Findings Of Fact At all times material to this case, Respondent Carl B. Dietz (Dietz) was employed as a member of the instructional staff of Trafalgar Middle School, Lee County School District (District) pursuant to a professional service contract. Throughout Dietz's employment with the District, his annual evaluations indicate that the quality of his work was deemed an "effective level of performance". Dietz was initially employed by the District as a regular teacher on August 15, 1985. Dietz holds Florida Teaching Certificate #543771 issued by the Florida Department of Education. He is certified to teach secondary-level history and junior high school mathematics. For six years prior to the 1991-92 school year, Dietz taught advanced level American history and math at Cypress Lakes High School. Most of Dietz's students at Cypress Lakes were approximately 16-18 years old. A decrease in enrollment at Cypress Lakes resulted in a reduction of teaching staff at Cypress Lakes. Because no other high school instructional positions were open, Dietz was offered and accepted a position at Trafalgar Middle School. During the 1991-92 school year, Dietz taught history to Trafalgar eighth graders. During the school year 1992-93, Dietz was assigned teaching responsibilities for the Trafalgar Middle School sixth grade PASS program math and social studies classes. The PASS (Pupils Achieving School Success) program is a state funded project developed to focus specific attention on students identified as at risk of withdrawal from school prior to high school graduation. Dietz had no previous experience as an instructor in a PASS program. Dietz received no special training for the PASS program. The sixth grade students in the PASS program were approximately 11-12 years old. The nature of the PASS program may result in students who are less disciplined and more disruptive than the students Dietz had previously taught. Dietz taught two PASS classes, a morning group and an afternoon group. Students from both classes testified during the hearing. Conflicts in testimony have been resolved as indicated in the following Findings of Fact. It is alleged that on one day in October, 1992, Dietz, yanked a chair from under a student, resulting in the student's head striking the desk as he fell to the floor. The evidence establishes that the student was sitting sideways in the chair and was rocking back on the rear legs of the chair. Dietz grabbed the seatback and the chair slid from under the student who fell to the floor. The greater weight of the evidence is insufficient to establish that the student struck his head during the fall. In any event, the student was not physically injured in the incident. Dietz asserted that the student had been previously warned about sitting improperly, and that he grabbed the seatback to startle the child and "make the point" that he should sit properly. There is no evidence that the action of Dietz was an appropriate manner in which to discipline the child for sitting incorrectly in the chair. It is alleged that in October, 1992, Dietz addressed a child (whose pronunciation of his first name was poor) by a mispronunciation of the child's name as a means of encouraging the child to pronounce the name correctly. Upon requesting Dietz to correctly pronounce the name, Dietz discontinued his practice. The evidence fails to establish that the child was harmed by the mispronunciation of his name. In October, 1992, Dietz removed a non-functioning clock from the classroom wall and threw it down. The battery came out of the clock and struck a female student's leg, but no injury resulted. The allegation that Dietz's removal of the clock was accompanied by a remark that the "piece of shit" clock was not working is not supported by the greater weight of credible evidence. It is alleged that Dietz threw a pencil and book at one student who came to class without materials. The greater weight of the evidence establishes that Dietz slammed a book down on the table in front of the student, who was being seated away from class as a disciplinary measure. The evidence also establishes that Dietz tossed a pencil to the child. The evidence fails to indicate that tossing a pencil to a sixth grade child is an appropriate method of distributing school supplies. The pencil would have hit the child had he not moved from the path of the projectile, however the evidence does not establish any intent to injure the child by Dietz. In October, 1992, four female students from Dietz's afternoon class locked themselves in a bathroom stall during a rest room break and remained there when the break ended. Standing in the school hallway, Dietz reached into the bathroom, knocked on the stall door and directed the female students to return to class. It is alleged that upon exiting the bathroom, Dietz addressed the students as "lesbians," "perverts" and "gaywads." The greater weight of the evidence fails to establish that Dietz used such language in the presence of the female students or that his action in directing the students to return to class was inappropriate. It is alleged that at various times in the classroom during the 1992- 93 school year, Dietz uttered the following words and phrases: "nigger," "nigger shit," and "nigger talk," and instructed one student to "take your black ass back to Africa." The greater weight of the evidence fails to establish that Dietz used such language in the classroom. It is alleged that at various times in the classroom during the 1992- 93 school year, Dietz uttered the following words: "ass," "assholes," "shit," "hell," "fucking assholes," and "fucking jerks." The greater weight of the evidence fails to establish that Dietz used such language in the classroom. It is alleged that on one occasion at the end of the class session during the 1992-93 school year, Dietz instructed a student in the completed class to get his "fat ass" out of the classroom. There was testimony that Dietz directed the student to get his "fat carcass" out of the classroom. While the greater weight of the credible and persuasive evidence establishes that Dietz indeed addressed the child as "fat", it is insufficient to establish that Dietz used the word "ass" in the presence of the child. The evidence fails to establish that use of the descriptive word "fat" resulted in injury to the child. It is alleged that in October, 1992, Dietz threw a plastic cup at a student. The evidence fails to support the allegation. It is alleged that in October, 1992, Dietz threatened to tell the mother of a student that the child was "a big fat lump of nothing." The evidence fails to support the allegation. In October, 1992, a student inquired of Dietz as to whether he believed the students in the class were "brats." Dietz replied in the affirmative. The student then asked if Dietz thought the inquiring student was a "brat." Dietz again replied in the affirmative. It is alleged that Dietz drove onto the school grounds with a loaded and cased handgun locked in the glove box of his car. It is alleged that on the day questioned about the gun, Dietz admitted having the gun in the car. The evidence fails to establish that, on the day questioned, Dietz (who owned several vehicles) had the gun in the glove box of the car driven. However, the evidence establishes that, on at least one occasion, Dietz drove onto the school grounds with a loaded and cased handgun locked in the glove box of his vehicle. The all times material to this case, there was no written School Board policy prohibiting a loaded and cased weapon from being on the school grounds locked in a vehicle glove box. There were no oral directives to faculty that a loaded and cased weapon, locked in a vehicle glove box, was prohibited from school grounds. At one time in the Spring of 1992, the school principal brought a firearm onto school grounds, the thereafter loaded and fired the weapon as part of a demonstration. The District's assertion that the related alleged violation of federal law is sufficient to support termination is rejected. On October 28, 1992, a number of Dietz's students went to the office of a school guidance counselor and voiced a number of complaints about alleged conduct. The counselor noted the complaints and reported the matter to the assistant principal of the school. On October 29, 1992, the assistant principal met with Dietz to discuss the allegations. According to the assistant principal, Dietz admitted to the alleged behaviors, except for one specific accusation regarding addressing a specific student as a "fucking ass." According to Dietz, he did not admit that such behaviors occurred and instead asserts that he attempted to explain some of the reasons for the allegations, including the grades assigned to some of the complaining students. The conflict in recollections is reconciled in favor of Dietz. On October 30, 1992, Dietz met with the principal of the school, during which time Dietz admitted that he had previously stored a loaded and cased handgun in the glove box of one of the vehicles he drove onto school grounds. On October 30, 1992, Dietz was suspended with pay based on the allegations of improper conduct. In November, 1992, an employee of the superintendent of the Lee County school district undertook an investigation of the allegations regarding Dietz. On November 10, 1992, a predetermination conference was held. On November 13, 1992, Dietz was advised that on November 17, 1992, the district superintendant would recommend to the school board that Dietz be suspended without pay and benefits pending termination of employment. Effective November 17, 1992, the board elected to suspend Dietz without pay and benefits. Dietz was notified of the board action by letter dated November 25, 1993. The letter provided that Dietz could request a formal administrative hearing on the matter. By letter dated November 19, 1992, Dietz requested formal hearing of the board's November 17 action.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School District of Lee County enter a Final Order reinstating the employment of Carl B. Dietz and providing for back pay and benefits retroactive to November 17, 1992. DONE and RECOMMENDED this 27th day of July, 1993 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 27th day of July, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7075 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6-8. Rejected, immaterial. Rejected, not supported by greater weight of credible and persuasive evidence. Rejected. The rest room discussion is irrelevant. The greater weight of credible and persuasive evidence fails to establish that the chair was "yanked" from under the student or that the student struck his head. The alleged lack of an apology is irrelevant. Rejected as to Dietz interaction with Mr. Nolan, irrelevant. Rejected, as to the discussion of poster touching, irrelevant. Rejected, as to the alleged "black talk" remark, not supported by the greater weight of credible and persuasive evidence. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected as to alleged remark that the class "sucks", not supported by the greater weight of credible and persuasive evidence. 20-21. Rejected, not supported by the greater weight of credible and persuasive evidence. 23-25. Rejected, not supported by the greater weight of credible and persuasive evidence. 26. Rejected, subordinate. 28-29. Rejected, not supported by the greater weight of the evidence. 30, 32. Rejected, subordinate. Recitation of testimony not appropriate finding of fact. 33. Rejected, unnecessary. 34-40. Rejected, subordinate, unnecessary. Rejected, irrelevant. Rejected, unnecessary. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 11. Rejected as to allegation of child striking head in fall, not supported by greater weight of credible and persuasive evidence. 13, 15. Rejected, subordinate. 16. Rejected as to force of toss or intent to strike child, irrelevant, no evidence that such action is appropriate regardless of intent. 17-20, 22. Rejected, subordinate. Rejected, subordinate. Rejected, unnecessary 25-30. Rejected, subordinate. 31-38. Rejected, goes to credibility of witnesses which has been determined as reflected in the Findings of Fact set forth herein. 42, 44. Rejected, unnecessary. COPIES FURNISHED: Dr. James A. Adams Superintendent Lee County School District 2055 Central Avenue Fort Myers, Florida 33901-3988 John J. Hament, Esquire 1800 Second Street, Suite 785 Sarasota, Florida 34236 Robert J. Coleman, Esquire 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902
The Issue Did Respondent leave the Southside Middle School campus without permission in the 1989-90 school year; in that same year, did Respondent make a threatening complaint in writing to Vice Principal, Peggy Williams; in that same year, did Respondent fail to submit a written report of a fight between students; did Respondent use profanity in the school year 1990-91 while employed at Southside Middle School; did Respondent leave campus without permission and leave his classes unattended in the school year 1991-92 while employed at Lake Shore Middle School; did Respondent engage in inappropriate conduct with students by grabbing a male student, M.F., by the shoulders and squeezing that student's shoulders and making that student go to his knees in the school year 1992-93 while employed at Lake Shore Middle School; did Respondent in that same year grab and hit A.H. in the chest and in the stomach; did Respondent in that same year pull the student, J.W.'s ear; did Respondent in that same year plan a field trip to Walt Disney World, Florida, without approval from the Duval County School District; did Respondent fail to follow district procedures for purchasing t-shirts and sweatshirts for students; did Respondent in the school year 1993-94 while employed at the Lake Shore Middle School fail to comply with guidelines in submitting a "no show" list related to student attendance; and did Respondent engage in profanity in the presence of students in that same year?
Findings Of Fact At times relevant to the inquiry Respondent has held Florida teaching certificate number 638543 covering the areas of health, biology, and physical education. In the fall of 1989, Respondent began employment with the Duval County, Florida, School Board in a teaching position at Southside Middle School. While serving as a teacher at Southside Middle School, Respondent broke up a fight between two students that was occurring in a hallway. Following the incident his obligation was to file a written report detailing the facts. That report was due immediately. The Respondent had to be reminded twice before rendering the report. The report was rendered before the students met with a school hearing officer to resolve the incident. In the fall of 1991, Respondent voluntarily transferred to an assignment at Lake Shore Middle School. That school is also part of the Duval County School District. On one occasion while Respondent was employed at Lake Shore Middle School, Timothy Hamel, another teacher at that school, observed that Respondent's class had been left unattended from approximately 3:40 p.m. until 4:00 p.m. On another occasion, while Respondent was employed at Lake Shore Middle School, Respondent left campus at a time when he did not have classes and did not return until after school had concluded for the day. As a consequence, he missed instruction periods for some classes that he was responsible for teaching. This circumstance was established through testimony from Arlene Guthrie, Assistant Principal for Curriculum at Lake Shore Middle School. The proof submitted at hearing did not satisfactorily demonstrate that the Respondent had made arrangements to cover classes which he missed on this occasion. In the spring of 1993, Respondent was interested in taking some students on a field trip to Walt Disney World, Florida. A conversation was held between the Principal at Lake Shore Middle School and the Respondent concerning this field trip. The principal was persuaded that it was too late in the year to schedule a field trip. Nonetheless, Respondent replied that he was going on the field trip and would rent a van on his own to transport the students, separate and apart from school sanctioned transportation. In the conversation concerning the field trip, the principal asked Respondent if he had obtained parent/guardian permission slips for the students to attend the outing. Respondent replied in the affirmative. A permission information sheet directed to the parents or guardians pertaining to the nature of the field trip was prepared on the Lake Shore Middle School letterhead and signed by Respondent, as sponsor for a school club known as Manhood, Achievement, Community Service. That information sheet indicated that the trip would take place on May 28-30, 1993. Further, it indicated that expenses would be taken care of, except for meals and spending money for the students. The correspondence went on to indicate that the parents or guardians would be informed of the hotel address after receipt of confirmation of room reservations. The information sheet indicated the departure and return time. Respondent confirmed the knowledge of the parents about those details by having them sign the information sheet. As discussed between Respondent and the principal, there was no mention in the information sheet about Respondent arranging for transportation on his own by renting a van. When the principal asked Respondent about the duration of the trip, Respondent indicated that it was more than a single-day trip. The principal wanted to know if Respondent had made arrangements for a place to stay. At that time, Respondent replied that no such arrangements had been made but that Respondent would obtain a place to stay. The principal was not convinced that the parents and guardians were sufficiently apprised of the nature of this outing and told Respondent that Respondent could not take the trip. After the conclusion of the conversation between the Respondent and the principal, Respondent still insisted that he was going on the field trip to Walt Disney World. In the conversation between the principal and Respondent concerning the field trip, the issue related to the payment for the trip was addressed. The principal was concerned that there was not enough money to pay for the trip and asked the Respondent how the balance of the money was to be paid. Respondent replied that the parents would pay. When the principal asked if Respondent had consulted with the parents concerning this additional cost, the answer was no. The conference between the principal and Respondent was held two or three days before the trip was to take place. When it became obvious that the school district, from the principal's perspective, did not wish to sanction the trip, matters were left in the posture that if the Respondent wanted to go on the trip as an adult in charge of those children, then that arrangement would have to be carried out between Respondent and the parents. In that setting of a private trip the school district did not want the Respondent to create the appearance that the trip was a trip sanctioned by the school district. Eventually correspondence was given to the Respondent from Gerlieve R. Oliver, Assistant Superintendent, Middle Schools, Duval County School System, confirming that the Respondent did not have permission to take an official school trip to Disney World. The correspondence also informed the Respondent that he could not take a non-school related trip, given that the written communications to parents concerning the trip was made on school letter head, thus creating the appearance of being a school sponsored trip. This appearance caused the school district to instruct the Respondent that he could not take a non-school trip either. This communication dated May 26, 1993, informed the Respondent that the parents or guardians of the students who were to be taken on the trip would be made aware of the telephone conversation between the Respondent and Ms. Oliver concerning the field trip. The conversation between Respondent and Assistant Superintendent Oliver was instigated by Respondent. It is that telephone conversation that led to the preparation of the correspondence. The correspondence from the assistant superintendent to the Respondent reminded the Respondent that if he failed to follow the directions that he might put himself in jeopardy concerning employment with the district and admonished Respondent to be more careful in adhering to directions. The correspondence from Ms. Oliver to Respondent also mentioned that if Respondent were more careful about following procedures in the future that this would result in the Respondent being able to provide opportunities for his students. This is taken to mean opportunities such as field trips. While Respondent was employed at Lake Shore Middle School there was a policy related to what is referred to as a "no show" list. In particular, at the commencement of the school year a given school counts the number of students in attendance as a means of determining the amount of money the school is entitled to for conducting its operations. The expectation is that the individual school teacher will document this count by calling a roll each day and turning in a slip to the administrative offices verifying the students who did not attend school on that day. Respondent did not comply with that requirement. While Respondent was teaching at Lake Shore Middle School an incident occurred between male students K.A. and M.F. in the school lunch room. K.A. and M.F. were arguing. Respondent came over and broke up the argument by grabbing both of the students by their respective shoulders. On two other occasions while Respondent was in the lunch room with the students, he grabbed A.H. around the neck in the first encounter and the second encounter grabbed that student by the shoulder. When Respondent grabbed A.H. around the neck the student winced and frowned. The reason for that initial encounter between the Respondent and A.H. is not clear. On the second occasion Respondent grabbed A.H. by the shoulder, A.H. had similar expression in that he winced and frowned. Again it is unclear concerning the reason for Respondent's actions. In the experience of K.A., while attending a class taught by Respondent, he observed Respondent curse in class on a somewhat frequent basis. That frequency was as much as four times a day, three days a week. On one occasion K.A. observed Respondent grab D.A. around the neck and tell D.A. to sit down or Respondent was going to be "kicking his fucking ass." Other curse words that K.A. heard the Respondent use were words like "ass", "damn", and "asshole". According to Ms. Guthrie, an expert in education, cursing in front of students, using inappropriate discipline such as grabbing necks and shoulders of students and leaving the class unattended on more than one occasion, constitutes a circumstance in which the Respondent has lost his effectiveness as a teacher. That opinion by Ms. Guthrie is accepted.
Recommendation Based on the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that a Final Order be entered finding Respondent in violation of the four counts in the Administrative Complaint and suspending the Respondent's teaching certificate for thirty (30) days. DONE AND ENTERED this 24th day of March, 1995, in Tallahassee, Florida. CHARLES C. ADAMS 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 24th day of March, 1995. COPIES FURNISHED: Nathan L. Bond, Esquire 2121 Killarney Way, Suite G Tallahassee, Florida 32308 J. David Holder, Esquire 1408 Piedmont Way Tallahassee, Florida 32312 Steven A. Williams 6200 South Barnes Road, P-20 Jacksonville, Florida 32216-5633 Karen Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Ms. Lindstrand violated section 1012.67, Florida Statutes (2012), or whether there is just cause to terminate Ms. Lindstrand.
Findings Of Fact The School Board is charged with the duty to operate, control and supervise all free public schools within Broward County, Florida. At all times relevant to this matter, the School Board employed Ms. Lindstrand as a math teacher at Cypress Bay High School. Ms. Lindstrand had started her employment with the School Board in 1996. In June 2011, Ms. Lindstrand was arrested for driving under the influence (DUI). She hired an attorney and contested the charge. Her trial was scheduled for February 27 and 28, 2013. Ms. Lindstrand requested and had been approved for leave from February 26 through March 1. She requested the leave for February 26 through the 28th due to the trial, and the leave on March 1st was for the intended purpose of attending her grandfather’s 90th birthday party. She never informed the school or her parents that she had a trial; rather, she requested the leave for “personal reasons.” Ms. Lindstrand did not anticipate that she would be found guilty of the DUI charge, or that she would, upon being found guilty, be sentenced immediately to a period of incarceration. She had made no plans for that possibility. On February 28th, in the evening, Ms. Lindstrand called her father, Thomas Lindstrand, notifying him that she had been through the DUI trial, had been found guilty, and had been immediately incarcerated. Mr. Lindstrand informed his wife, and told her to call the school the next morning. Ms. Lindstrand’s mother called the school the morning of March 1st, and spoke with Ms. Estripeaut, an assistant principal at Cypress Bay High School. She informed Ms. Estripeaut that Ms. Lindstrand was in jail, and would remain in jail for a period of six weeks. Because Ms. Lindstrand was responsible for teaching seven math classes, which included classes where students are required to pass end-of-year tests in order to graduate, Ms. Estripeaut was tasked with the responsibility of finding a certified substitute teacher, with a math background, who could serve for a lengthy period of time. Once a qualified substitute teacher was selected, Ms. Estripeaut and the substitute teacher met with parents and students in order to reconcile grades in the grade books. Students reported that they had turned in assignments that were missing from the grade books, and parents were concerned about the students’ preparation for the end-of-year tests. On March 5th, Mr. Lindstrand called the school and spoke with Rebecca Johnson, who works as a Leave Specialist for the School Board. Ms. Johnson sent Mr. Lindstrand a leave request form, which he properly completed and filed on March 6, 2013. On approximately March 7th, Ms. Estripeaut contacted Mr. Lorenzo Calhoun, an Employee Relations Specialist for the School Board, and informed him that Ms. Lindstrand had been absent from work for three days without approved leave. Mr. Calhoun recommended that Ms. Lindstrand’s name be sent to the School Board for termination, because being absent from work for more than three days without approved leave constitutes abandonment under School Board policy. Prior to making his recommendation to Ms. Estripeaut, Mr. Calhoun confirmed with the Leave Department that Ms. Lindstrand had not been approved for leave for the three or more days that she had already been absent from work. When he called the Leave Department, she had not been approved for any leave. On March 7, 2013, a letter from the school, signed by the principal but prepared by Ms. Estripeaut, informed Ms. Lindstrand that her name was being forwarded to the School Board with the recommendation that she be terminated. It also informed her that her name would be placed on the meeting agenda for the School Board’s meeting on March 18, 2013. The letter was sent to the following address: “1408 NE 5 Ct. #4, Fort Lauderdale, Florida, 33301.” Ms. Lindstrand had lived at this address until August of 2012, at which point she moved to a different address, but never informed the school. Although Ms. Lindstrand had asked the post office to forward her mail to her new address, she never received this letter. On March 8, 2013, an almost identical letter was sent to Ms. Lindstrand from the Staffing Department, letting her know that her name was being forwarded to the School Board for termination, and that the School Board would meet on March 18, 2013. This letter was also sent to the only address on record for Ms. Lindstrand--an address where she no longer resided. According to Ms. Lindstrand, she never received this letter either. The Chief Human Resources Officer, Gracie Diaz, supervises the staffing department, leaves department, and employee relations department. On approximately March 7th, Ms. Diaz was informed that Ms. Lindstrand was incarcerated, and that the Cypress Bay High School principal and the staffing department were moving forward with the termination process. She was also informed that Ms. Lindstrand had requested personal leave. Ms. Diaz spoke with the School Board’s general counsel, and together they reviewed the collective bargaining agreement between the Broward Teachers Union and the School Board, which contained the following provision: Length of Leave: An employee who has been employed for more than three (3) years in Broward County may be granted upon request, personal leave without pay for a period not to exceed two (2) years for reasons not provided elsewhere in this Agreement. The employee shall be returned to duty at the beginning of the next school year following the leave. Such leave shall require the approval of the Superintendent. Ms. Diaz took the leave request form, as well as the letters from the principal and the staffing department regarding the termination process to the Superintendent. Given that the collective bargaining agreement leave provision is permissive in nature, Ms. Diaz recommended to the Superintendent that he deny the leave request, because she felt it was inappropriate to grant personal leave due to incarceration. She also recommended that the School Board go forward with termination. The School Board met on March 18, 2013, and voted to terminate Ms. Lindstrand’s employment. By letter dated March 22, 2013, the Leaves Department notified Ms. Lindstrand that her request for personal leave had been denied by the Superintendent. By letter dated April 9, 2013, Ms. Lindstrand was notified that the School Board had met and had approved the recommendation for her termination. Ms. Lindstrand was released from jail on April 6, 2013. She received these final two letters at the post office, a few days after being released.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board issue a final order terminating Ms. Lindstrand’s employment. DONE AND ENTERED this 17th day of October, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2013. COPIES FURNISHED: Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638 Adrian Alvarez, Esquire Deborah Klauber, Esquire Haliczer, Pettis, and Schwamm, P. A. Seventh Floor One Financial Plaza 100 Southeast Third Avenue Fort Lauderdale, Florida 33394 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0442 Robert Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0442
Findings Of Fact Luis Ortiz was a seventh grade student at Nautilus Junior High School during the 1984-85 school year until his assignment to the alternative school. Ortiz is 13 years old and was born on March 11, 1972. Prior to his enrollment in junior high school in 1984, Ortiz was an A and B student who exhibited good behavior. He did not adjust well to the new school at which he began junior high school. Ortiz was involved in eight incidents of misbehavior at Nautilus. On October 29, 1984, Ortiz was rude, discourteous; failed to complete an assignment and engaged in general disruptive behavior. He was placed on indoor suspension for general disruptive behavior and defiance of school authority on December 6, 1984. On January 11, 1985, Ortiz was referred for discipline for general disruptive behavior, use of provocative language and defiance of school authority. He was referred for counseling for general disruptive behavior, being rude and discourteous, and cutting class on January 25, 1985. Ortiz was placed on outdoor suspension for general disruptive behavior and defiance of school authority on January 28, 1985. Ortiz' behavior appeared to improve and he was not involved in further disciplinary incidents until April 2, 1985, when he was again placed on outdoor suspension for general disruptive behavior end defiance of school authority. He was recommended for assignment to opportunity school for general disruptive behavior and defiance of school authority on May 15, 1985. Before he was reassigned to opportunity school, Ortiz was reprimanded for general disruptive behavior, use of provocative reprimanded for general disruptive behavior, use of provocative language, defiance of school authority, and being rude and discourteous. Ortiz has been somewhat unsuccessful academically in his first year in junior high school. He was failing three classes before his last outdoor suspension and assignment to opportunity school. He then failed all of his subjects because he failed to complete his course work and failed to take his final exams. Ortiz must repeat seventh grade. The School Board failed to present any evidence of efforts made to provide assistance to Ortiz regarding this lack of success in academics. In fact, the school board's only witness had no knowledge of Ortiz' grades or behavior prior to beginning seventh grade at Nautilus. Additionally, the school board's witness provided no details about the actual misbehavior of Ortiz. Instead, Smith merely read from a computer printout, without specifying the nature of the acts which lead to the disciplinary referrals. It is therefore impossible to determine if Ortiz' acts were of a major or minor nature. Dennis Segall, a teacher who knew Ortiz from elementary school, has continued to work with Ortiz in the last year. According to Segall, Ortiz was successful and well-behaved prior to the 1984-85 school year. He recognizes that Ortiz' behavior changed at Nautilus and states that Ortiz knows he "messed up" at Nautilus and is ready to change his attitude. Mrs. Ortiz moved during the summer of 1985, and now resides in a different school district. If Ortiz is allowed to return to the regular school program, he would attend Citrus Grove Junior High School.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Luis Ortiz to the regular school program. DONE and ENTERED this 26th of September, 1985, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esq. Suite 800, 300 Executive Plaza 3050 Biscayne Boulevard Miami, FL 33137 Mrs. Maeva Hipps School Board Clerk 1450 N.E. 2nd Avenue Room 401 Miami, FL 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 N.E. 2nd Avenue Miami, FL 33132 Ms. Esther Ortiz 1255 S.W. 1st Street Apartment 403 Miami, FL 33135
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.
Findings Of Fact The Respondent Respondent holds Teaching Certificate No. 75756, covering the areas of physical education, health education and drivers education. The Certificate expires June 30, 1987. At all times material hereto, the School Board of Palm Beach County employed respondent as an assistant principal at Lake Shore Middle School in Belle Glade, Florida. Respondent was first hired by the School Board in 1956, as a physical education instructor at East Lake Junior High School, in Belle Glade. During the ensuing years, he served as athletic director, football coach, basketball coach, baseball coach and drivers' education teacher at three Belle Glade schools (East Lake Junior High, Lake Shore High School and Glade Central High School) until his transfer in 1971 to Lake Shore Middle School as Dean of Boys. In 1978 he was promoted to Assistant Principal. In 1982, the School Board suspended respondent on charges of "misconduct and immorality arising out of improper sexual advances made by [him] toward female students at Lake Shore Middle School during the 1981-82 school years." After an evidentiary hearing on October 25-26, 1982, the School Board, by mixed vote, found him guilty of the charges, cancelled his continuing contract (tenure), and terminated his employment. The Department seeks to revoke or otherwise discipline respondent's Teaching Certificate on charges substantially the same as those brought (and sustained) by the School Board. Prior to the complained of conduct, respondent had an unblemished school employment record. By all accounts he was gregarious and outgoing, a competent, caring, and dedicated teacher and administrator. He was popular with students, respected by faculty, relied on by school administrators, and generally considered a "pillar of the community." He had been raised in Belle Glade. Unlike most county school teachers in Belle Glade, who taught there but lived elsewhere, he considered Belle Glade his home. Improper Sexual Remarks or Sexual Advances Toward Female Students Count I: Advances toward T. E. T. E. was 14 years old and a student at Lake Shore Middle School, where respondent was Assistant Principal. On May 17, 1982, she entered his office and asked for a lunch ticket. He could not find an extra lunch ticket in this office so he told her to accompany him to the data processing office where lunch tickets were kept. She complied and they walked together to data processing. He unlocked the door, turned on the lights, and they went in. They both looked around the office, but could not find the lunch tickets. Respondent then told her to return with him to his office and he would give her a temporary lunch pass. As they reached the door of the data processing office, he turned off the lights, put his arm around her shoulder, and asked her for a kiss. She refused. He asked her again, and she again refused. During this exchange he reached down and touched her breast. She felt his touch and was afraid; he was not restraining her though, and she did not think he would try to hold her against her will. They then left data processing. He returned to his office and she began walking to her class. He came back out of his office and told her not to tell anyone about the incident. She agreed. A little later, he found a lunch ticket and gave it to her. Enroute to her class, she began to cry. A student friend asked her what was wrong. T. E. wrote her a note, explaining what had happened. The friend told a teacher, who--along with others--told her to tell her parents. When T. E. arrived home that afternoon, respondent was talking to her grandmother. She heard him say that T. E. had misunderstood something he had done, or said. At 8:15 a.m. the next morning, May 18, 1982, respondent reported to Principal Edward Foley's office for his routine duties. As they were conducting an inspection, respondent asked to see him when they returned to the office, stating he had a "serious problem" to discuss with him. He then told Principal Foley that he (respondent) was being "accused of feeling on a young female student," (Petitioner's Exhibit No. 1), and explained his version of the incident. He did not tell the principal that he had twice asked the student for a kiss, and had touched her breast. He said that he had put his arm around her shoulder as they left date processing. Later that day, a conference on the incident was held in the principal's office. The principal, an assistant principal, respondent, T. E., T. E.'s mother and grandmother, and several teachers were present. Shortly after the conference convened, respondent asked for and was given permission to talk to T. E.'s mother and grandmother in a separate office. Once there, respondent told T. E.'s mother that he thought he had done something to upset T. E.; that he was sorry; and that he could understand how the mother felt because he would feel the same if T. E. was his child. He then asked T. E.'s mother to have her daughter say that she made a mistake and that it was simply a misunderstanding. The mother refused. During this short discussion, T. E.'s mother asked him if he had asked T. E. for a kiss: he said, "yes." When asked, "Did you touch her breast?", he replied, "I might have. But . . . I'm sorry, I didn't hurt your daughter." (TR-112) 2/ Count II: Improper Sexual Remarks to C. D. C. D. was a 14 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, respondent approached her (during school hours) when she was walking to the school cafeteria. He told her she "had big breasts and he wanted to feel one." (TR-33) Count III: Sexual Advances toward C. C. C. C. was a 15 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, as she was leaving the campus (though still on school grounds) at the end of the school day, respondent, who was walking with her, put his arms around her and asked her for a kiss. Count IV: Improper Sexual Remarks to C. S. C. S. was a 14 or 15 year old female student at Lake Shore Middle School during the 1981-82 school year, when respondent approached her as she was leaving the gym. He remarked, "You have some big breasts." (TR-57) She kept walking. Earlier that year, respondent asked her, "Do you wish things wasn't (sic) the way they are." This remark had, and was intended to have, sexual connotations. (TR-56) Later that school year, respondent, while on campus and during school hours, approached C. S. and asked her "to come in his office and give him a kiss." (TR-57) She left, without complying with his request. Conflicts Resolved Against Respondent Respondent denied having made these improper verbal remarks to, or physical sexual advances toward the four female students. The students' testimony, although containing minor discrepancies, is accepted as more credible than respondent's denial, and conflicts in the testimony are resolved against him. The students showed no hostility toward respondent and, unlike him, had not motive to falsify. Reduced Effectiveness The allegations against respondent, involving these four female students, received widespread notoriety in the area. As a result, his effectiveness as an employee of the School Board has been seriously reduced.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent's teaching certificate be revoked, and that he be declared ineligible for reapplication for three years following revocation. DONE AND ENTERED this 6th day of August 1984 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August 1984.
The Issue Whether Respondent is guilty of gross insubordination, misconduct in office and absent without leave as more fully alleged in letter dated November 7, 1989.
Findings Of Fact At all times relevant hereto Joseph A. Tourney held an Educator's Certificate from the Florida Department of Education (Ex. 1) and has been on continuing contract since 1972 with the Pinellas County School Board (Ex. 2). He has taught in the Florida School System for approximately 20 years with the last 14 years at Pinellas Park High School (PPHS) as a social studies teacher. As early as 1970, while a teacher at Lakewood Senior High School, Respondent's negative attitude toward strict compliance with school policies was noted (Ex. 9). Much of this attitude was exhibited by arriving later than and departing prior to the time designated for teachers to be at the school (Ex. 10). Following a review of Respondent's evaluations and conferences with him regarding his attitude respecting school policies and procedures to which Toumey did not agree, a recommendation was made by the Principal at Lakewood that Toumey be transferred (Ex. 12). Toumey was transferred to Largo High School. No problems were reported regarding Toumey during his tenure at Largo. When Pinellas Park High School opened circa 1976 Toumey was transferred to that school. Hugh Kreiger was principal at Pinellas Park High School. Krieger was a hands-on administrator who closely observed those under his supervision. The first time he observed Toumey depart school early he called him in and assigned Toumey permanent parking lot duty which required Toumey's presence at the parking lot until after the designated departure time. For the next five years no further problem was noted regarding Toumey's punctuality at school. Krieger was replaced by Louis Williams and Toumey's attendance problems resumed. After repeated warnings about leaving school in the afternoon prior to the scheduled departure time for teachers (30 minutes after students are released) and a conference between Williams and Tourney, Williams requested a conference with Tourney and John Mixon, Director of Personnel Services for the school board. This conference was held October 14, 1982 (Ex. 13). During this conference Respondents's early departures from school, his attitude toward school policies to which he disagreed, and his insensitivity to students was discussed and Tourney was advised that improvements in these matters was expected. By memo dated February 28, 1983 (Ex. 15) Williams noted several occasions where Toumey had departed school early and Tourney was charged with one-half day's leave and given a written reprimand. A subsequent documentation of Tourney leaving school early is contained in a memo dated November 7, 1986, from Williams to Tourney (Ex. 16). On September 21, 1987, Nancy Blackwelder, Assistant Principal at PPHS, submitted a memorandum to Tourney memorializing a conference with him in which he was again reminded of his need to improve in classroom atmosphere conducive to learning, judgment, and routine duties; and noting that if he failed to perform routine duties he would receive a written reprimand (Ex. 17). On October 8, 1987, a conference was held between Tourney; Nancy Zambito, who replaced Dr. Mixon as Director of Personnel Services; the principal of PPHS, M. Heminger; and a union representative. The summary of this conference is contained in a memo from Zambito to Tourney dated October 3, 1987, (Ex. 18). In this conference Tourney's inappropriate behavior in class involving his participation in a program adopted by the school, Patriot Educational Partners (PEP), was discussed, Tourney was again reminded of the need to support school board policies and programs in his contact with students, and Tourney agreed to improve. In November 1987 Tourney and the School Board entered into a Stipulation and Agreement (Ex. 19). In this Agreement Tourney acknowledged that he had been given less than satisfactory evaluations for the school years 1970-71, 1982-83, 1983-84, and 1986-87, that he had received numerous counseling sessions to discuss his failure to adhere to established school procedures and his negative comments to students. He also acknowledged that during the 1987-88 school year while assigned as advisor to a group of students with whom he is supposed to meet for five minutes each morning, he has frequently been late; that he referred to this program in the presence of students in negative and profane terms; and on one occasion he threw financial aid papers in the trash can and told students they could get them from there if they wanted them. For these infractions Tourney agreed to a suspension without pay for five days. He also acknowledged that further infractions may lead to a recommendation for his dismissal. In his testimony at this hearing Tourney averred that most of the students who were given financial aid applications threw them on the floor from which they had to be picked up and placed in the trash baskets, and that he was merely shorting the process by throwing these applications in the trash can rather than pass them out to the students who would throw them on the floor. On May 9, 1989, Respondent was issued a letter of reprimand (Ex. 20), by Principal Heminger for inappropriate conduct in his class during a visit to the class by members of the committee conducting a ten-year evaluation of the PPHS for accreditation during the period of April 25-28, 1989. In this reprimand he was also found to have arrived late at the final meeting of the Visiting Committee and to have returned from lunch with the odor of alcohol on his breath. On September 12, 1989, a conference was held between John Reynolds, Assistant Principal at PPHS and Tourney to discuss Tourney's 1988-89 evaluation. This conference is memorialized in memorandum dated September 19, 1989, (Ex. 21). The areas in which improvement is expected in the evaluations are attitude, judgment and routine duties. October 13, 1989, was an in-service day for teachers. This is a normal school day which only teachers attend. It was one of several similar days during the school year that teachers hold meetings, catch up on the grading of papers and perform tasks other than conducting classes for their students. It is a day all teachers are expected to be present at school. At PPHS in-service days have always been more informal than regular school days and in the past teachers have departed early once their tasks were completed. Prior to 1988 there had been no sign-in sheet for teachers at PPHS but such a procedure was instituted and in effect for the in-service day of October 13, 1989. Respondent appeared at school on October 13, 1989, as required but slightly late. Around 9:00 a.m. he received a telephone call from his good friend and fellow teacher in the social studies department, David Smith, who told respondent that he, Smith, had just awakened after not having slept well during the night, and Smith requested Respondent to sign him in and he would arrive shortly. Respondent did so. After making the call, Smith went back to bed and when he again awoke it was afternoon and he realized he was suffering from flu-like symptoms and was too sick to go to school. Several people were aware that Smith did not report to school on October 13, 1989 and reported same to the authorities. When confronted with the accusation both Tourney and Smith denied that Tourney had signed Smith in and that Smith was not at school that day. When he finally acknowledged his absence from school on October 13, 1989, Smith was suspended for three days without pay. The October 13, 1989, incident was the culmination of a long history of Respondent's failure to comply with school policies and directives, to "trash" school programs to which he did not agree, and to be in the forefront of rebellion against such programs and policies which led to the proposed action of the school board to dismiss Respondent from his continuing contract as a teacher in the Pinellas County school system at the expiration of the 1989-90 school year.
Recommendation It is recommended that Joseph Tourney be dismissed from his position as a continuing contract teacher in the Pinellas County School System at the conclusion of the 1989-90 school year. DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida. K. N. AYERS 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 5th day of July, 1990. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Dr. Scott N. Rose, Superintendent Pinellas County School Board Post Office Box 4688 Clearwater, FL 34618-4688 Bruce Taylor, Esquire Post Office Box 4688 Clearwater, FL 34618-4688 Robert F. McKee, Esquire Post Office Box 75638 Tampa, FL 33675-0638
The Issue Whether respondent's Florida Teacher's Certificate should be revoked or otherwise disciplined on charges of professional misconduct, including gross immorality, acts involving moral turpitude, conduct which seriously reduces his effectiveness as an employee of the school board, intentionally exposing a student to unnecessary embarrassment or disparagement, exploiting a professional relationship with a student for personal gain, and failing to conform to standards of ethical conduct, in violation of Section 231.28, Florida Statutes, and Rules 6B-1.06(3)(e) and (h), and 6B-1.01(3), Florida Administrative Code.
Findings Of Fact Respondent holds Florida Teacher's Certificate 342171, covering the area of physical education. At all times material to the administrative complaint, respondent was employed as a physical education teacher at Lake Worth High School in the Palm Beach County School District. From 1973, when he joined the Palm Beach County School District, to the date of his suspension for the acts complained of in the administrative complaint, he was consistently rated to be a good teacher. His teaching ability and performance were not in question. He also maintained a close relationship with his students, frequently assisting them beyond the requirements of his job. On the afternoon of May 23, 1983, at approximately 2:30 p.m., respondent entered the K-Mart department store in Lantana, Florida, accompanied by his niece, Cathy Brown. While shopping in the store, he selected a 68-quart cooler, bearing a price tag of $43.58, then proceeded to the hardware department, where he selected a Black and Decker electric drill, bearing a price tag of $22.99. He left the hardware department and proceeded to the garden/patio area or Garden Shop. Before reaching the double glass doors separating the main building from the Garden Shop, he stopped and placed the large box (containing the 68-quart cooler) and the small box (containing the electric drill) on the floor at the end of an aisle approximately 30 feet from the double glass doors. Be then walked directly to the double glass doors opening onto the Garden Shop, and glanced in the direction of the checkout counter located at the Garden Shop exit. He then walked back past the cooler and electric drill, and proceeded into the appliance department where he met Cathy Brown. Ms. Brown had previously selected a package of hair curlers, bearing a price tag of $1.38. He and Ms. Brown briefly examined several items on a display counter in the appliance department, then returned to the place where he had placed the cooler and electric drill. He picked up these two items and proceeded to the Garden Shop; Cathy Brown, who was carrying the hair curlers, accompanied him. Jeanette Grimes, a 17-year-old Lake Worth High School student, was--at that particular time--the cashier at the register located at the Garden Shop checkout counter. Ms. Grimes knew respondent. Be had been her physical education teacher for two years and basketball coach for one year. She considered him a friend. As respondent approached the checkout counter where Ms. Grimes was serving as cashier, he placed the box containing the cooler and the box containing the electric drill on the floor at the far end of the checkout counter, not on the counter itself. At that time there were customers at the checkout counter who were being waited on by Ms. Grimes. He and Cathy Brown walked away from the checkout counter and began looking at plants. After Ms. Grimes had finished checking out the customers at her counter, he and Ms. Brown again approached the checkout counter, where he engaged Ms. Grimes in conversation. At no time did he place any items on the counter for Ms. Grimes to examine and ring up. At that time she rang up a $1.00 item and a $5.00 item, totalled the transaction at $6.00, then rang up a $.30 tax, and totalled the transaction at $6.30. He handed Ms. Grimes $10.00 in payment for the merchandise. She mistakenly rang up $10.00 for an additional item of merchandise, voided the $10.00 item off her tape, and re-rang $10.00 as cash tendered. At that point the cash register opened and indicated that change in the amount of $3.70 was due. Ms. Grimes gave respondent $3.70 in change and a receipt for the transaction. During the course of ringing up the transaction, the items of merchandise remained on the floor at the end of the counter. Ms. Grimes did not pick up the items and examine them for a price tag while ringing up the amounts. Upon the completion of the transaction, Ms. Brown engaged Ms. Grimes in conversation. Ms. Brown handed to Ms. Grimes the box containing the electric drill and the package containing the curlers; Ms. Grimes placed the items into a bag which she gave to Ms. Brown. Respondent then picked up the box containing the 68-quart cooler and left the store, accompanied by Ms. Brown, who carried the bag containing the curlers and the electric drill. Both respondent and Ms. Brown were aware that they had not paid the full price for the merchandise, and that what they were doing was wrong. Mr. Frank Heim, K-Mart's Lobs Prevention Manager, (store detective) observed respondent's activities in the K-Mart continuously, from the time respondent selected the electric drill in the hardware department to his exit from the store. Mr. Heim observed the transaction at the checkout counter, then immediately proceeded to Ms. Grimes' register, examined the register tape, and proceeded to the parking lot to ask that respondent return to the store. Mr. Heim located respondent at his (respondent's) truck in the parking lot. Respondent had placed the cooler in the back of his truck and Cathy Brown was still holding the bag containing the curlers and the electric drill. Mr. Heim identified himself to respondent, advised him of a problem with the purchase which he had just made, and requested that he return to the store with the merchandise to clear the matter up. Respondent replied that he had paid for the merchandise and had a receipt, that it was not his fault if the cashier rang up the wrong prices. After some additional conversation, respondent removed the cooler from the back of his truck and accompanied Mr. Heim back to the store. Upon entering the store through the Garden Shop entrance, respondent placed the cooler on the floor just inside the entrance, then stopped and attempted to discuss the matter with Mr. Heim. Mr. Heim advised respondent that they could not discuss the matter at that location, that they would have to go to his office. As they approached Mr. Heim's office, respondent again stopped, placed the cooler and the bag containing the other two items on the floor, and stated to Mr. Heim that he was not going inside his office. Mr. Heim replied that they could not discuss the matter in the store, and that respondent would have to accompany him inside his office. Respondent replied that he did not have time to discuss the matter, that he was in a hurry and had to leave. Mr. Heim then advised respondent that he was not free to leave and that he was being detained for shoplifting. Respondent became agitated, stated "You've got your stuff back," and began walking away. Mr. Heim sought help from others, then blocked respondent's path at the glass doors between the main store and the Garden Shop. He told respondent not to make the situation worse by trying to leave the store, but respondent attempted to force his way by Mr. Heim. Mr. Heim grabbed him by the arm and a brief scuffle ensued. At that point, respondent ripped up his cash register receipt and discarded the remnants onto a display counter. Mr. Heim immediately retrieved the remnants and later Scotch- taped the pieces together. After respondent became calmer, he returned with Mr. Heim to his office. After entering the office, Mr. Heim advised respondent of his "Miranda" rights. Mr. Heim asked him for identification and asked him to empty his pockets in order to make sure he had no weapons. Respondent removed a total of approximately $22.00 from one of his socks while in the office. Respondent admits that at the time he entered the K-Mart store, he had only approximately $30.00 on his person. The total retail price of the three items, according to the price tags affixed to each, totalled $67.95. In response to Mr. Heim's questions, respondent continuously stated that it was not his fault that the cashier rang up the wrong prices and that he paid her the amount she rang up. Conflicting accounts of this incident were given by Mr. Heim and respondent. Taking into account Mr. Heim's detached and professional manner, and his lack of apparent bias or motive to falsify, it is concluded that his testimony is more credible than respondent's, and is persuasive. As a result of this incident, respondent was arrested and charged with the crime of retail theft. Based upon the circumstances described herein, Jeanette Grimes was fired by the K-Mart department store. She was also arrested and charged with the crime of retail theft. Jeanette Grimes' job at K-Mart was a requirement for one of her school classes, "Work Experience." As a result of her being fired, she failed the course. Respondent's effectiveness as a teacher was seriously reduced as a result of his conduct and the accompanying notoriety which it received in the community. The circumstances of his offense, his arrest, and his suspension from his teaching position, all received notoriety through publication of articles in three newspapers of general circulation in the Lake Worth community.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission find respondent guilty of violating Section 231.28 and Rule 6B-1.06, as alleged, and revoke his Florida Teacher's Certificate. DONE and ENTERED this 4th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 John Chamblee, Esquire 202 Cardy Street Tampa, Florida 33606 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission Knott Building Tallahassee, Florida 32301 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301
