Findings Of Fact Petitioner was employed by Respondent as a dormitory teacher I for approximately four years prior to his dismissal in May, 1987. The incident which resulted in his dismissal occurred on May 2, 1987, on the second floor of James Hall, a dormitory for deaf students, where he worked as a dormitory teacher. At approximately 11:15 p.m., Petitioner told Tommy Downing, a student at the school and resident of James Hall, to go to bed. Downing was in another student's room at the time and was wearing a fabric vest used as a target for a toy laser gun. The testimony conflicts as to exactly what happened, but from a review of all the evidence and after considering the witnesses' demeanor, it is found that Downing, who was thirteen years old at the time, threw the vest at Petitioner, hitting him in the eye. Petitioner sustained no injury. As a result of the surprise of being hit with the vest, Petitioner threw a clip board he was holding in his hand in Downing's direction. Downing and Petitioner were approximately twelve feet apart at the time. The clip board struck Downing just below his elbow causing severe pain and swelling for which he required attention in the school infirmary. Downing became extremely upset as a result of the incident and it took staff some time to calm him down. Petitioner's action was grossly negligent and reckless, and exhibited an extreme disregard for the safety of Downing, as well as another student who was also in close proximity to the incident. At the time of this incident, Petitioner was rated as "below" standards, with unsatisfactory communication skills and knowledge of his job. Good communication skills are very important when dealing with deaf students, and Petitioner's inabilities in this aspect of his job had been a repeated cause for his poor job performance and evaluations. Petitioner's personnel file reveals that he was placed on ten days administrative leave in December 1986, and was reprimanded in January, 1987 for failure to report to work. After investigating the incident involving Downing and Petitioner, Respondent dismissed Petitioner from employment on May 30, 1987 "for violation of Article 26 of the Florida School for the Deaf and Blind Standards of Conduct." Article 26 provides a definition of "student abuse" and employee disciplinary standards relating thereto, as follows: Treatment under which a student is deprived, or allowed to be deprived, of necessary treatment, habilitation, care, sustenance, clothing, shelter, supervision, or medical services essential to his well- being; is permitted to live in an environment in which such deprivation or environment causes, or is likely to cause, impairment of physical or emotional health; or is subject to physical or psychological injury. First occurrence 3-day suspension to Dismissal Second occurrence Dismissal (Emphasis supplied.) Respondent does not contest that Petitioner has timely sought a hearing to review the decision to terminate his employment. According to Respondent's Personnel Director, Sam Visconti, the severest employee disciplinary action of dismissal is taken when an employee's action causes harm to a student, and the consequences or harm are severe. In this case, Petitioner's action did cause harm, with severe pain and swelling to Downing, and showed an extreme disregard for the possible consequences of his action.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner as an employee. DONE AND ENTERED this 5th day of May, 1988, in Tallahassee, Florida. DONALD D. CONN 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 5th day of May, 1988. COPIES FURNISHED: Robert T. Dawson, President Florida School for the Deaf and the Blind 207 North San Marco Avenue St. Augustine, Florida 32084 Barbara Staros Harmon, Esquire Department of Education Knott Building Tallahassee, Florida 32399 Samuel White 94 South Street St. Augustine, Florida 32082
The Issue Did Respondent Siebelts commit the offenses set forth in the petition for dismissal (Case No. 88-4697) and the amended administrative complaint (Case No. 89-0189) filed against her? If so, what discipline should she receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Karen Siebelts has held a State of Florida teaching certificate since 1976. Her current certificate was issued May 1, 1986, and covers the areas of elementary education, elementary and secondary reading, and secondary social studies and psychology. For the past thirteen years Siebelts has been employed by the School Board of Broward County as a classroom teacher. During the early stages of her employment, she taught at Melrose Park Middle School. She then moved to Perry Middle School, where she taught a class of emotionally disturbed sixth graders. Her performance at these two schools was rated as acceptable. In November, 1979, Siebelts was assigned to teach at Charles Drew Elementary School, a neighborhood school located in the predominantly black Collier city area of Pompano Beach. The charges lodged against Siebelts are based on specific acts she allegedly committed while she was a Chapter I Reading/Math and Computer teacher at Charles Drew providing remedial instruction to students whose test scores reflected a need for such special assistance. On January 22, 1985, while seated with her fifth grade students at a table during a reading lesson, Siebelts inadvertently kicked one of the students in the shin. The incident occurred as Siebelts was moving her legs to a more comfortable position. The force involved was minimal and produced no visible injuries. The student immediately demanded an apology from Siebelts. Siebelts responded to this demand with silence. She neither apologized nor said anything to suggest that she had intended to kick the student. Earlier in the lesson, Siebelts had directed the student to stop talking. The student had defied the directive and continued to talk. It was not until approximately three minutes after the student's initial defiance of the directive, however, that the kicking incident occurred. Nonetheless, the student suspected that Siebelts had intentionally kicked her because of her failure to obey Siebelts' order that she not talk. When the student came home from school that day she told her mother that Siebelts had intentionally kicked her during class. The mother immediately reported the incident to the principal of the school, Hubert Lee. The matter was referred to the School Board's Internal Affairs Unit for investigation. The requested investigation was conducted. Following the completion of the investigation, a written report of the investigator's findings was submitted to the administration. No further action was taken regarding this incident until approximately three and a half years later when the instant petition for dismissal was issued. Siebelts was annoyed when she learned that the student and her mother had accused her of wrongdoing in connection with the January 22, 1985, kicking incident. On February 19, 1985, she expressed her annoyance in front of her fifth grade class and in their presence threatened to take legal action against those students and parents who had made libelous or slanderous statements about her or had otherwise verbally abused her. She told the students that they and their parents would be subpoenaed to court and if they did not appear they would be incarcerated. The principal of the school was informed of these remarks shortly after they were made, but it was not until the instant petition for dismissal was issued on August 22, 1988, that Siebelts was first formally charged with having made the remarks. Before coming to work on January 28 1986, Siebelts took a codeine pain medication that her physician had prescribed. When classes started that morning she was still under the influence of the medication. She was listless and drowsy. Her speech was slurred and she appeared incoherent at times. She also had difficulty maintaining her balance when she walked. Because Siebelts had been taking this medication "on and off" since 1979, she had been aware of these potential side effects of the medication when ingesting it on this particular occasion. A teacher's aide in Siebelts' classroom concerned about Siebelts' condition summoned the principal, Hubert Lee, to the classroom. When he arrived, Lee observed Siebelts seated at her desk. She was just staring and seemed "to be almost falling asleep." The students were out of control. They were laughing and making fun of Siebelts. After questioning Siebelts and receiving an answer that was not at all responsive to the question he had asked, Lee instructed Siebelts to come to his office. Siebelts complied, displaying an unsteady gait as she walked to Lee's office. In Lee's office, Siebelts insisted that she was fine, but conceded that she was "on" prescribed pain medication. Throughout their conversation, Siebelts continued to slur her words and it was difficult for Lee to understand her. Pursuant to Lee's request, Dr. Lorette David, Lee's immediate supervisor, and Nat Stokes, a School Board investigator, came to Lee's office to observe and assess Siebelts' condition. A determination was thereafter made that Siebelts was not capable of performing her instructional duties that day, which was an accurate assessment. She therefore was sent home for the day. Because of her impaired condition, rather than driving herself home, she was driven to her residence by Dr. David. Although she believed that she was not suffering from any impairment, Siebelts did not protest the decision to relieve her of her duties because she felt that any such protest would have fallen on deaf ears. Following this incident, Siebelts was issued a letter of reprimand by Lee. She also was referred to the School Board's Employee Assistance Program because it was felt that she might have a substance abuse problem. Siebelts agreed to participate in the program and received counselling. At no time subsequent to January 28, 1986, did Siebelts report to work under the influence of her pain medication or any other drug. During the 1987-1988 school year, Siebelts and two other Chapter I teachers, Rosa Moses and Mary Cooper, occupied space in Charles Drew's Chapter I reading and math laboratory. Their classrooms were located in the same large room and were separated by makeshift partitions. Siebelts is white. Moses and Cooper, as well as the aides who were assigned to the laboratory during that school year, are black. In October, 1987, Moses complained to Principal Lee that Siebelts was not teaching her students, but rather was constantly engaging in loud verbal confrontations with them that disrupted Moses' lessons. Lee had received similar complaints about Siebelts from others. He therefore asked Moses to advise him in writing of any future classroom misconduct on Siebelts' part. Siebelts continued to engage in conduct in her classroom which Moses deemed inappropriate and disruptive. On November 4, 1987, for the last five minutes of one of her classes, she loudly exchanged verbal barbs with her students. Her yelling made it difficult for Moses and Cooper to teach their lessons. On November 5, 1987, throughout an entire 45-minute class period, Siebelts was embroiled in a verbal battle with a student during which she made derogatory remarks about the student's size. She called the student "fat" and told her that she "shake[d] like jelly." The student, in turn, called Siebelts "fruity" and likened her to a "scarecrow." On that same day during a later class period, Siebelts took a student by the arm and, following a tussle with the student, placed him in his seat. Thereafter, she made belittling remarks to the other students in the class. She said that they were "stupid" and "belonged in a freak show." She also referred to them as "imbeciles." Siebelts further told her students that their "mothers eat dog food." On November 25, 1987, Siebelts commented to the students in one of her classes that they would be able to move around the classroom with greater ease if they were not so fat. As she had been asked to do, Moses provided Lee with a written account of these November, 1987, encounters between Siebelts and her students, but Lee did not take any immediate action to initiate disciplinary action against Siebelts. Although she did not so indicate in her report, Moses believed that the unflattering remarks that Siebelts had made to the students on these occasions constituted racial slurs inasmuch as all of the students to whom the remarks had been addressed were black and in addressing these remarks to the students as a group she had referred to them as "you people." Moses thought that "you people" had meant black people in general, whereas Siebelts had intended the phrase to refer to just the students in the classroom. At no time during any of these reported incidents did Siebelts make specific reference to the students' race, nor did she specifically attack black people in general. The target of her demeaning and insulting remarks were those of her students whose unruly and disrespectful behavior she was unable to control. Her efforts to maintain discipline and promote learning in the classroom had failed. She had become frustrated with the situation and verbally lashed out at her students. Unfortunately, these outbursts only served to further reduce her effectiveness as a teacher. On March 1, 1988, Siebelts was involved in an incident similar to the one which had occurred more than three years earlier on January 22, 1985. As on the prior occasion, Siebelts was sitting at a classroom table with her students. Her legs were crossed. When she repositioned her legs, her foot inadvertently came in contact with the top of the head of a student who was crawling under the table to retrieve a pencil the student had dropped. The student had been told by Siebelts not to go under the table but had disobeyed the instruction. She had been under the table for approximately a minute and a half before being struck by Siebelts foot. The blow to the student's head was a light one and produced only a slight bump. Nonetheless, after getting up from under the table, the student, a brash fourth grader who had had confrontations with Siebelts in the past, threatened to physically retaliate against Siebelts. Siebelts did not say anything to the student and the class ended without the student following through on her threat. Following this incident, Siebelts telephoned the student's mother at home to discuss the student's classroom behavior. The call was placed sometime before 9:00 p.m. The conversation between Siebelts and the mother soon degenerated into an argument. They terminated the discussion without settling their differences. Lee subsequently met with the mother. He suggested that a meeting with Siebelts at the school be arranged. The mother indicated to Lee that she would not attend such a meeting unless school security was present. She explained that she was so angry at Siebelts that she was afraid that she would lose her composure and physically attack Siebelts if they were in the same room together.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission issue a final order suspending Karen Siebelts' teaching certificate for two years and that the School Board of Broward County issue a final order suspending Siebelts until the reinstatement of her teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-4687 AND 89-0189 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Commisioner of Education's Proposed Findings of Fact Accepted and incorporated in substance in the Findings of Fact portion of this Recommended Order. Rejected as contrary to the greater weight of the evidence. Rejected as beyond the scope of the charges. Siebelts was not charged with having made threatening remarks the day after the January 22, 1985, kicking incident. These threats were allegedly made, according to the charging documents, on February 19, 1985. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Insofar as it asserts that Siebelts engaged in name-calling on dates other than those specfied in the petition for dismissal and amended administrative complaint otherwise, it is accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Furthermore, the witness whose testimony is recited in this proposed finding later clarified her testimony and conceded that Siebelts did not use the precise words quoted in this proposed finding. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as not supported by the greater weight of the evidence to the extent that it suggests that Siebelts made "racial comments" on the dates specified in the petition for dismissal and amended administrative complaint. Insofar as it states that such comments were made on other occasions, it is rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. According to the petition for dismissal and amended administrative complaint, Siebelts threatened her students with legal action on February 19, 1985. This proposed finding, however, relates to alleged threats of legal action made by Siebelts during the 1987-1988 school year. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as unnecessary. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as irrelevant and immaterial. Rejected as irrelevant and immaterial. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Siebelts' Proposed Findings of Fact First unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance. Second unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Rejected as irrelevant and immaterial; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and :incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; ninth sentence: Accepted and incorporated in substance. Third unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as unnecessary; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance. Fourth unnumbered paragraph: Rejected as more in the nature of a statement of opposing parties' position than a finding of fact; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as subordinate; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance. Fifth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as subordinate; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance; tenth sentence: Accepted and incorporated in substance; eleventh sentence: Accepted and incorporated in substance; twelfth sentence: Accepted and incorporated in substance. Sixth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: rejected as a summary of testimony rather than a finding of fact based on such testimony. Seventh unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony (The exculpatory testimony of Siebelts which is summarized in the first three sentences of this paragraph has not been credited because it is contrary to the more credible testimony of other witnesses) fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Eighth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as subordinate; fourth sentence: Accepted and incorporated in substance; fifth sentence: Rejected as subordinate; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as subordinate; ninth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Ninth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Tenth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Accepted and incorporated in substance; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Superintendent of School's Proposed Findings of Fact Accepted and incorporated in substance, except for the fourth sentence, which has been rejected as contrary to the greater weight of the evidence. Accepted and incorporated in substance except to the extent that it asserts that Siebelts "advised the students that they and their parents would be placed in jail because of the lies and the slander." The preponderance of the evidence reveals that she actually told them that they and their parents would be incarcerated if they did not appear in court when summoned. First sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as subordinate. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected as more in the nature of argument concerning relatively insignificant matters than findings of fact addressing necessary and vital issues. Accepted and incorporated in substance, except to the extent that it suggests that Siebelts had alcohol on her breath. Any such suggestion has been rejected because it is contrary to the testimony of Investigator Stokes. Stokes, who has been employed by the School Board as an investigator for the past 20 years, testified that he was standing one or two feet away from Siebelts and did not detect the odor of alcohol on her breath. In view of his experience regarding the investigation of these matters, his testimony has been credited. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. To the extent that this proposed finding states that Siebelts made inappropriate remarks regarding the students' clothing or other matters on dates other than those specified in the petition for dismissal and amended administrative complaint, it has been rejected as outside the scope of the charges. Insofar as it asserts that Siebelts made derogatory remarks about black people in general on the dates specified in these charging documents, it has been rejected as contrary to the greater weight of the evidence. To the extent that this proposed finding indicates that Siebelts otherwise insulted the students in her class on the dates specified in the charging documents, it has been accepted and incorporated in substance. Rejected as beyond the scope of the charges. The "disparaging remarks" which are the subject of this proposed finding were purportedly made during the 1984-1985 school year. The "disparaging remarks" referenced in the petition for dismissal and amended administrative complaint were allegedly made, according to these charging documents, during the 1987-1988 school year, more specifically, on November 4, 5, and 25, 1987. Rejected as beyond the scope of the charges. The "critical" remarks referred to in this proposed finding were allegedly made prior to the 1987-1988 school year. First sentence: Rejected as irrelevant and immaterial to the extent it references reactions to "disparaging" and "critical" remarks that were purportedly made prior to the 1987-1988 school year. Otherwise, it has been accepted and incorporated in substance; second sentence: Rejected as a summary of the testimony of Siebelts' former students and colleagues rather than a finding of fact based on such testimony. First sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance, except to the extent that it reflects that Moses actively monitored Siebelts classroom conduct "through December of 1987." The preponderance of the evidence establishes that such active monitoring actually ceased November 25, 1987; third sentence: Accepted and incorporated in substance, except to the extent it indicates that Noses heard Siebelts tell her students that they "were dirty and needed baths." This comment was purportedly overheard, not by Moses, but by Margaret Cameron, a teacher's aide who had left Charles Drew prior to the commencement of the 1987- 1988 school year; fourth and fifth sentences: Rejected as beyond the scope of the charges. These proposed findings are based on Cameron's testimony regarding offensive comments she had allegedly overheard while an aide in Siebelts' classroom. These pre-1987-1988 school year comments, however, are not mentioned in either the petition for dismissal or the amended administrative complaint. First sentence: As this proposed finding correctly points out, Siebelts' insulting comments only served to heighten the students' hostility and anger toward her. There is no persuasive competent substantial evidence, though, to support the further finding that these comments "resulted in several physical altercations between the students;" second sentence: Rejected inasmuch as there no persuasive competent substantial evidence that there was any "heated verbal exchange" on November 5, 1987, between Siebelts and the student which preceded their "altercation." The preponderance of the evidence establishes that the verbal battle with her students occurred immediately after this incident; third sentence: Rejected as contrary to the greater weight of the evidence. Although she may used physical force during her encounter with this student, it is unlikely that she actually "tossed" him into his seat. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected inasmuch as there is no persuasive competent substantial evidence to support a finding that Siebelts telephoned the student's mother as a result of the incident near the air-conditioner. The preponderance of the evidence does establish that Siebelts did telephone the mother on a subsequent occasion, but there is no indication that Siebelts threatened the mother or otherwise acted inappropriately during this telephone conversation. Although the mother asked to have security personnel present during a parent-teacher conference with Siebelts, the preponderance of the evidence reveals that this request was not the product of any threats that Siebelts had made against the mother. First sentence: Rejected as not supported by the greater weight of the evidence. Siebelts' testimony that the contact was unintentional is plausible and has been credited. The circumstantial evidence presented by Petitioners (including evidence of prior confrontations between Siebelts and the student) raises some questions regarding the veracity of Siebelts' testimony on this point, but such evidence is not sufficiently compelling to warrant the discrediting this testimony. Given her penchant for verbalizing to her students her thoughts about them, had Siebelts intended to kick the student as a disciplinary measure, she undoubtedly would have made this known to the student, rather than remain silent as she did; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance, except to the extent that it suggests that immediately after kicking the student, Siebelts had a "smirk on her face." To this limited extent, this proposed finding is not supported by any persuasive competent substantial evidence; fourth sentence: Accepted and incorporated in substance. First sentence: Rejected as not supported by any persuasive competent substantial evidence; second, third, fourth and fifth sentences: Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. To the extent that this proposed finding suggests that Siebelts' behavior at school on January 28, 1986, and her verbal attack of her students on November 4, 5, and 25, 198', reduced her effectiveness as a teacher, it has been accepted and incorporated in substance. Insofar as it indicates that other conduct in which she engaged resulted in a reduction or loss of effectiveness, it has been rejected as either contrary to the greater weight of the evidence (other conduct specified in charging documents) or beyond the scope of the charges (other conduct not specified in charging documents). COPIES FURNISHED: Charles Whitelock, Esquire 1311 S.E. 2nd Avenue Fort Lauderdale, Florida 33316 Edward J. Marko, Esquire Suite 322, Bayview Building 4,1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Thomas P. Johnson, Ed.D. Associate Superintendent Human Resources Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Craig R. Wilson, Esquire Suite 315 1201 U.S. Highway One North Palm Beach, Florida 33408-3581 Karen B. Wilde Robert F. McRee, Esquire Executive Director Post Office Box 75638 Education Practices Commission Tampa, Florida 33675-0638 125 Knott Building Tallahassee, Florida 32399
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes, against teachers holding Florida educator's certificates. Bryan Mays, Respondent in this proceeding, holds Florida Educator's Certificate 636531, covering the area of music, which is valid through June 30, 2011. Background At all times material to the allegations of this case, Respondent was employed as a music teacher in the St. Lucie County School District ("the district"). Respondent's employment with the district, which commenced in 1999, was initially uneventful. Beginning in 2006, however, Respondent began to amass a disciplinary history with the district, which included: letters of concern in May 2007 and May 2008; a reprimand for insubordination in May 2008; and placement on unpaid status in January 2009, which continued for approximately three months. With the aim of providing him with a fresh start, the district transferred Respondent from Manatee Elementary to Parkway Elementary beginning with the 2009-2010 school year. Unfortunately, and as detailed below, the evidence demonstrates that Respondent did not take advantage of this opportunity and engaged in improper classroom behavior. The Instant Allegations During the final hearing, Petitioner presented testimony from four children, each of whom was a member of Respondent's fifth-grade music class at Parkway Elementary during 2009-2010. Collectively, the students' testimony establishes that Respondent, during music class, disparaged his pupils by calling them "stupid," "retarded," and "idiots." Respondent also told his students, at least once, that they would never get "real jobs" and would not amount to more than garbage collectors, or words to that effect.3 On another occasion, Respondent yelled at student N. while standing approximately five to twelve inches from his face. Not surprisingly, Respondent's behavior and insults were not well received by the testifying students. In particular, the comments made student E.J.V. "feel bad"; Y.G.H. was both angered and saddened; W.F. felt "really sad [and] depressed"; and K.P. was "disturbed and upset." Ultimately, Ms. Charlotte Tombline, a reading and science teacher at Parkway Elementary, learned of the misconduct while leading a classroom discussion on the topic of bullying. Specifically, one of her students asked if it was acceptable for a teacher to call students "idiots." At that point, other students chimed in——some of whom were close to tears——and revealed Respondent's misconduct to Ms. Tombline in greater detail. Ms. Tombline promptly notified the administration of Parkway Elementary, at which point an investigation ensued. The principal of Parkway Elementary (Ms. Ucola Barrett-Baxter) concluded, after interviewing some of Respondent's students and receiving complaints from parents regarding the inappropriate classroom comments, that Respondent's effectiveness was reduced to the point that he needed to be relieved of his duties. Shortly thereafter, the district removed Respondent from the classroom and notified him that it would move forward with termination proceedings. On March 9, 2010, Respondent resigned his position with the district. Other Allegation – Halloween Film Petitioner further alleges in the Administrative Complaint that Respondent intentionally violated the legal rights of student Y.G.H. by not excusing her from the viewing of a film. It is undisputed that in October 2009, Respondent presented a film to his class about Halloween music. Y.G.H., who "sometimes" considers herself a Jehovah's Witness,4 advised Respondent that she did not want to watch the film due to her religious beliefs. Although Respondent continued to play the film and told Y.G.H. that she needed to pay attention, Y.G.H. put her head on her desk and either covered her eyes or went to sleep. Respondent credibly testified during the final hearing that because the Halloween film was part of the music curriculum, he did not believe it was necessary, upon hearing Y.G.H.'s objection, to contact school administration or excuse the student from class. Respondent further testified: It -- it was a musical activity . . . which was in the Silver Burdett book which - - and I showed the film in reference to the songs that were in the Silver Burdett book at the time, and there were lots of Halloween songs in the Silver Burdett books. And that's approved by the county, approved by the state. Final Hearing Transcript, p. 145. Petitioner adduced no evidence demonstrating that Respondent's playing of the film was improper,5 nor did it prove that Respondent intentionally violated any of Y.G.H.'s legal rights.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission: Finding that Respondent violated section 1012.795(1)(g) and (1)(j), Florida Statutes, as charged in Counts Two and Three of the Administrative Complaint. Finding that Respondent violated rule 6B-1.006(3)(a) and (3)(e), as charged in Counts Four and Five. Dismissing Counts One and Six of the Administrative Complaint. Suspending Respondent's teaching certificate for 60 days. DONE AND ENTERED this 28th day of June, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2011.
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment pursuant to Sections 231.36(1)(a) and 231.35(6)(a), Florida Statutes.
Findings Of Fact Respondent has been employed as a social studies teacher at Bell High School since 1988. He is employed under a professional services contract for instructional personnel. At all times material to this proceeding, Respondent has received satisfactory performance appraisals. He was selected Bell High School Teacher of the Year and Gilchrist County Teacher of the Year in 1996. Respondent's competency as a teacher is not at issue here. It is undisputed that Respondent is an effective teacher except as alleged by Petitioner in this case. 1998/1999 School Year On January 26, 1999, Superintendent Thomas (Superintendent) wrote a letter recommending Respondent for the James Madison Fellowship Program. In the letter, the Superintendent stated that Respondent is an outstanding teacher who is academically strong in the field of social studies, American History, and American Government. The letter recounts Respondent's involvement as the senior class sponsor and in developing a cultural exchange program and a junior achievement program. Respondent was the senior class sponsor in the Fall of 1998. In the first days of school, Respondent prepared and presented the seniors with a detailed letter containing information, including, but not limited to, officer duties and responsibilities. The section on officer duties and responsibilities stated, in part, that the senior sponsor reserved the right to remove officers for incompetence or inappropriate behavior. Subsequently, a certain female student was elected senior class president. She and Respondent had a personality conflict from that time forward. Part of the problem involved the student's initiation of class projects without Respondent's approval, which was contrary to Respondent's procedures outlined in the letter referenced above. Respondent often found fault with the senior class president's performance of her duties and her inability to devote full time to her elected position because of extracurricular activities. On several occasions, Respondent made comments to the senior class president that embarrassed her in front of other students and teachers, embarrassing her to the point of tears. One time Respondent told the student that he was not going to chaperon "some damn carwash" and miss his football game. The student complained to her parents about the way Respondent treated her. In November 1998, the student and her parents requested a parent/teacher conference with Respondent. The assistant principal also attended the meeting. After Respondent offered to shake the father's hand, the conversation almost immediately resulted in a heated discussion between the student's father and Respondent. During the conversation, Respondent informed the parents that he had students in his class that were more important than their daughter's feelings and that if the daughter was going to complain to her parents, she was fired from her position as senior class president. The student's father then accused Respondent of being disrespectful of the daughter and objected to Respondent's use of curse words in front of the daughter. Respondent stated that he did not consider "damn" a curse word. On November 9, 1998, the parents made a written complaint about Respondent's conduct before and after the parent/teacher conference. They requested that the letter be placed in Respondent's personnel file. Respondent responded with a letter dated November 8, 1998. He claimed that he had been summoned to the office for a meeting with a hostile parent for which he had been completely unprepared. Respondent denied that he had ever cursed the student. Respondent stated that he did not ever intend to be "bushwhacked" again. Respondent later told the principal that the student was fired as class president. The principal said that she would not be removed from her elected office. Respondent then resigned his position as senior sponsor. In January 1999, Respondent wrote a letter to the Superintendent and members of the school board. The letter outlined a series of events and incidents alleged by Respondent to represent the inadequacies of the school system. For example, the letter includes, but is not limited to, the following: (a) allegations of nepotism and incompetent teachers; (b) allegations that a student broke the nose of Respondent's daughter after a coach told her to hit the student if he sexually harassed her again; (c) allegations that a coach had walked into the girls locker room while they were changing; and (d) allegations that the coach had retaliated against Respondent by falsifying his daughter's grades because Respondent complained about the locker room incident. Apparently the Superintendent did not reply in writing to Respondent's January 1999 letter or require any employee to write a letter of apology. Nevertheless, competent evidence indicates that the Superintendent investigated Respondent's concerns and properly resolved all issues, including the disciplining of employees where necessary. Respondent was responsible for the establishment of a World War II (W.W. II) Monument on the grounds of the Gilchrist County Courthouse in honor of the veterans who fought in that war. Respondent often invited veterans to speak in his class regarding their wartime experiences. Mr. Cody Bennett, a W.W. II veteran, spoke to Respondent's class approximately 16 times. On one occasion, the principal questioned whether Mr. Bennett had signed in at the office and whether Respondent had requested pre-approval of Mr. Bennett's presentation according to the school's policy. Bell High School policy requires a visitor to sign in at the main office and to be approved by an administrator. The policy states that guest speakers should be pre-approved by an administrator. Mr. Bennett's class presentation was not pre-approved by an administrator. Because Mr. Bennett had not signed in at the office before visiting Respondent's classroom, Respondent signed him in as he was leaving the campus. 1999/2000 School Term In the Fall of 1999, Respondent requested another male teacher to demonstrate something for Respondent's students. The male teacher agreed and went into Respondent's class. Respondent then requested his colleague to show the class the "three point stance" of a football player. After the teacher bent over with his hands on his knees, Respondent asked the teacher to spell the word "r-u-n." As the class burst out laughing, the embarrassed teacher quickly left the class. The teacher later realized that he had been requested to demonstrate a homosexual act in front of the class. Respondent made the same request of another male teacher. After asking his colleague to show the class a football lineman's position (knees bent ready for a block), Respondent requested the teacher to spell the word "r-u-n." Once again the class burst out laughing. The second teacher did not fully understand the inappropriate joke until he left Respondent's classroom. By letter dated October 22, 1999, the principal of Bell High School wrote a letter to Respondent reprimanding him for the inappropriate sexual implication of Respondent's behavior. The principal directed Respondent to write letters to the teachers, apologizing for his conduct that constituted extreme misconduct for a teacher. The principal warned Respondent that such conduct in the future could result in discharge. The principal noted in his October 22, 1999, letter that Respondent had shown a negative attitude toward the principal as Respondent's supervisor. The principal stated that he expected Respondent to show a more positive attitude in the future. The principal placed the letter of reprimand in Respondent's personnel file. As requested by the principal, Respondent wrote letters of apology dated October 22, 1999, to the teachers. Both letters stated Respondent's regrets for causing his co- workers embarrassment for the incident that he referred to as a "spontaneous practical joke." Respondent admits that the practical joke was in bad taste and demonstrated a lapse of judgment on his part. During the hearing, the teachers testified that they maintained good professional and personal relationships with Respondent despite the incidents. One day before class in April 2000, one of Respondent's students told him that she needed to leave his class early to attend a school softball game. Respondent was unnecessarily harsh and embarrassed the student when she reminded him during class that she had to leave the class. In chastising the student, Respondent emphasized that the student did not need softball to graduate but that she did need his class. The incident was videotaped because a group of students were about to make a class presentation at the time. The student's parent wrote a letter to Respondent, complaining about Respondent's treatment of the student. The complaint alleged, among other things, that Respondent had humiliated the student about her work and yelled and screamed at the student for interrupting class when leaving for the game. Respondent replied to the parent's complaint by letter dated April 28, 2000. Respondent objected to being slandered by a student. He stated that the student's grade for incomplete work would stand as recorded. Respondent admitted that he did not like interruptions in his class due to sports events. He said he would no longer give the student a "mild scolding" to enhance her performance. According to Respondent's letter, he felt the parent's letter was hostile, unfounded, and personally insulting. On May 1, 2000, the principal advised Respondent that he was transferring the student out of Respondent's class due to the strained relationship on the part of the student. The letter requested that Respondent furnish the principal with the student's grades and a copy of the videotape of the incident involving the student's interruption of class. Respondent complied with the principal's request to provide the principal with the student's grades. There is no persuasive evidence that Respondent altered the student's grades before doing so. However, there is competent evidence that Respondent never complied with the principal's request to produce the videotape. 2000/2001 School Term Petitioner requires its teachers to maintain a portfolio containing examples of assignments and student work samples. One purpose of the portfolio is to assist supervisors in assessing the teachers' performance at the end of the year. On May 2, 2001, the teachers at Bell High School were advised that their portfolios would be due on May 18, 2001. Respondent did not turn in a portfolio by the required date. Toward the end of the 2000/2001 school year, the fire alarm was activated at Bell High School. The record is unclear whether the alarm was the result of a planned fire drill or a false alarm due to recurring problems with the fire alarm system. In any event, Respondent did not interrupt his class to take his students outside as required by school policy. In June 2001, the assistant principal at Bell High School and Respondent met to review Respondent's end-of-the- year performance evaluation. Petitioner's signature on the evaluation would have indicated only that the assistant principal had reviewed it with Respondent. During the meeting, the assistant principal explained that Respondent's score would have been higher but for Respondent's failure to turn in a portfolio and his failure to take his class outside during a fire alarm during semester exams. Respondent disagreed with the assistant principal over his evaluation, in part, because a one-point higher would have resulted in an increase in Respondent's salary. The assistant principal responded to Respondent's objections stating, "You made it easy." Because he did not agree with the evaluation, Respondent told the assistant principal that he was wasting Respondent's time and that he did not "want to listen to any more of this." Respondent then requested that he be dismissed so that he could attend a school board meeting. Respondent started to leave the room. When the assistant principal requested Respondent to return to discuss the evaluation, Respondent stated, "Why listen to more of this bullshit?" Respondent then told the assistant principal that he was a "spineless lizard." Respondent then wrote "I do not concur" on the evaluation and without signing his name on the evaluation, left the room. By letter dated June 6, 2001, the principal of Bell High School reprimanded Respondent for his inappropriate, unprofessional, and insubordinate conduct toward the assistant principal. The principal reminded Respondent that he previously had been reprimanded for his attitude to the former principal. The principal stated that such conduct in the future could result in discharge. The principal's letter of reprimand directed Respondent to write a letter of apology to the assistant principal. Before the letter was placed in Respondent's personnel file, Respondent signed it, including the statement "I spoke only the truth." On June 6, 2001, Respondent wrote a one-sentence letter of apology to the assistant principal. The letter simply stated, "I am sorry." Respondent subsequently wrote a letter dated June 8, 2001, directed to the principal and others, including the Superintendent, but not including the assistant principal. Respondent's letter listed a number of incidents in which Respondent felt that he had been unfairly treated. Respondent's June 8, 2001, letter asserts that a teacher twice called him a "son of a bitch" without receiving a reprimand. That incident involved a situation where Respondent told a teacher that he was not going to engage in a battle of wits with an unarmed person. The teacher then called him a "son of a bitch." Respondent asked his colleague to repeat what she said in front of witnesses and she did. The principal subsequently counseled with Respondent and the teacher, giving them both a verbal reprimand, and telling them not to make such inappropriate comments to each other in the future. In his June 8, 2001, letter, Respondent requested an investigation of each of the incidents. Respondent also stated in the letter that he was sorry if he hurt the assistant principal's feelings. The assistant principal never received a copy of the letter containing Respondent's apology. The Superintendent subsequently performed an investigation. By letter dated October 11, 2001, the Superintendent advised Respondent that the issues raised in his June 8, 2001, letter had been reviewed. Competent evidence supports the Superintendent's conclusion in the letter that the former or current principal at Bell High School had properly addressed each of Respondent's concerns. 2001/2002 School Term On August 6, 2001, the Superintendent signed and issued to Respondent a Professional Service Contract of Employment for Instructional Personnel of the Public Schools for the 2001/2002 school term. The contract states that Petitioner had determined that Respondent had satisfactorily completed all requirements of law for such a contract. On August 10, 2001, Respondent signed a form indicating that he had received a copy of Bell High School's Teacher Handbook. The handbook included an emergency plan that required teachers to keep their classroom doors locked each period of the day. The policy was created as a safety measure after the "Columbine" shooting spree. Respondent generally followed the locked-door policy. However, occasionally he would leave the door open so that students could go and come from the restroom without interrupting the class. Respondent also left his door open for about 10 or 15 minutes in the morning because one student from another school zone arrived late every morning and Respondent did not want the class interrupted. Despite the inconvenience to Respondent in having his class interrupted, leaving the door open was contrary to established policy. Sometime prior to August 15, 2001, Respondent extended an invitation to Brett Hillman to visit his class. Mr. Hillman was a former student of Respondent and on leave from active military service. When Mr. Hillman arrived on campus, he was arrested for trespassing on school property. Respondent subsequently wrote a letter dated September 14, 2001, to the county judge assigned to hear the criminal trespass case against Mr. Hillman. Respondent's letter explained to the judge that he felt responsible because he had neglected to have Mr. Hillman's visit to the campus approved through the office. An assistant state attorney subsequently wrote a letter dated October 18, 2001, advising the principal that Mr. Hillman's case was resolved in a deferred prosecution procedure. The assistant state attorney explained the problems associated with the prosecution not being aware of Respondent's invitation for Mr. Hillman to visit Respondent's classroom. One of Respondent's classes in the Fall of 2001 was an eighth-grade American History class. The students ranged in ages from 14 to 17. The following incidents occurred with students in that class. Several times Respondent asked students if they had a date for the weekend. If the student replied that he or she did not, Respondent would respond, "Oh, I didn't think so" or "Ha-Ha, I didn't think so." On one occasion, Respondent replied, "I figured not because you're so ugly." The regularity in which Respondent made these statements and manner in which the students understood them indicates that the students were not offended and understood that Respondent was joking. On at least one occasion, Respondent discussed the difference in Democrats and Republicans with two of his students. Respondent told the students that Democrats are asses, not donkeys, and Republicans are elephants. The evidence is not clear and convincing that Respondent made this comment intentionally to slander or make a profane statement about either of the political parties. At times, Respondent used inappropriate language in an attempt to motivate his students individually. For example, Respondent called one student who was rather large, "Bigun," meaning no disrespect to the student. However, on at least one occasion, Respondent told "Bigun" that he was lazy and should drop out and shovel shit if he did not want to stay in school. On another occasion, Respondent told "Bigun" to get his fat ass out of his (Respondent's) class. Respondent told a bashful student that if he did not want to participate in class, he could get the hell out of the class, drop out, and flip burgers. Respondent made this comment because the student did not want to read out loud in class. Respondent also made the following statements to students: (a) a student should drop out and get a job flipping burgers so she would not be on welfare for others to support; (b) a student should get out of school and stop stinking it up if they did not want to learn; (c) two students were a pain in the ass because they had not finished a report and did not want to learn; (d) it was bullshit for a student not to want to participate in a project; (e) a student should shut up; and (f) a student should get the hell out of here. Sometimes Respondent made inappropriate comments to the class at large. Respondent told the class he knew he was an asshole but the class would have to live with it because he did. Respondent also said he "could be a nice person, but just don't piss him off." Respondent would remind his class that if they dropped out of school and got a job, their boss would yell at them and tell them to get off their fat ass. Respondent made some of these comments in the context of a lesson on illiteracy. Nevertheless, Respondent's choice of words to make his point regarding the importance of an education in getting and keeping a good job was inappropriate. On two occasions, Respondent told a student to "get the hell out of this classroom" if the student did not want to learn. The second time that Respondent made this statement, the student left the class, spoke to the principal, and spent a couple of days in the In-School Suspension (ISS) room. When the student returned to Respondent's class, Respondent learned that the student had spoken to the principal. Respondent then stated, "All this crap is happening all over again." On another occasion, Respondent used the word "damn" in a conversation with a student. During the conversation, Respondent also stated, "[t]his is my class and I'm running the show here. And if you don't want to go along with it, you can get out." After making this statement, another student in the same area of the classroom started laughing and making fun of the first student. In discussing the First Amendment to the United States Constitution, Respondent told his students that they could say anything because they had a right to freedom of speech. To make his point, Respondent told the class that they could curse each other or him outside of class and he would not write them up because of their right to speak freely. However, there is no clear and convincing evidence that Respondent condoned student use of curse words in class. On September 11, 2001, the atmosphere in Respondent's class was emotionally charged as everyone learned about the attack on New York City. Later in response to a student's questions, Respondent used the words "rag heads," referencing the terrorists responsible for the collapse of the World Trade Center towers. Respondent used the same terms in discussing the terrorists with the principal. In the Fall of 2001, one eighth-grade student complained to his mother that Respondent was singling him out and embarrassing him in class. The mother told her son to tough it out for another week because Respondent might have been having a bad day. The student later complained again to his mother about Respondent's embarrassing treatment in the classroom. Based on the student's repeated complaints, the mother sent a message to Respondent asking him to call at his convenience. After receiving the message, Respondent immediately returned the mother's call. During the conversation, Respondent stated that the student was "not completing his work. I chewed him out really good yesterday so maybe he'll do something today." When the mother inquired about the student's allegations that Respondent was singling the student out in class and embarrassing him to the point of tears in front of the other students, Respondent replied, "Yes, that's true, but I am a hard teacher and I am not gonna cuddle and baby [the student] in my classroom. He either does what I say or he fails." When the mother questioned whether Respondent had told his students to quit school and stop wasting Respondent's and the school's time if they did not want to work, Respondent admitted that he had made such a statement. When the mother asked Respondent not to embarrass her son in front of the class, Respondent stated, "[y]ou wouldn't call up your doctor or your lawyer and harass them, and I don't expect you to do this to me." When the mother responded that she was just trying to find out what was going on, noting that Respondent was chewing her out, Respondent replied, "If there is nothing else, I have a class to teach so you can make an appointment like everybody else" then hung up the phone. Respondent appeared to be angry when he returned to the classroom after speaking with the mother. Respondent then requested to see the student's work folder. After making a derogatory comment about the work in the folder, Respondent told the student to get it organized and tossed it down on the student's desk, causing the papers to fall on the floor. There is no clear and convincing evidence that the folder hit the student in the chest, but the incident did cause the student embarrassment in front of his classmates. The mother subsequently called the assistant principal to complain about Respondent's unprofessional behavior. Specifically, the mother stated that Respondent had hung up on her and that she wanted her son removed from Respondent's class. After receiving written complaints from the mother and her son, both of which contained allegations that Respondent used curse words in class, the assistant principal gave the information to the principal. Based on the complaints from the mother and her son, the principal initiated an investigation on October 11, 2001. He first talked to several students in the class. The students did not know why they were being questioned. Without naming Respondent, the students were asked whether any teachers used profanity in the classroom. The students named Respondent as the only teacher who did so. Each student was talked to separately, sequestered, and asked to write a statement concerning Respondent's conduct in the classroom. There is no competent evidence that the students were unduly influenced or coached regarding the content of their statements. Two students, who did not want to get involved, were allowed to return to class. The student's initial statements and the mother's statement were submitted to the Superintendent. Because the statements warranted further investigation, the Superintendent appointed a committee to look into the matter. Respondent sent a memorandum dated October 16, 2001, to the members of the school board. In the memorandum, Respondent complained that he was being harassed because students from his at-risk class were being summoned from class to provide statements regarding his classroom activities without his knowledge. According to Respondent, the administration's current investigation was consistent with past personal attacks on Respondent. Respondent demanded that Petitioner provide him with all written statements by students, teachers, and parents and any notes in the possession of administrators but not included in his personnel file. He demanded that Petitioner refer the alleged harassment to the Educational Practices Commission. He insisted that he receive prior notification of any subsequent investigations. The Superintendent appointed an outside investigator as soon as he learned that Respondent believed the investigation was politically motivated and in retribution for Respondent running against the Superintendent in the most recent election. During the investigation, Petitioner once again pulled the students who had signed previous statements from class. At that time, Petitioner requested the students to sign affidavits that their initial statements were true. The only other times that Petitioner pulled students from class in relation to this case was to speak with an investigator or attorney in preparation for trial. On one occasion a student asked to call her father. At that point Petitioner's counsel stopped talking to the student. On or about October 15, 2001, Respondent called the Superintendent at home one night, demanding copies of all documents being considered in the investigation. During this conversation, Respondent told the Superintendent that the investigation was all a bunch of crap, that the principal at Bell High School was an idiot, and that he (Respondent) was not interested in the Superintendent's bullshit procedures. When the independent investigation was completed, the Superintendent reviewed all of the information. He considered Respondent's years of service, his satisfactory performance evaluations, and his personnel file, which contained two letters of reprimand. The Superintendent concluded that termination of Respondent's employment was appropriate after considering all aggravating and mitigating factors. By letter dated October 29, 2001, Respondent was invited to a meeting to discuss the allegations against him, which at that point included misconduct in office and/or gross insubordination. Specifically, the letter stated that Respondent had: (a) used profane or obscene language; encouraged or condoned student's use of profanity; intimidated and embarrassed students; and (d) continued refusal to obey direct orders from school board personnel. The Superintendent's letter advised Respondent of his rights under the Collective Bargaining Agreement, giving him a five-day notice of the meeting scheduled for November 5, 2001. The purpose of the meeting was to allow Respondent an opportunity to rebut the allegations against him. In a letter dated November 1, 2001, Respondent objected to the meeting scheduled for November 5, 2001, because it did not provide him with a five-day notice from the time that he received the October 29, 2001, letter. Respondent also requested that the Superintendent furnish Respondent with copies of certain documents, including his personnel file, all written complaints from students, parents, and teachers, and a copy of Petitioner's policies. Respondent's November 1, 2001, letter stated that the eighth-grade class had been exploited and that the student's affidavits had been solicited under duress. There is no persuasive evidence to support these allegations. Respondent claimed that the classroom was hostile and not conducive to effective education. Respondent asserted that he was not certified to teach the eighth-grade class because it was not a mainstream class. He requested that he be assigned to teach another class for that time block. By letter dated November 1, 2001, the Superintendent rescheduled the meeting for November 7, 2001, to ensure that Respondent was given adequate notice. The Superintendent also reminded Respondent that he had been furnished a copy of his entire personnel file and copies of affidavits obtained during the preliminary investigation. The Superintendent's letter enclosed a copy of the parent's letter that initiated the investigation. The letter sets forth the conditions under which a copy of Petitioner's policies would be made available to Respondent. Finally, the Superintendent's November 1, 2001, letter denied Respondent's request for reassignment as premature. However, that request was subsequently granted. On November 4, 2001, Respondent wrote a letter to the Superintendent. The letter states, among other things, that a student had called his home to tell him that his daughter was threatening other students. Respondent demanded a written explanation from the Superintendent regarding the persons who assisted the student in using the office phone to make the call and insisting that the Superintendent investigate the incident. There is no persuasive evidence that Respondent's daughter ever threatened her classmates. Respondent attended the meeting with the Superintendent on November 7, 2001. During the meeting, the Superintendent granted Respondent's request for additional time to respond to the allegations in writing. Respondent made his written response in a letter dated November 12, 2001. In Respondent's November 12, 2001, letter, Respondent apologized for using certain inappropriate words in class but argued that technically they were not defined as "profanity." He denied that he had ever disobeyed a direct order but apologized for offending the Superintendent in a heated conversation. He denied intimidating and embarrassing students, claiming that he only administered warranted admonishments. Respondent could not recall what he had said to students about the terrorists on September 11, 2001. He condoned the division of the word "assassination" into syllables to help the students learn to spell it. He denied that he called a student fat but admitted that he may have used the work lazy. Respondent accused a student of using the word ass instead of donkey to describe Democrats, stating that he thought nothing of the student's comment at the time. By letter dated December 7, 2001, the Superintendent suspended Respondent's employment with pay. The letter stated that the suspension would be effective until Petitioner's next board meeting on December 11, 2001. Respondent and another school employee ran against the Superintendent for the elected position of Superintendent of Gilchrist County Schools in 2000. The Superintendent was reelected in the first primary. There is no persuasive evidence that the Superintendent's investigation and ultimate decision to recommend suspension of Respondent's employment was politically motivated. There have been other incidents where the Superintendent has had to discipline teachers for using profanity. There has been no situation where the Superintendent has failed to take some disciplinary action against these teachers. The type of discipline in each incident was decided on a case-by-case basis, depending on the circumstances. Petitioner has a policy entitled "Profane or Obscene Language," which states as follows in pertinent part: Under no condition shall any School Board employee be permitted to use profane or obscene language in his or her relationship with students. Any employee who uses profane or obscene language while speaking to, communicating with or in the presence of students shall be guilty of misconduct in office, conduct which seriously reduces his/her effectiveness as an employee and failure to comply with a School Board rule. On every occasion in which a violation of this policy has been brought to the attention of the Superintendent, he has issued some form of discipline. There is no policy requiring the Superintendent to inform anyone about the discipline of another teacher. During the public input period of the hearing, the general public was given an opportunity to present oral or written communications. Five individuals spoke on Respondent's behalf. Some of these witnesses could not believe that Respondent would engage in the conduct of which he was accused but conceded that if Respondent had behaved in such inappropriate conduct, it might change their opinion of him. Two citizens testified on behalf of Petitioner during the public input period. One witness was a former student of Respondent who presented credible testimony that Respondent called him a "swinging dick" on one occasion and threw the student's shoe out the window on another occasion because the student had his foot on his desk. The other public input witness testifying for Petitioner was the father of a former student. This witness presented credible evidence that Respondent engaged in degrading and humiliating behavior toward his family, by insulting them during a parent/teacher meeting. During this meeting, Respondent accused the father of not having the ability to comprehend or deal with the situation and that the father was not mentally capable of carrying on a conversation with him. Respondent used many posters as visual aides in his classroom. For example, Respondent had pictures of every president of the United States up on the walls. One of Respondent's classes in 1992 hung President Clinton's picture upside down until the assistant principal required Respondent to turn the picture right side up in 1998. Respondent routinely placed a Groucho Marx nose on the picture of the President when the class was studying about that president. There is no clear and convincing evidence that Respondent used the nose to disparage one president over another. However, there is competent evidence that Respondent did not immediately remove the nose from President Clinton's picture when the assistant principal requested him to do so. In the Fall of 2001, the principal found one poster on the outside of Respondent's classroom door. The posted depicted a crying baby and a picture of the official seal of the United States Democratic Party, with the caption "Don't be a cry baby." The principal removed the picture from Respondent's door because the principal did not believe the poster was politically neutral. In prior years, the principal twice instructed Respondent to remove a car tag from his bulletin board. The car tag showed a person urinating on President Clinton's name. The second time that Respondent was directed to remove the tag, he covered the tag with a paper containing the word "censored" on it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order dismissing Respondent from his employment as a teacher in the Gilchrist County School System. DONE AND ENTERED this 26th day of June, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2002. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Don Thomas, Superintendent Gilchrist County School Board 310 Northwest 11th Avenue Trenton, Florida 32693-3804 William H. Andrews, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 Dan Taylor Post Office Box 657 Bell, Florida 32619-0657
The Issue The issues are whether Respondent had good cause to reject the Escambia County School Superintendent's nomination of Petitioner to be principal of Woodham High School, and, if not, what relief should be granted to Petitioner.
Findings Of Fact Pensacola High School (PHS) is located in Pensacola, Escambia County, Florida. It is an inner city school of approximately 2000 students with a diverse population. Petitioner was appointed principal at PHS for the 1994- 1995 school year by Dr. Bill Malloy, the former Superintendent of Escambia County Schools. Petitioner served in that capacity until Superintendent Malloy transferred him in March of 1996 to the position of Director of Student Transfers. At all times material to this proceeding, Respondent had a policy requiring principals to report incidents of suspected child abuse immediately to the Department of Health and Rehabilitative Services (HRS)(currently the Department of Children and Families.) Another policy required principals to immediately report bomb threats to the district office and to proceed with the evacuation of the school property as instructed. Before school began in the fall of 1995, Petitioner assigned Kevin Sanders to be the teacher in charge of the In School Suspension (ISS) class. Petitioner made this assignment because Mr. Sanders previously had developed and successfully operated a similar class at PHS. The school district approved the plan at PHS for an ISS unit as designed by Mr. Sanders. Mr. Sanders also served as a weight training coach at PHS. He was not the only teacher/coach to run an ISS program for Respondent during the 1995-1996 school year. At least three other schools had coaches running their respective ISS programs in the fall of 1995. There is no persuasive evidence that the assignment of a coach to be in charge of an ISS class was in direct contravention of the Superintendent's instructions. No one ever told Petitioner that the Superintendent did not want a coach-like person in charge of the ISS class. Mr. Sanders wanted to work in the weight room at the stadium during the last period of the school day. Petitioner told Mr. Sanders that he could work in the weight room, provided he found someone to supervise his ISS class during that period. There is no credible evidence that Mr. Sanders had permission from Petitioner to take his ISS students to the stadium and leave them unattended in the bleachers. On October 16, 1995, a fifteen-year-old female student skipped school. The police returned the female student to PHS. As a consequence of her actions, the female student was temporarily assigned to the ISS class taught by Mr. Sanders. Normally, the female student attended a class for special students in the Exceptional Student Education (ESE) program. She functioned academically on a third or fourth grade level. On October 17, 1995, Ms. Sanders took his ISS class to the stadium and told them to sit in the bleachers. He then went to the weight room leaving the class unsupervised. The female student went into one of the restrooms in the stadium. She performed fellatio on a number of male students, primarily football players, in the presence of many other students. In the fall of 1995, PHS had several deans who served the general student population. Richard Sousa was the dean of students for ESE participants. He also served as the crisis teacher for the total student population at PHS. On October 18, 1995, Mr. Sousa saw a group of students outside the dean's office. When he investigated, Mr. Sousa found the female student sitting in a chair with her hands on her head. After Mr. Sousa closed the door to the deans' office, the female student stated that other students were falsely accusing her of performing oral sex with some boys. Mr. Sousa then took the female student to an ESE self-contained classroom so that she would not be harassed. Next, Mr. Sousa called the female student's mother and reported the facts as he understood them. The mother told Mr. Sousa that her daughter was not sexually active. Mr. Sousa asked the mother to pick up her daughter from school because the child was visibly upset. Later that day, Mr. Sousa reported to Petitioner that he had heard a rumor about sexual activity occurring in the stadium, on the fifty-yard line, or on the practice field. Mr. Sousa told Petitioner that other students were teasing the female student who denied being involved in any sexual behavior. After receiving this report, Petitioner directed Assistant Principal Leo Carvalis to contact Coach David Wilson, the head football coach. Petitioner instructed Coach Wilson and Mr. Sousa to investigate the rumor regarding the sexual activity. Coach Wilson talked to the football team that afternoon. The team assured him that they knew nothing of any sexual incident in the stadium, the football field, or the practice field. Coach Wilson and Petitioner discussed the situation again later that day. Petitioner told Coach Wilson to continue to listen to what was going on among the students, to ask questions, and to make his findings known. Petitioner gave other members of his staff and faculty the same instructions. Petitioner wanted to determine whether there was any truth to the rumor about the sexual incident. He wanted to discipline any students involved, including football players. However, Petitioner did not want to accuse any student, including the alleged victim, of inappropriate behavior until he had more facts. At the end of the day on October 18, 1995, Mr. Sousa did not believe that the sexual incident had occurred. He knew that special education students are often harassed, ostracized and picked on. Mr. Sousa thought the teasing would blow over and the female student could be returned to her regular classroom. Mr. Sousa expressed this opinion to Petitioner. For the rest of the week, Mr. Sousa took lunch to the female student in the ESE self-contained classroom because other students teased and pointed fingers at her. Mr. Sousa had to walk to the bus with the female student for the same reason. Nevertheless, Mr. Sousa continued to believe the rumor was false. His disbelief was based in part on the female student's persistent denials. Additionally, it was not uncommon for a rumor such as the one at issue here to prove to be unfounded. The next week, the female student requested that she be permitted to return to her regular ESE classes because she believed the teasing was over. Mr. Sousa granted the female student's request; however, after a couple of class periods, Mr. Sousa returned her to the self-contained classroom because even the special education students were saying things about her. Amanda Williams and Naomi Ferguson were guidance counselors at PHS during the fall of 1995. On October 26, 1995, Ms. Ferguson indicated to PHS Assistant Principal Sarah Armstrong that Petitioner knew about the sexual incident involving some of the football players. According to Ms. Ferguson, Petitioner was trying to cover up the situation because the football team was doing well. Later that day, Petitioner held a meeting in his office with Ms. Ferguson, Ms. Williams, Mr. Sousa, Ms. Armstrong, and Mr. Carvalis. During the meeting, Ms. Armstrong advised Petitioner that Ms. Williams had information from a male student (an informant) confirming the sexual incident but would not reveal her source because of confidentiality concerns. Petitioner asked Ms. Williams to speak with him in private. During their private conversation Ms. Williams revealed that an informant had given her information about a second male student who was involved in the sexual incident at the stadium. Ms. Williams gave Petitioner the names of both students. When he and Ms. Williams returned to the meeting, Petitioner stated, "I believe something must have happened. This is a credible witness." He also stated, "To hell with the football team. If these players can get away with this now, what will they think they can get away with in the future?" For the first time, Petitioner began to suspect that the sexual incident was factual and not an unfounded rumor. Ms. Ferguson revealed additional information about the female student at the meeting on October 26, 1995. Ms. Ferguson stated that the female student's mother intended to send her daughter to live with an uncle in Tampa, Florida. The female student did not want to make this move. The female student told Ms. Ferguson that the uncle had sexually molested her in the past. Ms. Armstrong stated that someone needed to call HRS to report the suspected sexual abuse by a family member. The group decided that HRS should also look into the allegations of sexual activity at the school. Petitioner instructed Ms. Ferguson to call HRS. He asked her to wait just long enough for someone to advise the female student's mother that an investigation was pending. There is no persuasive evidence that Petitioner ever intended to cover up the sexual incident. Likewise, he did not unreasonably delay his staff from reporting their suspicions to HRS. On October 26, 1995, Petitioner mistakenly understood that cases of suspected child abuse had to be reported to HRS within 24 hours instead of immediately. The last instructions he gave in the meeting on October 26, 1995, was to remind Ms. Ferguson to call HRS. She made that call on October 27, 1995. The female student was isolated from the general student population in the self-contained ESE classroom at PHS. Therefore, Mr. Sousa recommended at the meeting on October 26, 1995, that the school conduct an Individual Education Plan (IEP) meeting to review the female student's placement. He believed that the female student should be transferred to another school so that she could attend classes with the general population. After receiving Petitioner's authorization, Mr. Sousa contacted the Exceptional Student Education (ESE) district staff to arrange for an IEP meeting. Mr. Sousa also called the female student's mother on October 27, 1995, to advise her of his recommendation. On October 27, 1995, Petitioner talked to the male student who, according to Ms. Williams' informant, participated in the sexual incident at the stadium. The male student confirmed that the sexual incident occurred in the stadium. However, there is no evidence that the student admitted his personal involvement in the sexual activity to Petitioner at that time. The police investigation later revealed that the male student was one of the students who had participated in the sexual incident. At the IEP meeting on October 31, 1995, the entire IEP team, including ESE teachers from PHS and Woodham High School (WHS), ESE district staff, and the female student and her mother, discussed the reasons for changing the student's placement to WHS. Everyone on the IEP team, except the female student, believed that she should be transferred to a new school environment with peers who did not know her. The female student begged her mother not to permit the transfer. However, the parent agreed that the transfer was in her daughter's best interest and offered to provide transportation. On November 1, 1995 or November 2, 1995, the female student was supposed to enroll at WHS. Instead, she returned to PHS. Mr. Sousa called the mother to pick up her daughter and take her to WHS. On November 3, 1995, Mr. Sousa called the female student's mother. She stated that everything was all right with her daughter at WHS. On Monday, November 6, 1995, the female student's mother called Mr. Sousa because her daughter had run away from home. The mother wanted Mr. Sousa to be on the lookout for her daughter. During the conversation, the mother stated for the first time that the rumors about the sexual incident might be true because, despite her daughter's denials, it had been confirmed by one of her daughter's friends. Mr. Sousa informed Petitioner about the suspicions of the female student's mother. Petitioner then directed Coach Wilson to talk with the football team again. No one on the team would admit their involvement in the sexual incident. Petitioner also told the deans and the assistant principals to see if they could determine what had happened and who was involved. The efforts of the faculty and staff to verify the rumors were unsuccessful. On November 9, 1995, Petitioner received a letter from Ms. Ferguson suggesting that he was responsible for trying to cover up the sexual incident. He also received a call from Special Assistant to the School Superintendent Jerry Watson, stating that he had heard "bad things" were going on at PHS. Petitioner called a meeting with the appropriate PHS staff to discuss information about the alleged sexual incident. They reviewed information furnished by the male students and the female student's mother. During this meeting, Petitioner expressed his concern that someone in the group was acting unprofessionally by leaking confidential information about students to persons outside of PHS. Petitioner advised the group that he would try to transfer anyone who breached the students' confidentially. Petitioner did not make these comments to threaten or intimidate his staff and faculty or to cover up the sexual episode. After the meeting on November 9, 1995, Petitioner took Ms. Ferguson's letter to the district office where he met with Sherman Robinson, Deputy School Superintendent. Petitioner told Mr. Robinson about the facts leading up to the receipt of the letter. Mr. Robinson told Petitioner to contact Joe Hammons, the Superintendent's attorney, for advice as to the appropriate action. Petitioner then made an appointment with Mr. Hammons for Monday, November 13, 1995, because Friday, November 10, 1995, was a holiday. On November 13, 1995, Mr. Hammons met with Petitioner. At this meeting, Petitioner told Mr. Hammons what he knew concerning the sexual incident. Mr. Hammons then scheduled a meeting for November 14, 1995, with Petitioner, Mr. Robinson, and two members from the school district's risk management department. At the meeting on November 14, 1995, the group determined that information available from the male students and the female student's mother, justified contacting the Pensacola Police Department. Upon leaving that meeting, Petitioner contacted Sergeant Potts at the police department. The deans at PHS generally handled all disciplinary problems until they determined that a crime had been or might have been committed. At that point, the staff involved the school resource officer. In this case Petitioner relied on his staff to investigate the rumors of the sexual incident and did not involve the school resource officer. Until November 1995, Petitioner was not aware that, if the rumors of the sexual incident proved true, a crime had been committed. Shortly thereafter, Dusty Cutler of the Pensacola Police Department was assigned to investigate the sexual incident at PHS. On November 15, 1995, Officer Cutler talked to the female student who continued to deny all allegations. The female student did not admit to being involved in the sexual incident for several weeks after Officer Cutler began her investigation. Pursuant to Petitioner's suggestion, Officer Cutler also talked to the male student identified by Ms. Williams' informant as one of the participants in the sexual incident. The female student's mother told Officer Cutler that she did not want a police investigation. The mother became upset with the way Officer Cutler was talking to her. Petitioner complained to Lieutenant Knowles of the Pensacola Police Department about Officer Cutler's "abusive" behavior to the mother of the female student. From that time forward, Officer Cutler never spoke to Petitioner even though she spent six months investigating the sexual incident on a daily basis. There is no persuasive evidence that Petitioner interfered with Officer Cutler's investigation or failed to cooperate with her in any way. Officer Cutler reported the sexual incident to HRS. The agency gave her the same response they had given Ms. Ferguson, i.e., HRS would not investigate or follow the case because the sexual activity was not a rape and a family member was not involved. After Officer Cutler was assigned to the case, Petitioner was instructed by the school district to do nothing further until the police investigation was concluded. The Grand Jury released its Amended Report on Pensacola High School on April 15, 1996. The report indicted several male students involved in the sexual incident. Petitioner did not have an opportunity to discipline the students because he was not working at PHS at that time. In the spring of 1996, a number of middle school and high schools in the Pensacola area received bomb threats over the telephone. PHS received bomb threats on at least three occasions. The school evacuated to the adjoining football stadium on one occasion, to the fairgrounds on another occasion, and to Pensacola Junior College on a third occasion. On March 29, 1996, about 7:00 a.m., a school secretary, received a bomb threat call at PHS. Mr. Sousa received a second bomb threat call at PHS around 7:15 or 7:30. On both occasions the caller's voice was a raspy, young man's voice. The school secretary and Mr. Sousa recognized the voice of the caller as a young man in one of the self-contained classrooms. The student had created problems in the past. Each time he behaved improperly, the student would use his raspy voice. Mr. Sousa reported the first bomb threat to Mr. Carvalis. Mr. Carvalis called Petitioner at his home. Petitioner was not at school because he was not feeling well because he had been at the emergency room much of the night before. Petitioner instructed Mr. Carvalis to initiate a search. The search included a sweep of the stadium in case the school had to evacuate to that area. Petitioner advised Mr. Carvalis that he was on his way to the school. When Petitioner arrived at PHS, Mr. Carvalis informed him of the second threatening call. The staff again assured Petitioner that they knew the caller's identity, and that both calls had been made by the same student. The student was not at school. Therefore, Petitioner directed Mr. Sousa and the resource officer, Max Cramer, to go to the student's home and request the student's parent to bring the student to school. In the meantime, a third call was received from the same caller. Next, Petitioner phoned Deputy Superintendent Sherman Robinson. Petitioner explained to Mr. Robinson about the bomb threat and the school's discovery of the identity of the caller. Jones believed from his discussion with Mr. Robinson that his handling of the situation and his decision not to evacuate the school had the tacit approval, if not the explicit permission, of the district office. Petitioner believed Mr. Robinson concurred in his decision not to evacuate. The student with the raspy voice and his parent subsequently arrived at the school. After questioning the student, Petitioner believed the student was the caller. Petitioner decided to continue the search of the school without evacuating it. Petitioner directed Mr. Carvalis and the maintenance men to divide into teams and sweep the campus using the techniques taught by a handler of a bomb sniffing dog after previous threats. On one occasion a bomb sniffing dog and his handler came to PHS from Eglin Air Force Base in Ft. Walton. The PHS campus was so large that the dog got tired and refused to work about half way through the search. On that occasion, the search continued in the same manner employed by Petitioner on March 29, 1996. During the search on March 29, 1996, seven different groups looked for anything that was out of place. All of the deans had assigned areas where they searched trash bins, open lockers, and open classrooms. Later in the school day, Mr. Carvalis reported that the entire campus, including the portables, had been swept and nothing found. Petitioner does not dispute that he did not follow the Superintendent's policy regarding bomb threats on the day in question. Petitioner believed that he knew the identity of the caller. He also was concerned about the disruption that the bomb threats were causing to the academic programs at PHS. The students in the gifted program were preparing to take their advanced placement tests. The students in the International Baccalaureate program were studying for their exams. Additionally, March 29, 1996 was the last chance for some students to take the high school competency test before graduation. Superintendent Malloy was particularly concerned that Petitioner failed to evacuate the school. The previous day he had reiterated his policy of evacuation to all principals. However, Petitioner did not attend the meeting; one of Petitioner's assistant principals attended that meeting in his absence. On March 30, 1996, Superintendent Malloy placed Petitioner on administrative leave with pay, pending an investigation of his failure to evacuate PHS after a bomb threat. Superintendent Malloy subsequently assigned Petitioner to his current position as Director of Student Transfers. On June 3, 1996, Superintendent Malloy issued a letter reprimanding Petitioner for the following reasons: (1) failing to ensure that the ISS class had appropriate supervision; (2) failing to follow up on information regarding sexual activity in the stadium in a timely manner; and (3) failing to evacuate the school after receiving a bomb threat. In November of 1996, Jim May was elected Escambia County School Superintendent. On or about June 10, 1997, the Commissioner of Education, Frank T. Brogan, filed an Administrative Complaint against Petitioner in Education Practices Commission (EPC) Case Number 956-1609-B. This complaint alleged that Petitioner failed in his responsibilities to ensure that all students under his charge were properly supervised. The complaint also alleged that Petitioner failed to evacuate the school after receiving a bomb threat. On June 24, 1997, Superintendent May nominated Petitioner to be principal of WHS. At the time of the nomination, Superintendent May was aware of the relevant facts concerning the PHS sex incident and bomb threat incident. Additionally, he had been in contact with counsel for the Florida Department of Education regarding EPC Case Number 956-1609-B. Respondent rejected Petitioner's nomination to be principal of WHS. On a 3 to 2 vote, Respondent found good cause to reject the nomination based on the following: Among the reasons articulated by the three Board Members who voted against the nomination were, in addition to the reasons presented by the other speakers, Mr. Jones' unsatisfactory past performance of his duties when he served as Principal of Pensacola High School (which events were the subject of a grand jury report and are the subject of an administrative complaint by the Commissioner of Education now pending before the Education Practice Commission proceeding, . . . his lack of subsequent training to improve his skills in the areas in which his poor performance resulted in his 1996 removal as Principal of Pensacola High School, and his apparent violation of certain of the principles of Professional Conduct for the Education Profession in Florida, in addition to gross insubordination and willful neglect of duty in connection with the Pensacola High School incidents. In sum the three Board Members who voted against the nomination felt that Mr. Jones is presently unqualified to be a Principal. After Respondent rejected his nomination, Petitioner told Superintendent May that it was unfair to the students of WHS to make them wait for a principal. On July 22, 1997, Superintendent May nominated another person to be principal at WHS. On or about November 6, 1997, the Florida Department of Education decided that it would withdraw its probable cause determination against Petitioner and enter into a Deferred Prosecution Agreement with him. The department requested the Education Practices Commission to close EPC Case Number 956-1609-B. On or about March 9, 1998, Superintendent May advised the Florida Department of Education that Petitioner had performed his assigned duties and responsibilities in a professional manner during the period of January 10, 1997 and March 1, 1997. Petitioner had fully complied with all district and state rules and regulations. On or about March 26, 1998, Education Commissioner Brogan determined that there was no probable cause to suspend or revoke Petitioner's teacher's certificate. Petitioner was released from his Deferred Prosecution Agreement with the department. Petitioner holds the proper state certification for a high school principal. Except for the two incidents in question, Petitioner's performance at PHS was exemplary. Under his leadership, the school population was stable and well under control. Petitioner created an atmosphere at PHS where high quality performance on the part of a number of students was recognized, encouraged, and supported by the faculty and staff. Petitioner had an excellent relationship with students, teachers, and the PHS Advisory Council. Petitioner genuinely cared for the health, safety and welfare of the students at PHS. He was concerned more about the feelings and self-esteem of the students than with winning academic and athletic competitions, and he did not make accusatory judgments about his students until he had the necessary facts and proof to support those accusations.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That Respondent enter a Final Order finding that there is no good cause to reject Superintendent May's nomination of Petitioner to be principal at WHS, promoting him to that position, and awarding him any back pay to which he may be entitled. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact At all times material to this proceeding, Respondent was a music teacher at Lehigh. His primary areas of interest and teaching responsibility were vocals and keyboard, and he taught varying levels and types of chorus and piano/keyboard classes. Respondent also was very proactive in initiating and coordinating extra-curricular music programs and competitions for the benefit of his music students. Respondent received a bachelor's degree in music education, with a choral emphasis, from Florida A & M University (FAMU) in 2002. He completed a summer master's program at the University of Florida and received his master's degree in music education in 2010. Respondent is a certified educator in music, K through 12, meaning that he is qualified to teach music at all levels from kindergarten through 12th grade. Respondent has been employed by Petitioner since August 5, 2002, but has only been at Lehigh since the 2008-2009 school year. Respondent was the choral director at Dunbar High School for three years; music teacher at Orange River Elementary for one year; and music teacher at Orangewood Elementary for two years. Respondent testified that these frequent transfers were his idea, and there was no evidence to the contrary. Respondent testified that he left Dunbar High School because that school's music program downsized, and the school wanted to hire a music teacher whose emphasis was on band, instead of chorus, so he requested a transfer elsewhere and Orange River Elementary was what was available. Respondent testified that things did not work out there between the administration and him, so he transferred to Orangewood Elementary. However, Respondent did not feel challenged teaching music to elementary school students, and so he requested a transfer to Lehigh when the music teaching position opened up. Respondent testified that he believes his talents are best used in a high school setting, where he can work with talented singers and pianists to prepare them for college and professional careers. By all accounts, Respondent is a very talented musician. His performance evaluations show that he was generally considered a satisfactory teacher throughout his years in Petitioner's employ; some areas needing improvement tended to balance out with other areas in which his performance was above average. Petitioner's performance as a teacher is not in question in this proceeding. Instead, what is in question in this proceeding is Respondent's conduct with several female students. This matter first came to Petitioner's attention when Douglas McKeever, assistant principal at Lehigh, contacted Petitioner's Department of Professional Standards and Equity (DPS), which is responsible for investigating allegations of misconduct by school district employees and making recommendations to the superintendent as to discipline. Mr. McKeever informed the DPS that he had received information regarding possible inappropriate physical contact by Respondent with several female students. At DPS' direction, on November 3, 2011, Mr. McKeever conducted interviews of two students, P.P. and B.G., who alleged they were subjected to Respondent's inappropriate physical contacts, and one student, M.M., who was a witness to one student's encounter with Respondent. Mr. McKeever had these three students summarize what they told him in written statements. He provided this information to DPS. The students' statements were reviewed by DPS, and based on the seriousness of the allegations, Respondent was suspended with pay and benefits on November 7, 2011. Thereafter, the allegations were investigated by DPS' chief investigator, Craig Baker. Mr. Baker took the written statement of an additional student, C.R., who had been identified as someone who had allegedly been subjected to Respondent's inappropriate contacts, but who had not been present when Mr. McKeever conducted the initial student interviews. As part of his investigation, Mr. Baker made inquiries to identify any other alleged victims or witnesses. After the investigation was completed, a pre- determination conference was held on December 7, 2011, at which Respondent was given an opportunity to present his side of the matters described in the student statements, which were provided to him. Respondent was represented by counsel at that conference. The results of the investigation and pre-determination conference were then reviewed and discussed by the school district's chief human resources officer, the head of the DPS, other human resources staff, and counsel for the school district, to formulate a recommendation. The recommendation was to terminate Respondent. Respondent was informed of the recommendation and was advised that he was suspended without pay or benefits, effective December 19, 2011, pending a final determination as to whether Respondent would be terminated. The Petition for Termination of Employment sets forth the alleged conduct by Respondent on which Petitioner relies to establish the charges of misconduct in office and policy violations. The alleged misconduct involves three different students; the findings with respect to the allegations for each student are addressed in turn below. P.P. P.P. is a 15-year-old female. In the 2011-2012 school year, P.P. was in the tenth grade at Lehigh. Respondent testified that P.P. was "one of the best singers." As a ninth- grade freshman during the 2010-2011 school year, P.P. took Respondent's beginning chorus class. There were approximately 20, mostly-freshmen, students in this class, about three-quarters of whom were female. During that first year in Respondent's chorus class, P.P. sometimes would feel like she was being watched and would notice Respondent staring at her. She also observed him "checking out" other girls. The manner in which P.P. saw Respondent looking at other girls gave her discomfort, because she thought Respondent should not be conducting himself that way. As the 2010-2011 year progressed, when P.P. would get that feeling that she was being stared at, she would look up and catch Respondent looking down the v-neck of her shirt; P.P. always wore v-neck style shirts and blouses. When P.P. looked up at Respondent, he would look away. This bothered her. Respondent denied ever trying to look down P.P.'s shirt or blouse; however, he specifically recalled that she would wear v-neck type shirts and blouses. P.P. is a friendly, outgoing young lady, and as she acknowledged, it is not unheard of for her to hug a teacher. Respondent testified that while he may have hugged P.P. during her first year, there were not hugs every day, like the frequency of hugs between them in P.P.'s sophomore year. Consistent with that testimony, P.P. testified that when she began her sophomore year at Lehigh, she noticed a difference with Respondent. As she described it, she would get hugs from Respondent, but those hugs were not like other hugs. When Respondent hugged her when they were both standing, he would grab at a lower altitude than normal, considering he is taller than her, with his hands dropping down from her lower waist to the edge of her pants. These low-altitude hugs made P.P. feel uncomfortable. The hugging between P.P. and Respondent took place in his office, in the big classroom at the piano or the projector, or at the classroom doorway. There were other students around most of these times, but not for those hugs taking place in Respondent's office. P.P. described the hugs Respondent would give her in his office when he was seated and she was standing. According to P.P., Respondent would put his arm around her at a relaxed stance, "over my butt," instead of reaching his arm upward to account for their differing heights with him seated and her standing next to him. Then, when he would release back out of the hug, she would feel his hands brushing over her buttocks. Though the impropriety of these "hugs" is obvious from P.P.'s description of them, P.P. said that she was not sure if Respondent was "intentionally improperly touching" her. Respondent freely admitted hugging P.P. and others. As Respondent put it, he is "a hugger." Though there was some disagreement as to whether Respondent always initiated the hugs with P.P. (as P.P. testified) or whether Respondent only sometimes initiated the hugs with P.P. (as Respondent admitted), it was clear that there was frequent hugging going on between P.P. and Respondent during the few months of P.P.'s sophomore year prior to Respondent's suspension in November. Additionally, though there was some disagreement as to where Respondent placed his arms and hands during all of these hugs, Respondent acknowledged that he could have made "coincidental contact" with lower waists, buttocks, or other parts while releasing from hugs. P.P. described an incident that took place in October 2011, at school, in the evening after she attended a performance of The Fantasticks. Respondent was also at school after hours, as were many others, because Respondent was coordinating an all-county music competition that took place on the same evening as The Fantasticks. According to P.P., she had seen Respondent earlier that evening when she and others were milling about at intermission. There were concession stands set up by parents and other volunteers, but P.P. did not have any money. Respondent was walking by with some chips in his hands and asked P.P. if she was hungry. She said no, she was going home for dinner later. After the show, she left the "Black Box Theater," where The Fantasticks show was performed, and parted ways with her friend so she could go down the outside corridor to the parking lot where her grandmother was picking her up. P.P. ran into Respondent, and he again asked her if she was hungry and if she needed a ride home. She said that she had a ride and was going home to dinner. At that point, he hugged her in a way that she felt was even more out of the ordinary than his other hugs. He had his arms around her waist and then he moved his hands to her belt area and gripped her tightly. This hug lasted for five-to- ten seconds, until someone came out of another door and then he released her. Respondent admitted the core facts of this encounter, but disputed some of the details. According to Respondent, he was under the misimpression that P.P. had been helping him with the all-county music competition, which is why, he said, that he went up to her to hug her when he saw her leaving. Thus, he admitted to having initiated this hug, but claims it was a simple "thank-you" hug. Respondent denied any belt-gripping or tight grabbing. He thought that the hug lasted for more like two-to- three seconds, not five-to-ten seconds. Whether the hug lasted two, three, four, or five seconds, that is a long hug that could fairly be described as more of an embrace than the sort of split-second pat-hug that might be viewed as a handshake equivalent and that one could arguably accept as not beyond the bounds for a teacher. Between the time of his pre-determination conference and the final hearing, Respondent added a few details that would have been material, but inexplicably were missing from his early version of events. One new detail added by Respondent at the final hearing, which he did not offer at the pre-determination conference was that there were a lot of other people around when he hugged P.P. on the evening of The Fantasticks. He admitted that this fact was important and had no explanation for why he would not have offered this information at the pre-determination conference. Moreover, despite offering the testimony of several supportive witnesses, including two who confirmed they were concession volunteers that evening, there was no witness to testify that he or she was one of the "many people" around to see Respondent hugging P.P. The other embellishment of this incident at the final hearing was Respondent's new claim that his hug with P.P. on the night of The Fantasticks was the last time they hugged, because he "told her that it wouldn't look appropriate."2/ Respondent testified that "it concerned me that P.P. would think it was more than--more to our interaction than was there." Respondent's only explanation for failing to mention this detail at his pre-determination conference was: "I thought about it, but I didn't think, you know, I needed to go into more detail. I would go into more detail here, if we had come to it." Respondent's testimony, offering new details about this incident that he did not provide in December 2011, was not credible. It is not credible that Respondent would have held back material details at the pre-determination conference, which was his opportunity to tell his side of the story before the decision was made whether to initiate disciplinary action. Respondent's failure to provide what would have been material details at a point when those details may have affected the decision regarding disciplinary action, suggests that those new details are not true and were made up to bolster Respondent's story. Respondent urges that P.P.'s allegations should not be believed, because she never told Respondent that she was uncomfortable with their hugs. Respondent suggests that if P.P. were truly uncomfortable after her freshman year, she never would have enrolled for advanced chorus for the 2011-2012 school year because his class is an elective.3/ P.P. never told Respondent that she did not want him to hug her and never expressed her discomfort to him. P.P. explained that she felt like she was supposed to trust her teacher, and she would feel uncomfortable saying something to him because she would feel even more uncomfortable every time she saw him after that. Acknowledging, as Respondent does, that P.P. was one of the best singers at Lehigh, it is understandable that after her freshman year, P.P. would have enrolled in Respondent's advanced chorus class, despite her discomfort. While chorus may have been technically an elective, there were no other options besides taking Respondent's classes for talented singers wanting to pursue their area of interest and talent. M.M., a 15-year-old female sophomore who was a friend of P.P.'s, was an eyewitness to one of Respondent's improper hugs with P.P. M.M. is a quiet, soft-spoken student who took Respondent's chorus classes as a freshman and as a sophomore. M.M. testified that she saw Respondent hug P.P. with his hand on her buttocks. She did not think much about that until, in conversation with P.P. and B.G, P.P. was describing an incident outside the classroom when Respondent had pulled her close and grabbed her buttocks, when B.G. piped up that that had happened to her, too. That is when M.M. told P.P. and B.G. that she had seen Respondent hugging P.P. and grabbing her buttocks. M.M. also said that C.R., a senior, told M.M. that she also had something happen with Respondent. After this discussion, M.M. went home and told her stepmother what P.P. and B.G. had said about Respondent, what M.M. had observed, and what C.R. had told her about Respondent. M.M.'s stepmother contacted Lehigh to report the matter. Immediately thereafter, on November 3, 2011, M.M., P.P., B.G., and C.R. were called down to the assistant principal's office. The assistant principal, Mr. McKeever, separately interviewed M.M., P.P., and B.G.; C.R. was not in the class when she was called. Mr. McKeever had the three girls write down what they told him in the interviews. The students were separated throughout this interview-statement process. M.M.'s written statement is consistent with her testimony, that she witnessed Respondent hugging P.P. in Respondent's office about two weeks earlier (i.e., approximately October 20, 2011), and that she saw "Mr. Sparrow growp [sic] P[.]'s butt while hugging her."4/ M.M. testified that Respondent never hugged her or made any other overtures toward her. M.M. said that she and Respondent were not close at all. In his pre-determination conference, Respondent characterized M.M. as "noble." By this, he meant that M.M. may have offered to support the allegations of P.P. and B.G. to help them out and be their friend after seeing the other students treating P.P. and B.G. badly after their allegations against Respondent came to light. However, M.M.'s statement came before any allegations against Respondent came to light; indeed, M.M. was the catalyst for the information coming to light by telling her stepmother, who reported the matter to the school. Trying another tack to cast doubt on M.M.'s testimony, Respondent suggested that perhaps M.M. was just looking to share in the spotlight by testifying against him. He added that M.M. had academic troubles in his keyboard class and was not a very good student. However, M.M. transferred to a different school shortly after Respondent was suspended and was not at Lehigh any longer when she testified in this case. Respondent's attempts to discredit M.M. were ineffective. B.G. B.G. is a 15-year-old female, who was P.P.'s best friend and a fellow sophomore at Lehigh in the 2011-2012 school year. From the first time B.G. met Respondent in her freshman year taking his beginning chorus class, B.G. observed that Respondent looked at girls in ways she thought were inappropriate for a teacher, such as "checking them out" when they turned away or staring at girls' chests when standing together talking. B.G. did not discuss her observations with P.P. that year. However, she did tell her mother. Besides B.G.'s observations of Respondent looking at female students inappropriately, there was nothing else about Respondent's conduct that caused B.G. concern that first year. B.G. described an incident with Respondent occurring on October 31, 2011, that made her extremely uncomfortable. Since this incident was so recent at the time B.G. and the others were interviewed and wrote statements on November 3, 2011, B.G. was able to provide a very detailed description and repeated the same details in her testimony in this case. Respondent acknowledged the incident and admitted many of the details. B.G. had to see Respondent after class to obtain a signed pass authorizing her absence from class a day or two earlier. The bell had rung, and B.G. was waiting at his office while he finished up with other students. After everyone else had left the classroom, Respondent went into his office and sat at his desk. B.G. stood in the doorway while he signed the pass. Respondent then told B.G. to "come here," directing her to stand next to him while he remained seated. B.G. had a large book bag hanging from her right shoulder, and she stood next to Respondent's left side. Respondent then reached his arm under her book bag and touched her buttocks on the way to stretching his arm under her book bag to encircle her around her lower waist area. That made her very uncomfortable. She thought maybe Respondent touched her buttocks by accident; however, that was somewhat difficult to accept because as she made clear, "it was not a brush past. It was like reaching around and like touching as you're going." Respondent, with his arm around B.G., started talking to her about a piano performance she had that morning at which she had gotten nervous. With Respondent's arm around B.G., he told her that she needed to get over that if she wanted to be a performer some day. Then Respondent retracted his arm, pulling it back under her book bag. This time, he "kind of grabbed as he went"--"it was pretty much a firm grasp all the way back around." This made her extremely uncomfortable and she did not know what to do, so she gave a nervous laugh. As she noted at that point, if it had been an accident, she would have expected him to quickly apologize and back away, but that did not happen. As she stated, "But if you think about it, most people, most teachers wouldn't hug a student anyways." Nonetheless, like P.P., B.G. testified that she honestly could not say that Respondent's intention was to do something inappropriate. B.G. left to go to her next class, but was preoccupied thinking about what had happened, worrying about what she was supposed to do, and talking to a boy sitting next to her about what had happened and what he thought she should do. She was concerned about whether she should report the incident to an administrator, because, as she put it, she did not want to ruin Respondent's life. B.G. told her mother about this incident that night or the next night. They discussed whether B.G. should report the incident and that it was a big deal that could ruin his life. B.G. also told M.M. about the incident and M.M. told her stepmother, who reported the matter to assistant principal McKeever, triggering the investigation that led to this proceeding. Respondent acknowledged the October 31, 2011, encounter in his office, alone, with B.G. He admitted that he was the one who asked her to come stand next to him while he was seated and that he put his arm around her despite the fact that his arm would have been aligned with her hips and rear end. His rationale was that he thought she needed comforting while he talked with her about getting nervous at her piano performance. However, it was not as if she came to see him about the performance or said anything to indicate she was upset about it when she came to his office--she just needed him to sign her absentee pass. Respondent initiated the proximity, then brought up the subject of the piano performance after he had already engaged B.G. in the "comfort" grip that did anything but comfort her. At Respondent's pre-determination conference, he admitted that B.G.'s statement describing the setting was accurate, including the fact that he was seated at his desk and beckoned her to come stand next to him, the fact that she had a book bag on her shoulder, and the fact that he reached under her book bag to put his arm around her waist. While Respondent did not admit to having purposely grabbed or touched her buttocks, he admitted that he had to get his hand back, and in pulling his hand down from B.G.'s waist and out from under her book bag, he could have brushed or touched her buttocks. Indeed, it may have been physically impossible for Respondent to retrieve his arm from across B.G.'s body and under a large book bag without his hand sliding across her buttocks. At the final hearing, four months after the pre- determination conference, Respondent modified his story regarding the October 31, 2011, incident with B.G. Respondent testified at hearing that he did not put his arm around B.G.'s waist; instead, he said that his hand was perhaps at the small of her back. Of course, from B.G.'s description, with which Respondent agreed at the pre-determination conference, the small of B.G.'s back was probably covered by her book bag. Therefore, Respondent also changed the part of his story where he had agreed with B.G.'s description that Respondent snaked his arm under her book bag. At the final hearing, he claimed that he did not reach under the book bag, because he remembered that her book bag was on her left side. Respondent reiterated that "[i]f there was any incidental contact [with her buttocks], that's what it was, in passing." Respondent's changed story was not credible. As described three days after the incident by B.G., confirmed in her testimony and confirmed in all salient respects by Respondent's admissions in the pre-determination conference, Respondent's physical contact with B.G. on October 31, 2011, was intentional and clearly inappropriate. Respondent's attempt to change the story supports the finding that he acted intentionally. Respondent attempted to eliminate the facts showing that he put himself in a position that virtually assured that his hand would have to slide across B.G.'s buttocks at least twice, once on the way out to the left side of her waist and once on the way back. Respondent's improper touching was distressing to B.G. and understandably so. B.G. described one other time earlier in the 2011-2012 school year when Respondent touched her in a way that made her uncomfortable. This incident occurred while B.G. was sitting at a piano practicing, alone, in one of the small piano practice rooms. Respondent came in and reached over her shoulders to put his hands on the keys, which he had done several times before, to demonstrate how to correctly play the piece she was practicing. In this position, his upper arms were touching her shoulders. After about ten seconds of demonstrating on the piano keys, he brought both arms back, and while doing so, his left hand touched the area of her chest right above her left breast and then continued up onto her shoulder. B.G. said that Respondent did not actually touch her breast, but it was close enough to make her feel uncomfortable, especially in such a small room with him standing right behind her and no one else there. The door to the piano practice room was open, and Respondent's hand encounter with the area above B.G.'s left breast was witnessed by C.R., who had walked by and looked in the room because she was looking for Respondent. B.G. told her mother about this incident in the piano practice room, but did not tell anyone else. B.G. did not mention this incident in her written statement, because her focus was on what she considered the more significant incident, when Respondent did not just come close to touching a private body part; he actually grabbed her buttocks, not once, but twice. When asked if she had witnessed any conduct of Respondent's with another student that she considered inappropriate, B.G. referred to the way he would always hug P.P. B.G. testified that she never saw Respondent hug other students. B.G. did not ever witness any inappropriate interaction between C.R. and Respondent, but C.R. told her about things. Lehigh has been an uncomfortable place for B.G. since Respondent was suspended in November 2011. A group of students have banded together to support Respondent, even going so far as to discuss making up "Free Sparrow" tee-shirts to wear in protest of his suspension, but they abandoned that idea when Respondent told them that they could get in trouble if they did that. There has been a lot of animosity directed to the three girls--P.P., B.G., and C.R.--who gave the interviews and statements reporting incidents of Respondent's inappropriate conduct with each of them. B.G. testified that she and the others have been accused of lying, and she cannot understand why. Even though apparently everyone knows the details of what Respondent was accused of, B.G. has not discussed the details with others, and if asked by others about the details, she has denied them because she was told she should not discuss the subject with anyone. C.R. C.R. was a 17-year-old female senior at Lehigh for the 2011-2012 school year; by now, she has graduated. She was a vocal major and took many classes over the years in chorus and piano, which were her musical areas of interest. C.R. did not attend Lehigh as a freshman, but has been there for three years and took Respondent's chorus and keyboard classes in each of her three years. C.R. did not know P.P., B.G., or M.M. before her senior year, when they were in Respondent's advanced chorus class together. The three sophomore girls described C.R. as more of an acquaintance than a friend. C.R. got along fine with Respondent and had no problems with him or his conduct in either her sophomore or junior years. By the end of those two years, C.R. had grown comfortable with Respondent, as he had been her music teacher for a while. In C.R.'s senior year, she had four classes with Respondent: two different keyboard classes, AP music theory, and advanced chorus. According to Respondent, because C.R. had two keyboard classes, he often used her as his aide during the second keyboard class, because she had already learned what she needed to in the first class. Respondent would have C.R. do copying, run to the library, and clean his office. Unlike in her first two years at Lehigh, in the first few months of her senior year, C.R. experienced numerous problems with Respondent, including improper physical contacts and inappropriate comments by Respondent. C.R. described multiple encounters with Respondent while she was playing the piano or keyboard, either in the private piano room or another practice room. At first, C.R. would be seated in a chair at the piano or keyboard playing, and Respondent, while standing, would reach one hand to the keys to show her the proper position and would rest his other hand on her chest area, below her shoulder and above her breast. When this first began in the early part of C.R.'s senior year, Respondent's "resting" hand would be towards the upper part of her chest, closer to the shoulder, but with each successive time, his hand went further and further down until it was resting on her breast. C.R. estimated that she was touched inappropriately this way by Respondent more than ten times in the first few months of the 2011-2012 school year until Respondent was suspended in November. C.R. testified that about halfway through the progression of these keyboard incidents, she was walking by the door to the piano practice room and saw through the door that Respondent was engaged in a similar hand-to-chest area encounter with B.G. Afterwards, C.R. approached B.G. and told her that Respondent does the same thing to her. C.R. said she wanted B.G. to know that she needed to tell someone because she was only a sophomore. When asked why C.R. did not tell Respondent to stop, she said, "I wouldn't know how to approach someone like that. I wouldn't, I wouldn't be able to tell you please don't touch my breast. It would make me very uncomfortable. I would rather just suck it up and deal with it." Respondent's description of his keyboard encounters was somewhat different than C.R.'s and B.G.'s descriptions, but he admitted key parts of those descriptions. Respondent explained that he frequently assisted his keyboard students while they are seated in a single chair at a piano or keyboard. Respondent chooses to remain standing, instead of pulling up another chair. Respondent emphatically denied standing behind his students; he claims to have always stood next to the playing student. However, Respondent admits that he would reach over the student (from the side) and lean over to the keyboard to demonstrate with one hand how to position the fingers on the keys. Respondent also admits that providing assistance this way puts him in a precarious position, so that he has to use his other hand to brace himself on the student's shoulder. Respondent said that he puts his hand "on their shoulder that's nearest me or on the shoulder that's on the opposite side of me," which means that Respondent would put an arm around the playing student, a strange way of bracing himself with his hand on their far shoulder. Thus, Respondent admits regularly touching C.R. and B.G., and presumably all of his other keyboard students, with his hand braced on their shoulders for the duration of the piece the student is playing. The only part Respondent disputes is the hand slippage from its shoulder perch down to the chest area in B.G.'s case, and still further down to the breast in C.R.'s case. However, C.R.'s and B.G.'s testimony was otherwise undisputed, and each of their stories was corroborative of the other's. Respondent's denial was not credible. In addition to the keyboard encounters, on multiple occasions in the few months before Respondent was suspended, C.R. would go to see Respondent in his office and he would ask her to come stand by him when he was sitting at his desk. When C.R. complied, Respondent would wrap his arm around her waist and rub or stroke her buttocks and thigh, while showing her something on the computer or telling her something he wanted her to do. C.R. estimated that these office encounters occurred ten or 15 times, until C.R. started trying to avoid going to his office or ignore his requests to come stand next to him. C.R. also began leaving Respondent's classroom between classes, instead of just staying in the room where she also had her next class with Respondent. To avoid encounters with Respondent between classes, C.R. would wait in the bathroom until students for the next class would arrive, and then she would join them for her next class. When asked whether she knew if Respondent intentionally touched her inappropriately, C.R. responded: "I think if a man touches you on your breast and on your hips and boob and your butt that he is being inappropriate." Once again, Respondent admitted frequent encounters with C.R. in his office, because, after all, he put her to work cleaning it and running errands for him. In addition, Respondent admitted that he would make physical contact with C.R., putting his arm around her while she stood next to him when he was seated at his computer. Once again, Respondent's description of these encounters stopped a bit short of C.R.'s version. According to Respondent, he would reach his arm (awkwardly) around and upward so that he could pat C.R. on her back for emphasis as he showed her something on the computer or showed her paperwork that he wanted her to copy. Once again, Respondent testified that although it was possible that his hand had an accidental encounter with C.R.'s buttocks, any such accident was just that-- accidental. C.R. also described Respondent's inappropriate conduct one day in her AP music theory class, in the presence of four or five other students. On that day, any time C.R. had a question or needed help, Respondent made her hug him before she could ask her question. Respondent also kissed her forehead when she answered a question correctly. She found this behavior objectionable. Respondent did not address this aspect of C.R.'s testimony, which stands unrebutted. C.R. also recounted her discomfort with Respondent's running brassiere commentaries. This string of incidents started during homecoming week, when there was a celebrity dress-up day on which C.R. went to class wearing an outfit that featured a neon-colored bra. Respondent made a joking comment, saying something like, "C., why is your bra so bright?" C.R. did not take this comment in the wrong way, because Respondent said it jokingly. What bothered C.R., however, was the progression of Respondent's brassiere comments and touchings that followed after that day. For example, when C.R. wore a low-cut or v-neck shirt, Respondent stood above her and looked down her shirt, and made comments such as, "I'm glad you're not wearing your neon bra today"; or "this bra is much nicer." Once when C.R.'s bra strap was showing, Respondent pushed the bra strap over and repeated one of the comments about the color of her bra. Respondent gave a slightly different story. He testified that after the neon bra joke, on another day when C.R.'s shirt had slipped and exposed her bra strap, he moved her shirt to cover up the bra strap, while commenting that he was glad she was not wearing the neon bra today. Respondent's version is almost as bad as C.R.'s description. Respondent has no business rearranging clothing of his female students in such a personal manner, nor commenting on their intimate apparel. Respondent often gave nicknames to his students, naming them some kind of "smurf" that suited them, such as "good singer smurf." C.R. described an encounter with Respondent that bothered her, when he pushed up the bottom part of her shirt in the back and said, "We should call you "love handle smurf." Finally, C.R. described what she thought was the final incident with Respondent before his suspension. This incident occurred in the piano room. C.R. had gone in the room between classes when no one else was there. She was tired from soccer practice, so she moved several chairs together so they were touching. She laid down across the seats, which formed a kind of bench. Her shirt had ridden up so some of her waist was exposed, though she had a jacket on over it. Respondent came into the room, pushed up her jacket, and started rubbing her waist and sides. C.R. was uncomfortable so she jumped up, said she had to go do something, and walked out. Respondent admitted that he found C.R. lying down as she had described. Respondent testified that he used his hands to rhythmically beat on her back as he told her to get up, that it was time to get to work. Respondent denied pushing up C.R.'s jacket and he denied that his hands made contact with her skin. Respondent offered a new fact at the final hearing regarding this incident that he did not mention at the pre- determination conference. According to Respondent, after he had been beating on C.R.'s back, she commented, "oh, this feels better than my boyfriend. And at that point I stopped, because that was an inappropriate statement, and that was not the nature of any of that. I left, and that was it." He later elaborated on why he stopped: "Because that was very inappropriate, and that was not--that was not my intention to make it--for her to compare me to her boyfriend or anything like that was way above-- I mean way crossed the line." Respondent also offered his opinion that the reason why C.R. had said all these things about him was because he thinks she had a crush on him and was jealous, or felt threatened, when she saw Respondent touching B.G.'s chest while she was playing piano. This too was a new twist to Respondent's final hearing testimony that Respondent did not see fit to share at his pre- determination conference. No other testimony was offered to support Respondent's new theory; none of the witnesses testifying on Respondent's behalf were even asked if they knew about C.R.'s supposed crush on Respondent. Respondent's unsupported speculation lacks credibility, in part because C.R. was not the one to report Respondent to the school administrators; in fact, she was the last of his victims to give a statement. General Defenses An overall theme of Respondent's attempt to refute the allegations against him was that the three young ladies misunderstood his intentions, which were not sexual in nature. Respondent attempted to prove that B.G., P.P., and C.R. were impressionable and that each of them was influenced to embellish what happened because of the stories that each of them told about Respondent. This effort was ineffective. Respondent, having admitted the core facts of each of the young ladies' allegations, was not credible in his denials of some of the details, as found above. Respondent's admission of serial "accidents" suggests that the incidents were no accident at all. Respondent also attempted to cast doubt on the allegations of the three young ladies by emphasizing the visibility of his office from the classroom and the partial visibility of the classroom and the piano and keyboard practice rooms from the hall, through window panels on the tops of the doorways. Respondent also attempted to suggest that there were always students in these areas. While the testimony established that most of Respondent's inner office would be visible to persons in the classroom, the testimony also established that there were times when Respondent would be in his office with a student and no one else around. The same is true with respect to the piano and keyboard rooms--the testimony established that these rooms may have been at least somewhat visible, but others were not always around. All of the student witnesses, including the four witnesses who attempted to support Respondent with their testimony, confirmed this fact; each of them had, on occasion, been alone with Respondent. The witnesses testifying in support of Respondent think highly of him as a teacher and do not believe the allegations against him. However, their testimony lacked substance to refute the allegations in any respect. For example, all of Respondent's student witnesses admitted that they were not always with B.G., P.P., M.M., and C.R. when those four girls were in Respondent's presence. All but one of Respondent's student witnesses said that they would be surprised to hear Respondent describe himself as a hugger. One student witness never saw Respondent hug any student; another student witness said that Respondent hugged everyone. The shame of it is that Respondent has been a very good and talented teacher. Indeed, after he was suspended, each of the young ladies who made statements against Respondent stated publicly that they wished he was still teaching because he was such a good teacher (and also because they did not think much of his replacement). But each of these young ladies made clear that they were speaking only of teaching ability, and if he had actually come back to teach them, they would have felt very uncomfortable because of his misconduct and because they spoke up against him. Prior Notice Respondent makes much of the fact that the three students whose allegations are the predicate for the charge of misconduct never complained to him about his conduct, so that he could change his conduct to address their concerns. Under the circumstances found above, notice should not have been required for Respondent to realize that serial "accidents" in which his hands found themselves on the buttocks of female students and other "accidents" in which his bracing hand slipped from shoulder perches downward in the direction of the breasts of female students, was improper conduct on his part. Moreover, Respondent admitted that he was indeed on notice about Lehigh's concern with him breaching body boundaries with female students. Respondent testified that he met with Lehigh Assistant Principal Niki Carthan sometime during the 2010-2011 school year, about a student complaint. Ms. Carthan informed Respondent that a student had complained to another teacher that Respondent made her feel uncomfortable. That teacher reported the complaint to Ms. Carthan, who spoke with Respondent about it. The student who had complained was a senior who was going to apply to FAMU, where Respondent attended. Respondent invited the student to his office to pull up her application essays on his computer. According to Respondent, the student was sitting down at his computer, and he reached around her for the mouse which was on the other side of her. He claims he did not touch her, but he acknowledged that by the nature of him reaching around her to click on the mouse that was on her other side and "being in close proximity to her looking at the computer screen, it might have made her uneasy " Respondent testified that Ms. Carthan warned him to be more careful and that he needed to be "very cognizant of your spacing" when it came to students. Rather than heeding Ms. Carthan's warning, Respondent was plainly less careful, not more careful. He did not learn his lesson from his close encounter that violated body space boundaries and made the FAMU-bound student uneasy enough to complain during the 2010-2011 school year. Instead, that too-close encounter in 2010-2011 progressed to numerous incidents of improper physical contacts by Respondent, with actual touching of private body parts, making three different young ladies very uncomfortable, fearful, and anxious about encounters with the one teacher who could teach them the music they loved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lee County School Board, enter a final order terminating Respondent, Willie Sparrow's, employment. DONE AND ENTERED this 18th day of July, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 18th day of July, 2012.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a) and 6A-10.081(5)(d), as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke, suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2016). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2016). Respondent holds Florida Educator's Certificate 829054, covering the areas of Education, Leadership, Physical Education, Social Science, and Exceptional Student Education, which is valid through June 30, 2018. At all times pertinent hereto, Respondent was employed as an Exceptional Student Education Teacher at Holly Hill School in the Volusia County School District. Holly Hill School is a combined K-8 school. During the time in question, Respondent shared a small office with Ms. Pollok and Mr. Edwards. The office was formerly a teachers’ lounge/lunchroom. It still had a counter, sink, and refrigerator, and had bathrooms that continued to be used on occasion by other teachers. Each of the three teachers who shared the office had their own desk. The office also included two smaller tables at which the teachers could provide service to their ESE students when necessary. At the start of the 2013-2014 school year, Ms. Pollok knew Mr. Edwards, who had been in the ESE program, but did not know Respondent. The incidents described herein occurred between the start of the 2013-2014 school year on August 13, 2013, through late November, 2013, when Respondent was removed from the classroom. Racial Comments Over the period of time in question, Respondent made numerous statements of a racial nature. While on hall duty between classes, Respondent would occasionally call African-American children “Bebe’s kids.” The reference was to an animated television show in which “Bebe’s kids” were unruly and ill-mannered African-American children. Mr. Edwards understood the comment to be derogatory, and noted that the children hearing the comment would occasionally react, even to the point of commenting that they did not want to be referred to as such. Respondent’s statements were also heard by Ms. Burnam-Hoyt, who likewise understood the term to be derogatory, and observed that the children at the receiving end of the comment looked shocked. She advised Respondent that he should not call them that name. Ms. Pollok testified that Respondent routinely called children “nappy” during hall duty when students transition from one period to the next. The comments were directed to middle school students, whose reactions were perceived by her as being ones of humiliation or embarrassment.1/ Mr. Edwards testified that he heard Respondent refer to African-American children as “nappy,” though not with the frequency with which he called them “Bebe’s kids.” Respondent testified that he only called one child “nappy” at the request of the child, an ESE student -- though not one of his students -- who wanted to be called “napster” or “nappy.” There was no competent, substantial evidence to support that claim. No other teacher substantiated such a request, and Mr. Edwards and Ms. Burnam-Hoyt testified credibly that the term was used more broadly. In any event, as stated by Ms. Fisher, there would be no reason to address any student by that type of obviously inappropriate term, even if requested. Mr. Edwards perceived Respondent’s comments as inappropriate, and they made him uncomfortable. He believed, rightfully, that the comments made Ms. Pollok uncomfortable as well. There was no evidence that any student’s learning ability or mental health was actually adversely affected by Respondent’s racially-demeaning statements. Nonetheless, under the circumstances described herein, Petitioner proved that Respondent failed to make reasonable effort to protect students at Holly Hill School from humiliation and embarrassment, conditions reasonably understood to be harmful to their learning environment and their mental health. Sexual Comments Over the period of time in question, Respondent repeatedly made statements of a sexual nature. On occasion, when Ms. Pollok arrived to work in less than a cheerful mood, Respondent would state to the effect of “What's the matter, Pollo[]k, why are you grumpy? Am I going to have to go downstairs and talk to your husband about how to wake you up properly?” The first time he made the comment, he accompanied it with hip thrusts and grunts, i.e., sounds that people make when they're having sex, thus accentuating the sexual nature of the comment. The first time Respondent made the statement, Ms. Pollok felt awkward, left the office, and went to her husband’s classroom (he was also a teacher at Holly Hill School) where she stayed until the school day started. When he continued to make such statements on a more regular basis, it made her uncomfortable. Mr. Edwards heard Respondent make the statement to Ms. Pollok on one or two occasions. Respondent denied having ever made the comments, attributing them to Mr. Anderson, who laughingly took credit. Regardless of whether Mr. Anderson may have also made comparable statements, the testimony of Ms. Pollok and Mr. Edwards that Respondent made the statements at issue is more credible, and is accepted. Ms. Burnam-Hoyt, who enjoys a well-known and long-term relationship with her wife, would occasionally visit the office. On one occasion, while in the presence of Mr. Edwards, Respondent told Ms. Burnam-Hoyt that she looked nice that day and said “I wish you would switch teams.” Though she gave an off-hand reply, Ms. Burnam-Hoyt did not discuss her sexuality, especially in the workplace, and was offended by the comment. On several other occasions, when Ms. Burnam-Hoyt was not in the room, Respondent commented in the presence of both Ms. Pollok and Mr. Edwards that he wished “she didn’t bat for the other team.” On one occasion, when Ms. Pollok had returned from ESE training and asked Respondent about his day, he replied that “it was pretty boring until your old boss, what's her name, Mandy [Elzy], bent over and showed me her boobs.” Respondent commented, with regard to Anna Garces, that “she was spicy and he'd like to make her his consuela.” When Donna Mounts, a P.E. instructor, would come to the office, Respondent’s favorite phrase was that he “would like to mount Coach Mounts.” Respondent did not make the statement directly to Ms. Mounts, but he made it in the office on a routine basis. Respondent commented regarding Marcie Lockamy, an African-American assistant principal, that “I don’t normally do black ladies, but she’s pretty hot . . . I’d get at that.” Respondent’s denial that he made the statement, or that he even knew who Ms. Lockamy was, was not convincing. Respondent’s comments were repetitive, and he would make some statement every day. Ms. Pollok and Mr. Edwards told Respondent that he should “tone it down.” In particular, Mr. Edwards testified credibly that he advised Respondent “at different points” that his comments about women were not appropriate, not only because of his own view of the matter, but because he believed them to be disturbing to Ms. Pollok. The requests and recommendations had no identifiable effect. Mr. Anderson’s testimony in this case, apparently designed to exonerate Respondent and transfer responsibility for many of the statements to himself, was not persuasive, and in several instances, conflicted with the more credible testimony of other witnesses.2/ Respondent’s general defense to his sexual comments was that he was just “joking around,” that they occurred when he and the target of his comments “were talking and laughing and having a good time in between classes,” that they were a “jovial gesture,” and the like. He denied that they were perceived as offensive by any the persons within earshot, a statement denied by the persons exposed to his comments. Individually, Respondent’s comments could be categorized as puerile. Collectively, and over time, they rose to the degree that they created a hostile, abusive, offensive, and oppressive environment in the small office that constituted the workplace for the three teachers. Threatening Comments The Administrative Complaint alleges that, over the period of time in question, Respondent made “threatening comments to or around [Ms. Pollok].” As to comments regarding Respondent’s prior work- history as a police officer, Mr. Edwards testified credibly that they were nothing more than “experiences that people have or wanted to share.” Mr. Edwards did not take those statements as threatening. When Respondent discovered that he was being investigated by Holly Hill School, he was understandably upset. He made some comments that expressed his frustration. However, Mr. Edwards testified that Respondent did not threaten him or Ms. Pollok. Respondent admitted to being upset and frustrated, but denied either expressing, or having the intent to harm anyone. The comments, under the circumstances, were not so out of line as to objectively constitute a threat to one’s safety or welfare. Under the circumstances described herein, Petitioner did not prove that Respondent’s allegedly threatening statements created a hostile, intimidating, abusive, offensive, or oppressive environment in violation of rule 6A-10.081(5)(d). Holly Hill School’s Response Ms. Pollok complained of Respondent’s behavior to various administrators at Holly Hill School, including Mr. Strother, and went so far as to request a reassignment of her duties so as to avoid Respondent. On November 1, 2013, Mr. Strother spoke with Respondent. The conversation was “short and brief,” and non-specific, with Mr. Strother generally advising Respondent to “be cognizant of conversations you're having and what you're saying around other people.” On or about November 4, 2013, Ms. Pollok renewed her complaint to Mr. Strother about Respondent’s comments about “the ladies,” and their looks and sexual preferences. Mr. Strother could tell that the comments made Ms. Pollok uncomfortable. Mr. Edwards had also spoken to Mr. Strother regarding Respondent’s comments. As a result of those complaints, Mr. Strother sent out an email directing all teachers to have “professional conversations,” and to lead “by example with appropriate conversation.” Though the email was not specific, included other topics, and was sent to a number of Holly Hill School employees, it nonetheless should have placed Respondent on notice to heed not only Mr. Strother’s earlier advice, but also the earlier admonitions from Mr. Edwards and Ms. Pollok to “tone it down.” It did not have the intended effect. On November 20, 2013, Ms. Pollok reported Respondent’s unabated comments about women and those made towards students to Ms. Fisher. Ms. Pollok was upset and crying during their discussion. Ms. Fisher then spoke with Mr. Strother to confirm Ms. Pollok’s earlier complaints. Ms. Fisher reported the allegations to the school district, and on November 21, 2013, an investigation of Respondent’s conduct was initiated. The investigation delved into the sexually-inappropriate comments, and extended into areas that are not the subject of this proceeding, for which Respondent received a reprimand. As to the comments directed to students, which were determined to be violative of principles of professional conduct and school board policy for failing to protect students or exposing them to excessive embarrassment or disparagement, Respondent was suspended without pay for five days, and transferred from Holly Hill School.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rules 6A-10.081(3)(a) and 6A-10.081(5)(d). It is further recommended that the Education Practices Commission impose a suspension of the Respondent's educator certificate for a period of one year, and a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case. DONE AND ENTERED this 23rd day of January, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 23rd day of January, 2017.
The Issue The issue in this cause is whether Respondent's teaching certificate should be disciplined.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 418505 in the area of Music. The certificate was valid through June 30, 2002. There was no evidence that Respondent had renewed his certificate. During the 1997-1998 school year, Respondent was employed with the Sumter County School District as the band director at Central High School. Elizabeth Pooley was born on August 9, 1983. She attended West Hernando Middle School in the 1996-1997 school year. She attended Central High School as a ninth-grade student in the 1997-1998 school year. She was a member of the Central High School band directed by Respondent. Respondent met Ms. Pooley during her eighth-grade year at West Hernando Middle School. During her ninth-grade year (1997-1998) at Central High School, Respondent became aware that Ms. Pooley had a crush on him. Ms. Pooley was 14 years old. At the time he met Ms. Pooley in the 1996-1997 school year Respondent was 45 years old, married and had two minor children, one girl and one boy. Both children were around Ms. Pooley's age. In April 1998, at Central High School, Respondent wrote a note containing inappropriate sexual innuendo about Respondent having a sexual encounter with Ms. Pooley on a boating excursion with her family. The note, while somewhat hard to follow, described Ms. Pooley as a virgin, acts of masturbation by Ms. Pooley, and referenced something about a burp. Respondent gave the note to a minor female student, H.P., and told her to give the note to her sister, C.P., another minor female student in the band at Respondent's school. When the girls' mother overheard her daughters talking about the note, she took it from them and read it. Realizing how inappropriate the content of the note was for a male teacher to be writing about a minor female student, she kept the note. The next day, she turned the note over to the principal of Central High School. When the principal, Dennis McGeehan, questioned Respondent about the note, Respondent admitted writing it. However, he did not remember writing the note and could not fathom why he had written the note. At hearing Respondent claimed that he believed he had been slipped a drug in a cupcake by some students. However, he offered no credible evidence of such. Based upon this admitted misconduct, Mr. McGeehan recommended that Respondent be suspended with pay. On April 23, 1998, Respondent was advised that he would not be recommended for renewal of his employment contract with the district. Respondent resigned his position of employment on April 25, 1998, after he received the notice of his non-renewal. A copy of the note written by Respondent and an article about it were published in the St. Petersburg Times newspaper on April 30, 1998. Other news articles about the matter were also published. Ms. Pooley and her father were both interviewed about the incident and quoted in one of the newspaper articles. Both denied the incident described in the note ever occurred. After this incident, Ms. Pooley was teased at school. She was unhappy because of the teasing. Respondent continued to meet with Ms. Pooley and talk with her. At some point, the relationship evolved from mentoring to one of romance. However, other than kissing and caressing, no sexual intercourse occurred. Ms. Pooley's parents were very concerned about Respondent's involvement with their daughter. They requested he have no further contact with her. Their request was not honored by Respondent or Ms. Pooley. Eventually they moved with her approximately 2 1/2 to 3 hours away to New Port Richey, Pasco County, in order to avoid further contact between their child and Respondent and to remove her from teasing at school about the incident. Respondent, however, did not leave Ms. Pooley alone. Respondent made numerous trips from his residence in Cross City, Florida, to New Port Richey, Florida, to see her during the summer of 1998. Again her parents requested that Respondent not see their daughter. Respondent again did not comply. As a result of Respondent's contacts with Ms. Pooley in June and July 1998, her parents filed a criminal complaint with the Pasco County Sheriff's Office against Respondent. Respondent's involvement with Ms. Pooley in New Port Richey involved love notes and letters to Ms. Pooley, furtively meeting with Ms. Pooley on a number of occasions without her parents' knowledge or consent, and engaging in kissing, hand- holding, hugging, and fondling of Ms. Pooley's breasts. No sexual intercourse occurred. Several of their secret meetings took place in the parking lot of a bar called the Pasco Pussycat. In February 1999, at age 15, Ms. Pooley's parents placed her in a short-term residential run-away crisis center called the RAP House in New Port Richey. They did so because their relationship with Ms. Pooley had deteriorated due to her ongoing relationship with Respondent. While enrolled there, staff of the RAP House initiated a lewd and lascivious report to the Pasco County Sheriff's Office concerning Respondent's involvement with Ms. Pooley. In her statement to the Pasco County Sheriff's investigators, Ms. Pooley told them that beginning in June 1998, Respondent picked her up in his truck on several occasions and drove her into some woods where they kissed and held hands. After Ms. Pooley moved to Pasco County, Respondent stayed in touch with her by telephone and letters. Respondent would meet her at convenience stores and a mall. They would park and engage in kissing and petting. On one occasion, Respondent rubbed her breasts and inner thighs. Respondent would tell Ms. Pooley that he could not wait to put a ring on her finger and that they could make love. Ms. Pooley testified that she told the police officer this story because the officer had told her Respondent had been romantically involved with other students and the thought angered her. Ms. Pooley's recanting of her earlier statements is not credible. In a further effort to keep Respondent away from their daughter, Ms. Pooley's parents decided to send her to live with relatives in Kentucky. Respondent found out where she was and visited her there. Ms. Pooley eventually returned to Florida in March 2000. The day after her return to Florida she and Respondent were married. The marriage took place on March 17, 2000. Ms. Pooley was 16 years old and Respondent was 47 years old at the time of their marriage. Ms. Pooley's parents gave their legal consent to the marriage because they had finally given up on keeping Respondent away from their daughter. They did not want to lose her forever over the relationship between Respondent and her. Ms. Pooley, who could easily have graduated from high school, did not finish high school. She has since obtained her GED. To date, Ms. Pooley and Respondent remain married. She is employed at the post office. Other than her failure to graduate from high school, her poor relationship with her parents, and inability to develop free of a romantic involvement with an adult, the evidence did not demonstrate any physical or mental harm to Ms. Pooley by Respondent's actions since most of the harm, if any, is of the type that will only manifest itself in the future. The evidence was clear and convincing that by his involvement with Ms. Pooley, Respondent inappropriately gained from his status as a teacher in violation of Rule 6B-1.006(3)(h), Florida Administrative Code. The evidence also demonstrated that Ms. Pooley was unnecessarily exposed to embarrassment and disparagement in violation of Rule 6B-1.006(3)(e), Florida Administrative Code. Indeed, her parents moved to remove her from such embarrassment. Finally and most seriously, through his actions Respondent harmed Ms. Pooley in violation of Rule 6B-1.006(3)(a), Florida Administrative Code. Ms. Pooley did not finish high school and did not enjoy a normal or harmonious family relationship due to Respondent's actions. She was deprived of a normal high school experience and subjected to advances from a 45-year-old man who was infatuated with her. Such behavior is anathema to the professional requirements and primary duty of a teacher. After his resignation from Central High School, Respondent was employed as a band director at Dixie County High School in 1999-2000 school year. After marrying Ms. Pooley, he began bringing her to school with him to assure her and demonstrate that he was not romantically involved with other students. At times, Respondent allowed Ms. Pooley, who was a talented music and band student and who had helped choreograph the band's routine, to supervise and discipline his band students. Some of these students were the same age or older than Ms. Pooley. Ms. Pooley's participation in the class caused resentment in some of the students. The school's principal received complaints from both parents and students about Respondent permitting his 16-year-old wife to assume teaching responsibilities and discipline of his band students. Some students quit the band. The evidence did not show that the students who quit did so because of Respondent's actions. The principal instructed Respondent not to allow his wife to participate in his class and that his wife should not be present at the school. He received a reprimand for permitting his wife to help with his class. Respondent complied with these instructions. The evidence was not clear that Respondent lost effectiveness by permitting his wife to help with his class. However, it was incredibly poor professional judgment on Respondent's part. Respondent also allowed Ms. Pooley to use the school computer located in his office at Dixie County High School. Ms. Pooley used Respondent's school computer on May 9, 2000, to send an inappropriate email to Respondent's ex-wife at the school where she was employed. However, the evidence was unclear whether Respondent knew that his wife had used the school's computer to send his ex-wife an email. Nor was it clear that such use was against school policy, since occasional personal use was permitted by the school. Respondent again complied with the principal's instructions not to permit his wife to use the school computer. Therefore, no violation has been established with regard to the use of the school's computer, if such activity can ever amount to a violation of the licensure statutes and rules which would subject a licensee to discipline. Respondent was not recommended for renewal of his employment in Dixie County for the 2001-2002 school year. Respondent takes the position that he has not done anything wrong regarding his romance with Ms. Pooley. It does not appear that Respondent will engage in similar conduct in the future.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's Florida Educator's Certificate No. 418505 be revoked for a minimum of three years. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002. COPIES FURNISHED: Richard Averill 420 Northwest 257th Street Newberry, Florida 32669 J. David Holder, Esquire 24357 U.S. Highway 331, South Santa Rosa Beach, Florida 32459 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
