The Issue The issues are whether the proposed change of school attendance boundaries for four middle schools and four high schools (East Side Schools) located in eastern Pasco County (County) is a rule, and, if so, whether the proposed rule is an invalid exercise of delegated legislative authority.
Findings Of Fact The School Board is an educational unit and an agency defined in sections 120.52(1)(a) and (6), Florida Statutes. One of its duties is to assign students to schools after consultation with the Superintendent. See § 1001.41(6), Fla. Stat. The School Board has divided the County into geographic areas for purposes of drawing school attendance boundaries. At issue here is an area that encompasses the East Side Schools, comprised of around 40 designated areas, all east of the Sunshine Parkway or Interstate 75, in which four middle schools and four high schools are located. Petitioners are students or parents who reside in the Country Walk community in area 16. Students in area 16 are currently assigned to Wiregrass Ranch High School (Wiregrass) and Dr. John Long Middle School (John Long). With the exceptions cited below, under the new attendance plan, area 16 students will be reassigned to Thomas E. Weightman Middle School (Weightman) and Wesley Chapel High School (Wesley Chapel) beginning in school year 2017-2018. Only the rezoning for area 16 is being challenged in this case. Sarah Osorio is a student in the fourth grade and is unaffected by the boundary change. Lucas Darby is a student in the first grade and is unaffected by the boundary change. Lyric Hunter is a student in the second grade and is unaffected by the boundary change. Zoe Alyssa Wood is a student in the 11th grade; as a rising senior, she will be allowed to remain in Wiregrass. Katrina Nodine is currently in the fifth grade and is already scheduled to change schools at the end of the school year as a result of her graduation from elementary school. Cameron Darby is currently in the eighth grade and is already scheduled to change schools at the end of the year as a result of his graduation from middle school. The parents of these students are also unaffected by the new plan. The County is experiencing an increase in population caused by "intense" new residential development in the eastern part of the County. As a result, enrollment in most East Side Schools has exceeded capacity. In school year 2016-2017, Wiregrass exceeds capacity by 50.4 percent, while John Long exceeds capacity by 40.6 percent. If no changes are made, the two schools are projected to be operating at approximately 154.2 and 147 percent capacity, respectively, in school year 2017-2018. In contrast, Wesley Chapel and Weightman, while exceeding their permanent capacity, are operating at less capacity than Wiregrass and John Long. The district is expected to open a new combined middle-high school (Cypress Creek) in August 2017, but the student population must still be redistributed to address the capacity issue in Wiregrass and John Long. Because of anticipated growth in the County, and existing disparities in school enrollment, in August 2016, the Superintendent instructed his planning staff to begin the process of developing a plan for amending school attendance boundaries, including the East Side Schools. He further directed that a recommendation be formulated in time for the School Board to approve a new plan before February 1, 2017. This deadline was necessary because by April of each year, the School Board must prepare a proposed budget for the following year; adequate lead time is required to develop a new transportation routing plan; and once new boundary lines are drawn, an open enrollment plan, known as the School Choice program, allows students, between February 1 and March 1 of each year, to apply for enrollment in another school, i.e., in this case their former school. The School Board has adopted a set of Bylaws and Policies, which apply to "Legislative/Policymaking," or rulemaking, and follow the requirements found in chapter 120. See Pet'r Ex. 1. Policy 0131 provides that "the term 'rule' and 'policy' shall have the same definition." Id. at 1. The policy spells out in detail the procedural requirements for adopting policies (rules), which include notice of the proposed policy, a hearing, preparation of a rulemaking record, School Board action, and notices. Id. at 2-3. The policy also describes how a substantially affected person may challenge a proposed policy. Id. at 4. Reference to a "rule" and chapter 120 was made in various announcements, notices, and statements throughout the rezoning process. Even so, the School Board takes the position that its policies and chapter 120 do not govern the redrawing of attendance boundaries. As a consequence, the Superintendent did not review the Bylaws and Policies or chapter 120 before he began the rezoning process. The Superintendent opted to use the same rezoning process used since at least 2005. Under this process, a boundary committee, advisory in nature, is appointed for the purpose of developing multiple boundary maps and then recommending one of them to the Superintendent. The Superintendent does not attend the committee meetings or direct any member to draw a plan in a particular way. He considers, but is not required to accept, the committee recommendation. A parent meeting is also conducted to allow parents to provide input into the process. After the committee and parent meetings are concluded, the committee submits a recommendation to the Superintendent, who then submits a final recommendation to the School Board. By law, two adoption hearings must be conducted by the School Board, which makes the final decision. A boundary committee is comprised of two parents from each affected school, district staff, and principals of affected schools. The committee is intended to represent the interests of students, parents, communities, schools, and the district. The committee for the East Side Schools consisted of 21 members. During the rezoning process, a committee will typically conduct three meetings before making its recommendation. In this case, the Superintendent scheduled a fourth meeting to be held after the parent meeting so that parent input could be considered. In developing new school attendance boundaries, the committee was instructed to follow certain guidelines. Under these guidelines, a new boundary should provide socioeconomic balance, maintain to the extent possible an in-line feeder pattern, provide for future growth and capacity, provide safe and efficient transportation, maintain subdivision integrity, and consider long-term school construction plans. See Pet'r Ex. 11. The committee was also given extensive data including, among other things, existing and projected enrollments for each school for school years 2016-2017 and 2017-2018; five and ten- year projected enrollments for each school; long-term school construction plans; future growth potential in the area; minority, low income, and special education population by area; and total population history for each school. The School Board employs a full-time public information officer who directs and coordinates the dissemination of information to the public. This is accomplished through social media (Twitter, Instagram, and Facebook) and a School Board website accessible by the public. In addition, a special zoning website was established during the rezoning process. The website and social media profiles are identified on the inside front cover of the student planner issued to every student at the beginning of the school year. The district also operates a program known as School Connect, which is capable of sending telephone messages, emails, and text messages to the parents. School Connect was used to make automated telephone calls to the contact telephone number listed on a student's information card informing the parents of the time and date of the parent meeting. See Resp. Ex. 6. All parents with a valid telephone number received a call, although some parents either did not personally answer the call, listen to the recorded message, or remember its substance. School Connect also sent emails and texts to parents, including notification of the plan the Superintendent was going to recommend to the School Board. Signs and notices regarding the rezoning were not posted in the Country Walk neighborhood before any meeting. However, multiple notices were posted on social media and websites, and text messages, emails, and telephone messages were sent to the parents. This constituted substantial compliance with the requirement that notice of rulemaking be "post[ed] in appropriate places so that those particular classes of persons to whom the action is directed may be duly noticed." § 120.81(1)(d)3., Fla. Stat. Besides telephone calls, text messages, emails, and social media, on November 8, 2016, the Superintendent sent a letter to affected parents informing them of the parent meeting on November 29, 2016. See Resp. Ex. 3. The letter noted that attendance boundary lines for East Side Schools would be redrawn to "relieve crowding" at those schools, and it included the new proposed boundary lines being considered, along with reference to a website where more details could be found. Through School Connect, the School Board then sent parents reminder notifications via telephone and email. All Petitioners acknowledged receiving some form of notice of the process during the fall of 2016, and all had actual notice well in advance of the last committee meeting. Some parents attended committee meetings, the parent meeting, or spoke at both School Board meetings. During this same period of time, parents sent emails to the School Board or Superintendent expressing their views on rezoning. On September 6, 2016, the procedures for school rezoning were announced on Facebook and other social media. A press release for various media was issued on September 13, 2016. The press release announced the appointment of the boundary committee and provided the day, time, and location of each committee meeting. The press release was also published on the School Board's Twitter account. On October 3, 2016, an informational video regarding the rezoning process and featuring the Superintendent and district Planning Director was published on the School Board website and Twitter and Facebook accounts. Committee meetings were conducted on September 16, September 29, October 20, and December 2, 2016. These meetings were open to the public, and all were live-streamed on YouTube.com. Except for the last meeting, very few parents attended the meetings. Members of the public who attend the committee meetings are observers only, they do not have input into the meeting process, and they are not allowed to participate in committee discussions. However, there is nothing to prevent an observer from asking a member a question before or after the meeting, or in another setting. Committee members were encouraged to speak to the parents to keep them updated on what was occurring. All documents considered by the committee were posted on the School Board and special zoning websites. Minutes for each meeting, which summarized decisions of the committee and gave notice to parents as to which path the committee was taking, were published before the following meeting. On November 29, 2016, hundreds of parents, including four of the six who testified at hearing, attended a parent meeting. So that parent input would be considered, the Superintendent scheduled a fourth committee meeting on December 2, 2016. Four rezoning plans were considered by the committee, all addressing the overcrowding problem in different ways. On December 2, 2016, by a 16-to-5 vote, the committee recommended approval of Option 20, which did not affect area 16. The plan with the second most votes, Option 13, supported by district staff, reassigned students in area 16 to Wesley Chapel and Weightman. The new schools lie north of Country Walk, but are approximately the same distance from Country Walk as are Wiregrass and John Long, which lie directly south of area 16. The Superintendent chose not to accept the committee's recommended option. Instead, he chose to recommend Option 13 to the School Board for adoption. This decision was reached after consultations with the district Planning Director. The only difference between the two Options is that Option 20 reassigns areas 8, 9, 11, and 12 to Wesley Chapel and Weightman, leaving areas 16, 17, 20, and 21 unchanged, while Option 13 reassigns areas 16, 17, 20, and 21 to the new schools, leaving areas 8, 9, 11, and 12 unchanged. In developing Option 13, the committee and Superintendent followed the guidelines established at the outset of the process. Option 13 takes into account future growth and capacity of the schools. Consideration is also given to providing socioeconomic balance. Subdivision integrity is maintained, in that the entire Country Walk community is assigned to the same schools. During the development of this option, the committee had available the long-term school construction plans of the district. The transportation director was a member of the committee and provided assurance that the new plan provides safe and efficient transportation. Finally, because of overcrowding and anticipated growth in the area, the school feeder pattern structure, which now directs area 16 students to Wiregrass and John Long, was necessarily impacted. On balance, however, the guidelines were observed. Pursuant to other district policies, certain exceptions apply to the new attendance boundary. Students who are rising seniors at Wiregrass are grandfathered and remain at Wiregrass. Students who are approved under the School Choice program to remain in Wiregrass or John Long may do so. To take advantage of this program, a student must give a valid reason, such as hardship, separation of siblings, or participation in certain extracurricular activities. There is, however, no guarantee that a request for School Choice will be approved. Notice of the Superintendent's recommended plan, the School Board agenda, memorandum to the School Board, and map were published on the School Board's website seven days before the first School Board meeting. In addition, the same information was published on the district's Twitter and Facebook accounts, and emails were sent to parents who provided an email address. Finally, the Superintendent published a letter/email on December 12, 2016, explaining his reasons for recommending Option 13. It is fair to say that all parents had actual notice well before the first School Board meeting that area 16 was being reassigned to different schools. On November 20, 2016, a Public Notice (Notice) was published in the Tampa Times advising that a first reading on the new school attendance boundaries would be conducted by the School Board on December 20, 2016, and that final action would be taken at a second meeting on January 17, 2017. See Pet'r Ex. 2. The Notice read in relevant part as follows: PUBLIC NOTICE INTENT TO ADOPT A RULE TO ESTABLISH SCHOOL BOUNDARIES FOR THE 2017-2018 SCHOOL YEAR The District School Board of Pasco County intends to change attendance boundaries for the 2017-2018 school year for the schools listed below: * * * New Middle/High School GGG (Cypress Creek Middle/High), Charles S. Rushe Middle, Dr. John Long Middle, Thomas E. Weightman Middle, Sunlake High, Wesley Chapel High, Wiregrass Ranch High * * * First reading on this matter is scheduled for the regular meeting of the District School Board of Pasco County on December 20, 2016 at 6:00 p.m. in the W. David Mobley Media Center, School Board Room, 7205 Land O' Lakes Blvd., Land O' Lakes, Florida. School Board action on this matter is scheduled for the regular meeting of the District School Board of Pasco County on January 17, 2017 [at the same time and location]. Although all Petitioners stated they did not read the Notice, they nonetheless complain the Notice does not contain a detailed summary of the new boundary lines, a reference to the grant of rulemaking authority, a reference to the statute being implemented, a summary of the estimated regulatory costs, or the other details normally included in agency rulemaking pursuant to section 120.54. There is, however, no evidence that the parents were prejudiced by a lack of more information in the Notice. With the exception of those parents who voluntarily chose not to attend meetings, all other parents who were not working or were not out of town had actual notice and attended the meetings. At both School Board meetings, members of the public were allowed to speak. Normally, one hour of public testimony is permitted for an agenda item, with a three-minute time limitation for each speaker. Because three sets of attendance boundary plans were being considered as a single item, this time was expanded, and each plan was allotted one hour, for a total of three hours. To accommodate the large number of parents wishing to speak (33), only 90 seconds was allotted to each speaker, including those representing groups. Given the time constraints, not every parent was given the opportunity to speak. However, 14 speakers who were not allowed to speak at the first meeting were scheduled to speak first at the second meeting on January 17, 2017. All Petitioners attended at least one of the two School Board meetings. Committee members were not required to attend either School Board meeting to explain Option 13 (or why it was not their first choice) or to answer questions posed by the audience. At this point in the process, the Superintendent, and not the committee, bore the responsibility of making a final recommendation to the School Board and to answer any questions members had. At the close of public comment, the School Board considered and approved Option 13. On January 17, 2017, the day of the second School Board meeting, the Superintendent sent a memorandum to School Board members regarding the rezoning issue. Among other things, he stated that "[t]he establishment of school attendance boundaries is authorized by Section 1001.42, Florida Statutes. In addition, the Administrative Procedures [sic] Act requires that the District publish a Notice of Intent to Adopt a Rule twenty-one days prior to the public hearing. The first reading was held on December 20, 2016." Pet'r Ex. 19. At the beginning of the meeting on January 17, 2017, the Superintendent commented on his recommendation to adopt Option 13. After public comment, by a 4-to-1 vote the School Board adopted Option 13 for the East Side Schools. Unlike typical agency rulemaking, the adopted plan is in the form of a map, rather than a numbered rule. As required by section 120.54(3)(e)6., a copy of the new boundaries was filed with the "office of the agency head" after it was adopted at the second meeting. The cost for parents to transport their children to the new schools is highly speculative, but it should be similar to the current costs, as the new schools are the same distance from Country Walk. There was no evidence to show that the new plan would increase regulatory costs, directly or indirectly, more than $200,000.00 within one year after implementation. See § 120.541(1)(b), Fla. Stat. Therefore, a statement of estimated regulatory costs for implementing the new boundary lines was not prepared by the School Board, and none was requested nor submitted by a third party. The parties agreed that had the students who are named as parties testified at the final hearing, they would have reiterated the allegations set forth in the First Amended Petition. These include allegations that the students will be emotionally affected by the transfer; they will be separated from friends, teachers, counselors, and certain academic and extracurricular programs; and they will be limited in their ability to walk or bike to school. The parents expressed a wide range of concerns with the new attendance boundaries. All wondered why Option 20, which was recommended by the committee, was not accepted by the Superintendent, rather than Option 13. However, in an email dated December 12, 2016, the Superintendent explained that Option 13 provided the least disruption for all students. He pointed out that if Option 20 were adopted, "some students could attend four different schools in their secondary years. They could conceivably start 6th grade at John Long Middle School, move to Weightman Middle School by the 8th grade, start 9th grade at Wesley Chapel High School, and be moved to Cypress Creek High School [a new high school] before graduation." Pet'r Ex. 8. He added that under Option 13, "the projected average daily membership for Wiregrass Ranch High School will decrease after the seniors graduate in 2017. Projected enrollment goes down to 2,124 in 2018 and 1,956 in 2019." Id. The Superintendent further testified that by choosing Option 13, "it kept [him] from having to move portables from Wiregrass Ranch High School to Wesley Chapel High School," and it "accomplished our goal of reducing student enrollment at Wiregrass High School to get us off the 10-period day." Resp. Ex. 28, p. 141. These reasons are sufficient to validate the change in the boundary. Therefore, the undersigned will not engage in an exercise to determine if another Option, or variation thereof, might be better for, or more advantageous to, a particular neighborhood. Although the new schools are the same distance from Country Walk as the current schools, the parents are concerned with traffic conditions on State Road 54 and Meadow Pointe Boulevard, roads they say must be used in order to travel to the new schools. They point out that these roads are far more dangerous than the roads they now use to travel to their current schools, and both roads have had a sharp increase in serious accidents during the last two years. However, the district Transportation Director stated that regardless of the route taken, he had no concerns regarding the district's ability to develop bus routes that result in safe transportation of students to and from their schools. Notably, all major roads in the Country Walk area are currently used by the district for bus transportation and there are no safety concerns regarding their continued use. Several parents expressed a concern that the value of their homes would decline since buyers would not choose to purchase a home in Country Walk if their children were forced to attend Wesley Chapel or Weightman. However, the record gives no indication that any homes have been offered for sale, any homes have been sold at a distressed price, or any homeowners have not been able to sell their homes due to the proposed rezoning. Parents are concerned that the new schools do not have the same clubs, extracurricular activities, or educational opportunities that are found at Wiregrass and John Long. There is no credible evidence that substantially-similar educational opportunities will not be available to students at Wesley Chapel and Weightman. And there is no credible evidence that any student currently involved in a course of study unavailable at the new school will be negatively impacted by curriculum differences.
The Issue The issue is whether Respondent's Educator's Certificate should be suspended..
Findings Of Fact Respondent has been in the education profession for 31 years. He holds a master’s degree in psychological counseling and a specialist certificate in educational leadership. He has taught, in chronological order, at Lake City Junior High School, Deland Senior High School, Edison Community College, and Cape Coral High School. He has served as an assistant principal at Cape Coral High School, Riverview High School, and Lehigh Senior High School, for a total of eight years. During his career in education, Respondent has not been disciplined and has generally received excellent evaluations. In August 1999, prior to the return of the students or faculty, Respondent was the assistant principal of curriculum at Lehigh Senior High School. This was a difficult period for the school district. It had spent more than it had received during the prior school year, and the superintendent, Dr. Bruce Harter, had had to recommend to the school board difficult cutbacks, including over 90 teaching positions. The school board had adopted these recommendations, and Dr. Harter had implemented them, starting the 1999-2000 school year. In mid August 1999, while working in the common area of the office in preparation for the return of the teachers to school, Respondent was talking with a couple of other school administrators while they were painting school colors in the office. In charge of preparing the master schedule of classes for the school, Respondent was especially upset at the teaching cutbacks. During a conversation among the three administrators, Respondent commented once or twice, “Who do you want to bet will shoot Dr. Harter?” The administrator who recounted this comment walked away to his office to terminate the conversation. He reported that Respondent was not ranting or raving when making the comment and that Respondent did not make these comments in a threatening manner. The administrator has known Respondent since 1988 and has never known him to be dangerous, threatening, or unprofessional. As all persons involved in this case were aware, this comment was especially distasteful because a distraught school teacher had murdered a superintendent a few years earlier. In a school district the size of Lee County, nearly everyone involved in this case had some personal involvement in the tragic loss of the superintendent. For instance, the administrator who recounted the conversation at the school office had known the teacher who had shot the superintendent. A day or two after the first comment, on August 19, 1999, Respondent attended a meeting at another school for the purpose of welcoming the new principals. Respondent was frustrated because he had applied over a dozen times in the past four years for the position of school principal, but had never even been interviewed. In the course of the presentation, a speaker said, “Let’s give Lynn Strong a round of applause.” Ms. Strong was in charge of personnel and had some involvement in the selection process for principals. In response to the speaker’s comment, Respondent muttered, “I’d rather give her a bullet.” This remark was heard only by two or three other administrators, also from Lehigh Senior High School, who were seated at the same table as Respondent. The administrators hearing Respondent’s remark were not so much alarmed, as they were concerned. The consensus among them was that someone should inform the principal of Respondent’s remarks, and the principal should talk to Respondent. On the same day as the latter statement, the principal visited Respondent in his office and told him that he had learned of these statements and that they were inappropriate. The principal warned Respondent that such statements could get him in a lot of trouble. Without denying having made the statements, Respondent said that he had not intended to act on them. Unsure what, if anything, to do next, the principal received a call from someone in the district office, who had heard about Respondent’s statements. Even though he had worked with Respondent for several years and had never known him to behave unprofessionally, the principal decided to report the threat to Ms. Strong and the superintendent. Ms. Strong became frightened by the report. She had known of the murder of the superintendent, as well as a murder of a teacher in the recent past. Ms. Strong stayed in her home all of the ensuing weekend, and her husband escorted her to work for a couple of weeks. She never contacted Respondent about the situation, largely because Ms. Strong’s professional responsibilities encompassed the investigation, but Respondent never contacted her and explained the situation to relieve her of her understandable anxiety. After an investigation, the school district removed Respondent from Lehigh Senior High School and suspended him with pay for nine weeks. After the completion of the suspension, the school district reassigned Respondent to a second-chance school, until his contract expired at the end of the school year. The next year, the principal of Fort Myers High School, who had known Respondent as an effective educational professional for many years, hired him as a teacher. Respondent’s work after the two incidents in August 1999 has earned him praise from his supervisors. The two comments made by Respondent were repulsive, especially given the tragic recent history of violence directed against Lee County education professionals. Assessed in the context of a long, effective career in education, these two incidents stand out as isolated and largely inexplicable. The only partial explanation appearing in the record was that Respondent had, in August 1997, completed counseling for the sudden death from an undetermined cause of his 22-year-old daughter, while she was attending the University of Florida. The question nevertheless remains why a mature professional educator, himself having recently undergone a tragic, recent loss, would choose to express his displeasure with policy and personnel decisions by oblique references to the death of the administrators making these policy and personnel decisions. Based on the prehearing stipulation, Petitioner abandoned its allegation that Respondent is guilty of a violation of the Principles of Professional Conduct for the Education Profession. In any event, Petitioner did not prove by clear and convincing evidence that Respondent is guilty of intimidating or harassing anyone. Petitioner has failed to prove by clear and convincing evidence that Respondent is guilty of gross immorality or moral turpitude. Evaluated in the context of his long professional career in education, these lapses in judgment, although serious departures from good judgment, do not constitute moral turpitude, especially in view of the fact that no one hearing the remarks believed that Respondent intended to do violence to Dr. Harter or Ms. Strong. Petitioner has failed to prove by clear and convincing evidence that Respondent has reduced his effectiveness as an employee of the school board. Absent the willingness of two administrators to work with Respondent following his August 1999 comments, this issue would be more difficult to resolve. However, these administrators have given Respondent the opportunity to demonstrate that he remains an effective educator and has lost none of his effectiveness as an employee of the school board. One’s sense of justice is not offended by Respondent’s removal from administrative duties, nor the likelihood that his resumption of administrative duties will, if ever, be long deferred; however, as a teacher, Respondent remains an effective and valuable employee of the school board, provided he guards carefully against a recurrence of this irresponsible behavior.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 9th day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2001. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Florida Education Center, Room 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Department of Education Bureau of Educator Standards, Room 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 William R. Scherer III Conrad & Scherer Post Office Box 14723 Fort Lauderdale, Florida 33302 Harry A. Blair Harry A. Blair, P.A. 2180 West First Street, Suite 401 Fort Myers, Florida 33901
The Issue The issues are whether the proposed change of school attendance boundaries for five middle schools and five high schools (West Side Schools) located in southwest Pasco County (County) is a rule, and, if so, whether the proposed rule is an invalid exercise of delegated legislative authority.
Findings Of Fact The School Board is an educational unit and an agency defined in sections 120.52(1)(a) and (6), Florida Statutes. One of its duties is to assign students to schools after consultation with the Superintendent. See § 1001.41(6), Fla. Stat. The School Board has divided the County into geographic areas for purposes of drawing attendance boundaries. At issue here is an area that encompasses the West Side Schools, comprised of 35 designated areas, all west of the Sunshine Parkway, in which five middle schools and five high schools are located. Petitioners and Intervenors are students or parents who reside in area 12. Students in area 12 are currently assigned to J.W. Mitchell High School (Mitchell) or Seven Springs Middle School (Seven Springs). With a few exceptions cited below, under the new attendance plan, area 12 students will be reassigned to the River Ridge Middle School or River Ridge High School (River Ridge) beginning in school year 2017-2018. Only the rezoning for area 12 is being challenged in this case. Around 140 students will be moved from Mitchell and Seven Springs to other schools during the first year. Intervenors Evelyn Nessler and Dominic Faiella, who are in the third and second grades, respectively, will not change schools this fall and are unaffected by the new rezoning. Petitioner Nicholas Carvalho is currently in the eighth grade at Seven Springs and, as a result of his graduation, will be assigned to River Ridge this fall. Intervenor Brady Nessler is in the terminal grade for elementary school and, upon graduation, will be assigned to River Ridge this fall. Thus, the reason for reassignment of Carvalho and Nessler is unconnected to the new rezoning. The County is experiencing an increase in population caused by new residential development in the western part of the County. As a result, enrollment in some West Side Schools has exceeded capacity. For the spring term of school year 2016- 2017, Mitchell exceeds capacity by 18 percent, while Seven Springs exceeds capacity by 22 percent. Without a change in boundaries, in school year 2017-2018, Mitchell is projected to exceed capacity by 27 percent, while Seven Springs is projected to exceed capacity by 31 percent. In contrast, both River Ridge High School and River Ridge Middle School are currently below capacity, operating at 86 and 93 percent capacity, respectively. The over-capacity at the two schools is expected to continue, as more residential development is being planned in the State Road 54 corridor near area 12, Mitchell, and Seven Springs. To counter this condition, attendance zones are periodically redrawn in an effort to balance school enrollment. A School Board planner recalled there have been 27 boundary changes during his tenure as an employee. This case, and one other, Case No. 17-0629RP, which challenges the East Side Schools rezoning plan, are the first instances when attendance zones have been formally challenged. As the Superintendent observed, school rezoning "can be an incredibly painful process" because parents often move into neighborhoods with the belief that schools come with the homes. A fair assumption is that as long as rezoning does not affect their children, parents are content with a new rezoning plan. Because of anticipated growth in the County and existing disparities in school enrollment, in August 2016, the Superintendent instructed his planning staff to begin the process of developing a plan for amending school attendance boundaries, including the West Side Schools. The stated goal was to "review and alter the southwest secondary school boundaries in order to redistribute the school populations between overcrowded and under crowded schools and to provide for future growth as much as possible." Resp. Ex. 17, p. 00285. He further directed that a recommendation be formulated in time for the School Board to approve a new plan before February 1, 2017. This deadline was necessary because by April of each year, the School Board must prepare a proposed budget for the following year; adequate lead time is required to develop a new transportation routing plan; and once new boundary lines are drawn, an open enrollment plan, known as the School Choice program, allows students, between February 1 and March 1 of each year, to apply for enrollment in another school, i.e., in this case their former school. The School Board has adopted a set of Bylaws and Policies, which apply to "Legislative/Policymaking," or rulemaking, and follow the requirements found in chapter 120. See Pet'r Ex. 1. Policy 0131 provides that "the term 'rule' and 'policy' shall have the same definition." Id. at 1. The policy spells out in detail the procedural requirements for adopting policies (rules), which include notice of the proposed policy, a hearing, preparation of a rulemaking record, Board action, and appropriate notices. Id. at 2-3. The policy also describes how a substantially affected person may challenge a proposed policy (rule). Id. at 4. Reference to a "rule" and chapter 120 was made in various announcements, notices, and statements throughout the rezoning process. Also, the School Board acknowledges in a discovery response that section 120.54 is one of the statutes that apply to the rezoning process. Even so, the School Board takes the position that its policies and chapter 120 do not govern the redrawing of attendance boundaries. As a consequence, the Superintendent did not review the Bylaws and Policies or chapter 120 before he established the rezoning process. As explained by one witness, the School Board has not used formal rulemaking in prior rezoning plans, and it was its intention to follow usual past practice. The Superintendent opted to follow the same rezoning process used since at least 2004 or 2005. Under this process, a boundary committee, advisory in nature, is appointed for the purpose of developing multiple boundary maps and then recommending one of them to the Superintendent. The Superintendent does not attend the meetings or direct any member to draw a plan in a particular way. The Superintendent considers, but is not required to accept, the committee recommendation. A parent meeting is also conducted to allow parents to provide input into the process. After the committee and parent meetings are concluded, the committee submits a recommendation to the Superintendent, who then submits a final recommendation to the School Board. By law, two adoption hearings must be conducted by the School Board, which makes the final decision. A boundary committee is comprised of parents, district staff, and principals of affected schools. The committee is intended to represent the interests of students, parents, communities, schools, and the district. The committee for the West Side Schools consisted of 27 members, three of whom reside in Longleaf, a residential community in area 12 where most Petitioners and Intervenors reside. During the rezoning process, a committee will typically conduct three meetings before making its recommendation. In this case, the Superintendent scheduled a fourth meeting to be held after the parent meeting so that parent input could be considered. In developing new school attendance boundaries, the committee was instructed to follow certain guidelines. Under these guidelines, a new boundary should provide socioeconomic balance, maintain to the extent possible an in-line feeder pattern, provide for future growth and capacity, provide safe and efficient transportation, maintain subdivision integrity, and consider long-term school construction plans. See Pet'r Ex. 23. The committee was also given "lots of information" at the first meeting including, among other things, existing and projected enrollments for each school for school years 2016-2017 and 2017-2018; five and ten-year projected enrollments for each school; long-term school construction plans; future growth potential in the area; minority, low income, and special education population by area; and total population history for each school. The School Board employs a full-time public information officer who directs and coordinates the dissemination of information to the public. This is accomplished through social media (Twitter, Instagram, and Facebook) and a School Board website accessible to the public. In addition, a special zoning website was established during the rezoning process. The website and social media profiles are identified on the inside front cover of the student planner issued to every student at the beginning of the school year. The district also operates a program known as School Connect, which is capable of sending telephone messages, emails, and text messages to the parents. School Connect was used to make automated telephone calls to the contact telephone number listed on a student's information card informing the parents of the time and date of the parent meeting. See Resp. Ex. 6. All parents with a valid telephone number received a call, although some parents either did not personally answer the call or did not remember its substance. School Connect also sent emails and texts to parents, including notification of the plan the Superintendent was going to recommend to the School Board. Signs and notices regarding the rezoning were not posted in the neighborhoods before any meeting. However, multiple notices were posted on social media and websites, and text messages, emails, and telephone messages were sent to parents. This constituted substantial compliance with the requirement that notice of rulemaking be "post[ed] in appropriate places so that those particular classes of persons to whom the action is directed may be duly noticed." § 120.81(1)(d)3., Fla. Stat. Besides telephone calls, text messages, emails, and social media, on November 7, 2016, letters were sent to affected parents informing them of the parent meeting on November 14, 2016. See Resp. Ex. 3. Although the final plan was not known at that time, the letter put parents on notice that Mitchell and Seven Springs were overcrowded due to the influx of new homes being built in that area. Many parents knew as early as August 2016 that a new rezoning plan was going to be adopted that fall, but none believed area 12 would be affected due to its proximity to Mitchell and Seven Springs. This mistaken belief probably explains why some parents did not diligently follow the process until the parent meeting or even the School Board meetings when a final plan was adopted. However, one Intervenor formed a group known as "Delay West Pasco Rezoning" in August 2016 in an effort to prevent area 12 from being moved. There is no evidence that any parent or homeowner association requested that they be provided advance written notice of any meeting during the entire process. On September 6, 2016, the procedures for school rezoning were announced on Facebook and other social media. A press release for various media was issued on September 14, 2016. The press release provided the day, time, and location of each boundary committee meeting. The press release was also published on the School Board's Twitter account. The boundary committee for the West Side Schools was appointed on September 16, 2016. Committee meetings were conducted on October 5, October 26, and November 7, 2016. These meetings were open to the public, and all were live-streamed on YouTube.com., although some parents say portions of the broadcast were inaudible. The meetings were also broadcast live on the School Board's Facebook account, and a link to the broadcast was published on its Twitter account. Only around 30 parents attended each meeting. Members of the public who attend the committee meetings are observers only, they do not have input into the meeting process, and they are not allowed to participate in committee discussions. However, there is nothing to prevent an observer from asking a member a question before or after the meeting, or in another setting. As noted above, three committee members lived in Longleaf where most Petitioners and Intervenors reside, and members were encouraged to speak with neighbors and homeowner associations to keep them updated on what was occurring. All documents considered by the committee were posted on the School Board and special zoning websites. Finally, minutes for each meeting, which summarized decisions of the committee and gave notice to parents as to which path the committee was taking, were published before the following meeting. On November 14, 2016, "hundreds" of parents attended a parent meeting, which lasted more than three hours. Before the meeting began, parents were told which options were still being considered by the committee. Although committee members were present, Petitioners stated that questions were not answered by the members, and the entire meeting consisted of comments by the parents. So that their input would be considered, the Superintendent scheduled a fourth committee meeting on November 17, 2016. Five plans were considered by the committee at its fourth meeting, but there was no consensus on which plan to adopt. By a 13-to-12 vote, with two members absent, the committee recommended approval of a new plan known as Plan 4A2, which was posted on the website and social media the same day. Under the plan, effective school year 2017-2018, area 12 students (and others) would be reassigned to River Ridge. Notably, Plan 5A2, the option with the second most votes, garnered 12 votes and is "very similar" to Plan 4A2. It also reassigned area 12 students to River Ridge. The River Ridge joint campus is approximately eight or nine miles north of area 12, while Mitchell and Seven Springs, also a joint campus, are only two or three miles south of area 12. The Superintendent concurred in the recommendation to approve Plan 4A2 with one modification which did not affect area 12: students in areas 1 through 4, previously unaffected, would be reassigned to Gulf Middle School and Gulf High School. In developing the new plan, the committee followed the guidelines given to it at the outset of the process. The new plan took into account future growth and capacity of the schools. Consideration was also given to providing socioeconomic balance. Subdivision integrity was maintained, in that the entire Longleaf community was reassigned to the same schools. During the development of the plan, the committee had available the long-term school construction plans of the district. The district transportation coordinator was a member of the committee and ensured that the new plan provided safe and efficient transportation. Finally, because of overcrowding and anticipated growth in the area, the school feeder pattern structure, which now directs area 12 students to Mitchell and Seven Springs, was necessarily impacted. On balance, however, the guidelines were observed. A few alternative plans were submitted by parents during the committee process, including at least one plan prepared by an unidentified observer that was left on the committee's table before a meeting. The alternative plans are not of record. Pursuant to other district policies, certain exceptions apply to the new area 12 attendance boundary. Students who are rising seniors at Mitchell are grandfathered and remain at Mitchell. Students approved under the School Choice program to remain in Mitchell or Seven Springs may also do so. To take advantage of this program, a student must give a valid reason, such as hardship, separation of siblings, participation in certain extracurricular activities, or acceptance into the Mitchell Academy for Medical Arts Program, which is not offered at River Ridge. Many Petitioners and Intervenors have applied for School Choice to remain at Mitchell or Seven Springs, but there is no guarantee their requests will be approved. Notice of the Superintendent's recommended plan, including the map, was posted on the Board's website seven days before the first School Board meeting. In addition, the same information was posted on the district's Twitter and Facebook accounts, and emails were sent to those parents who provided an email address. Finally, the Superintendent published a letter on December 12, 2016, explaining his reasons for recommending Plan 4A2. It is fair to say that all parents had actual notice well before the first School Board meeting that area 12 was being reassigned to different schools. On November 20, 2016, a Public Notice (Notice) was published in the Tampa Times advising that a first reading on the new school attendance boundaries would be conducted by the School Board on December 20, 2016, and that final action would be taken at a second meeting on January 17, 2017. The Notice read in relevant part as follows: PUBLIC NOTICE INTENT TO ADOPT A RULE TO ESTABLISH SCHOOL BOUNDARIES FOR THE 2017-2018 SCHOOL YEAR The District School Board of Pasco County intends to change attendance boundaries for the 2017-2018 school year for the schools listed below: * * * West Pasco County Schools Chasco Middle, Gulf Middle, Paul R. Smith Middle, River Ridge Middle, Seven Springs Middle, Anclote High, Gulf High, J.W. Mitchell High, Ridgewood High, River Ridge High First reading on this matter is scheduled for the regular meeting of the District School Board of Pasco County on December 20, 2016. School Board action on this matter is scheduled for the regular meeting of the District School Board of Pasco County on January 17, 2017. Even though none of Petitioners or Intervenors read the Notice, they now complain that it does not contain a detailed summary of the new boundary lines, a reference to the grant of rulemaking authority, a reference to the statute being implemented, a summary of the estimated regulatory costs, or the other details normally included in agency rulemaking pursuant to section 120.54. There is, however, no evidence that the parents were prejudiced by a lack of more information in the Notice. With the exception of those parents who voluntarily chose not to attend, virtually all other parents who were not working or were not out of town had actual notice and attended the two School Board meetings. Sensing that Plan 4A2 was going to be selected, on December 17, 2016, with the assistance of a committee member who happened to be an attorney, Petitioners James Stanley and Cecilia Loyola, husband and wife, drafted a letter to the Superintendent and School Board Chairman. See Pet'r Ex. 2. The letter stated the proposed rule (new attendance boundaries) was arbitrary and capricious. It requested (a) a workshop pursuant to section 120.54(2)(c) mediated by a neutral party, and (b) the attendance of committee members at the workshop to answer questions. The letter also asked that if a workshop was not conducted, the rulemaking process be suspended and a separate draw-out proceeding be conducted pursuant to sections 120.569 and 120.57. Finally, the letter asserted that by limiting each speaker to only "one or three minutes," the School Board was violating section 120.54(3)(c). This was the first and only time that a parent invoked a chapter 120 rulemaking requirement in an effort to slow or derail the rezoning process. The letter was delivered to the Superintendent and Board Chairman on the day of the meeting. By that late date, the request was untimely, and the Superintendent had insufficient time to prepare a written response stating why a workshop was unnecessary, as required by section 120.54(2)(c). See § 120.54(3)(c)2., Fla. Stat. (a person must "timely" assert and affirmatively demonstrate to the agency that the rulemaking proceeding does not protect his substantial interests). No draw-out or workshop was conducted, and except for the Superintendent's reply letter, discussed below, no formal ruling was made by the School Board at the meeting on the untimely draw-out and workshop requests. On February 17, 2017, the Superintendent replied to the Stanley/Loyola letter. See Pet'r Ex. 3. The three-page letter outlined the multi-step rezoning process that was followed by the School Board, the efforts to solicit and facilitate parent participation, and the numerous types of notice given to the parents. Thus, he concluded that a workshop was unnecessary. At both School Board meetings, members of the public were allowed to speak. Normally, one hour of public testimony is permitted for an agenda item, with a three-minute time limitation for each speaker. Because three sets of attendance boundary plans were being considered as a single item, this time was expanded, and each plan was allotted one hour, for a total of three hours. To accommodate the large turnout of parents wishing to speak (58), only 90 seconds was allotted to each speaker, including those representing groups. Given the time constraints, not every parent was given the opportunity to speak. However, 16 speakers who were not allowed to speak at the first meeting were scheduled to speak first at the second meeting on January 17, 2017. Committee members were not required to attend either School Board meeting to explain Plan 4A2 or to answer questions posed by the audience. At this point in the process, the Superintendent, and not the committee, bore the responsibility of making a final recommendation to the School Board and to answer any questions members had. At the close of public comment on December 20, 2016, the School Board considered and approved Plan 4A2. However, one Board member suggested a modification to Plan 4A2, which would delay by one year the reassignment of students in areas 1 through 4 from Mitchell and Seven Springs to Gulf High School and Gulf Middle School. In all other respects, Plan 4A2 remained the same. This suggestion was to be reviewed by the Superintendent prior to the second meeting the following month. On January 17, 2017, the day of the second School Board meeting, the Superintendent sent a memorandum to School Board members regarding the rezoning issue. Among other things, he stated that "[t]he establishment of school attendance boundaries is authorized by Section 1001.42, Florida Statutes. In addition, the Administrative Procedures [sic] Act requires that the District publish a Notice of Intent to Adopt a Rule twenty-one days prior to the public hearing. The first reading was held on December 20, 2016." Pet'r Ex. 19. On January 17, 2017, the day of the second School Board meeting, the Superintendent tweeted on his Twitter account that he intended to recommend the adoption of Plan 4A2, as modified. See Pet'r Ex. 9. After public comment, final action was taken by the School Board and Plan 4A2 was adopted as the new school attendance boundaries for the West Side Schools. Unlike typical agency rulemaking, the adopted plan is in the form of a map, rather than a numbered rule. See Resp. Ex. 16. The additional cost for parents to transport their children to a new school is highly speculative, and no evidence was adduced to show that the new plan would increase regulatory costs, directly or indirectly, more than $200,000.00 within one year after implementation. See § 120.54(3)(a)b., Fla. Stat. Therefore, a statement of estimated regulatory costs for implementing the new boundary lines was not prepared by the School Board, and none was requested nor submitted by a third party. As required by section 120.54(3)(e)6., a copy of the new boundaries was filed with the "office of the agency head" after it was adopted at the second meeting. The parties stipulated that had the students who are named as parties testified at the final hearing, they would have reiterated the allegations set forth in the Second Amended Petition and Motion for Leave to Intervene. These include allegations that the students will be emotionally affected by the transfer; they will be separated from friends, teachers, counselors, and certain extracurricular programs in which they now participate; the change will limit their ability to walk or bike to school; and they will have increased travel time to attend the new schools. The parents expressed a wide range of concerns with the new attendance boundaries. Many wondered why area 13, which lies just west of area 12, was not reassigned to River Ridge. However, the committee decided early on to use State Road 54 as a demarcation line, sending students who reside north of State Road 54 to River Ridge. Area 12 lies north of the roadway, while area 13 is just south of the line. The reassignment of area 12 students was based on this consideration and is not illogical or unreasonable. Most parents purchased their homes with the understanding that their children would always be attending the schools located closest to their homes. The new school assignments will result in longer bus rides, inconvenience for parents who drive their children to school in the morning, or pick them up after regular school hours if they participate in extracurricular activities. The parents also noted that driving on Starkey Boulevard (Starkey) is the shortest route to the new schools. They described the route as unsafe and one that requires them to make a difficult left turn onto Starkey when leaving Longleaf. There are, however, other routes to the new school, and the district transportation coordinator established that student safety is a top priority. Several parents, including one who is a realtor, expressed a concern that the value of their homes would decline since buyers would not choose to purchase a home if their children could not attend the schools closest to their homes. However, the record gives no indication that any homes have been offered for sale, any homes have been sold at a distressed price, or any homeowners have not been able to sell their homes due to the proposed rezoning. Parents are concerned that River Ridge does not have the same clubs, extracurricular activities, or educational opportunities that are found in Mitchell and Seven Hills. The record shows, however, that both schools are ranked as "B" schools; they have the same core academic and educational programmatic offerings; they both have advanced offerings for students who excel; they both have magnet programs; and both are accredited by AdvancED/Southern Association of Colleges and Schools. There is no evidence that classes currently available at Mitchell and Seven Hills will not be available at River Ridge this fall, or even that such classes will remain available to the students at Seven Springs and Mitchell. In summary, there is no evidence that the students will not have the same educational opportunities at the River Ridge schools as they now receive at Mitchell and Seven Springs. Some students visit doctors and dentists who have offices near Mitchell and Seven Springs. Having to travel from River Ridge to those offices will be more time-consuming and inconvenient. This is not, however, a ground to invalidate a rule. It was contended that some parents provide a false address to the School Board in order to have their children enrolled in Mitchell and Seven Springs, rather than their assigned schools under the current school attendance plan. Petitioners assert that if all addresses are verified, those students can be removed, and the overcrowding at Mitchell and Seven Springs alleviated. However, no evidence to support this assertion was produced. Some parents complained that emails requesting answers to questions that were sent to the Superintendent or planning staff during the process were never answered. Although the Superintendent instructed staff to reply to all emails, if hundreds or thousands of emails were received by staff during the process, it is likely that some were not answered.
Findings Of Fact Respondent was reassigned to Douglas MacArthur Senior High School- North, an alternative school, on December 16, 1982, because of his unacceptable conduct in Grade 9 at North Miami Junior High School. Petitioner presented evidence of 16 incidents of conduct by Respondent which required disciplinary action in the year preceding his reassignment to the alternative education program. Additionally, his grades in all courses were unsatisfactory at the time of reassignment. Respondent did not accept the alternative school assignment and instead obtained employment at a restaurant. He is now living with his grandmother, Mrs. Helen Wood, who seeks his return to a regular junior high school program. She has discussed this proposal with the principal of Thomas Jefferson Junior High School and he apparently agrees with her. Respondent's evidence established that his family life was difficult and disruptive during the period of his misconduct. His situation has now stabilized and he is responsive to his grandmother's supervision. He should, therefore, be given an opportunity to return to the regular academic program (Grade 9) at Thomas Jefferson Junior High School.
Recommendation In consideration of the foregoing, it is RECOMMENDED that Petitioner enter a Final Order classifying Respondent as a disruptive student, but permitting him to attend the Thomas Jefferson Junior High School in a probationary status. ENTERED this 6th day of May, 1983, at Tallahassee Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Helen Ward 1000 Northwest 153rd Street Miami, Florida 33169 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issues for determination are whether Respondent threatened to shoot students with a firearm located in his vehicle that he parked on campus, and whether the acts proved during the administrative hearing constitute just cause to terminate Respondent's professional services contract pursuant to Subsection 1012.33(6)a), Florida Statutes (2006).1
Findings Of Fact Respondent has taught diesel mechanics at the Ridge Vocational Technical Center (Ridge Center) in Polk County, Florida, for over 12 years. Respondent teaches diesel mechanics pursuant to a professional services contract. By letter dated May 14, 2007, the Superintendent of the Polk County Public Schools notified Respondent that she was suspending Respondent from his employment with pay. The letter also states that, on June 12, 2007, the Superintendent would recommend to Petitioner that Petitioner terminate the professional service contract of Respondent. On June 12, 2007, Petitioner followed the recommendation of the Superintendent. The letter dated May 14, 2007, is the charging document in this proceeding. The letter notifies Respondent of the alleged grounds for termination of his employment and provides Respondent with a point of entry into the administrative process. In relevant part, the stated grounds for termination of employment are: On May 11, 2007, an investigation revealed that you had a 9mm pistol in the front seat compartment of your personal vehicle. When asked if you understood that it was against School Board policy to bring a weapon on campus, you indicated that you were aware of the policy. You were arrested by the Winter Haven Police Department for having a weapon on campus. The arresting officer also indicated that further charges may be made against you regarding threatening comments that you allegedly made to the students. * * * Your conduct in this situation is aggravated by the fact that you made reference to the weapon and threatened to use it against students and by the fact that you admitted you were aware that bringing the weapon onto campus was a violation of both state law and Board policy. This was a knowing, intentional act on your part involving students and constitutes just cause for termination. It is undisputed that Respondent possessed a firearm on the Pine Ridge campus on Friday, May 11, 2007. On the morning of May 11, 2007, Respondent placed a 9mm pistol into its holster and put both items into the center console of his truck. Respondent drove the truck to work and parked the truck in the Ridge Center parking lot. The truck was parked approximately 25 feet from the school. The pistol was securely encased and not readily accessible for immediate use within the meaning of Subsections 790.001(16) and (17). The possession of a firearm on the Ridge Center campus violated the written policy of Petitioner. In relevant part, the policy provides: It is the expressed policy of the Polk County School Board that no weapons/firearms shall be taken upon school property by any one other than law enforcement personnel. . . . Petitioner's Exhibits 8 and 10. The charging document notifies Respondent of several aggravating factors that are alleged as grounds to support a finding of just cause to terminate Respondent's employment. The document alleges that the violation of the written school policy was a knowing and intentional act; that Respondent made reference to the weapon and threatened to use it against students; and that the possession of the firearm by Respondent was unlawful. The violation of the written school policy was knowing and intentional. Respondent knew of the written school policy prohibiting the possession of firearms on campus but brought the firearm to school in his truck to take with him that night to a weekend job discussed in subsequent findings. Respondent did not make reference to the firearm and threaten to use it against students. The accusing student complains that Respondent referred to the firearm and threatened to shoot students on May 10, 2007. However, there is no evidence that Respondent possessed a firearm on campus on May 10, 2007. The weight of the evidence does not support the testimony of the accusing student that Respondent threatened to retrieve his firearm from his truck and shoot Pine Ridge students on May 10, 2007. On the afternoon of May 10, 2007, Respondent was grading papers in his classroom at the Ridge Center. Several male students outside of the classroom were using long broom handles to "sword-fight." Respondent readily admits that he yelled words from his classroom on May 10, 2007, to the effect that, "I'm going to shoot all of you guys one of these days if you don't straighten up." Respondent did not make reference on May 10, 2007, to the firearm he possessed on campus on May 11, 2007. The admitted statement was not a threat to shoot students and did not expose any student to conditions harmful to his or her physical or mental health. Respondent continued grading papers, and Respondent and the students remained on campus until shortly after the school day ended at 2:00 p.m. One of the students playing in the hall on May 10, 2007, testified that Respondent said, "The next one of y'all that breaks a broomstick, I'm going to go to my truck, I'm going to get my nine and come back and shoot you." The student further testified that he asked Respondent, "You're going to shoot them?" and that Respondent replied, "Yeah, I'm going to shoot them." The testimony of the accusing student is not credible and persuasive and conflicts with material facts in the record. Respondent did not possess a firearm in his truck on May 10, 2007, when he allegedly threatened to fetch the firearm. A finding based on the testimony of the accusing student would require the trier of fact to ignore the weight of the other evidence as well as the candor, forthrightness, and cooperative nature of the testimony of Respondent. The accusing student is an older high school student with a history of discipline problems at the Ridge Center. The accusing student did not return to the Ridge Center after May 10, 2007, and, on the date of the hearing, was no longer pursuing a trade or degree in any school. He is hoping to enter a military academy within five months of the date of the hearing. Testimony from the accusing student that he did not return to the Ridge Center for fear of Respondent is not persuasive. The accusing student was a problem for other teachers and administrative staff at Pine Ridge, and the testimony of teachers and administrators shows they preferred that the student had never attended the Ridge Center. Petitioner did not prove that possession of the firearm on campus on May 11, 2007, was unlawful. Rather, the evidence and relevant legal authority discussed in the Conclusions of Law shows that the firearm was in Respondent's truck on Friday, May 11, 2007, for a lawful purpose pursuant to Subsection 790.115(2)(a)3. Respondent was scheduled to work that weekend on a truck delivery route that would take him into Liberty City, Florida, between midnight and 5:00 a.m. Respondent drove directly from the Ridge Center to his weekend job and took the firearm on his truck delivery job for self defense. Local law enforcement officials arrested Respondent for allegedly committing a third degree felony in violation of Section 790.115, Florida Statutes (2006).2 At the conclusion of the criminal investigation, not only were additional charges for threats against students not filed against Respondent, as alleged in the charging document in this proceeding, but the state attorney refused to prosecute Respondent on June 12, 2007. It is unclear from the record whether Petitioner knew of the decision of the state attorney on June 12, 2007, when Petitioner terminated Respondent's employment, in relevant part, for the unlawful possession of a firearm on May 11, 2007, and alleged threats against students. The criminal investigation began on May 10, 2007, when local law enforcement officials received an anonymous telephone complaint sometime concerning the alleged threat by Respondent. On May 11, 2007, an officer from the Winter Haven Police Department (Department) visited the Ridge Center to investigate the complaint against Respondent. The police officer questioned Respondent on May 11, 2007, and Respondent acknowledged that he had a pistol holstered and securely encased in his truck in the campus parking lot. Respondent took the officer to the truck, directed the officer to the location of the firearm in the center console, and otherwise fully cooperated in the investigation. The police officer arrested Respondent for possessing a firearm on a school campus in violation of Section 790.115. The Department conducted a full investigation, Respondent fully cooperated in the investigation, and the state attorney dismissed the charges against Respondent on June 12, 2007. Relevant legal authority is discussed further in the Conclusions of Law. At the hearing, Petitioner submitted evidence intended to prove the presence of several aggravating factors that the charging document does not allege. These un-alleged aggravating factors are that Respondent previously possessed an unloaded hunting rifle on campus in Respondent's truck; violation by Respondent had impaired Respondent's effectiveness as a educator; and Respondent failed to protect students from conditions harmful to their physical or mental health. The charging document does not provide Respondent with notice that Petitioner intended to submit evidence at the hearing of the un-alleged aggravating factors. However, Respondent did not object to questions asked during the hearing pertaining to the un-alleged aggravating factors. The ALJ admitted the relevant evidence and considered the evidence in this proceeding. The evidence supports a finding of only one unalleged aggravating factor in this proceeding. Sometime before May 11, 2007, Respondent possessed an unloaded hunting rifle in the back of his truck while the truck was parked on the campus of the Ridge Center. The events of May 10 and 11, 2007, and the prior possession of a hunting rifle did not expose any student to conditions harmful to his or her physical or mental health and did not seriously impair Respondent's effectiveness as a teacher. The testimonies of the director of the Ridge Center and a fellow teacher show that Respondent has consistently been an effective and competent teacher at the Ridge Center. Respondent has no prior discipline in his employment history.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law in this Recommended Order. DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2007.
The Issue Petitioner has alleged the invalidity of Respondent's rule, "JE/Student Attendance". The issues are whether Petitioner has standing to challenge the rule, and if so, whether the rule is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner, Darnell Rhea, resides in Alachua County, Florida, and is employed as a high school mathematics teacher in the Alachua County school district. As a classroom teacher, Mr. Rhea is required to record attendance of his students. He does not, however, make a determination as to whether absences of those students are "excused" or "unexcused". That determination is made by an attendance office in the school. The determination is then provided to the teacher. Attendance records are maintained by the teacher and in the school's attendance office. Respondent, School Board of Alachua County, has adopted a written policy, "JE/Student Attendance", to implement the provisions of Section 232.2462, F.S. regarding attendance requirements for receipt of high school credit and a definition of credit. That policy, adopted originally in 1982, has been revised in 1984, twice in 1985, in 1987, and twice in 1989. The policy describes what constitutes an excused absence and sets out the minimum number of hours of attendance required for course credit. For several years Darnell Rhea has contended that the policy violates Section 232.2462, F.S., and other statutes referenced in that section. His petition regarding the alleged invalidity of the current policy addresses what he believes are a too strict requirement of the policy which denies credit in some instances even when absences are legitimately excused, and a too liberal requirement with regard to the types of absences which are excused. Sometime prior to May 1991, Petitioner filed an action for declaratory judgement in circuit court, Eighth Judicial Circuit in and for Alachua County. On May 20, 1991, Circuit Judge Frederick D. Smith entered his order finding that Petitioner had alleged sufficient facts to support his standing to bring the action, but failed to allege sufficient facts to show that he had exhausted his administrative remedies. The action was dismissed with leave to amend the petition. On or about May 30, 1991, Petitioner filed a petition for rulemaking requesting that the Respondent school board amend its attendance policy. On July 2, 1991, the board issued an order deferring action on the request until it could receive an opinion from the Florida Department of Education regarding the legal issues raised in the petition. On or about July 2, 1991, Petitioner filed his notice of appeal to the First District Court of Appeal from the administrative order of the school board deferring rulemaking, and from a separate declaratory statement issued by the board on June 5, 1991, which statement Petitioner alleges is inadequate.
Findings Of Fact Respondent, Otis J. Fells, has been an employee of the Petitioner, School Board of Dade County, since 1975. At all times material hereto, he was a teacher and basketball coach at American Senior High School. On September 8, 1981, Paulette Brown was fifteen years of age, a student at American Senior High School, and a student in Respondent's sixth period physical education class. Monday, September 7, 1981, was Labor Day. Since classes for the 1981- 82 school year had commenced the week prior to Labor Day, American Senior High School was closed on Monday and reopened on Tuesday, September 8, 1981. On September 8, Respondent reported to American Senior High School to carry out his teaching and coaching duties. Since the floor of the gym was being painted, and since the school year had just begun so that not all physical education students had their gym clothes, the physical education classes were held in either the auditorium or the gym as study-halls, and the students wore their regular clothing. Between 9:30 and 10:30 the morning of September 8, Norman Blanco, a volunteer assistant basketball coach, came to American High to talk to Respondent about holding tryouts for the basketball team for the new school year. Since Respondent was with a class, Blanco told Respondent he would return after school to discuss that matter. Both the sixth period classes and the school day ended at 2:15 P.M. Respondent's sixth period physical education class had been held in the auditorium. James Lee, one of Respondent's sixth period students, asked Respondent for a ride home after school, and Respondent agreed to give Lee a ride home. Respondent left the auditorium and went to the main office to sign out and check his mail. He started to walk toward the boys' locker room, but stopped to speak to the art teacher about the eagle emblem to be placed on the gym floor by the art students. He then went to the gym to get the paint for the floor and took the paint to the art teacher's room, where he left it, although the art teacher was no longer there. Respondent then went to the coaches' office, where Blanco was waiting. From past experience, Blanco knows that if he arrives at American High at 2:15, he cannot find a place to park. He usually arrives about fifteen minutes after school lets out so that all the cars are gone and he can park wherever he wishes. On September 8, he arrived at American High at approximately 2:20 P.M. He went to the coaches' office to talk to Respondent. By the conclusion of their ten-to-fifteen minute meeting in the coaches' office, Blanco had talked Respondent into holding tryouts for the basketball team rather than simply using last year's team, as Respondent had intended to do. Blanco left Respondent in the coaches' office at approximately 2:35 P.M. There are two doors in the coaches' office: one opening into a hallway, and one opening into the boys' locker room. During Respondent's meeting with Blanco, the doors were open. After school on September 8 in the hallway outside the coaches' office, band members were going out to the football field, members of the flag corps were assembling for practice, and the cheerleaders were practicing approximately fifteen yards from the door into the coaches' office. In the boys' locker room, members of the cross-country team, the football team, and the soccer team were using their lockers or changing their clothes for practice. Additionally, the coaches' office is not Respondent's private office; rather, it is also used by the cross-country coach, the baseball coach, and the soccer coach, who are also involved with their students, their team members, aides, and managers. Inside the boys' locker room is a small room used for storing basketball equipment. The door to that room is kept locked. There are only three keys for that room: Respondent possessed one, Assistant Coach Jones possessed the second key, and the third key which traditionally was kept in the main office had never been returned after the girls' basketball team borrowed it one night the previous school year. After his meeting with Blanco, Respondent went to the main office, where he left his handwritten announcement concerning tryouts for the basketball team on the public address system. He then saw James Lee out in front of the school, directly in front of the main office. At approximately 2:45, from the main office, Respondent went to his car and left school with James Lee. When Lee arrived at his home, he told his mother that it was 3:00 and that Coach Fells had given him a ride home. After dropping off James Lee, Respondent went to Mr. B's Package Store and Lounge to see A. J. (Arnold) Johnson, one of the owners. Over the Labor Day holiday, Bobby Hunter, Assistant Basketball Coach from Boston College, visited Respondent and left sneakers for A. J. Johnson at Respondent's house. Respondent took the sneakers into Mr. B's and gave them to Johnson, who was waiting for the bank to open at 3:00 so he could transact some business at the bank. Johnson left Mr. B's to go to the bank at approximately 3:05, and when he returned from the bank, Respondent was still there. While Johnson was gone from Mr. B's, Respondent visited with Roscoe Large, the sales representative from Southern Wine and Spirits, and several other persons whom he also knew. After Respondent had been at Mr. B's for approximately thirty minutes, he left and drove to Coconut Grove to pick up his son at the baby-sitter's. On the following day, Respondent went to school and spent a normal day. After he arrived home on Wednesday, his wife told him that someone had been calling on the telephone accusing Respondent of raping Paulette Brown. The next morning, Respondent called the principal of American Senior High, and the principal advised him to stay home. On September 8, 1981, Paulette Brown stayed after school rather than leaving the school grounds when school adjourned for the day at 2:15. Between 2:30 and 2:45, she visited with Agnes Pitts and William Hopkins in the vicinity of the coaches' office and boys' locker room. When Agnes Pitts again saw Paulette Brown, it was approximately 3:00, and Brown was walking toward the front of the school. Brown told Pitts that she was going home. At approximately 3:00, Brown called her father and asked him to pick her up at school. After he picked her up and pursuant to her suggestions, they first picked up fried chicken for dinner and then picked up Paulette's brother when he got out of school at 3:30. Mr. Brown then took Paulette and her brother home and then went to pick up Paulette's mother, Pauline Brown, at 4:00 at her place of employment. Between 5:00 and 6:00 P.M. on September 8, 1981, Paulette Brown called her godsister, April Clark, and told Clark that Respondent had raped her. She also told her story to George Richberg that same evening. She also told her story twice to Jeffrey Clark. During her second relating of the story to Jeffrey Clark, she included mention of a janitor with a key to the boys' locker room. On Wednesday, September 9, Paulette Brown stayed home from school. After taking a nap, she called her boyfriend's sister and told her that Coach Fells had raped her. When the boyfriend's sister threatened to tell someone in a position of authority if Paulette refused to, Paulette told a neighbor, who told Mrs. Brown. Paulette Brown was tested at the Rape Treatment Center on September 9, and the investigators for the police department examined the equipment room on September 12. To gain entry to the room, the police drilled through the deadbolt lock. Five non-mobile sperm were found within Paulette Brown by the Rape Treatment Center. Testing by the Miami-Dade Police Department Crime Lab established that the sperm came from an individual that was an "O-positive secreter." This is the most common blood type. Forty percent of the American population falls in this category. Respondent is a member of this category, that is, Respondent is an "O-positive secreter." The Miami-Dade Police Department's fingerprint experts examined and dusted the equipment room at American Senior High School and found identifiable fingerprints of the Respondent. They found no identifiable fingerprints of Paulette Brown. The parties have stipulated that simply because one touches an object, one does not necessarily leave fingerprints. The sheet, which Paulette Brown claims she lay upon while having sexual intercourse with Respondent, was impounded from the equipment room and examined. Nothing of serological value was found. Respondent, Otis J. Fells, did not commit sexual battery upon Paulette Brown on September 8, 1981, and Respondent, Otis J. Fells, did not engage in any sexual activity with Paulette Brown on September 8, 1981.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Respondent not guilty of immorality and misconduct in office, as set forth in the Amended Notice of Charges filed in this cause, and reinstating Respondent as an employee of the School Board of Dade County with back pay. RECOMMENDED this 16th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 16th day of July, 1982. COPIES FURNISHED: Jose E. Martinez, Esquire Leib I Martinez, P.A. 201 Alhambra Circle, Suite 1200 Ponce de Leon Plaza Coral Gables, Florida 33134 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public Schools Administrative Office 1410 N.E. Second Avenue Miami, Florida 33132 Elizabeth J. du Fresne, Esquire du Fresne & du Fresne, P.A. 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton Superintendent of Schools Dade County Public Schools Administrative Office 1410 N.E. Second Avenue Miami, Florida 33132
The Issue The issues to be determined are whether Respondent, Cornell Lamont Steward (Respondent or Mr. Steward), violated sections 1012.795(1)(f), Florida Statutes (2012), or sections 1012.795(1)(g) or (j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Amended Administrative Complaint,2/ and, if so, what is the appropriate sanction?
Findings Of Fact The Commissioner is the state officer responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. At all times relevant to the allegations in the Amended Administrative Complaint, Mr. Steward held Florida Educator Certificate 1156507, covering the areas of biology and earth- space science, and was employed as a science teacher at Miami Carol City Senior High School in the Miami-Dade County School District. Mr. Steward’s certificate expired on June 30, 2013. On September 7, 2011, Mr. Steward was arrested for driving under the influence of alcohol or drugs with resulting damage to property or another person in Broward County, Florida. As Mr. Steward admitted, on April 3, 2013, he was found guilty by a jury on this charge. On December 6, 2011, there was an altercation between a 15-year-old male student, A.C., and Mr. Steward in his classroom at Miami Carol City Senior High School. The Commissioner offered no competent evidence regarding this event other than pre-hearing admissions of Mr. Steward and his testimony at hearing. Mr. Steward testified that he was teaching in his fifth- period class, which was a ninth-grade science class consisting of about 21 students, when there was a knock on the classroom door. A.C., who was a student with behavior and attendance problems, had moved to a seat near the door and offered to see who was there. Mr. Steward at first agreed, but then changed his mind and asked A.C. to remain seated, while Mr. Steward answered the door himself. At the door were three unknown students. A.C. then got out of his seat, stating that the unknown students were his brothers, and moved to the door to greet them. Mr. Steward testified that the students at the door caused a great amount of disruption in the classroom, and he turned around to quiet his students. He testified that as he turned his back to the door, he felt A.C. “violently” press his groin against Mr. Steward’s buttocks, which startled and frightened Mr. Steward, so he had to “remove [A.C.] from [his] personal space.” Mr. Steward testified that A.C. then positioned himself between Mr. Steward and his desk, which had the telephone. According to Mr. Steward, A.C. then stepped forward in a “violent motion” and threatening manner with his fists balled up and “chin checked” Mr. Steward. Detective Marin testified that “chin checking” was slang to describe a tap or touch on the chin primarily as a challenge, used to instigate a confrontation, but was not itself a punch. Mr. Steward testified that he “removed [A.C.] from [his] presence.” Mr. Steward said that then, A.C. moved toward him again with a threatening motion, and Mr. Steward responded: With my left hand I grabbed his right shoulder. With my left hand I grabbed his right shoulder and with my right hand I grabbed his left shoulder. With using his momentum I placed him on the ground, I did not throw him, I did not slam him, I placed him on the ground. He’s a very small person. As soon as I did that, I, I checked for my students who were in attendance to locate security. One or two of them left the class and then there began to be a stampede out of the classroom. From that moment on–-oh, oh, while I was holding him on the ground, A.C. began to violently struggle and make motions towards me. Then also the three other students began to grab and pull at me and grab, pull and push at me. Then for my own safety I didn’t know if these children were armed. I didn’t know anything, I let A.C. go and he and the three other students fled the classroom. Later that day, Principal Dunn was told that Mr. Steward had been in an altercation with a student. He asked the school resource officer, Tracy Moore, to investigate. The following morning, December 7, 2011, Principal Dunn called Mr. Steward to his office to discuss the incident. But for the meeting in Mr. Dunn’s office, Mr. Steward would have reported to his classroom. At the meeting, Mr. Steward’s behavior was a bit erratic. He was laughing, loudly and inappropriately, at the events of the previous day. Principal Dunn noticed that Mr. Steward’s eyes were glassy. Principal Dunn suspected that Mr. Steward was under the influence of alcohol or drugs. Mr. Steward stated that his eyes were glassy and swollen because he was up the night before thinking about the incident with A.C. Principal Dunn called the region director and the Office of Professional Standards for advice on how to proceed. He kept Mr. Steward in his “custody,” so that Principal Dunn or the school would not be responsible if anything occurred. Principal Dunn completed a Reasonable Suspicion Form, noting that Mr. Steward had slow or inappropriate reactions, glassy and swollen eyes, and inappropriate laughter. He determined that there was probable cause to send Mr. Steward for a drug and alcohol screen. Mr. Steward was tested by LabCorp on December 7, 2011. The results were positive for marijuana. Mr. Steward’s exhibit offered to show that the lab sample which was tested was actually obtained on another day is not persuasive, and his argument that the test results should not be admitted is completely rejected. On January 5, 2012, a Conference for the Record was held with Mr. Steward, Mr. Dunn, Ms. Sherri Daniels of United Teachers of Dade, and Ms. Joyce Castro, district director. The events of December 7, 2011, and the test results were reviewed with Mr. Steward. He was given an opportunity to respond, but declined that opportunity. He was advised that a second positive drug test, refusal to submit to future drug tests, or failure to abide with rehabilitation directions could result in additional action, including dismissal. Mr. Dunn testified that the incidents had an effect upon Mr. Steward’s effectiveness as a teacher.
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, Cornell Lamont Steward, in violation of section 1012.795(1)(f), Florida Statutes (2012), and section 1012.795(1)(g), Florida Statutes (2011). It is further recommended that the Commission impose upon Cornell Lamont Steward a fine of $3,000.00 and revoke his educator certificate for a period of three 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 10th day of November, 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 10th day of November, 2015.
The Issue The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Edwin D. MacMillan, held teaching certificate number 439378 issued by petitioner, Betty Castor, as Commissioner of Education. The certificate covers the areas of mathematics, social studies, and psychology and is valid through June 30, 1993. When the events herein occurred, respondent was employed as a teacher at Hilliard Middle- Senior High School in Hilliard, Florida. The school is a part of the Nassau County School District. For nine years respondent taught general and upper level mathematics, algebra, geometry and trigonometry at Hilliard Middle-Senior High School. He also assisted in the coaching of various athletic teams, including the girls' basketball team. Based upon the charge that respondent engaged in inappropriate and unprofessional conduct towards certain female students, on May 9, 1991, respondent was suspended from his teaching position by the School Board of Nassau County. He has remained suspended pending the outcome of this proceeding and another inititated by the School Board. 1/ It is noted that all of the students who are the subject of this complaint have now graduated The administrative complaint first alleges that in school year 1986-87, "respondent drove C. D., a minor female student, home from a basketball game and made a suggestive comment about her 'giving him some.' On another occasion, the Respondent grabbed C. D.'s buttocks as she was exiting a room." As to these two charges, the evidence shows that during the school year in question, Cheryl Donley was a ninth grader and the manager of the girls' basketball team. Respondent served as the coach of the team. On an undisclosed date during basketball season, respondent carried a number of players and Cheryl home after practice one afternoon. Cheryl, who was sitting in the back seat, was the last student to be dropped off. Just as respondent drove up in front of Cheryl's house to let her out of the car, Cheryl says she told respondent "Well, Mac, you've dropped everyone off except me, I guess I'm the last one" and that respondent made a remark to this effect: "You're going to have to give me some for this one." Although Cheryl says she was taken aback she said nothing and got out of the car. While on an overnight trip to the state basketball tournament later on that school year, Cheryl told an adult chaperone a different version of the remarks allegedly made by respondent. On that occasion, she embellished the story by alleging that respondent told her he was not going to take her home, and that he would take her off on a county road and show her a good time. Respondent denied that either version of statements was made. At hearing, Cheryl conceded that respondent often joked around with students and agreed that he may have said something without intending it to be taken in the manner that it was. In light of this, and given the above material inconsistencies in her recollection of the conversation, it is found that respondent may have said words to the effect "you owe me for this one" but Cheryl misconstrued his remarks. It is further found that respondent did not intend his remarks to be taken as sexually suggestive or to imply any inappropriate connotation. Finally, there was no testimony concerning the allegation that respondent "grabbed C. D's buttocks as she was exiting a room" and thus that charge must likewise fail. The second allegation in the complaint concerns events some three years later, or in school year 1989-1990, when respondent is alleged to have "made inappropriate and suggestive comments to J. S., a minor female student, including making comments about her appearance such as 'I like the way your butt looks' and offering to go with her to a dark corner of a room." As to these charges, the evidence shows that Jessica Smith was a student in respondent's algebra II classroom during the school year in question. She was then a senior and around eighteen years of age. On an undisclosed date during that school year, the boys' and girls' basketball teams were playing games at Folkston, Georgia. After the girls' game ended, respondent took a short break in a commons area near a concession stand. Jessica had just been to the concession stand and walked by him while returning to her seat. The two engaged in a brief conversation about the attractiveness of the new school facility. Jessica related that at the end of their short conversation respondent told her "he knew where all the dark corners were" and could point them out. Respondent denied that those exact words were spoken and recalled that he may have said in a joking manner "don't let me catch you in any dark corners". In any event, Jessica gave a nervous giggle and then left. At hearing, she indicated that she construed the remarks as being sexually suggestive. However, it is found that respondent's version of the conversation is more credible. Further, it is found that respondent did not intend the remarks to be sexually suggestive or to otherwise imply any inappropriate connotation. Finally, there was no evidence that respondent made comments about Jessica's appearance including the remark "I like the way your butt looks." The final allegation concerns events that took place the following year, or in school year 1990-1991. The complaint alleges that respondent "engaged in sexual intercourse" with a minor female who had withdrawn from school. The sexual misconduct allegedly occurred in a coach's office. The evidence shows that during the school year in question, Shalane Bryant was a senior at Hilliard Middle-Senior High School. Around January 25, 1991, she withdrew from school and did not reenroll until February 15, 1991. Although Shalane had never been in one of respondent's classrooms, she knew who he was because her best friend was a student in one of his classrooms. Her younger brother, Chad, was a member of the boy's basketball team. Shalane was described by other students as having a reputation for not telling the truth. On an undisclosed date in January 1991, but after Shalane had withdrawn from school, the varsity and junior high boys' and girls' basketball teams visited Jacksonville to play Southern Baptist. After the girls' game ended, the team members and coach (respondent) boarded a school bus around 8:10 p.m. and drove to the Dunn Avenue exit on Interstate 95 where the bus exited to a nearby fast food restaurant. After the team finished eating, the members reboarded the bus and eventually returned to the school gymnasium around 10:00 p.m. Respondent unlocked the door to the gymnasium, spoke briefly with the parents of an injured player, and then placed balls and equipment inside the gymnasium. He also physically checked each door to make sure that it was locked and left the gymnasium within 5 to 10 minutes after entering the same. While inside, he spoke briefly with Shalane, who had momentarily entered the gymnasium from the parking lot while waiting for Chad to return from Jacksonville. As it turned out, Chad was not scheduled to return until after the boys' game was completed. Respondent departed the gymnasium around 10:10 p.m. and was home before 10:30 p.m. This was corroborated by another witness. Although Shalane contended that she and respondent had sexual intercourse in the coach's office around 8:30 p.m. that evening, this assertion is rejected as not being credible. According to the school principal, who was accepted as an expert in secondary school administration, if the charges of having sexual intercourse with a former student and making "sexual invitations" to two other students as alleged in the administrative complaint were true, respondent would have "a real problem" continuing to teach in Nassau County since she believed that both students and parents would "have a problem dealing with that with him still being a teacher at Hilliard High School." She also pointed out that respondent and other teachers are given instructions during each school year to refrain from making sexually suggestive remarks to students. Since the underlying assumptions for the expert's opinion were not proven to be true, it is found that respondent's effectiveness as an employee was not impaired.
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 all charges against respondent. DONE and ENTERED this 3rd day of August, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992.
Findings Of Fact On October 29, 1984, Bruce E. Beneby, Respondent, was on the instructional staff at Dixie Hollings Senior High School as band instructor. Dennis Hale, a detective in the Pinellas County Sheriff's Department, went to Dixie Hollings Senior High School around 5:00 p.m., October 29, 1984, to pick up his son after band practice and to ask Respondent why he had thrown Hale's son's textbook in the garbage. Upon his arrival at the school in the vicinity of the bandroom, Hale observed Beneby running around the building with his shirt off. One of the milling students told Hale that Beneby was about to fight a student. When Hale arrived at the scene he observed Beneby holding a pair of scissors in a threatening manner toward the student, Ellis Tedrick. Tedrick had a six-foot length of drain pipe. Neither struck the other. Hale told both to stop but was not obeyed until he produced his sheriff's badge. Earlier, after band practice, Tedrick asked Beneby why he had thrown some of the girls off the Re Belle squad. He and Beneby got into an argument and Beneby picked up a band stand with which he threatened Tedrick. Other witnesses testified regarding Beneby's aggressiveness on other occasions. Testimony respecting Beneby having a gun in his briefcase to protect himself from the parents of students in his class is disregarded. No charge of this nature was made against Respondent as reason for his dismissal. No evidence was presented by any witness that observed Respondent destroy or throw away school property such as textbooks.
