Findings Of Fact Respondent attends Thomas Jefferson Junior High School. With the exception of band class which he attends regularly and achieves high marks, his absentee rate (unexcused) is approaching 50 percent and he is receiving failing grades. He is frequently disruptive in class and disrespectful to his instructors. He regularly comes late to his classes or leaves before being excused. Petitioner has made frequent attempts to assist Respondent. All available counseling and disciplining techniques have been used without success. Respondent will be 16 years old in September and intends to withdraw from school at that time. Respondent and his mother seek his release from mandatory school attendance now so that he may begin vocational training. School officials agree that this is appropriate, but the application has not been completed due to communication problems between Mrs. Perez and Thomas Jefferson Junior High School.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Respondent to its opportunity school pending release from mandatory school attendance. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Sylvia Perez 460 Northwest 125 Street Miami, Florida 33168 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issue is whether Petitioner may terminate Respondent's employment as an educational paraprofessional, based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Based upon the facts stipulated by the parties, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. The School Board is located at 2055 Central Avenue, Fort Myers, Florida 33901. The School Board's Florida Administrative Code identification code is 6GX-36. The School Board has the authority to terminate and/or suspend educational support personnel without pay and benefits pursuant to Subsections 1012.22(1)(f) and 1012.40(2)(c), Florida Statutes (2005).1 Respondent has been employed by the School Board since August 27, 1998, with the exception of a break in service during the period from February 24, 1999, through September 27, 2000. Currently, Respondent is employed as an educational paraprofessional at Alternative Learning Center ("ALC") High School. He was previously employed as a bus attendant. Respondent has always received satisfactory performance assessments and has never before been the subject of discipline by the School Board. Respondent's current home address is 3971 Wheaton Court, Fort Myers, Florida 33905. Respondent is an "educational support employee," as defined by Subsection 1012.40(1)(a), Florida Statutes, and is a member of the support personnel bargaining unit ("SPALC") that is covered by a collective bargaining agreement between SPALC and the School Board. The standard for discipline of support personnel is "just cause" pursuant to Article 7 of the SPALC Agreement. On or about August 12, 2005, David LaRosa, the principal of ALC High School, contacted Gregory Adkins, executive director of Human Resources and Employee Relations, to report two recent conversations regarding Respondent. Both conversations concerned alleged inappropriate interaction by Respondent with two female students. On the basis of the information reported to Mr. LaRosa, an investigation into the matter was conducted. During the course of the investigation, the District became aware that Respondent had fathered a child and that the child's mother was a senior at Cypress Lake High School at the time the child was conceived. The child was born on December 10, 2002. Respondent denied knowing that the mother was a student when they met at a Dr. Martin Luther King celebration in January 2002, or when they met again on February 14, 2002. The mother of the child turned 18 on February 14, 2002. Respondent was 23 years old at the time.2 On September 7, 2005, the School Board determined that probable cause existed to impose disciplinary action against Respondent for engaging in a sexual relationship with a student. Also, on September 7, 2005, a certified letter was sent to Respondent, advising him of the probable cause determination and that a recommendation would be made to the superintendent that Respondent be terminated. The School Board did not, during the time in question, have a policy or regulation specifically prohibiting a sexual relationship between an employee and a student. The School Board provided no notice to employees that a sexual relationship with a student could result in disciplinary action. No evidence was presented that Respondent's alleged misconduct had any adverse impact on the School Board or on Respondent's work performance. Respondent continued to work for the School Board for more than two and a half years after his child's birth without incident and with satisfactory performance evaluations. Respondent's child was born ten months after the mother's eighteenth birthday, meaning there is no evidence that Respondent engaged in sexual relations with the mother when she was a minor. No evidence was presented to contradict Respondent's claim that he was unaware that the woman was a high school student at the time they had sexual relations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lee County School Board, issue a final order dismissing the Petition, reinstating the employment of Respondent, and awarding him back pay and benefits. DONE AND ENTERED this 30th day of May, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2006.
The Issue Whether there is "just cause" to terminate Respondent, Edward Starcher, from employment as a teacher in the Collier County School District.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Respondent is a teacher certified by the State of Florida in the areas of physical education, recreational dance, and driver's education. On August 18, 1986, the School Board hired Respondent as a teacher. Since being hired in 1986, Respondent taught continually in the Collier County public school system, except for a one-year leave of absence. Respondent began his career at Highland Elementary School and taught there for approximately two to three years. He then taught for nine years at Village Oaks Elementary School. Respondent, subsequently, taught at Gulf Coast High School, where he also served as a basketball coach. In the 2000-2001 school year, Respondent was employed at NHS as a physical education teacher, driver's education teacher, and head basketball coach for the boys' varsity basketball team. At all times relevant herein, Respondent was a driver's education teacher and head coach of the boys' basketball team at NHS. Throughout his teaching career with the School Board, Respondent received positive evaluations and was recognized for having a passion for coaching. Prior to the disciplinary action at issue in this proceeding, there is no evidence that Respondent has been previously disciplined by the School Board. At all times relevant herein, A.K., a female, was a high school student in her senior year at NHS. In January 2003, A.K. was enrolled as a peer tutor under the direction of Respondent, along with two other students--A.D., a female, and A.F., a male. A.K., A.D., and A.F. were enrolled as peer tutors during the fourth block, which commenced at 12:45 p.m. As peer tutors, they assisted Respondent with doing the laundry, folding towels and T-shirts, and delivering them to the storage closet. At the beginning of fourth block, the peer tutors would typically meet Respondent in his coaching office or outside of it, and he would give them their assignment for the day. On Monday, February 10, 2003 (February 10), A.K. reported to Respondent's office during fourth block for her peer tutor responsibilities. A.D., another peer tutor, was absent that day, but A.F. and K.C. were present. K.C., an NHS student, was not assigned as Respondent's peer tutor, but he sometimes assisted Respondent and his peer tutors during the fourth block. On February 10, as Respondent and the peer tutors were exiting Respondent's office to walk to the laundry room, Respondent "put [A.K.] in a little bit of a headlock," in a playful manner. After arriving at the laundry room, Respondent and the peer tutor folded laundry. At some point, Respondent handed A.K. a pile of towels and told her to take it to the storage closet. Respondent also took a pile of towels or jerseys and both A.K. and Respondent proceeded from the laundry area across the gym to the boys' locker room. On this trip to the storage closet, only A.K. went with Respondent across the gym to the storage closet area. A.F. remained in the laundry room because Respondent told only A.K. to come with him. The storage closet was located in the boys' football locker room on the opposite side of the auxiliary gym from the laundry room. On February 10, there was a physical education class with at least 20 students and an instructor on the gym floor playing volleyball. The physical education class was divided into two groups at the opposite ends of the gym so that when the peer tutors and Respondent took the laundry across the gym floor to the storage closet, they would pass between the two groups. Respondent and A.K. entered the boys' locker room area and proceeded to the storage closet to drop off the towels and/or jerseys. A.K. entered the storage closet area first followed by Respondent. After A.K. put the towels down, she noticed Respondent shutting the door quickly, turning the lights off and on, and then opening the door. A.K. asked Respondent what he was doing, and he replied that he was just joking around. During the first trip to the storage closet, as A.K. was walking through the locker room, she saw J.C., a NHS student, near his locker. Some time after Respondent and A.K. walked through the locker room, J.C. walked around to the bench near the storage closet doorway to put on a knee brace. Thereafter, J.C. saw Respondent in the doorway of the storage closet, and Respondent introduced him to A.K. J.C.'s locker was adjacent to the storage closet wall, and he had to walk to the end of the wall and around the corner to get to the doorway of the storage closet. Due to the location of his locker, there was a period of time when J.C. was not near the doorway of the storage closet and could not see that doorway. At some point while A.K. and Respondent were in the storage closet, Corporal Ronald Byington (Coach Byington), the NHS youth relations deputy and an assistant football coach at the school, walked through the locker room from the adjacent coaches' room. Coach Byington stopped and talked to Respondent about a minute and a half. During his very brief conversation with Respondent, Coach Byington did not observe anything out of the ordinary. After briefly talking with J.C., Respondent and A.K. returned to the laundry room. After a short period of time, Respondent handed A.K. a bag of jerseys to take with her to the storage closet and proceeded alone with her back across the gym to the boys' locker room. J.C. was not in the locker room when Respondent and A.K. returned to the storage closet. When A.K. and Respondent returned to the storage closet with laundry a second time, Respondent again followed her into the storage closet, closed the door, and turned off the lights. Respondent then kissed A.K. on her neck and lips, grabbed her leg, and pushed it up against his side. A.K. pushed Respondent away from her, after which he turned on the lights, grabbed himself and remarked, "This is what you do to me." As A.K. approached the door to walk out, he placed A.K.'s hand on his groin. A.K. described the manner in which Respondent kissed her on the neck as "more of a sucking" than a kiss. After the incident described in paragraph 16, A.K. returned to the laundry room followed by Respondent. Upon returning, A.F. and K.C. noticed that A.K.'s neck was red and told her so. When A.F. and K.C. commented about the red mark on her neck, Respondent stated that it was because he had put her in a headlock. After the brief discussion about the red mark on A.K.'s neck, A.K. returned to the boys' locker room a third time, this time with A.F. and Respondent. A.K. had to wait outside the locker room since there were football players in there changing for weight training. Because A.K. could not enter the locker room, she handed the laundry she was carrying to A.F. and/or Respondent. Upon returning to the laundry room from the third trip to the storage closet, Respondent "kind of stopped [A.K.]" as they were walking across the gym floor. He then had A.K. hold her hand up while he did the same and intertwined his little finger with hers while he asked her to "pinkie swear" (promise) she would not tell anybody, and she agreed to do so. However, Respondent then told A.K. that he could not promise that it would not happen again. This brief exchange took place out of A.F.'s earshot. Moreover, given the considerable activity in the gym, it is reasonable that A.F. did not hear this conversation. A.K. returned a fourth time to the locker room to get her book bag and left school. She was in a state of shock, drove home, changed, and left for work. That evening A.K. did not tell her parents about the incident with Respondent because she was embarrassed and uncertain as to how they would react. The next morning, Tuesday, February 11, 2003 (February 11), A.K. was sitting in her car in the NHS parking lot waiting for the first-block bell to ring when her friend, E.W., a senior at NHS, approached her. E.W. noticed that there was something wrong and asked A.K. what was the matter. A.K. started to cry and told E.W. that Respondent had kissed her. As they walked to class, A.K. told E.W. more of what happened. A.K. told E.W. that on the first visit to the storage closet Respondent shut the lights off. A.K. asked him what he was doing and he turned them on. A.K. also told E.W. that on the second visit, Respondent shut the lights off and imposed himself on her, including kissing her on the neck and lips and grabbing her leg. Sometime during the course of the day, A.K. told E.W. about Respondent's having her touch his penis area. On the morning of February 11, soon after A.K. told E.W. about the incident, E.W. asked A.K. whether she had told anyone. A.K. replied that she had not. E.W. then told A.K. that she needed to report the incident to Mary Ellen Bergsma, the school guidance counselor. Although A.K. agreed to do so, she was hesitant and embarrassed to discuss the incident with Ms. Bergsma or anyone. At the beginning of the first block, E.W. accompanied A.K. to Ms. Bergsma's office. Ms. Bergsma invited both girls into her office and shut the door. Initially, when she went into Ms. Bergsma's office, A.K. was visibly upset, choked up, and unable to speak. After being encouraged by E.W., A.K. told Ms. Bergsma about the incident with Respondent. A.K. told Ms. Bergsma that Respondent had "hit on her," meaning that he had kissed her. In response to her question, A.K. told Ms. Bergsma that the event occurred in the storage closet area and then explained what happened in more detail. During this time, A.K. continued crying and had a hard time talking. After A.K. told Ms. Bergsma about the incident, Ms. Bergsma informed A.K. that she would have to talk with Gary Brown, the principal of NHS, about the incident. Later that morning, Ms. Bergsma accompanied A.K. to Mr. Brown's office. Although A.K. appeared uncomfortable and nervous and was crying, she told Mr. Brown basically what she had told Ms. Bergsma. At the end of the day, E.W. went to Ms. Bergsma to report some of the additional details that A.K. was too embarrassed to tell Ms. Bergsma, including Respondent's putting her hand on his genital and saying, "This is what you do to me." Over the next few weeks, Ms. Bergsma had follow-up conversations with A.K. to see how she was doing. She found that A.K. was having difficulty concentrating at school, not sleeping well, and, overall, was "having a tough time." On February 11, after A.K. reported the incident to Ms. Bergsma, she decided to remove A.K. from Respondent's peer tutor class. At 9:02 a.m. that morning, Ms. Bergsma e-mailed Respondent advising the following: "FYI – A.K. is out of your class 4th block." The e-mail was opened by Respondent at 9:05 a.m. and deleted by him at 9:05 a.m. Five minutes later, at 9:10 a.m., Respondent prepared a separate E-mail stating, "Thanks for the info. Have a great day." Respondent never contacted Ms. Bergsma to find out why A.K. was no longer in his fourth-block class. Respondent testified that the e-mail was no big deal to him and that it might have meant A.K. was out just that day since the e-mail from Ms. Bergsma did not have the word "permanently" contained in it. Between approximately 12:00 to 12:30 p.m., on February 11, Mr. Brown told Respondent in person that he wanted to meet with him in Mr. Brown's office at about 2:00 p.m. When Respondent met with Mr. Brown in his office that afternoon, Mr. Brown asked Respondent if he knew why he had been called to his office. Respondent seemed to think about the question and replied that it must be a parent complaining about his basketball program. He thought up several possibilities until Mr. Brown told him it had nothing to do with basketball. Mr. Brown then told Respondent that the meeting pertained to a complaint from a female student who had peer counseling with him and related to inappropriate physical contact that Respondent had with the student. After progressing through each of his classes and being informed by Mr. Brown that it regarded a complaint from the fourth block the preceding day, Respondent stated that the complainant had to be A.K. because she was the only female present that period on February 10. After Mr. Brown informed Respondent of the allegations, Respondent's head dropped down. He had tears in his eyes and stated that he could not believe this was happening to him. Mr. Brown then asked Respondent if he could think of any reason why A.K. would make such an accusation against him. Respondent told Mr. Brown about an incident at the NHS basketball game on January 31, 2003, which involved A.K. Respondent stated that he had spoken with A.K. on February 3, 2003, about her conduct at the game. Respondent then retrieved a letter from his brief case and presented it to Mr. Brown. The letter was dated February 3, 2003, and was addressed to Coach Byington. Respondent had authored the letter and typed it on a computer. The letter stated that during half-time of the January 31, 2003, basketball game, while Respondent was outside for "a breath of fresh air," he saw A.K. and two other NHS students, K.S. and S.W., and a former NHS student, J.W., outside. In the letter, Respondent indicated that the students appeared to be intoxicated and under the influence of drugs or alcohol; that two of the students approached him; and that A.K. then began making derogatory comments about two NHS assistant football coaches, one of whom was Coach Byington. Also, the letter indicated that on February 3, 2003, Respondent spoke to A.K., during fourth block about her being intoxicated. According to the letter, Respondent told A.K. that she and those with her on January 31, 2003, were "lucky that [Respondent] was in the middle of a game and [they] had not been caught." In addition to information about A.K.'s being intoxicated at the game, Respondent included statements in the letter which were unrelated to the January 31, 2003, incident. Apparently, referring to his February 3, 2003, conversation with A.K., Respondent wrote in the letter: It was during this conversation that I figured out [A.K.] was extremely bitter about coaches at NHS. After further research, it was determined that [A.K.] need not be trusted. [A.K.] on several occasions accused Byington and the football staff of starting rumors about her . . . and she claimed people had given her a hard time about being a senior dating a freshman. I had never heard of such rumors and felt that she was overplaying this to an extreme. After refusing to discuss any more of these matters with her, she became very irate and said that I [Respondent] was just like the others. In quotes "jerks". [sic] Just wanted you to have this information on file. Respondent told Mr. Brown that he had never given the letter to Coach Byington because he did not want to get A.K. in trouble. Coach Byington never received Respondent's letter dated February 3, 2003, nor did Respondent speak to Coach Byington about its contents. If a letter with allegations like the ones made in the letter dated February 3, 2003, were brought to his attention, Coach Byington would look into the matter or take some action. The letter dated February 3, 2003, accurately states and it is undisputed that (1) Respondent saw NHS students, A.K., K.S., and S.W., and a former NHS student, J.W., on January 31, 2003, during half-time at the basketball game that evening; (2) the students, including A.K., were intoxicated; and (3) on February 3, 2003, Respondent talked to A.K. about being intoxicated at the basketball game. The letter dated February 3, 2003, falsely and inaccurately states when Respondent saw A.K. on January 31, 2003, she talked to him about her dislike for two of NHS football coaches and said derogatory things about them. Rather, after exiting the gym at half-time, A.K. and K.S. spoke to Respondent only briefly, about a minute. During that conversation, A.K. asked Respondent about his daughter, Callie, and how the basketball game was going; she also wished him luck in the second half. A.K. and K.S., along with S.W. and J.W., continued to walk to A.K.'s friend's car to have a few shots of alcohol during half-time. On the evening of January 31, 2003, A.K. never said anything to Respondent about Coach Byington or any other coach at NHS. In light of the purpose for which Respondent claimed he wrote the letter dated February 3, 2003, there is no reasonable explanation for Respondent's inclusion in the letter of the statement that "[a]fter further research, it was determined that [A.K.] need not be trusted and that A.K. said that Respondent was jerk [sic], just like the other coaches. Since becoming a peer tutor for Respondent and prior to January 31, 2003, A.K. had talked to Respondent on several occasions and told him that she did not like Coach Byington. The reason A.K. did not like Coach Byington was that she believed that he gave preferential treatment to football players and had made A.K. the butt of jokes because she was dating a freshman football player. A.K. made no secret that she "did not care" for Coach Byington and candidly admitted her feelings about Coach Byington at hearing. There were no other coaches at NHS who A.K. disliked or told Respondent that she disliked. The letter dated February 3, 2003, also inaccurately and falsely stated that when Respondent talked to A.K. at school on February 3, 2003, about being intoxicated at the January 31, 2003, basketball game, she became irate. Respondent's testimony at hearing regarding this conversation is not credible. Contrary to Respondent's account, the conversation took place in the gym and not in Respondent's office. Moreover, during the conversation, Respondent seemed to be joking with A.K. about her being intoxicated at the January 31, 2003, basketball game. At no time during that conversation did Respondent talk to A.K. about the kind of people she should hang out with. Respondent also never indicated to A.K., during that conversation or at any other time, that he would report her to school officials or tell her parents that she was intoxicated. Respondent provided confusing and contradictory testimony in connection with the letter dated February 3, 2003. First, despite the date on the letter, it is not clear when Respondent wrote the letter. Respondent testified that he prepared the letter on Monday, February 3, 2003, but also testified that he could have finished it later that week. This testimony is consistent with a letter Respondent wrote in March 2003, in response to the report of the School Board's investigator. Respondent also testified that even if he did not finish the letter on February 3, 2003, he would not have changed the date because he did not consider the letter an official document. During the investigation of A.K.'s complaint against Respondent, the School Board's computer system technicians checked the school's computers and found no record of the letter in the system. If, as Respondent testified, he made changes to the letter over a period of time, the letter would have been saved on the system and the computer technicians would have been able to retrieve it. Respondent's testimony and representations regarding the preparation of the letter dated February 3, 2003, are confusing and not reasonable. In his March 2003 letter to the School Board in response to the investigator's report, Respondent stated that after initially writing the February 3, 2003, letter, he waited to review it before delivering it to Coach Byington. Despite all the time Respondent indicated he took to write, review, and edit the letter, Respondent never gave the letter to Coach Byington, even though Coach Byington's office was only a 20- to 30-second walk from Respondent's office. According to Respondent, the reason was that he had a busy basketball schedule. Respondent testified that the reason he prepared the letter dated February 3, 2003, was to give Coach Byington a "heads up." Yet, Respondent provided no explanation as to why Coach Byington needed a "heads up." Respondent's testimony regarding the reason he wrote the letter dated February 3, 2003, is not credible. Respondent did not prepare the letter dated February 3, 2003, to give to Coach Byington and did not deliver it to him or discuss it with him. The letter was instead prepared to give to Mr. Brown to undermine the credibility of A.K. At all times relevant to this proceeding, E.M., a male, was a student at NHS. E.M. and Respondent had a close relationship and have known each other for about five years, having first met when E.M. was in the sixth grade and was coached by Respondent. While a coach at NHS, Respondent sometimes gave E.M. lunch money and also hired E.M. to work in summer basketball camps. During the investigation of Respondent, E.M. voluntarily came forward to provide information supportive of Respondent. E.M. told Mr. Brown and testified at hearing that when he was in the boys' locker room on February 3, 2003, he overheard Respondent tell A.K. that she should hang out with better people; that he then saw Respondent leave his office; that he saw A.K. leave the office soon after Respondent left the office; and that he noticed that as she was leaving, A.K. was on a cell phone saying to someone that she hated the coaches at NHS and was going to get back at them. A.K. did not make a cell phone call from school on February 3, 2003. In fact, she does not bring her cell phone to school. Moreover, A.K.'s cell phone records show that no call was made at the time E.M. claimed the call was made. Finally, as noted in paragraph 45, the February 3, 2003, conversation between Respondent and A.K. took place in the gym, not in Respondent's office. The testimony of E.M. was not credible and was refuted by competent and substantial evidence. There is no reasonable explanation for A.K. to file false charges against Respondent. As even Respondent admitted, A.K.'s animus was directed to Coach Byington, not toward Respondent. Prior to the February 10 incident in the storage closet, A.K. liked Respondent and considered him a good friend. She had been a student in Respondent's aerobics class during her sophomore year at NHS. During the first semester of her senior year, A.K. had been an office assistant at NHS and in that capacity, she was required to hand out passes to designated or assigned teachers. Respondent was one of the teachers A.K. had to deliver passes to on an almost daily basis. When A.K. delivered the passes to Respondent, they often had conversations. The second semester of her senior year, A.K. specifically requested to be a peer tutor for Respondent because she thought he was a "cool teacher." As a consequence of the February 10, 2003, incident, A.K., in a consultation with her parents, began seeing Dr. Marta Gallego, a clinical psychologist in Naples, to help her address her fears and concerns. The counseling sessions began on or about February 19, 2003, with the initial intake session involving A.K. and her family, and continued until early May 2003. The therapy sessions with Dr. Gallego focused on A.K.'s reactions to the incident, helping her deal with her reactions, and processing the incident. During the counseling sessions, A.K. exhibited symptoms related to the trauma, was anxious at times, and was depressed. Also, after the February 10 incident, A.K. withdrew from friends and family, had difficulty concentrating at school, and felt pain over the impact that the incident had on her family. Finally, A.K. expressed to Dr. Gallego that she could not understand how a teacher that she trusted could violate her trust.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent from his position as a teacher with the Collier County School Board. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2004. COPIES FURNISHED: Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Jon D. Fishbane, Esquire Roetzel & Andress 850 Park Shore Drive, Third Floor Naples, Florida 34103 Dr. H. Benjamin Marlin Superintendent of Collier County School Board 5775 Osceola Trail Naples, Florida 34109-0919 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Respondent committed an unlawful employment practice against Petitioner by discriminating against Petitioner based on his race and national origin.
Findings Of Fact Mr. Chery, a black male who was born in Haiti, began working for the School Board in August 2007 as a school bus driver. Beginning in August 2008, Mr. Chery’s bus schedule was 4:55 a.m. to 9:00 a.m. and 2:00 p.m. to 5:30 p.m. He was paid for eight hours of work. His early morning route started at 4:55 a.m., when he picked up students to take to the fuel pump in Haines City. The early morning route ended at 6:00 a.m. His next route began at 6:10 a.m. and ended at 7:15 a.m., when he delivered students to the high school. The last portion of the morning route began at 7:30 a.m. and ended at 9:00 a.m., when he delivered students to elementary and middle schools. Mr. Chery’s afternoon route began at 2:00 p.m., when he picked up high school students and took them home until 3:00 p.m. Beginning at 3:00 p.m., Mr. Chery picked up students at Eastside Elementary School and transported them until 4:15 p.m. At 4:15 p.m., Mr. Chery picked up students at Boone Middle School and transported them until 5:30 p.m. Mr. Chery’s pay was calculated based on the time that he picked up his first student in the morning until he reached the school to drop off the students and the time that he reached the school in the afternoon until the time the last student was dropped off. One and one-half hours were added to the travel time to compensate for cleaning the bus and doing paperwork. On August 26, 2008, Mr. Chery was arrested. The arrest was a case of mistaken identity and Mr. Chery was released. After he was released, Mr. Chery felt uncomfortable working his early morning route and asked his supervisor, Jeffery Davis, to relieve him of his duty to drive the early morning route from 4:55 a.m. to 6:10 a.m. Mr. Jeffery Davis thought that Mr. Chery meant that he needed a couple of weeks to get over being arrested, and he accommodated Mr. Chery by getting another driver to take the early morning route. Although Mr. Chery was not required to drive his early morning route, he continued to receive the same compensation that he received when he did drive the early morning route. A couple of weeks after the early morning route was removed, Mr. Chery advised Mr. Jeffery Davis that he did not want to resume the early morning route. Mr. Jeffery Davis told Mr. Chery that a new Verification of Assigned Route Time Form, referred to as a Golden Rod, would need to be completed to show the driving times of his various routes.2 Mr. Chery submitted a Golden Rod, which still reflected his early morning route that he was no longer driving. The Golden Rod which Mr. Chery submitted showed that his morning route ended at 9:00 a.m., when it actually ended at 8:45 a.m., and showed that his afternoon route ended at 5:00 p.m., when it actually ended at 4:45 p.m. Mr. Chery was requested to submit another Golden Rod, which he did. The second submittal also contained similar inaccuracies. In mid October 2008, Mr. Chery’s pay was cut to reflect the deletion of the early morning route. Mr. Jeffery Davis completed an accurate Golden Rod for Mr. Chery. The form reflected that Mr. Chery picked up his first student in the morning at 6:10 a.m. and dropped the students off at Ridge Community High School at 6:40 a.m. At 6:40 a.m., Mr. Chery picked up five students at Ridge Community High School and transported them to Haines City by 7:00 a.m. His next run began at 7:25 a.m., when he picked up students to transport to Horizon Elementary, where the students were delivered at 7:50 a.m. At 7:50 a.m, Mr. Chery started his Lake Alfred Middle School route. The first middle school student was picked up at 7:55 a.m., and the students were delivered to Lake Alfred Middle School by 8:45 a.m., at which time Mr. Chery went off the clock. The afternoon route began at 2:00 p.m. when Mr. Chery picked up students at Ridge Community High School. The last high school student was delivered by 2:40 p.m. The next route began at 3:00 p.m., when Mr. Chery picked up students at Horizon Elementary. The last student from Horizon Elementary was dropped off by 3:30 p.m. The last route for the afternoon began at Lake Alfred Middle School at 3:45 p.m., and the last student was dropped off at 4:45 p.m. An attendant rode the Lake Alfred Middle School bus, and Mr. Chery dropped the attendant off at Walgreen’s pharmacy, which is less than ten minutes away from the last student drop off. The amount of time that Mr. Chery worked was seven hours, which included the time for cleaning the bus and doing his paperwork. Mr. Chery was unhappy that his pay was cut, and he requested a meeting with Mr. Jeffrey Davis’ supervisor, Rob Davis, concerning the amount of pay he was receiving. Mr. Chery, Mr. Chery’s wife, Mr. Rob Davis, and Mr. Jeffery Davis met on December 10, 2008, to discuss the pay issue. Mr. Rob Davis asked Mr. Chery to complete a time verification form for five days, showing the time that he spent each day from the time he picked up the first student in the morning until the time he dropped off the last student. Mr. Chery and Mr. Rob Davis met again on December 18, 2008. Mr. Chery had not filled out a time verification form for five days. Mr. Rob Davis told Mr. Chery to complete a new Golden Rod, reflecting the time that he was currently driving. Mr. Chery failed to complete a new Golden Rod. Mr. Chery requested a meeting with Fred Lee Murphy, who was the assistant superintendent for Support Services and Facilities and Operations for the School Board. His duties included managing the transportation system for the School Board. In January 2009, Mr. Murphy met with Mr. Chery and requested that Mr. Chery complete a current and accurate Golden Rod. Mr. Chery refused to do so, and his employment was terminated for insubordination. Mr. Chery claims the School Board paid white bus drivers for eight hours, when the white bus drivers were working only seven hours, and that he was being treated differently because he was black and from Haiti. He bases his claim on hearsay conversations that he had with some white bus drivers. No non-hearsay evidence was presented to show that white bus drivers were being paid for eight hours of work, when they were working seven hours.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Mr. Chery’s Petition for Relief. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2009.
The Issue Did Respondent Siebelts commit the offenses set forth in the petition for dismissal (Case No. 88-4697) and the amended administrative complaint (Case No. 89-0189) filed against her? If so, what discipline should she receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Karen Siebelts has held a State of Florida teaching certificate since 1976. Her current certificate was issued May 1, 1986, and covers the areas of elementary education, elementary and secondary reading, and secondary social studies and psychology. For the past thirteen years Siebelts has been employed by the School Board of Broward County as a classroom teacher. During the early stages of her employment, she taught at Melrose Park Middle School. She then moved to Perry Middle School, where she taught a class of emotionally disturbed sixth graders. Her performance at these two schools was rated as acceptable. In November, 1979, Siebelts was assigned to teach at Charles Drew Elementary School, a neighborhood school located in the predominantly black Collier city area of Pompano Beach. The charges lodged against Siebelts are based on specific acts she allegedly committed while she was a Chapter I Reading/Math and Computer teacher at Charles Drew providing remedial instruction to students whose test scores reflected a need for such special assistance. On January 22, 1985, while seated with her fifth grade students at a table during a reading lesson, Siebelts inadvertently kicked one of the students in the shin. The incident occurred as Siebelts was moving her legs to a more comfortable position. The force involved was minimal and produced no visible injuries. The student immediately demanded an apology from Siebelts. Siebelts responded to this demand with silence. She neither apologized nor said anything to suggest that she had intended to kick the student. Earlier in the lesson, Siebelts had directed the student to stop talking. The student had defied the directive and continued to talk. It was not until approximately three minutes after the student's initial defiance of the directive, however, that the kicking incident occurred. Nonetheless, the student suspected that Siebelts had intentionally kicked her because of her failure to obey Siebelts' order that she not talk. When the student came home from school that day she told her mother that Siebelts had intentionally kicked her during class. The mother immediately reported the incident to the principal of the school, Hubert Lee. The matter was referred to the School Board's Internal Affairs Unit for investigation. The requested investigation was conducted. Following the completion of the investigation, a written report of the investigator's findings was submitted to the administration. No further action was taken regarding this incident until approximately three and a half years later when the instant petition for dismissal was issued. Siebelts was annoyed when she learned that the student and her mother had accused her of wrongdoing in connection with the January 22, 1985, kicking incident. On February 19, 1985, she expressed her annoyance in front of her fifth grade class and in their presence threatened to take legal action against those students and parents who had made libelous or slanderous statements about her or had otherwise verbally abused her. She told the students that they and their parents would be subpoenaed to court and if they did not appear they would be incarcerated. The principal of the school was informed of these remarks shortly after they were made, but it was not until the instant petition for dismissal was issued on August 22, 1988, that Siebelts was first formally charged with having made the remarks. Before coming to work on January 28 1986, Siebelts took a codeine pain medication that her physician had prescribed. When classes started that morning she was still under the influence of the medication. She was listless and drowsy. Her speech was slurred and she appeared incoherent at times. She also had difficulty maintaining her balance when she walked. Because Siebelts had been taking this medication "on and off" since 1979, she had been aware of these potential side effects of the medication when ingesting it on this particular occasion. A teacher's aide in Siebelts' classroom concerned about Siebelts' condition summoned the principal, Hubert Lee, to the classroom. When he arrived, Lee observed Siebelts seated at her desk. She was just staring and seemed "to be almost falling asleep." The students were out of control. They were laughing and making fun of Siebelts. After questioning Siebelts and receiving an answer that was not at all responsive to the question he had asked, Lee instructed Siebelts to come to his office. Siebelts complied, displaying an unsteady gait as she walked to Lee's office. In Lee's office, Siebelts insisted that she was fine, but conceded that she was "on" prescribed pain medication. Throughout their conversation, Siebelts continued to slur her words and it was difficult for Lee to understand her. Pursuant to Lee's request, Dr. Lorette David, Lee's immediate supervisor, and Nat Stokes, a School Board investigator, came to Lee's office to observe and assess Siebelts' condition. A determination was thereafter made that Siebelts was not capable of performing her instructional duties that day, which was an accurate assessment. She therefore was sent home for the day. Because of her impaired condition, rather than driving herself home, she was driven to her residence by Dr. David. Although she believed that she was not suffering from any impairment, Siebelts did not protest the decision to relieve her of her duties because she felt that any such protest would have fallen on deaf ears. Following this incident, Siebelts was issued a letter of reprimand by Lee. She also was referred to the School Board's Employee Assistance Program because it was felt that she might have a substance abuse problem. Siebelts agreed to participate in the program and received counselling. At no time subsequent to January 28, 1986, did Siebelts report to work under the influence of her pain medication or any other drug. During the 1987-1988 school year, Siebelts and two other Chapter I teachers, Rosa Moses and Mary Cooper, occupied space in Charles Drew's Chapter I reading and math laboratory. Their classrooms were located in the same large room and were separated by makeshift partitions. Siebelts is white. Moses and Cooper, as well as the aides who were assigned to the laboratory during that school year, are black. In October, 1987, Moses complained to Principal Lee that Siebelts was not teaching her students, but rather was constantly engaging in loud verbal confrontations with them that disrupted Moses' lessons. Lee had received similar complaints about Siebelts from others. He therefore asked Moses to advise him in writing of any future classroom misconduct on Siebelts' part. Siebelts continued to engage in conduct in her classroom which Moses deemed inappropriate and disruptive. On November 4, 1987, for the last five minutes of one of her classes, she loudly exchanged verbal barbs with her students. Her yelling made it difficult for Moses and Cooper to teach their lessons. On November 5, 1987, throughout an entire 45-minute class period, Siebelts was embroiled in a verbal battle with a student during which she made derogatory remarks about the student's size. She called the student "fat" and told her that she "shake[d] like jelly." The student, in turn, called Siebelts "fruity" and likened her to a "scarecrow." On that same day during a later class period, Siebelts took a student by the arm and, following a tussle with the student, placed him in his seat. Thereafter, she made belittling remarks to the other students in the class. She said that they were "stupid" and "belonged in a freak show." She also referred to them as "imbeciles." Siebelts further told her students that their "mothers eat dog food." On November 25, 1987, Siebelts commented to the students in one of her classes that they would be able to move around the classroom with greater ease if they were not so fat. As she had been asked to do, Moses provided Lee with a written account of these November, 1987, encounters between Siebelts and her students, but Lee did not take any immediate action to initiate disciplinary action against Siebelts. Although she did not so indicate in her report, Moses believed that the unflattering remarks that Siebelts had made to the students on these occasions constituted racial slurs inasmuch as all of the students to whom the remarks had been addressed were black and in addressing these remarks to the students as a group she had referred to them as "you people." Moses thought that "you people" had meant black people in general, whereas Siebelts had intended the phrase to refer to just the students in the classroom. At no time during any of these reported incidents did Siebelts make specific reference to the students' race, nor did she specifically attack black people in general. The target of her demeaning and insulting remarks were those of her students whose unruly and disrespectful behavior she was unable to control. Her efforts to maintain discipline and promote learning in the classroom had failed. She had become frustrated with the situation and verbally lashed out at her students. Unfortunately, these outbursts only served to further reduce her effectiveness as a teacher. On March 1, 1988, Siebelts was involved in an incident similar to the one which had occurred more than three years earlier on January 22, 1985. As on the prior occasion, Siebelts was sitting at a classroom table with her students. Her legs were crossed. When she repositioned her legs, her foot inadvertently came in contact with the top of the head of a student who was crawling under the table to retrieve a pencil the student had dropped. The student had been told by Siebelts not to go under the table but had disobeyed the instruction. She had been under the table for approximately a minute and a half before being struck by Siebelts foot. The blow to the student's head was a light one and produced only a slight bump. Nonetheless, after getting up from under the table, the student, a brash fourth grader who had had confrontations with Siebelts in the past, threatened to physically retaliate against Siebelts. Siebelts did not say anything to the student and the class ended without the student following through on her threat. Following this incident, Siebelts telephoned the student's mother at home to discuss the student's classroom behavior. The call was placed sometime before 9:00 p.m. The conversation between Siebelts and the mother soon degenerated into an argument. They terminated the discussion without settling their differences. Lee subsequently met with the mother. He suggested that a meeting with Siebelts at the school be arranged. The mother indicated to Lee that she would not attend such a meeting unless school security was present. She explained that she was so angry at Siebelts that she was afraid that she would lose her composure and physically attack Siebelts if they were in the same room together.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission issue a final order suspending Karen Siebelts' teaching certificate for two years and that the School Board of Broward County issue a final order suspending Siebelts until the reinstatement of her teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-4687 AND 89-0189 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Commisioner of Education's Proposed Findings of Fact Accepted and incorporated in substance in the Findings of Fact portion of this Recommended Order. Rejected as contrary to the greater weight of the evidence. Rejected as beyond the scope of the charges. Siebelts was not charged with having made threatening remarks the day after the January 22, 1985, kicking incident. These threats were allegedly made, according to the charging documents, on February 19, 1985. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Insofar as it asserts that Siebelts engaged in name-calling on dates other than those specfied in the petition for dismissal and amended administrative complaint otherwise, it is accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Furthermore, the witness whose testimony is recited in this proposed finding later clarified her testimony and conceded that Siebelts did not use the precise words quoted in this proposed finding. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as not supported by the greater weight of the evidence to the extent that it suggests that Siebelts made "racial comments" on the dates specified in the petition for dismissal and amended administrative complaint. Insofar as it states that such comments were made on other occasions, it is rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. According to the petition for dismissal and amended administrative complaint, Siebelts threatened her students with legal action on February 19, 1985. This proposed finding, however, relates to alleged threats of legal action made by Siebelts during the 1987-1988 school year. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as unnecessary. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as irrelevant and immaterial. Rejected as irrelevant and immaterial. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Siebelts' Proposed Findings of Fact First unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance. Second unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Rejected as irrelevant and immaterial; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and :incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; ninth sentence: Accepted and incorporated in substance. Third unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as unnecessary; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance. Fourth unnumbered paragraph: Rejected as more in the nature of a statement of opposing parties' position than a finding of fact; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as subordinate; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance. Fifth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as subordinate; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance; tenth sentence: Accepted and incorporated in substance; eleventh sentence: Accepted and incorporated in substance; twelfth sentence: Accepted and incorporated in substance. Sixth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: rejected as a summary of testimony rather than a finding of fact based on such testimony. Seventh unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony (The exculpatory testimony of Siebelts which is summarized in the first three sentences of this paragraph has not been credited because it is contrary to the more credible testimony of other witnesses) fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Eighth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as subordinate; fourth sentence: Accepted and incorporated in substance; fifth sentence: Rejected as subordinate; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as subordinate; ninth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Ninth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Tenth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Accepted and incorporated in substance; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Superintendent of School's Proposed Findings of Fact Accepted and incorporated in substance, except for the fourth sentence, which has been rejected as contrary to the greater weight of the evidence. Accepted and incorporated in substance except to the extent that it asserts that Siebelts "advised the students that they and their parents would be placed in jail because of the lies and the slander." The preponderance of the evidence reveals that she actually told them that they and their parents would be incarcerated if they did not appear in court when summoned. First sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as subordinate. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected as more in the nature of argument concerning relatively insignificant matters than findings of fact addressing necessary and vital issues. Accepted and incorporated in substance, except to the extent that it suggests that Siebelts had alcohol on her breath. Any such suggestion has been rejected because it is contrary to the testimony of Investigator Stokes. Stokes, who has been employed by the School Board as an investigator for the past 20 years, testified that he was standing one or two feet away from Siebelts and did not detect the odor of alcohol on her breath. In view of his experience regarding the investigation of these matters, his testimony has been credited. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. To the extent that this proposed finding states that Siebelts made inappropriate remarks regarding the students' clothing or other matters on dates other than those specified in the petition for dismissal and amended administrative complaint, it has been rejected as outside the scope of the charges. Insofar as it asserts that Siebelts made derogatory remarks about black people in general on the dates specified in these charging documents, it has been rejected as contrary to the greater weight of the evidence. To the extent that this proposed finding indicates that Siebelts otherwise insulted the students in her class on the dates specified in the charging documents, it has been accepted and incorporated in substance. Rejected as beyond the scope of the charges. The "disparaging remarks" which are the subject of this proposed finding were purportedly made during the 1984-1985 school year. The "disparaging remarks" referenced in the petition for dismissal and amended administrative complaint were allegedly made, according to these charging documents, during the 1987-1988 school year, more specifically, on November 4, 5, and 25, 1987. Rejected as beyond the scope of the charges. The "critical" remarks referred to in this proposed finding were allegedly made prior to the 1987-1988 school year. First sentence: Rejected as irrelevant and immaterial to the extent it references reactions to "disparaging" and "critical" remarks that were purportedly made prior to the 1987-1988 school year. Otherwise, it has been accepted and incorporated in substance; second sentence: Rejected as a summary of the testimony of Siebelts' former students and colleagues rather than a finding of fact based on such testimony. First sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance, except to the extent that it reflects that Moses actively monitored Siebelts classroom conduct "through December of 1987." The preponderance of the evidence establishes that such active monitoring actually ceased November 25, 1987; third sentence: Accepted and incorporated in substance, except to the extent it indicates that Noses heard Siebelts tell her students that they "were dirty and needed baths." This comment was purportedly overheard, not by Moses, but by Margaret Cameron, a teacher's aide who had left Charles Drew prior to the commencement of the 1987- 1988 school year; fourth and fifth sentences: Rejected as beyond the scope of the charges. These proposed findings are based on Cameron's testimony regarding offensive comments she had allegedly overheard while an aide in Siebelts' classroom. These pre-1987-1988 school year comments, however, are not mentioned in either the petition for dismissal or the amended administrative complaint. First sentence: As this proposed finding correctly points out, Siebelts' insulting comments only served to heighten the students' hostility and anger toward her. There is no persuasive competent substantial evidence, though, to support the further finding that these comments "resulted in several physical altercations between the students;" second sentence: Rejected inasmuch as there no persuasive competent substantial evidence that there was any "heated verbal exchange" on November 5, 1987, between Siebelts and the student which preceded their "altercation." The preponderance of the evidence establishes that the verbal battle with her students occurred immediately after this incident; third sentence: Rejected as contrary to the greater weight of the evidence. Although she may used physical force during her encounter with this student, it is unlikely that she actually "tossed" him into his seat. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected inasmuch as there is no persuasive competent substantial evidence to support a finding that Siebelts telephoned the student's mother as a result of the incident near the air-conditioner. The preponderance of the evidence does establish that Siebelts did telephone the mother on a subsequent occasion, but there is no indication that Siebelts threatened the mother or otherwise acted inappropriately during this telephone conversation. Although the mother asked to have security personnel present during a parent-teacher conference with Siebelts, the preponderance of the evidence reveals that this request was not the product of any threats that Siebelts had made against the mother. First sentence: Rejected as not supported by the greater weight of the evidence. Siebelts' testimony that the contact was unintentional is plausible and has been credited. The circumstantial evidence presented by Petitioners (including evidence of prior confrontations between Siebelts and the student) raises some questions regarding the veracity of Siebelts' testimony on this point, but such evidence is not sufficiently compelling to warrant the discrediting this testimony. Given her penchant for verbalizing to her students her thoughts about them, had Siebelts intended to kick the student as a disciplinary measure, she undoubtedly would have made this known to the student, rather than remain silent as she did; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance, except to the extent that it suggests that immediately after kicking the student, Siebelts had a "smirk on her face." To this limited extent, this proposed finding is not supported by any persuasive competent substantial evidence; fourth sentence: Accepted and incorporated in substance. First sentence: Rejected as not supported by any persuasive competent substantial evidence; second, third, fourth and fifth sentences: Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. To the extent that this proposed finding suggests that Siebelts' behavior at school on January 28, 1986, and her verbal attack of her students on November 4, 5, and 25, 198', reduced her effectiveness as a teacher, it has been accepted and incorporated in substance. Insofar as it indicates that other conduct in which she engaged resulted in a reduction or loss of effectiveness, it has been rejected as either contrary to the greater weight of the evidence (other conduct specified in charging documents) or beyond the scope of the charges (other conduct not specified in charging documents). COPIES FURNISHED: Charles Whitelock, Esquire 1311 S.E. 2nd Avenue Fort Lauderdale, Florida 33316 Edward J. Marko, Esquire Suite 322, Bayview Building 4,1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Thomas P. Johnson, Ed.D. Associate Superintendent Human Resources Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Craig R. Wilson, Esquire Suite 315 1201 U.S. Highway One North Palm Beach, Florida 33408-3581 Karen B. Wilde Robert F. McRee, Esquire Executive Director Post Office Box 75638 Education Practices Commission Tampa, Florida 33675-0638 125 Knott Building Tallahassee, Florida 32399
The Issue The issue in this case is whether the Application to Participate in Educational Scholarship Programs submitted by the Petitioner, Hodge Pavilion Stem Academy (6402), should be approved.
Findings Of Fact The John M. McKay Scholarships for Students with Disabilities Program (McKay) and the Florida Tax Credit Scholarship Program (FTC) provide state funds to pay private school tuition to qualified students. Private schools must apply to, and obtain approval from, the Respondent to participate in the scholarship programs. Approval of an application authorizes the private school to receive the scholarship funds. Individual scholarship checks are made payable to the parent of each qualified student and the name of the student’s private school. The parent endorses the check and provides it to the school. In the spring of 2013, Mr. Jenkins and an associate, Ayesha Hackman, founded a private school identified as the “Harmon-Hodge STEM School.” The Harmon-Hodge STEM School submitted an application to participate in the McKay and FTC programs. The Respondent approved the application. Not long after the Harmon-Hodge STEM School was founded, Mr. Jenkins and Ms. Hackman began to disagree about the direction of the school. When Ms. Hackman sought to obtain control over the school, Mr. Jenkins announced to her that he was severing his ties with the school. At Ms. Hackman’s request, Mr. Jenkins agreed to continue his employment with the school. During the summer of 2013, Mr. Jenkins and an associate, Tami Robinson, began to organize another private school, the Petitioner in this proceeding. By August of 2013, Ms. Hackman consolidated her control of the Harmon-Hodge STEM School. She amended the corporate documents to designate herself as the chief executive officer, to identify Mr. Jenkins as the school principal, and to delete the hyphen from the school name (now identified as the “Harmon Hodge STEM School.”) Students began attending the Harmon Hodge STEM School in August of 2013. One month later, the school started accepting scholarship checks payable to the “Harmon-Hodge STEM School.” Mr. Jenkins came into possession of an FTC scholarship check for $1,183.40, made payable to the parent of an enrolled student and to the Harmon-Hodge STEM School. In early October of 2013, Mr. Jenkins opened an account at a Wells Fargo bank in the name of Harmon Hodge STEM School and deposited the check into the account. Mr. Jenkins designated only himself as the authorized signatory on the account and did not advise Ms. Hackman that he had opened the account. Very shortly after the account was opened, Wells Fargo notified Mr. Jenkins that the account was being closed. At the hearing, Mr. Jenkins testified that the account closure was related to a previous incident of identity theft involving his personal bank account. Wells Fargo returned the deposited funds to Mr. Jenkins in the form of cash. At the hearing, Mr. Jenkins testified that he used some of the cash to pay Harmon Hodge STEM School vendors who, he said, had not been paid by the school. No documentation was offered to support the testimony. Mr. Jenkins testified that the vendors did not present bills for services, and no receipts for payment were obtained from the vendors. Mr. Jenkins’ testimony is not credible. Mr. Jenkins testified that he retained the remainder of the cash because he believed it was owed to him. There was no credible evidence that the Harmon Hodge STEM School owed Mr. Jenkins any funds or that he was entitled or authorized to retain any state scholarship funds for his personal use. After the Wells Fargo account was closed, Mr. Jenkins came into possession of two FTC scholarship checks totaling $2,400 that were payable to the parents of enrolled students and to the Harmon-Hodge STEM School. Mr. Jenkins then opened a bank account at Bank of America in October of 2013, again in the name of Harmon Hodge STEM School. Mr. Jenkins again designated only himself as the authorized signatory on the account and did not advise Ms. Hackman of the account. As was the case with the Wells Fargo account, Bank of America notified Mr. Jenkins shortly after the account was opened that the account was being closed. Mr. Jenkins testified that this account closure was also related to a previous incident of identity theft involving his personal bank account. Bank of America returned the deposited funds to Mr. Jenkins in the form of a bank check made payable to Harmon Hodge STEM School. Using the Bank of America bank check, Mr. Jenkins opened a third account, still in October of 2013, in the name of Harmon Hodge STEM School, this time at Chase Bank. Mr. Jenkins again designated only himself as the authorized signatory on the account and did not advise Ms. Hackman of the account. Mr. Jenkins used a debit card issued on the Chase account to withdraw cash from the account and to spend the funds in the account. Mr. Jenkins again testified that he used some of the cash withdrawn from the Chase account to pay Harmon Hodge STEM School vendors. No documentation was offered to support the testimony. Mr. Jenkins’ testimony is not credible. Mr. Jenkins testified that he retained the remaining Chase deposit because he believed it was owed to him. There was no credible evidence that the Harmon Hodge STEM School owed Mr. Jenkins any funds or that he was entitled or authorized to retain any state scholarship funds for his personal use. Towards the end of October, Ms. Hackman became aware of the unauthorized banking activity and filed a report with local law enforcement. Criminal charges were filed against Mr. Jenkins related to some of the banking activities referenced herein. The charges were pending at the time of the hearing. On October 30, 2013, Mr. Jenkins submitted an application on behalf of the Petitioner seeking approval to participate in the McKay and FTC scholarship programs. By letter dated January 8, 2014, the Respondent, aware of the banking activities referenced herein, notified Mr. Jenkins that the application was denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education enter a final order denying the Petitioner's Application to Participate in Educational Scholarship Programs. DONE AND ENTERED this 17th day of June, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 17th day of June, 2014.
Findings Of Fact Shane Joseph Johnson is a child under commitment to the Department of Health and Rehabilitative Services who was granted the privilege of transferring to a community placement under the supervision and authority of the Division of Youth Services. The transfer was the subject of a furlough agreement entered into by Johnson with HRS. On August 30, 1983, Shane Johnson signed a furlough agreement which required him to attend the Starting Place and to obey his parents and counselor. On February 21, 1984, Shane Johnson was terminated from the Starting Place for violation of the rules. On March 7, 1984, Shane Johnson entered into another furlough agreement which required him to enroll in school full-time at Hollywood Hills High School and to engage in part-time employment at Ferrara's Restaurant. The furlough agreement additionally required that Shane Johnson obey all laws and comply with other general conditions of the furlough. On March 22, 1984, Shame Johnson was fired from his job at Ferrara's Restaurant. On April 2, 1984, Shane Johnson was suspended from Hollywood Hills High School because he was caught in possession of marijuana on the school grounds. According to Carol Connor, Shane Johnson's human services counselor, Shane Johnson admitted that he was using marijuana while at the Starting Place and admitted that he had a marijuana joint at school when he was suspended. Additionally, Shane Johnson acknowledged that he had lost his job. Based on these violations, Ms. Conner recommended that Shane Johnson's furlough be revoked. A hearing was held by the Department of Health and Rehabilitative Services on the recommendation of revocation and an order of Revocation was entered on April 11, 1984. It is this order of Revocation which is appealed herein.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the revocation of Shane Joseph Johnson's furlough be affirmed. DONE and ENTERED this 5th day of July, 1984, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1984. COPIES FURNISHED: Harold Braynon, Esquire District X Legal Counsel 201 W. Broward Boulevard Ft. Lauderdale, Florida 33301-1185 David L. Kreider 9015 Harrison Street Hollywood, Florida 33020 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact This case was presented for consideration based upon the Administrative Complaint and subsequent amendment presented by Ralph D. Turlington, as Commissioner of Education, State of Florida, against Michael H. Deis, holder of teaching certificate No. 356436, Rank II, post graduate valid through June 30, 1987. The accusations set forth in the Administrative Complaint and its amendment are as indicated in the Issues statement to this Recommended Order. The remaining facts found result from a formal Subsection 120.57(1), Florida Statutes, administrative hearing held upon request of the Respondent. The Respondent was born March 7, 1945, and is married and has three children, ages one and one-half, four, and eight. The Respondent has been married since June 17, 1972. Respondent has a Bachelor of Science degree, a Masters Degree in Business Administration and fifty-five hours' credit toward a Doctorate of Philosophy in Education. The Respondent has been employed with the Collier County School System in the State of Florida since February, 1974. Prior to that time, the Respondent had been employed in management for General Motors Corporation and with General Development Corporation for a period of three years in Miami, Florida. After becoming an employee of the Collier County School System, the Respondent taught math in the sixth through eighth grades at East Naples, Florida, Middle School. The range of ages for those students was twelve to fourteen years old. Beginning in the January term of 1975, the Respondent taught adult education in the Collier County School System. In 1976, Respondent moved to Everglades High School where he coached boys' basketball, varsity basketball and girls' basketball. His academic responsibility at that school included the teaching of basic math and other subjects to boys and girls whose ages ranged from fourteen to twenty. The Respondent then moved to Barron Collier High School in September, 1978, as a daytime adult education instructor. The age range for those students was from sixteen to eighty-three. In the school years 1978-79 and 1979-80, the Respondent coached girls' softball, girls' junior varsity basketball and assisted with the track program for girls. The ages of the girls Respondent coached or assisted were fourteen through eighteen. During the school year 1978-79, the Respondent met one Lori Tomaselli, a member of the girls' basketball team. This initial introduction was followed by correspondence of August 1979, addressed to the Respondent from Lori Tomaselli in which she made comment about her summer vacation and related that she had "missed" the basketball program. At that time Tomaselli was fifteen years old. The letter of August, 1979, was followed by an act on the part of Tomaselli on December 20, 1979, in which she walked up to the Respondent, turned him around and gave him a kiss. Deis' reaction was one of sunrise, followed by a comment to the effect that she was his favorite basketball player. She replied that she had cared for him since the first basketball meeting in October, 1978, when she was fourteen years of age. On December 30, 1979, Tomaselli wrote Deis while she was vacationing in the State of New York. The Respondent did not write in return or contact her. Respondent next saw Tomaselli on January 5, 1980, after she had returned from her vacation and was a participant in a basketball game which the Respondent coached. From the time of this basketball game forward through the basketball season, the Respondent would sit next to Tomaselli on the bus used to transport the basketball team. Approximately two weeks beyond January 5, 1980, the Respondent selected Tomaselli as his classroom assistant or aide. Tomaselli served in this capacity for a period of approximately two months, one hour each day. In the initial part of 1980, the Respondent would also assist Tomaselli with her math and science lessons. Beginning in February 1980, Tomaselli kept the statistics for the girls' softball team which was coached by the Respondent. At the time, Tomaselli was also participating on the girls' track team. The relationship between the Respondent and Tomaselli escalated and on March 7, 1980, Tomaselli kissed the Respondent and gave him a hug. The occasion for this display was that of the Respondent's birthday. Also in the month of March, the Respondent indicated that he began to feel an "interest" in Tomaselli. Prior to the spring school break for 1980, the Respondent paid Tomaselli $50.00 to assist in painting his home. During that same vacation, the Respondent met Tomaselli at a local beach, he coincidence. At one of the track events at which the Respondent was assisting and the young woman Tomaselli was participating, Tomaselli hugged Deis in the presence of her parents. During the time period of the track season, the Respondent drove Tomaselli to her home after school on three occasions and explained his reason for doing so as being one, that a girl friend of Tomaselli's car had broken down; two, that her parents would not pick her up and three, that Tomaselli had asked him for a ride. These rides took place before April 14, 1980. On Sunday, April 13, 1980, the parents of Lori Tomaselli had a discussion with Deis and through this conversation expressed the desire that Deis cease his relationship with their daughter to the extent of not associating with her. Among his responses, the Respondent indicated to the parents that if their daughter were eighteen years old and single, he would ask her out. On that same date, the Principal at Barron Collier High School called the Respondent to inform Deis that the Tomasellis had complained to the Principal. Deis then indicated that he would resign his coaching position effective the next morning. On Monday, April 14, 1980, the Respondent met with the Principal and a Mr. Munz, Assistant Superintendent of the Collier County School System, and as a result of that conference, was given a memorandum which instructed him to have no further contact with Lori Tomaselli. At that meeting, Respondent explained to the school officials that he had a strong emotional attachment for Lori Tomaselli. On the next morning, April 15, 1980, Tomaselli went to Deis' classroom and was shown a copy of the aforementioned memorandum and Deis told her "they would have to cool it." After Tomaselli left his classroom, the Respondent immediately went to see the Principal and told the Principal that he had shown the memorandum prohibiting contact to Tomaselli. As a result of this conversation with the Principal, the Respondent received a second memorandum from Assistant Superintendent Munz which reminded Deis that he was under direct order not to talk to Tomaselli and telling him that the conversation which Deis had had with Tomaselli about the meeting of April 14, 1980, was, by its terms, a violation of the Assistant Superintendent's instructions. The Respondent became angry about the second memorandum in that he thought it was unnecessary. He felt that he was being harassed. As a result of this attitude Respondent began to write to Tomaselli, and she in turn would reply. This letter writing activity continued on a daily basis. In some of these letters, the Respondent instructed Lori Tomaselli, when questioned by the Principal, "to keep cool" and further instructed Tomaselli that when she met with her mental health counselor that she should not indicate that she had been with the Respondent. The letters also indicated to Lori Tomaselli that the Respondent intended to divorce his wife and marry Tomaselli. In addition to the letter writing, Tomaselli began to call the Respondent as much as twice a day, using the cafeteria phone in the school to speak to the Respondent. In May, 1980, the Respondent accidentally saw Tomaselli at a local skating rink while there with his daughter. On May 14, 1980, Deis met with the School Superintendent, Dr. Thomas Richie, and through that conversation agreed to take personal leave. This leave was taken and the Respondent sought psychiatric counseling from Dr. Frank Dennis at the behest of school officials. The leave of absence was from the period May 15, 1980, through May 29, 1980. Dr. Dennis' fees were paid by the Collier County School Board. (During the month of April, 1980, the Respondent had had another meeting with Dr. Richie in which he expressed the opinion to Dr. Richie that he realized his relationship with Tomaselli had become too personal and that he had failed to take steps to correct the situation, and further that he was personally responsible for continuing the development of this relationship.) On May 16, 1980, Tomaselli mailed a letter to the Respondent expressing her affection for him. Around May 18, 1980, Tomaselli ran away from her home and a friend of hers took her to a location where the Respondent, acting as a real estate salesman, was showing a model home. At that time, the Respondent did not want Tomaselli to come into that location and resisted this encounter. The follow-up to the May 18, 1980, meeting was a series of calls from Tomaselli to the Respondent at a residence of a friend of the Respondent's, in view of the fact that Deis had moved from his home. On May 30, 1980, Respondent was called by Tomaselli to ask him to pick her up. The Respondent agreed and after picking up Tomaselli and being afraid of being detected with Tomaselli in his automobile, a circumstance developed in which Tomaselli exited his van and was slightly injured. The Respondent left the area where Tomaselli had jumped from the van and he then removed her property from his automobile. Sometime during the 1979-80 school year, the Respondent had returned Tomaselli's affection by kissing her and expressing his affection for her to the extent of telling Lori Tomaselli that someday she would be Lori Deis, meaning that she would be the Respondent's wife. On July 29, 1980, the Respondent resigned his teaching position in the Collier County School System. After his resignation, there have continued to be letters and telephone communications between tie Respondent and Lori Tomaselli. Those communications were as recent as March 24, 1981, at which time a letter was received by the Respondent from Lori Tomaselli. The relationship between the Respondent and Lori Tomaselli took place at a time when the Respondent was having marital problems and Lori Tomaselli was having difficulty with her parents. Those circumstances continued to exist at the time of the hearing. Nonetheless, the relationship was contrary to the expressed prohibition by the School Administration. The existence of such a relationship was such that it reduced the effectiveness of Deis as a teacher in the Collier County School System and did not provide a proper example for the students, nor allow the Respondent to practice his profession at the highest ethical standards.
