval. The School Board met again on June 28, 2006. At that time, the Superintendent made a recommendation to the School Board to transfer five administrators, one of which was the transfer of Bolinger to the position of principal at Jinks. Once again, the Superintendent refused to give the School Board a reason for his decision to transfer Bolinger. The Superintendent would not reveal the name of the person who would replace Bolinger as principal at Bay High. Mr. McFatter made the following motion at the June 28, 2006 meeting: A transfer of the principal from Bay High School this close to the beginning of the school year, coupled with the Superintendent’s hiring freeze, will in a number of ways adversely affect the student and staff of Bay High School and will severely disrupt the operation of the school for the upcoming year. Given the history of Bay High School, it is particularly crucial that this not occur. It is a school that has experienced two “D” school years, and under Mr. Bolinger’s leadership, started down the right road to recovery becoming a “C” school for the 2005-2006 school year. This eleventh hour disruptive recommendation will have an adverse effect on student achievement at Bay High School for the 06-07 school year. Based upon these findings of good cause, I move that the School Board reject the Superintendent’s recommendation that Larry Bolinger be laterally moved from the principal-ship at Bay High to the principal-ship at Jinks Middle School. The School Board unanimously voted in favor of the motion and to reject the Superintendent’s recommendation to transfer Bolinger. This was the first time Mr. Brock, Ms. Allen, and Mr. McFatter had ever voted to reject an administrative personnel recommendation made by any school superintendent. Mr. Brock has served on the School Board for 10 years, Ms. Allen for four years, and Mr. McFatter for two years. Ms. Rohan voted to reject the recommended transfer because of her belief that the Superintendent breached his oral contract with Bolinger regarding Bolinger’s length of stay as principal of Bay High. At the meeting, Mr. McFatter voted to reject the recommended transfer of Bolinger for the following reasons: (a) the transfer would have occurred too close to the beginning of the school year and that, coupled with the hiring freeze, would adversely affect the students and staff at Bay High; (b) the transfer would interrupt operations at the school; and (c) improvement was made at Bay High under Bolinger’s leadership after it experienced two “D” years. During the hearing, Mr. McFatter stated that he voted to reject the recommendation because “everything [at Bay High] was positive in regard to the kids and their achievements. And to derail it without explanation was unacceptable and to my mind was good cause.” At the June 28, 2006, meeting, Mr. Danzey voted to reject the Superintendent’s recommendation to transfer Bolinger because there were improvements at Bay High under Bolinger. Mr. Danzey thought it was too soon for another change in principals at Bay High and that the leadership at the school needed to stay in place. Ms. Allen voted to reject the recommended transfer of Bolinger because keeping the leadership at Bay High was best for the future of the school, its students, and faculty. Ms. Allen did not believe that anyone but Bolinger could implement his plan for improvement of Bay High as well as Bolinger himself. Mr. Brock voted to reject the Superintendent’s recommended transfer of Bolinger because improvements were being made at Bay High, students were feeling better about themselves, and removing Bolinger would harm the students. Mr. Brock stated that the Superintendent’s action was the equivalent of “pull[ing] the carpet” out from under the Bay High students. At some point in time after recommending the transfer of Bolinger, the Superintendent proceeded to advertise the principal’s position at Bay High as open for the 2006-2007 school year. During his deposition and at the hearing, the Superintendent revealed for the first time that he considered two applicants to be qualified for the Bay High job: Bill Payne and Mackie Owens. At the time of the rejection of Bolinger’s recommended transfer, the School Board members were not aware that the Superintendent might consider one of these two individuals to be the principal of Bay High. Payne had applied for the same position in 2005 and had not been selected by the Superintendent. For the 2005/2006 school term, Payne served as an assistant principal at Bay High under Bolinger. If the School Board had approved the recommended transfer of Bolinger, the School Board members would not have had an opportunity to consider the assignment of a Bay High principal until the July School Board meeting. Due to the School Board’s rejection of the Superintendent’s recommended transfer, Bolinger remains principal of Bay High. The Superintendent has not revealed the name of the person he would recommend to be principal at Bay High should Bolinger be transferred. During his deposition and during the hearing, the Superintendent testified that there were multiple factors that precipitated his decision to transfer Bolinger. First, there was an incident that involved the announcing of Bay High’s Top ten seniors for 2006. In late April or early May 2006, the Superintendent requested that Bolinger delay announcing the ten seniors with the highest cumulative grade point average because one student erroneously believed that he should be valedictorian at Bay High. The student’s parents wanted an opportunity to appeal the issue to the School Board on the following Wednesday. The Superintendent and Bolinger agreed that the announcement would not be made until the end of the week after the School Board meeting. On Wednesday, the School Board listened to the parents’ appeal. The School Board took no action to change the decision of the school and the Superintendent that the student academically ranked third behind co-valedictorians. That evening after the School Board meeting, Ms. Rohan, Chairperson of the School Board, went to Bay High where some teachers and staff members were planning an awards ceremony for Thursday morning. Learning that the decision was final, the teachers requested permission from Bollinger to include the Top 10 announcement in the Thursday awards program. Bolinger agreed to make the Top 10 announcement on Thursday. He made this decision because he thought the issue regarding the identity of the valeditorian was resolved and because some of the Top 10 students were not going to be in school on Friday. On Thursday after the announcement, the Superintendent received a call from a parent of the disappointed student. The parent was upset because Bay High announced the Top 10 on Thursday instead of waiting until Friday as anticipated by the parent. The Superintendent contacted Bolinger to inquire about the decision to make the announcement on Thursday. Bollinger explained that it was just a spur of the moment decision. Bolinger offered to apologize to the student’s parents over any misunderstanding about the timing of the announcement. Shortly thereafter, Ms. Rohan informed the Superintendent that she had been to Bay High on Wednesday evening planning for the Top 10 announcement the next day. Ms. Rohan’s statement led the Superintendent to erroneously believe that Bolinger had lied when he said the announcement was a spur of the moment decision. The incident involving the Top 10 announcement was the biggest factor that the Superintendent considered when deciding to transfer Bolinger. If Bolinger had waited until Friday to make the academic awards, the Superintendent probably would have recommended that Bolinger return to Bay High for additional years. Another factor that motivated the Superintendent to transfer Bolinger involved a facilities improvement request from Bay High, which the Superintendent rejected. The Superintendent erroneously believed that Bolinger sent parents to pressure him to change his mind. In April 2006, Bay High’s PASS business partners spoke to the Superintendent about some needed facility improvements at Bay High. The Superintendent agreed to send the district’s Director of Facilities to review a list of suggested needs. One of the improvements was a new baseball dugout, with lockers and a batting cage, as requested by Bay High’s baseball boosters. The Superintendent asked the business partners to follow up with him about the dugout issue in the future. Bolinger, as principal of Bay High, approved the facilities request before sending it to the Superintendent. The Superintendent rejected any request for improvements that were not academically related. Bolinger did not request that the business partners pressure the Superintendent about his rejection of any part of the facilities request, much less a baseball dugout. Bay High’s business partners had a follow-up appointment with the Superintendent on the morning that Bolinger’s recommended transfer became public knowledge. The business partners intended to discuss alternative means of funding the construction of the new dugout. However, the sole issue addressed at the meeting was Bolinger’s transfer. There was no pressure applied to the Superintendent about his rejection of any improvement at Bay High. A third factor that the Superintendent considered was that he thought the district would be better served if Bolinger served as a middle school principal. According to the Superintendent, Bolinger had been very successful as principal at Merritt-Brown. The Superintendent knew Bolinger was a good disciplinarian and believed he could solve some alleged problems at Jinks. However, the Superintendent subsequently had a conversation with the principal at Jinks which resolved any such problems. During the hearing, the Superintendent presented the expert testimony of William Montford, former Leon County School Superintendent and currently Executive Director of Florida Association of District School Superintendents. Mr. Montford’s expert testimony is accepted, limited to his experience as a school superintendent. A school superintendent serves the role of Chief Executive Officer of the school district. For that reason, a superintendent needs control over district personnel and the discretion regarding the placement of those employees. In making those decisions, a superintendent should consider the input from school board members, teachers, parents, and student. Ultimately, it is the superintendent’s responsibility to recommend what he or she believes is best – in terms of personnel placement - for the entire school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board enter a final order rejecting the Superintendent’s recommendation to transfer Larry Bolinger. DONE AND ENTERED this 22nd day of January, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 22nd of January, 2007.
The Issue The issues are whether Respondent threw a chair at one student, missed him, but hit a desk that impacted and injured another student; if so, whether such conduct constitutes a violation of section 1012.27(5), Florida Statutes (2018), or any of the various School Board Policies (Policies) or Department of Education rules (Rules) discussed below; and, if so, whether Petitioner's termination of Respondent is consistent with the provision of progressive discipline set forth in the Collective Bargaining Agreement for the period, July 1, 2017, through June 30, 2020 (CBA).
Findings Of Fact Respondent is a 61-year-old teacher holding educator certificates in middle school mathematics and business education. Petitioner has employed Respondent as a classroom teacher since 2005. Respondent has no prior discipline. Since 2012, Respondent has taught at Turning Point Academy, which is an alternative school operated by Petitioner. The students at Turning Point Academy have been expelled from, or repeatedly disciplined at, other schools and range in age from 14 to 17 years old. In December 2018, 90 to 95 students were enrolled in the school, but absences, usually unexcused, averaged about 40% each day. The school building is organized with several classrooms opening onto a common area, where a behavior intervention associate (BIA) sits at a desk, ready to help a teacher in an adjoining classroom control disruptive student behavior. In each common area are restrooms and an eating area. The BIA serving Respondent's common area on the date in question had ten years' experience as a BIA and 22 years' prior experience as a sheriff's deputy. Respondent has been fully trained in appropriate interactions with students and classroom management. Respondent's evaluations for 2016-18 were all "Effective"; her evaluation for 2019 was "Highly Effective." However, the assistant principal of the school was dissatisfied with Respondent's classroom management skills. In response to what he viewed to be an excessive number of office referrals, the assistant principal had recently directed Respondent to take care of the behavior problems herself and had assigned her to take a two-part program on classroom management. The assistant principal also directed Respondent to use the school's system of assigning tally marks for good and bad behavior. Absent seriously inappropriate behavior, the tally system requires three bad tally marks before the teacher could refer a student to the BIA, who then could decide whether to refer the student to the office. The record is silent as to the effectiveness of the tally system in shaping student behavior in general, but it is unlikely that the two student disrupters at the center of the incident on December 20, 2018, were deterred by the prospect of a few (more) bad tally marks. During the 2018-19 school year, Respondent taught math to students in sixth through eighth grades. The class at issue was a 100-minute, eighth-grade math class that took place late on the day of December 20, 2018, just before winter break. Midway through the class, which was attended by six students on that day, three students began acting up. Respondent promptly intervened, and one of the students returned to his work. However, the other students left their assigned seats without permission. One student ran toward the back of the classroom, and the other student ran toward the front of the classroom, where Respondent was situated at her desk in the corner opposite from the corner at which the door to the common area was located. The students were yelling profanities and tossing paper in the air--some of both of which were directed at Respondent. One or both of the students demanded to know where Respondent lived and what kind of car she drove in a clear attempt to intimidate her. The student running toward Respondent invaded Respondent's space, as he ran behind her desk in the narrow space between her desk and the whiteboard, where he seized a marker, taunted Respondent that he had the marker, and wrote the word, "fuck," on the whiteboard. The class was equipped with a buzzer to summon the BIA, but the buzzer was located by the classroom door on the opposite side of the room from Respondent's desk. It is unclear if it occurred to Respondent to tell another student to hit the buzzer, but she never did so and had never previously done so. Instead, Respondent leaned over the depth of her desk-- about three feet--and grasped a lightweight chair with a plastic back and seat and metal legs. She shoved or pushed the chair briskly across the tile floor in the direction of the student who had rushed her desk, even though he was now careening toward the classroom door along the front of the classroom in the space between the whiteboard and the first row of desks. The chair missed the fleeing student, but struck the wall under the whiteboard with sufficient force that it ricocheted into the desk of a student who was seated, watching this incident unfold. The chair caused the desk to topple onto the right knee of the student. In his deposition, the injured student testified that, in addition to the ice applied to the knee immediately after the incident, the only treatment that his knee required was a couple of weeks' rest. The next day, the injured student was back at school walking without favoring the injured knee. The assistant principal directed Respondent to telephone the injured student's parent and inform her what had happened, suggesting that the assistant principal considered the injury minor--or else, from a liability perspective, he would have made the call himself, rather than assign the responsibility for making the call to the staffperson who had caused the injury. Respondent made the assigned call to the injured student's parents--and, on her own, several others during the winter break to check on the child whom she had accidentally injured with the shoved chair. In her initial statement, Respondent stated that she had thrown the chair, rather than shoved it along the floor. The injured student testified that Respondent threw the chair above the height of the desks, but desks did not occupy the space between her and the fleeing student, so, at minimum, elevation was unneeded to hit the student with the chair. Other student testimony indicated that the chair did not rise above the tops of the desks. More importantly, Respondent remained behind her desk, and the chair was in front of the desk. If Respondent could gain the leverage to lean across the desk and grasp the chair, she would lack the leverage to throw it with any force at all. The proof establishes no more than that Respondent leaned across her desk and gave the chair a hard shove across the front of the classroom in the direction of the fleeing student. It is difficult to understand why Respondent would state that she had thrown the chair, if she had not thrown the chair in the common sense of the word, "throw," which is "to propel through the air by a forward motion of the hand and arm."1 Clearly, when she gave the statement to the school police investigator shortly after the incident, Respondent remained overwhelmed 1 Merriam-Webster online dictionary, https://www.merriam-webster.com/dictionary/throw. by what had happened to her in her classroom. Also, as demonstrated at the hearing, Respondent's language skills are not so highly developed that she would invariably differentiate between throwing a chair in the air and shoving a chair along a floor. Two key witnesses establish Respondent's condition during and immediately after the incident. According to the BIA, who saw Respondent a few seconds after the incident ended, Respondent was not angry, but was visibly shaken up and upset. She told the BIA that she had been afraid when the student charged her. The injured student testified similarly that Respondent's reaction was fear, not anger. Interestingly, the injured student admitted that he too would have experienced fear, even though the charging student was a classmate. Immediately after testifying to this fact, the injured student added that he had overheard the two disruptive students at lunch discussing school shootings--a highly sensitive issue in schools today and even more so in December 2018, only a few months after the Parkland shootings. Respondent claims that she acted in self-defense. There are two problems with this claim. First, objectively, Respondent did not act in self- defense, because, by the time that she shoved the chair, the student was running away from her, and she was out of immediate peril. On the other hand, the charging student had momentarily terrified Respondent, and it is not inconceivable that, in her fearful or panicked state, she formed a plan of action that, by the time she executed it, was a fraction of a second after the rushing student had turned to run across the front of the classroom. The second problem is the belated emergence of Respondent's claim of self-defense, months after the incident took place, but there are a couple of explanations. As noted above, Respondent's claim of self-defense is a little bit of a mislabeling. Perhaps the two students' outrageous behavior caused Respondent to feel that she needed to defend herself; without doubt, this behavior caused Respondent to react in fear and even panic. Perhaps Respondent did not find even the self-defense label for her claim until represented by counsel. Clearly, Respondent omitted numerous important details concerning the behavior of the two disruptive students in her initial statement--again, not surprisingly, as she was still overwhelmed by what had happened to her and that she had accidentally injured an innocent student--in fear, not in anger. Interestingly, when Respondent finally presented the additional details, the assistant principal rejected them as Respondent's "changing her story." This dismissal betrays Petitioner's misconception of the case, whose center is not the changed fact of the specific action that Respondent applied to the chair, but to her state of mind when she applied the action to the chair. Regardless of whether she had thrown the chair high in the air or shoved it along the floor, Respondent had been driven by the two disruptive students to a state of utter fear and likely panic. To the assistant principal and Petitioner generally, a second changing fact may have been that she acted in fear, not anger, but no competent evidence ever supported characterizing her state of mind as angry. Despite the myriad conferences, emails, and witness statements filling Petitioner's file, there is no thoughtful analysis of what motivated, or drove, Respondent to apply force to the chair in the direction of the fleeing student. To the contrary, Petitioner has ignored strong evidence on this crucial issue from two witnesses--one of whom is disinterested and exceptionally experienced and competent at reading demeanors, collecting evidence, and analyzing evidence. And this evidence clearly establishes the reaction of an older woman in a state of fear or panic, not anger. Nor did student testimony, besides from the injured student, support Petitioner's theory of the case. The deposition testimony of these students was of little value because it was vague or guarded. During a particularly unproductive deposition of one of the disruptive students, likely the one who rushed Respondent,2 the following exchanges occurred: Q: Okay, Mr. O, I want to make something very clear that we're not here today because of anything that you did. You're not in trouble or you're not here because you did something wrong. A: Uh-huh. Q: Okay. We just are trying to get some information and to see if you have any recollection of some events that occurred-- A. All right. Q: last school year in December. Do you recall giving a statement to school police about a situation that happened in Ms. Larson's class, a chair that was thrown? A: (Shakes head) Q: You don't? Say yes or no. A: No, ma'am. Q: All right. One moment please. Do you recall giving a statement to school police that you were getting papers off Ms. Larson's desk when a chair was thrown at another student? A: No. Who this go to? Q. Pardon me? A. Who this go to? Q. What is your question? A. Who do all this go to? 2 It is hard to identify individual students due to the redactions and absence even of students' initials in the Petitioner's investigative paperwork. Q. It's going before a judge in a case, a different case. A. I'm saying, so why do I got something to do with this? Q. Because you gave a statement to the school police. You were in class the day that Ms. Larson threw a chair and hit a student in his knee. A. I gave a statement? * * * [After the student refused to waive reading and signing]: Q. Okay. So we will have [the transcript] sent to Ms. Richardson. A. So this something that I got to go to court for? Q. Well, probably not. We might use your deposition instead of … . Remember, this has nothing to do with you. A. I thought-- Q. This is all about Ms. Larson. A. A deposition like when you get send sent to a program. Deposition of G.O., pp. 10-11 and 16-17. At bottom, Respondent found herself in a very bad situation not at all of her making. In a blatant attempt to reduce the classroom to utter chaos, rather than to cause a mere disruption, two students unfortunately seem to have succeeded in momentarily terrorizing a teacher into incoherence. Neither the school police officer nor any of Petitioner's supervisory employees saw the need to contact outside law enforcement. A document mentions a child protective investigator by name, but the record does not suggest that she pursued an investigation. The prevailing thinking among Petitioner's representatives seems to have been that Respondent was neither negligent nor reckless and that she did not intend to hurt the injured student, whose parents did not wish to pursue the matter due to the negligible injury. Understandably, no one seems to have analyzed the situation from the perspective of the actual target of the chair--the fleeing student--as such an exercise would have uneasily cast the real perpetrator as the victim. But such an exercise might have led Petitioner at least provisionally to set aside its fixation with the "fact" that Respondent had thrown the chair high in the air and, more importantly, its assumption that Respondent had acted in anger.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the charges set forth in the Administrative Complaint and reinstating her with full back pay. DONE AND ENTERED this 2nd day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2020. COPIES FURNISHED: Jean Marie Middleton, Esquire V. Danielle Williams, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 (eServed) Nicholas A. Caggia, Esquire Johnson & Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Donald E. Fennoy II, Ed.D., Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869 Thomas L. Johnson, Esquire Law Office of Thomas Johnson, P.A. 510 Vonderburg Drive, Suite 309 Brandon, Florida 33511 (eServed)
The Issue The issue to be resolved in this proceeding concerns whether the School District of Volusia County has just cause to terminate the Respondent from her position of employment due to insubordinate behavior and unsatisfactory performance of her job duties.
Findings Of Fact The Respondent, Vannesther Smith, was employed at times pertinent hereto by the Board as a custodian. The Respondent was hired as a custodian in 2003 and initially assigned to Hurst Elementary School. While at Hurst she was disciplined for inappropriate behavior. She was issued a record of being counseled for inadequate employee performance by Assistant Principal, Dwayne Copeland. He counseled with Ms. Smith concerning her reporting to work late, repeatedly, without informing her supervisors and for not adhering to proper work procedures concerning repeatedly leaving work early. The Respondent was then disciplined and counseled sometime later by Mr. Copeland for not adequately cleaning her assigned area and for insubordination. Thereafter, on October 12, 2006, less than two months later, the Respondent was disciplined yet again and counseled for poor employee performance, by failing to follow proper directives and again for not cleaning her work area. A report was made to the Board's Office of Professional Standards to the effect that the Respondent was not performing her work duties during her scheduled work time, and was speaking and interacting with supervisors in an unprofessional, inappropriate manner. The Office of Professional Standards conducted an investigation into the allegations regarding unprofessional inappropriate conduct. James Holland, the Director of the Office of Professional Standards, determined that the evidence from his investigation supported the allegations. On April 5, 2007, the Respondent was issued a letter of reprimand and ultimately suspended without pay for 20 days by the Board for failing to follow proper procedures and directives from administrators and for losing her temper and screaming at two administrators. She accused them of being "liars" when she was found sleeping on duty. On June 26, 2007, Principal Maryann Bull observed the Respondent again failing to perform her duties while supposedly on duty. When the Respondent was confronted about this she acted in an inappropriate, unprofessional and insulting manner, mocking the principal and refusing to do as directed, thus committing insubordination. An investigation was again conducted by the Office of Professional Standards and the Respondent was reprimanded for insubordination and inappropriate confrontation with Principal Bull. On July 17, 2007, Mr. Holland informed the Respondent that she would be transferred to Mainland High School. On September 24, 2007, the Respondent went on leave for an extended period of time. The Assistant Principal at Mainland High School, Patricia Corr, asked the Respondent to return the school-issued door keys, while she would be on leave. The Respondent had a key to the front door at Mainland High School. The Respondent told Ms. Corr she would turn them in, but never did return the keys. Ms. Corr repeatedly asked for the keys, but the Respondent never delivered them. The Respondent was informed then that she would be transferred to Seabreeze High School. She was instructed to report there for duty, but failed to do so. The Board did not then terminate the Respondent but instead gave her another chance to reform. On April 8, 2008, the Respondent was assigned to Discovery Elementary School. Just two days after reporting for duty the Respondent engaged in inappropriate behavior and was counseled by Principal Laura Williamson for failure to use School Board chemicals and equipment properly, for failing to complete duties as assigned, as well as for insubordination. On April 14, 2008, the Respondent was found sleeping in her car while supposedly on duty. She was again found not to have cleaned her area properly. Because of that behavior the Respondent was issued a letter or reprimand. Assistant Principal Corr, from Mainland High School, contacted the Professional Standards Office concerning the Respondent's failure to return the keys to Mainland High School. An investigation of this matter was initiated by the Professional Standards Office. On June 9, 2008, Ms. Williamson, from Discovery Elementary School, contacted the Professional Standards Office with a new allegation of unprofessional behavior. Specifically, the Respondent left work on Friday, June 6, 2008, without permission. The Respondent placed her keys in the keyhole of the custodial closet located on the exterior of the building and placed her two-way radio on the floor next to the door. On Monday, June 9, 2008, Yolanda Cintron, the Head Custodian, confronted the Respondent about leaving early. The Respondent became very irate and began yelling and cursing. The other custodians were somewhat frightened by the Respondent's behavior. Upon conclusion of the Professional Standards investigation into the Respondent's behavior, a recommendation was made to the Board that the Respondent be terminated, based on the incidents described at Discovery Elementary School and the extensive history of the Respondent's failure to adhere to Board policies and procedures and insubordination. The recommendation of termination was approved by the Board on June 24, 2008.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Volusia County, Florida, terminating the employment relationship of the Respondent and the School Board of Volusia County, Florida. DONE AND ENTERED this 24th day of March, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 24th day of March, 2009. COPIES FURNISHED: Erin G Jackson, Esquire Thompson, Sizemore, Gonzalez, & Hearing, P.A. 201 North Franklin Street, Suite 1600 Tampa, Florida 33602 Vannesther Smith Post Office Box 250322 Daytona Beach, Florida 32125 James R. Hollins Director of Professional Standards Volusia County School Board Post Office Box 2118 DeLand, Florida 32721-2118 Dr. Margaret A. Smith Superintendent of School Volusia County School Board Post Office Box 2118 DeLand, Florida 32721-2118
