Findings Of Fact Petitioner has been employed as a teacher by Respondent for thirteen years and has taught at the Prosperity Elementary School for the past ten years. She holds a Rank II teaching certificate based on her master's degree. Mr. Johnny Collins, the Superintendent of Schools, recommended that Petitioner be placed in the position of teacher-principal at Prosperity Elementary School for the 1981-82 school year. This recommendation was initially made in May or June, 1981. Respondent School Board rejected the Saunders nomination at its July 20, 1981, meeting. The reasons for the rejection as stated in the minutes are as follows: Mrs. Saunders failure to meet the qualifications of Chapter 231, Florida Statutes; 2) Failure to satisfy the job description as set forth in the approved job description for the Holmes County School Districts, specifically that principals be courteous, diplomatic and cooperative; that principals have leadership qualities; and that principals must be positive but not autocratic in solving problems; 3) failure to cooperate with past principals at Prosperity Elementary School and contributing to the disharmony amongst the personnel; 4) statements of Mrs. Flynn Jones, Tommy Hudson, Gerald Commander and Posie Vaughn. The incumbent Superintendent of Schools and his predecessor, along with five of Mrs. Saunders' previous direct supervisors, testified as to her qualifications. This testimony established that she is a competent teacher and has the necessary leadership ability to serve as a school principal. Her teacher evaluations have, without exception, been satisfactory or above in all areas. Petitioner's supervisor in 1972, Mrs. Flynn Jones, considered her rude and difficult to work with. Mrs. Saunders and Mrs. Jones had been on good terms until Mrs. Jones was appointed interim principal. Saunders, who apparently resented Jones' appointment, thereafter withdrew from her and responded only to formal instructions. Mr. Posie Vaughn has filled the Prosperity Elementary School teacher- principal position since 1978. He and Petitioner were competing applicants for the current school term principalship. Superintendent of Schools Collins, who took office in January, 1981, did not recommend Vaughn, but selected Saunders instead. After the School Board rejected Saunders, and Collins refused to nominate Vaughn, the School Board reappointed him. Mr. Vaughn has experienced the same personal hostility and lack of willing support which Mrs. Jones encountered. Mrs. Saunders, who resented Mr. Vaughn's appointment over her, once contacted the Superintendent of Schools to complain of teacher ratings (other than her own). On another occasion she criticized Vaughn's friendship with the piano teacher to School Board members. Mr. Vaughn testified to his belief that Mrs. Saunders is a troublemaker and not qualified to be principal. However, the ratings he filed on Saunders do not reflect these negative opinions. Further, Vaughn conceded that Saunders is a competent teacher and possesses the ability to lead. Mr. Dan Padgett, principal at Prosperity Elementary School from 1973 to 1976, found Mrs. Saunders to be a capable teacher and a courteous, cooperative employee. This favorable testimony was supported by several co-workers and parents of her pupils. Mrs. Margaret Woodall testified to her dissatisfaction with Mrs. Saunders' treatment of her child. However, her complaint as to Mrs. Saunders' disciplining methods received proper attention and Saunders made the requested change in her approach to the Woodall child.
Recommendation From the foregoing, It is RECOMMENDED that the School Board of Holmes County accept the recommendation of the Superintendent of Schools to place Juanita Saunders in the position of teacher-principal, Prosperity Elementary School. DONE AND ENTERED this 6th day of October, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1981.
The Issue The issue presented in this cause is whether Respondent should be suspended from her employment for twenty days for conduct unbecoming a school board employee, misconduct in office, and gross insubordination.
Findings Of Fact Respondent is a veteran teacher of approximately 34 years. She has been employed as a teacher by the School Board of Dade County, Florida, for 28 years pursuant to a continuing contract. In 1984, she was voted "Teacher of the Year" at the school where she then taught. In October, 1984, she was reassigned to teach at Coconut Grove Elementary School pursuant to a hardship transfer to facilitate her caring for her ill daughter. She continued to teach at Coconut Grove Elementary School through the time of the final hearing in this cause. She is a dedicated and competent teacher and has consistently received satisfactory ratings on her annual evaluations. She tutors children without charge in her home after school hours. She loves children and loves teaching them. She has a reputation for utilizing effective disciplinary techniques. Joe Carbia is the principal at Coconut Grove Elementary School and was the principal at the time that Respondent obtained her hardship transfer to that school. Since her transfer, Respondent and Carbia have disagreed with each other a number of times. It is apparent that they do not respect each other and have not been supportive of each other since shortly after her transfer to Coconut Grove Elementary School. Between October, 1984, and the 1988-89 school year, Respondent also had disagreements with other teachers and temporarily with one parent of a student. Each time someone complained, Carbia decided that Respondent was wrong. No competent evidence was offered by Petitioner as to what occurred on any of these occasions, and Carbia's testimony that he held conferences with Respondent and issued directives to her is not supported by documentary evidence. Rather, Respondent's acceptable evaluations each year, the lack of documentary evidence, and Petitioner's reliance on hearsay evidence indicate that none of the disagreements, whatever they were, were considered major. During December of 1988, several holiday activities were conducted involving students from Coconut Grove Elementary School. Respondent requested permission from Carbia for her class to put on a holiday play, and permission was given to her. Carbia did not attend the play that was put on by Respondent's students, and none of the other teachers at the school came to see their performance. By early February, 1989, Respondent had visited Carbia's supervisor and had requested him to write a letter of apology to her students for not attending their holiday play. Her students later wrote letters to several persons in the upper level of administration for the Dade County Public Schools, including the Superintendent, asking why no one had attended their play. In mid-February, Carbia visited Respondent's classroom, and one of the students asked him why he had not come to their play. He explained that he had another commitment that evening. Although Carbia concluded that Respondent had instigated her student's question and their letter writing, no evidence was presented to show that it was Respondent's idea and not the idea of her students. The overall evidence clearly shows that Respondent stood up for her students when she felt they had been treated unfairly. No one answered or acknowledged the letters from the children. No more letters were written after Respondent was ordered to stop them. By the end of the 1988-89 school year, Respondent had voiced her complaints about Carbia's methods and her perception of his mistreatment of her and of black teachers and students at Coconut Grove Elementary School to several other teachers and to the P.T.A. President. She had also voiced her complaints about Carbia at a union meeting, a forum believed to be confidential. On July 3, 1989, Carbia forwarded a collection of letters from people reporting to him the things that Respondent was saying about him to the Office of Professional Standards of the Dade County Public Schools along with his request that that office direct Respondent to submit to a medical fitness determination. The letters, submitted to him in June, were from the counselor at the school, one parent, the P.T.A. president, and the other sixth- grade teacher. None of those persons testified at the final hearing in this cause, and those documents remain hearsay. As a result of Carbia's request, Joyce Annunziata, supervisor in the Office of Professional Standards, conducted a conference for the record with Respondent on August 11, 1989, to address Respondent's fitness to return to classroom duties, interpersonal relations with site personnel and community members, and Respondent's future employment status with the Dade County Public Schools. In that conference, Respondent was advised that future incidents of unprofessional demeanor with staff or parents would be considered insubordination. Carbia's request that Respondent be directed to submit to a medical fitness determination was denied. During the 1989-90 school year, Respondent taught the sixth grade. In October, 1989, Carbia assigned the responsibility for the school's United Way Campaign to teacher Deborah Piha, a fifth-grade teacher. The prior year Respondent had been in charge of the United Way Campaign and believed that the United Way Campaign was a sixth-grade project. After Respondent learned that Piha would be in charge, she encountered Piha on her way to the cafeteria. Respondent complained to Piha that Carbia had taken the responsibility away from Respondent and her sixth- grade students and voiced her anger toward Carbia for doing so. Although Piha understood that Respondent was not angry at her, Piha does not like "confrontations" and did not like the fact that Respondent "invaded her space." Piha told Carbia what Respondent had said about him. Carbia requested Piha to write a report about Respondent's conduct, and she did so. Word that Piha had written a negative report regarding Respondent spread quickly. A few moments after Piha left Carbia's office, she encountered Respondent who already had heard about the letter. Piha told Respondent that she was very sorry that she had written the letter and had not meant to hurt Respondent. Piha was clearly upset and told Respondent and the teacher who was with Respondent, "It's my job." Piha asked Respondent for help with the United Way campaign, and Respondent agreed. She offered Piha her materials from the prior year and offered to assist her in any way that she could. Although Carbia asked Piha subsequently to write a second letter, Piha declined. She also later declined Respondent's offers of assistance on the United Way campaign and would not use the materials that Respondent gave her even though she had asked Respondent to assist her. Patricia Perez-Benitoa is a beginning teacher. The 1989-90 school year was her second year of teaching. As an art teacher, she was shared by Coconut Grove Elementary School and another school. She came to Respondent's class on Tuesdays. On Tuesday, November 7, 1989, she told Respondent that she was experiencing difficulty in maintaining discipline. Respondent was aware of that fact since Respondent's students had been complaining to Respondent about Perez- Benitoa. Respondent's students did not like Perez-Benitoa since she called them stupid, immature, dumb, foolish, and silly. Although she followed the school's assertive discipline program, they believed she was unfair in administering discipline and clearly favored certain students. On November 7 when Perez-Benitoa told Respondent she was having difficulty, Respondent agreed to help her. They both stood at the front of the class, and Respondent explained to the students that she was supporting Perez- Benitoa 100%. Perez- Benitoa, with Respondent's support, explained to the class that student misbehavior would be dealt with in a consistent manner. Specifically, she made an "agreement" with Respondent and with the class that if a student misbehaved, then the student would suffer the consequences. Further, all students would be treated equally when they were punished. Torrey and Joseph were students in Respondent's class. After Torrey's mother complained to Perez-Benitoa about calling her son "stupid" during art class, Perez-Benitoa told Torrey during class that he was stupid and so was his mother. During the 1989-90 school year, Torrey was sent to the office by Perez- Benitoa and suspended from school six different times, although he was not sent to the office to be suspended by any other teacher during that school year. On Tuesday, November 14, 1989, Perez-Benitoa came to Respondent's classroom to teach art, and Respondent left the classroom since that would be her planning period. When she returned to the classroom at the end of the art class, she saw that Perez-Benitoa had put Torrey's name and Joseph's name on the board. Torrey was not in the classroom, but Joseph was. Perez-Benitoa told Respondent that she had sent Torrey to the office, and Respondent asked her why she had not sent Joseph to the office since both names were on the board and both names had the same number next to them representing the level of offenses. The two teachers conferred with each other quietly in the front of the classroom. Perez-Benitoa explained that she had sent Torrey to the office for using profanity in class. Respondent asked Perez-Benitoa why she had not sent Joseph to the office since his name was also on the board. Respondent reminded Perez-Benitoa that they had made an agreement witch the class that all students would be treated equally; she also told her that sending one student to the office and not the other was unfair. Respondent also told Perez-Benitoa that she had personally had problems with Joseph using profanity in the class and told Perez-Benitoa that Joseph liked to use the "F-ing" and the "B-ing" words. The students did not hear Respondent's conversation with Perez-Benitoa and did not hear Respondent's description of the profanity used by Joseph on previous occasions. However, a few of the students in the very front of the room only heard Respondent tell Perez-Benitoa it was not fair sending Torrey to the office, the same thing the students were telling Perez- Benitoa. The impression of the students was that Respondent was speaking nicely to Perez- Benitoa. As the two teachers conferred, the students told Respondent that Torrey had not done anything wrong to justify being sent to the office to be suspended. They told her that Joseph had used the word "ass," that Perez- Benitoa mistakenly thought Torrey had used the word, and that Joseph had told Perez-Benitoa that he had used the prohibited word and not Torrey. Joseph also told Respondent that he had used the profanity and that he had told Perez- Benitoa that he did it and not Torrey. The students remained unaware of the content of the conversation between Respondent and Perez-Benitoa. When Perez-Benitoa left the classroom, she took Joseph with her. Despite learning that Torrey had not used profanity in the classroom, Perez-Benitoa wrote a Student Case Management Referral Form regarding Torrey which resulted in Torrey being suspended from school. She did not write a Student Case Management Referral form regarding Joseph. She never told the administration that she had made a mistake regarding Torrey's misbehavior or Joseph's. When Perez-Benitoa went to the office, she told Carbia that Respondent had confronted her and scolded her in front of the class. She also told Carbia that Respondent had used profanity in front of her students. Carbia told her to write a letter regarding Respondent's unprofessional behavior. Perez- Benitoa did so, even though the statements she had made to Carbia were false. At the formal hearing in this cause, Perez-Benitoa admitted that the students did not hear Respondent use profanity, but that they "could have." She admitted that the students were not within hearing range and that there was no reason for the children to think there was any conflict between her and Respondent. She also explained that she was shocked that another teacher would share with her an experience that she had had with a student since other teachers' experiences were simply of no concern to her. She also admitted she has never heard Respondent use profanity other than when Respondent told her of Joseph's propensity for profanity. Carbia did not ask Respondent whether she had scolded Perez-Benitoa or whether she had used profanity in the classroom. He simply directed Essie Pace, the intern principal, to schedule a conference for the record with Respondent. No investigation was done regarding Perez-Benitoa's allegations between November 14 and November 19, the day before the conference for the record. At the conference for the record on November 20, 1989, Pace told Respondent that Respondent had been directed in a July, 1989, conference for the record not to approach another teacher in a negative or derogatory way and not to make derogatory statements to employees or students, and that Respondent had violated those directives. At the final hearing, no evidence was offered as to any July conference for the record. Either on November 20 or on November 21, 1989, in response to their questions, Respondent told her students that Perez-Benitoa had told the principal that Respondent used profanity to get her in trouble but that Respondent had not done so. Perez-Benitoa came to Respondent's classroom on November 21 to teach art. Respondent left the classroom when she arrived. Respondent's students were angry at Perez-Benitoa for lying to the principal about their teacher. They got out of their seats, walked around the classroom, refused to listen to her and were defiant. Perez-Benitoa contacted the office to ask someone to come and get her class under control for her. Principal Carbia was out of town, and intern principal Pace was not in the office at the moment. Perez-Benitoa took no additional steps to obtain assistance to bring her classroom under control. She simply sat down and allowed the disorder and disruption to continue, while she cried. The students' open defiance of her upset Perez-Benitoa. The students even told her that they were angry with her for lying about their teacher. When Respondent returned to her classroom, Perez-Benitoa left. She went directly to the principal's office. By the time she arrived there she was in hysterics and totally out of control. Pace had to enlist the help of another teacher to sit with Perez-Benitoa to try to calm her down, and Perez-Benitoa went home because she was unable to carry out her teaching duties for the remainder of the day due to her lack of control. Pace did not ask Respondent what had happened. She accepted Perez- Benitoa's accusations that Respondent had instigated her children to misbehave. Perez-Benitoa's statements to Pace that the children were throwing paper and erasers at her were not supported by any of the students although the students did admit later to Pace, subsequently to the School Board's investigator, and at the final hearing in this cause that they refused to listen to Perez-Benitoa and were walking around the classroom refusing to remain in their seats. Further, Perez-Benitoa's statements that she heard one student say to another, "Mrs. Bethel will be proud of us" have not been supported by any of the students during Pace's investigation, the School Board investigation, or during the final hearing in this cause. Rather, the students take the position that Respondent would never approve of them misbehaving. After speaking to Perez-Benitoa on November 21 and after calling her own supervisors, Pace went to Respondent's class and removed her from her classroom. When Pace went to Respondent's classroom, the children were not misbehaving. After Pace removed Respondent from her classroom, she interviewed several of the students one at a time. The students told her that Respondent does not use profanity, that Perez-Benitoa calls them names, that they were angry with Perez- Benitoa for lying to the principal regarding Respondent, and that Respondent did not instigate their disruptive and defiant behavior. Pace never asked the students why Respondent had told them about Perez-Benitoa accusing her of using profanity in the classroom. On February 6, 1990, a conference for the record was conducted with Respondent by the Office of Professional Standards to address the investigative report concerning improper conduct, Respondent's insubordination by not complying with a site directive, her lack of professional responsibility in dealing with staff and students, and her future employment status with the Dade County Public Schools. On March 7, 1990, the School Board of Dade County, Florida, suspended Respondent from her employment for twenty work days. Respondent enjoys a great deal of support from the community, from the parents of her students, and from her students. She is outspoken, which appears to make some people feel uncomfortable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Amended Notice of Specific Charges and in the Amendment to the Amended Notice of Specific Charges, dismissing the charges filed against her, reversing the determination that Respondent be suspended for twenty days, and awarding to Respondent back pay for those twenty days for which she has already served the suspension. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of October, 1990. LINDA M. RIGOT 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 October, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1800 Petitioner's proposed findings of fact numbered 1 and 17-19 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Petitioner's proposed findings of fact numbered 2, 9 and 10 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 3-5, 7, and 11-16 have been rejected as not being supported by competent evidence in this cause. Petitioner's proposed findings of fact numbered 6 and 8 have been rejected as being unnecessary for determination of the issues in this cause. Respondent's first, second, third, fifth, and eighth unnumbered paragraphs have been adopted either verbatim or in substance in this Recommended Order. Respondent's fourth, sixth, and seventh unnumbered paragraphs have been rejected as not being supported by the evidence in this cause. Respondent's ninth unnumbered paragraph has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Patricia Graham Williams, Esquire 1055 Northwest 183rd Street Miami, Florida 33169 Jaime Claudio Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Paul W. Bell, Superintendent The School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Patrick D. Gray Executive Assistant Superintendent Office of Professional Standards Dade County Public Schools 1444 Biscayne Boulevard Miami, Florida 33132 Mrs. Madelyn P. Schere Assistant School Board Attorney The School Board of Dade County, Florida Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue for consideration in this case is whether Respondent should be dismissed from employment with the Pinellas County Schools because of the misconduct alleged in the School Board's letter dated April 24, 1989.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Perry Hollis, was employed as a welding instructor at SPVOTEC, a facility operated by the School Board of Pinellas County. The Pinellas County School Board is the agency responsible for the administration of the public schools in the county. Respondent began working for the Pinellas County School Board as a welding instructor approximately 15 years ago. As a part of his job, he was required to take certain college courses in teacher training and now has 15 credit hours beyond his Bachelor's degree. At this time, and at the time of the allegations involved herein, he taught welding to mostly adult students at SPVOTEC where he has been employed for 13 years, satisfactorily, without any prior disciplinary problems. The evening before the incident in question, Respondent had been out gun training his dog. Since it is virtually impossible to hold the dog's chain and fire a rifle at the same time, he was using a pistol, the one involved in this case. Neither Respondent nor his wife have a permit to carry a concealed weapon. After the training session was over, Respondent placed the pistol into the door pocket on the driver's side of his pickup truck, put his dog in the back, and started home. He does not remember putting the gun in the door but can think of no other way it could have gotten there. On the way home, the dog jumped out of the back of the truck while it was moving and injured itself. When Respondent got it, he started to provide care for the dog and forgot the gun was in the door of his truck. Since the truck had been acting up, pursuant to an agreement with Mr. Protomastro, the auto mechanics instructor, the following morning he took the vehicle to school and left it at the auto shop so that students could work on it as a part of their training. This is legitimate. The car was assigned to Robert Mertz and Phat Le to work on. Mr. Protomastro drove the car into the shop but did not see the gun in the door. When Mertz got into the car, he saw the weapon in the door pouch on top of some maps and papers and took it out to show to Mr. Le. Mr. Le took it and tried to fire it but because the safety was on, it would not fire. When Le removed the safety, the weapon discharged one round, injuring no one and causing no damage. When Mr. Protomastro heard the explosion, he thought it was a firecracker and advised Phat Le not to shoot them off at school. Le told showed him the gun and Protomastro told him to put it back in the truck. He then took the truck with the gun back to Respondent at the welding shop and advised Hollis to be sure the truck contained no weapons if he brought it in again. According to Protomastro, when he first mentioned it to Respondent, the latter seemed surprised, and he has no less confidence in Respondent's abilities as a teacher even though in this incident, Respondent showed poor judgement. Protomastro did not report the incident at that time. However, when Mertz got home from school that afternoon, he told his mother what had happened. The following morning, she called the school to express her concern over the fact that someone had brought a gun to school. In her opinion, Respondent was wrong to allow the weapon to remain unattended in his car since it is his responsibility to keep the weapon under control at all times. No action was taken then, however. The incident was subsequently brought to the attention of Pinellas County school officials by Mr. Laux, SPVOTEC Director, several months after the incident. Mr. Crosby, Director of Personnel for the Board, caused a formal investigation to be conducted. Based on the investigation and his own limited inquiry, he recommended Respondent's dismissal. In the conversation he had with him, Respondent frankly admitted the gun had been in his car and explained the circumstances of it's getting there. Crosby recommended dismissal because he concluded Respondent's effectiveness as an instructor in the Pinellas county schools had been diminished by the incident. He takes this position because, (1) the media publicity the incident received, (one article and one editorial), reduced Respondent's effectiveness, and (2) he believed Respondent's supervisors, "must feel his effectiveness was reduced due to his lack of judgement." Mr. Crosby did not, however, check with Respondent's supervisors other than Mr. Laux, the Director of SPVOTEC, who concurred in a disciplinary action far less severe than dismissal. Nonetheless, Crosby recommended dismissal rather than some lesser action which could have been taken because: The severity of the situation - teachers are to provide conditions not harmful to students and here, Respondent created a dangerous situation, Students are expelled for bringing weapons to campus and they can do no less to teachers, and Respondent's lack of judgement. Mr. Crosby admits that in his relationships with Respondent, he always found Respondent to be completely forthright and cooperative and he is aware that Hollis has taught in the public school system for more than 13 years. He is familiar with Respondent's performance ratings which were always good. Considering all this, Crosby ultimately agreed with the Superintendent's position that Respondent be dismissed even though no teachers or students indicated their loss of confidence in Respondent as a result of this incident. Even in response to questioning by the Hearing Officer, Mr. Crosby indicated no opinion as to whether the incident was intentional on the part of Respondent. From a thorough review of the evidence it is clear it was not. Ms. Betty W. Arrigo is an interpreter for the hearing impaired who previously worked with Respondent at SPVOTEC. She is aware of the incident with the gun as a result of seeing the report in the newspaper. As a fellow instructor, she has lost no confidence in him as a result of the incident and knows from her communications with seven or so other faculty members that they feel the same way. None of her contacts have any reservations about working with Respondent and she has heard nothing derogatory about him from any of them. Mr. Phares was a student at SPVOTEC and took a welding course from Respondent before the time in issue. He heard about this incident only though the newspaper and even as a result of his reading, based on his first hand knowledge of Respondent, his faith in him as an instructor has in no way been diminished. He would not be reluctant to have Respondent as an instructor again. Admitting he is not bound by the same restraints and considerations as the school administration, and agreeing that guns should not be allowed on the school grounds, he nonetheless believe that if, as it appears in the instant case, the infraction was inadvertent and was an isolated incident, leniency should be shown. Much the same approach is taken by Mr. Stanjeski, who knew Respondent as an instructor at the time of the incident. He, too, is aware of it only from the newspaper, and has not lost any confidence in Respondent's ability as an instructor. Respondent insured that his students learned to work safely and was very much involved with them from a safety standpoint. Mr. Stanjeski would have no reservations about having his 10 year old son take a class with Respondent. He does not condone children or adults bringing a loaded gun to school, but under the circumstances as they appear here, he feels confident with Respondent and his teaching and supervisory abilities. Dr. Rose, Superintendent of Schools, became aware of the Respondent when he received the complaint from Crosby with the recommendation for dismissal. School Board policies prohibit weapons from being brought onto a campus by students or faculty. The purpose of these policies is to insure, as much as is possible, against accidents, and to promote the safety of both students and staff. Prior to adoption of a policy, several public readings are required, after which it is adopted and placed in a policy book furnished to all teachers. Respondent was aware of the policies. Respondent's bringing a weapon to school constitutes a violation of this policy but, in Dr. Rose's opinion, even worse, Respondent did not demonstrate the care for his students expected of a teacher. This constitutes major carelessness on his part, and in the opinion of Dr. Rose, constitutes a violation of the Florida Teacher's Code of Ethics. Dr. Rose also feels that Respondent's actions herein jeopardizes the safety of students. Respondent's judgement in this situation was poor, and his conduct put a dangerous instrument into the hands of a youth whose judgement had not matured. Dr. Rose feels that a teacher would not, if he valued the worth and dignity of his students, do anything potentially dangerous to their welfare. According to Dr. Rose, Respondent's conduct impaired his effectiveness as a teacher in that the work site was compromised. The Board envisions that a work site within the school system will be a safe place and for that reason, guns are not allowed on campus. To bring a gun on campus shows a disregard for the needs of the students. Prior gun incidents have sensitized the public to weapons on campus. As a result, any incident involving a gun on campus is considered critical by the Board, and brings back fears of danger to the students. Whenever a teacher creates a potential hazard to his students, it adversely impacts on his effectiveness, according to Dr. Rose. As Superintendent, he receives feedback from students, parent and teacher organizations, his division heads, and the public, and in this case, though the incident was not widely known until the dismissal was publicized, public demand for action was satisfied by the dismissal. Dr. Rose contends that while the press reaction is considered to be important, school Board decisions, and his in particular, are not dictated by the press. Nonetheless, the issue of guns on campus is very important to the public sector and the Board is sensitive to public reaction. The subject comes up frequently at public meetings and Dr. Rose receives many letters and phone calls about what is being done to keep guns off the campuses. After the articles previously mentioned appeared in the press in this case, Dr. Rose received substantial favorable feedback regarding the dismissal action against the Respondent. The substantial hiatus between the occurrence and the subsequent dismissal action resulted from the fact that the incident was not reported for several months. When the report was received, immediate action was taken to investigate it and to take appropriate corrective action. Local school administrators are supposed to act on their independent judgement within Board set parameters. In this case, Mr. Hollis' actions caused a question as to his ability to make valid judgements on his own and requires him to be more closely supervised. Therefore, his effectiveness, in the opinion of Dr. Rose, has been diminished. Though lesser punishments were available, Dr. Rose recommended the harshest discipline be imposed here because of the severity of the incident. The decision to dismiss Respondent was based on the fact that he had a gun on campus, aggravated by the potential danger to the students. Before taking action, Dr. Rose considered the Respondent's contention that he had forgotten the gun was in the car and, in fact, he believes this is so. In addition, his investigation disclosed no facts which lead him to believe that the incident would be repeated if Respondent were to be allowed to continue to teach. He is satisfied this was an isolated case and he considered that in making his recommendation for dismissal. Dr. Rose admitted that Respondent could probably be properly disciplined by lesser action, but, if that lesser action were taken, there is, in his opinion, a substantial risk that others might not get the important message regarding the policy against guns in the schools. Dr. Rose has not received any letters from parents as a result of this incident demanding that Respondent be dismissed. Nonetheless, he believes that because of the circumstances involved and because of the policy letters of the school Board and their intent that firearms not be brought onto campus at all; and because any time an incident involves bringing a firearm onto a campus, there is the potential for the weapon to be used in a harmful way, either directly or accidentally; it is imperative the strongest possible message be sent out stating that weapons will not, under any circumstances, be tolerated on the campuses of institutions within the jurisdiction of the Pinellas County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the continuing suspension with pay be lifted but that Respondent be reprimanded and suspended without pay for ten (10) days. RECOMMENDED this 25th day of September, 1989, in Tallahassee. ARNOLD H. POLLOCK 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 25th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2447 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. For the Petitioner: Accepted and incorporated herein. Accepted and incorporated herein. - 5. Accepted and incorporated herein. 7. - 10. Accepted and incorporated herein. 11. & 12. Accepted. 13. - 15. Accepted and incorporated herein. 16. & 17. Accepted and incorporated herein. 18. 7 19. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. For the Respondent: Respondent did not number his paragraphs in the Statement of the Facts, so the paragraphs will be addressed in turn as though they had been numbered. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney Post Office Box 6374 Clearwater, Florida 33518 Mark Herdman, Esquire Kelly & McKee, P.A. 1724 East 7th Ave. Tampa, Florida 33605 Dr. Scott N. Rose Superintendent of Pinellas County Schools Post Office Box 4688 Clearwater, Florida 34618-4688 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue The issues concern the claim by the Petitioner to relief for alleged age discrimination. See Section 760.10, Florida Statutes. In particular, it is alleged that the Respondent dismissed the Petitioner from employment with the Duval County School Board based solely upon his age, in violation of the aforementioned statute. There is presented the collateral issue, which is the claim by the Respondent that this dismissal based upon age was authorized by Section 231.031, Florida Statutes.
Findings Of Fact This cause is presented through the petition for relief from an alleged unlawful employment practice which the Petitioner filed with the Florida Human Relations Commission. The service date of that petition was May 9, 1984. Duval County School Board, Duval County, Florida, was the named respondent. Through the petition document Petitioner claims that the Respondent committed an unlawful employment practice by forcing the Petitioner to take an involuntary retirement due to his age. There being no successful informal resolution of this dispute, the matter was referred to the Division of Administrative Hearings for a formal Section 120.57(1), Florida Statutes, hearing, which was held on August 20, 1984. The petition is brought under the authority of Chapter 760, Florida Statutes, formerly Chapter 23, Florida Statutes. Petitioner is an individual within the meaning of Section 760.02(5) and .10(1), Florida Statutes. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. Petitioner, Robert P. Morrow, was continuously employed as a teacher by Respondent, Duval County School Board, from September, 1962, through June, 1983. During his employment he held tenured status or continuing contract status through the close of the 1981-1982 school year. The balance of the time in which he served as a teacher in the system was in the capacity of an employee on an annual contract basis. This latter arrangement pertains to the school year 1982-1983. Petitioner celebrated his seventieth birthday on September 26, 1981, which was shortly after the beginning of the 1981-1982 school year. In early 1982 Petitioner received a memorandum from Dalton D. Epting, Director of Certificated Personnel of the Duval County Schools, indicating that in view of the fact that the Petitioner would reach 70 years of age within the school year, and in keeping with Section 231.031, Florida Statutes, Petitioner should request an appointment with his principal, one Ronel J. Poppell. Epting had prepared the memorandum based upon information he had been given indicating that the Petitioner would reach 70 years of age within the 1981-1982 school year. In keeping with the suggestion of the memorandum from Epting, Petitioner spoke with Principal Poppell and in that conversation indicated a desire to teach for another year or two beyond the 1981-1982 school year. Poppell spoke to Epting and was reminded of the existence of Section 231.031, Florida Statutes, pertaining to teachers who have obtained 70 years of age. Epting did not advise Poppell on the question of whether to retain the Petitioner as a teacher in the Duval County high school where Poppell served as principal and Petitioner acted as a teacher. Out of the conversation between the Petitioner and Poppell, Poppell determined to allow the Petitioner to remain as a teacher at the subject school for one more year, i.e., the school year 1982-1983. As alluded to before, this arrangement was consummated and Petitioner served as a teacher at Nathan Bedford Forrest Senior High School in the school year 1982-1983 based upon an annual contract arrangement, as opposed to continuing contract. While Section 231.031, Florida Statutes, refers to the superintendent making the decision for retention, in fact Poppel caused the retention of Petitioner in the school year 1982-1983. The effects of such retention were to cause another teacher to be "surplused" who had been involved in the overall program at the school. This arrangement lasted for the 1982-1983 school year. Generally speaking Herb A. Sang, Superintendent of Schools in Duval County, Florida, makes the decision on the question of retention of 70year-old teachers based upon the recommendation of the principal and other school board staff members. Normally, according to Sang, a teacher who has reached 70 years of age would be retired as provided by Section 231.031, Florida Statute. If retained, per Sang, that retention is based upon the needs of the school system and not the record of achievement of the individual teacher in question. In application, teachers who are 70 years old will not be retained unless there is a specific need within the school system for services which they can provide, i.e., a specialty which cannot be filled by teachers under 70 years of age or for reasons of continuity of student projects in which the teacher is involved over more than one school year. On March 3, 1983, Principal Poppell completed an annual evaluation of the Petitioner's performance and on that occasion, as had been the case in all evaluations made of the Petitioner as an employee of the Duval County School System, Petitioner was found to be a satisfactory teacher, the highest possible rating that could have been given. Nonetheless, Poppell noted in the evaluation form that the Petitioner would not be recommended for an extension of his annual contract based upon Section 231.031, Florida Statutes. This opinion was expressed in a March 4, 1983, letter from Poppell to the Petitioner in which it was indicated that Poppell would not recommend that Superintendent Sang renew the annual contract of the Petitioner. In that correspondence Poppell indicated that he felt no further obligation to the Petitioner reference extension of his contract beyond 1982-1983, which extension was based upon Poppell's understanding of the discussion with the Petitioner in 1981-1982 in which the Petitioner had indicated that he would wish to teach for another year or two. In furtherance of Poppell's suggestion, Petitioner was not renewed as a teacher in Duval County and that decision was reached based upon the fact that the Petitioner was over 70 years old. No attempt was made to compare the relative merits of the Petitioner's performance with that of persons younger than 70 years of age, in deciding who to employ on annual employment as teachers for the school year 1983-1984.
The Issue Whether the Respondent committed the violations alleged in the Petition dated May 29, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. (2008).1 Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Dunaway has been a teacher with the School Board since 1988. At the times pertinent to this proceeding, she was employed under a professional service contract as a third-grade teacher at Elbridge Gale Elementary School. As a classroom teacher in Palm Beach County, Ms. Dunaway's employment is subject to the collective bargaining agreement between the School Board and the local teacher's union. Disciplinary action was taken against Ms. Dunaway prior to the events giving rise to this proceeding. On April 18, 2007, the School Board issued a Written Reprimand for Violation of School Board Policy 3.96, Drug- and Alcohol-Free Workplace, after a drug test administered by the School Board in 2007 showed a positive result for cocaine. In the written reprimand, Ms. Dunaway was advised that, if she failed to comply with School Board Policy 3.96, a recommendation for termination of her employment with the School Board would be issued. Pursuant to the collective bargaining agreement, the written reprimand was placed in Ms. Dunaway's personnel file. Ms. Dunaway began using cocaine in 2003 as a result of her feelings of devastation, humiliation, and embarrassment after an ex-boyfriend sent nude pictures of her, via electronic mail, to every employee of the school at which she was a teacher. After she tested positive for cocaine in the early part of 2007, Ms. Dunaway requested and received assistance through the School Board's Employee Assistance Program, and she stopped using cocaine as a result of her successful completion in November 2007 of an intensive program at the Gratitude House Ms. Dunaway was transferred to Elbridge Gale Elementary School in August 2008. Ms. Dunaway had a strained relationship with the school principal, Gail Pasterczyk. Ms. Dunaway felt that she was subjected to frequent, intense scrutiny by Ms. Pasterczyk, and this caused Ms. Dunaway to feel uncomfortable and increasingly anxious. According to Ms. Dunaway, Ms. Pasterczyk conducted a formal evaluation of Ms. Dunaway's teaching performance on Thursday of the second week in February 2009, which was February 12, 2009. Ms. Pasterczyk was very critical of Ms. Dunaway and gave her a poor evaluation. Ms. Dunaway was very upset about the poor evaluation and, on Friday, February 13, 2009, she used cocaine for the first time since November 2007. Ms. Dunaway admitted that she took "lots of [cocaine]” but stated that she had "stopped on Friday."2 Ms. Dunaway returned to school the following Tuesday, February 17, 2009, because Monday was a holiday. According to Ms. Dunaway, she had a very bad toothache during the weekend and arranged a dentist appointment for Tuesday afternoon. She was very nervous and took Xanax, which had been prescribed for her in February, to ease her anxiety. Ms. Dunaway claimed to have taken a Xanax right before lunch on Tuesday and to have become so "inebriated" from the Xanax that she doesn't remember anything that happened after she noticed that she was slurring her speech. On Thursday, February 19, 2009, while Ms. Pasterczyk was eating lunch in the teachers' dining room, several third- grade teachers approached her and expressed their concern about Ms. Dunaway's behavior during the morning and at lunch. Ms. Pasterczyk went to Ms. Dunaway's classroom and observed Ms. Dunaway standing at the front of the classroom, slurring her words, saying inappropriate things in front of the class, and using an overhead projector, unaware that the paper she had on the projector was upside down until she was alerted to this by her third-grade students. Ms. Pasterczyk returned to her office and consulted with Britoni Garson in the School Board's employee relation’s office. Ms. Garcon sent Ms. Pasterczyk a Drug and Alcohol Documentation of Observable Behaviors form by facsimile transmittal, which Ms. Pasterczyk completed and sent back to Ms. Garson by facsimile transmittal. On the form, Ms. Pasterczyk noted that she had observed sudden changes in Ms. Dunaway's behavior, emotional behavior, nervousness, slurred speech, increased and/or loud talking, and hand tremors. Ms. Garson reviewed the documentation submitted by Ms. Pasterczyk and determined that there was reasonable cause to subject Ms. Dunaway to a drug test. Ms. Garson contacted Ms. Pasterczyk and told her that she was to go to Ms. Dunaway's classroom and accompany Ms. Dunaway to her office, where they would wait for the drug-test team to arrive. Ms. Pasterczyk did as Ms. Garson directed, and the drug test was administered to Ms. Dunaway at approximately 2:30 p.m. on Thursday, February 19, 2009. The results were submitted to the School Board on February 25, 2009, and were positive for cocaine and for benzodiazepines, the family of drugs within which Xanax falls. Cocaine is a mood-altering drug that raises a person's tempo and makes them more animated. Xanax is a type of tranquilizer that is prescribed for people who are nervous or who cannot sleep, and it has a calming effect. Cocaine stays in the body for two to three days, but, by the fourth day after use, the results of a drug test would be negative for cocaine, that is, the amount if cocaine would be less than 300 nanograms per milliliter. Ms. Dunaway met with Alfredo Taulh to discuss her test results, and Mr. Taulh advised her that she could challenge the results of the drug test within seven days; she did not do so. The School Board conducted an investigation and, after going through all of the pre-disciplinary steps required by the collective bargaining agreement, the Superintendent of the Palm Beach County school system issued a Notice of Suspension and Recommendation for Termination from Employment dated April 24, 2009, advising Ms. Dunaway that he intended to recommend to the School Board her suspension without pay and termination of employment at the May 6, 2009, School Board meeting. Article II, Section M of the collective bargaining agreement governs the discipline of employees. Article II, Section M of the collective bargaining agreement provides in pertinent part: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. . . . * * * Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph # 7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, and employee may be reprimanded verbally, reprimanded in writing, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation . . . Summary Written Reprimand - A written reprimand may be issued to an employee when appropriate in keeping with this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay . . . Dismissal - An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with the provisions of this Section, including just cause and applicable laws. Based upon a consideration of all of the evidence presented, the proof is sufficient to establish with the requisite degree of certainty that, under the circumstance of this case, the School Board's decision to terminate Ms. Dunaway conforms to the progressive discipline provisions in Article II, Section M 7., of the collective bargaining agreement. Ms. Dunaway's action in ingesting large quantities of cocaine that remained in her system when she reported for work demonstrates a flagrant disregard of the School Board's policy of ensuring a drug-free workplace, a policy with which Ms. Dunaway was familiar as a result of the written reprimand she received in 2007 for her first violation of the policy. Ms. Dunaway's testimony that she did not ingest cocaine after Friday, February 13, 2009, is rejected as not credible. The drug test was administered on Thursday, February 19, 2009, and, given that cocaine is entirely dissipated from the human body within four days, Ms. Dunaway would have tested negative for cocaine if she had not ingested any of the drug since the previous Friday, six days, prior to the drug test. In order to test positive for cocaine on Thursday, Ms. Dunaway must have ingested cocaine on Monday, a school holiday, and she could have ingested cocaine at any time between Monday and Thursday. Ms. Dunaway attributed the positive test result for benzodiazepine to the Xanax she had taken to calm her anxiety about a dental appointment she had in the afternoon of Tuesday, February 17, 2009. According to Ms. Dunaway, she took the Xanax before lunch and, after realizing that her speech was slurred, remembered nothing more about the afternoon. Ms. Dunaway may have had a dental appointment on Tuesday afternoon, and she may have taken Xanax at school, but it is clear from the context of her testimony that Ms. Dunaway was referring to a lapse in memory that occurred on the day on which the drug test was administered, that is, on Thursday, February 19, 2009. The inconsistencies in Ms. Dunaway's version of the events surrounding her ingestion of cocaine and Xanax undermine the credibility of her testimony as a whole and make it difficult to credit her claim that she was not under the influence of cocaine on the day of her drug test. Even if her version of events is credited, the fact remains that she tested positive for cocaine and for benzodiazepine on Thursday, February 19, 2009. Regardless of whether her condition on that day was the result of the cocaine in her system or of the Xanax in her system or of the combination of drugs, it is reasonable to infer that her presence in a third-grade classroom when she was so impaired that she had no recollection of being there constituted a real and present danger to the students in her class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order sustaining the suspension of Debra Dunaway without pay and terminating her employment. DONE AND ENTERED this 29th day of January, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 29th day of January, 2010.
The Issue The nature of the instant controversy is whether Petitioner has just cause to terminate Respondent under section 1012.33, Florida Statutes (2015),1/ and whether Respondent's acts and/or omissions disqualify him from being employed in the Indian River County School District ("School District").
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: Respondent was employed by the School Board as a classroom teacher. As a teacher, Respondent was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida, and all School Board policies. Testimony of William Fritz William Fritz, assistant superintendent for Human Resources and Risk Management, testified for the School Board. One of his primary duties is to conduct employee disciplinary investigations for the School Board. He is considered the "point person" for such matters. Fritz was informed by the fingerprint specialist in his office that Respondent had been arrested for felony DWLS. Subsequently, the same person informed him that Respondent had been convicted of the felony DWLS on October 6, 2015. The felony designation for Respondent's DWLS was based on this being his third or subsequent DWLS offense. The Judgment of Conviction dated October 6, 2015, designated the crime as "Driving While License Revoked-Permanently Revoked." Pet.'s Ex. F. After learning of Respondent's felony conviction, Fritz conducted an internal investigation. He had an informal discussion with Respondent to discuss the matter. This occurred in November 2015. When they met, Respondent told Fritz that he felt he did not need to self-report the conviction because the School District was automatically notified by the court.2/ Respondent explained to Fritz that there were some extenuating circumstances for the car trip that day involving a visit to a very ill friend. As a follow-up to the meeting, Fritz reviewed the School Board policies pertaining to discipline. He concluded that the situation likely warranted termination. He requested to meet with Respondent again, but his invitation was declined by Respondent. During the course of his investigation and review of Respondent's personnel file, Fritz concluded that Respondent had been put on employment probation by EPC in 2012 and that the probation was still active when the 2014 arrest and subsequent conviction in 2015 occurred. The EPC order proscribed certain conduct by Respondent during probation. The EPC order provided that Respondent "violate no law and shall fully comply with all District School Board policies, school rules, and State Board of Education rules." Fritz concluded that the DWLS conviction violated that provision of the EPC order, as well as certain School Board employee rules and policies. Notably, Fritz concluded that Respondent's 2015 felony DWLS conviction was a Category 3 violation of School Board Policy 3121.01. Convictions for Category 3 offenses, by definition, expressly prevented the hiring or retention of an employee "under any circumstances." Pet.'s Ex. K.3/ After reviewing all of the relevant documents and concluding his investigation, Fritz met with the School Board superintendent and recommended that Respondent be terminated. In arriving at that recommendation, Fritz took into account the mitigating factors explained by Respondent during their first meeting, namely needing to visit a sick friend. Fritz noted during his investigation that another final order of EPC had also been entered in 2007, disciplining Respondent for a conviction for driving under the influence ("DUI"). Fritz testified that there had been a termination of another teacher in the School District for a felony offense. The termination occurred in 2013 and was referred to DOAH, which recommended that termination was appropriate. There was no suggestion or testimony during the course of Fritz's testimony that the recommendation to terminate Respondent was related in any manner to problems with Respondent's job performance or other conduct on the job. Rather, the felony conviction violated School Board policy requiring termination and also constituted violations of the EPC order and resulting EPC probation. On cross-examination, Fritz acknowledged that the most recent felony conviction in October 2015 had not yet been addressed or ruled on by EPC insofar as Respondent's teaching certificate was concerned. Fritz further testified that a collective bargaining agreement ("CBA") exists which governs the discipline of teachers, including Respondent. Article 5.1, section (A) of the CBA, states as follows: Discipline of an MBU shall be progressive. Progression shall be as follows: documented verbal warning presented in a conference with the MBU, a letter of reprimand, suspension, termination. Serious first offenses may result in an immediate, strong consequence up to and including termination. Resp.'s Ex. 18. Fritz testified that Respondent's felony conviction for DWLS was a "serious first offense," which gave the School District the discretion to move directly to termination under Article 5.1, section (A) of the CBA.4/ When questioned by Respondent as to whether or not a felony conviction for a worthless check offense, for instance, could also result in a termination, Fritz pointed out Petitioner's Exhibit K, which specifically designated worthless check convictions as a different and separate "Category 5" offense. Category 5 offenses, by express definition and unlike Category 3 offenses, afforded the School District considerable leeway on discipline, on a case-by-case basis. Conversely, Fritz testified that a felony conviction for DWLS fell under a different category, "Category 3," and was considered significant and serious enough to warrant termination of the employee. Testimony of Brian Krystoforski Respondent started teaching in 1984 and is in his 24th year of teaching in the state of Florida. Respondent testified, and emphasized throughout the proceeding, that the School District was aware of a prior criminal traffic conviction and EPC sanctions in 2012 but, nonetheless, permitted Respondent to continue to teach in the School District.5/ Respondent testified that the 2012 EPC final order related, as well, to a prior DWLS felony conviction. Respondent testified that, on the date he was arrested for the 2015 DWLS conviction, he was driving to visit a good friend who had serious medical issues and was very depressed. However, he acknowledges his trip was a "bad decision." He characterized his plea of no contest on October 6, 2015, as more of a plea of convenience believing that his explanation for driving that day would mitigate the effect of the criminal plea and conviction before the circuit court judge. The undersigned has considered the collection of exhibits offered by the parties and admitted into evidence. The undersigned has also reviewed the plea colloquy from October 2015 before the circuit court judge who took Respondent's felony plea to DWLS.6/ Respondent emphasized that his felony conviction for DWLS should be evaluated using several mitigating factors found in Florida Administrative Code Rule 6B–11.007, Disciplinary Guidelines.7/ Insofar as the severity of this conviction is concerned, Respondent felt that he was just guilty of using "bad judgment." Furthermore, Respondent argues that he is not a danger to the public under one of the mitigating factors outlined in the Florida Administrative Code. Another mitigating factor Respondent felt should be considered is that he has been an educator for a long period of time. He felt that his commitment and participation as the football defensive coordinator at Vero Beach High School should also be considered a mitigating factor. Respondent felt that there had been no actual damage, physical or otherwise, caused by his driving while license suspended. Furthermore, in 24 years of teaching, he has never been considered for termination for any other conduct or offenses. Finally, he argues that the effect of termination on his livelihood and ability to earn a living warrants consideration. On cross-examination, the evidence revealed that Respondent had a conviction for DUI in 1988, a conviction for DUI in 1990, and a conviction for a DUI in 2002. In 2004, adjudication was withheld for driving while intoxicated on a revoked license. Respondent also conceded that EPC warned him that a permanent revocation of his educator certificate could occur under certain circumstances, particularly if the educator's certificate had been sanctioned by EPC on two or more previous occasions. Respondent testified that he had, indeed, been sanctioned by EPC on two previous occasions prior to this 2015 conviction for DWLS. There is also evidence to show that Respondent has been characterized as a "highly effective" teacher during recent evaluations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board implement its preliminary decision to terminate the employment of Respondent. DONE AND ENTERED this 2nd day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2016.
