The Issue The issue in this case is whether the district school board has just cause to suspend a security monitor for 30 days without pay based upon the allegation that he slapped a student.
Findings Of Fact Petitioner, the Miami-Dade County School Board ("Petitioner" or "the School Board"), is the constitutional entity authorized to operate, control, and supervise the Miami- Dade County Public School System. As of the final hearing, Respondent Anthony Burney ("Respondent" or "Burney") had been employed as a school security monitor in the Miami-Dade County Public School System for approximately 21 years. For the last eight or nine years and at all times relevant to this case, Burney was assigned to Allapattah. On September 9, 2008, K.H., an eighth grader, and fellow students, D.M., D.G., and A.E., were sitting on benches in the cafeteria, two on each side of an aisle facing each other with their backs against the tables and their legs and feet in the aisle. Burney walked through the aisle to the lunchroom serving counter and got a tray of food. When he walked back through the aisle, K.H. wrote in a statement prepared the day of the incident that he (K.H.) was "sitting down and [Burney] was trying to pass by, ok. I let him pass the first time then he came back on purpose just to bother us so I didn't move [my legs and feet from the aisle], and out of now [sic] where he slapped me." The other students at the table gave conflicting written statements and testimony. D.M. said Burney was running towards them with a tray of food, that it was A.E. who did not move her feet, and that Burney slapped K.H. on the right side of his face with his left hand. D.G. did not remember whether or not Burney had a tray, but she did hear him say "excuse me" the first time he passed them but not the second time because they were being loud and playing. D.G. also heard Burney apologize to K.H. after he supposedly hit K.H.. A.E. testified that Burney had the tray in his right hand and hit K.H. with his left hand. A video surveillance DVD is grainy and less than clear, but it does show that Burney was walking not running. Burney was holding a tray in his left hand not his right hand. It also shows that, as Burney passed A.E. and K.H. who were sitting on the bench to his left, he turned the right side of his body towards K.H., but did not raise his right hand. After that, K.H. jumped up in a confrontational stance in front of Burney and was restrained by others. There were no red or other marks on K.H.'s face. The video surveillance DVD is consistent with Burney's explanation of what happened. Burney walked pass the four students to the counter and got his lunch. When he walked back down the same aisle with his tray, he turned to step over the student's legs and get through the aisle. He inadvertently touched K.H. when he brushed pass him and, as soon as K.H. jumped up to confront him, he apologized to defuse the situation. The cafeteria was emptying near the end of the lunch period and Burney could have and, in retrospect, arguably should have walked down any of the other aisles where there were no students sitting. While that may have demonstrated the best professional judgment for an adult dealing with 14-year-old children, there is no evidence that Burney had any prior conflicts with K.H. or any reason to believe that he needed to avoid him to prevent the confrontation. As a result of the allegations that he slapped K.H., Burney was reassigned to work at a different location. On November 13, 2008, a conference-for-the-record was held to discuss the findings of the investigation with Burney. He was given notice of his principal's recommendation for discipline on February 23, 2009. At its regular meeting on April 2, 2009, the School Board voted to accept the recommendation to suspend Burney without pay for 30 workdays. Ultimate Factual Determinations Burney's conduct on September 9, 2008, did not entail threats, threatening behavior, or acts of violence. He did not, therefore, violate School Board Rule 6Gx13-4-1.08, which prohibits violence in the workplace. Burney did not violate School Board Rule 6Gx13-4A- 1.21, which prohibits unseemly conduct or the use of abusive or profane language. Burney did not violate the Code of Ethics, School Board Rule 6Gx13-4A-1.213, by not respecting the dignity of others, not exercising his best professional judgment, or not conducting himself ethically.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order rescinding its previous decision to suspend Burney without pay for a period of 30 workdays, and award him back pay or benefits, if any were denied him as a result of that decision. DONE AND ENTERED this 14th day of January, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2010. COPIES FURNISHED: Janeen L. Richard, Esquire Miami-Dade County School Board Attorney's Office 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Mr. Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue to be resolved in this proceeding concerns whether the Respondent engaged in conduct amounting to misconduct in office and immorality, within the meaning of Section 231.36(4)(c), Florida Statutes, and Rule 6B-4.009(2), Florida Administrative Code.
Findings Of Fact The Petitioner is the Escambia County School Board (Board), a unit of local government charged with operation of the public school system in Escambia County, Florida, including the regulation of entry of teachers into employment in that system and the regulation of their professional practices and conduct while employed by the Board. The Respondent is a school teacher in the Escambia County school system. He most recently was a fifth-grade teacher at Navy Point Elementary School. He was employed at that school for some 17 years, with an exemplary record in terms of his competency as a teacher. In recent times, the Pensacola Police Department has received reports and experienced a number of instances of various forms of illegal conduct occurring at a public park area located on a scenic area of bluffs overlooking Escambia Bay, in Pensacola, Florida. The location is known as "the boardwalk" and is located on Scenic Highway. In an effort to alleviate potential public safety problems at this public park area, Officer Michael Thompson was dispatched to the area on the evening of March 1, 1995. He arrived there sometime after darkness had set in during that evening. He was on duty and patrolling in the area in plain clothes, rather than in uniform. Officer Thompson arrived in the parking lot, got out of his car, and walked down the boardwalk toward a more wooded area in the direction of the Bay and away from the street and parking area. He engaged in a conversation with an elderly gentleman standing on the boardwalk next to the railing, his position being accurately depicted in the diagram contained in Exhibit 2-J, which reflects the park area. The officer's position is represented by the letter "A" on the diagram. While Officer Thompson was speaking with the elderly gentleman, an individual, which Officer Thompson identified at hearing as Mr. Tadlock, the Respondent, walked past them, stopping on the walk a few feet away. Shortly thereafter, Officer Thompson noticed the Respondent turning and facing him and the unidentified elderly gentleman. He asked Officer Thompson if he did not want to "have some fun", or words to that effect. He repeated that question and then pulled his pants down to about mid-thigh level and began masturbating his erect penis with his right hand. Shortly after this performance, the Respondent pulled his pants back up and walked past Officer Thompson and rubbed him on his buttocks with his hand. The Respondent walked to the parking lot and paused in the vicinity of Officer Thompson's car. Officer Thompson walked back to his car and observed that the Respondent's apparent personal vehicle was parked two or three spaces away. The Respondent, at that point, was near Officer Thompson in the parking lot and asked Officer Thompson if he could perform oral sex upon him. Immediately after that episode, the Respondent walked back to his car, after telling Officer Thompson to follow him because he had an apartment where they could meet nearby. Officer Thompson got into his car and followed the Respondent to his apartment. While he was in route, he radioed for a "uniformed police car" to meet him at the apartment and provide assistance. Shortly after arriving at the apartment, the police car, with Pensacola Police Department personnel, arrived at that address. Upon the arrival and at the behest of Officer Thompson, the Respondent was placed under arrest. The Respondent was charged by the State Attorney, in and for the First Circuit, with the following criminal offenses: (1) lewd and lascivious acts; (2) battery; (3) soliciting for immoral purposes; and (4) exposure of a sexual organ. The Respondent had been a teacher for some 17 years at the Navy Point Elementary School in Pensacola, Florida. He had been employed as an elementary school teacher for all of that time, most recently as a fifth-grade teacher at that school. Following his arrest, and only several days later, the details of the offense charged, the arrest of the Respondent and his identity as a school teacher at Navy Point Elementary School was reported in the Pensacola News Journal. In fact, it was reported on March 4, 1995 and again on March 10, 1995. The Pensacola News Journal is a newspaper of general and major circulation in the Pensacola and Escambia County area. There was also coverage of this news event and incident by the television media in the television coverage area of Escambia County. Because of its rapid publication in the public media, widespread public knowledge of the incident immediately occurred. There was thus substantial public notoriety and publicity surrounding the event. Members of the public, particularly parents of students at Navy Point Elementary School, promptly registered numerous complaints concerning the Respondent continuing to be a teacher because of the incident which prompted his arrest. A log of the complaints received was maintained by the Petitioner's Office of Human Resources. After his arrest on March 1, 1995 and after the matter became the subject of widespread public knowledge, including that of parents of students at the school, people, including parents, began picketing at the school. They carried signs protesting his continued employment. The Parents and Teachers Association (PTA) also circulated a petition calling for his dismissal, signed by numerous members of the PTA, most of whom were parents of students enrolled at Navy Point Elementary School. The students at the school also became aware of the circumstances surrounding the Respondent's arrest, because of the publicity and notoriety. At least one child brought articles from the Pensacola News Journal to the school. The students at the school, upon learning of the circumstances of the Respondent's arrest and his alleged conduct, became quite upset and concerned. Some expressed fear and distrust of the Respondent. In order to address and alleviate the adverse effects on the students of the Respondent's arrest and the incident in which he was involved, counseling sessions were provided for students as a group, as well as individual counseling sessions. Ms. Julia Washington, the counselor at the school, has a masters degree in counseling and has been serving as a school counselor for several years. Based upon her experience with students generally as a counselor, and with regard to this incident in particular, and based upon her education, expertise, and other experience, she opined that the children at the school were upset and concerned and because of the incident, would substantially lose trust in the Respondent. They would, to some extent, also mistrust other faculty members, since they were suddenly, without warning, confronted with the shocking circumstance of a faculty member they also trusted being involved in such an incident. The school district monitored the situation and reaction of students and parents on an ongoing basis after the incident became public knowledge in order to determine whether the school or the Respondent, as an instructor, would be adversely affected and whether the Respondent's effectiveness as an instructor would be impaired. In considering the negative impact on the school, its students, and the Respondent's colleagues, the district recognized that the Respondent had been arrested once before in 1991 for similar charges. He was charged in an Administrative Complaint by the Education Practices Commission concerning the 1991 incident, which was of a similar nature, and, as a result of a settlement agreement, was placed upon probation as to his licensure. As a consequence of that 1991 arrest, there had also been picketing at the school, complaints from parents and other members of the public, as well as substantial publicity and notoriety. Because this second incident was of a similar nature, the public outcry and objection to his continued employment became even more vehement and evinced an even greater indication of his loss of effectiveness as a teacher of the students, as a colleague of the other faculty members and members of his profession in Escambia County at large. The Respondent had received a written reprimand due to the 1991 incident from the Education Practices Commission as a result of the settlement agreement with that agency. He was placed on probation for a period of two years for that incident. That probationary period had just expired in February of 1995, approximately one month before his arrest on March 1, 1995 for the conduct he committed, as described above. The reprimand concerning that 1991 incident was in his personnel file, which is the customary practice under the Board's rules concerning such employment disciplinary records. It is a public record, and the Pensacola News Journal and the local television station had requested a copy of the previous reprimand and had been supplied it. The record does not reflect clearly how the Pensacola News Journal and the local television station received knowledge of the March 1, 1995 arrest at issue in this case, although the Pensacola Police Department reported the incident to the Board or the school Principal. The arrest report may have come to the attention of the public news media in that fashion. In any event, the record does clearly reflect that the public reporting of the incident in the newspaper and by electronic media occurred well before the Superintendent elected to recommend, and the Board elected to impose, the disciplinary measures at issue in this case. The widespread public notoriety concerning the incident was not created by the Petitioner's initiation of prosecution of this action.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Petitioner, Escambia County School Board, terminating the continuing instructional contract of the Respondent, Cleon William Tadlock. DONE AND ENTERED this 29th day of March, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, 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 29th day of March, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-1864 Petitioner's Proposed Findings of Fact 1-23. Accepted. Respondent's Proposed Findings of Fact 1-3. Accepted. 4. Rejected, as contrary to the clear and convincing evidence of record. 5-8. Rejected, as contrary to the clear and convincing evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. 9-14. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the greater weight of the evidence. Accepted, but not itself materially dispositive. Rejected, as contrary to the clear and convincing evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, FL 32501 H. B. Stivers, Esquire Levine & Stivers 245 East Virginia Street Tallahassee, FL 32301 Dr. William Maloy Superintendent Escambia County School Board P.O. Box 1470 Pensacola, FL 32597-1470 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
The Issue The issues to be determined are whether Respondent, Mr. Oges Fadael, violated sections 1012.795(1)(g) or (j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Administrative Complaint, and if so, what is the appropriate sanction?
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. At all times relevant to the allegations in the Administrative Complaint, Mr. Oges Fadael held an educator certificate and was employed as a guidance counselor at Congress in the Palm Beach County School District. On November 17, 2011, K.S., a 13-year-old student, went to his new school, Congress, at mid-day. After attending afternoon classes, he attempted to board a school bus for a ride back to his home at the end of the day. The bus driver refused to let K.S. get on the bus, saying that he needed to have a bus pass. K.S. testified that he then told Mr. Fadael, who was in the bus loop, that the bus driver would not let him get on the bus and that he needed assistance to get home. Mr. Fadael responded, "Hell, walk." K.S. testified that he started to walk, but couldn't find his way home, and that three or four hours later his uncle picked him up and took him home. The following morning, on November 18, 2011, K.S. returned to Congress. He walked down a hall leading to the Student Services Office, where students were not supposed to be at that time in the morning. Mr. Fadael observed that K.S. was out of his assigned area and called after him, asking him where he was going. Mr. Fadael repeated his question, and asked K.S. to stop. K.S. did not answer Mr. Fadael, and continued to walk down the enclosed hallway, away from Mr. Fadael, with Mr. Fadael following him at a distance. Mr. Anthony Cruz, a digital graphic design teacher at the school, was in front of K.S., coming from the opposite direction down the hall toward K.S. and Mr. Fadael. Mr. Fadael called out to Mr. Cruz to "Please, stop this young man." Mr. Cruz addressed K.S., saying, "Where are you going? Please stop." K.S. did not answer Mr. Cruz or do as he was directed, and instead attempted to pass by Mr. Cruz, first to the right, then to the left, and then to the right again, with Mr. Cruz adjusting his body position and arms with each move to remain in front of K.S. and block his way. K.S. continued to ignore Mr. Cruz and turned around to go back down the hall in the direction from which he had just come. He met with Mr. Fadael, who again asked him where he was going, and directed him to stop. Again, K.S. did not answer or do as he was told, but instead attempted to pass around Mr. Fadael. Mr. Fadael pointed toward the Student Services Office and then stepped toward K.S., "herding" K.S. out of the hall and into a small alcove area outside the door leading into the Student Services Office. At this point, Mr. Cruz testified that he saw K.S. try to "push off" Mr. Fadael. He explained that this was not done in an aggressive fashion, but just to push him out of the way, to get away from him and go on his way. The binder that Mr. Fadael was carrying fell to the floor, but there was no clear and convincing evidence as to exactly how this happened. Mr. Fadael's written statement after the incident claimed that K.S. hit it and knocked it to the ground, as Mr. Fadael reiterated at hearing. The testimony of Mr. Cruz was equivocal, claiming at one point that Mr. Fadael put in down, and at another point that Mr. Fadael dropped it. K.S. himself offered no testimony as to whether he knocked the binder down, intentionally or otherwise. There were no other witnesses, and the video camera recording does not show what happened. It is clear, however, that Mr. Fadael grabbed K.S. by his right arm. When Mr. Fadael put his hands on K.S., Mr. Cruz testified that K.S. escalated his physical struggle against Mr. Fadael and "kind of like got really out of control." Mr. Cruz and Mr. Fadael were telling K.S. to "calm down, calm down." K.S. did not calm down. While still holding K.S.'s right arm, Mr. Fadael aggressively pushed him against the window next to the student services area entry door. The window is not flush, but sticks out from the wall. Mr. Cruz testified that K.S. finally calmed down just enough for them to open the door and move inside. The struggle continued in the area inside the door, and K.S. was screaming, "Let me go, let me go." Mr. Cruz testified that Mr. Fadael was holding K.S. with his arm behind his back, with K.S. facing toward the wall. Mr. Fadael pushed K.S. against the wall, pinning him there, as K.S. continued to struggle. Ms. Michelle Weinhouse was a web design teacher at Congress during the 2011-2012 school year. She was in the mailroom in student services and heard yelling outside. When she came out of the mailroom to see what was happening, she saw Mr. Fadael pinning K.S. against the wall. K.S. was crying and cursing, and saying he wanted to get his dad. K.S. was embarrassed and humiliated by his treatment. Ms. Lisa Snyder was a registered nurse assigned to Congress. She testified she had seen Mr. Fadael talking to K.S. earlier, but things like that happened on a daily basis, and she went into her office. She said she came back out of her office when she heard K.S. screaming, "Ouch, let me go, let me go." She testified: There was an altercation with Mr. Fadael, the guidance counselor, and the student. The child was struggling. Mr. Fadael had the child's arms. I think in the process of trying to subdue the child, you know, the kid was--I thought he was slammed against the wall. Nurse Snyder was concerned that K.S. could have sustained a head injury because she saw his head slam against the wall. Later on the day of the incident, K.S. was examined at the JFK Medical Center in Atlantis, Florida. The patient history indicated that there was right shoulder pain. Examination showed he had some contusions and: There is mild widening of the physeal plate laterally concerning for a Salter-Harris type 1 fracture. The humeral head articulates with the glenoid cavity. There is no evidence of displaced fracture or subluxation. The visualized right lung apex is clear. K.S. was instructed not to go to school for two days, and to schedule a follow-up appointment with an orthopedist, because a growth plate fracture was suspected. It is not clear from the record if K.S. was seen by an orthopedist. K.S. testified that he went to therapy for a month. He testified that he had always played football with his friends, but that he wasn't able to do that anymore, and that he wanted to play football in high school, but couldn't do that now. K.S. was injured when Mr. Fadael pushed him against the window or when he pushed him against the wall, or both times. It is clear that K.S. was uncooperative, disrespectful of authority, and disobedient. It is clear that Mr. Fadael used excessive force in response to the disrespectful and disobedient actions of K.S. Ms. Kathy Harris was principal of Congress in the 2011-2012 school year. On November 18, 2011, Ms. Harris was asked to come to her office because a parent needed to see her. The parent was K.S.'s mother, who told Ms. Harris that there was a problem with one of the instructors. After talking with the parent for a while, Ms. Harris asked Mr. Fadael to join them. She testified that when Mr. Fadael arrived, he defended his actions to the mother. Ms. Harris testified that neither the mother nor Mr. Fadael was listening to what the other was saying, and they both became very loud and belligerent. She asked Mr. Fadael to leave and requested that he submit a written statement about what had occurred. He submitted a Student Discipline Referral. He described the events as follows: Student was out of assigned area unsupervised. I asked student to report to his designated area; he refused. I gave him a choice to report to the cafeteria or the gym, and again he refused. Another teacher who was observing the incident asked him to comply, and again the student refused. The teacher attempted to stop him, but the student was still unwilling to cooperate. When I approached him, he became aggressive and extremely provocative. I was carried [sic] my binder and my briefcase, and he knocked my binder to the floor. At this point I had to restrain him for his own safety and had to call school police for assistance. As noted earlier, there was scant evidence showing exactly what happened in the alcove off of the hall. There was no credible evidence as to whether the binder was knocked to the floor, or simply was dropped. Even assuming that false information was contained in the Student Discipline Referral, there was no evidence that it was offered with the intent to defraud. Mr. Fadael submitted the Student Discipline Referral for the purposes of having K.S. disciplined, and to justify his own actions. Ms. Harris testified that at the time she received the Student Discipline Referral, she didn't know if it was accurate or not, but she continued her investigation. Although the referral had requested that K.S. be suspended, this ultimately was not done. In fact, Mr. Fadael was instead given notice of a ten-day suspension. Mr. Fadael did not submit fraudulent information. Mr. Fadael's demeanor at hearing was confrontational and belligerent. His testimony was generally evasive and not credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Mr. Oges Fadael, in violation of sections 1012.795(1)(g) and (j), Florida Statutes, and implementing rules. It is further recommended that the Education Practices Commission impose upon Mr. Fadael a fine of $1,500.00 and revoke his educator certificate for a period of two years, at the expiration of which time he may receive a new certificate by meeting all certification requirements of the state board current at the time of his application, subject to terms and conditions determined by the Education Practices Commission to be reasonably necessary to ensure that there will be no threat to students and that he will be capable of resuming the responsibilities of an educator. DONE AND ENTERED this 8th day of May, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 8th day of May, 2015.
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent committed the offense(s) charged in the Amended Administrative Complaint; and, if so, what discipline is appropriate.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Respondent holds Florida Educator's Certificate No. 1091499, covering the areas of Elementary Education, English for Speakers of Other Languages (ESOL), Exceptional Student Education, and Autism Spectrum Disorder, which is valid through June 30, 2016. The Commissioner of Education is responsible for investigating and prosecuting allegations of misconduct against individuals holding a Florida Educator's Certificate. Respondent is an experienced teacher, having taught for 22 years, the last ten in Florida. Respondent has a post- bachelor's degree in Special Education, and a second bachelor's degree in English, and a master's degree in Special Education. Respondent began his career teaching emotional behavioral students, and did that for a few years. He later worked at a residential school, then transferred to teaching those with intellectual disabilities, and later focused his time and professional efforts on autistic students. Respondent decided to teach Special Education students because he had himself been a Special Education student. The incidents complained of in the Amended Administrative Complaint are alleged to have taken place over a three-month period at Olympic Heights High School in Boca Raton, Florida, where Respondent was employed as the emotional behavioral teacher and provided math support. Respondent testified that students with emotional behavioral disorders that interfere with their learning, need a support system to help them learn how to better handle their emotional and behavioral states in order to learn. His job was to oversee that system and to direct a classroom where he could teach them those skills. In addition to his special needs classes, Respondent would "push into" math classes, to teach Special Education students that were in the general education community. In this case, Petitioner outlined several rule and statutory violations by Respondent in its Amended Administrative Complaint including: Violations of the Principles of Professional Conduct. Failing to make a reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Unreasonably restraining a student from independent action in pursuit of learning. Intentionally exposing a student to unnecessary embarrassment or disparagement. The factual allegations underlying these violations were as follows: During the 2014-2015 school year, Respondent improperly and aggressively handled T.C., an eighteen year old, male student with Autism Spectrum Disorder (ADF). On or about January 27, 2015, when T.C. grabbed Respondent's coffee cup, Respondent improperly restrained T.C. by placing T.C. in a headlock. On three (3) other occasions during the 2014/2015 school year, Respondent pulled T.C. to the floor, squeezed his cheeks and yelled at him. Respondent would often put his hands on a student when unnecessary and yell at them calling them names. Further, in November of 2014, the Respondent left a student, P.M., unattended in the classroom for twenty (20) minutes while he used the bathroom facilities. Facts Regarding Aggressive Handling and Improper Restraint of T.C. Nicole Ben-Hamo was a speech pathologist doing contract work for the Palm Beach County School District at Olympic Heights High School, in Boca Raton, Florida. She testified that on January 15, 2015, she observed an incident between Respondent and T.C., a student. The incident occurred in what she described as "an amazing small classroom" (referring to its physical size). The classroom was full of other staff members who were in a position, she felt, to observe what she observed. Ben-Hamo saw what she described as "a little wrestle," when student T.C. "grabbed" Respondent's coffee cup. T.C. was tall, heavy, and a big guy. She observed Respondent move forward from behind T.C. to try to reclaim his coffee cup. She claimed that Respondent was standing up behind T.C. and both had their feet on the floor. Respondent reached over the shoulder of T.C. and around him as he tried to take back the coffee cup. Ben-Hamo later wrote a statement in which she claimed that Respondent's arm was around T.C. in a "headlock." Pet. Ex. 2. In her hearing testimony, she described the action as Respondent reaching with one hand to reach the coffee cup, and reaching around T.C. to restrain him with the other hand. In her prior deposition testimony, she noted that it was probably not the right terminology to say a "headlock," but said that Respondent was holding the student's head in a restraint while reaching for the cup. She conceded that she was not familiar with wrestling moves or any kind of move that would be called a "headlock." She testified that she does not know if that is what the move is called, or if it was intended to be a headlock.1/ Ben-Hamo tried to clarify that what she actually observed was Respondent's arm extending from T.C.'s clavicle to his neck area. She could not tell if Respondent was squeezing T.C. In both her deposition testimony and at the hearing, she indicated that she could not imagine that he was squeezing or trying to hurt T.C. In her written statement, given a day or so after the event, Ben-Hamo wrote that she did not believe that Respondent's actions constituted intentional abuse. Pet. Ex. 2. In an effort to further clarify what she thought she saw, Ben-Hamo explained that she did not think that she had witnessed intentional abuse. She felt that Respondent was trying to get the coffee cup back and calm the student.2/ Pet. Ex. 2. Ben-Hamo testified that the entire incident took a "short time" and that none of the other adults who were present intervened. Because she felt that the incident was not "proper interaction," she reported it to an assistant principal. Sarah Borah, the assistant principal; Sharon Dix-Stark, the ESE coordinator; and David Clark, the principal, all were called to testify by Petitioner.3/ Mary Beth Hall, who was present in the room, reported that Respondent sat next to T.C., as he often did. This was done to keep T.C. from jumping up to be disruptive or grab the food of others. While they were seated, she saw T.C. grab Respondent's coffee cup off the table. In turn, Respondent took T.C.'s hat, telling T.C. that "if you take something of mine; I'll take something of yours." Hall reported that nothing she saw about the interaction was extraordinary. She felt that by the time an investigator was called in "things had been kind of blown out of proportion" and the incident between T.C. and Respondent was more a matter of "perception." She felt Respondent worked well with the students. He was more "hands on" with T.C., with whom he got along well. Respondent served as a needed male role model to T.C. Hall recalled that Respondent and T.C. remained seated throughout the incident. Contrary to the testimony of Ben-Hamo, Hall never saw T.C. or Respondent stand during the incident. Hall gave a statement months later in which she used the term "chokehold." Pet. Ex. 3. However, she unequivocally explained at the hearing that she did not see Respondent actually choking T.C., using a chokehold on T.C., or restraining T.C. Hall testified, instead, that the two were "wrestling with their arms" over the items (the cup and hat) and reaching over and around each other, as would two children tussling for the same toy. They both remained seated during the incident and their respective desks never moved or were jostled out of position. Respondent never stood behind T.C. during the incident. According to Hall, the entire incident was two people sitting next to each other and wrestling with their arms. She used the term "wrestling" to indicate two people reaching around each other. Hall testified that she saw Respondent's actions as a means for him to teach T.C. not to grab something that did not belong to him and belonged to someone else. After what she described as a very quick incident, Hall reflected that Respondent got his coffee mug, T.C. got his hat back, and they both seemed happy after the incident concluded. Hall did not find it necessary to intervene in the incident, as there was no violence between Respondent and T.C. Hall observed several paraprofessionals in the room. None intervened, or put down their cell phones during the incident. According to Hall, T.C. was not harmed in any way. Hall testified that no noises or sounds were made by T.C. during the incident that indicated he was in any pain, distress, or discomfort. Hall never saw Respondent mistreat T.C. in any way. Respondent appeared to treat all children respectfully and attentively, and she never saw him use his hands improperly on any student in the classroom. Respondent testified on his own behalf. He felt he had a "wonderful" relationship with T.C. He described T.C. as a physically 18-year-old adult, who was large and strong. However, his emotional development was at the pre-kindergarten level. T.C. was over six feet tall, and weighed 250 to 260 pounds. T.C. was obsessive compulsive and had a short attention span. He had certain behavioral problems, which were accentuated because he never learned proper replacement behaviors for his maladaptive kindergarten behaviors. These behaviors were not appropriate for an 18-year-old. T.C. always needed to be escorted because he liked to run, look, investigate, and discover. Whether it was in front of a car or whether it was a trash can, he just always wanted to do things. For safety reasons, an adult was always required to be with him. Assistance was provided to help steer T.C. to more appropriate behavior and activities. Occasionally, T.C. would put Respondent's hand on his shoulder for Respondent to rub his shoulder. It was a method that Respondent used to soothe T.C., which they called "tickles." On the day of the incident, Respondent sat down next to T.C., who had finished lunch. Respondent placed his coffee cup on the dining table some three feet away. Without warning, T.C. lunged across Respondent to grab Respondent's coffee cup. He did not reach it the first time. Respondent began massaging T.C.'s arm and said, "Do you want tickles, or do you want the coffee cup?" T.C. calmed for a time, and then reached for the cup again. T.C. reached and got his hand on Respondent's cup. While doing this, he was leaning into or on Respondent's lap. He eventually reached and grabbed Respondent's cup. Respondent took T.C.'s hat from the windowsill, and asked if T.C. wanted his hat given back. T.C. reached for his hat with his other hand. As the incident unfolded, T.C. held the cup and reached over Respondent trying to grab his hat back from Respondent. The two were right next to each other, reaching back and forth. Respondent extended his hand out, so that T.C. would see that he was waiting for his cup to be exchanged. Eventually T.C. got bored of the cup and gave it back to Respondent. When T.C. gave Respondent the cup, Respondent gave him back his hat. The more persuasive and credible testimony regarding the classroom incident was that T.C. impulsively grabbed Respondent's cup while they were seated next to each other. Respondent then attempted to make a teaching point with T.C. about not taking the things of another, by taking his hat. In the process, T.C. and Respondent reached over and around the other in an effort to retrieve their item from the other. There was physical contact between the two, but it was not inappropriate, or unduly rough.4/ There was no credible proof that Respondent intended to harm, restrain, or injure T.C. Ben-Hamo's testimony and conclusions regarding the extent, type and nature of the contact and interaction between T.C. and Respondent is rejected as unpersuasive and implausible.5/ The undersigned finds that Respondent did not place or restrain T.C. in a "chokehold," "headlock," or other improper restraint. Based on this record and the circumstances, there was no clear and convincing evidence to support Petitioner's allegation that Respondent violated any statute, policy, or rule in the incident with T.C. regarding the coffee cup. Allegations Reported by Shannon Lewis Shannon Lewis, a paraprofessional, testified by deposition. Pet. Ex. 11. She described T.C. as being 6'5" tall and weighing 250 to 280 pounds. She noted that he had very little impulse control, and that when he saw something of interest, he impulsively went to get it. Lewis testified that one day when Respondent took T.C. to physical education class, T.C. wanted to put his tooth on the doorway when he exited the gymnasium.6/ According to Lewis, Respondent grabbed T.C. by one arm, then pulled him away and yanked him. She testified that Respondent put his foot behind T.C.'s foot, so that T.C. would have to go to the ground. According to Lewis, Respondent did that three times before he would relent.7/ Lewis testified that the students in the physical education class and two paraprofessionals, including Pedro St. Jacques and Illiana Girtman, were present when the incident occurred and saw it. She testified that St. Jacques was the aide assigned to T.C. Lewis testified that while T.C. was on the ground, Respondent squeezed his face and made his lips pucker and yelled, "No, T. No." No student or other teacher testified that they saw or witnessed the actions described by Lewis. St. Jacques executed an affidavit admitted into evidence as Respondent's Exhibit 3.8/ Resp. Ex. 3. However, he never witnessed anything inappropriate between Respondent and any students, including T.C. St. Jacques never witnessed Respondent throw T.C. to the ground and never saw him treat T.C. badly.9/ St. Jacques testified that sometimes it was necessary to approach T.C. in a different manner because of his size and to prevent him from getting hurt. It was sometimes necessary to physically guide T.C. away from whatever activity he became fixated on. St. Jacques never observed Respondent use any unnecessary or questionable force on T.C. in those instances. He knew that Respondent was working with T.C. to have him stop biting the door frames as he walked through the halls. He heard Respondent tell T.C. not to bite them and saw him maneuver T.C. away from them. No undue force was used by Respondent. Girtman was also present during this incident, according to Lewis. She was a paraprofessional with Respondent at Olympic Heights High School. She never saw Respondent touch a student in a way that she thought was unnecessary or improper. Respondent was always gentle with T.C. She never saw Respondent squeeze T.C.'s face or yell at him. Another paraprofessional, Alvaro Rodriguez testified. He was also identified by Lewis as being present during the door- biting incident. He never saw Respondent use physical methods or force on T.C. in a way that he thought was improper. He never saw Respondent pull T.C. down to the floor. He never saw Respondent squeeze T.C. by the cheeks or yell at him. Respondent denied that the hallway incident occurred, as described by Lewis. He testified that the banging of T.C.'s teeth on a piece of metal was part of his obsessive-compulsive disorder.10/ Respondent was not big enough to pull T.C. down to the floor, and never did so. When T.C. was agitated or running around, Respondent would ask him to sit, but he never pulled him to the floor. Respondent explained that sometimes T.C. needed gentle pressure on his arm or something to reinforce what it means to go down or to go in one direction or the other. Respondent denied that he yelled into T.C.'s face or yelled at him, and that T.C. did not respond to yelling, he only responded to quiet talking. Respondent testified that he never grabbed T.C. by the cheeks and squeezed. Respondent's testimony concerning this incident, and the testimony from St. Jacques, Girtman, and Rodriquez was more persuasive and credible. There simply was no clear and convincing evidence that Respondent improperly, violently, or forcefully threw or took T.C. to the ground, yelled at him, squeezed his cheeks or handled him in an inappropriate way. Further, the proof was insufficient to prove any unreasonable restraint was used by Respondent during this incident with T.C. Incident Involving P.M. Lewis described P.M. as a non-verbal and out of control student, who destroyed his home and wiped feces everywhere. Lewis claimed that Respondent decided to work with P.M. in his classroom one-on-one during lunch.11/ One day Lewis walked into Respondent's classroom and saw P.M. sitting on a yoga ball with no teacher in sight.12/ She then heard the toilet flush, and Respondent walked out of the bathroom. The aides were instructed that no student should ever be left alone. St. Jacques' statement indicates he (St. Jacques) was always assigned to supervise P.M. when Respondent was at the school, and that he (St. Jacques) was supposed to be with P.M. on the day in question. Apparently, P.M. was another student who needed full-time supervision. Evidently, P.M. liked to walk around the classrooms and would walk into Respondent's classroom on occasion. St. Jacques would always redirect him. When P.M. wandered into Respondent's classroom, it would only be for about 30 seconds. There was never a time that Respondent was responsible to supervise P.M. during his planning period, or at any other time. It was always the responsibility of the paraprofessional to supervise and attend to P.M. Even if Respondent was working with P.M., St. Jacques was responsible to be with him. Respondent testified, consistent with St. Jacques, that he never worked with P.M. without the aide present. He was never assigned to supervise P.M. in lieu of the aide, because that would have changed P.M.'s Individualized Education Program. Students were not allowed in Respondent's classroom during his planning period, except to be escorted to use the bathroom. Respondent testified that there were times that he would transition back from a class and P.M. would be in his room using his sensory equipment, but he would always be with St. Jacques. One time when he came out of the bathroom during his planning period, he observed P.M. in his room with Lewis, who sometimes covered for St. Jacques during the other paraprofessional's break. During the period of time that Respondent was in the bathroom, he was not assigned or supposed to be supervising P.M. He was surprised to see P.M. when he came out of the bathroom during his planning period. The allegation that Respondent failed to properly supervise P.M. and left him alone while Respondent used the bathroom was not proven by clear and convincing evidence. The more persuasive evidence at the hearing indicated that Respondent was not assigned to supervise P.M. at the time of this particular incident. The testimony of St. Jacques supports Respondent's version and this finding. Whatever Lewis saw, or thought she saw, was not persuasive or sufficient to establish by clear and convincing evidence that Respondent left P.M. unattended in his classroom for 20 minutes or failed to supervise a student assigned to him. Exposing a Student to Unnecessary Embarrassment or Disparagement Lewis further testified that there was an incident involving students who wanted to use calculators during math class. J.M. wanted to use the calculator, but Respondent would not let her use it. The student had to be taken from the room because she screamed and carried on when not permitted to use the calculator. Apparently, Respondent wanted her to learn to do math without a calculator. There were two other students who Respondent also did not allow to use the calculator. In response to the various requests, Respondent commented, "This is ridiculous. You guys are stupid if you can't do this without a calculator. You need to have life skills in order for you to be successful outside of the classroom." There was not a shred of proof offered or adduced at the hearing that Respondent "put his hands on" any of these students.13/ Furthermore, there was no clear and convincing proof that Respondent intended to expose these math students to unnecessary embarrassment. See Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1996). Respondent denied that he ever called any of the students a derogatory name or called any of them "stupid." Lewis agreed that it was Respondent's role as the teacher to determine whether a calculator was used. She claimed that St. Jacques was in the room when Respondent called the girls stupid and heard him say it. St. Jacques' attested in his written statement in a contrary manner. Resp. Ex. 3. He said that he never witnessed anything inappropriate between Respondent and any students, including the girls involved in the calculator incident, J.M. and Rebecca. St. Jacques never witnessed Respondent mistreat the math students referred to by Lewis. Respondent was always respectful to the students and he never saw Respondent embarrass or ridicule any of them. Respondent testified that he treated the students in general with compassion and respect. He denied he ever called them names other than their own and never embarrassed any student or called them names because they wanted to use the calculators. Based upon the more persuasive and credible evidence adduced at the hearing, the allegations of belittling the math students and calling them "stupid" were not proven by clear and convincing evidence. There was insufficient proof to establish that Respondent intended to unnecessarily ridicule, demean, or belittle any particular student The testimony of St. Jacques bolsters Respondent's testimony on this point. The undersigned credits Respondent's testimony and finds it more persuasive. The undersigned finds that there was no clear or convincing evidence to conclude that Respondent's actions or statements to the girls regarding the use of the calculator, constituted a violation of any statute, policy, or rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Amended Administrative Complaint against Jeffrey Voner. DONE AND ENTERED this 30th day of April, 2018, 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 30th day of April, 2018.
The Issue The issue in this case is whether the termination of Respondent's employment by Petitioner is justified and consistent with the requirements of the Collective Bargaining Agreement between Petitioner and the Sarasota Classified/Teachers Association (of which Respondent is a member).
Findings Of Fact Petitioner is the Sarasota County School Board, the entity responsible for operating, monitoring, staffing, and maintaining the public schools of Sarasota County. The School is a public high school established in 2001. It is located at 6400 West Price Boulevard, North Port, Florida. The school had a student body in excess of 2,600 students at the beginning of the current (2008-2009) school year, but that has declined to 2,500 as of the date of the final hearing in this matter. Respondent, Ronald Davenport, was employed at the School as a campus security monitor (also known as a security aide) from 1988 until December 5, 2008. Respondent is an African-American male. Respondent is a "classified" employee under the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and the District (the "Collective Bargaining Agreement"). On December 5, 2008, Respondent was reassigned or transferred from the School to McIntosh. The reasons for the transfer will be more fully discussed below. During Respondent's tenure as a security monitor at the School, he received a number of written disciplinary letters or memoranda. Under the District disciplinary policies, written reprimands are issued only after verbal reprimands have been issued and proven ineffective. Respondent's discipline to-date has included the following: On November 22, 2004, Respondent was given a Record of Verbal Reprimand concerning his failure to responsibly monitor students while on duty. A written reprimand was given to Respondent on January 4, 2005, concerning improper contact with students and work performance. In April 2005, Respondent was suspended without pay for a period of three days. The basis of the suspension was Respondent's insubordination to superiors. In January 2006, Respondent was again suspended without pay, this time for a period of ten working days. This suspension was based on Respondent's failure to perform his work responsibly, use of school computers for personal reasons, and insubordination. A letter of instruction (which is not technically a disciplinary action) was given to Respondent on April 12, 2007, concerning his actions while driving on campus. Respondent received other verbal reprimands and letters (memoranda) of instruction in addition to those set forth above. It is noted that two suspensions for a single employee is very unusual; grounds for a second suspension would normally warrant termination of employment. However, Principal Kenney stated that at the time of the second suspension, he wanted to give Respondent another opportunity, even though dismissal was probably warranted. (Likewise, the aforementioned transfer from the School to McIntosh was another effort by Kenney to sanction Respondent without resorting to termination of employment.) In the Fall of 2008, a student at the School spat water on Respondent. The student received a three-day suspension and a deferred expulsion1 for his actions. A few weeks later, a different student spat water on a Caucasian security monitor. That student received a five-day suspension and a deferred expulsion for the remainder of the year. The student in the second incident, however, had a disciplinary history while the student who spat on Respondent did not. That is the reason for the slight disparity in punishment. Respondent was unhappy about the second student being treated more harshly and surmised that the reason for the difference in punishment was that he (Respondent) was African- American while the other security monitor was Caucasian. That being the case, Respondent contacted Mr. Trevor Harvey, president of the local NAACP chapter, to complain. Harvey contacted Principal Kenney, and the two agreed to meet at Kenney's office on December 5, 2008, to discuss possible racial issues at the School. On December 4, 2008, Respondent was observed handing out a note or flyer to students. The flyer, which was copied from a handwritten original, included the following bullet points: An instruction asking the reader to make a copy and tell a friend about the contents of the flyer. A request to have parents and students call various news agencies (whose telephone numbers were listed at the bottom of the flyer) and request that reporters be sent to the School the following day (December 5) to attend an NAACP meeting at the School. A statement of the writer's belief that the District and the School promote intolerance, bias, and double standards concerning people of color. A statement specifically addressing Respondent's confrontation with a student earlier in the year. Another statement urging the reader to submit their own concerns to administration that day or early on the following day. Respondent denies writing the flyer or having anything to do with its distribution to students. However, he does admit distributing copies of the flyer to other employees at the school, including Jacqueline Pollard, a teacher, and Wesley Johnson, the senior head custodian at the School. Both Pollard and Johnson are African-Americans. Other employees, including Mr. Johnson, saw Respondent handing out a sheet of paper to students on December 4, 2008, which they presumed to be copies of the flyer. The flyer had been discovered by administrative staff at the School on December 4, 2008, after an altercation between some girls on campus. While the girls were being questioned in the administrative offices, one of them provided staff with a copy of the flyer. The student did not know from whom she had received the flyer, but said it was being distributed around campus. At least one teacher told the administrative office that a student in her class received the flyer from Respondent. Respondent was seen distributing an unidentified sheet of white paper to students on the afternoon of December 4, 2008, and the morning of December 5, 2008. Respondent maintains that all he gave students was a handwritten Christmas greeting which said, "Happy Holidays and [peace sign] on Earth. God bless Obama & God bless the U.S.A. Mr. Ron, Security." On the morning of December 5, 2008, Respondent was observed by Assistant Principal Wilks talking to a group of students. Wilks heard Respondent tell the students to go to the Performing Arts Center ("PAC") for the purpose of attending the NAACP meeting. Many of the students then headed toward the PAC. Wilks then redirected the students toward their assigned classrooms. Respondent denies he told students to go to the PAC for a meeting; he says he directed them all to return to class. Based on Wilks' interaction with students shortly thereafter in the area of the PAC, her testimony on this point is more credible. After hearing Respondent talking to the students, Wilks went to the PAC, which is located at the front of the campus. Several groups of students showed up at the PAC and said they wanted to attend the NAACP meeting. They were told that there was no meeting at the PAC that day in which students were authorized to attend. One of the students advised Wilks that her "uncle" had told her to go to the PAC for the meeting. Respondent concedes that the student was referring to him (although she is not actually his niece). Respondent denies telling her to go to the PAC for a meeting. There was in fact a meeting at the School on December 5, 2008, between the principal, Dr. Kenney, and the NAACP representative, Mr. Harvey. However, that meeting was held in the principal's office, not at the PAC. The meeting went well and Mr. Harvey left the campus seemingly in agreement with how the School was handling interactions between racial groups.2 It was determined by the School administration that Respondent's apparent involvement in the effort to disrupt the NAACP meeting made his continued employment at the School impractical. However, rather than seeking to terminate Respondent, it was decided that he could be transferred to McIntosh to serve as a security monitor at that school.3 On the evening of December 5, 2008, after school hours, Respondent was called at home and told that he was being reassigned. On December 6, 2008, Respondent came to the School to empty out his employee locker and retrieve his personal items. He asked that this process be supervised and/or taped, so there were persons observing him as he did so. Respondent then reported to McIntosh for duty. Employees are not allowed to use school copying machines for personal use (without prior approval from administration). Each employee is assigned a code to use when making copies so that the School can monitor the use of copy machines. On the Monday following Respondent's reassignment to McIntosh, a media specialist printed out a "user chart" for one of the school copy machines located in the mailroom. The user chart showed that Respondent had made 465 copies on that machine since the beginning of the 2008-2009 school year. Principal Kenney could not think of any justification for Respondent making that many copies. Respondent does not remember what he copied, but notes that another security monitor made many more copies than Respondent did. Respondent did not deny making the copies, but was unaware of the requirement to get permission first. Just three weeks before the NAACP meeting incident, while Respondent was still working at the School, his supervisor was looking for him on campus. Respondent did not respond to calls over the walkie-talkie (radio) system used for communication purposes. Respondent had not signed out in accordance with the well-known policy to do so, but was observed off-campus at a gas station. The failure to sign out is an actionable violation of Respondent's employment. On December 18, 2008,4 Larry Leon (chief of school police and director of safety and security) and Sam Wilson went to McIntosh to provide Respondent a sealed envelope. The envelope contained a notice concerning an upcoming meeting. After Respondent failed to answer numerous radio calls from Wilson, Wilson asked McIntosh's assistant principal, Hazuda, to make an attempt to call Respondent. Hazuda called Respondent, who showed up at Hazuda's office in a matter of minutes. Upon seeing Wilson in the office, Respondent was visibly upset. He said something to Hazuda about being "set up" and that he was being harassed. Respondent refused to accept the envelope, said he was sick, and left Hazuda's office to go to the school clinic where he signed out for the day. When Wilson tried to talk to him, Respondent simply raised his hands above his head and walked away. Hazuda's efforts to make Respondent remain at the school and go back to work were not successful. Hazuda's testimony on this point is extremely credible. As Respondent was leaving the clinic, Leon called out to him. Respondent ignored Leon and continued to leave the building. Leon followed and called out loudly to Respondent, asking him to stop. Respondent swore at Leon, saying "F**k you" and continued to walk toward his car. At no time did Respondent turn around and engage in face-to-face conversation with Leon.5 On January 5, 2009, Police Chief Leon and Wilson returned to McIntosh with another written notice to be delivered to Respondent. Letters had been sent to Respondent about the upcoming meeting, but no response had been received. (Respondent had signed one copy of a notice, but left it on the counter in the administration offices rather than returning it as asked.) So, Wilson and Leon again tried to hand-deliver a copy of the notice to Respondent. Numerous attempts to contact Respondent via radio on January 5, 2009, were unsuccessful. Finally, someone who had heard the radio calls advised Respondent that he was being summoned to the front office. Respondent surmises that his radio might not have been functioning properly at that time, so he didn't hear the calls. When Respondent got to the office, he decided to check out for the day because he was feeling ill. He left without accepting delivery of the written notice. Subsequently, on January 15, 2009, a Weingarten hearing was conducted on the issues relating to the December 5, 2008, NAACP meeting at the School and the two incidents at McIntosh. Respondent attended the hearing and presented responses to the allegations of misbehavior. Based upon the information gathered at the Weingarten hearing, the District decided that termination of Respondent's employment was warranted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Sarasota County School Board terminating the employment of Respondent effective February 18, 2009. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 26th day of June, 2009.
Findings Of Fact Donald Wieber holds certificate number 192912, Rank II, covering the areas of elementary education, junior college, administration, and supervision, which expires on June 30, 1985. Mr. Wieber, the Respondent, was employed by the Dade County School Board for thirteen years. He served as a teacher for seven years, a Community School Director for two years, an Administrative Assistant to the Principal for three years, and an Assistant Principal for one year. II. FILM AT DEVON AIRE BLOCK AND MASON PRESENT IN OFFICE In August 1980, Donald Wieber was appointed by the school board to serve as assistant principal at Devon Aire. When he began, Emma Mason was already serving as secretary and Sandra Block as librarian. Sometime in late September or early October 1980, Francis G. DeLaurier, the principal, directed Librarian Block to videotape an educational television broadcast by Dr. Willamerle Marshall related to Individual Educational Plans (IEPs), so that it could be shown later to teachers who missed the broadcast. Shortly thereafter, Respondent, at DeLaurier's direction, asked Block if she had made a copy of the "Marshall" tape. Upon finding out that such a tape existed, Respondent then asked Block to set up a videotape machine in DeLaurier's office around noontime for showing the IEP tape. After the videotape machine had been delivered to DeLaurier's office, DeLaurier personally invited Block to see the film. Additionally, around this same time, DeLaurier invited Mason into his office to see the "Marshall" film. WHOSE FILM WAS IT? At approximately 11:00 a.m. on the morning that the film was shown, DeLaurier sent Respondent to investigate a problem with insects. Complaints had been received about children being stung by bees in the area of the portable classroom buildings at Devon Aire. In looking for the bees, Respondent crawled under a portable classroom and found a paper bag. Inside the paper bag was a videotape cassette with no label. After completing the bee inspection, Respondent took the cassette in the bag to DeLaurier's office. When Respondent entered with the bag, DeLaurier was talking on the telephone. He interrupted his call when Respondent showed him the videotape cassette. Respondent indicated where he had found the cassette and stated he did not know its contents. DeLaurier then directed Respondent, "Well, put it on the machine and [let's] see what's on it." DeLaurier then returned to his telephone conversation. As instructed, Respondent placed the tape on the videotape machine and turned it on. SHOWING THE FILM As Respondent was placing the unmarked videotape cassette into the machine, Block and Mason came into DeLaurier's office to fix their lunches and watch the "Marshall" tape. It is undisputed that the tape which Respondent found and which began to play while Mason and Block were watching the screen was a videotape displaying overt sexual activity between naked men and women. However, the tape admitted into evidence as Petitioner's Exhibit 1 is clearly not the videotape which was shown at Devon Aire, and any similarity between that exhibit and the film observed that day is only that--a similarity. The videotape began to play, and Block watched for approximately forty- five seconds. She then said to Mason, who was making a sandwich, "Are you sticking around for this?" Mason answered, "Yes, why not?" However, Mason had not yet looked up and observed the contents of the tape. Block then left DeLaurier's office. Approximately three minutes later, Mason left DeLaurier's office, and the two women went to a nearby office to finish their lunch. After Block and Mason left, DeLaurier completed his telephone call and, for the first time, observed the screen of the videotape machine. It was then that he learned that the unidentified cassette contained such sexually explicit material. DeLaurier and Respondent watched the sexually explicit tape for approximately an additional six to seven minutes. At some point during that lunch hour, Respondent and DeLaurier were joined briefly by Rosalie Luis, who viewed a few seconds of the film and left. At no time were children present in DeLaurier's office while the videotape was being viewed. In fact, the screen was not in a position to be viewed by anyone who did not come into the office and walk to a position where they could view the screen. Additionally, later during that lunch hour, the "Marshall" tape was actually played. After viewing the tape for a few minutes, DeLaurier ordered Respondent to take the cassette and "get rid of it fast." Respondent complied and disposed of the tape by running it through a garbage chute behind the cafeteria. He handled disposal of the cassette in this manner in order to ensure that no child could come into possession of the cassette. KNOWLEDGE AND INTENT At the time the videotape was turned on, Respondent did not have any knowledge of its contents. The videotape machine had been set up to play the "Marshall" tape and, in fact, was used for that purpose. There is no evidence to indicate that Respondent intended to or did lure or trick Block or Mason into seeing a sexually explicit film. After Respondent became aware of the contents of the tape, he and DeLaurier did watch it for approximately seven minutes and another staff person, Ms. Luis, did inadvertently observe a few seconds of the film. To this extent, Respondent did participate in the showing of a film portraying nude bodies and explicit sexual activities at his office at Devon Aire Elementary School during school hours and while members of the school staff were present. THE AFTERMATH After the September incident involving the videotape, Block, Mason and Luis continued to work at Devon Aire Elementary School. Respondent continued to perform his duties, and there was no evidence that the film incident had adversely affected his job performance or his relationship with the school staff and teachers. In fact, between September 1980 and January 1981, the only two persons who were offended by the film (Mason and Block) did not report or complain about the incident to any school authority. Luis was not overly concerned about her exposure to the film, and she continued to work well with Respondent. In January 1981, Mason reported the incident to Renee Kachman, a person generally known to be critical of DeLaurier and who had, in the past, expressed an interest in and intention to get DeLaurier removed from Devon Aire Elementary School. Soon thereafter, the school board launched an investigation. The entire episode became a matter of public interest after a series of articles were published in the Miami Herald. Even after reading the article in the May 2, 1981, issue of the Miami Herald, most of the staff members and teachers at Devon Aire Elementary School signed a petition requesting that Respondent be reinstated as assistant principal. Ultimately, however, the school board instituted dismissal proceedings. III. LIQUOR ON HIS BREATH There is no credible or competent evidence that Respondent was ever present at school during working hours with the odor of liquor on his breath. IV. RESPONDENT'S WORK PERFORMANCE AND OTHER MITIGATING FACTORS Prior to the alleged misconduct, Respondent had an outstanding, and even exemplary, record as both a teacher and administrator. No negative comment or complaint was ever made against him. His evaluations from his superiors, both as a teacher and as an administrator, were excellent, often the highest rating obtainable. In one evaluation, he was recognized as a "dedicated professional who always goes the 'extra mile.'" Respondent was described as a phenomenal teacher by a member of the school board's South Central Area Office staff who had previously worked with him at Key Biscayne Community School. This testimony indicated that Respondent had the ability to motivate children to accomplish far more than they thought they were capable of, and that parents wanted their children to be assigned to Respondent's classroom. Respondent has earned the respect and friendship of many parents, teachers, and staff members. They petitioned and testified on his behalf and asked that he be reinstated.
Recommendation Having considered the foregoing findings of fact, conclusions of law, and the evidence of record, as well as the pleadings and arguments of counsel, it is RECOMMENDED: That the Respondent's teaching certificate be reprimanded. DONE and ENTERED this 11th day of May, 1984, in Tallahassee, Leon County, 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 11th day of May, 1984. COPIES FURNISHED: Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Alan B. Oppenheimer, Esquire Suite 120, 1515 North West 7th Street Miami, Florida 33125 Ralph Turlington, Commissioner Department of Education The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether just cause exists to sanction Respondent, Diana O'Neill (hereinafter "O'Neill"), for violation of Florida Statutes and Florida Administrative Code Rules governing the conduct of teachers in the State of Florida, and, if so, what sanction(s) should be imposed.
Findings Of Fact The Department is responsible for overseeing all teachers and staff members of public schools in the State of Florida. It is the duty and responsibility of the Department to ensure that all teachers follow the rules of professionalism and conduct set forth in the Florida Statutes and the Florida Administrative Code. The Department issues a teaching certificate to each instructor employed by a school and has the right to sanction teachers for wrongdoing. Sanctions may include revocation of the teaching certificate. At all times relevant hereto, O'Neill was employed by the School as a teacher for severely and profoundly mentally handicapped children. During the School Year, O'Neill had five or six students in her classroom. Relevant to the discussions herein, three of those students are identified as O., A., and T. O'Neill has a master's degree in curriculum and instruction, a bachelor's degree in science and education, and a certification in elementary and special education. She has been certified as a teacher in Florida for over 21 years. She was hired by the School in 1990 and taught mentally handicapped children there without interruption until January 29, 2008. In all the years O'Neill taught at the School, she received only superior evaluations and had never been subject to discipline. During the School Year, however, there were a number of complaints made against O'Neill by her classroom teacher's aides that resulted in O'Neill's suspension and removal from the classroom. Those allegations form the basis of the Department's decision to impose sanctions against O'Neill. The Students O. was seven years old during the School Year. At ten weeks of age, O. had been diagnosed with a genetic heart disorder which necessitated open-heart surgery. As a result, O. is developmentally delayed and has severe hearing loss and some negative vision issues. O. understands some of the things going on around her to a limited degree. She says only one word, "Go," and cannot generally communicate with others. She laughs at certain things, feels pain, and is only slightly ambulatory. O. is not toilet-trained and has no sense of danger or awareness of potential harm around her. A. was eight years old during the School Year. He has an atypical type of Downs Syndrome, i.e., while he does not have the physical appearance of a Downs Syndrome child, he does have the low muscle tone. A. was only beginning to learn to walk during the School Year, but he could see and hear well. He is not toilet-trained and needs assistance with all aspects of his daily activities. When he began walking, A. utilized a standard walker, then graduated to a pull-behind walker that helped him stand more upright. When A. would tire of walking, he would simply drop to the ground wherever he was at that moment. Due to some gastro-intestinal problems, A. had a G-Tube port surgically inserted in his stomach. The G-Tube port must be cared for in order to prevent infection. T. is a profoundly mentally handicapped girl, who was 11 years old during the School Year. She has a condition called hemimegalencephaly and experiences seizures. T. has only minimal vision and cannot walk or talk. She can hear sounds and directions and is able to move her hands and arms. When she was very young, T. underwent an operation called a hemispherectomy that resulted in a row of stitches across her entire skull. The area around the stitches is very sensitive, and T. dislikes having her head touched for any reason. During the School Year, T. was placed in a device called a "Stander" that allowed her to stand upright for limited periods of time. She seemed to like the Stander and her parents approved of it, but that device is no longer used at the School. Due to the extensive nature of her condition, all therapies for T. have been discontinued. The Classroom O'Neill's classroom during the School Year was set up so that she could deal with the various issues confronting severely mentally and physically handicapped children. The classroom contained restrooms for toileting the children and various equipment and furnishings to assist in their educational training. The primary focus for O'Neill was to develop as much independent functioning for the students as possible based upon their individual abilities. None of the students in O'Neill's classroom was able to understand even rudimentary academic work, so the focus was on various daily living needs. There were two teacher's aides in the classroom during the School Year: Cooke and Anderson. Cooke was basically trained as an aide, beginning with her first position in 2004. She attended college for three years, but did not graduate. She also worked with O'Neill during the 2006-2007 school year, i.e., the year immediately prior to the period at issue in this proceeding. Anderson had previously worked in O'Neill's classroom in the 2004-2005 and 2005-2006 school years. Anderson worked at a different school in the 2006-2007 school year. When Anderson elected to return to the School in 2007, O'Neill (who was the union representative at the School), provided her with some assistance. The degree or kind of assistance is disputed, but it is clear that O'Neill did not object to Anderson returning as her aide. Both aides in O'Neill's class respected her and believed she knew how to teach mentally handicapped children. Both admitted learning a lot from O'Neill. The aides, however, were somewhat intimidated by O'Neill, ostensibly due to O'Neill's status as a union representative. There does not appear to have been any social interaction between O'Neill and the aides outside of the school setting. It was the duty of the aides to assist O'Neill in the classroom. O'Neill gave them certain tasks and expected the aides to perform them independently and effectively. O'Neill created a kind of calendar setting forth each aide's duties on a weekly or monthly basis. The aides would perform many of the same tasks done by O'Neill, and there appears to have been a generally amiable relationship between the women during the first part of the School Year. In addition to the aides, there were other adult visitors to the classroom. One of the students had personal nurses who would come into the classroom on a regular basis to care for the child. Physical therapists, occupational therapists, speech and language pathologists, and other teachers, as well as the School principal would be in the classroom at any given time. The room itself had two doors, one that opened up to the hallway and one that connected the classroom with a large therapy room. Neither of the doors was kept locked on a regular basis, but sometimes the door to the hallway would be locked if someone forgot to physically unlock it in the morning. There was a window out to the hallway, but that window was covered up with equipment and the blinds closed at all times. O'Neill's Actions In the first half of October 2007, during the School Year, O'Neill decided to attempt the use of a gait belt on A., based on A.'s actions. He would often refuse to cooperate when moving from the classroom to another room, he would sometimes wander off, and he would often just sit down wherever he was. A gait belt is a strap that can be secured around the torso of an individual and used as a means of assisting the person when they are walking. Gait belts are used on physically handicapped individuals, the elderly, and children. A. had become less cooperative as he became more ambulatory, and he would often attempt to elope instead of returning to the classroom. O'Neill believed that a gait belt would be helpful in this regard. One day as the lunch period was ending and the class was preparing to return to the classroom, O'Neill wrapped the gait belt around A., just below his armpits. She did not put the belt lower, because she was being careful to avoid A.'s G-Tube site. As she held the door open for other children, she felt A. starting to slip away and held the belt taut so as to keep him from eloping. At this point, the descriptions of the event differ greatly between O'Neill and the aides. O'Neill says she felt the belt get taut, then looked down and saw that A. had lifted his feet off the ground by bending his knees. She then lowered him to the ground and directed him to stand. At the same time, she lifted up on the belt to assist him with rising up. Once he was off the ground, however, he refused to unbend his knees, and she was essentially holding him up in the air again. She lowered the belt and again ordered A. to stand up. She raised him up a third time, but he still would not cooperate. Frustrated, she removed the belt and got A. to return to the classroom by manually picking him up every time he dropped to the ground. Cooke remembers A. being placed in the gait belt. As O'Neill had said, A. was not being cooperative. However, in response to him falling to the ground, O'Neill began to yank the belt--and A.--up and down like a yo-yo, yelling at A. the entire time. The situation made Cooke very uneasy, and she thought O'Neill's actions were improper. Anderson remembers O'Neill warning A. that if he did not begin to walk back to the classroom, she (O'Neill) would get the gait belt. A. would sit, O'Neill would "boot him in the bottom," and he would only move a little. So, O'Neill eventually got out the gait belt and put it on A. She then started yanking A. up and down by the belt "like a yo-yo." Anderson told O'Neill to stop because she believed O'Neill's actions were improper. O'Neill laughed at Anderson, but she also stopped yanking on A. There was some evidence of abrasions or bruises on A. at about the time of the incident, but the testimony was insufficient to prove that the marks were caused by the gait belt. The testimony of the two aides is more credible based upon their corroboration of each other, their absence of pecuniary interest in the matter, and their demeanor. This is not to say that O'Neill does not remember the event exactly as she described it, only that the description provided by the aides seems more believable in consideration of all the testimony. During the School Year, O'Neill began to strike the students with various objects, e.g., a water bottle wrapped in a koozie, a tennis ball sleeve wrapped in carpet, a small catalogue or magazine, and a cardboard sign covered with a piece of carpet. O'Neill referred to the striking as a "bop" on the head or arm, done lightly and solely for the purpose of getting the child's attention or playing with them. Again, the aides' perception differs. They remember the strikes to be much heavier in nature, done in anger or frustration. There is no way to ascertain with any degree of certainty as to how O'Neill used the objects on the students. T. had one physical condition that is of significance to this matter. Due to her physical development, T.'s bottom lip would often become dry and flaky. It was necessary to keep ointment on her lip and to carefully cut off the dried skin at times. T.'s grandmother would often come to the school and take care of that task. On at least one occasion, but likely more than once, O'Neill pulled the dried skin off T.'s lip, rather than remove it with scissors. O'Neill admits to pulling the skin off during a school year prior to the year at issue. She says it was done because she did not want T. to go out in public with an aesthetically displeasing appearance. Cooke, however, remembers numerous instances during the School Year in which O'Neill would "yank [the skin] right off her mouth." T. would utter a cry of pain, and O'Neill would simply laugh as if it were a funny thing she had done. Cooke said T.'s mouth would bleed when this happened, but T.'s mother did not testify as to whether she saw evidence of bleeding when T. came back from school. O'Neill would also be somewhat caustic in her comments about the students. She often referred to O. as "Oblivia" and said T. was "just sitting there, using up oxygen" (or something to that effect). When an aide raised questions about striking the children with objects, O'Neill said something akin to, "So what, am I going to cause them brain damage?" O'Neill admits that her language was sometimes curt and that she used dark humor in order to deal with a very stressful job. She denies ever saying anything meant to harm or demean the students she taught. O'Neill struck one student, T., on one occasion, although the exact nature of the event is disputed. One day while attempting to instruct T. how to distinguish between food and drink, O'Neill got frustrated. Despite O'Neill's best efforts, T. would not cooperate by selecting the appropriate picture placed in front of her. After numerous attempts, O'Neill finally gave up and brushed her hand against T.'s head. O'Neill described the action as a soft brushing of T.'s hair; the aides remember it differently. They describe O'Neill actually hitting T. with a backhand motion, striking her with sufficient force to make T.'s head move suddenly. The aides saw that event as egregious enough to report immediately and went straight to the principal's office. The aides' reporting of the incident with T. was, in their view, necessary in order to prevent O'Neill from further inappropriate behavior. While they had been reticent to report O'Neill earlier because she was a union representative and held some degree of authority over them, they finally had seen too much. The aides had reported O'Neill's behavior to the school nurse earlier. After that report, O'Neill stopped her questionable behaviors for a while. The behaviors returned however, and apparently got worse. In response to the report, the principal placed O'Neill on administrative leave pending an investigation. She had been aware of prior alleged incidents involving O'Neill, but did not take any action at that time as it appeared the situation had been resolved by the aides' reporting to the nurse. However, the latest incident, an alleged assault on a student, required immediate action. As a result of her investigation, the principal then withdrew O'Neill permanently from the classroom. O'Neill has a long history of working with mentally handicapped students. She started work in this area while still a high school student and became enamored with the subject from the beginning. In addition to her teaching duties, O'Neill has also done extensive volunteer work with the special needs students. It is quite obviously her passion. O'Neill is married and has a stepson. Her mother now resides in the Sarasota area. She does not acknowledge any particular stressors in her life during the School Year, but her behavior indicated otherwise. Besides the aforementioned actions concerning her students, O'Neill's interaction with other professionals was also somewhat strained. At least one professional consultant who interacted with O'Neill during the School Year reported that she was less flexible and agreeable than in the past. O'Neill's aides saw a great difference in her demeanor and behavior in that year versus prior years. O'Neill denies feeling "burned out" during the School Year, but there are numerous indicators to suggest that her behavior had changed. The nature of her actions, vis-à-vis her students, who she seemed to love, suggests a high degree of stress. Her behaviors during the School Year were so different from her historical style that something must have been amiss in her life.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Dr. Eric H. Smith, Commissioner of Education, imposing upon Respondent, Diana O'Neill, the following penalty: Suspension of Respondent's teaching certificate through the end of the 2010-2011 school year, followed by two years of probation. DONE AND ENTERED this 27th day of April, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 27th day of April, 2011. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154 Anthony D. Demma, Esquire Meyer, Brooks, Demma and Blohm, P.A. Post Office Box 1547 Tallahassee, Florida 32302
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact During all times relevant hereto, Petitioner served as head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes (2015),1/ against teachers holding Florida educator certificates. Respondent holds Florida Educator Certificate 725789, covering the areas of middle school integrated curriculum and physical education, which is valid through June 30, 2020. During all times relevant hereto, Respondent was employed as a physical education teacher at Lehigh Acres Middle School in the Lee County School District. Respondent has been a Florida educator for 24 years, all with the Lee County School District. The Administrative Complaint, as to the material allegations, contends that “[o]n or about February 18, 2016, Respondent engaged in a physical altercation with 13-year-old, female student, A.O., when A.O. refused to give Respondent A.O.’s cellphone [and that] Respondent held A.O. to the ground during the altercation.” The Video The altercation in question took place in the school gymnasium (gym). Activities in the gym are monitored by at least a single video surveillance camera. The images captured by the video camera are somewhat grainy, but it is possible to glean from the images the general nature of the interaction between Respondent and the student in question; there is, however, no audio associated with the surveillance video. Respondent is seen on the surveillance video walking around the gym while students (approximately 40) are positioned on the floor throughout the gym. The video shows student A.O. sitting on the gym floor with her back against the bleachers. It appears from the surveillance video that the nearest student to A.O. is approximately eight to ten feet away. The video also shows that Respondent appears to weigh at least twice as much as A.O. and stand at least four inches taller. It is undisputed that Respondent, while moving about the gym, observed A.O. using her cellphone. The video shows Respondent moving towards A.O. When she is approximately three feet from A.O., Respondent communicates in some way to A.O. that she needs to give Respondent her cellphone. The student, while continuing to sit on the floor, is then seen either placing or attempting to place the cellphone in the right- rear pocket of her pants. Respondent, without pausing, then positions herself over the student and attempts to remove the cellphone from either the student’s pocket or hand. The student then rolls onto her right side and positions herself so that her right rear pocket is pressed against the gym floor. At this time, the student is in a near fetal position. Respondent, while continuing to stand over the student, then tussles with the student for about 10 seconds while attempting to take the cellphone. The student then extricates herself from Respondent’s grasp, and while rising from the floor is then pushed in the back by Respondent, which then creates about an arms-length distance between Respondent and the student. The student, while standing, then turns towards Respondent and appears to swing at Respondent with her left hand. Respondent knocks away the student’s extended left arm and then pushes the student onto the lower bench portion of the bleachers. The student lands on her butt and then immediately rises and moves towards Respondent. Respondent and the student’s arms then become entangled. While their arms are entangled, Respondent pushes the student back several steps, forces the student into a seated position on the bleacher bench, and then pushes the student to the gym floor. Respondent then positions herself on top of the student and subdues her by pinning her to the gym floor with her right leg over the student’s left leg and her left leg across the student’s upper back and shoulder area. Respondent released the student after approximately 40 seconds. Before releasing A.O., the video shows that many of the students in class rushed to the area of the gym where the altercation occurred, formed a semi-circle around Respondent and A.O., and recorded the incident on their cellphones. A cellphone video capturing portions of the incident was admitted into evidence, and on this video, a student is heard suggesting to another student that the recording of the altercation should be posted to YouTube. Student A.O. A.O. was in the eighth grade when the incident with Respondent occurred. A.O. did not testify at the disputed fact hearing, but she did submit written statements to school officials following the altercation with Respondent.2/ On February 22, 2016, A.O. provided the following written statement: I was sitting down on my phone like some other kids were doing to, not knowing I wasn’t allowed to use it because it’s my first day in gym. So Ms. Parsons said give me the phone so I said no, I’m sorry Miss, and when I went to reach for my pocket to put it in and she reached down and pushed her elbow and arm up against my neck and chest so I was on the ground flat by that time and we ended up both getting up and trying to get the phone and she ended up pushing me and then somehow she ended up holding me down by holding my arms and sitting on top of me. After she had pushed me on the bleachers she had lightly hit my leg so I hit her in her head. On August 17, 2016, A.O. provided an additional written statement, which reads as follows: I would like to add, that when she was above me after she put her forearm on me I did not feel safe so I stood up. Also when she had pushed me on the bleachers and kept wrestling with me I had been kicking her so she could leave me alone. After I was escorted to ISS, then Mr. Restino’s office, I was brought to the clinic after he had seen the video and Ms. Garcia took pictures of all my red marks and some scratches, they weren’t deep though. Respondent’s Version of Events On February 18, 2016, the date of the altercation in question, Respondent prepared the following written statement: This afternoon as I was walking around the classroom monitoring the students, I was checking to make sure that the students were working on their projects. I saw that the young lady in question was on her phone. I asked her to give me her phone and I reached my hand out for the phone. She snatched it away and I continued to ask her for the phone. I took the phone and she said I wasn’t getting her phone and struggled with me. I got the phone and she stood up and punched me in my right ear. I pushed her back and she came at me again so I pushed her back again. She kicked me in the stomach. I grabbed one of her arms and her leg as she went to kick me again and I brought her down to the floor. I put my knee on her back as I held her arm and leg. I told her that I could not believe that she would do this over a phone [and] that I probably would have given it back to her at the end of the class period since it was near the end of the day. She said that she didn’t know that because she was new. I told her even if she was new that you don’t hit a grown-up or a teacher like that. I told her that I was going to let her up. She said okay. By that time coach McDowell came over and said th[at] coach Steidl had called for assistance. Deputy Matthews came in and I explained what happened. He talked with her for a few seconds. I asked him if I should give him the phone or give it back to her. He said to give it to her so I did and they left. Later, I noticed that I had some scratches and blood on my arm and I went to the clinic to get my arm treated. On June 30, 2016, Respondent sent an email to the human resources department for the School Board of Lee County. In this missive Respondent notes, in support of her belief that she did nothing wrong in this situation, that during the fracas with A.O. “students were cheering” for Respondent and that throughout the incident she was merely “responding to [A.O.’s] inappropriate and disrespectful behavior.” Respondent testified during the final hearing and her testimony was in material part consistent with her written statements. Cellphone Policy Ms. Neketa Watson was the principal of Lehigh Acres Middle School during the 2015-2016 school year. According to Ms. Watson, the Student Code of Conduct in effect at the time of the incident in question provides as follows: Students may possess cell phones and other personal electronic devices while on school grounds during regular school hours, however they must be turned off at all times unless utilized for an approved activity. Cell phone usage is allowed during non-instructional time or for an approved activity. Possession of all personal electronic devices, including cell phones, is done at the student’s own risk and the school assumes no responsibility, legal or otherwise, with regard to these items. During the 2015-2016 school year, Ms. Watson sent weekly emails to all school personnel reminding them about school policy and procedures. The weekly reminders would often include reference to the school’s cellphone policy, which provides that “if we see it, we hear it, we take the phone.” The cellphone policy reminders sent out by Ms. Watson also explained to school personnel that they should not use physical force when attempting to secure a cellphone from a student and that if a student refused to turn over a phone when requested, then personnel should “call for an administrative administrator who removes the student” and then processes the student for suspension. Ms. Watson explained that she did not include the reminder about the cellphone policy in each of her weekly emails to personnel, but she specifically recalled having done so the week of the incident in question. Ms. Watson testified that the reminder was sent on Sunday night (February 14, 2016). On February 18, 2016, Adrienne McDowell was employed by the School Board of Lee County as an educational paraprofessional for physical education and was assigned to Lehigh Acres Middle School. In explaining her understanding of the cellphone policy, Ms. McDowell testified as follows: A: What we were told via email a couple weeks prior to this event that Ms. Watson sent out, when a student has a cellphone out, if you see it or hear it, you need to ask for it. If they don’t place that phone in your hands willingly, then you call for a specialist to come and deal with that student. It is not our job to take a cellphone away from a student, we just call for a specialist. Q: By specialist, what do you mean? A: Security, administration, someone in the specialist team, guidance counselor, you know. There are different, -- like I said, a specialist is a security guard, administration or guidance counselor; anybody more equipped to handle the situation than we are. Respondent testified that she was unaware of Ms. Watson’s emails to personnel regarding the proper protocol for confiscating cellphones from non-compliant students. On June 17, 2016, Respondent, as part of the investigation conducted herein, sent an email to school board officials and stated therein that it was her belief that “[i]f I had not taken her phone, that the students would have disrespected and challenged me from that day forward.” In the same missive, Respondent, in an attempt to discredit one of the students who witnessed her altercation with A.O., noted that she disciplined the student witness “for his misbehavior by writing him a referral and having him escorted out of [her] classroom.” Given Respondent’s admitted general awareness of the school’s policy of referring misbehaving students to an appropriate administrator for disciplinary action, and her concerns about being challenged and disrespected, Respondent’s testimony that she was unaware of Ms. Watson’s directive regarding students who refuse to hand over their cell phones is not credible. Student Detention, Search and Seizure Lee County School Board Policy 4.03 sets forth procedures related to searching a student’s person and property. Numbered paragraph (3) of the policy provides in part that “[a]n administrative staff member or an instructional staff member designated by an administrator may search a student’s person [and] personal belongings . . . if there is reasonable suspicion to believe the search will result in evidence the student has violated Florida Statute or School Board Rule or if the student consents to such search.” Respondent was neither an administrative staff member nor an instructional staff member with authorization to conduct student searches, and therefore her actions of physically searching A.O. and taking her cellphone violated Lee County School Board Policy 4.03. Aggressor or Victim Respondent challenges the instant proceeding in part on the theory that the facts demonstrate that she was the victim and merely acted in self-defense against the actions of a combative student. Contrary to Respondent’s contention, the credible evidence, as captured by the surveillance video, establishes that Respondent committed the initial act of aggression when she, without hesitation, lorded over A.O. and physically grabbed the student in an unauthorized effort to confiscate A.O.’s cellphone. While it is true that the student, after initially being pinned to the gym floor by Respondent, eventually freed herself from Respondent’s grip and in her agitated state committed reflexive acts of aggression towards Respondent, the credible evidence establishes that these events would not have occurred but for Respondent’s initial use of unauthorized and unreasonable force. Respondent, without question, had the right to protect herself against the aggressive countermeasures initiated by the student. However, it is also the case that under the facts of this case the student equally had the right to protect herself against Respondent’s initial acts of aggression.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of the violations alleged in counts one through three of the Administrative Complaint. It is further RECOMMENDED that the final order suspend Respondent's Florida Educator Certificate 725789 for a period of two years, to be followed by a one-year period of probation. The terms and conditions of Respondent's suspension and probation shall be established by the Education Practices Commission. DONE AND ENTERED this this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of January, 2018.
The Issue Should Respondent be discharged or otherwise disciplined for violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (11941), as amended.
Findings Of Fact Respondent Sydria Carter holds Florida Educator's Certificate number 403413, valid through June 30, 2002, which authorizes her to teach early childhood education and elementary education. She holds a bachelor's degree and a master's degree from Jacksonville University. Ms. Carter was employed by the Duval County School Board as a tenured teacher during all times pertinent. She has been a teacher for about 24 years. Since the 1997-98 school year, she has taught pre-kindergarten at Wesconnett Elementary School. Her pre-kindergarten class for the 2000-01 school year was populated by 20 students. Michael Fleck (Michael), on August 15, 2000, was a four-year-old-boy. August 15, 2000, was Michael's first day in school. He was assigned to Ms. Carter's class at Wesconnett. Michael is the son of Teresa Fleck. On August 15, 2000, she and Michael went together to orientation in the school cafeteria. When orientation was completed, Michael and the other children in his class departed the cafeteria with Ms. Carter and Ms. Fleck. At the end of the school day when Ms. Fleck retrieved Michael, she believed that he was stressed, but after conversations with him, she concluded that he seemed fine. The second day of school, August 16, 2000, Ms. Fleck again took Michael to the Wesconnett cafeteria. Michael expressed a desire to return home, but Ms. Fleck left him there and he proceeded to his class with Ms. Carter. Ms. Carter's class is conducted in a portable classroom. Entrance to the portable classroom is obtained via a ramp. During the lunch period of the second day of school, around 12:30 p.m., Michael was present at the midpoint of the ramp and screaming, "I want my Mommy." He was attempting to flee. Ms. Carter was struggling with Michael in an effort to prevent him from running away. The struggle continued for about one minute. She managed at one point to get her arms under his arms in a manner that Ms. Carter described as the "Heimlich Maneuver," and dragged him toward the door of the portable classroom. As she approached the door she slapped Michael on the back of the head. This was observed by Nickie Gunnoe, a first grade teacher with eight years of experience. Ms. Gunnoe had a clear view of the events which occurred on the ramp leading to the door of Ms. Carter's classroom. Ms. Gunnoe believed that excessive force was used by Ms. Carter with regard to Michael. Because of this she reported the incident to the principal of Wesconnett, Michael Akers. This report was made on the following day, August 17, 2000. When Ms. Fleck arrived at Wesconnett on August 16, 2000, to pick up Michael, she observed the children exit the classroom with Ms. Carter and saw that Michael was in the rear. He was crying. Michael said he wanted to take his candy home. He continued crying as Ms. Fleck escorted him toward her vehicle. Michael said that Ms. Carter had been mad at him three times. En route to her vehicle Ms. Fleck approached Ms. Carter and a brief discussion ensued with regard to Michael. Ms. Carter told Ms. Fleck that Michael was going to have to "adjust." When Ms. Fleck arrived at her vehicle she attempted to secure Michael into the seat. He continued to cry hysterically. Ms. Fleck discovered red marks under his arm and then proceeded with Michael directly to the Principal's office. At the Principal's office Ms. Fleck had a discussion with Principal Akers. Law enforcement officers were called and joined in the discussion. Ms. Carter also entered the office. Photographs of Michael's underarms were taken by police officers. The photographs depict a bright red mark under the left armpit. Ms. Fleck observed indentations consistent with fingernail impressions in the reddened area. These indentations could not be detected in the photographs. However, the angle from which the photographs were taken were not conducive to depicting the type of indentations which were described. At the principal's office, when Ms. Carter appeared on the scene, Michael asserted that she was the person who had perpetrated the injuries which resulted in his acquisition of the red marks. Ms. Carter, at that time, as well as at the time of the hearing, had long fingernails. The actions of Ms. Carter in forcefully grabbing Michael were entirely consistent with her duty to protect the child from running away from school and exposing himself to serious harm from traffic or other hazards. To the extent Michael suffered abrasions, they were the natural and probable consequences of his escape attempt. The slap administered to Michael's head, however, was in excess of the action necessary to protect Michael, and was a battery. The next day, August 18, 2001, Michael told his mother that Ms. Carter had grabbed his hair and, "throwed him on the nappy mat," because he didn't have a blanket. As a result of this statement Ms. Fleck called the Principal which precipitated the arrival of a police evidence technician at her house. Photographs were taken of Michael's head by the police evidence technician. The photographs were entirely consistent with the thesis that his scalp had been pierced by long fingernails when his head had been grasped. The wounds appeared in the photograph to be recently incurred. Ms. Fleck had not observed any marks on Michael's body prior to August 16, 2001. It is apparent that the marks resulted from Ms. Carter's forcefully, and inexcusably, grabbing Michael's head. Subsequent to the events of August 16, 2000, Michael did not attend school because he was traumatized by his experience with his first teacher, Ms. Carter. During the 1996-97 school year, and again the following year, the Principal of Wesconnett, Mr. Akers, counseled Ms. Carter concerning the excessive use of force with children. In 1996 he specifically counseled her to avoid putting her hands on a child except in an emergency situation, when the child was in danger, or when the child was endangering others. Ms. Carter's personnel record reflects a satisfactory performance while employed at Wesconnett. Ms. Carter's explanations of the events giving rise to Michael's injuries, to a substantial extent, did not comport with the other evidence adduced at the hearing.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Ms. Carter violated Article 1, Section 4 of the Duval County Teacher Tenure Act by refusing to obey the laws of the State of Florida or regulations adopted by authority of law, specifically, Rule 6B-1.006(3)(f), Florida Administrative Code, by intentionally denying a student's right to be free from being battered by his teacher. Suspending Ms. Carter without pay for a period of one school year beginning on August 15, 2000, in lieu of discharge, and requiring as a condition of reinstatement, the completion of such anger management training as the Duval County Public Schools may deem appropriate, prior to the beginning of the 2001-02 school year. DONE AND ENTERED this 15th day of May, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 15th day of May, 2001. COPIES FURNISHED: Ernst D. Mueller, Esquire Office of the General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 John C. Freyer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-2115 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
