The Issue The issues in this case are whether Respondent violated subsections 1012.795(1)(c),(f), and (i), Florida Statutes, Florida Administrative Code Rules 6B-1.006(3)(a),(e),(g) and 6B- 1.006(4)(c), and if so, the penalty that should be imposed.
Findings Of Fact Petitioner is the head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes, against teachers holding Florida educator's certificates. John Mark Pomar, Respondent in this proceeding, holds Florida Educator's Certificate 386817, covering the area of physical education, which was valid through June 30, 2008. At all times material to the allegations of this case, Respondent was employed as an agriculture teacher at Vero Beach High School in the Indian River County School District. During the 2004-2005 school year, J.K.2/ was a tenth- grade student in Respondent's Agriculture Tech I class. In addition, J.K. was a member of Future Farmers of America ("FFA"). J.K. was actively engaged in Respondent's agriculture classroom and would assist Respondent in a variety of practical duties and assignments including hatching chicks, cleaning pens, harness training of bulls and cows, and feeding and cleaning animals.3/ J.K. was considered Respondent's aide and "right-hand man." Over the course of the tenth-grade year, J.K. and Respondent had almost daily contact and developed a close relationship, both in and outside of the classroom. Respondent invited J.K. to assist him with duties outside of the school environment such as purchasing seed. On at least one occasion, she accompanied him to Punta Gorda, Florida, to acquire game birds to be raised at the school. At the conclusion of the 2004-2005 school year, during the summer break, J.K. and several other students continued to care for the agriculture class animals. The students were paid for their time. J.K. enrolled in Respondent's Agriculture II class for the 2005-2006 school year. J.K. remained actively involved in Respondent's class and the FFA. Likewise, her close relationship with Respondent continued. On March 15, 2006, members of the agriculture class and FFA, including J.K., were present at the Indian River County Firefighter's Fair. During this annual fair, the students would participate in the showing of various animals. On that date, J.K. had a disagreement with her younger sibling. Consequently, her father informed J.K. that she was not allowed to attend the fair. J.K.'s parents were divorced, and, therefore, she contacted her mother and requested that she drive her to the fair. J.K.'s mother acquiesced and ultimately dropped J.K. off at the agriculture pavilion section of the fairgrounds. While en route, Respondent called J.K. on her cellular phone to determine if she was going to attend the fair. Once at the fair, J.K. congregated with several of her friends in an area set apart from the general public for those participating in the showing of animals. J.K. was still visibly upset from the domestic quarrel and was venting. On the same date, Respondent consumed several alcoholic beverages before and/or during dinner at home with his wife and family. Thereafter, Respondent and his family went to the fair. On this occasion, Respondent was not attending the fair in a teaching or chaperon capacity. Shortly after arriving at the fair, Respondent approached J.K., who was still with her group of friends. J.K. had not yet gained her composure and had been recently crying. Respondent asked to speak with J.K. alone and she followed him to a separate area behind the "show animal" pens. As they were walking, Respondent inquired as to whether J.K. was upset, and she advised him of the disagreement with her family. Once apart from the group, Respondent advised J.K. that he was concerned about her. He then gave J.K. a hug that she reciprocated. Thereafter, while J.K. was standing directly in front of Respondent, he grabbed her with both of his hands on either side of her shoulders, pulled her to him and held her there as he kissed her on the lips.4/ J.K. observed the odor of alcohol on Respondent's breath. Prior to this occurrence, Respondent had never kissed J.K. on the lips or even the cheek. J.K. conceded that they had probably hugged on a few limited occasions; however, even these embraces were characterized as a "one-hand kind of good job" hug. When Respondent released J.K. from the embrace, she immediately returned, by herself, to her friends. Witness A.K., who was J.K.'s best friend at the time, was among the group. A.K. observed J.K. return from her private encounter with Respondent at a fast pace, crying and very upset. According to A.K., J.K. was hyperventilating, advised A.K. that she was going to vomit, and that Respondent had kissed her on the lips. J.K. then proceeded to the bathroom where she became ill. As a result of the kiss and embrace, J.K. felt shocked, confused, disgusted, betrayed, and uncomfortable. Aside from her best friend, A.K., however, she did not immediately tell anyone about the incident. When J.K. returned to school the following week, she remained uncomfortable and there was clearly a rift in the formerly close relationship. J.K. no longer desired to speak or be in close proximity to Respondent and attempted to avoid him. Respondent advised J.K. that, if she did not want to attend the agriculture class, she could come between classes and pick up an excuse pass that would be available on his desk. J.K. utilized that option.5/ On one such occasion, in addition to the pass, J.K. observed on Respondent's desk an envelope with her name handwritten in blue ink.6/ The envelope contained an unsigned, undated, computer generated letter addressed to J.K. The contents of the subject letter are set out, in full, as follows: [J.K.], Friday and Saturday a week ago were two of the best days I have had in a while, it began by taking you to your mother's where we talked about your being unhappy and why you were unhappy, and what I could (wanted to) do to help. That day I came away with, "she is not going to Montana, she will be here for another 3 years. No!!! It was no coincidence I was in Sebastian Saturday and brought you b'fast—I drove up there made an excuse to see if the twinkle was still there---it was. Then all hell broke loose on Sunday—problem after problem—all personal with-in my family. When things that are near and dear to me are not right I sometimes can not handle it. I have a problem when I am angered, not irritated—not just mad, but angry. When angry I sometimes can not see the forest for the trees. Wednesday was the hell day to try and forget and over-come, 2 drinks did not help. Although most was vivid some was a blur—that blur must have been when I did whatever it was to hurt you, I remember the hug/kiss/and you not wanting to talk about it anymore. No excuse for the drinks I am not presenting that as a defense nor justification; just how it did not help— not drunk just a combination when alcohol, anger meets my body chemistry something is not cool. Although, I can not turn back the hand of time I want you to know "I wish I could". I know this for sure I would never hurt you in any way intentionally or otherwise. My actions and feelings for your are true and sincere—not like a father—not like a boyfriend's passion—not like a friend— different all together but true and sincere— Some kinda special Luv. You bring out the "best and the worst in me— when you hurt I want to hurt—when the twinkle is there, there is no mountain to high I cant climb, you make me want to be the best I can be!!! I will honor my arrangement for A-2, if needed there will be a pass filled out and signed all you have to do is fill in where you are going, if not you are welcome to stay out here do your work or chill and expect very little, if any, contact from me— the same applies for B-3. This I hope will minimize the pain for both of us. My old Bud I have revealed to you some weaknesses, faults, chinks in my armor none of which I am ashamed or proud of—just chinks I must fight to control. Although I have no problem owning up to you for them—it is hard to swallow to know I have to fight to control them and sometimes lose the battle. Regardless of how you take this, laugh at it, choke on it or other as King Preamm told Achilles "there is respect between enemies" (you are/never will be an enemy just a saying). I will never reveal or betray the times we talked about our lives, friends, and family—those conversations will never be shared with anyone no matter what—in return I ask that you do the same and destroy this note it is for you eyes and thoughts only. If this became known to the wrong people my children could feel the shame and hurt—they do not deserve that, plus you are the only one who knows what is being said. [J.K.], I am not offering this as an excuse, explanation or apology just merely the "truth". I am at peace with myself—now—knowing you know the truth. Closing—always know our fondest times and memories, my prayers and my heart will always travel with you. Bye, Bud During the pertinent period, several school district computers were located in Respondent's agriculture classroom. One of the computers was issued solely for the educator's use. To log on to the school district's network computer, Respondent was required to enter a unique user name and password. All documents saved by Respondent while using said computer were automatically routed to his "home folder" on the District server. When not in use, Respondent was to log off or lock the computer to prevent others from accessing the same. In August 2006, Ralph Starr, a network analyst for the Indian River County School District, was requested to search Respondent's assigned computer for any documents addressed to, or referring to J.K. or "Dear Friend." The computer was delivered to Mr. Starr. Mr. Starr's analysis revealed that no such correspondence was located physically on Respondent's C- drive (the hard drive); however, the above-referenced correspondence was found saved on the school district's server, in Respondent's home folder.7/ Respondent's computer was located on a desk in the classroom. Conceivably, another individual who possessed Respondent's user name and password could access his computer in his absence. Alternatively, if Respondent failed to follow the procedure of logging off or locking the computer, another could utilize the computer.8/ J.K. credibly testified, however, that she had never used Respondent's computer for any reason and that the style of writing contained in the subject correspondence was not hers. J.K.'s testimony was bolstered by that of A.K. J.K. showed the correspondence to A.K. and advised her that same was from Respondent. At the time A.K. reviewed the letter, she was J.K.'s best friend and they had been friends since sixth grade. In the course of their friendship, A.K. had an opportunity to review J.K.'s writings. She confirmed that the subject correspondence was not J.K.'s words or writing style. The undersigned finds that the above-referenced correspondence is genuine, and in light of the circumstances, logically indicates the correspondence was drafted by Respondent with J.K. as the intended recipient. Respondent's admissions to alcohol usage and kissing J.K., the request for secrecy, coupled with phrases such as "[s]ome kinda special Luv," "to see if the twinkle was still there," and "my heart will always travel with you," support J.K.'s credible testimony that the embrace and kiss on the lips were romantic and transcends the competing interpretation that the same was merely of a consoling nature. A few weeks after the incident and receiving the letter from Respondent, J.K. finally confided to her mother the events of March 15, 2006. Her decision was prompted by several factors: Respondent informing A.K. that he had lost respect for J.K.; Respondent informing other students that J.K. was not welcome at agriculture; and Respondent informing fellow students that J.K. had changed her interests and had "blown all of them off." The incident of March 15, 2006, and Respondent's subsequent conduct, which J.K. internalized, negatively affected her mood, behavior, and relationship with her father. A few days after school recessed, J.K. finally advised her father that Respondent had kissed her. J.K.'s father subsequently sought legal counsel, and upon the advice of counsel, notified the school board attorney. Facing an investigation concerning the allegations forming the basis of the Administrative Complaint, on or about August 8, 2006, Respondent resigned from his teaching position. J.K. returned to Vero Beach High School for her senior year. While J.K. desired to remain in the agriculture program, she perceived resentment from certain classmates in retaliation for the allegations against Respondent that had become public over the summer break. Consequently, school administrators encouraged J.K. to remain in the program albeit with different classmates. J.K. remained in the agriculture curriculum and enrolled in a class entitled Advanced Placement Environmental Science. J.K. graduated from Vero Beach High School in 2007, with honors. Prior to the incident that is the subject matter of this case, Respondent consistently obtained "highly effective" or "exemplary" performance appraisals. For Respondent's last appraisal, concerning the 2005-2006 school year, he was given an exemplary rating, with a score of 50 out of 52. Respondent was instrumental in the development and execution of a successful agriculture program and agribusiness opportunities for those students enrolled in the program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued finding that Respondent, John Mark Pomar, violated the provisions of subsections 1012.795(1)(c), (f) and (i), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a), suspending Respondent's Florida educator's certificate for a period of two years. DONE AND ENERED this 24th day of October, 2012, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 24th day of October, 2012.
Findings Of Fact The Respondent, Leonard Lawrence Buxton, currently holds a Rank II (Masters) teaching certificate (number 154610) expiring on June 30, 1989. In September, 1980, the Respondent was a teacher of Spanish students at American Senior High School in Dade County, Florida) Mr. Buxton was appointed class sponsor for the "class of 83" a short time after the beginning of the school year and after the initial orientation of sponsors. Some time soon after being appointed class sponsor, Mr. Buxton received authorization to conduct a class candy sale for money-raising purposes. The school treasurer, Mrs. Person, as well as Aaron Brumm, the director of student activities, instructed Mr. Buxton on financial matters concerning the candy sale and Mr. Brumm personally delivered all the subject boxes of candy to Mr. Buxton at the commencement of the sale activity. The record is not clear as to whether Mr. Buxton was instructed to turn in all monies derived from candy sales on a daily basis, weekly basis, or in some other fashion. The Respondent experienced difficulties soon after the beginning of the sale on January 20, 1981, involving collecting monies from students and missing boxes of candy. The missing candy disappeared while in Buxton's custody, since Brumm accounted for every box upon delivering it to Buxton. The Respondent's collection problems with his students concerning the proceeds of candy sales caused the sale to extend over a three month period. At the urging of Mr. Brumm, as well as his principal Lonnie Coleman, Respondent ultimately attempted to resolve the matter of collection of money and the missing boxes of candy, finally writing a personal check in the approximate amount of $302.40 payable to the school. That check was returned for insufficient funds by the payer bank. The Respondent contended that the account the check was written on had insufficient funds because his foster child, unknown to him, had withdrawn approximately $800 from that account, leaving insufficient funds to cover the check. In any event, the Respondent's principal, Lonnie Coleman, became aware of the deficiency and had a conference with the Respondent. Mr. Coleman told the Respondent to make the check good and "nothing will ever happen, there will be no problem". The Respondent paid the check and the principal considered the incident closed and initiated no negative job action toward the Respondent, merely orally reprimanding him. The principal felt this was an adequate remedy for any wrong the Respondent had committed in this instance, and following the incident, the principal recommended the Respondent for continued employement at his high school and found all his behavior as a teacher to be acceptable. The principal established that Buxton's personal problems did not render him ineffective as a teacher. Indeed, the principal found the Respondent to be a highly motivated, quite effective teacher, especially with Spanish-speaking students, and the principal would rehire the Respondent at the present time. It has been the practice in Dade County in the past for negative job action to only be initiated upon the principal's initial recommendation. On or about December 30, 1980, the Respondent was a passenger in his 1972 Pontiac which was being driven by an acquaintance, James Dausey, a young man who performed mechanical work on the vehicle. While Dausey was driving, the car was struck by a vehicle driven by Mrs. Ida LaPlant. Mrs. LaPlant offered to settle any damage claim Mr. Buxton might have "on the spot" or after he had obtained an accurate estimate of the damage to his car. The two parties negotiated for a time discussing the amount and the method of reaching the amount. Mrs. LaPlant offered approximately $500 to Mr. Buxton, but Mr. Buxton demanded $1,000 as he represented to Mrs. LaPlant that that amount was needed to cover any injury to Mr. Dausey as well as damage to his car. Mrs. LaPlant expressed the desire that they go to a body shop and obtain an estimate. He refused and demanded that she pay him $1,000 or he would call the police to investigate the accident. She did not want the police to become involved, so ultimately, at the Respondent's insistence, they went together to her bank where she withdrew $1,000 and gave it to the Respondent. The driver, Mr. Dausey, never complained of any injuries in her presence. In any event, the Respondent ultimately filed a claim for payment for damages sustained to his vehicle with his own insurance company representing that he had received no monies in payment for any damages sustained in that accident. Because of his misrepresentation concerning his reimbursement for damages sustained to his vehicle, the Respondent was prosecuted by the State Attorney for the Eleventh Judicial Circuit on, a two-count information charging the Respondent with filing a false and fraudulent insurance claim contrary to Section 817.234, Florida Statutes, and a count of grand theft pursuant to Section 812.014, Florida Statutes. On or about September 30, 1981, Respondent entered a plea of guilty to both counts and was placed on probation for a term of three years, although adjudication was withheld. He was ordered to make restitution to the Allstate Insurance Company in the amount of $294.00. The Respondent maintained he was attempting to get money from his insurance company to reimburse Mrs. LaPlant some of the money she had given him. In any event, it is uncontroverted that Mr. Buxton misrepresented to his insurance company the fact that he had received monies from Mrs. LaPlant, hence the prosecution. In March, 1979, the Respondent received from an employee and friend at the Salon of Music, located in Palm Beach County, a Sony radio "on approval". His friend who was employed at the store asked the Respondent to leave a check with him to hold "as security" while the radio was in the Respondent's possession. Respondent left a check for $436.75 with the Salon of Music, indicating at the time that there was probably not enough money to cover the check in the account. The two of them envisioned the check primarily as a receipt to secure future payment for the radio should the Respondent elect to buy it rather than present payment for the radio. After taking possession of the radio, the radio was stolen from the Respondent's apartment. The Respondent informed his friend at the Salon of Music and the check was then presented to the bank for payment and returned for insufficient funds. This check later became one of a number of checks for which the Respondent was criminally prosecuted in Palm Beach County, with the result that a plea of guilty was entered, with adjudication withheld and a full restitution made in the matter. Some time in May or June, 1980, the Respondent's life became emotionally and financially awry. The Respondent had been recently divorced, apparently without custody of his son. The Respondent became involved in an "affair of the heart" with a married woman who lived next door. This relationship apparently was concluded rather abruptly when her husband presented himself on the premises one day threatening the life of the Respondent and, being armed with a gun, demonstrating the present ability to carry out those threats. With some aid from the Boca Raton Police Department the Respondent precipitously and permanently vacated the area, and "went into hiding" for approximately one month. The Respondent "hid out" for approximately a week at an establishment called "the Bridge Hotel", later moving to the Florida Keys for the remainder of the month he was "under cover". The Respondent was obviously frightened and in fear of his life. As described by the psychiatric social worker with whom the Respondent counselled for approximately one year, the Respondent, during this period of hiding, made a series of precipitate "inappropriate decisions". The Respondent in effect, lived for the month he was under cover, at least in part, on checks written for cash, or directly for shelter or incidentals, to hotels and small commercial establishments in Palm Beach and Monroe counties, which proved to be invalid. In some instances the Respondent believed he had sufficient funds on deposit or could "cover" the checks before presentment. In at least one instance, a motel operator took his check with knowledge of its invalidity, allowing him time to secure its payment. The charges involved herein, or all but two of them, each relate to one of those invalid checks. The Respondent has admitted, in the pretrial factual stipulation, that he entered pleas of guilty to the criminal charges in Palm Beach and Monroe counties which stemmed from those various checks which had been written on insufficient funds. Both the judges in Palm Beach and Monroe counties accepted those guilty pleas, withheld adjudication of guilt in each case and established restitution schedules as part of the probation they imposed on the Respondent. The checks relating to Palm Beach county have all been paid. The Respondent is meeting all his probation requirements and is making regular payments as scheduled on the restitution plan imposed on him. His probation officer has found him very cooperative and making a genuine effort to reorganize his life and live it on a more positive and responsible plane. The genuineness of the Respondent's effort at personal improvement is borne out by the fact that he voluntarily sought aid from a psychiatric social worker, Cynthia Leesfield. Ms. Leesfield testified on behalf of the Respondent. She established him to be highly motivated and genuinely remorseful at the offenses he committed. She demonstrated those offenses to be unique and peculiar to the period of mental and emotional stress he was experiencing at the time. Ms. Leesfield established that the Respondent had engaged in a number of unfortunate illegal acts, but that he did not truly do so with a criminal intent, rather, during a stressful period when he was under fear for his life, he simply fled his apartment with his belongings and checkbook and wrote checks in order to live while he was in hiding and not earning any money. Ms. Leesfield had been a teacher with seven years experience prior to embarking on her present career. Her expert opinion, after counseling and treating the Respondent over a period of approximately one year, was that none of the behavior she had seen manifested by the Respondent made it inappropriate for him to return to a classroom setting. The episodes involving the invalid checks were not a planned pattern of misconduct, but rather related to his fear and anxiety concerning his personal life at the time. Two individuals with direct knowledge testified regarding the charges pertaining to the School Board's original action which thus only relate to the issue of dismissal. They were the Respondent himself and Lonnie Coleman, the Respondent's principal at American Senior High School. Regarding the incident charged involving kicking a student, Mr. Buxton readily admitted the incident. He stated that the kick was merely "in jest" or in the form of good-natured horseplay, and that he had, both before and after the incident, an excellent rapport with the student (a "mariel refugee") and the student's sponsor. Mr. Coleman, the principal, was aware of the kicking incident and orally reprimanded Mr. Buxton for it. He did not feel the incident was serious. He felt that such a reprimand was an adequate admonishment for this occurrence and established that there was obviously no intent to injure the student. No negative job action was suggested by the School Board at the time of the incident and after the discussion between the principal and Mr. Buxton regarding that matter it was considered closed by both of them. Indeed, a number of months later, after the incident was well known to Mr. Coleman, he still recommended Mr. Buxton for continued employment at American High School. Pat Gray, a personnel administrator in the school system, admitted that it was very unusual to bring charges against a teacher on an incident such as kicking a student unless the principal himself suggested such an action. The Respondent's principal, Lonnie Coleman, was the only witness other than the Respondent himself, to testify regarding the Respondent's competency and effectiveness as a teacher. He performed the annual evaluation on Mr. Buxton for the 1980-81 school year. He gave him a favorable evaluation. He found even after the incidents in question that he would continue to recommend Mr. Buxton for a position in instruction at American Senior High School. He found his behavior and record as a teacher to be consistently superior. Mr. Buxton performed well in the classroom and experienced problems only with his personal life. Mr. Coleman did not find the Respondent's personal problems of a sufficiently serious nature to alter his recommendation for continued employment. Mr. Buxton is an exceptional teacher, very effective at getting students interested in his subject matter, and in his preparation before his classes. Mr. Coleman was fully informed regarding the "candy sale charges" and the "kicking incident", and counselled with Mr. Buxton about those two situations and considered them closed without the necessity for any negative job action, and he is still of that opinion. The Respondent was recommended for summer employment in the school system after each of the acts charged against him in this case had occurred and were matters of record. Mr. Coleman initially recommended him for half-time work in the school system's summer program. Subsequently, at the request of the principal at Miami Springs Summer School where he was teaching half-time, he was asked to work full-time for the remainder of the summer. Mr. Buxton has held no other job in his adult life except teaching positions. He remains a highly effective and dedicated teacher, both in his preparation for and presentation of his subject matter, his conduct of classes, as well as his relations with his fellow professionals and his students. He presently works as a substitute teacher and does private tutoring during the period of his suspension. He is earnestly attempting to rehabilitate himself and keenly desires to continue his profession as an educator.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED: That the Education Practices Commission enter a final order suspending teacher's certificate number 154610 issued to Leonard Lawrence Buxton for a period of one year, provided however, that the imposition of that suspension be stayed so long as the Respondent remains in compliance with the terms of his probation as determined by the Circuit Courts in and for Palm Beach and Monroe counties, Florida, and is guilty of no other violations of Chapter 231, Florida Statutes, during the suspension period. Should those courts revoke his probation for any reason, or should he be found guilty of such violations, that stay should immediately be lifted and his license suspended for the remainder of the suspension period. The final order should provide that if he successfully completes his term of probation then these proceedings shall be dismissed. It is further recommended that the School Board of Dade County reinstate the Respondent in his position of employment, but retain his back pay. DONE and ENTERED this 7th day of July, 1982 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1982. COPIES FURNISHED: Craig R. Wilson, Esquire Ruffolo & Wilson 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Jesse McCrary, Esquire 3050 Biscayne Blvd., Suite 300 Miami, Florida 33137 Elizabeth J. Du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Donald L. Griesheimer Executive Director Education Practices Commission Department of Education The Knott Building Tallahassee, Florida 32301
The Issue Whether Respondent's educator's certification should be sanctioned for alleged gross immorality or an act involving moral turpitude, and other offenses in violation of Section 231.2615(1)(c), (e), (f) and (2), Florida Statutes.
Findings Of Fact Respondent, Daniel Ayers, holds Florida Educator Certificate number 735644, which was valid through June 30, 2005. At all times relevant hereto Respondent was employed as a second grade teacher at Gulfport Elementary School in the Pinellas County School District during the relevant school year. On July 5, 2000, at about 8:15 p.m., Respondent entered the public restroom at Lake Seminole Park, Pinellas County Florida, where he was observed by Deputy James Brueckner of the Pinellas County Sheriff's Office. It is a well-used park, and people were present that evening. It was still light at that time, and Lake Seminole Park was being used by families and children. The playground is close to the northeast corner of the restroom Respondent entered. Respondent approached a urinal, and, after facing it for about 30 seconds, he went to the back wall where it was possible for him to observe, through the openings, anybody approaching the restroom. At that point, Respondent had his penis in his hands and was masturbating by holding his penis and fondling it. He then replaced his penis in his pants through the fly, pulled down his shorts, and began moving his hand up and down on his penis in a rapid motion. Deputy Brueckner, who was inside the restroom, removed his badge and identified himself to Respondent. He told Petitioner that he was a detective and showed him the badge. He told Respondent that he was under arrest, but that he should be calm. They would go out to his vehicle to do the paperwork. Respondent made a move towards the door, as if he was going to run. Deputy Brueckner grabbed him, and Respondent shoved the deputy and fled. Deputy Brueckner pursued Respondent and caught him. Respondent swatted the deputy several times. Two other deputies came to Deputy Brueckner's assistance, and Respondent was subdued. Respondent was charged with indecent exposure of sexual organs (a misdemeanor) and with resisting arrest with violence (a felony). He subsequently entered a plea of No Contest to the charge of indecent exposure of sexual organs and to the reduced charge of resisting arrest without violence in Pinellas County Circuit Court. He was adjudicated guilty on both charges by the court and placed on probation. Respondent admitted to Michael Bessette, an administrator in the office of professional standards, Pinellas County School District, that he was the person arrested and charged as a result of the incident on July 5, 2000. In Bessette's expert opinion, the public would not tolerate the type of behavior exhibited by Respondent on July 5, 2000, at Lake Seminole Park. Respondent's effectiveness as a teacher was seriously reduced to the point where the school district had to remove him from teaching duties. In Bessette's opinion Respondent engaged in conduct that constitutes gross immorality and would not be tolerated under state or local ethical standards. Respondent resigned his teaching position with the Pinellas County School District on April 25, 2001, following his conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Section 231.2615(1)(c), (e), and (f), Florida Statutes. It is further RECOMMENDED that a final order be issued revoking Respondent's teaching certificate for three years, imposing a $1,000 fine for the above violations, and that upon re- application for certification, imposing such conditions as are just and reasonable. DONE AND ENTERED this 14th day of April, 2003, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2003. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Daniel Ayers 7096 111th Street, North Seminole, Florida 33772 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Mary Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400
The Issue This is a case in which the Petitioner seeks to suspend and terminate the Respondent's employment on the basis of allegations of misconduct set forth in a Notice of Specific Charges. The allegations of misconduct charge the Respondent with immorality, misconduct in office, and gross insubordination.
Findings Of Fact At all times material to this proceeding, the Respondent, Chico J. Arenas, was employed as a teacher by the Dade County Public Schools pursuant to a professional services contract. At the time of the hearing in this case, K. F. was a fifteen-year-old student in the 10th grade. She is a former student of the Respondent. At the time of the hearing, E. W. was a fifteen-year-old student in the 10th grade. She is also a former student of the Respondent. Both K. F. and E. W. are females. Shortly after Halloween in 1990, one day when the Respondent and K. F. were alone in a classroom, the Respondent asked K. F. whether a male student named M. was "getting action." At that time M. was a close friend of K. F. The term "getting action" was a reference to sexual intercourse. When K. F. answered the question in the negative, the Respondent repeated the question and also made statements to the effect of, "M. is lucky," that he had "heard Jamaicans are wicked in bed," and that "older guys will show you more." The Respondent also told K. F. that she made him "excited." K. F. construed these statements as being sexual in nature. As a result of these statements by the Respondent, K. F. lost the trust she had in her teacher and never went back to his class. The incident involving K. F. resulted in the Respondent being made formally aware of the School Board's policies with regard to inappropriate statements to female students containing expressed or implied sexual references and the Respondent was specifically directed to avoid sexual harassment of female students. Beginning in February of 1992, on three separate Saturdays, at approximately 11:00 a.m. on each of those days, the Respondent telephoned E. W. at her home. At that time E. W. was one of the Respondent's students. On each of those occasions the Respondent's statements to E. W. were of a personal nature and had nothing to do with the fulfillment of Respondent's duties as a teacher. On the first of the three telephone calls to E. W., the Respondent identified himself, but there was very little other conversation. Shortly after the Respondent identified himself to her, E. W. told him that she was doing something and asked if he could call back later. During the course of the second telephone call, the Respondent made statements to E. W. to the effect that he "liked" her and that he had "feelings" for her. The Respondent also told E. W. that she was "a beautiful young lady" and that she "had a nice shape." After just a few such statements, E. W. told the Respondent to call back later and she hung up. The Respondent's statements during the second telephone conversation led E. W. to believe that the Respondent had a romantic or sexual interest in her. During the course of his third Saturday telephone call to E. W., the Respondent repeated statements to the effect that he liked her, that she had a beautiful shape, and that she was a beautiful young lady. He went on to also tell her such things as that "he wanted to wrap his hands around [her] and hold [her] tight," that "he wanted to give [her] things," that her boyfriend "didn't have to know what was going on," and he also told her "not to tell her mamma [she] was talking to him on the phone." The Respondent also asked E. W. to meet him in the library near her home and to otherwise skip school so that she could be with him. The Respondent also made comments to the effect that he could do more for E. W. than her boyfriend could and that she was "a beautiful young lady, and [she] deserved beautiful things." As a result of the statements during the third Saturday telephone call, E. W. became convinced that the Respondent wanted to have a sexual relationship with her and she began taking steps to avoid the Respondent. As a student, E. W. was doing well in the Respondent's class. If she had had any personal problems that came to the attention of the Respondent, it would have been his responsibility to have referred her to one of the school counsellors. The Respondent is not certified as a counselor or as a psychologist. At the time of the telephone calls to E. W. described above, the Respondent did not have any school related business which required him to call E. W. at home, nor was he trying to reach E. W.'s mother. When the events described above were reported to school officials, the Respondent was removed from a school based employment site and reassigned to work elsewhere. The reassignment and the reasons for it became known to a number of administrators, teachers, parents, and students. The disclosure of information about the matter resulted in part from statements the Respondent made to others. The Respondent's effectiveness as a teacher has been impaired as a result of his conduct with E. W. and his prior principal would be reluctant to rehire him as a teacher. The Respondent's conduct with E. W. also constitutes misconduct in office and is a breach of his professional relationship of trust with students because it exposed a student to embarrassment and disparagement. The Respondent's conduct with E. W. also constitutes immorality.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case concluding that the Respondent is guilty of immorality, misconduct in office, and gross insubordination as charged in the Notice of Specific Charges and, on the basis of those conclusions, terminating the Respondent's employment. DONE AND ENTERED this 10th day of January 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 10th day of January 1994. APPENDIX The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties: Findings of Fact submitted by Petitioner: Paragraphs 1, 2, and 3: Accepted in substance with some details modified in the interest of clarity. Paragraph 4: Rejected as irrelevant because the conduct described here was not charged in the Notice of Specific Charges. Paragraphs 5, 6, 7, the unnumbered paragraphs following 7, 8, and 9: Accepted in substance with some details modified in he interest of clarity and accuracy. Paragraphs 10 and 11: The essence of these paragraphs has been accepted, but most details have been omitted as unnecessary. Findings of Fact submitted by Respondent: By way of clarification, it is noted that the Respondent submitted two post-hearing documents in support of his positions on the issues: one titled RESPONDENT'S MEMORANDUM IN SUPPORT OF HIS PROPOSED ORDER RECOMMENDING REINSTATEMENT, and the other titled RESPONDENT'S PROPOSED FINDINGS OF FACT AND ORDER. The first of these two documents includes an extensive summary of the testimony, which summary has been carefully reviewed by the Hearing Officer. However, because those summaries do not constitute proposed findings of fact, they are not specifically addressed below. Here, as in the usual course of events, it would serve no useful purpose to recite at length the extent to which the summaries are or are not accurate and to do so would add to this Recommended Order voluminous subordinate and unnecessary details; details which have been carefully considered during the fact-finding in this case. Specifically addressed below are the paragraphs contained in the "Findings of Fact" portion of the RESPONDENT'S PROPOSED FINDINGS OF FACT AND ORDER. Paragraphs 1, 2 and 3: Rejected as contrary to the greater weight of the evidence. (This disposition of the proposed findings is, in any event, irrelevant in view of the Hearing Officer's disposition of the immorality charge). Paragraph 4: Rejected as contrary to the greater weight of the evidence. The evidence is sufficient to prove the acts alleged by a preponderance of the evidence. Paragraph 5: Rejected as contrary to the greater weight of the evidence and as constituting a proposed conclusion of law, rather than proposed findings of fact. (On the basis of Johnson v. School Board of Dade County, 578 So.2d 387 (Fla. 3d DCA 1991), the Hearing Officer has reached a conclusion different from the one proposed here.) COPIES FURNISHED: David Rothman, Esquire Thornton, Rothman and Emas, P.A. 200 South Biscayne Boulevard Miami, Florida 33131 James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Dr. Joyce Annunziata, Director Office of Professional Standards Dade County Public Schools 1444 Biscayne Boulevard Miami, Florida 33132 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue #403 Miami, Florida 33132-1308 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33122 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether just cause exists to terminate Respondent's employment for misconduct in office and immorality, as alleged in the Administrative Complaint.
Findings Of Fact The Broward County School Board, Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times pertinent hereto, Respondent was employed as a teacher at Lauderhill Middle School ("Lauderhill"), which is a public school in Broward County. The Events of March 11, 2010 On March 11, 2010, Respondent was scheduled to administer the science portion of the Florida Comprehensive Assessment Test ("FCAT") to a first-period class at Lauderhill. The FCAT is a significant test in that students' performance on the examination influences the letter grades (A through F) awarded annually to Florida's public schools, which in turn impacts the level of funding school districts receive from the state. Prior to March 11, 2010, and during the same school year, Respondent——as well as all other personnel who planned to administer the FCAT——were required to read the FCAT Test Administration Manual ("FCAT manual") and attend in-service training. Pertinent to the instant case and consistent with the FCAT manual, Respondent and her colleagues were specifically instructed during training that electronic devices, including cell phones, could not be used during testing. The testing schedule for March 11, 2010, contemplated that Respondent and the other teachers administering the FCAT would report to the office of Shalonda Griggs (one of Lauderhill's guidance counselors) at approximately 8:25 a.m. to pick up the testing materials for their respective first period students. Prior to leaving Ms. Griggs' office, each teacher was expected to examine the test booklets and ensure that the materials were intact——i.e., confirm that none of the seals on the test books were broken. It was further anticipated that each teacher would begin the FCAT at 8:30 a.m. On the morning of the examination, Respondent timely reported to Ms. Griggs' office and signed for the testing materials. Respondent reported no issues with the test booklets and proceeded to her classroom. At approximately 8:30 a.m., guidance counselor Janet Jackson——who was monitoring teachers in the area of the school where Respondent's classroom was located——observed Respondent, who had not started the FCAT, engaged in a verbal altercation with a student (C.H.). Ms. Jackson promptly advised Lauderhill's principal, Jeannie Floyd, of the situation, at which point Ms. Floyd and Ms. Griggs responded to the classroom and instructed Respondent to cease her inappropriate dialogue with C.H. and to begin the FCAT immediately. Before she returned to the front office, Ms. Floyd spoke briefly with C.H.——who was visibly upset——and advised her that she could take the FCAT on the following day. Approximately 35 minutes later, Assistant Principal Cindy Pluim proceeded to Respondent's classroom to monitor the testing procedures. Upon her arrival, Ms. Pluim observed Respondent, who had yet to begin administering the test, conversing on a cell phone in front of the class. Although Ms. Pluim ordered Respondent to end the telephone call and exit the classroom so that another member of the faculty could administer the test, Respondent refused and advised that she was speaking with her lawyer. Respondent further remarked that the seals of the test booklets had been prematurely broken——i.e., that the booklets had been unsealed prior to Respondent taking possession of them in Ms. Griggs' office. During the final hearing, Ms. Pluim credibly testified that contrary to Respondent's statement, the test booklets in question had not been unsealed. Between 9:15 and 9:20 a.m., Ms. Pluim returned to the front office and informed Ms. Floyd that Respondent had refused to comply with her directives. At that point, Ms. Floyd and Ms. Pluim proceeded to Respondent's classroom and observed that she had yet to end the telephone call. According to Ms. Pluim, whose testimony the undersigned credits fully, the students appeared nervous and upset by Respondent's conduct. In an effort to avoid any unpleasantness in the students' presence, Ms. Floyd stood in the doorway and repeatedly gestured for Respondent to exit the classroom. Undeterred, Respondent ignored Ms. Floyd and continued with her telephone conversation. After she waited fruitlessly for nearly five minutes in the hope that Respondent would comply, Ms. Floyd returned to the front office and requested assistance from the School Board's special investigative unit (SIU). At 9:44 a.m., Respondent——who was still in her classroom——sent an e-mail to: James Notter, the Superintendent of Schools for Broward County; the Commissioner of Education for the State of Florida; Paul Houchens, the Director of Assessment for the Broward County School District; and Ms. Floyd. The e- mail reads, in pertinent part: Mrs. Floyd you forgot to sign the security checklist the three times you entered my classroom even though I did ask you to. * * * Now I have students complaining that their tests have been tampered with and had to listen to complaints. I don't know what is going on, but testing is a serious matter and not to be taken lightly. I have already reported this information to others. Ms. Floyd, as you are aware my daughter attends this school and testing effects [sic] her. What is going on is a travesty and what is going on now isn't right. At approximately 10:15 a.m., several SIU officers (and an officer with the Lauderhill Police Department) arrived at Lauderhill, removed Respondent (who still had not started the FCAT) from her classroom, and later escorted her from the campus. Subsequent Events On a Saturday morning during late March or early April 2010, Respondent appeared unannounced at the residence of Ronald Bryant, whose daughter attended Lauderhill. During the visit—— which irritated Mr. Bryant due to the early hour and lack of advance notice——Respondent stated that Ms. Floyd was attempting to "cover-up" cheating on the FCAT. Respondent further indicated that she wished for Mr. Bryant to contact the Broward County School Board and lodge a complaint. Although Mr. Bryant did not believe that the allegations were any of his business, he later went to Lauderhill——in an effort to determine why Respondent had come to his home——and spoke with Ms. Floyd. On another occasion following the events of March 11, 2010, Respondent contacted (by telephone) a second parent, Leslie Pullum. During the phone conversation, Respondent attempted to convince Ms. Pullum that Ms. Floyd was using her (Ms. Pullum's) daughter as part of a conspiracy to get Respondent fired. Ms. Pullum, unconvinced and upset by Respondent's remarks, subsequently complained to Ms. Floyd about Respondent's behavior. During the final hearing, Petitioner elicited no evidence concerning the veracity of Respondent's allegations regarding Ms. Floyd.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (1) finding Respondent guilty of misconduct in office; finding Respondent not guilty of immorality; and (3) terminating Respondent's employment as a teacher with the School Board. DONE AND ENTERED this 23rd day of November, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2011.
