The Issue The central issue in this case is whether the Respondent committed certain acts alleged by the School Board and, if so whether those acts constitute misconduct in office, immorality, conduct unbecoming a School Board employee and/or employee misconduct, and thereby constitute just cause for the suspension and termination of Respondent's employment as a teacher.
Findings Of Fact Based on the evidence received at the formal hearing in this case, I make the following findings of fact: The Respondent, Monica Chisholm, was employed by Petitioner from 1984 until September 28, 1988, pursuant to several annual contracts. During the 1987-88 school year, while employed as a teacher at Miami Jackson High School, the Respondent was given and accepted the responsibility of a senior class sponsor, which responsibility included coordinating and preparing activities for graduating seniors. Those activities included an activity known as "Grad Nite." In her capacity as a sponsor, the Respondent was charged with the duties of collecting money from students, issuing accurate receipts for the money collected, and depositing the money with the school treasurer. At Miami Jackson Senior High School explicit procedures for the handling and accounting of money were in effect. These procedures required that: (a) money be collected only during specific times and only at specific locations, (b) money be deposited with the school treasurer on a daily basis, and (c) in no event was a sponsor to retain money in excess of $50.00 overnight. These procedures were set forth in the sponsor's handbook, which was distributed to all sponsors. The procedures were also discussed during workshops held twice each year. The Respondent was admittedly aware of these mandatory procedures. Two receipt books were issued to the Respondent for the purpose of accounting for money received from students for "Grad Nite." One receipt book was Series 500; the other was Series 600. In May of 1988, Sophia Jackson, a student who had paid the Respondent $100 towards her participation in "Grad Nite," requested a refund. The Respondent prepared a fraudulent receipt and a check requisition form for Sophia Jackson. The fraudulent receipt was prepared by photocopying, from the 600 series receipt book, the receipt that had been issued to another student, removing the other student's name, and writing the name of Sophia Jackson in place of the other student's name. The Respondent, with intent to deceive, presented the fraudulent receipt copy, along with a written request for a refund, to Ms. Charlotte Wright, the school treasurer. Ms. Wright compared the fraudulent receipt to her copy of the original receipt, noticed the difference in names, and reported the matter to the school principal, Mr. Freddie Woodson. Mr. Woodson confronted the Respondent about the altered receipt. During the course of that confrontation, it became obvious that there were irregularities in the Respondent's handling of student funds. Mr. Woodson then demanded that the Respondent turn in the two receipt books that had been issued to her. At that time the Respondent had with her only the 600 series receipt book, and she had to return to her home to retrieve the 500 series receipt book. Upon review of the two receipt books, Mr. Woodson determined that the Respondent had collected a total of $2,716 that had not been turned in to the school treasurer. The Respondent's initial explanation to Mr. Woodson was that over two thousand dollars had been stolen from her briefcase while she was absent from school due to an injury. Prior to the confrontation with Mr. Woodson, the Respondent had not made any report of a theft from her briefcase, even though she claimed to have discovered it several weeks before the confrontations. Mr. Woodson demanded that the Respondent immediately turn over any remaining money in her possession. The Respondent failed to do so. Instead, she delivered a written statement in which she admitted to having used some of the money collected from students for her own personal use. In fact, the Respondent had misappropriated to her own use all of the $2,716 she had collected and failed to turn in to the school treasurer. Thereafter, a criminal complaint was filed in the State Attorney's Office and the Respondent was charged with grand theft, a felony offense. The suspicious circumstances surrounding the Respondent's failure to account for a substantial sum of money became known to various people in the school, including Ms. Young, Ms. Timson, Mrs. Wright, Officer Covington, and members of the school clerical staff who typed or otherwise handled papers with relevant information. In addition, law enforcement personnel and other school administrators became aware of the facts regarding the Respondent's mishandling of the students' money. The Respondent's misappropriation of funds collected from students and her attempt to obtain a refund through fraudulent means constitute the exploitation of professional relationships with students for personal gain or advantage and also constitute a use of an institutional privilege for personal gain or advantage. Such conduct also impairs the Respondent's effectiveness as an employee of the school system.
Recommendation On the basis of all of the foregoing, it is recommended that the School Board of Dade County issue a final order in this case terminating the employment of the Respondent as a teacher in the Dade County Public Schools. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of May 1989. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-5040 The following are my specific rulings on all proposed findings of fact submitted by all parties: Findings proposed by Petitioner: Paragraphs 1 through 4: Accepted. Paragraph 5: Accepted in substance, with exception of last sentence. Last sentence is rejected as subordinate and unnecessary details. Paragraphs 6 through 8: Accepted in substance. Paragraph 9: Rejected as irrelevant. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as irrelevant. Paragraph 12: First two sentences rejected in part as subordinate and unnecessary details and in part as unduly repetitious. Last sentence accepted in substance. Paragraphs 13 and 14: Accepted in substance. Paragraph 15: Rejected as subordinate and unnecessary details. Paragraph 16: The substance of the last three lines of this paragraph is accepted. The remainder of the paragraph is rejected as constituting legal argument or proposed ultimate conclusions of law. Findings proposed by Respondent: Paragraph 1: Accepted. Unnumbered paragraph following paragraph 1: Accepted. Paragraph 2: Rejected as contrary to the greater weight of the evidence and as not supported by competent substantial details. (The Respondent's testimony regarding the theft of funds is simply unconvincing..) Paragraphs 3 through 5: Accepted in substance. Paragraph 6: Portion dealing with failure to properly collect and turn in funds is accepted. The remainder of this paragraph is rejected as contrary to the greater weight of the evidence. Paragraph 7: Rejected in part as constituting agreement rather than proposed findings and in part as contrary to the greater weight of the evidence. COPIES FURNISHED: Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Karen B. Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399
The Issue Whether there are sufficient grounds for the imposition of disciplinary sanctions against Respondent’s teaching certificate and, if so, the nature of the sanctions.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2016). § 1012.79(7), Fla. Stat. 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. Respondent holds Florida Educator's Certificate 484422, covering the areas of biology and mathematics, which is valid through June 30, 2017. During the 2013-2014 school year, Respondent was employed as a mathematics teacher at Oak Park. Respondent worked at Oak Park from September 25, 2013, to May 20, 2014. On May 21, 2014, Respondent was removed from her classroom as a result of the May 16, 2014, student-smoking incident (the “incident”) described herein and assigned to the school district office in a non-instructional position. Respondent was a first-year probationary teacher at Oak Park. Due to the incident, Respondent’s employment with the school district was not renewed for the following school year. Respondent is currently employed at Emerald High School in Greenwood County, South Carolina. Respondent had not been the subject of any previous complaints or disciplinary actions during her period of employment. The first session of the Oak Park school day, extending from 9:04 to 9:34 a.m., is called Knights Unite (“KU”). KU is described as: 30 minute period where healthy relationships between the students, faculty and staff of OPMS can be built. It is a time set aside for mentoring, engaging students with interactive activities to build their character, interactive activities to review content and to give each student of Oak Park someone they can trust and confide in. Respondent described the KU period as one in which she could help students to make up work, help them with independent study, allow students to meet with other teachers for help or independent study, engage in certain mandated activities, e.g., bullying lessons, and perform student-related administrative tasks. Fridays were typically independent study days in which students were allowed to make up work from the week. On Friday, May 16, 2014, during the KU period, students were involved in independent study and with filling out required address forms. Students needing to go to the media center, the guidance office, the main office, or to meet with other teachers during the KU period are given passes. Allowing students to engage in those tasks, including issuing passes for students “to get assistance or additional paperwork from a different teacher” was not contrary to Oak Park policy, nor did it violate any standard. Except for the four students involved in the incident, there was no evidence that any student left Respondent’s classroom without a pass. Petitioner suggested that the tasks being performed (or that were supposed to be performed) in Respondent’s class on May 16, 2014, were inconsistent with Petitioner’s written KU guidelines. Since the activities being performed by students, with the exception of those related to the incident, were not alleged as violations in the Administrative Complaint, compliance with the KU guidelines is not at issue. Furthermore, the evidence demonstrates that activities, such as individual mentoring or tutoring and individual catch-up work, are an appropriate use of KU period time. According to Ms. Longo, there were 18 students in Respondent’s KU class on May 16, 2014. At the time of the incident, each student had an individual desk. Currently, as depicted in the photographs in evidence, the classroom has been reconfigured with tables that seat multiple students. At some point during the May 16, 2014, KU period, a group of four of Respondent’s less responsible students huddled furtively in the back of the classroom. The two male students involved, D.L. and J.G., lit the butt of a small “Tiparello”- style cigar, and took a few quick puffs. They had their backs to Respondent’s desk and ducked down to conceal their actions. One of the two female students, J.C., in order to preserve the foolhardy act for posterity, took a cell phone video of the incident. The length of the video was a total of one minute and 51 seconds. The cigar appeared to have been first lit at the 0:05 mark. The youthful miscreants did not intend to be discovered, as evidenced by one student’s hushed statement that “I swear to God if you show anybody that [unintelligible] snitch.” That their actions were not obvious is supported by the lack of attention that they drew from other more conscientious students in the class, who did not look up or react to the act of false bravado. At the 0:17 second mark, Respondent can be seen at her desk at the front of the room attending to H.E., another student who was not involved in the incident. H.E. was generally positioned between Respondent and the cigar-smoking students, shielding Respondent from their actions. Respondent was also in the process of taking attendance. Ms. Longo testified that it is appropriate for Respondent to be at her desk to perform those tasks. Although Respondent and H.E. are only glimpsed at the 0:17 mark, it is not reasonable to conclude that H.E. simply vanished at that point, exposing the four troublemakers to Respondent’s view. Rather, some seconds had to have passed before H.E. moved away. The student’s efforts to hide the cigar and fan away the smoke confirm their efforts to avoid detection. Although J.G. coughed, his proximity to the cell phone (one or two feet) makes it impossible to tell how noticeable the cough would be from a distance. At the 0:25 mark, D.L. eyed the recording cell phone and threw down with a devil-may-care “whazzup, whazzup.” From roughly the 0:33 mark to the 0:44 mark, the youthful miscreants hurriedly hid the evidence and assumed an attitude of casual insouciance. The video then went black from the 0:43 mark to the 0:55 mark and, although the picture returned, the cell phone was clearly being concealed from the 0:55 mark to the 1:03 mark. That thirty seconds of cover and concealment is consistent with Respondent’s testimony that she got up and went over to the students’ desk area. The video resumed at the 1:03 mark and, after a few furtive sweeps of the area, clearly taken from a low vantage point, again went black from the 1:11 to the 1:18 mark. At the 1:18 mark, the video resumed and, at the 1:22 mark, J.G. is seen lighting the half-inch butt with a Bic lighter. The behavior of J.G. and D.L. demonstrated a continued effort to conceal their actions. At the 1:30 mark, the video shows that the students had been “busted.” J.G., in a display of feigned innocence, loudly proclaimed “what is that smell?” By the 1:35 mark, Respondent had called J.G. and the owner of the phone to her desk, and they dutifully complied. An unidentified student mentioned the word “perfume,” and either J.G. or J.C. spoke of “cologne” in an obvious effort to explain the unusual aroma in the room. At the 1:48 mark, Respondent advised J.C. that Respondent would need her phone for the rest of the class. Though occurring after the 1:51 end of the video, Respondent successfully confiscated the phone, which Ms. Longo confirmed was the appropriate course of action. Respondent indicated that she could momentarily smell something unusual in the room, which she attributed variously to incense, cologne, or deodorant. Due to the pervasive musty and mildewy smell in the class caused by a water leak and chronically wet carpeting, along with her blocked sinuses, she could not tell what it was. As stated convincingly by Ms. Pickens, “there were different types of smells in there on one day to the next depending on whether or not they put the fan in the classroom to dry out the carpet.” There was no evidence that Ms. Warren could see what was occurring while taking attendance and consulting with the student at her desk.2/ Petitioner’s speculation that Respondent could have (or should have) seen exactly what was happening at the back of the room was just that - speculation. After J.C.’s cell phone was confiscated by Respondent, D.L. came up with several excuses as to why he should be allowed to leave the classroom. His requests were denied. Thereafter, as Respondent was calling the office to report the incident, D.L. and J.G., followed by the girls, J.C. and C.W., left the classroom without permission. Teachers are not allowed to physically restrain students attempting to leave the classroom. Rather, the teacher is to “push the call button that’s in every classroom immediately and say that so-and-so just walked out of my class.” Respondent complied with that expectation by calling the office, which is an acceptable option. Since no administrators were available, Respondent gave the information regarding the students’ escape from the classroom to Ms. Longo’s secretary. It took a while for anyone to respond to Respondent’s call. The students returned to the classroom after about five minutes. After their return, Mr. Justus, who was the school’s athletic director and “coach” for the social studies department, and a member of Ms. Longo’s “leadership team,” came to the room. Respondent wrote referrals on D.L. and J.G., and they left with Mr. Justus. After the boys were taken from the classroom, Respondent sent an email to Mr. Wade, the associate principal and dean of discipline, and Mr. Justus to inquire about the referral of the girls, J.C. and C.W., and to let them know that she had J.C.’s cell phone. Two periods later, Mr. Wade came to Respondent’s classroom, at which time Respondent turned over J.C.’s cell phone to him. By that time, she had retrieved a cigar wrapper from D.L.’s desk, which was also turned over to Mr. Wade.3/ Ms. Peterson concluded that “[n]o evidence exists to show that Ms. Warren was ever aware that students were actually smoking a cigar in her class.” She further testified that Respondent “wasn’t aware they were smoking. She thought something was wrong, but that doesn’t mean she knew that they were smoking. That could mean that someone’s with something like a piece of paper.” On May 20, 2014, Respondent was removed from the classroom and reassigned to the school district office. Respondent’s inability to see exactly what was occurring in the back of the classroom did not prevent her from suspecting improper conduct by the students and acting on that suspicion by appropriately requesting assistance from administration, confiscating the cellular telephone of a student, and investigating the matter herself to find the wrapper. The tone of the Administrative Complaint gives the impression that J.G. and D.L. put their feet up on their desks and enjoyed a fine Cuban Presidente while under Respondent’s approving gaze. Nothing could be further from the truth. The facts show that J.G. and D.L., in a manner that was as sneaky and surreptitious as possible, lit the small cigar and, over the course of approximately 28 seconds, took a few furtive puffs. After putting it out and hiding the evidence, the miscreants repeated the act for approximately 13 seconds before being nabbed. The suggestion that Respondent neglected her duties, failed to make reasonable effort to protect her students from conditions harmful to learning or to their mental or physical health or their safety, or engaged in personal conduct that seriously reduced her effectiveness as a teacher is simply not supported by the facts of this case.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Administrative Complaint be dismissed in its entirety. DONE AND ENTERED this 17th day of November, 2016, 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 17th day of November, 2016.
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged misconduct which is set forth in an Administrative Complaint. The misconduct alleged consists primarily of allegations that the Respondent engaged in inappropriate physical touching of a female student.
Findings Of Fact M. A. is a thirteen year old student at West Miami Middle School. At the time of the alleged incident, she was twelve years of age, was approximately five feet, three inches, tall, and weighed about one hundred sixty pounds. She had gained about twenty or thirty pounds more as of the time of the formal hearing in this case. The School Trust Counselor, Diana De Cardenas, had been seeing M. A. and M. A.'s sister for eating disorder problems because both girls were somewhat overweight. The counsellor had seen M. A. on several occasions because of allegations that M. A.'s mother and M. A.'s brother were hitting her at home. Her brother did not want her to eat and when he saw her eating he would beat her. M. A. saw the counsellor because of these facts and was often upset and crying. The Respondent, Millard Lightburn, is forty-two years old and has been a teacher for over fifteen years. The Respondent is Hispanic. He previously taught school in Nicaragua and speaks both English and Spanish. The accusing child, M. A., is also Hispanic. The Respondent taught a computer application course and from time to time he would use students to help file papers and keep records. Shortly before the time of the alleged incident, the Respondent asked two students, M. A. and a male student named L. D., to help him file papers and perform other similar paperwork tasks. The student named L. D. did not come to help the Respondent on the day in question because L. D. was asked by another teacher to help with a problem in the cafeteria. On the day in question, the Respondent was having lunch while working in his classroom. M. A. was in the class alone with him helping him file papers and perform other similar paperwork tasks. This was the second day that M. A. had assisted the Respondent with the paperwork. As the work was finished, the Respondent said to M. A., "Thank you very much; thank you for your help." He put his hand on her shoulder and put his cheek next to hers and gave her a peck on the cheek in a manner that is customary and traditional among Hispanics in Dade County, Florida. The Respondent demonstrated this gesture at the hearing. This same gesture was also demonstrated by two other witnesses, Shirley B. Johnson and Assistant Principal Eldon Padgett. West Miami Middle School is about 93 percent or 94 percent Hispanic. In that school and in the Hispanic community served by the school, it is customary for people to hug and to touch one another on the cheek or to give one another a peck on the cheek. Such conduct is common at all Hispanic schools in Dade County, Florida. The gesture demonstrated by the Respondent and by two other witnesses is a customary Hispanic gesture in Dade County, Florida, and is not considered to be offensive or inappropriate by other members of the Hispanic community. The Respondent, Millard E. Lightburn, did not at any time touch the student, M. A., in an inappropriate or offensive way.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 11th day of October, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-06174 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, and 5: Accepted in substance. Paragraph 6: Accepted in substance, but with the additional findings to the effect that another student had been invited to be present at the same time as the student, M. A. Paragraph 7: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraph 8: Rejected as constituting subordinate and unnecessary details, or as irrelevant. Paragraph 9: Rejected in part as subordinate and unnecessary details and in part as contrary to the greater weight of the persuasive evidence. Paragraph 10: Accepted in substance. Paragraphs 11 and 12: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraph 13: First line rejected for reasons stated immediately above. The remainder of this paragraph is accepted in substance. Paragraphs 14, 15, 16, 17, and 18: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraphs 19, 20, 21, 22, 23, 24, and 25: Rejected as subordinate and unnecessary details. Paragraph 26: Accepted in substance. Paragraphs 27, 28, 29, 30 and 31: Rejected as subordinate and unnecessary details. Paragraph 32: The first three full lines and the first four words of the fourth line are accepted. The remainder of this paragraph is rejected as contrary to the greater weight of the persuasive evidence. Paragraph 33: Rejected as contrary to the greater weight of the persuasive evidence. Findings submitted by Respondent: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10: Accepted in substance. Paragraph 11: Rejected as subordinate and unnecessary details and as also irrelevant. Paragraph 12: Accepted in substance. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. 3rd Avenue, Suite One Miami, Florida 33129 Karen Barr Wilde, Executive Director Education Practices Commission 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues for determination are whether Respondent threatened to shoot students with a firearm located in his vehicle that he parked on campus, and whether the acts proved during the administrative hearing constitute just cause to terminate Respondent's professional services contract pursuant to Subsection 1012.33(6)a), Florida Statutes (2006).1
Findings Of Fact Respondent has taught diesel mechanics at the Ridge Vocational Technical Center (Ridge Center) in Polk County, Florida, for over 12 years. Respondent teaches diesel mechanics pursuant to a professional services contract. By letter dated May 14, 2007, the Superintendent of the Polk County Public Schools notified Respondent that she was suspending Respondent from his employment with pay. The letter also states that, on June 12, 2007, the Superintendent would recommend to Petitioner that Petitioner terminate the professional service contract of Respondent. On June 12, 2007, Petitioner followed the recommendation of the Superintendent. The letter dated May 14, 2007, is the charging document in this proceeding. The letter notifies Respondent of the alleged grounds for termination of his employment and provides Respondent with a point of entry into the administrative process. In relevant part, the stated grounds for termination of employment are: On May 11, 2007, an investigation revealed that you had a 9mm pistol in the front seat compartment of your personal vehicle. When asked if you understood that it was against School Board policy to bring a weapon on campus, you indicated that you were aware of the policy. You were arrested by the Winter Haven Police Department for having a weapon on campus. The arresting officer also indicated that further charges may be made against you regarding threatening comments that you allegedly made to the students. * * * Your conduct in this situation is aggravated by the fact that you made reference to the weapon and threatened to use it against students and by the fact that you admitted you were aware that bringing the weapon onto campus was a violation of both state law and Board policy. This was a knowing, intentional act on your part involving students and constitutes just cause for termination. It is undisputed that Respondent possessed a firearm on the Pine Ridge campus on Friday, May 11, 2007. On the morning of May 11, 2007, Respondent placed a 9mm pistol into its holster and put both items into the center console of his truck. Respondent drove the truck to work and parked the truck in the Ridge Center parking lot. The truck was parked approximately 25 feet from the school. The pistol was securely encased and not readily accessible for immediate use within the meaning of Subsections 790.001(16) and (17). The possession of a firearm on the Ridge Center campus violated the written policy of Petitioner. In relevant part, the policy provides: It is the expressed policy of the Polk County School Board that no weapons/firearms shall be taken upon school property by any one other than law enforcement personnel. . . . Petitioner's Exhibits 8 and 10. The charging document notifies Respondent of several aggravating factors that are alleged as grounds to support a finding of just cause to terminate Respondent's employment. The document alleges that the violation of the written school policy was a knowing and intentional act; that Respondent made reference to the weapon and threatened to use it against students; and that the possession of the firearm by Respondent was unlawful. The violation of the written school policy was knowing and intentional. Respondent knew of the written school policy prohibiting the possession of firearms on campus but brought the firearm to school in his truck to take with him that night to a weekend job discussed in subsequent findings. Respondent did not make reference to the firearm and threaten to use it against students. The accusing student complains that Respondent referred to the firearm and threatened to shoot students on May 10, 2007. However, there is no evidence that Respondent possessed a firearm on campus on May 10, 2007. The weight of the evidence does not support the testimony of the accusing student that Respondent threatened to retrieve his firearm from his truck and shoot Pine Ridge students on May 10, 2007. On the afternoon of May 10, 2007, Respondent was grading papers in his classroom at the Ridge Center. Several male students outside of the classroom were using long broom handles to "sword-fight." Respondent readily admits that he yelled words from his classroom on May 10, 2007, to the effect that, "I'm going to shoot all of you guys one of these days if you don't straighten up." Respondent did not make reference on May 10, 2007, to the firearm he possessed on campus on May 11, 2007. The admitted statement was not a threat to shoot students and did not expose any student to conditions harmful to his or her physical or mental health. Respondent continued grading papers, and Respondent and the students remained on campus until shortly after the school day ended at 2:00 p.m. One of the students playing in the hall on May 10, 2007, testified that Respondent said, "The next one of y'all that breaks a broomstick, I'm going to go to my truck, I'm going to get my nine and come back and shoot you." The student further testified that he asked Respondent, "You're going to shoot them?" and that Respondent replied, "Yeah, I'm going to shoot them." The testimony of the accusing student is not credible and persuasive and conflicts with material facts in the record. Respondent did not possess a firearm in his truck on May 10, 2007, when he allegedly threatened to fetch the firearm. A finding based on the testimony of the accusing student would require the trier of fact to ignore the weight of the other evidence as well as the candor, forthrightness, and cooperative nature of the testimony of Respondent. The accusing student is an older high school student with a history of discipline problems at the Ridge Center. The accusing student did not return to the Ridge Center after May 10, 2007, and, on the date of the hearing, was no longer pursuing a trade or degree in any school. He is hoping to enter a military academy within five months of the date of the hearing. Testimony from the accusing student that he did not return to the Ridge Center for fear of Respondent is not persuasive. The accusing student was a problem for other teachers and administrative staff at Pine Ridge, and the testimony of teachers and administrators shows they preferred that the student had never attended the Ridge Center. Petitioner did not prove that possession of the firearm on campus on May 11, 2007, was unlawful. Rather, the evidence and relevant legal authority discussed in the Conclusions of Law shows that the firearm was in Respondent's truck on Friday, May 11, 2007, for a lawful purpose pursuant to Subsection 790.115(2)(a)3. Respondent was scheduled to work that weekend on a truck delivery route that would take him into Liberty City, Florida, between midnight and 5:00 a.m. Respondent drove directly from the Ridge Center to his weekend job and took the firearm on his truck delivery job for self defense. Local law enforcement officials arrested Respondent for allegedly committing a third degree felony in violation of Section 790.115, Florida Statutes (2006).2 At the conclusion of the criminal investigation, not only were additional charges for threats against students not filed against Respondent, as alleged in the charging document in this proceeding, but the state attorney refused to prosecute Respondent on June 12, 2007. It is unclear from the record whether Petitioner knew of the decision of the state attorney on June 12, 2007, when Petitioner terminated Respondent's employment, in relevant part, for the unlawful possession of a firearm on May 11, 2007, and alleged threats against students. The criminal investigation began on May 10, 2007, when local law enforcement officials received an anonymous telephone complaint sometime concerning the alleged threat by Respondent. On May 11, 2007, an officer from the Winter Haven Police Department (Department) visited the Ridge Center to investigate the complaint against Respondent. The police officer questioned Respondent on May 11, 2007, and Respondent acknowledged that he had a pistol holstered and securely encased in his truck in the campus parking lot. Respondent took the officer to the truck, directed the officer to the location of the firearm in the center console, and otherwise fully cooperated in the investigation. The police officer arrested Respondent for possessing a firearm on a school campus in violation of Section 790.115. The Department conducted a full investigation, Respondent fully cooperated in the investigation, and the state attorney dismissed the charges against Respondent on June 12, 2007. Relevant legal authority is discussed further in the Conclusions of Law. At the hearing, Petitioner submitted evidence intended to prove the presence of several aggravating factors that the charging document does not allege. These un-alleged aggravating factors are that Respondent previously possessed an unloaded hunting rifle on campus in Respondent's truck; violation by Respondent had impaired Respondent's effectiveness as a educator; and Respondent failed to protect students from conditions harmful to their physical or mental health. The charging document does not provide Respondent with notice that Petitioner intended to submit evidence at the hearing of the un-alleged aggravating factors. However, Respondent did not object to questions asked during the hearing pertaining to the un-alleged aggravating factors. The ALJ admitted the relevant evidence and considered the evidence in this proceeding. The evidence supports a finding of only one unalleged aggravating factor in this proceeding. Sometime before May 11, 2007, Respondent possessed an unloaded hunting rifle in the back of his truck while the truck was parked on the campus of the Ridge Center. The events of May 10 and 11, 2007, and the prior possession of a hunting rifle did not expose any student to conditions harmful to his or her physical or mental health and did not seriously impair Respondent's effectiveness as a teacher. The testimonies of the director of the Ridge Center and a fellow teacher show that Respondent has consistently been an effective and competent teacher at the Ridge Center. Respondent has no prior discipline in his employment history.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law in this Recommended Order. DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2007.
The Issue The issue in this case is whether Petitioner returned Respondent to annual contract from continuing contract for good and sufficient reasons.
Findings Of Fact Through the 1992-93 school year, Respondent held a continuing contract with Petitioner. She has been the music teacher at Spring Creek Elementary School for 12 years. She has taught music for Petitioner for 27 years, including 26 years in elementary school. Prior to coming to Lee County, she taught for five years in Missouri and Illinois. Respondent earned a bachelor's degree in music education in 1962 from Murray State University. She has a master's degree in music education from Murray State as well. Respondent has had extensive training in music, especially chorus. She took a summer course at Westminster Choir College, where one of her instructors was Mary of Peter, Paul, and Mary. There is no question concerning Respondent's substantive knowledge of music. The factual issues in this case concern her ability to deliver this knowledge effectively to all of her students. Until three years ago, the principal of Spring Creek Elementary School was Thomas Halgrim, who was the first principal at Spring Creek. Mr. Halgrim and Respondent are on good terms. During Mr. Halgrim's ten-year tenure at Spring Creek, Respondent's performance was marginally acceptable. However, while Mr. Halgrim was principal at Spring Creek, he found it necessary to refer Respondent to the Intensive Assistance Program. This program helps teachers with major teaching problems. In Respondent's case, she needed additional work in the areas of facilitating student self-esteem and creating an environment in which students wanted to participate in music. Teachers typically remain in the program for 3-9 months; Respondent remained in the program for two school years. Patty van der Have succeeded Mr. Halgrim as principal of Spring Creek at the start of the 1991-92 school year. During the school year, she received complaints and expressions of concern from students, teachers, and parents regarding Respondent. The problems generally involved poor student morale in Respondent's classroom. Ms. van der Have discussed the possibility of the Intensive Assistance Program with the District personnel office, but they disfavored this option because Respondent had already been through the program. Instead, Ms. van der Have decided to begin the school year with observations in the hope that Respondent would make the recommended changes. On September 4, 1992, Kathleen Stephens (a/k/a Kathleen Rooker) observed Respondent. Ms. Stevens was an assistant principal. She saw that Respondent called each student individually to her desk to tell her his or her name, which she then wrote down. This task consumed 20 minutes. Afterward, Respondent reviewed class rules, which took the remaining ten minutes of the 30- minute class. Respondent was not responsible for checking attendance, but Respondent was expected to learn the names of the students. She taught 25-30 classes during the week. And the September 4 class was the first time that this class met. However, many of the children were returning from prior years, and Respondent wasted considerable time on an inefficient means of acquainting or reacquainting herself with her students. The written observation of September 4 targets two behaviors for further development: "begin work with students promptly [and] provide instructional objectives." On September 11, 1992, Ms. Stephens conducted another observation of one of Respondent's classes. The first 20 minutes of class were devoted to students individually coming up to Respondent's desk and getting a seat assignment. The last 10 minutes of class were spent passing out books and singing along with a record. Although there was little interaction between Respondent and the students, she responded several times to wrong answers by saying, "you're not looking," "pay closer attention," "you're not listening," or "your mind is elsewhere." The targeted behaviors for further development are the same as in the last observation, but add that Respondent should correct a student's mistake in a positive manner by providing cues and assistance. On September 28, Ms. Stephens conducted a third observation of Respondent. This time, Respondent was more effective in class. She had an appropriate lesson plan and followed it. However, she remained in her seat and used a pointer to direct students to items written on the chalkboard. Moving among the students can be an effective means of keeping the children on task. By late September, Ms. van der Have had received numerous complaints from parents, teachers, and students concerning Respondent. The complaints centered upon inadequate discipline among Respondent's students and a lack of focus of her music class. On October 16, 1992, Ms. van der Have observed Respondent. This was a class consisting of 12 students from the English Speakers of Other Languages (ESOL) program and four students from the Exceptional Student Education (ESE) program. The class consisted of a lecture by Respondent as to how to behave at a concert, followed by a display of posters of various musical instruments. There was little student-teacher interaction. The unsuitability of the lecture format was heightened by the classifications of the children. The ESOL students often have trouble with spoken English, and music can be an opportunity for them to learn without an emphasis on what is for them a foreign language. The ESE students were severely physically and mentally handicapped, and they too could have profited from another approach that that taken by Respondent. By the end of the class, three of the ESE students were asleep. Ms. van der Have's observation contains numerous recommendations. They include the need for student interaction initiated by asking the children questions and listening to their answers, circulating among the students, beginning each lesson with a short review, concluding each lesson with a short review, developing and following appropriate lesson plans for ESOL and ESE students, and increasing teacher awareness so as to deal with situations such as the three ESE students sleeping in the class. On October 23, 1992, Ms. Stephens observed Respondent, who again did not circulate among the students. When a child answered a question correctly, Respondent would call the child up to her desk and give him or her some stickers or passes, which tended to destroy any instructional momentum she could build up with the class. When a child answered a question incorrectly, Respondent would ignore the child rather than explore the area with the child. Again, Respondent did not follow her lesson plan. The observation form notes under targeted behaviors: Serious deficiencies continue to persist. INCREASE TEACHER MOBILITY AND CIRCULA MAINTAIN MOMENTUM. PRESENT MATERIAL CLEAR AND LIVELY MANNER, VARY INTENSITY, AND VOLUME OF VOICE, USE EYE CONTACT, SMILE, LIVELY BODY language and movement, accept positively student responses, probe for correct answer or amplify student response, use teacher withitness [i.e., awareness of all students in the classroom] to correct student behavior. The observation form requires Respondent to correct the ineffective teaching behaviors by November 13, 1992. On November 13, 1992, Charlotte Rafferty conducted the observation of Respondent. Ms. Rafferty is a principal of a fine arts magnet school in the district. She has taught music education in an elementary school elsewhere in Florida and in Texas. Ms. van der Have selected Ms. Rafferty for the observation because Ms. van der Have wanted someone with some musical background. Ms. Rafferty observed two classes of Respondent. Under "behaviors to maintain," Ms. Rafferty stated in the observation form, "nothing you are presently doing." The observation form describes in detail two classes in which the students were bored about the material being presented by Respondent. Ms. Rafferty concluded that Respondent needed to target the following behaviors for further development: Excitement, creativity, movement, proper use of instruments in classroom, challenging rhythm work for the children, interesting songs that children like, grade appropriate materials and instruments and positive interaction with the children. Ms. Rafferty listed 17 detailed recommended activities. These include adding some excitement to the class, having the district music coordinator observe and provide suggestions, use available instruments rather than just rhythm sticks, consider the needs of the children such as by including some Hispanic songs, desist from doing beat for 45 minutes as that "would bore anyone to death," use dance as a form of body movement to allow the students to feel beat, use "much more complex rhythm patterns" with fourth graders, do away with books for the entire class time, act like teaching is enjoyable, allow the children to interact more, and allow the children to use more improvisations, movement, and instruments to learn the feel of rhythm. Ms. Rafferty did not mince words in concluding the observation narrative. She stated: I would have a very difficult time holding up my head in front of these children if I gave them what you are giving them. In the best interest of the children I would hope that you would either make a drastic change immediately or retire from teaching. You are truly doing a dis-service to children. When you consider what these children say about their music experience, the poor teaching practices and poor presentations are a prostitution to the field that you a teaching. The ability to remain current takes commitment and dedication and the poor teaching that I saw is a deterrent to the advancement of music in our schools. Ms. Rafferty's allusion to what the children were saying is based on informal interviews that she conducted with them following class. On November 30, 1992, Ms. van der Have conducted a summative observation of Respondent. The previous observations were formative and intended to constitute part of a process by which Respondent and the assessor construct an assessment. The summative observation was the culmination of formative observations and represented a more comprehensive assessment of Respondent's performance. The problems that Ms. van der Have observed on November 30 were the same that had been observed previously. Respondent did not immediately begin teaching the material. Her failure to engage the children again led to misconduct. Before long, the majority of the students were disengaged and off task, even though Respondent was circulating to some degree through the class. On December 9, 1992, the district music coordinator, Jim Hinman, observed Respondent. He found that Respondent had trouble orienting the students toward classwork, maintaining instructional momentum, and keeping control of the classroom. She started class late and relied excessively on a lecture/response teaching strategy. Over time, the students' interest waned, and Respondent was reverting excessively to warnings about behavior, which further impeded any momentum. On February 18, 1993, Mr. Hinman conducted a second observation of Respondent. Although she did better in giving appropriate feedback, other problems continued from his previous observation and new problems emerged, such as spending classtime assigning seats. In general, Respondent was again unsuccessful in maintaining her instructional momentum and exciting the students. Respondent's teaching did not improve for the remainder of the school year. Her relations with administrators, some teachers, and even some students deteriorated. At one point, she confronted several children and demanded why they had complained about her. On March 23, 1993, Joseph Vetter, an assistant principal at Spring Creek, observed Respondent. He noted that Respondent was not circulating through the classroom, failed to use praise on the students, and failed to maintain effective control of the class. On March 25, 1993, Ms. van der Have gave Respondent a memorandum and performance assessment. The assessment finds that Respondent's effectiveness was, in all but one category, inconsistently practiced or unacceptable. The assessment notes that Respondent has consistently refused to meet with Ms. van der Have to discuss the areas of concern and suffers from a poor relationship with students and staff. The memorandum, a copy of which went to the superintendent, states that Ms. van der Have is recommending that Respondent be returned to annual contract for the 1993-94 school year. The memorandum adds that Respondent has one year to improve in all areas marked Unsatisfactory or Inconsistently practiced. I will be happy to schedule any assistance you may desire, such as visiting another classroom, having a teacher or Coordinator model an effective music lesson for you, providing video tapes of effective teachers teaching, selecting additional readings and/or videos for your use, discussing effective lesson plans, reviewing your discipline plan and so on. The memorandum concludes: I believe you need to reevaluate and implement the suggestions made by observers this year and reconsider accepting the assistance that you have continually refused this year. I need the students, parents and staff of Spring Creek Elementary School to receive an effective Music program. By letter dated March 30, 1993, and received by Respondent on the following day, the deputy superintendent notified Respondent that the superintendent would be recommending to the school board that Respondent be removed from continuing contract and placed on annual contract for the 1993-94 school year. The letter explains the basis for the action as inadequate performance and unwillingness to try to improve. On April 1, 1993, the superintendent filed a petition with the school board to return Respondent to annual contract for a continuing failure or refusal to use important instructional techniques. On April 13, the school board approved the action, effective July 1, 1993. By letter dated April 20, 1993, the superintendent informed Respondent of the action and advised her of her right to demand a hearing. On May 3, 1993, Respondent demanded a formal hearing. Petitioner proved good and sufficient reasons for returning Respondent to annual contract from continuing contract.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a final order reducing Respondent to annual contract for the 1993-94 school year. ENTERED on July 18, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 18, 1994. APPENDIX Rulings on Respondent's Proposed Findings 1 (except last sentence): adopted or adopted in substance. 1 (last sentence): rejected as irrelevant. 2-4: adopted or adopted in substance. 5-10: rejected as irrelevant and subordinate. 11: adopted or adopted in substance. 12-20: rejected as irrelevant and subordinate. 21 (first sentence): rejected as unsupported by the appropriate weight of the evidence except that Mr. Halgrim did try to get Respondent to focus on problem areas. 21 (remainder): rejected as irrelevant and subordinate. The issue in this case is the effectiveness of Respondent for all of her students, not just those who are already motivated when they come to class and possess exceptional musical talents. 22-24: rejected as irrelevant and subordinate. 25: adopted or adopted in substance. 26: rejected as irrelevant and subordinate. 27: rejected as unsupported by the appropriate weight of the evidence except as to substantive knowledge of music. 28-30: rejected as irrelevant and subordinate. 31: rejected as unsupported by the appropriate weight of the evidence. 32-45: rejected as irrelevant, and subordinate, and unsupported by the appropriate weight of the evidence. 46: adopted or adopted in substance except as to the last clause, which is rejected as unsupported by the appropriate weight of the evidence. 47-48: rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Daniel H. Kunkel Kunkel & Hament Suite 785, 1800 Second St. Sarasota, FL 34236 Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302 Office of the Superintendent 2055 Central Ave. Ft. Myers, FL 33901-3916 Hon. Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue The issue for determination is whether Respondent's employment as a teacher with Petitioner should be terminated for alleged willful neglect of duties and gross insubordination.
Findings Of Fact At all times material hereto, the Miami-Dade County School Board (Petitioner) was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the district of Miami-Dade County, Florida. Judith Zucker (Respondent) began her employment with Petitioner, as a teacher, in 1968 and continued her employment with Petitioner until 1972. She began her employment with Petitioner again in 1989. Respondent holds a teacher certification in elementary education. She is also certified to teach the learning disabled and mentally handicapped. At all times material hereto, Respondent was employed by Petitioner as a teacher, assigned to Little River Elementary School (Little River), Citrus Grove Elementary School (Citrus Grove), and Miami Jackson Senior High School (Miami Jackson). Little River Elementary School In August 1989, Respondent resumed teaching with Petitioner. She was employed at Little River pursuant to a continuing contract of employment. On January 8, 1991, Respondent suffered injuries to her neck and spine when she attempted to break-up a fight between two students. Despite her injury, she immediately returned to work, not losing any time from work. In November 1994, Respondent was injured again. While walking down the hall of the school, a student, for whom she was not responsible, was hanging on a door. The student pushed himself off the door and fell on top of Respondent onto a cement floor. As a result, Respondent's original injury was aggravated. During the 1994-95 and 1995-96 school years, Respondent was a Title I tutor. She tutored three to eight students at a time in reading. During the 1996-97 school year, the reading program changed. For this school year, Little River, along with some other schools, was placed on Florida's critically low school list. Petitioner initiated a program called Operation Safety Net in which schools on the critically low list began using the Successful for All/Roots and Wings program (Success for All Reading Program). The Success for All Reading Program was for students who were critically deficient in reading. Little River and Petitioner's other critically low schools began using the Success for All Reading Program for the 1996-97 school year. In the Success for All Reading Program a tutor had a group of 18 to 20 students for 90 minutes in the morning. For the rest of the day, the tutor worked one-on-one with first grade students. Respondent was not assigned to the Success for All Reading Program at the beginning of the 1996-97 school year. Respondent requested her principal to assign her to the Success for All Reading Program due to her medical condition resulting from the injuries to her neck and spine for which she was still undergoing physical therapy. The principal agreed to assign Respondent to the Success for All Reading Program because the principal wanted to make sure that Respondent was provided with the opportunity and the time to attend therapy. Respondent was assigned to the Success for All Reading Program with a modification. Respondent was allowed to assist other tutors with testing and was working in groups of two to four students, significantly smaller than the regular groups of 18 to 20 students. Using the smaller groups for Respondent caused the other morning groups to become even larger. At the time that the principal made the assignment with the modification, the principal expected the duration of the assignment to be short, but the assignment spanned the entire school year. Having groups expanding beyond the 18 to 20 students for the entire school year created a hardship in that it was counter-productive for the critically deficient readers. In the fall of 1996, Respondent was again injured. This time, Respondent was injured by a student to whom she was tutoring one-on-one. Respondent did not lose any work as a result of the injury she sustained. Respondent had now been injured by students at Little River on three separate occasions: January 8, 1991, November 1994, and the fall of 1996. Despite the injuries that she sustained, she immediately returned to work after each occurrence without any loss of time. At the end of a school year, teachers indicate what they would prefer to do during the following school year. In May or June 1997, the principal of Little River advised Respondent that she would be assigned to teach a regular class, a third grade class, for the 1997-98 school year. Respondent sought a transfer from Little River in August 1997. No transfer occurred. When Respondent returned to Little River in August 1997 for the 1997-98 school year, Respondent informed the principal that she was still in physical therapy; that she was unable to write on the chalkboard because to do so caused her to shake; and that she was, therefore, unable to return to a regular classroom. Respondent requested a return to tutoring. The principal informed Respondent that the tutors had already been assigned and that she (Respondent) was expected to return to a regular classroom. However, for the first two weeks of school, the principal allowed Respondent to tutor. The principal contacted Petitioner's Office of Risk Management1 to determine Respondent's status as to whether she was able to return to a regular classroom. Risk Management advised the principal that Respondent was cleared to return to her regular duties, to return to a regular classroom. On September 19, 1997, the principal explained to Respondent that, according to Risk Management, she was cleared to return to her regular duties and that she would be returning to a regular third grade classroom. The third grade classroom would contain no more than 29 to 33 students. Respondent informed the principal that she (Respondent) was not able to return to a regular classroom and that her doctor would have to contact Risk Management. On September 23, 1997, the principal again contacted Risk Management which again informed the principal that Respondent was cleared to return to her regular duties. The principal advised Respondent of the information that she had obtained from Risk Management. Respondent again informed the principal that she was unable to return to a regular classroom. Risk Management had also advised the principal that, if Respondent continued to insist that she was unable to return to a regular classroom, the principal should direct Respondent to leave the school's campus. The principal did as Risk Management advised and directed Respondent to leave the school's campus. Respondent complied with the principal's directive and left the campus of Little River. The Executive Director of Risk Management (Executive Director) had advised the principal to direct Respondent to leave the school's campus if Respondent insisted that she could not return to a regular classroom. He advised the principal to direct Respondent to leave the school's campus because of Respondent's medical condition. The Executive Director had reviewed Respondent's file and had become aware of a letter dated September 3, 1997, from Dr. Raul Grosz, Respondent's authorized2 neurologist. The letter stated in pertinent part: She [Respondent] has at this time chronic persistent [sic] and discomfort. I am recommending that she be placed in a non- threatening environment in which she does not have to move furniture or lift furniture whatsoever. I also feel that she is unable to carry a full class-load at this time. As a result of the letter, the Executive Director authorized the payment of workers' compensation benefits from the date that Respondent was directed to leave Little River's campus by the principal. Even though Dr. Grosz opined that Respondent was "unable to carry a full class-load," he did not state the number of students as to what represented a full class-load. However, Dr. Grosz considered a full class-load to consist of a large group of students who were not well-behaved and who were potentially dangerous. Dr. Grosz did not inform Respondent as to what he considered to be a full class-load. There was no neurological basis for restricting Respondent to a non-threatening environment or a reduced class size. Respondent requested Dr. Grosz to add the restrictions. Respondent also expressed her desire to be in a non-threatening environment. Respondent's requests seemed reasonable to Dr. Grosz and he attempts to accommodate his patients' subjective feelings, so Dr. Grosz included the restrictions in his letter. It was Dr. Gorsz's intent that Respondent and Petitioner attempt to reach a mutually acceptable solution and that Petitioner would provide what it determined was appropriate. As of September 19, 1997, Respondent had exhausted all of her available sick and personal leave. Petitioner and the United Teachers of Dade (UTD) have entered into a collective bargaining agreement (UTD Contract). The UTD Contract provides generous, extensive leave provisions. Respondent never applied for any type of leave, including leave pursuant to the UTD Contract. The Executive Director was authorized to direct a teacher to a work assignment. In determining a work assignment for Respondent, the Executive Director sought assistance from and relied upon Petitioner's Instructional Staffing Department to locate a position for Respondent which would meet her medical restrictions. Citrus Grove Elementary School The Director of Instructional Staffing informed the Executive Director that a varying exceptionalities (VE) position in special education was available at Citrus Grove. A VE teacher teaches a group of students who have different exceptionalities. The VE teacher may simultaneously teach the students with different exceptionalities in the same class or the teacher may teach the students with one exceptionality during the school day at one time and may teach other students with a different exceptionality during the same school day at another time. VE teaching is used for mildly handicapped students. By letter dated October 7, 1997, the Executive Director informed Respondent that a VE position was available at Citrus Grove and that the VE position was within her certification and met her medical restrictions. He also indicated that the position was an appropriate accommodation for Respondent. Moreover, the Executive Director directed Respondent to report to Citrus Grove immediately and to call the principal at Citrus Grove for further reporting instructions. Respondent failed to call the principal. She also failed to report to Citrus Grove. Respondent decided, without making any personal investigation, that the VE position at Citrus Grove was not appropriate and was unreasonable. Respondent did not believe that she was physically capable of performing as a VE teacher at Citrus Grove. Respondent is in pain daily. She wears a Tens Unit to short-circuit some of the pain. Respondent expresses being afraid of being in groups wherein she may be bumped which would worsen her condition. However, Respondent's authorized neurologist, Dr. Grosz has no concern regarding physical contact by bumping causing further neurological damage or problems. He has more concern regarding further neurological damage or problems caused by Respondent being involved in a high-speed motor vehicle accident. Respondent did not observe the placement or inquire about the profiles of the students who she was going to teach. The composition of the VE class, as to students, at Citrus Grove was decided before Respondent was assigned the VE class, and, therefore, the composition was not decided with consideration given to Respondent's physical limitations. Respondent assumed that she would be required to use physical restraint techniques with the students. The UTD Contract provides for the use of the Safe Physical Management (SPM) program, which is the use of physical restraints for severely disabled students. Teachers, who are in self-contained programs for severely emotionally disturbed students and autistic students, receive training in techniques to contain highly disruptive students under unusual circumstances. The techniques are used to prevent injuries to persons, including the student, and damage to property. Before SPM is used, Petitioner's Multi-Disciplinary Team must recommend its use and the use of SPM must be documented on the student's Individualized Education Program (IEP). One student in Respondent's assigned class had an IEP which approved SPM. However, based upon the student's progress, it was unlikely that SPM would have been needed. Moreover, SPM is not used in VE classes at Citrus Grove; mildly handicapped students, not volatile students, are placed in the VE classes. Dr. Grosz opined that Respondent could teach a class of 25 to 30 well-behaved students. The VE classes at Citrus Grove were not full-load classes. The VE classes consisted of 7 to 10 mildly disabled students at any one time; whereas, the regular classes consisted of between 28 and 39 students. Elementary VE classes contained no more than 12 to 15 students. The number of students in VE classes at Citrus Grove were smaller than VE classes throughout Petitioner's district. Respondent also erroneously relied upon Dr. Grosz's opinion that she was unable to teach a full class-load. What Respondent considered a full class-load and what Dr. Grosz considered a full class-load were not the same. Pursuant to what Dr. Grosz considered a full class-load, Respondent would have been able to accept the VE position at Citrus Grove. Respondent would have been the third VE teacher at Citrus Grove. The VE students were all in one room separated by a partition. Respondent's class would have been on one side of the partition and one VE teacher would have been in the class with Respondent. The other VE teacher and the other VE students would have been on the other side of he partition. Citrus Grove was a safe, non-threatening environment. The needs of the VE students at Citrus Grove were more an educational concern than emotional, and the VE students were well-behaved. As to Respondent being injured at Citrus Grove in the VE position, such an occurrence was unlikely. Respondent would not have been required to lift or move any furniture or any heavy items at Citrus Grove. Respondent was qualified to teach the VE class at Citrus Grove. The Citrus Grove assignment met Respondent's medical restrictions. The assignment of Respondent to Citrus Grove was reasonable. Respondent's refusal of the Citrus Grove assignment was unreasonable and unjustified. Approximately one week after Respondent was assigned to Citrus Grove, Respondent, on October 13, 1997, presented to Dr. Grosz for an examination. Respondent did not inform Dr. Grosz of the assignment at Citrus Grove. Informing Dr. Grosz of the assignment would have provided Dr. Gorsz with an opportunity to explain to Respondent what he meant by his opinion. Respondent did not also inform Dr. Sanford Jacobson, her authorized psychiatrist, of the Citrus Grove assignment when she presented to him for a psychiatric evaluation on October 14, 1997. Dr. Jacobson prepared a report of the evaluation dated October 16, 1997.3 In the "Summary and Conclusions" section of his report, Dr. Jacobson states, among other things, the following: There have been three incidents which have resulted in injuries as described by Mrs. Zucker [Respondent]. While some of them may have been somewhat surprising, difficult to manage, and distressing, I would not think that they are the kind of injuries that one would see as causing a Post-Traumatic Stress Disorder. . . . The most prominent symptoms are depressive symptoms. Clinical diagnosis at present is that of: Axis I: Mood disorder associated with cervical disc disease and stenosis with depressive-like episode. * * * It would appear that her depression is related to the injuries. . . . At this time I do not believe she can resume full classroom duties. In essence, Dr. Jacobson's diagnosis was that Respondent was suffering from depression related to her pain and discomfort from her physical injury. Even though Dr. Jacobson opined that Respondent could not resume "full classroom duties," he did not state the number of students as to what he considered a full classroom. However, Dr. Jacobson considered a full classroom to consist of approximately 25 to 30 students or more. As a result of Respondent not reporting to Citrus Grove, day-to-day substitutes filled her position. The needs of the VE students were not met with such an arrangement. Miami Jackson Senior High School On or about October 15, 1997, one of Respondent's physicians had placed Respondent on a no-work status. Subsequently, on November 10, 1997, Dr. Grosz returned Respondent to work but with restrictions. Dr. Grosz states in his report dated November 10, 1997, among other things, the following: She [Respondent] remains able to perform at light duty status with no lifting of furniture allowed and I will defer to psychiatry in terms of her emotional complaints. The Executive Director consulted again with Petitioner's Instructional Staffing to locate a position for Respondent. Instructional Staffing informed him of a VE position at Miami Jackson. On December 3, 1997, the Executive Director informed Respondent that a VE position at Miami Jackson was within her certification and met her medical needs. He directed Respondent to report to Miami Jackson. The Executive Director also directed Respondent to call the principal at Miami Jackson for further reporting instructions. Respondent failed to report to Miami Jackson. She also failed to call the principal at Miami Jackson. Respondent decided, without making any personal investigation, that the VE position at Miami Jackson was not appropriate and was unreasonable. Respondent did not believe that she was physically capable of performing as a VE teacher at Miami Jackson. Respondent did not observe the placement or inquire about the profiles of the students whom she was going to teach. The composition of the VE class, as to students, at Miami Jackson was decided before Respondent was assigned the VE class, and, therefore, the composition was not decided with consideration given to Respondent's physical limitations. Respondent assumed that she would be required to use physical restraint techniques with students. The VE classes at Miami Jackson were not full-load classes. The regular classes at Miami Jackson averaged approximately 35 students; whereas, the VE classes consisted of 14 to 21 students per class period in Respondent's proposed classes. The students in the VE classes were mildly disabled, with the majority of the students being learning disabled and a few being emotionally handicapped and a few educationally mentally handicapped. Many of the students were being mainstreamed into the regular school setting. A majority of the students were on track for a standard diploma. Three students in Respondent's proposed class at Miami Jackson had IEPs which approved SPM. The students would have been in Respondent's proposed class in 1998. The students' prior IEPs had approved SPM and the SPM was carried over to Miami Jackson. However, based upon the students' progress, it was unlikely that SPM would have been needed. Moreover, SPM is not used in VE classes at Miami Jackson; SPM is only used in severly emotionally disabled classes at Miami Jackson. Miami Jackson was a safe, non-threatening environment. Respondent would not have been required to lift or move any furniture or any heavy items at Miami Jackson. Respondent was qualified to teach the VE class at Miami Jackson. However, the Miami Jackson assignment failed to meet Respondent's medical restrictions. The Miami Jackson assignment met Dr. Grosz's medical restrictions; but, it failed to meet Dr. Jacobson's medical restrictions. Dr. Jacobson did not state in his report the size of the class that he recommended that Respondent teach. Nor did he recommend to Respondent the size of class that she should teach. At hearing, Dr. Jacobson opined that he would recommend that Respondent teach a class with 7 to 10 students; however, he would not recommend that Respondent teach a class with 14 to 21 students. Respondent's proposed VE classes at Miami Jackson consisted of 14 to 21 students. The assignment of Respondent to Miami Jackson was unreasonable. Respondent's refusal of the assignment to Miami Jackson was reasonable and justified. It matters not that Respondent was unaware of the size of class recommended by Dr. Jacobson; it is sufficient that the assignment failed to meet his medical restrictions. Even though Respondent did not know the size of class to which Dr. Jacobson was referring, she relied upon his report, as well as Dr. Grosz's opinion, in refusing the assignment to Miami Jackson. As a result of Respondent not reporting to Miami Jackson, day-to-day substitutes filled her position until a permanent teacher could be assigned. Dr. Grosz examined Respondent again on December 12, 1997. Respondent did not advise him of her assignment to Miami Jackson. Because Respondent had failed to report to Citrus Grove and to Miami Jackson as directed, the Executive Director turned Respondent's case over to Petitioner's Office of Professional Standards (OPS). By letter dated January 26, 1998, OPS advised Respondent, among other things, that she had been absent without authorized leave and that such absence constituted willful neglect of duty and subjected her employment to termination. OPS also requested that Respondent provide a written request within 10 working days if she wanted a review of her situation. Respondent failed to reply to OPS' letter. However, Respondent's counsel for workers' compensation responded. The response from Respondent's counsel indicated that Petitioner was aware why Respondent was not working, but his response failed to specifically address the assignments to Citrus Grove and to Miami Jackson. Petitioner took action on March 18, 1998, to suspend Respondent and dismiss her from employment. According to Petitioner's computerized attendance records, at that time Respondent had been absent without authorized leave since September 19, 1997. From September 19, 1997, to October 7, 1997, Respondent was not absent without authorization. On September 19, 1997, Respondent informed the principal of Little River that she was unable to teach the regular third grade class. Subsequently, on September 23, 1997, the principal directed Respondent to leave Little River, upon the advice of the Executive Director, and the Executive Director authorized Respondent to receive workers' compensation benefits retroactive to the date that she was directed to leave. Moreover, Respondent was not directed to report to Citrus Grove until October 7, 1997.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the suspension of Judith Tucker without pay, but not dismissing her from employment, and reinstating Judith Tucker under the terms and conditions deemed appropriate. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 4th day of June, 1999.
The Issue Whether Respondent violated Florida Administrative Code Rules 6B-1.001, 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(f), 6B-1.006(3)(g), and 6B-1.006(3)(h), and, if so, whether such conduct is just cause for dismissal of Respondent pursuant to Subsection 1012.33(6)(a), Florida Statutes (2003).
Findings Of Fact During the 2002-2003 school year, Gary was employed by the School Board as a band and orchestra director at James Madison Middle School (Madison). Gary had been employed by the School Board for two years previous to the 2002-2003 school year. Prior to the incidents which are at issue in this case, Gary had been thought of by the Madison school administrators, students, and parents as an excellent teacher, who was able to inspire and motivate students. Gary taught C.J., a ninth-grader, advanced band and intermediate band during the 2002-2003 school year. Sometime during that school year, Gary noticed a dead dragonfly on a window in the band classroom. The dragonfly was removed from the window and placed in a trash receptacle. C.J. said that he would eat the dragonfly for a dollar. Another student said that he would give C.J. a dollar, and Gary said, "Okay." C.J. retrieved the dead dragonfly from the trash can and ate the insect. Gary gave C.J. a dollar. C.J.'s parents learned of the dragonfly incident through a younger cousin of C.J., who also attended Madison. C.J.'s mother went to see Gary to discuss the incident. Gary indicated to the mother that he was sorry for what had happened and that it was poor judgment on his part. C.J.'s mother felt that they had addressed the issue during their conversation and left the meeting satisfied about the issue. Gary did not advise school administration about C.J. and the dragonfly. After the dragonfly incident another situation arose involving Gary and C.J.'s eating an inappropriate item. Gary and some students, including C.J., were eating lunch in the cafeteria. Gary was eating baked ziti and began chewing on a particularly hard piece of ziti. He removed the ziti from his mouth and placed it on the side of his plate. Gary offered C.J. 12 dollars to eat the ziti, saying, "I bet you won't eat this piece of baked ziti." C.J. replied, "Oh, yes, I will." Gary then told C.J. not to eat the chewed food. Other students were egging C.J. on to eat the ziti, and C.J. picked the food off Gary's plate and ate it. One of C.J.'s cousins related the ziti incident to C.J.'s mother, and C.J.'s mother paid Gary another visit. The mother was not happy about the ziti episode and spent more time discussing the issue with Gary than she did when she visited him concerning the dragonfly. Gary told C.J.'s mother that he had bet C.J. 12 dollars to eat the ziti. The mother told Gary not to pay C.J. the money. Before she left the school on the day of the ziti discussion, she went to see Gary a second time to inquire about the status of his health because C.J. had eaten food that had previously been in Gary's mouth. Gary assured her that he was in good health. Gary did not advise school administration about the ziti incident. Gary was provided a copy of the school district's "Code of Ethics" which contained a section entitled "How to Use Common Sense and Professional Judgment to Avoid Legal Complications in Teaching." On of the admonishments in this section was "[k]eep your hands and other parts of your body to yourself." During the 2002-2003 school year, Gary put his hands inside students' pockets and searched for candy, chewing gum, notes, and money. He admitted searching the pockets of D.B., S.D., M.R., N.M., D.R., and L.B. Such actions were inappropriate and caused some of the students to feel uncomfortable. If a teacher suspects that a child has candy, chewing gum, or notes in his pocket, the correct procedure is to have the child empty his pockets so that the contents can be viewed. The teacher is not to put his hands in the student's pockets. L.D. was a student at Madison during the 2002-2003 school year, and Gary was her band instructor. L.D. considered Gary to be a "really good friend" as well as a teacher. During the 2002-2003 school year, L.D. was sitting on the stairs in the band room playing her band instrument. She played incorrectly, Gary came up to her, aggressively grabbed her neck, and said "urrr." She told him to stop, and he did. She did not think that his actions were sexual in nature, but did feel that they were inappropriate for a teacher. During the 2002-2003 school year, J.W. attended seventh grade at Madison. Gary was her band teacher. J.W. has hugged Gary, and he has hugged her back. J.W. has seen Gary hug other students at Madison. D.B. was a honor roll student at Madison. During the 2002-2003 school year, she was in Gary's first period orchestra class. She played the violin, and, during a two-week period when her violin was broken, she helped Gary in his office. Gary's office was located within the band room. The office had a door with a glass window, which took up at least three-quarters of the upper half of the door. Adjacent to the door, there was a large picture window which was on approximately the same level with the door window, but which was almost twice the size of the door window. A desk with a computer on it was located underneath the picture window. The top of the computer monitor came just below the bottom of the picture window. Occupants of the office could be seen from the band room; however, the evidence does not establish that the occupants could be seen fully from the band room. Gary made inappropriate comments to D.B., including telling her that she had sexy lips and telling her that she smelled good. These comments made D.B. feel uncomfortable. Gary also inappropriately touched D.B. While she and Gary were in his office, Gary "touched her inner thigh" and "rubbed it" and asked her if she knew how beautiful she was. In a second incident, Gary held her hand and rubbed her arm while she in his office to file papers during first period orchestra. During a third incident, Gary put his fingers inside her shorts at her waist, pulled her toward him, and asked her what she wanted. This incident took place when the door to the office was open. In another incident, D.B. asked Gary to tune her violin, and he put his hand up the bottom of her shirt. All the incidents happened during first period orchestra class when students were in the band room. Gary argues that D.B.'s testimony is not credible because of a conversation D.B. had with some fellow classmates. J.D., a classmate of D.B., was talking with D.B. and another classmate K.S. during fifth period of the 2002-2003 school year while Gary was still teaching at Madison. K.S. said, "You know what's being said about Mr. Gary is not true," and D.B. said, "Yeah, it's not true, don't say anything." The evidence did not establish what was being said about Gary and whether it concerned D.B.'s allegations against Gary. Thus, the evidence does not establish that D.B. was fabricating her allegations about Gary. Gary admits that he may have touched D.B. on occasion, but that the touching was not sexual in nature or inappropriate. M.R. was enrolled in Gary's second period and sixth period band classes during the 2002-2003 school year. She alleged that beginning in January 2003, Gary inappropriately touched her person. M.R. alleged that on two occasions when she was in Gary's office with the office door open and other students were present in the band room, Gary touched the outside of her clothing in her vaginal area. She also alleged that in a third incident that Gary placed his hand inside her pants underneath her underwear and rubbed her vagina. The third incident allegedly took place in the office with the door open and while other students were present in the band room. On a fourth occasion, M.R. alleged that Gary came up behind her in the filing room, placed his hands inside her shirt, and touched her breasts. The alleged incidents supposedly happened during third period lunch when other students were in the band room eating lunch or practicing. Of the students who testified at the final hearing and spent most of their lunch periods in the band room, none saw any inappropriate contact between Gary and M.R. M.R. had wanted to be first chair flute in her band class, but Gary made another student first chair. M.R. was angry about Gary's selection for first chair and told her friend J.W. sometime after Christmas 2002 that she was going to get even with Gary for not making her first chair. K.M., who was a student at Madison, overheard M.R. tell another student that the allegations and problems facing Gary were "what he deserves for not promoting me up in chair." M.R. does not have a good reputation in the community for truth and veracity. Her testimony concerning inappropriate touching by Gary is not credible, and it is found that those incidents did not happen. The School Board established other incidents of inappropriate behavior by Gary. Such behavior included telling a student that he could not wait until she was 21 so that he could be all over her and that it was a good thing that she was pretty because her brains would not get her anywhere; tickling her at the end of class; pulling her against her will onto his lap, and placing his arms around her arms and waist. Gary would also sit with students in the same chair in his office. Gary failed to tell school administrators of possible sexual misconduct between two students in the student restroom, when he became aware that some misconduct probably occurred between the two students. Although, the School Board proved these incidents, the School Board failed to allege the incidents in the Petition for Dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order dismissing Benjamin Leon Gary for just cause from his employment as a teacher with the School Board. DONE AND ENTERED this 24th day of June, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 24th day of June, 2004. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Mark S. Levine, Esquire Levine, Stivers & Myers 245 East Virginia Street Tallahassee, Florida 32301 Benjamin B. Garagozlo, Esquire 3585 Murrell Road Rockledge, Florida 32955 Dr. Richard A. DiPatri, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact At all times material hereto, Respondent has been a licensed teacher in the state of Florida, having been issued Florida Teacher's Certificate No. 415935 by the Department of Education. In October, 1985, Respondent was a guidance counselor at the Larkdale Elementary School in Broward County, Florida. On October 30, 1985, T B. was eleven years old and a fifth-grade student at Larkdale Elementary School. On that date, while returning from the bathroom to her classroom T. B. encountered Respondent in the hallway. Respondent asked T. B. to accompany him to his office for the ostensible purpose of performing some filing. Upon arriving at Respondent's office, Respondent requested that T. B. fill up a candy jar. While T. B. was bending over getting candy out of the bottom of the filing cabinet, Respondent placed his hands around her waist. Respondent then lifted up so that she was standing in front of Respondent. Respondent placed his hand under her dress, then placed his hands inside her dress and fondled her breast. T. B. began crying and asked Respondent's permission to return to her classroom. At the time, Respondent was T. B.'s guidance counselor, and she talked to him about "everything." In February, 1986, Respondent was still employed as a counselor at Larkdale Elementary School. In February, 1986, K. C. was twelve years old and a fifth-grade student at Larkdale. In February, 1986, K. C. and two other students were standing in a hallway outside a classroom when they were approached by Respondent. Respondent placed his arms around K. C. and began talking to her. He then placed his hand on K. C.'s left breast. K. C. slapped Respondent's hand and told Respondent she was going to inform her teacher of what had occurred. On March 7, 1986 the Broward County Sheriff's Office filed a Probable Cause Affidavit against Respondent. The Probable Cause Affidavit alleged that on October 30, 1985, Respondent had committed a lewd and lascivious assault on T. B., a child under the age of 16, contrary to section 800.04(1), Florida Statutes. The Probable Cause Affidavit alleged: The victim was doing secretarial work for the Defendant, and was sitting on the floor in the Defendant's office sorting papers. The Defendant came up behind the victim, and put both his arms around her sliding one of his hands inside her shirt, and began to fondle her breast, the victim had forcibly [sic] get away from the Defendant. Respondent was arrested and charged with lewd and lascivious assault upon T. B. Subsequent to the filing of the Probable Cause Affidavit, the State Attorney's Office for the Seventeenth Judicial Circuit filed a one-count criminal information against Respondent (Case No. 86-4538CF) which charged Respondent with committing a lewd and lascivious assault on a child (T. B.), in violation of section 800.04(1), Florida Statutes. The State Attorney's Office for the Seventeenth Judicial Circuit also filed a one-count criminal information against Respondent (Case No. 86-4539CF) which charged Respondent with simple battery on a child K. C., in violation of section 784.03, Florida Statutes. On June 5, 1986, Respondent entered a plea of guilty to the violation of section 800.04(1), Florida Statutes, a second degree felony, as alleged in the information filed by the State Attorney's Office in the matter of State of Florida v. James R. Feldman, Case No. 86-4538CF. Adjudication was withheld. On June 5, 1986, Respondent entered a plea of guilty to, and was adjudicated guilty of, a violation of section 784.03, Florida Statutes, a first degree misdemeanor, as alleged in the information filed by the State Attorney's Office in the matter of State of Florida v. James R. Feldman, Case No. 4539CF. Jacquelyn Box (f/k/a Jacquelyn Moore) was the Principal of Larkdale Elementary School during the 1985-86 school year. With regard to T. B., Ms. Box received a report from a teacher that Respondent had been touching the student inappropriately. She discussed the matter with the student and informed the student's mother. Ms. Box also reported the incident to the school system's Internal Affairs Department. With regard to K. C., Ms. Box became aware of the incident after the student's mother confronted Respondent. Upon being informed of the incident by her daughter, the student's mother came to the school to confront Respondent. During the confrontation, the student's mother struck Respondent. Upon being notified of the confrontation, Ms. Box contacted the Police Department and the school system's Internal Affairs Department. Both the staff and the students of Larkdale Elementary School were aware of the sexual improprieties committed by Respondent with regard to each of the female students. Certain students discussed the allegations with the Principal. Approximately 40-50% of the 4th and 5th grade students were aware of the allegations. The Principal was contacted by the parents of students in that school who were concerned about the incidents. Students and staff must have trust and confidence in a guidance counselor for the counselor to be effective. At times, a guidance counselor has to engage in one-on-one counseling with a student. One of the areas a guidance counselor works in with the students is human sexuality. A guidance counselor cannot be effective if the students do not trust him. The disclosure of the foregoing incidents had a negative impact upon Respondent's effectiveness as a teacher, substantially reducing that effectiveness. The students did not trust Respondent following the disclosure and would not trust Respondent if he returned to the school as a guidance counselor. Respondent's actions in fondling the two female students and the subsequent disclosure of Respondent's actions rendered Respondent totally ineffective as a guidance counselor. Respondent's actions in conjunction with the disclosure destroyed the bond of trust necessary for a guidance counselor to be effective.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Respondent's teaching certificate. DONE and RECOMMENDED this 12th day of April, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 12th day of April, 1988. APPENDIX TO RECOMMENDED ORDER D0AH Case No. 87-3908 Petitioner's proposed finding of fact numbered 20 has been rejected as not being supported by the evidence in this cause. The remainder of Petitioner's proposed findings of fact have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact are in the form of a letter with unnumbered paragraphs. For purposes of specific rulings herein, each paragraph has been numbered consecutively. Only Respondent's paragraph numbered 7 has been adopted in substance in this Recommended Order. Respondent's paragraphs numbered 1, 47 6, 8-13, and 15-17 have been rejected as not constituting findings of fact bud rather as consisting primarily of argument. Respondent's paragraphs numbered 2, 3, 5 and 14 have been rejected as being contrary to the credible evidence in this cause. COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Chris H. Bentley, Esquire 2544 Blairstone Pines Drive Tallahassee, Florida 32301 James R. Feldmann 6210 Northwest 26th Court Sunrise, Florida 33313 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399
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.
