The Issue The issue is whether just cause exists for Petitioner, Lee County School Board (School Board), to terminate Respondent's employment as a classroom teacher on the ground she is incompetent and did not satisfactorily correct performance deficiencies.
Findings Of Fact The Parties The School Board is charged with the duty to operate, control, and supervise public schools in Lee County. This includes the power to discipline instructional staff, such as classroom teachers. §§ 1012.22(1)(f) and 1012.33, Fla. Stat. (2018). Respondent began her teaching career in Dunnellon, Florida, and has been certified as an educator since 1997. She has been employed by the School Board as a classroom teacher since 2001 and is certified in five areas, including exceptional student education (ESE). She currently holds a professional service contract, which is governed by the Collective Bargaining Agreement between the School Board and the Teachers Association of Lee County (TALC Agreement). Beginning in school year 2014-2015, Respondent was assigned as a classroom teacher at Cypress Lake Middle School (Cypress Lake) where she remained for three years. In school year 2017-2018, Respondent was reassigned to Royal Palm Exceptional Center (Royal Palm) as an ESE teacher. The Intensive Assistance Program (IAP) Process A performance evaluation must be conducted for each employee at least once each year. § 1012.34(3)(a), Fla. Stat. The annual evaluation is found in the Annual Performance Evaluation Form, which identifies the evaluation areas and assigns to each area a "grade" of unsatisfactory, needs improvement/developing, effective, or highly effective. Sch. Bd. Ex. 17. A final performance rating also is given the employee. If an employee is not performing his or her duties in a satisfactory manner, section 1012.34(4) establishes a process for addressing the performance deficiencies. Under this process, the evaluator first must notify the employee in writing that the employee is not performing her duties in a satisfactory manner. The notice must include a description of the unsatisfactory performance areas, make recommendations with respect to the specific areas of unsatisfactory performance, and offer assistance to the employee to correct those deficiencies within a prescribed period of time. The employee then is placed on "performance probation" for 90 calendar days (excluding school holidays and vacation periods) following the receipt of the notice, during which time the employee is "evaluated periodically and apprised of progress achieved." Also, the employee is provided assistance and in- service training opportunities to help correct the noted performance deficiencies. Within 14 days after the close of the 90-day period, the evaluator must decide whether the performance deficiencies have been corrected and forward a recommendation to the superintendent. Within 14 days after receiving the recommendation, the superintendent must decide whether to continue or terminate the employment contract. To implement the foregoing statute, and to ensure that employees who are not meeting professional standards are given an opportunity to be successful, the School Board has created a process known as the IAP, which provides more detail than the statute itself. Sch. Bd. Ex. 26. The IAP is the School Board's version of "performance probation." According to the School Board's IAP Manual (Manual), the assistance program is designed to "provide intensive direction and support to employees who seem to be experiencing serious difficulty in meeting professional performance standards." Id. The School Board also has created a two-page outline of the IAP process, which reiterates the steps to be followed when using the process. Resp. Ex. 2. Notably, the goal of the process is not to get rid of a teacher, but rather to make him or her successful, especially at a time when the Lee County School District is facing a teacher shortage. Once a decision is made to initiate the IAP process for a teacher, an IAP team is picked by the superintendent or his designee. The team consists of a "team coordinator," the "immediate supervisor" of the employee being reviewed, another "site administrator or manager," a "job-related coordinator or supervisor," and "others, as may be appointed by the Superintendent." Sch. Bd. Ex. 26. The teacher's union representative also is invited to attend the meetings on behalf of the teacher. And, of course, the affected employee attends all meetings. The Manual (but not the statute) calls for "not more than eight meetings" of the IAP team, "typically scheduled biweekly," during a 90-day period. Id. An initial team meeting, also known as an "orientation meeting," is conducted at the school site to review the areas of concern, identify the areas needing improvement, and outline the IAP process. A binder is given to each participant, which contains the IAP Manual and outline. Written minutes of each meeting are prepared, typically by the principal's secretary. The process is intended to be confidential, with discussions of the observations to occur only in team meetings. However, other persons may be called to a meeting to "share information that might be relevant, or if the teacher in question wants to bring somebody in." During the IAP process, the teacher meets with team members individually and as a group and receives feedback, coaching, and suggestions. In addition, formal classroom observations are made by team members so that they can address any perceived deficiencies. The focus of the observations is in the areas noted as "needs improvement" or "unsatisfactory." In Respondent's case, the process was concerned not only with classroom skills, but also with the preparation of individualized education plans (IEPs) and how to properly conduct teacher/parent IEP meetings, all deficient areas. After the last meeting, the "[a]ssistance team meets with [the] Executive Director of Human Resources to determine [a] recommendation to [the] Superintendent." Sch. Bd. Ex. 26. The Manual provides that after receiving the recommendation, the superintendent shall take one of the following steps: Performance meets standards - plan follow-up review; Performance below standards - continued assistance; Reassignment to more appropriate position; Withhold recommendation for reappointment; Performance unacceptable file charges for dismissal; or Recommend employee's resignation be accepted. The establishment of an IAP team is not a regular occurrence, and, in this case, was the first and only time that the principals (and team members) at Cypress Lake and Royal Palm participated in such a process. Although Respondent denies that her performance warrants termination, and she presented extenuating circumstances to justify her lack of progress, the focus of her challenge is a contention that in numerous respects, the Royal Palm IAP team and school administrators (and to a lesser degree the Cypress Lake team) did not follow strictly to the letter the process described by the statute, Manual, and IAP outline. Cypress Lake Performance Issues Respondent began teaching at Cypress Lake during school year 2014-2015. Besides teaching language arts/reading, she also was a support facilitator and a self-contained ESE teacher for the sixth grade. Ms. Maniscalco was the principal. Following her first year, Respondent received an overall "Needs Improvement" on her annual performance evaluation. In her year- end conference with the principal, Respondent did not object or otherwise complain that the evaluation was incorrect. Ms. Maniscalco's evaluation noted a variety of areas where Respondent needed to improve or was unsatisfactory, including: Demonstrating Knowledge of Resources and Technology; Creating an Environment of Respect; Establishes a Culture for Learning; Stops Misconduct by Using Effective Appropriate Techniques; Using Questioning and Discussion Techniques; Engaging Students in Learning; Showing Professionalism; Maintaining Accurate Records; and Participating in a Professional Community. Sch. Bd. Ex. 17. Following her second year, school year 2015-2016, Respondent again received a "Needs Improvement" on her annual evaluation. Ms. Maniscalco cited numerous areas where Respondent needed to improve or was unsatisfactory, including: Designing Student Assessment; Setting Instructional Outcomes; Demonstrating Knowledge of Resources and Technology; Establishes and Manages Classroom Procedures; Stops Misconduct by Using Effective Appropriate Techniques; Communicating with Students; Using Questioning and Discussion Techniques; Engaging Students in Learning; Using Assessment in Instruction; Demonstrating Flexibility and Responsiveness; Showing Professionalism; and Maintaining Accurate Records. Sch. Bd. Ex. 17. Based on formal observations of Respondent that year, Ms. Maniscalco noted that Respondent failed to do "individualized assessments" or "modified assessments" for her ESE students. Also, after a year of working at Cypress Lake, Respondent still did not know how to utilize the interactive SMART board in her classroom or the District's Outlook email system, even though training in both programs was provided. She observed that none of the classroom guidance that Respondent received was being utilized, and none of the children in Respondent's classroom were "working." Rather, they were simply sitting there "playing when [Ms. Maniscalco] would come in." On days when Respondent was scheduled to have IEP meetings with students and parents, Respondent sometimes would call in sick, and her IEP plans either were not written or were completely wrong. Ms. Maniscalco then would have to call in a substitute ESE teacher who would be forced to write a new plan in front of the parents. During school year 2015-2016, Respondent had numerous meetings with the principal; the head of the ESE department worked with Respondent "on paperwork"; she was sent to "quality writing IEP" with another teacher; and Ms. Maniscalco conducted a number of formal observations and provided feedback after those observations. At the year-end conference with the principal, except for stating that she was under a great deal of pressure, Respondent did not provide a satisfactory response for her continued deficiencies. On May 18, 2016, Ms. Maniscalco wrote a letter to the superintendent recommending that Respondent be placed in an IAP program for the following school year. Sch. Bd. Ex. 27. The letter reads as follows: During her two years at Cypress Lake Middle School she has received additional support from administration, reading coach, select faculty members and the staffing specialist. Her struggles with correct completion of ESE documentation, instructional strategies, and classroom management have prevented her from being an effective teacher. She was cooperative and always attempted to implement what she learned. However, she was unable to sustain and implement this knowledge in ESE required documents, future lessons and her teaching lacked depth and vigor. Mrs. Miller's classes during the 2016/2017 school year was [sic] of great concern. As evident by the documentation on PeopleSoft and my personal notes, her classroom management and lack of vigor was [sic] of particular concern. Despite having classes of no more than 13 students, Mrs. Miller was unable to maintain classroom control throughout the entire school year even with the added support of an ESE paraprofessional. Students were up and out of their seats, off task, talking over her or simply ignoring her. Often she was [missing text from exhibit] interventions or she would make comments such as "Please do your work. Stop bothering the other students. I asked you to sit down[,]" without follow through when students did not change their behavior. Mrs. Miller has struggled with the proper completion of IEP paperwork, manifestation processes and parent contact for the documentation needed on ESE paperwork. This is of great concern due to the legal implications that could result. Throughout the school year, Mrs. Miller was always cooperative and understanding of our concerns regarding her ineffectiveness as a classroom teacher, continued errors on ESE students' paperwork, and ESE processes. She was receptive to our suggestions and assistance. However, in May of 2016, when I notified her I was going to refer her to the Intensive Assistance Program, she became upset and stated I had no idea what pressure was put on her. For the sake of our students and their learning, I respectfully request immediate intervention with Mrs. Miller. She needs additional help learning the pedagogical processes of effective teaching. Pleading with middle school age students is highly ineffective. Students need an orderly, safe environment, where skills and concepts are scaffold, differentiated, and rigorous. Proper completion of ESE paperwork is imperative as it relates to individual students['] IEPs. I would like to discuss my concerns further with you and answer any questions you may have pertaining to this request. On August 2, 2016, the superintendent informed Respondent by letter that he was accepting Ms. Maniscalco's recommendation that she be placed in a Plan of Assistance. He added that an IAP team would be formed immediately, and her union representative was invited to accompany her to the meetings. Sch. Bd. Ex. 1. The IAP Process Used by Cypress Lake A Cypress Lake IAP team was established consisting of the principal, the TALC representative, the district administrator, the assistant principal, and the chief human resources officer, Dr. Pruitt. An initial meeting was held on September 12, 2016. At that meeting, the team reviewed Respondent's areas of concern, identified areas requiring improvement, and reviewed the IAP outline. The deficient areas identified by the team included preparation of IEPs, classroom teaching methods, and student engagement. The team was "extremely specific" and "very, very detailed" in identifying the specific areas that would be addressed. The team agreed that each member would formally observe Respondent two times during the IAP process. No written minutes of the orientation meeting were prepared, as Ms. Maniscalco did not know at that time that written minutes were required. Respondent contends that without written minutes, there is no way to prove that she was told which performance areas would be reviewed during the IAP process, or even if the team members understood the areas of concern. On this issue, the undersigned has accepted the testimony of Ms. Maniscalco and Dr. Pruitt that these areas were discussed in detail at the orientation meeting. In fact, Ms. Maniscalco testified that she could "guarantee 100 percent that we talked about IEPs and classroom management, and I would swear to that." Additional team meetings were conducted on September 26, October 17, October 31, November 14, and December 12, 2016, and March 30, 2017. Respondent and her representative attended all meetings. At no time during the process did Respondent or her representative object to the process, file a grievance with respect to a misapplication of the process, or complain that she was not getting enough support. The team provided Respondent with the opportunity to observe other teachers, shared best practices, recommended behavioral management techniques, gave advice on student engagement strategies, and offered advice on managing and completing IEPs. At each meeting, the team reviewed Respondent's strengths, opportunities for growth, and suggestions for improvement. The results of each member's observations also were discussed. Although Respondent testified that during the process she encountered a number of problems which prevented her from adequately resolving her performance issues, she never raised that subject with any team member. In fact, only once during the entire IAP process did Respondent ask for assistance (through a colleague, and not the principal), and after doing so, she was assigned a paraprofessional. After the final team meeting on March 30, 2017, on April 17, 2017, Dr. Pruitt informed Respondent by certified mail that the IAP team "had determined that her performance was not at an acceptable level." Sch. Bd. Ex. 8. The letter noted that the areas requiring improvement were planning; human development and learning; learning environments; critical thinking; student achievement and continuous improvement; and state, school, and district requirements. Dr. Pruitt believed that a new location and a new administration could raise Respondent's level of proficiency. Therefore, she recommended that Respondent "be placed at another work location for the 2017/2018 school year and continue to receive assistance." Id. This course of action is authorized by the IAP Manual, which allows "continued assistance" for an employee when deficiencies are not remediated during the IAP process. Otherwise, given her lack of progress, Respondent's termination would be the only logical outcome. The letter added that the second IAP process would begin approximately three weeks after the beginning of the new school year. The recommendation was accepted by the superintendent. Royal Palm On July 13, 2017, Respondent was notified by certified mail that she was being reassigned to Royal Palm, a much smaller school than Cypress Lake. Sch. Bd. Ex. 9. Unlike Cypress Lake, which had a mix of mainstream students and ESE students, Royal Palm's enrollment was 100 percent exceptional students, none of whom could function in a "gen ed setting." However, Dr. Pruitt believed that Respondent would be a good match for the school because it had no more than eight students in a classroom, and she had an ESE background. Dr. Pruitt testified that it was the "easiest teaching assignment [she] could find to help [Respondent] be successful." Respondent was told that a new period of performance probation would commence after the beginning of the school year 2017-2018. When Respondent reported to duty in August 2017, the principal, Mr. Moretti, welcomed her and told her, "You'll have a ton of support here," which turned out to be true. He especially was glad to have her on the faculty because he had no reading teachers with ESE certification. i. The Royal Palm IAP Process On October 2, 2017, Dr. Pruitt assembled a new Royal Palm IAP team comprised of the facilitator, Ms. Freeman; principal, Mr. Moretti; assistant principal, Ms. Wilson; and district administrator, Ms. Taylor. None had ever been involved in the IAP process. Mr. Moretti acknowledged that he did not familiarize himself with the IAP process and instead relied on Dr. Pruitt (a non-member) and Ms. Freeman, the facilitator, to provide advice on how the process would work. Respondent and her union representative, Dr. Fazzone, also attended the meetings, which were overseen by Ms. Freeman. An initial team meeting was conducted the same day. Dr. Pruitt, who attended the first meeting only, told the team that the focus areas for improvement consisted of completing IEPs, progress reports, and interims; classroom management issues; and active engagement of students. Sch. Bd. Ex. 28. The areas of concern were the same as those identified in her April 19, 2017, letter and tracked the performance areas that were addressed unsuccessfully at Cypress Lake. During the meeting, the team was introduced to the IAP process and given a binder with the IAP outline. Dates for formal observations were also set, including one the following day by Ms. Taylor, the district administrator. Notably, Ms. Taylor pointed out that the team knew that this was Respondent's second time in the process, and they "wanted to provide all the resources that we could for her, ensuring that she had the tools that she needed to, also looking at how she was utilizing the information, based on the daily teaching in her classroom, and how that was going to be best used outside of administrative assistance, through the IAP process." After the orientation meeting, Mr. Moretti decided to include Ms. Allbritten, the instructional coach for the school district, in the IAP process. He chose her because she would be performing formal observations on Respondent in lesson development, and she could give Respondent first-hand feedback. Respondent contends the inclusion of Ms. Allbritten at team meetings "contaminat[ed] the clearly defined process" and violated the "confidential nature of the process." This contention is rejected. Additional IAP team meetings were conducted on October 30, November 20, and December 5, 2017, and January 22, February 5, February 26, and April 9, 2018. During the first few months of the process, the team noticed "a great deal of improvement" on the part of Respondent. Mr. Moretti was "very pleased" with her progress. By that time, the team had helped her prepare lesson plans, restructured the physical classroom, reviewed IEPs, allowed her to visit other classrooms, and assisted her in revising her teaching strategies for different students. When asked at the December 5, 2017, meeting if her caseload was manageable, Respondent answered "yes." Despite the early improvement, a formal observation by Ms. Taylor on January 22, 2018, showed otherwise. Only one student was in the classroom on time and two more came in late. Their behavior was "terrible," and one student was not engaged the entire period. During the process, Ms. Taylor attempted to provide Respondent with additional training on the Language Live Academic Plan (Language Live), a reader intervention program for struggling students. The program was utilized as the primary teaching tool in Respondent's classroom. Although the program was used at other schools in the district, this was the first year that it was used at Royal Palm. In an effort to improve Respondent's use of the tool, Ms. Taylor arranged for her to visit Gulf Middle School to observe the program being utilized by another teacher. Ms. Taylor reported that Respondent was not engaged and appeared to be disinterested in learning how to utilize the program. Also, even though Language Live was Respondent's primary teaching tool, the team learned that Respondent was not even logging into the program and had gone a significant time period without utilizing and/or accessing it as an instructional tool. Sch. Bd. Ex. 14. At the team meeting on February 5, 2018, it was noted that Respondent's students were well below the district expectations of three activities and 100 minutes per week online; the most time spent online by any student was 78 minutes by one and the student was a self-motivated gifted student; there were numerous students who had not logged into the program; and Respondent did not log into the program for the week of January 29 through February 2, 2018. Sch. Bd. Ex. 14. According to Ms. Allbritten, who provided Respondent with extensive assistance and training, Respondent's failure to utilize the Language Live program had a detrimental effect on the students at Royal Palm who were transitioning back into general education classes. She added that Respondent was not always receptive to her assistance and training. The reading coach, Ms. Meltzer, was asked to attend the February 5, 2018, meeting so she could present the results of the Language Live data for the team to examine. The data showed "very little to no progress for the majority of the kids" in Respondent's classes. The undersigned has rejected Respondent's contention that the inclusion of Ms. Meltzer for the meeting tainted the process. For a teacher to actively engage the students, lesson plans are required. This is a basic requirement for a teacher. At the February 5, 2018, meeting, the team learned that no lesson plans had been turned in by Respondent since November 13, 2017. In fact, she had prepared only four out of 16 to 18 that were due. In response, Respondent contended that all were prepared, but she needed to "adjust" them. However, later on, she turned in one lesson plan, with multiple dates on that plan, which was intended to satisfy the requirement for the next six or seven weeks. During the February 26, 2018, meeting, the team noted that the following interventions on behalf of Respondent had been performed: (a) she visited Gulf Middle School to observe a reading class using the Language Live program; (b) steps were taken to ensure Respondent's classroom had all necessary materials; (c) Respondent's lesson plans and template were designed; (d) she was provided with the Language Live Academic Plan and all necessary material; (e) she was given assistance in preparing IEPs and attending IEP meetings; (f) a team member sat with her during the first IEP meeting so she would be familiar with the process; (g) a Language Live training session was established every other week for Royal Palm reading teachers; and (h) data was examined to ascertain student success and areas of improvement. Sch. Bd. Ex. 14. At the meeting on February 26, 2018, Respondent was directed to have all lesson plans for the last half of November, December, January, February, and March prepared and submitted before the next meeting. Also, it was noted that Respondent's IEPs were not always prepared for parent meetings, and this placed the school's receipt of federal funds in jeopardy. During the meeting, Dr. Fazzone, Respondent's union representative, questioned why the reading coach was in the room. He was told that Ms. Meltzer is Respondent's immediate supervisor and an instructional coach in reading, and she could provide feedback regarding how effective Respondent was in using the Language Live program to teach reading. This was one of the very few criticisms made by Respondent during the entire process. Dr. Fazzone testified that he did not know he could grieve a part of the process, or otherwise object, but never inquired if he had such a right. A final team meeting was conducted on April 9, 2018. Principal Moretti was unable to physically attend due to medical issues, but he spoke with Ms. Freeman regarding the team's concerns. Also, he discussed Respondent's progress in numerous conversations with team members throughout the school year. The team reviewed the minutes of the prior meeting and the performance deficiencies that were to be corrected. Although Respondent had made progress in some areas during the early part of the process, the members noted that her lesson plans were still incomplete, a "behavior" plan was inadequate, and based on a number of formal observations, there was a "lack of instruction" in her classroom. Respondent was told that the intervention program would be ended. Mr. Moretti testified that even though it would "make [his] life a whole lot easier" if he could keep a certified ESE reading teacher, it was in the school's best interest to find another teacher. At the end of the meeting, when asked if she had been given support during the preceding months, Respondent answered, "Absolutely," and said the school had a "wonderful support system." The team consensus was that Respondent had not corrected her deficiencies. However, the final recommendation was made by Dr. Pruitt. On May 1, 2018, Dr. Pruitt informed Respondent by certified mail that the team had recommended that her contract not be renewed at the close of the school year. Resp. Ex. 4. On May 7, 2018, Dr. Pruitt sent a second letter, correcting the first letter, in which she advised Respondent that her performance was not at an acceptable standard and that she (Dr. Pruitt) would be recommending that the superintendent terminate her employment. Sch. Bd. Ex. 12. Respondent contends that the IAP Manual was violated because Dr. Pruitt made her recommendation without input from the team. But the team discussed the results of the process amongst themselves and with Mr. Moretti, who then conveyed his thoughts to Dr. Pruitt. Dr. Pruitt's recommendation was accepted by the superintendent. On May 29, 2018, a Petition for Termination informed Respondent that the matter of her termination would be taken up by the School Board on June 26, 2018. As grounds for termination, the Petition for Termination alleged that Respondent was incompetent within the meaning of section 1012.33, as further defined by Florida Administrative Code Rule 6A-5.056(3), and she failed to adequately perform her educational duties. Respondent has been suspended without pay since that date. Other Procedural Objections Raised by Respondent Beside the procedural issues addressed in the prior findings, Respondent contends that the School Board's failure to strictly follow the statute and IAP process resulted in "multiple errors" that render the process void. Notably, during the process itself, neither Respondent nor her union representative filed a grievance or otherwise contended that the teams had violated, misapplied, or misinterpreted any provision. And they have not complained that either school failed to provide adequate assistance to Respondent to correct the deficiencies. Respondent points out that even though the Manual (but not the statute) provides that team meetings be held "biweekly," and the process be completed within 90 days, the Cypress Lake process began in September 2016 and ended in March 2017, while the Royal Palm process stretched out from October 2017 until April 2018. Also, meetings were staggered and not conducted on a biweekly basis. Ms. Pruitt responded that the requirement for biweekly meetings and a 90-day probation period is only a guide, and the primary goal of the process is to assist the employee, rather than meet hard and fast deadlines. She testified that many factors cause these requirements to be adjusted. For example, Respondent had "attendance issues" and was not available at all times, a disciplinary issue required that she be reassigned to a different department for several weeks, there are intervening school holidays and statewide testing, team members may be absent or tied up with other school duties, and there are days when formal observations cannot be conducted. The overall goal is to help the teacher, rather than forcing a meeting every two weeks and ending the process based on an arbitrary deadline, regardless of other circumstances. For the same reasons, a final evaluation cannot always be made within 14 days after the final meeting. In the same vein, Respondent contends that the lengthy process, especially by the spring of 2018, wore her down to the point she gave up. But here the whole purpose of allowing the process to continue as it did was to give Respondent more assistance and time to show progress. Respondent contends that no evidence was presented regarding the performance of the students during the IAP process, as required by section 1012.34(3). At the meeting on February 5, 2018, however, Language Live data reviewed by the team showed that Respondent's students were well below the district expectations of three activities and 100 minutes per week online. Formal observations reflected also that "numerous" students did not log into Language Live, which tracks data to measure a student's progress. Ms. Allbritten testified that Respondent's failure to use the program had a "detrimental effect" on her students who were transitioning back into general education classes. Finally, at the last Royal Palm meeting, it was noted that the students simply were not receiving "instruction." Respondent contends she was never fully informed at the outset regarding which performance areas would be reviewed, and they changed throughout the Royal Palm IAP process leaving her to chase a moving target. The only mention of this concern was at the February 26, 2018, meeting, when her union representative, Dr. Fazzone, asked what the goals of the team were, the initial reason for the IAP, and the plan of action that was given to the team at the beginning of the process. In response to those questions, Ms. Freeman reviewed again the process and the expectations with the team and reaffirmed that these were exactly what the team was doing. At no other time during the year did Respondent or her representative raise the issue. The accepted testimony of School Board witnesses confirms that Respondent was apprised of performance issues at every step in the process. Admittedly, there were minor deviations from the Manual. However, the two teams substantially conformed to the process. To the extent there were deviations, they did not affect the overriding goal of making Respondent a better teacher and correcting the performance deficiencies noted by the evaluators. While Respondent suggests otherwise, the overwhelming evidence shows that both schools devoted extensive manpower and resources in an effort to make her successful.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order terminating Respondent's employment as a teacher. DONE AND ENTERED this 22nd day of March, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 22nd day of March, 2019. COPIES FURNISHED: Brian Anthony Williams, Esquire The School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Robert J. Coleman, Esquire Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 (eServed) Gregory Adkins, Superintendent Lee County School Board 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Respondent's alleged immorality and misconduct in office on March 29, April 5, 6, 8 & 13, 1976, under Section 231.36(6), Florida Statutes, as set forth in letter to Respondent from James E. Maurer, dated June 18, 1976.
Findings Of Fact During the academic year 1975-1976, Respondent was a classroom instructor in science at the Coconut Creek High School, Broward County, Florida. In the fall of 1975, Marcia Vulpis, a 14 year-old student at the school, was assigned to his class. He noticed during the ensuing months that she stared at him frequently which made him somewhat uncomfortable. About December, he spoke to Pamela Quianthy, Attendance Clerk at the school, about Marcia's behavior. Quianthy, who had observed Marcia on several occasions because of her presence in the office as a student aide, agreed that she was a rather strange girl and that she, Quianthy, also felt uncomfortable in her presence. In March, 1976, Marcia came into another class that Respondent was teaching and somewhat hysterically told him that she needed to see him right away. Respondent sensed the urgency in her request and was pleased that she had sought him out since she had seemed somewhat hostile during prior months. They thereafter had a long discussion at his office during which she informed him that a young man who lived next door to her had raped her and that she was bleeding inside. At this time, she also expressed past and present suicidal ideations and thoughts of murdering certain persons. She said that she had not told her mother or the police about the rape and did not wish to do so. He urged her to see a physician about her condition and determined that she was willing to have her 21 year-old aunt take her for such purpose. Respondent asked Quianthy to talk to her concerning the matter and she did so. During this conversation, Marcia told her that she had been raped and had not told anyone about it. Quianthy recommended that she inform her parents and also advised her to see a doctor. The next day the aunt came to the school to take Marcia to a doctor and Respondent sent them to the school dean for necessary permission to leave the grounds. (Testimony of Respondent, Quianthy) During the third week of March, 1976, Marcia, who sat at a desk directly in front of Respondent in his classroom, began writing notes to him during class in which she expressed love for him. On one occasion, after class, she told him that she wanted to go to bed with him. He reprimanded her for her statement. She pursued her request by subsequent notes and he penned some responses thereon advising her to come to his office to talk about it or to call him at home. He was concerned for her welfare and wished to help her. He did not refer her to the school counselor because she refused to talk to anyone else about her problems and he felt capable of providing necessary counseling because of his past experience as a Baptist minister and handling work experience programs in the school system. He made arrangements with Quianthy for her to phone him at his office during Marcia's visits in order that he would have an excuse to leave if necessary because he feared what the student might do on these occasions and wanted some means of leaving gracefully. The meetings in his office were held usually before afternoon classes commenced, and were at the request of Marcia. At one of these meetings, she told him that he was "driving her crazy" and attempted to kiss him. He pushed her away and cautioned her against such demonstrations. On another occasion, she remained after class and kissed him on the cheek, telling him that she loved him. He also admonished her at that time for her conduct. The above-mentioned incidents were the only times when there was physical contact between Respondent and the student. (Testimony of Respondent, Quianthy Petitioner's Exhibits 3-8) Respondent showed Marcia's notes to his wife and they discussed them a number of times. He also showed the notes to Quianthy and Regina Howard, a friend. Mrs. Howard had previously sought out Respohdent to assist her daughter with adolescence problems because she knew of his background as a minister and youth counselor. He discussed Marcia's situation with her and was serious about his concern for the girl. He requested that Howard get in touch with Marcia. She tried to do so several times, but was unable to contact her. (Testimony of Respondent, Ruth Barnett, Howard) During the school Easter vacation in April of 1976, Marcia called Respondent's home and his wife answered the telephone. Marcia asked to speak to "Ronnie" and during a subsequent conversation with Mrs. Barnett, learned that Respondent had shown her notes to his wife. Marcia was quite upset at learning this fact and said, "I'll show him." She also acknowledged to Mrs. Barnett that she had kissed the Respondent in his office and that she would assume the blame for that incident. Respondent attempted to speak with her at this time but she was too upset. The next day her aunt called him and said that Marcia had told her of certain sexual advances that had been made by Respondent. He informed her that this was not true and asked her to have Marcia call him. She did so and they agreed to meet at Fort Lauderdale Beach because she was staying with her father there. They subsequently met at a prearranged place where Respondent picked her up in his car and, after driving around a few minutes looking for a parking space, parked in a vacant motel parking lot. Respondent explained to her that he had retained her notes against her wishes and shown them to others because he did not feel confident to counsel her concerning female problems. There was no physical contact during this meeting. (Testimony of Respondent, Mrs. Barnett) After Easter vacation was concluded, Marcia informed Respondent that her mother had found her diary and that he would have to be careful or she (Marcia) would "put a noose over his head." Her mother, after discovering the "diary" (consisting of several sheets of notebook paper) that contained matters concerning Respondent, took Marcia to their church, Jehovah's Witnesses, where she told the elders of the church about her association with Respondent. Her father, who was divorced from Marcia's mother, was present and heard Marcia relate her alleged experiences with Respondent. He thereafter reported the matter to the authorities at Coconut Creek High School, taking with him one or two pages of Marcia's diary which contained entries for the last week of March. These included references to several of her visits to Respondent's office during which he had purportedly kissed her and fondled her breasts. (Testimony of Respondent, John Vulpis, Petitioner's Exhibit 11) A school investigation ensued during which Marcia initially declined to cooperate, but eventually made a written statement in which she,stated generally that she trusted and respected Respondent, that he was a good man and she did not wish anything to happen to him. Respondent was questioned by school security personnel and he related the two incidents when Marcia had kissed him on one occasion and had attempted to do so on the other. He also told them about the incident at the beach which had not been known to the investigators at the time, and he turned over Marcia's notes to them. Later, Marcia made another written statement in which she said that she and the Respondent had kissed each other three different times in his office and that on at least two occasions, he had put his hands on her breasts inside her blouse and kissed her breasts. Her statement also related that they had kissed one another during the beach incident and that he had kissed her breasts and had put his hands down her pants and that she had touched his "privates." In this statement she also said that he had made certain suggestive statements to her during classes earlier in the school year and that, although she had informed him of a sex experience with a "guy I loved," she had not told him she was raped. (Testimony of Respondent, Stearns, Patterson, Petitioner's Exhibits 9 & 10) Marcia Vulpis testified at the hearing and her version of the relationship with Respondent and their meetings differs in material respects from that of Respondent which is set forth in the foregoing Findings of Fact. She testified that Respondent made several suggestive remarks to her during the school year. She admitted seeking him out to discuss the incident with the boy next door and that he had advised her to see a doctor. She stated that, although she had disliked Respondent at first, she later changed her views and began writing notes to him. She admitted asking him to go to bed with her, but testified that while discussing this request in his office on March 29, 1976, Respondent pulled her in the corner and kissed her. She also testified that during other visits to his office on April 5, 6 & 8, they kissed one another, and Respondent kissed her breasts and touched her on the vagina, and that she touched him on the penis through his trousers. She stated that similar acts occurred during their meeting on the beach in mid-April. After her mother discovered the diary and her father had reported the relationship with Respondent to school authorities, she asked the Respondent what they were going to do and he replied that they were in a lot of trouble. Although conceding that she was upset after discovering that Respondent had showed her notes to his wife and others, she said that she did not tell anyone she would seek revenge for his disclosure. She also conceded that she had taken LSD and "pills" from nine to eleven years of age and had had a few "trips". She testified that she attempted to kill herself when she was ten years old with a needle when she was "freaked out." She further stated that she had thought about suicide a lot of times and that the last time she harbored these thoughts was in early March and that they were prompted by her failure to get along with her mother. Although she had loved Respondent, she decided after the investigation that she loved him no more. (Testimony of Marcia Vulpis) School policy at Coconut Creek High School which is announced to all teachers at the beginning of each school year, is that an upset or disturbed child should be referred by an instructor to the school guidance staff, that included a full-time psychologist. This policy was also contained in a handbook issued to instructional personnel. (Testimony of Weatherred, Roesch, Larson) Respondent is 45 years old and posseses a bachelor of arts degree in theology and linguistics and a masters degree in elementary education. He additionally has completed approximately 90 hours of post-graduate study. He served as a Baptist minister for five years in Lowell, Massachusetts and three years in another pastorate in Newton, New Hampshire. His prior experience includes service as an elementary school principal at Turner Falls, Massachusetts. He entered the teaching profession because of family obligations that required greater remuneration than received in the ministry. He has four children. He entered the Broward County school system in 1970 working with low- achievers at the Pines Middle School in a work experience program for two years. He served one year at Plantation doing the same type of work and in 1974 was transferred to the Coconut Creek High School where he set up a work experience program. He has done extensive work in counseling young people with their problems both as a minister and teacher. Respondent admitted that he had had marital conflicts with his wife in the past and that he had lived alone in Florida for a period of time, but that their marriage relationship was good at the present time. (Testimony of Respondent, Respondent's Exhibits 2, 3) Although denied by Respondent on cross-examination, evidence was received that he had patted two female office employees of the Coconut Creek High School on their posteriors in a "friendly" manner while walking by them in the office, and that he had also ran his finger down the back of their dresses. (Testimony of Ivell, Herter) Respondent was suspended without pay by Petitioner on June 18, 1976 pending final action on the charges involving Marcia Vulpis. (Exhibit l)
Recommendation That the School Board of Broward County, Florida reinstate Ronald R. Barnett as an instructor and restore all back pay and other benefits that have been withheld during the period of his suspension. DONE and ENTERED this 13th day of August, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1976.
The Issue The issue is whether Petitioner may terminate Respondent's employment as an educational paraprofessional, based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Based upon the facts stipulated by the parties, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. The School Board is located at 2055 Central Avenue, Fort Myers, Florida 33901. The School Board's Florida Administrative Code identification code is 6GX-36. The School Board has the authority to terminate and/or suspend educational support personnel without pay and benefits pursuant to Subsections 1012.22(1)(f) and 1012.40(2)(c), Florida Statutes (2005).1 Respondent has been employed by the School Board since August 27, 1998, with the exception of a break in service during the period from February 24, 1999, through September 27, 2000. Currently, Respondent is employed as an educational paraprofessional at Alternative Learning Center ("ALC") High School. He was previously employed as a bus attendant. Respondent has always received satisfactory performance assessments and has never before been the subject of discipline by the School Board. Respondent's current home address is 3971 Wheaton Court, Fort Myers, Florida 33905. Respondent is an "educational support employee," as defined by Subsection 1012.40(1)(a), Florida Statutes, and is a member of the support personnel bargaining unit ("SPALC") that is covered by a collective bargaining agreement between SPALC and the School Board. The standard for discipline of support personnel is "just cause" pursuant to Article 7 of the SPALC Agreement. On or about August 12, 2005, David LaRosa, the principal of ALC High School, contacted Gregory Adkins, executive director of Human Resources and Employee Relations, to report two recent conversations regarding Respondent. Both conversations concerned alleged inappropriate interaction by Respondent with two female students. On the basis of the information reported to Mr. LaRosa, an investigation into the matter was conducted. During the course of the investigation, the District became aware that Respondent had fathered a child and that the child's mother was a senior at Cypress Lake High School at the time the child was conceived. The child was born on December 10, 2002. Respondent denied knowing that the mother was a student when they met at a Dr. Martin Luther King celebration in January 2002, or when they met again on February 14, 2002. The mother of the child turned 18 on February 14, 2002. Respondent was 23 years old at the time.2 On September 7, 2005, the School Board determined that probable cause existed to impose disciplinary action against Respondent for engaging in a sexual relationship with a student. Also, on September 7, 2005, a certified letter was sent to Respondent, advising him of the probable cause determination and that a recommendation would be made to the superintendent that Respondent be terminated. The School Board did not, during the time in question, have a policy or regulation specifically prohibiting a sexual relationship between an employee and a student. The School Board provided no notice to employees that a sexual relationship with a student could result in disciplinary action. No evidence was presented that Respondent's alleged misconduct had any adverse impact on the School Board or on Respondent's work performance. Respondent continued to work for the School Board for more than two and a half years after his child's birth without incident and with satisfactory performance evaluations. Respondent's child was born ten months after the mother's eighteenth birthday, meaning there is no evidence that Respondent engaged in sexual relations with the mother when she was a minor. No evidence was presented to contradict Respondent's claim that he was unaware that the woman was a high school student at the time they had sexual relations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lee County School Board, issue a final order dismissing the Petition, reinstating the employment of Respondent, and awarding him back pay and benefits. DONE AND ENTERED this 30th day of May, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2006.
The Issue The issue in this case is whether Petitioner should be granted an exemption from disqualification from employment with a private contractor providing adult day training to developmentally disabled clients of Respondent.
Findings Of Fact From April 2016 to October 2016, Petitioner Bertha Delaney ("Delaney") was employed by Cypress Place, Inc. ("Cypress"), a private, nonprofit corporation that provides services to developmentally disabled clients, and operates under the regulatory jurisdiction, of Respondent Agency for Persons with Disabilities ("APD"). Delaney was hired by Cypress as a receptionist, and her responsibilities included answering the phones, handling clerical tasks such as maintaining attendance sheets and filing, and assisting other employees as needed. Cypress operates an adult day training program, which offers "adult day training services" to APD clients. Such services include "training services that take place in a nonresidential setting, separate from the home or facility in which the client resides, and are intended to support the participation of clients in daily, meaningful, and valued routines of the community. Such training may be provided in work-like settings that do not meet the definition of supported employment." § 393.063(1), Fla. Stat. There is no persuasive evidence showing that, during her employment with Cypress, Delaney ever had face-to-face contact with a client while performing adult day training services. She was not, therefore, a "direct service provider" as that term is defined in section 393.063(13), Florida Statutes. Delaney did, however, have incidental, in-person interactions with clients, the evidence establishes, occasionally assisting clients in need of immediate help. Thus, although Delaney did not provide training services to clients, she provided some services in the broader sense of "helpful acts." In early August of 2016, an incident involving a client occurred at Cypress's facility, which the Department of Children and Families ("DCF") investigated. In the course of the investigation, the DCF investigator interviewed Delaney and learned that, because the subject client had appeared to be limping on the day in question, Delaney had helped the client walk from the bus to the building. At the time, Delaney had not yet undergone level 2 background screening because Cypress had not instructed her to do so. Rather, in or around April 2016, when she was hired, Cypress had required Delaney to go to the police department for a local criminal background check, which she did. Delaney, in fact, did everything that Cypress asked her to do with regard to background screening. Soon after (and perhaps because of) the DCF investigation, Cypress directed Delaney to submit to a level 2 background review, which she did.1/ And so it happened that in late August 2016, a search of Delaney's criminal history was performed, and the results were forwarded to DCF, which administers the background screening process for APD. By letter dated October 3, 2016, DCF notified Delaney that it had discovered her criminal conviction on a charge of grand theft of the third degree, to which she had pleaded no contest on June 13, 2001. This crime is a "disqualifying offense" under the applicable screening standards, which means that Delaney is ineligible to work as a direct service provider without an exemption from such disqualification. DCF advised Delaney that she needed to quit her job at Cypress and obtain an exemption from disqualification if she wanted to resume working there. Delaney promptly resigned her position with Cypress. Delaney then sought an exemption from disqualification from employment, submitting her Request for Exemption to DCF in November 2016. By letter dated March 17, 2017, APD informed Delaney that it intended to deny her request based solely on the ground that Delaney had "not submitted clear and convincing evidence of [her] rehabilitation." In other words, APD determined as a matter of ultimate fact that Delaney was not rehabilitated, which meant (as a matter of law) that the head of the agency had no discretion to grant an exemption.2/ APD did not, as an alternative basis for its proposed agency action, articulate any rationale for denying the exemption notwithstanding a showing of rehabilitation, assuming arguendo that such had been made. Delaney initiated the instant proceeding, hoping to prove her rehabilitation. The undersigned has considered the evidence as it relates to the statutory criteria for assessing rehabilitation, and makes the following findings of fact as a predicate for the ultimate determination. The Circumstances Surrounding the Criminal Incident. In or around September of 2000, Delaney stole cash receipts from her employer, Blockbuster Video, totaling approximately $13,800.00. She was soon arrested and charged with grand theft of the third degree, a felony offense as defined in section 812.014, Florida Statutes. At the time of the offense, Delaney, then 25 years old, was experiencing financial difficulties raising two young daughters. Although married, Delaney managed the household mostly on her own, as her husband, an interstate truck driver, was often on the road. Exercising what she now acknowledges was poor judgment, Delaney stole her employer's funds to ease her personal financial burden. On June 13, 2001, appearing before the Circuit Court in and for the Eleventh Judicial Circuit of Florida, Delaney entered a plea of nolo contendere to the criminal charge, was convicted by plea (adjudication withheld), and was sentenced to two years' probation with orders to make restitution in the amount of $13,778.00 to Blockbuster. Delaney completed her term of probation and complied with all of the other conditions imposed by the court, including the payment of restitution. The Time Period That Has Elapsed since the Incident. The disqualifying offense was committed about 17 years ago. Delaney thus has had ample time to restore her reputation and usefulness to society as a law abiding citizen following her conviction, and to mature into an older, more responsible adult. The Nature of the Harm Caused to the Victim. Delaney did not cause personal injury to any person in the commission of her crime. She was ordered to make restitution to the victim, and did, although the details of this transaction are not available in the record. Therefore, the economic harm caused by Delaney's theft appears to have been minimal. The History of the Applicant since the Incident. Since her conviction, Delaney has completed a training program to become a patient care technician and obtained a license to practice in Florida as a certified nursing assistant. She has held positions in these fields and performed admirably. Delaney lives with her two adult daughters, son-in-law, grandson, and fiancé; her current family situation is stable, both emotionally and financially. Her civil rights have been restored. She has not reoffended or otherwise run afoul of the law. APD severely faults Delaney for a so-called nondisclosure in her response to a question on the exemption request form concerning previous employment. The form asks the applicant to "provide your employment history for the last three years." Delaney answered, in relevant part, by stating: "I have not been employed for the last three (3) years." She followed this statement by describing employment predating "the last three (3) years" and explaining that an ankle injury in May 2013 (which required multiple surgeries to repair), together with the attendant convalescence and rehabilitation, had kept her out of the workforce for a couple of years. APD argues that Delaney lied about her employment history——it is undisputed that she had, in fact, worked (for Cypress) during the three years preceding her request for an exemption——and that this alleged "lie" proves Delaney had known not only that she was required to undergo level 2 background screening before taking the job with Cypress, but also that such screening would reveal her disqualifying criminal conviction, and that, therefore, to avoid detection, she had worked without being screened, in knowing violation of law. Put aside for the moment the issue of fact regarding whether Delaney "lied" about her employment history. APD's argument (that this "lie" is proof of Delaney's knowing violation of the background screening law) is illogical. For even if (as a matter of fact3/) Delany were required to be screened, and even if (as a matter of law4/) the background screening statutes were personally violable by an applicant or employee, Delaney's allegedly fraudulent answer to the employment history question does not rationally lead to the conclusion that she knew either of these premises to be true. Moreover, as discussed in endnote 1, it is unacceptable for an agency to rely upon an applicant's alleged violation of a regulatory statute as grounds to deny an exemption request where such alleged violation has never been proved in an enforcement proceeding. This is because any person charged with committing a disciplinable offense must be served with an administrative complaint and afforded clear notice of the right to a hearing, at which, if timely requested, the agency must prove the alleged wrongdoing by clear and convincing evidence. APD wants to skip all that and just have the undersigned find here, for the first time, that Delaney clearly violated section 393.0655 by working at Cypress for at least six months without being screened. See Resp.'s PRO at 9. That's not happening. The only relevant finding in this regard, which the undersigned makes, is that Delaney has never been found to have violated section 393.0655 by working at Cypress for at least six months without being screened. As for the alleged "lie," APD's position that Delaney's response to the employment history question was knowingly and intentionally false (by omitting reference to Cypress) does not make sense, because DCF already knew (from investigating an unrelated matter) that Delaney had worked for Cypress, and Delaney knew that DCF was aware of this fact when she filled out the form. That cat was out of the bag. At hearing, Delaney testified credibly and convincingly that she had not intended to mislead DCF. It is clear that she interpreted the question as asking about her employment during the three years before the job from which she had been disqualified (as opposed to the three years before completing the exemption request form). She misunderstood the question, to be sure, but it was an honest mistake, and the undersigned can appreciate how a person in Delaney's shoes could conclude that the job from which one has recently been disqualified does not "count" towards her employment history for purposes of seeking an exemption from disqualification. Delaney's testimony in this regard is corroborated by the fact that she submitted to DCF, as part of her exemption request package, two letters of recommendation from employees of Cypress, written on Cypress letterhead, attesting to her good character. These letters, taken together, make it clear that Delaney had recently been an employee of Cypress. Obviously, if Delaney had intended, knowingly, to deceive DCF by concealing her employment with Cypress, she would not have provided these letters. APD argues that one of these letters, from Rashard Williams, which is dated October 27, 2016, does not specifically indicate that Delaney ever worked at Cypress——and thus does not bolster Delaney's testimony that she never intended to conceal the fact that she had. To reach this conclusion one must discount the writer's statement that "Ms. Delaney has proven herself to be reliable, trustworthy, and compassionate both as a person and as an employee." If the Williams letter were the only written recommendation from a Cypress employee, however, the undersigned would consider APD's interpretation to be, while certainly not the best or most reasonable, at least plausible in view of Mr. Williams's additional comments about how well Delaney took care of his grandmother in a capacity, apparently, other than as an employee of Cypress. But the companion to the Williams letter, a recommendation from Mark Chmiel dated October 24, 2016, leaves no room for doubt that Delaney was a recent employee of Cypress. A short, two-sentence excerpt suffices to support this finding: "Bertha is an invaluable addition to our agency [i.e., Cypress,] and she has fulfilled the potential of her position far better than anyone before her. Her moral character is beyond reproach and I have no qualms about trusting her with our clients."5/ The letters of recommendation that Delaney furnished DCF refute the notion that she knowingly omitted Cypress from her employment history with the intent to mislead DCF. They prove, instead, that Delaney took for granted DCF's knowledge of her work for Cypress, for she was certain DCF already knew about it. In turn, that foundational assumption (which, in fact, was true) prompted Delaney to provide a history of her employment during the several years leading up to the job with Cypress. The undersigned finds that Delaney is not guilty of knowingly withholding material information from DCF in response to the question about her previous employment. Finally, the undersigned observes that APD, in its preliminary decision-making, impermissibly allowed speculation and conjecture to take the place of facts. In forming its intent to deny Delaney's application, APD took into account the "possibility that Ms. Delaney was trying to protect Cypress Place from demonstrating that they were in violation of the screening laws" as well as the "possibility that Rashard Williams might have tried to hide the fact [sic6/] that there was a violation of the screening requirements by Cypress Place." Resp.'s PRO at 10 (emphasis added). On the basis of this rank speculation, APD conjectured that "Ms. Delaney was willing to collude with [Cypress employees] in order not to spotlight their violation of the licensing law." Resp.'s PRO at 18. APD proved none of this imaginative guesswork. Circumstances Showing Applicant Poses No Danger. Yvonne Ginsberg, the executive director of Cypress, testified in support of Delaney's application. Ms. Ginsberg stated that Delaney was an "excellent" employee and affirmed that she had "no qualms" about Delaney's returning to work at Cypress once an exemption has been secured. The undersigned credits Ms. Ginsberg's testimony as to Delaney's character. In addition, Delaney submitted the written character references of Messrs. Chmiel and Williams, which were discussed above. These documents credibly attest to Delaney's trustworthiness, integrity, and ethical behavior. The undersigned finds without hesitation that Delaney would likely not present a danger in the future if an exemption from disqualification were granted. Ultimate Factual Determination The undersigned has determined, based on clear and convincing evidence, including sufficient persuasive evidence of rehabilitation, that Delaney should not be disqualified from employment because she is, in fact, rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Bertha Delaney the exemption from disqualification for which she is, in fact, eligible. DONE AND ENTERED this 18th day of August, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 18th day of August, 2017.
The Issue The issue in this case is whether Respondent is guilty of absence without leave from her teaching duties, willful neglect of duties, and misconduct in office, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a teacher certified by the State of Florida to teach French and German. Her teaching certificate is endorsed with Gifted education. Gifted education is a special category within Exceptional Student Education (ESE) in which students with superior aptitudes receive academic enrichment. Respondent has taught for several years in the Highlands County School District. For the 1992-93 school year, she was on continuing contract. She was paid $33,630 annually at a rate of $24.50 hourly during the 1992-93 school year. On or about April 8, 1993, Petitioner terminated Respondent after determining that she had been absent without leave from her teaching duties and had willfully neglected her duty to teach a physical education class beginning at 3:45 pm daily. Prior to the 1992-93 school year, Respondent had been an itinerant teacher for several years. For the most part, she had traveled among various elementary and middle schools teaching in the gifted program. Now a gifted education teacher at an elementary school, Diane Lethbridge was, at all material times, the Program Staffing Specialist for Exceptional Student Development. At the end of the 1991-92 school year, Ms. Lethbridge informed Respondent that her current position as a gifted teacher would not be available for the following school year. Ms. Lethbridge offered Respondent two alternatives. She could exercise her seniority rights to displace another teacher at three elementary and middle schools or she could teach older students at Trout Lake. Trout Lake is a residential ESE facility operated by Tri-County Addictions, Inc. Consisting of 43 acres, the facility includes residential and school buildings, which are not within sight of each other. It takes about 10 minutes to walk between the residences and school building. Trout Lake serves an average of 18-24 students ranging in age from 13 to 18 years. The students have all been classified as Severely Emotionally Disturbed (SED) and often suffer from drug addiction. In general, the students present difficult management problems. Petitioner is contractually responsible for educating the Trout Lake students. Toward that end, Petitioner has routinely assigned one or two teachers to teach the students at the school building located on the Trout Lake campus. Immediate responsibility for the teachers rests with the principal at Avon Park High School, which is about five miles from Trout Lake. During the 1991-93 school years, the principal was Barbara Dean. Given the nature of the students, however, considerable responsibility for the success of Petitioner's involvement with the Trout Lake program rests with Petitioner's District ESE staff. After Respondent agreed to take the Trout Lake position, and shortly before the end of the 1991-92 school year, Ms. Dean contacted Respondent and told her that she would need to teach summer school at Trout Lake. Respondent reported to the facility and team-taught a vocational course with another teacher, Harold Graves, who is the respondent in DOAH Case No. 93-2867. During the same summer, Respondent commenced coursework to become certified in SED. Respondent's schedule at the beginning of the 1992-93 school year required her services from 8:15 am to 3:45 pm. Her duties on Monday, Tuesday, Thursday, and Friday were different from those on Wednesday. Each weekday morning, the students began the day around 7:15 or 7:30 am with about an hour of peer counselling. Respondent was not involved in this activity, which took place at the residence. On weekdays except Wednesdays, the students were divided into two groups. One group went to school in the morning while the other group remained at the residence for counselling from the counsellors employed by Trout Lake. In the afternoon, the group that had gone to school went to the residence for counselling, and the group that had remained at the residence went to school. The students who went to school in the morning typically left the residence for school at about 8:30 am. At about 11:30, after four periods of about 45 minutes each of social studies, science and health, mathematics, and English, the morning students rejoined the others at the residence for lunch. At around 12:30 pm, the afternoon students arrived at the school building and attended the same four courses until about 3:30 pm. The Wednesday schedule was different. The Trout Lake counsellors needed one weekday during which they could counsel all of the students together. Thus, on Wednesdays, all of the students went to school in the morning and were taught in classes twice as large as normal. From 11:00 am to about 11:30 am, the counsellors met with various groups. Then, lunch took place at the residence from about 11:30 am to about 12:30 pm. Beginning at about 12:30 pm, the counsellors conducted a staff meeting at which they discussed the students and any problems that they were facing. Respondent typically attended the lunch at the residence each weekday, but she did not attend the Wednesday afternoon staff meeting. Instead, she had the remainder of the afternoon on Wednesdays to plan. This was the only time that she had available all week for planning. Sometime in late September, 1992, the Bartow Adolescent Facility closed. As a result, Trout Lake received another 10 students for whom it had not planned. During the first week of October, 1992, Petitioner conducted its district-wide Full Time Equivalency (FTE) count of students. The FTE count has two effects. If a district is not yet at its funding cap in a certain program, a greater FTE count than projected the preceding year may result in the receipt of increased revenues from the State Department of Education. Petitioner was at or near the cap at the time. The second effect is that an increased FTE count results in increased funding for the following year. The FTE count of non- Gifted ESE students, such as the SED students at Trout Lake, is particularly important because the allocated revenues are higher for non-Gifted ESE students than for non-ESE students. Sometime during the first week of October, Ms. Dean, Ms. Lethbridge, and Ms. Furnville, who was the director of Trout Lake, met and discussed the FTE count. They discovered that at least some of the students at Trout Lake were receiving only 1250 minutes weekly of SED classes, rather than the 1500 minutes that they thought that the students had been receiving. Ms. Dean approached Respondent about teaching a class from 3:45 pm to 4:45 pm, for which Respondent would be paid additional money. At the time, Ms. Dean thought that the additional class would be fine arts and so informed Respondent, who agreed to teach the class. Ms. Dean later discovered a problem preventing the offering of a fine arts class and informed Respondent that she would be teaching physical education during the same time period. Respondent is more artistically, than athletically, inclined and skilled. Respondent freely admitted her concerns about teaching physical education to Ms. Dean when Ms. Dean informed Respondent of the change in subject matter. Ms. Dean assured Respondent that she would not have to teach anything. Ms. Dean said that Respondent would merely supervise the activities of Trout Lake counsellors as they continued to conduct what had been a recreation period during the same time period. Ms. Dean told Respondent that she would not be required to have lesson plans for the class, but would only have to watch while the students played games. Respondent agreed to supervise the class for which her duties were essentially taking attendance and assigning grades. The 3:45 pm physical education class was in no way adapted to the special needs of the SED students, nor was Respondent in any way qualified to adapt the course. In fact, Respondent was capable only of taking attendance; she could not reasonably have been expected to assign grades to the students under the circumstances. These obvious shortcomings in the course and teacher were well known by Ms. Dean, Ms. Lethbridge, Ms. Furnville, Trout Lake employees, Petitioner's District ESE employees, and probably Trout Lake students. Prior to the creation of the 3:45 pm class, Trout Lake had provided a recreation period at 3:45 pm, during which Trout Lake residents could play softball or other sports while being supervised by counsellors. Petitioner merely overlaid the 3:45 pm class upon the recreational activities already taking place at 3:45 pm. The decision to create the 3:45 pm course was driven exclusively by financial, not educational, reasons. The 3:45 pm physical education class was not started until October 20, 1992. Despite this fact, IEP's for the students assigned to the new physical education class indicated that the class had begun October 6, which was when the FTE count took place. Respondent signed these forms at the direction of Ms. Lethbridge, who had prepared them. On October 30, 1992, grades were due for the first grading period. Because she had only seen the 3:45 pm physical education class for about two weeks, Respondent did not turn in any grades to Avon Park High School for the class. She was promptly contacted by an Avon Park High School guidance counsellor, who informed her that she had to give the students grades. So, she tried as best she could to grade them, largely on the basis of having seen them play around the campus at various times. Neither the grades for the first grading period nor any subsequent grades for the 3:45 pm class fairly measured the performance of ESE students in a physical education class. Regardless of Respondent's efforts, the class was by design not a physical education class, Respondent was ill-equipped to teach and grade a real ESE physical education class, and Respondent's participation by design had been reduced to taking attendance and assigning grades. Understandably, the Trout Lake students and staff treated the 3:45 pm class like it was simply the recreational period; from their perspective, nothing had changed. Presumably as had been the case before Petitioner's paperwork created the 3:45 pm physical education class, the students, who had returned to their residence after the end of their regular classes, did not always reappear for the 3:45 pm class. Sometimes, counsellors would require the students to stay and clean their rooms rather than attend the 3:45 pm physical education class. When attendance problems first arose, Respondent would go to the residence to find the students and a counsellor. The students were required to be escorted from the residence to the school building by a counsellor. On occasion, Respondent could not find a counsellor. Other times, not finding the students at the residence, Respondent would look for them on the courts or fields where they played, but sometimes could not find them there either. In January, 1993, Respondent learned from the shop teacher, who taught a 3:45 pm shop class, that Trout Lake had hired an art teacher to offer a 3:45 pm art class. Consequently, attendance at the 3:45 pm physical education further declined, as the students decided each day where they would go--shop, art, or physical education. One time, Respondent, who had gone to the residence looking for the students, waited 30 minutes while they debated where to go; they ultimately decided to go to art. These developments merely confirmed the obvious--the creation of the physical education class in October was a change of form, not substance. Shortly after the attendance problem first arose, Respondent told Ms. Lethbridge that students were not coming to the 3:45 pm class and counsellors were not cooperating. Ms. Lethbridge merely told Respondent to check attendance and asked her how she would grade them. Ms. Lethbridge did not mention the matter to other ESE staff or Ms. Dean. Evidently feeling that Ms. Lethbridge would take care of the matter, Respondent did not again raise it with Ms. Lethbridge or anyone else apart from Mr. Graves and one or more school aides, except for one time--described below-- with Ms. Dean. One time, Mr. Graves told Ms. Furnville of the attendance problems. The students began to show up for the 3:45 pm class for the next few days, but then quit attending after that. Respondent understandably felt isolated at Trout Lake. She received no orientation from Ms. Dean or any of the ESE staff when first assigned to Trout Lake. She had to learn the customs from a paraprofessional and Mr. Graves, who himself had been assigned there only one year earlier and worked as the only teacher his first year. In addition, neither Respondent nor Mr. Graves was able or expected to attend faculty meetings at Avon Park High School. Ms. Lethbridge visited the facility once every week to three weeks. However, she visited Ms. Dean only once monthly. Ms. Lethbridge's supervisor, Connie Tzovarras, visited the Trout Lake only one time between September, 1992, and March, 1993. The Avon Park High School Assistant Principal responsible for Respondent's evaluations, Paul Gentz, visited Trout Lake only once in the same period--for Respondent's evaluation. From September, 1992, through mid-March, 1993, Ms. Dean visited Trout Lake twice. One time, she came when computers had been stolen. On this occasion, Respondent alluded to feelings of guilt over taking money to teach the 3:45 pm physical education class that the students were routinely not attending. Ms. Dean ignored Respondent's remark. The second visit of Ms. Dean was when she evaluated Mr. Graves. Respondent submitted her gradebook to Ms. Dean, who did not discuss with Respondent the grades for the first grading period of ten days. Petitioner's policy is that the attendance problems at the 3:45 pm class should have been addressed by Ms. Dean. Respondent could reasonably have expected Ms. Lethbridge to share Respondent's concerns with Ms. Dean. However, based on Ms. Dean's failure to respond to Respondent's single comment, Respondent may reasonably have assumed that Ms. Dean was not especially interested in the attendance problems. The other likely source of assistance for Respondent was Petitioner's ESE office, which demonstrated no interest in the matter. Ultimately, Ms. Dean received a letter of reprimand for her supervision of the Trout Lake teachers. The record is silent as to any discipline administered to Petitioner's District ESE staff. Petitioner's witnesses testified that Respondent should have contacted Ms. Dean before leaving the Trout Lake school. In general, these witnesses attributed the authority for this practice to courtesy or professionalism. However, no such practice had existed when Respondent traveled from school to school as an itinerant gifted teacher. In fact, Respondent was at first unsure of how she should handle signing in and out. She initially signed out at lunch. After awhile, she signed in once at 8:15 am and signed out once at 4:45 pm. The completed sign-in and sign-out sheets, which were kept at the school building at Trout Lake, were periodically submitted to the bookkeeper at Avon Park High School, who, as it turns out, was either not reading the sheets or ignoring all discrepancies. In any event, no one at Avon Park objected to the single sign-in and sign-out, and Respondent reasonably assumed that her practice was acceptable. Respondent began occasionally to leave the school early and sign out at 3:45 pm after it became clear to her around the end of November, 1992, that the 3:45 pm physical education class existed only as a meaningless entry in the students' IEP and Petitioner's FTE count. By this time, the students assigned to the class were no longer reporting to one of the places at which they had played before the creation of the physical education class and where, subsequent to its creation, Respondent was to take attendance and grade the students' "work." Respondent signed out early about nine times, which were all in December, 1992, and January, 1993. Again, no one at Avon Park said anything, probably because, unknown to Respondent, no one noticed the timesheet. However, there was not enough variation in the amounts of her paychecks to credit Respondent's testimony that she assumed that Petitioner might not be paying her for those days when she signed out early. Eventually, without signing out early, Respondent left school before 4:45 pm when the physical education class was scheduled. But she never failed to appear and perform her minimal duties on any occasion that the assigned students reported to the class. Respondent testified that she sometimes left the school early on Wednesday afternoons, during her planning time, to perform school-related duties, such as gathering supplies or meeting with school personnel at other locations. Undoubtedly, these are appropriate activities for which Respondent may leave the campus. Given the customs of Trout Lake, Respondent's past experience as an itinerant teacher, and the failure of Ms. Dean or any ESE staff to instruct Respondent differently, there was no requirement that Respondent advise anyone at Avon Park High School or the ESE District office of such departures for school business or that she sign out when leaving the campus on school- related business. The absence of a requirement of notice to someone at Avon Park High School or at least signing out before leaving campus on school-related business is crucial to Petitioner's case. There is considerable evidence that Respondent was not at the Trout Lake school building on Wednesday afternoons, as well as other weekdays between 3:45 pm and 4:45 pm. But, with one exception, there is no evidence that Respondent was not pursuing school-related matters during such times. Given the remoteness of Trout Lake and its relative lack of on-site resources, Respondent necessarily had to leave the campus to carry out normal planning activities. If Respondent's departures from campus had been accompanied by a violation of some clearly defined policy, it would be reasonable to infer that Respondent was pursuing personal business. However, Petitioner has proved that one of Respondent's absences had nothing to do with school business. On March 17, 1993, which was a Wednesday, Ms. Dean found no cars in the school parking lot at Trout Lake sometime between 2:00 and 2:30 pm. In fact, Respondent had left Trout Lake at 11:00 am to go volunteer at the annual Sebring Road Race. She appeared at the racetrack at about 1:30 pm where she relieved another volunteer, who was an ESE staffperson with approved leave. Although Respondent had obtained personal leave for the second and third days of the race--March 18 and 19--she had not done so for March 17, probably because she knew that she did not have enough leave left for three days. By letter dated March 26, 1993, Petitioner advised Respondent that she was charged with misconduct in office, willful neglect of duties, violation of School Board Policy 2.31, and violation of Section 231.45, Florida Statutes. The letter also cites a violation of Section 231.44, Florida Statutes, for absence without leave. The testimony of Dr. John Martin, Petitioner's Deputy Superintendent, explained that the allegation of willful neglect of duties, which is omitted in the case against Mr. Graves, is due to Respondent's failure to teach the 3:45 pm physical education class. The remaining allegations, which are the same as those asserted against Mr. Graves, involve Respondent's absences without leave. The March 26 letter further informs Respondent that the Highlands County School Board, at its next meeting on April 8, 1993, would consider the recommendation of the Superintendent that Respondent's employment be immediately terminated. In the meantime, the letter states that Respondent was suspended with pay. On April 8, 1993, Petitioner terminated Respondent. By letter dated April 14, 1993, Petitioner advised Respondent that it had determined that she owed the School District $3272.09 for monies paid for which duties were not performed and $343.14 in excessive sick leave taken. Petitioner recovered these sums from Respondent by withholding them from her final paycheck. By letter dated May 19, 1993, Respondent requested a formal hearing on her termination.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Highlands County School Board enter a final order refunding to Respondent $3125.09 and reinstating Respondent, without back pay, to a continuing contract at her former rate of pay as of the first day of school after January 1, 1994. ENTERED on December 9, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 on December 9, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2866 Treatment Accorded Proposed Findings of Petitioner 1-20: adopted or adopted in substance. 21: rejected as unsupported by the appropriate weight of the evidence. 22-29: adopted or adopted in substance. 30: rejected as unsupported by the appropriate weight of the evidence. 31-33: rejected as irrelevant. 34: rejected as unsupported by the appropriate weight of the evidence. 35: rejected as irrelevant. 36-39: adopted or adopted in substance. 40-41: rejected as recitation of evidence. 42: rejected as irrelevant. 43: rejected as unsupported by the appropriate weight of the evidence and irrelevant in the absence of proof that Respondent was not off-campus pursuing school-related duties. 44: adopted. 45-52: rejected as subordinate and incomplete insofar as Respondent may have been performing school-related duties. 53-57: rejected as subordinate. 58: adopted to a limited extent. 59: rejected as irrelevant. 60-64: adopted or adopted in substance. Treatment Accorded Proposed Findings of Respondent 1-11: adopted or adopted in substance. 12-13: rejected as irrelevant. 14: adopted. 15, 18-19, and 22: adopted except for the occasions that Respondent was absent without leave. 16: adopted. 17: adopted as to oral instruction. Rejected as to the implication that no other sources of authority exist regarding absence without leave. 20: rejected as recitation of evidence and subordinate. 21: adopted. 23: rejected as recitation of evidence. 24: adopted. 25: adopted in substance. 26: adopted. 27: rejected as unsupported by the appropriate weight of the evidence. 28-31: adopted or adopted in substance. 32: adopted, although Respondent only indirectly alluded to the attendance problems with Ms. Dean when she mentioned that she felt guilty taking the money when she had no class to teach. 33: rejected as unsupported by the appropriate weight of the evidence. 34: rejected that Respondent invariably signed out as unsupported by the appropriate weight of the evidence. 35-36: adopted. COPIES FURNISHED: Gavin W. O'Brien Gavin W. O'Brien, P.A. 1806 Manatee Avenue West Bradenton, Florida 34205 Mark S. Herdman Kelly, McKee Post Office Box 75638 Tampa, Florida 33675-0638 Superintendent Richard Farmer Highlands County School District 426 School Street Sebring, Florida 33870-4048 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact From September 5, 1991, and at all times material to this case, Respondent Brenda Simmons was employed under an annual contract as a teacher's aide, a classified employee position, by the Lee County School Board. On January 29, 1993, the Cypress Lake High School women's basketball team played the Mariner High School team at the Cypress Lake gym. The Respondent was the coach of the Cypress Lake junior varsity team which played the Mariner team prior to the varsity team game. During the junior varsity game, the Respondent sat with the players while coaching them. During the varsity game, the Respondent sat with her sisters next to the Mariner cheerleaders and close to the playing area. The section within which the Respondent sat during the varsity game is an area where black students generally sit to watch the game. The Respondent is black. The Mariner cheerleaders who testified at the hearing are white. The Respondent and her sisters apparently were annoyed that the cheerleaders would occasionally block their sight lines during cheers. During the game, the Respondent made hand gestures ridiculing the cheerleaders movements. At one point during the game, the Respondent called one cheerleader a "fucking slut." She also called one particular cheerleader a "fat ass." The Mariner cheerleaders were disturbed by the Respondent's behavior and as the game was ending, notified their adviser of the situation. The adviser contacted her Cypress Lakes counterpart who identified the Respondent and informed the assistant principal of Cypress Lakes. In the lobby area of the gym, the Cypress Lakes assistant principal approached the Respondent and inquired as to the situation. The Respondent became loud and angry, at which point the assistant principal suggested that the discussion should be continued on the next school day. The Respondent stated that she did not "have to take this shit" and left the gym. The Respondent then went into the parking lot of the gym and confronted the Mariner cheerleaders as they were being escorted to their transportation. The Respondent threatened the cheerleaders, stating she would "kick your motherfucking asses." The assistant principal, notified of the parking lot incident, went to the scene in an attempt to calm the situation. The Respondent continued to threaten the Mariner cheerleaders and to respond to the assistant principal in an angry and hostile manner. The Superintendent of Schools directed that the matter be investigated. Subsequent to his inquiry, a meeting was conducted on February 5, 1993, at which time the Respondent was provided with an opportunity to respond to the allegations. The Respondent denied that she had acted inappropriately towards the Mariner cheerleaders or that she had been insubordinate to the assistant principal. The Respondent claims that the complaining witnesses in this case are unable to distinguish her from her sister and that her sister was the person who acted inappropriately. The evidence, which includes eyewitness identification from persons who worked with the Respondent on a daily basis fails to support her claim. Further, the Respondent's sister denied that she used such language as was alleged.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a Final Order terminating the employment of Brenda Simmons. DONE and RECOMMENDED this 23rd day of February, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1994 APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2940 The Respondent filed a written closing argument which included no proposed findings of fact. The following constitute rulings on proposed findings of facts submitted by the Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5-6. Rejected, not supported by the greater weight of credible and persuasive evidence. 10. Rejected, not supported by the greater weight of credible and persuasive evidence. 11-12. Rejected, subordinate. 14-19, 24, 31. Rejected, unnecessary. COPIES FURNISHED: Bobbie D'Alessandro, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Marianne Kantor, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 John M. Hament, Esquire Kunkel & Hament Suite 785, 1800 Second Street Sarasota, Florida 34236 Willie Green Willie J. Battle 1971 French Street Fort Myers, Florida 33916
The Issue The issue presented for decision in this case is whether Petitioner, the School Board of Lee County (the "School Board"), has just cause to dismiss Respondent, a teacher at Cypress Lake High School ("Cypress Lake"), for setting his car on fire on school property.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Since August 1995, Respondent has been employed as a high school classroom teacher by the Lee County School District, teaching Spanish at Cypress Lake. He worked for the school district continuously until April 20, 1999, when he was suspended with pay and benefits. Throughout his active employment with the school district, Respondent’s performance evaluations and assessments showed that he met or exceeded all performance criteria. Respondent has not been subjected to discipline prior to this case. William Geddes, the principal of Cypress Lake, hired Respondent and had known him for five years. He testified that Respondent was a very effective Spanish teacher. He testified that Respondent got along well with students and staff and greatly improved the school’s Spanish club. Jacki Gruhn is the assistant principal for administration at Cypress Lake. She has known Respondent professionally for five years and described him as a very good teacher, doing exciting things in the classroom. She said Respondent was popular with students and fellow teachers. Ms. Gruhn called Respondent "fair" and "upright." Donald Koedyker is the sites maintenance person at Cypress Lakes. He begins work at about 6 a.m., Monday through Friday. He testified that he uses a golf cart to get around the campus during the day. On April 19, 1999, Mr. Koedyker arrived at the Cypress Lake campus at around 5:45 a.m. He opened the storage shed and got his golf cart and a trash barrel. He testified that he picks up trash on the school grounds first thing in the morning. Mr. Koedyker stated that he was running late that morning because there was a flat tire on his golf cart. He either pumped the tire or took the other golf cart, then began his rounds. As Mr. Koedyker drove his golf cart past a building toward the parking lot, he saw a flicker of light. After he rounded the corner of the building, he could see Respondent’s car burning. The car was parked in a handicapped space near the front of the main school building. Mr. Koedyker estimated the distance to be about 30 feet from the car to the building entrance. Mr. Koedyker drove to the cafeteria and pounded on the door. Carol Cote, the lunchroom manager, answered the door. Mr. Koedyker told her to call 911, then he headed back to the burning car. Mr. Koedyker saw Respondent coming through a wrought iron gate from the courtyard to the back of the cafeteria parking lot. Respondent was walking in no apparent hurry. Mr. Koedyker did not notice whether Respondent was carrying anything. Mr. Koedyker yelled to Respondent that his car was on fire. Respondent climbed onto the golf cart and rode to the parking lot with Mr. Koedyker. Mr. Koedyker testified that Respondent told him that he couldn’t believe his car was burning. He described Respondent as being "in shock." They stopped the golf cart about 30 to 40 yards from the car. Mr. Koedyker testified that the fire appeared to be burning more intensely than when he first saw it. Shortly thereafter, a fire truck arrived and they watched the firemen attempt to put out the fire for about 25 minutes. Mr. Koedyker testified that the flames were intense enough that he could feel the heat from where he stopped the golf cart, some 30 or more yards away. Mr. Koedyker testified that he saw no damage to the main building at the time of the fire, but the next day he saw that the asphalt was singed where the car had been parked. Mr. Koedyker estimated that five or six teachers were at work at the time he discovered the fire, which he estimated to be at about 6:10 a.m. The custodian who opens the school building was also there. By the time the fire was put out, nearly all the staff and faculty were at school. Mr. Koedyker estimated that the fire department arrived at about 6:20 a.m., and that the fire was out by 7 a.m. Mr. Koedyker testified that he saw no students at the time of the fire, though some students regularly arrive early to run track. Mr. Koedyker testified that the school building is usually open by 6:05 a.m. He was not aware of any school policy prohibiting students from entering the school until a time certain. Mr. Koedyker testified that Respondent regularly arrives early at school. He described Respondent as one of about four "early bird" teachers. Mr. Koedyker stated that Respondent arrives about the same time as he does. Mr. Koedyker stated that Respondent was not parked in his usual spot that day. Respondent walks with a cane, and has a handicapped parking sticker, but usually does not park in the handicapped space. Respondent is one of two staff people at Cypress Lake with handicapped parking stickers. Mr. Koedyker recollected that Respondent stated he was told to park there on the morning of April 19, 1999. Construction was still going on in the main building. The actual construction was finished, but punch list items and cleanup were still under way. Mr. Koedyker testified that Respondent was aware of his morning routine, and that his routine made it likely that he might discover the person setting the car on fire. Mr. Geddes has been the principal of Cypress Lake for over a year and has worked at the school for 24 years. Mr. Geddes testified that the official work day for teachers runs from 7:00 a.m. until 2:30 p.m., and that they report to work from 6:30 to 6:45 a.m. He testified that he prefers to keep students out of the building until 7 a.m. On April 19, 1999, Mr. Geddes arrived on the campus at 6:23 a.m. He recalled the precise time because he checked his watch as he drove onto Panther Lane, the main road into the school. As he drove in, Mr. Geddes saw a fire truck pull out of Panther Lane. As he drove the 200 feet from the entrance to the front of the campus, Mr. Geddes saw several police and fire department cars, and yellow tape cordoning off the burned vehicle. He saw no flames coming from the car. Mr. Geddes’ testimony has the fire already out at about 6:25 a.m., roughly the same time Mr. Koedyker testified the fire truck first arrived. This variance in the testimony is noted, but has no real bearing on the relevant facts of the case. In any event, Mr. Geddes’ testimony on this point is credited due to his more precise recollection. Mr. Koedyker testified that he was estimating the times. Mr. Geddes spoke to a police officer, who told him that a student may have set the car on fire. Mr. Koedyker told Mr. Geddes that the car belonged to Respondent. Mr. Geddes commenced looking for Respondent. He called for Respondent over the school loudspeaker system. He waited ten to fifteen minutes, but received no response. Mr. Geddes then went back to the parking lot, but did not see Respondent there. He saw the that the police and fire department were still investigating the scene, and that they had pulled a one gallon container of liquid from the vehicle. Mr. Geddes stated that the officers told him they were going to bring in arson investigators, but there was nothing for him to do and he should simply go about the business of running the school. Mr. Geddes testified that the fire did not delay the start of school. Mr. Geddes testified that Respondent’s car was parked about 50 feet from the entrance of the main building, in the parking space closest to the school. Cypress Lake has a circular drive, with a student drop- off area near the school. School buses drop off students about 200-250 feet from the school entrance. The students exit the buses and walk up a covered walkway to the entrance. Mr. Geddes estimated that the burned car was parked about 200 feet from the bus drop-off point, but only 30 feet from the nearest point on the walkway. Mr. Geddes returned to his office at about 6:45 a.m. and again called for Respondent over the school loudspeaker system. At about 7:10 a.m., Respondent came to Mr. Geddes’ office. He told Mr. Geddes that he had not heard the call on the loudspeaker, but had been told that Mr. Geddes was looking for him. Mr. Geddes testified that he never found out what Respondent was doing during the period between the first loudspeaker call and his arrival at the office. Mr. Geddes testified that Respondent was a smoker, and that teachers are not supposed to smoke on the campus. Mr. Geddes conceded that Respondent may have been smoking a cigarette at the shed where the golf carts were stored, but stated that the loudspeaker can be heard at the shed because he had fielded complaints about it from the residents of the suburb behind that area. Respondent told Mr. Geddes that he left his car unlocked as he came into the school to copy some papers for a class, and that a student apparently "torched" his vehicle while he was in the building. Respondent said he could think of no one who would set his car on fire, and said nothing to implicate himself. Respondent told Mr. Geddes that he was unhurt, but "pretty shook up." Mr. Geddes told Respondent that he would see that Respondent’s classes were covered, and that Respondent should concentrate on taking care of this matter. Respondent left the office and went outside to work with the fire and police investigators. Mr. Geddes contacted the district office to inform them of the matter. At around 9:30 a.m., Mr. Geddes received a phone call from the Lee County Sheriff’s Office telling him that they were taking Respondent to the district substation for further investigation. Some time between 11:30 a.m. and noon, the Sheriff’s Office called Mr. Geddes to tell him they were arresting Respondent and charging him with arson. Respondent was to be transported to the Lee County Jail. Shortly thereafter, Respondent called Mr. Geddes and asked him to bring his briefcase, keys, and cellular phone down to the police station. Mr. Geddes told Respondent that he would bring the items to the jail after school, and asked Respondent if his wife knew what had happened. Respondent said she didn’t, and accepted Mr. Geddes’ offer to call her. Mr. Geddes called Respondent’s wife, informed her of the events of that morning, and told her that he was going to try to see Respondent at 3:00 p.m. Respondent’s wife said she would try to meet Mr. Geddes at the jail. Mr. Geddes tried to deliver the briefcase to Respondent, but the police would not allow him to see Respondent because Respondent had not yet been arraigned. The police told Mr. Geddes that only Respondent’s lawyer could speak with Respondent prior to arraignment. Mr. Geddes testified that he waited for Respondent’s wife at the police station until about 4:15 p.m., but she never appeared. Mr. Geddes testified that Respondent told him during their telephone conversation that he was sorry for what he had done. Respondent sounded as if he was choking back tears. Mr. Geddes testified that he did not take this statement as an admission that Respondent had set the fire. Mr. Geddes testified that in the immediate aftermath of the fire, teachers on the Cypress Lake campus were concerned about students setting fires. The Lee County Sheriff’s Office told Mr. Geddes that Respondent had admitted setting the fire. The officers also told him they had found burns on Respondent’s body. Mr. Geddes attended the predetermination hearing concerning Respondent’s employment status. Also present were Gail Williams, a secretary; and Respondent and his counsel. Respondent’s counsel advised Respondent to make no statements pending resolution of the criminal charges. After the meeting, Mr. Geddes recommended that Respondent not return to Cypress Lake, believing that it was in no one’s best interests to have him on the campus. Mr. Geddes testified that there was shock on the campus when it was learned that Respondent had been charged with arson, but also relief that the perpetrator apparently was not a student. Mr. Geddes testified that the incident undermined Respondent’s effectiveness on campus. Mr. Geddes testified that the area where Respondent’s car was parked on April 19 was generally more visible than the area where Respondent usually parked. He testified that there were less obvious places on campus to set a car on fire. Daniel Leffin is a battalion chief with the Iona MacGregor Fire District and an officer with the Lee County Sheriff’s Office. On the morning of April 19, 1999, Mr. Leffin was on duty at the fire department. His unit was dispatched to Cypress Lake shortly after 6:00 a.m. Mr. Leffin testified that, as shift commander, he separately drove a car to the scene, arriving two minutes after the call. The fire truck followed immediately behind him. Mr. Leffin estimated they arrived at the school at about 6:15 a.m. He testified that five to seven people, including Respondent, were in the parking lot as they arrived. Respondent was sitting on Mr. Koedyker’s golf cart. The firemen found a Toyota 4Runner "fairly well involved" in a passenger compartment fire. The fire had broken out the windows, and flames were shooting about two feet over the top of the car. Mr. Leffin testified that the car could have blown up, but that explosions are not something the firemen ordinarily worry about. Explosions are very rare, usually caused by ruptures in the gas tank. Mr. Leffin stated that he has seen only two car explosions in 19 years of work, and both of those involved crashes. Mr. Leffin testified that the fire was hard to extinguish. He stated that water is usually sufficient for car fires, but in this case foam had to be used. Foam is usually used on fuel fires. Mr. Leffin stated that it took about five to ten minutes to put out the fire. After the fire was extinguished, Mr. Leffin surveyed the car in an effort to discover how the fire started. He found fuel containers under the floor boards of the passenger seat and the rear left seat. At that point, he did not remove the containers. Mr. Leffin testified that it was apparent that the fire had been started intentionally, and he called in the police and the State Fire Marshall. The scene was cordoned off with yellow tape for a radius of 20 feet. Mr. Leffin estimated that the vehicle was parked about 30 feet from the walkway, and was about 50-75 feet away from the main building. While waiting for the police to arrive, Mr. Leffin spoke to Respondent, who told him he didn’t know what happened. Respondent told Mr. Leffin that he had gone into the building to make copies, and was told by Mr. Koedyker that his car was on fire. Mr. Leffin asked Respondent whether anybody was "mad" at him. Respondent said he could not think of anyone. Mr. Leffin testified that the conversation was limited after this point, because he had begun to suspect that Respondent set the fire. Also arousing Mr. Leffin’s suspicions was the fact that, when Respondent went to view the burned vehicle, he walked straight to the left back window and looked in where one of the fuel containers had been. Mr. Leffin had mentioned the fuel containers to Respondent, but had not told him their location in the car. Mr. Leffin waited for Philip Roman of the State Fire Marshall’s office to arrive before questioning Respondent any further. In Mr. Roman’s presence, Mr. Leffin removed one of the fuel containers from the car and set it aside. The odor and color of the liquid in the container indicated it was "some sort of accelerant." Philip Roman was the arresting officer, though Mr. Leffin sat in on the interview at the district substation. During the interview, Mr. Roman noted singed hair on Respondent’s right upper hand and palm. He also noted what appeared to be heat blisters on Respondent’s pant legs. Mr. Leffin testified that Respondent appeared "indifferent" at the outset of the interview, sitting and listening without any outward display of emotion. Later, Respondent appeared to be on the verge of breaking down, holding back tears. Mr. Roman read Respondent his Miranda rights and had Respondent sign a "Miranda Warning" form. Respondent wrote "No" next to the question, "Having these rights in mind, do you wish to talk to us now?" Mr. Leffin testified that there was a period during which Respondent wanted to talk to them, but then changed his mind. Still later, Respondent agreed to talk to Mr. Roman alone. After that discussion, Mr. Roman taped a statement by Respondent. Mr. Leffin testified that Respondent confessed to Mr. Roman that he had gotten the fuel containers out of a recycling bin, filled them with gas at a Hess station on the way to school, and set the car on fire. Respondent did not tell them why he did it. Respondent was charged with second degree arson. At the hearing, Respondent produced an Order Granting Defendant’s Motion to Suppress, entered by Circuit Judge Isaac Anderson, Jr. in the criminal case against Respondent. Judge Anderson found that Mr. Roman "used pressure designed to embarrass, intimidate and to ultimately get the Defendant to confess," and that these actions justified suppression of Respondent’s confession. Gail D. Williams is the director of personnel services for the Lee County School District. Among her duties are disciplinary and internal investigations. In this case, her supervisor received the complaint and initiated the investigation. Ms. Williams then chaired the predetermination conference for Respondent on July 26, 1999. After the conference, the Superintendent recommended moving forward with Respondent’s termination. His reasoning was that Respondent’s actions jeopardized the safety of students and staff at Cypress Lake. The Superintendent notified Respondent of his recommendation by letter dated August 10, 1999. Ms. Williams could not say whether Respondent ever admitted to school district personnel that he set the fire. On advice of counsel, Respondent said nothing at the predetermination conference. Ms. Williams stated that Respondent’s actions constituted violations of Rules 6B-1.006(3), 6B-1.006(5)(a), 6B-1.001(2), and 6B-1.001(3), Florida Administrative Code. Andrew W. Baker has been a teacher and basketball coach at Cypress Lake for three years. He knows Respondent as a co-worker, and as a volunteer ticket taker at basketball games. On the morning of April 19, 1999, Mr. Baker arrived at school at 5:50 a.m. He opened his classroom, then walked to the main office at 6:00 a.m. to sign in. Mr. Baker said good morning to Respondent in the office. He noticed nothing unusual in Respondent’s behavior. Mr. Baker then walked to the main entrance of the building to get a morning newspaper and walked back to his classroom to read the newspaper. He did not see a fire in the parking lot at that time. He testified that the lot adjacent to the main entrance is the best lit parking lot on the campus. Mr. Baker testified that he saw Respondent again about 20 minutes later. Mr. Baker was sitting in his classroom, reading the paper, and drinking coffee when Respondent knocked and came in. Respondent told Mr. Baker, "Somebody blew up my truck." Respondent wondered aloud, "Why would a kid do this to me?" Mr. Baker testified that Respondent was crying. Mr. Baker testified that on a typical day, there are five or six teachers and other employees at the school at 6 a.m., including Mr. Koedyker. Mr. Baker testified that he did not hear any sirens, because his classroom is "clear in the back of the school." Mr. Baker testified that he heard some students discussing the incident later. He described their state of mind as encompassing confusion, surprise, and shock. Mr. Baker also heard students discussing Respondent’s arrest. Some of the students told him they had seen Respondent being handcuffed. Mr. Baker testified that he did not know if the handcuffing actually occurred. Mr. Baker testified that no one questioned him about the incident. Jacki Gruhn is the assistant principal for administration at Cypress Lake. She has worked at Cypress Lake for eight years. She has known Respondent professionally for five years, and described him as a very good teacher. On April 19, 1999, Ms. Gruhn came in late to school, at about 8:30 a.m. She was told about the fire when she called in to the office to say she would be late. The person on the phone told her there was some "excitement" at the school, that someone had set Respondent’s car on fire and that there was gasoline in the car. When she arrived at school, Ms. Gruhn heard more about the incident from teachers. Ms. Gruhn testified that the teachers were scared, and were asking her about security in the parking lot. Some of the early arriving teachers asked Ms. Gruhn if they should wait until 7 a.m. to come to school henceforth. After she arrived at the school, Ms. Gruhn talked to Respondent. Ms. Gruhn described Respondent as very upset, crying off and on. Respondent told her that someone had started a fire in his car, and Mr. Koedyker had come running to tell him it was on fire. Ms. Gruhn discussed the matter with the deans at the school. They wondered who was the likely candidate to have come in early to the school and burned Respondent’s car. None of them was privy to what the investigators at the scene were thinking. Ms. Gruhn recalled that on the next day, Mr. Geddes told her confidentially that Respondent had set the fire.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order finding that Respondent committed misconduct in office as defined in Rule 6B-4.009(3), Florida Administrative Code, and ordering that Respondent be dismissed from employment with the Lee County School Board. DONE AND ENTERED this 28th day of March, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2000. COPIES FURNISHED: Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Keith B. Martin, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Dr. Bruce Harter, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3916
The Issue The issue in this case is whether the district school board has just cause to dismiss the Respondent from employment, pursuant to section 1012.33(1)(a), Florida Statutes.
Findings Of Fact Petitioner first hired Respondent in January 1990 as a substitute teacher. In 1992, Petitioner changed Respondent's status to a permanent teacher. Respondent began teaching at Miami Coral Park Senior High School in January 1996, but left from 2000 to 2004 to teach in Collier County. Upon return to Petitioner's school system for the 2004-05 school year, Respondent was assigned to a different high school, but later transferred to Coral Park when this school needed a basketball coach. In addition to coaching basketball during the 2008-09 school year, Respondent co-taught a math class. One of Respondent's math students was J. V., who was born on April 10, 1991. She started attending Coral Park Senior High School mid-way through her sophomore year in 2008 after moving to Miami in August 2007. She turned 18 in the spring of her junior year and graduated from Coral Park on June 10, 2010. After graduating, J. V. enrolled in a local community college and published a novel that is sold by Barnes & Noble bookstores. During the 2008-09 school year, J. V.'s contact with Respondent involved typical student-teacher interactions in the classroom, hallways, and other school settings. They had exchanged cell phone numbers and spoke on the phone once or twice per month and texted each other with the same frequency. The record does not describe the nature of these communications, but the record fails to suggest any impropriety in the relationship during J. V.'s junior year. During the 2009-10 school year, J. V. was not assigned to any of Respondent's classes, but she began to visit him in his classroom in the morning before school started. The frequency of these visits varied from zero to three times per week. During these visits, J. V. and Respondent talked about her family, her social life, and some of her medical issues, including the fact that she was being treated for depression. J. V. also told Respondent that she might have ovarian cancer, although she later learned that she merely had a cyst. While attending Coral Park, J. V. was living with her aunt, who had become her legal guardian. J. V.'s relationship with her aunt was strained at times. J. V.'s mother was living in the Dominican Republic, and her father, with whom her mother did not wish her to live, resided in New York. During the 2009-10 school year, J. V. and Respondent exchanged numerous cell phone calls and texts, at nearly all hours of the day and night. Although J. V. initiated most of the calls and texts and Respondent did not respond to all of her calls and texts, Respondent never asked her to stop calling and texting him. Their relationship intensified in October or November of J. V.'s senior year. J. V. has testified that she and Respondent had sexual intercourse. Respondent testified that they did not. Neither witness is a model of veracity. J. V. embellished her story with dates that did not occur and was not perfectly clear in her recollection of the details of Respondent's condominium and tattoo. As noted below, Respondent repeatedly encouraged J. V. not to testify, to avoid being served with a subpoena, and, if served, to ignore the subpoena. Regardless whether sexual intercourse took place, the relationship between J. V. and Respondent, by the end of 2009, became excessively intimate for what is appropriate between a teacher and a student and included some form of sexual activity. A series of texts from Respondent to J. V. in late March or early April 2010 reveal the intimacy that had arisen between them: "I wanted 2 jump u," "2 many eyes!," "Muah," "Im in da gym if u can pass by," "It would have been hard," and “I'l b here." The time devoted to remote communications between Respondent and J. V. provides some basis for assessing the nature of their relationship: from October 2009 through November 2010, Respondent and J. V. exchanged over 1600 texts and consumed over ten hours in phone conversations. Without success, Respondent tried to explain the more incriminating of the texts sent in March or April 2010 from his cell phone. Respondent testified that these texts were sent by an unauthorized user of his phone, probably a member of his basketball team. It is difficult to understand why a player would risk the wrath of his coach, but the absence of any response from J. V.--either to the principal or Respondent-- following receipt of the first of these texts suggests that the relationship of Respondent and J. V. had already involved some form of sexual contact. One also finds indirect proof of an intimate relationship in the conduct of Respondent following Petitioner's decision to initiate dismissal proceedings against him. To credit Respondent's version of events, for the sake of discussion, he was confronted by a student's accusations of sexual intimacy that were a total fabrication. His response was to encourage her to engage in more dishonesty, rather than merely to tell the truth. Even if Respondent's version of events concerning the lack of intimacy were credited--and it is not--his subsequent conduct, as amply documented by numerous texts discussed in detail below, constitutes a startling lack of honesty in professional dealings and disregard for the mental health of a former student. Shortly after receiving an allegation that Respondent was engaged in a sexual relationship with J. V., on April 9, 2010, Petitioner removed Respondent from Coral Park and placed him on alternative assignment in a district office. By letter dated April 9, 2010, Petitioner advised Respondent of the nature of the charges, including the initials of the student, and ordered Respondent not to have any contact with the complainant or witnesses with an intent to interfere with the investigation. On April 10, 2010, Respondent and J. V. met at a club known as Mama Juana's; according to both of them, the meeting was by chance and little was said. However, ignoring the directive not to speak with witnesses, Respondent told J. V. that he was being investigated for having a relationship with her and showed her a letter from Petitioner that, supposedly, Respondent happened to have with him at the time of this chance meeting. There is insufficient evidence to find that Respondent and J. V. are lying about the circumstances leading up to the meeting or what was said during it. By letter dated June 4, 2010, which was delivered to Respondent during a conference-for-the-record held on that date, Petitioner again ordered Respondent not to contact any of the parties involved in the investigation. By letter dated August 25, 2010, Petitioner advised Respondent that the Superintendent would be recommending to the School Board, during its meeting of September 7, 2010, that it suspend Respondent without pay and initiate dismissal proceedings against him. By letter dated September 8, 2010, Petitioner advised Respondent that the School Board had taken these actions. Upon receipt of the September 8 letter, Respondent testified that he resumed communicating with J. V. who, by this time, had graduated from high school. In fact, Respondent had received a call from J. V. on September 5 and had spoken with her for 70 minutes until nearly midnight that night. On October 5, J. V. again called him, and they talked for 41 minutes. Other lengthy calls--each about 15 minutes--were initiated by J. V. on October 16, 2010, and January 6, 2011. However, there were few, if any, communications between Respondent and J. V. for five months following their meeting at Mama Juana's on April 10. On September 11, 2010, Respondent texted J. V.: "I got suspended w/o pay. Basically fired!" J. V. replied, "Whoa! Wait, now what?! Hon?" After a couple of more exchanges, in which Respondent stated that he would have to go to trial, J. V. asked, "Is there anything that I can actually do to help you out?" Respondent's reply: "Of course. No matter what happens dont show up if they talk 2 u. Not even if they suebpena [sic] u. They cant do anything if [sic] 2 u dont go." J. V. replied, "Anything there is to do, I suppose, i'll do to help you out. I dont want you to stay in this mess. . . . I still care about you tons, I just wanted you to know that :p." This is a remarkable exchange of texts. Respondent baldly asked J. V. to ignore a subpoena. J. V. scrupulously conditioned her willingness to help with "I suppose." Here, Respondent was asking J. V. to behave dishonorably, and J. V., his former student, displayed some misgivings, as she apparently was wrestling with her loyalty to Respondent and her desire to behave honorably. This is a repulsive perversion of the role of the educator. Although J. V. was no longer a student in Respondent's school, Respondent was still a member of the education profession, and, in his dealings with J. V. and Petitioner, he was continuing to deal with a matter that involved the discharge of his professional duties. On September 18, 2010, Respondent initiated another series of texts, but these involved unremarkable matters, such as how J. V. liked college and a job that she had recently started. On September 24, 2010, J. V. initiated a series of texts with "Hello lost :p." Respondent answered, "Hey, me? Cabrona since now u have a bf [boyfriend] u dont have time 4 me!" When J. V. texted that she was "not afraid of the dark, im just afraid of staying alone, period," Respondent responded, "I m not offering any services any more." Respondent testified that he was referring to math services, but, given the circumstances, this explanation is impossible to credit. On the other hand, the services were as likely those of a trusted counselor as of a sexual partner. The text of J. V., however, displays the vulnerability of Respondent's former student, even though nearly one year had passed since the intensification of their relationship to inappropriate levels. The next day, Respondent renewed the texting exchange. J. V. texted that a certain singer "literally places you in my head." Respondent answered, "Thats a good place 2 b. I thought u didnt anymore." J. V. declaimed that she thinks too much, and Respondent answered, "Then why havent u let me c u [see you]?" J. V. replied, "Because i know that is all I am gonna be allowed to do, just see you. And I don't know if that's okay with you." Respondent responded, "It be nice 2 cu though. Even 4 a short while." J. V. agreed, and Respondent replied, "Since now u r da complicated 1 u let me know when." J. V. promised she would and quickly asked what Respondent was up to. Respondent texted, "Let me know if they try 2 get in cotact [sic] w/u? They should b setting a date 4 da hearing soon." Injecting the same element of doubt that she had raised when she offered, on September 11, to help Respondent, J. V. texted, "I seriously doubt that [they will get in contact with me]. But i'll let you know in case they do, i suppose (emphasis supplied)." These texts lend support to the finding that the relationship between Respondent and J. V. was inappropriately intimate during her senior year. It appears that one of them broke if off, possibly over the objection of the other. J. V.'s second use of "I suppose" revealed again her ambivalence about the situation in which Respondent had placed her in asking her not to cooperate with Petitioner's prosecution of its case against him. As J. V. continued to wrestle with her loyalty toward Respondent and unwillingness to behave dishonorably, Respondent steadfastly toyed with her emotions, such as by saying that it felt good to be in her thoughts, and he did not think she thought of him anymore. The next day, after midnight, Respondent renewed the text exchange again by texting, "143." He explained that this was beeper code for "i love you." J. V. replied with a beeper code consisting of the less-intense message, "thinking of you." Except for a congratulatory text, probably for the publication of J. V.'s novel, the next text exchange took place on October 13, 2010, in which J. V. apologized for calling so late, but wanted to know if Respondent could meet her the following night. They agreed to meet instead after lunch on the following day. The following day, they agreed to postpone the meeting until the following week. On October 15, 2010, the Administrative Law Judge issued a Notice of Hearing, setting the final hearing for January 26, 2011. As noted above, a lengthy telephone conversation between Respondent and J. V. took place the next day. On October 26, 2010, Respondent texted J. V.: "My lawyer friend said that 4 da subpoena they have 2 give it in ur hand. So if y dont answer the door if they show up, they cant leave it there. Nd if someone asks y if y r [J. V.] simply say no." As they exchanged texts about a basketball game that was being played, J. V. texted that she preferred baseball, and Respondent replied, "Bat nd balls huh?" J. V. answered "Lol [laughing out loud] :p silly!" She accused him, in Spanish, of a bad thought, and Respondent disingenuously asked, "What did i say?" Then he texted, "Lol." This series of texts represent a remarkable confluence of Respondent's inducing J. V. to dishonesty and engaging in sexual teasing. The remark about a bat and ball was a reference to male genitalia. Surprisingly, Respondent did not deny the sexual connotation of this text, but somehow tried to dismiss it merely as a joking "sexual innuendo." The freedom that Respondent felt to engage in sexual innuendo with a former student betrayed the inappropriate intimacy of the relationship that they once shared--while she was still a student. J. V. initiated a text exchange of Halloween greetings on October 31. On November 8, 2010, J. V. initiated another text exchange by asking how Respondent was doing. He asked how school, work, and her boyfriend were. J. V. typed that all were fine, and Respondent replied, "I m happy 4 u!" However, J. V. texted that there "are certain things that i have to deal with." Respondent texted her to call him. On November 17, 2010, Respondent initiated another text exchange in which he again asked about work, school, and her boyfriend. J. V. replied that all was fine, but her father was in the hospital. The next day, J. V. texted Respondent: "I really have to speak to you but i'll do it after i get out of class:( im so sorry." When Respondent texted her to explain, J. V. responded, "Because im really placed against the wall." Respondent answered: "What do u mean. I m the 1 that has lost everything. Nothing could happen 2 u if u say nothing happened! What r u thinking about doing? Destroying my [rest of message lost]." J. V. replied, "Omg [Oh, my God]! Screw you for saying that as if you'd know me that little to ever think that's something i'd consider doing to you!" She added, "I'll call you once i get home, at 9." Respondent added that he was watching a football game in a bar and "This is killme though. Please let me know!" J. V. responded that, when Respondent had some time to call, he should do so. With this text of apology, J. V. was informing Respondent that she had resolved the dilemma in which Respondent had placed her, and she had decided to tell the truth, rather than behave dishonorably. Casting his professional obligations aside, Respondent tried to dissuade her from telling the truth by turning the focus to himself and his need for her to lie and cover up. Obviously, Respondent's plea for J. V. to say that nothing happened implies that something happened. And the something had to be substantial--i.e., sexual contact, rather than merely excessive texting between a teacher and student--for Respondent to have felt the need to have J. V. conceal the truth. The next day, Respondent initiated a text exchange by stating: "Sorry 4 my reaction but please put urself in my shoes 4 da past 7 mos. I've lost everything that i valued nr u r worried about ur fam finding out. Idk wh [sic]." J. V. did not respond to this text. Obviously, this text was not an apology for asking J. V. to behave dishonorably. Instead, Respondent asked J. V. to identify with his situation. He was sorry merely for having lost his composure and possibly alienating J. V. On November 26, 2010, J. V. initiated a text exchange about holiday shopping. The next day, evidently in response to a telephone call, Respondent texted: "I cant get mad at u. I m just scared out of my mind about what the outcome could be! Thank you 4 assuring me." Three days later, Respondent texted birthday wishes to J. V. On November 30, 2010, J. V. suggested that they get together and have lunch "one of these days." Respondent agreed, but no date was set. On December 1, 2010, J. V. texted Respondent, as well as a number of others, that her book was available for purchase, and he texted congratulations. On December 14, 2010, J. V. texted a friend: "I'm alright most of the times lol. Having a bf has helped me a lot. I'm not alone anymore missing the teacher :(" What this text lacks in detail it makes up for in candor. It is the most direct evidence of the emotionally vulnerable condition of J. V. immediately after Respondent insisted that they stopped seeing each other in April 2010. J. V. initiated the next text exchange on January 4, 2011, when she sent new year's greetings to Respondent. When she asked how he was doing, Respondent replied, "I m ok but getting very anxious over the hearing coming up soon!!" J. V. texted that no one had been in touch with her, but Respondent assured her that she would get something soon. He asked her, "Do you have any idea what you are going to do for the hearing?" J. V. answered, "I'm not gonna do anything." Respondent replied, "We'll talk before then." On January 5, J. V. called or texted Respondent, who replied for her to call him that night. She texted that she would, and he responded, evidently in reference to a phone message, "What are you fuzzy about?" J. V. answered: "The lawyer that always calls from the school board called me not too long ago, that's all." When it became apparent that J. V. could talk then on the phone, the texts ended, evidently so Respondent and J. V. could talk on the phone. As noted above, a lengthy telephone conversation took place between Respondent and J. V. the next day. Sometime during January 2011, J. V. and Respondent spoke by telephone, and Respondent warned her that the authorities would be able to retrieve her text messages. One may safely infer that Respondent was unaware previously of the availability of such data or the ability of Petitioner to supplement its pleadings to add as grounds for dismissal acts and omissions taking place after the initiation of the case against him.
Recommendation It is RECOMMENDED that the School Board enter a final order dismissing Respondent from employment on the ground of misconduct in office. DONE AND ENTERED this 3rd day of August, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850)488-9675 Fax Filing (850)921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2011. COPIES FURNISHED: Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Lynn Abbott, Agency Clerk Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Christopher La Piano, Esquire School Board Attorney’s Office School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 Teri Guttman Valdes, Esquire 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146
