The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 11th day of October, 1999.
The Issue Whether just cause exists for Petitioner to terminate Respondent's employment as a teacher.
Findings Of Fact Based on the parties' stipulations and the competent substantial evidence adduced at the final hearing, the following findings of fact are made: The Parties Petitioner, Broward County School Board, is charged with the duty to operate, control, and supervise free public schools in Broward County pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes. Respondent has been employed by the District as a physical education teacher since 2004. His last teaching assignment was as a physical education teacher at Crystal Lakes Middle School in Pompano Beach, Florida. Administrative Charges The alleged conduct giving rise to this proceeding occurred on or about May 18, 2018. The Administrative Complaint alleges that on that day, Respondent did not fully cover his early morning duty in the school cafeteria, did not fully attend his assigned homeroom, and did not attend his first period class, thereby leaving his students unsupervised for part of those periods; and reported to work under the influence of controlled substances——specifically, alcohol and cocaine. As a result of this alleged conduct, Petitioner has charged Respondent, in the Administrative Complaint, with violating Florida Administrative Code Rule 6A-5.056(2), (3), (4), and (5), and specified provisions of school board policies 2400, 4008, and 4.9, discussed in greater detail below. Events Giving Rise to this Proceeding On the morning of May 18, 2018, Respondent reported to work under the influence of alcohol and cocaine, both of which are defined as "controlled substances" by school board policy. As a result, Respondent did not fully cover his early morning cafeteria duty, did not fully attend his assigned homeroom, and did not attend his first period class. A fellow physical education teacher, Cindi Ancona, was forced to cover Respondent's first period class. During the portions of the periods in which Respondent was not present in his classroom and in which Ancona was not covering his class, his students were left unsupervised. Ancona saw Respondent at the beginning of second period. When she questioned Respondent regarding his whereabouts during first period, she noticed that he appeared confused and off— balance and that his eyes were glassy, so she sent a text message to Sabine Phillips, the Principal at Crystal Lake Middle School, regarding Respondent's demeanor and appearance. Phillips and Assistant Principal Ben Reeves responded to Ancona's text message. Reeves entered the boys' locker room and found Respondent lying down in his office outside of the locker room. Phillips then entered the locker room and told Respondent that he needed to go to the office with her and Reeves. In the course of questioning Respondent about where he had been during his first period class, Phillips surmised, and informed Respondent that she had reasonable suspicion, that he was under the influence of controlled substances. Phillips contacted the District's Special Investigative Unit to request that Respondent be subjected to testing to determine whether he was under the influence of controlled substances. Phillips followed the designated procedures, which entailed completing and transmitting a completed Incident Report Form to the designated District personnel. The Risk Management Department determined that the requested testing was warranted and transmitted an Anti—Drug Program Passport to Phillips, who delivered it to Respondent. The Anti—Drug Passport informed Respondent that he would be subjected to controlled substances testing, and that the testing would be performed at Crystal Lakes Middle School. Respondent consented to the drug and alcohol testing. The Risk Management Department sent an employee health testing collector to Crystal Lake Middle School, where she conducted a breath alcohol and urine test on Respondent. The breath alcohol testing indicated that Respondent had blood alcohol levels of .101 and .095, both of which exceed the blood alcohol level of .04 that Petitioner has adopted as the threshold for being under the influence of alcohol. Petitioner's third—party contractor confirmed that Respondent had a blood alcohol level of .095 at the time he was tested. Julianne Gilmore, an environmental health testing specialist with the District's Risk Management Department, contacted Phillips and Respondent, notifying them both that Respondent was being placed on Administrative Reassignment and was to remain at home——i.e., not report to work——pending the result of the drug testing. This informal contact was followed by a letter dated May 21, 2018, confirming that Respondent had been placed on Administrative Reassignment and directing him to stay home pending further notice.1/ Gilmore also advised Respondent of the availability of the District's Employee Assistance Program ("EAP"), participation in which was not mandatory.2/ The results of Respondent's drug test were received by the Risk Management Department on or about June 1, 2018. Respondent tested positive for cocaine. Respondent does not dispute that he was under the influence of alcohol and cocaine while at school on May 18, 2018, and also does not dispute accuracy of the results of the blood alcohol and drug tests. Upon receiving the results of Respondent's drug test, it was determined3/ that Respondent's employment with the District should be terminated, notwithstanding that the next step in sequential progressive disciplinary process ordinarily would be suspension. A significant consideration in this decision was that Respondent had left his students unsupervised, placing their safety at risk. No evidence was presented that the students in Respondent's class were actually physically or psychologically injured or harmed as a result of Respondent being absent from his classroom on May 18, 2018. Prior Discipline Petitioner has a policy (Policy 4.9, discussed below) of imposing discipline in a progressive manner, which means that discipline typically is imposed in sequential steps in order to afford the employee the opportunity to correct his/her conduct and performance before he/she is suspended or terminated. The progressive discipline policy authorizes sequential disciplinary steps to be skipped for sufficiently severe misconduct. Petitioner previously has disciplined Respondent. On April 21, 2016, Petitioner issued a Summary of Conference memo, memorializing a conference in which Respondent was verbally admonished for having briefly left the students in his class unattended while he took an injured student to the physical education office to tend to his injury, during which time some of the students physically assaulted other students in the class. On February 10, 2017, Petitioner issued a Verbal Reprimand to Respondent, reprimanding him for being tardy to, and absent from, work without following the proper protocol for entering an absence. On December 1, 2017, Petitioner issued a Written Reprimand to Respondent, reprimanding him for continuing to be tardy to, and absent from, work without following the proper protocol for entering an absence. On February 14, 2018, Petitioner issued another Written Reprimand to Respondent, reprimanding him for consistently failing to follow absence/tardy—reporting procedures, resulting in his students being left unsupervised. He was informed that if he again failed to adhere to the appropriate procedure, he would be subject to further discipline, including possible termination of his employment. Other Key Considerations in this Proceeding Respondent was forthright in admitting that he suffers from a substance abuse problem. In 2016, Respondent sought help for his substance abuse issue through the District's EAP program at Phillips' suggestion, but did not complete the program——in part because he did not find its methods helpful in dealing with his problem, and in part because he believed that he could overcome his problem on his own as he always had done in his life. Respondent has come to realize that he cannot overcome his substance abuse problem on his own and that there is no shame in asking others for help in dealing with his problem. To that end, Respondent participated in, and has completed, the Evolution substance abuse program, which consisted of counseling sessions three to four days a week, for a three—to— four—month period, and attending therapy classes and meetings each week. As a condition of participation in Evolution, Respondent was subject to random substance abuse testing. He did not test positive for alcohol or drug use during his participation in the program. The spiritual counseling and substance abuse trigger counseling that Respondent received in the Evolution program have resonated with him and have helped him successfully address his substance abuse problem.4/ In order to avoid backsliding, Respondent remains in weekly contact with one of his therapists at Evolution, and attends meetings three to four times a week, to place himself in an environment that enables and fosters his success in fighting his substance abuse problem. Since commencing Evolution, Respondent has not engaged in alcohol or drug use. Respondent expressed remorse at his behavior and poor judgment at having reported to work under the influence of controlled substances on May 18, 2018. He testified that he did so because he previously had been reprimanded for being absent, and was concerned about missing more school. He recognized that his choice to go to school in that condition was "bad thinking at the time." Respondent credibly testified that he greatly enjoys teaching and that he chose teaching as a career because he loves working with kids, relates well to them, and believes he can help them. His colleague, Tyrell Dozier, testified that Respondent gets along well with his students and is a caring, effective teacher. Findings of Ultimate Fact As noted above, the Administrative Complaint charges Respondent with having violated State Department of Education rules and specified school board policies. Specifically, Petitioner has charged Respondent, pursuant to rule 6A—5.056, with misconduct in office, incompetency, gross insubordination, and willful neglect of duty. Petitioner also has charged Respondent with violating school board policies 2400(1) and (3); 4008 B.1., 3., and 8. and certain provisions of Policy 4.9. Whether the charged offenses constitute violations of the applicable rules and policies is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985)(whether there was a deviation from the standard of conduct is not a conclusion of law, but instead is an ultimate fact); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether a particular action constitutes a violation of a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, and policies is a question of ultimate fact). Based on the foregoing, it is found, as a matter of ultimate fact, that Respondent violated some, but not all, of the rules and school board policies charged in the Administrative Complaint. By engaging in the conduct addressed above, Respondent committed misconduct in office under rule 6A—5.056(2), which includes violating Florida Administrative Code Rule 6A— 10.081(2)(a), by having left his students unsupervised. By engaging in the conduct addressed above, Respondent engaged in conduct constituting incompetency under rule 6A—5.056(3). By engaging in the conduct addressed above, Respondent engaged in conduct constituting gross insubordination under rule 6A—5.056(4). By engaging in the conduct discussed above, Respondent engaged in conduct constituting willful neglect of duty under rule 6A—5.056(5). Respondent violated Policy 2400(1) by reporting to work while under the influence of controlled substances. However, no evidence was presented that Respondent was in possession of, or used, a controlled substance while on school board property or at a school—sponsored activity. Rather, the evidence establishes that Respondent consumed alcohol and used cocaine in a social setting the night before he reported to school on May 18, 2018. Therefore, the evidence does not establish that Respondent violated Policy 2400(3), as charged in the Administrative Complaint. Policy 4008, subsections (B)1. and 8., requires school board employees to comply with State Board of Education rules and school board policies. As discussed above, the evidence shows that Respondent violated rule 6A—5.056(2), (3), (4), and (5), and rule 6A—10.081(2)(a). In violating these rules, Respondent violated Policy 4008, subsections (B)1. and 8. However, the evidence does not establish that Respondent violated Policy 4008B, subsection 3., as charged in the Administrative Complaint. This policy imposes on instructional personnel the duty to "Infuse in the classroom, the District's adopted Character Education Traits of Respect, Honesty, Kindness, Self—control, Tolerance, Cooperation, Responsibility and Citizenship." While Respondent's conduct in reporting to school under the influence of controlled substances on May 18, 2018, may not have constituted self—control or respect for his duties as a teacher on that specific day, no evidence was presented regarding Respondent's behavior in the classroom—— whether on that day or on any other day. To the contrary, as discussed above, the evidence established that Respondent is a caring and effective teacher in dealing with his students. Accordingly, it is determined that Respondent did not violate Policy 4008, subsection B.3. The evidence establishes that Respondent violated Policy 4008(C), which requires instructional personnel to be on duty for a minimum of 7.5 hours on an instructional day. However, the evidence does not establish that Respondent violated the provision in Policy 4008, "Miscellaneous" section, which states that "all members of the instructional staff shall be expected to teach a full schedule of classes, unless prior approval from the area superintendent or superintendent is obtained." Policy 4008 establishes the overarching responsibilities and duties of Principals and instructional personnel in the context of performing their employment contracts. In this context, the "full schedule of classes" provision refers to a teacher's instructional schedule assignment for the school year rather than a specific per—hour requirement. In fact, to read this provision as urged in the Administrative Complaint would render it redundant to the statement (also in the "Miscellaneous" section) that "instructional personnel must be on duty a minimum of seven and one—half hours (7 1/2) hours daily. The Administrative Complaint also charges Respondent with having violated the District's progressive discipline policy, Policy 4.9. As more fully discussed below, it is found that Respondent that did not violate this policy. Based on the foregoing, it is found, as an ultimate fact, that although Respondent violated the rule and many of the school board policies charged in the Administrative Complaint, under the progressive discipline policy set forth in Policy 4.9, the appropriate penalty that should be imposed on Respondent in this case is suspension without pay for the entire period during which he has been reassigned from the classroom. Additionally, Respondent should be required to submit to random drug and alcohol testing, at his personal expense, as a condition of his continued employment by Petitioner.5/ This penalty is appropriate based on the fact that Respondent has not previously been subject to suspension without pay under the progressive discipline policy, and takes into account several relevant considerations: specifically, that Respondent has a substance abuse problem for which he actively sought——and finally has been able to obtain——real, effective help in overcoming; that he has an approximately 14—year employment history with Petitioner that only, in the last two years, entailed discipline as the result of conduct that was caused by his substance abuse problem; that he is remorseful, understands that he made poor choices, and has obtained the counseling and therapy he needs in order to correct his performance problems through overcoming his substance abuse problem; that he is a caring and effective teacher who loves children and enjoys his teaching job; and, importantly, that no students were injured or otherwise harmed by Respondent's conduct on May 18, 2018. This penalty also is sufficiently severe to deter Respondent from committing future violations of rules and school board policies, and sends the message that this is truly his last chance.
Conclusions For Petitioner: Douglas G. Griffin, Esquire Broward County School Board Office of the General Counsel 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 For Respondent: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order suspending Respondent from his teaching position without pay commencing on the date on which he was reassigned from the classroom; reinstating Respondent to his teaching position; and requiring Respondent to submit to random drug and alcohol testing, at his personal expense, as a condition of his continued employment. DONE AND ENTERED this 17th day of July, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 July, 2018.
The Issue Whether Respondent committed the violations alleged in the Amended Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Ludlam Elementary School (Ludlam)), and for otherwise providing public instruction to school-aged children in the county. Respondent has approximately 30 years of teaching experience, and has been a classroom teacher for the School Board since December 1999. As a School Board employee, she has not been the subject of any disciplinary action aside from the 30-workday suspension that is being contested in the instant case. Respondent is currently co-teaching a kindergarten class at Ludlam, the only school at which she has taught during her employment with the School Board. For the eleven years she has been at Ludlam, Respondent has been a kindergarten teacher exclusively, except for the 2009-2010 school year, when she taught second grade. Among the second graders in her class that school year were A. H., A. P., and J. M.3 Dr. Georgette Menocal is now, and was during the 2009- 2010 school year, the principal of Ludlam. At a Ludlam faculty meeting, attended by Respondent, that was held at the beginning of the 2009-2010 school year, Dr. Menocal gave a PowerPoint presentation in which she reviewed, for those in attendance, key provisions of Ludlam's 2009-2010 Faculty/Staff Handbook (Handbook), including the following excerpt relating to "Classroom Management Procedures": CLASSROOM MANAGEMENT PROCEDURES Teachers should make every effort to handle routine classroom discipline problems by conferring with the student, contacting parents, and referring the student to the counselor. If a serious violation of school rules has occurred, a "Student Case Management Referral Form" should be completed and forwarded to the administration. A response will be forthcoming. * * * It is the teacher's responsibility to manage his/her class and to follow the procedures outlined in the Code of Student Conduct. All level 1 behaviors are to be addressed by the teacher. Most level 2 behaviors can be addressed by the teacher and/or counselor. Level 3 (and above) behaviors require a referral to an administrator. Each student referral must be made on a Student Case Management (SCM) referral form. The disciplinary policies of the school should be administered on a consistent basis throughout the school. The CODE OF STUDENT CONDUCT should be reviewed with students at the beginning of each school year. NEVER - Use corporal punishment of any kind (hitting, tapping or tying students, having students stand for long periods of time, etc.)[4] The School Board's Code of Student Conduct-Elementary (Code) (which Ludlam teachers were directed by the Handbook to "follow") provided, among other things, that "Level 3 . . . behaviors" included "Fighting (serious)" and that "Fighting (serious)": Occurs when two or more students engage in physical force or violence against each other and they become so enraged that they do not stop when given a verbal command to do so, OR physical restraint is required, AND/OR someone is injured to an extent that requires immediate first aid or medical attention. Any serious fighting incident that causes injury or requires medical attention would result in a suspension. If the principal or designee determines that one student or a group of students attacked someone who did not fight back, the aggressors should receive punishment for battery, aggravated battery, and/or bullying, depending on the facts, and will likely be arrested. Otherwise, administrators will report all other incidents involving mutual participation as Fighting (Serious) without regard to who was the original aggressor. On February 25, 2010, during a mathematics lesson Respondent was teaching, two female students in her class, A. H. and A. P., were involved in an altercation in the back of the classroom, during which A. H. hit A. P. with a book. Respondent intervened and separated the two girls by physically restraining A. H., who struggled to escape Respondent's grasp. As she was holding A. H., Respondent instructed A. P. to hit A. H. back. A. P. did as she was told, striking A. H.5 with a book.6 The incident (Incident), which lasted approximately a minute, was witnessed by J. M., who was in her seat and had turned around to observe the fracas.7 Notwithstanding that she had physically restrained A. H., Respondent did not report the Incident to the school administration (via submission of a completed Student Case Management referral form, as required by the Handbook, or through any other means).8 Following the Incident, the students in Respondent's class left her classroom and went to their Spanish class. Ludlam's assistant principal was subsequently called to the Spanish class. She removed A. H. and A. P. from the class and brought them to Dr. Menocal's office, where Dr. Menocal spoke to them separately. Both A. H. and A. P. told Dr. Menocal about their scuffle earlier that day in Respondent's classroom and how, during this tussle, Respondent had directed A. P. to hit A. H. while A. H. was being held by Respondent. A. H. and A. P. gave Dr. Menocal, at Dr. Menocal's request, the names of three other students who may have witnessed the Incident. The three students9 were brought, separately, to Dr. Menocal's office and questioned by her. Each of the three students confirmed what A. H. and A. P. had told Dr. Menocal. Dr. Menocal asked A. H., A. P., and two of the three other students to whom she had spoken to each write a statement in their own words describing what had happened in Respondent's classroom earlier that day.10 They wrote their statements, separately, in Dr. Menocal's presence. In her written statement, A. H. stated, in pertinent part, "Ms. Grey hold me and then Ms. Grey told her [A. P.] to hit me and then she hit me on my back . . . ." A. P. and the two other children each wrote that Respondent had "let" A. P. "hit" A. H., but they did not specifically state in their written statements that Respondent had told A. P. to strike A. H. After receiving these written statements from the students, Dr. Menocal contacted the School Board police and the Department of Children and Family Services (DCFS) to report what the students had related to her about the Incident. That same day, February 25, 2010, a School Board police officer, Officer San Antonio, was dispatched to Ludlam. Officer San Antonio first spoke with Dr. Menocal and then with various students and Respondent. The following morning, at around 9:00 a.m., Respondent's second grade class put on a performance in the school cafeteria as part of a black history month event attended by parents (Performance). Following the Performance, Respondent invited the parents of her students to follow her and the class back to her classroom so that she could have a brief meeting with them (Post-Performance Meeting). Respondent began the meeting by praising the students' Performance. This praise, however, was short-lived, as Respondent started to complain to the parents about the students' "misbehaving" and "acting up" in class. As an example, she cited the altercation the day before between A. H. and A. P. (without identifying them by name). Respondent told the parents that "two little girls" had "got[en] into a fight" and that she was being accused of and investigated by the police for having "held one of them and [having] told the other girl to hit [the girl being held]." Respondent then said, "And I wouldn't do that" (knowing full well that, in fact, she had done "that"), after which she asked her students (including A. H. and A. P.) who were present in the room with the parents, "Did Mrs. Grey do that?" The students responded, in unison, "No, no."11 Respondent informed the parents that, because she "gets in trouble" when she "gets involved," she no longer would hesitate, when a student misbehaved, to prepare and submit to the principal's office a written referral that would follow the misbehaving student "all the way through high school." Later that morning (on February 26, 2010), at approximately 11:15 a.m., a DCFS child protective investigator, Donald Machacon, arrived at Ludlam to investigate the Incident (which Dr. Menocal had reported to DCFS the day before). After first speaking with Dr. Menocal, Mr. Machacon spoke with A. H., A. P., and three other students in Respondent's class.12 The last person Mr. Machacon interviewed at the school that day was Respondent. During her interview with Mr. Machacon on February 26, 2010, A. P. stated that, although at the time of the Incident she had thought she had heard Respondent instruct her to hit A. H., she must not have heard correctly because Respondent, earlier on February 26th, had spoken to her about the matter and denied ever having had given her such an instruction.13 A. P. attributed her having had misunderstood Respondent to Respondent's having had had a "hoarse voice" the day of the Incident. None of the other children Mr. Machacon interviewed at the school on February 26, 2010, including A. H., claimed to have any recollection of Respondent's ever having had told A. P. to hit A. H. (although each of them did tell Mr. Machacon that A. P. had hit A. H. while A. H. was being held by Respondent). Respondent, in her interview, indicated that she had held A. H. in order to "break up a fight," but she denied having had told A. P. to hit A. H. during the altercation. She also denied having had spoken about the Incident earlier that day (February 26, 2010) with A. H. and A. P. She did acknowledge, however, that she had referenced the Incident in a talk she had had with a group of parents shortly after the Performance that morning. She further acknowledged that, the day before (February 25, 2010), she had been questioned about the Incident by Officer San Antonio, who was at the school investigating the matter. By letter dated February 26, 2010, and received by Respondent on March 1, 2010, Dr. Menocal formally informed Respondent, in writing, that "[a]n investigation [was] being conducted" of a complaint made by an unnamed "juvenile" complainant alleging that Respondent had "held" her "so that another student could hit her." Among the parents who had attended the Post- Performance Meeting on February 26, 2010, was M. M., J. M.'s mother. M. M. left the meeting concerned about the safety of her daughter in Respondent's classroom given what Respondent had told the parents, particularly about the fight between the "two little girls" that the police had been called to the school to investigate.14 Moreover, M. M. thought that it was inappropriate for Respondent to have discussed the matter at the meeting. The following week, M. M. made arrangements to meet with Dr. Menocal so that she could air her grievances about Respondent. (These grievances were not only about what had occurred at the Post- Performance Meeting. They also concerned "classroom management issues.") Sometime before this meeting between M. M. and Dr. Menocal took place, M. M. learned more about the Incident from J. M. during a discussion the two had following a physical altercation between J. M. and J. M.'s sister. M. M. had initiated the discussion by asking whether J. M. believed that J. M.'s sister had deserved to be hit by J. M., a question to which J. M. responded in the affirmative. When M. M. inquired as to why J. M. felt this way, J. M. answered, "Well, it's like in Mrs. Grey's class, when you get hit, you hit back." In response to her mother's request that she elaborate, J. M. told M. M. about the Incident and how, after A. H. had hit A. P., Respondent had grabbed ahold of A. H., told A. P. to hit A. H. back,15 and then announced to the class, "This is what happens in Mrs. Grey's class, when you hit; you get hit back." M. M. had her meeting with Dr. Menocal approximately a week after the Incident. During her audience with Dr. Menocal, M. M. raised a number of complaints that she had about Respondent. She talked about, among other things, the comments and remarks Respondent had made to the parents and students in attendance at the Post-Performance Meeting, including those relating to the Incident and its aftermath. On March 8, 2010, Respondent was temporarily reassigned, "until further notice," from Ludlam to the School Board's Region III Office, where she engaged in "professional development" activities. By letter dated May 18, 2010, which she received on May 19, 2010, Respondent was advised that the School Board police had completed its investigation of the Incident and found probable cause to believe that she had violated School Board Rule 6Gx13-4A-1.21. The letter further advised Respondent of her right "to file a written exception" with the School Board's Office of Professional Standards (OPS).16 Respondent submitted to OPS her "written exception," by letter dated May 25, 2010. She subsequently sent to OPS a "[r]evised [v]ersion" of this letter, which read, in pertinent part, as follows: Pursuant to your letter dated May 18, 2010, informing me of the outcome of your investigation (SPAR #R-09002), I wish to exercise my right to provide a written exception to your findings. I take exception to your findings of probable cause to the violation because no such violation occurred. My intervention was simply to stop the aggressing child from hitting the other child and preventing a fight, possibly leading to injuries, between the two children. Below please find specific items with which I take issue . . . . * * * Det. Torrens also states that two students who were interviewed as witnesses told him exactly the same thing which, significantly, was not that I told one child to hit the other as the information from the two combatants indicate. These children also provided him with previously written statements. I would like to see the original documents; to know who took the statements and who was present. I would also like the children to be interviewed on tape as to the veracity of the statements, being cognizant of the fact that these are eight year olds who often repeat what they hear or are told.[17] I did not tell the one child to hit the other, nor did I hold one child so that the other could hit her. I was merely holding back the very aggressive child, who was struggling with me to get loose so that she could attack the other child. It was at this time that the other child, who was free, hit the child I was holding. There were seventeen children in the class at the time I separated the two girls. All seventeen children saw what happened and they all heard what happened. I would like all seventeen children to be separately interviewed on tape. * * * I also wish to clarify the issue of the administrative letter and the suggestion that I discussed the investigation with the parents. This incident occurred on Thursday, February 25th 2010. Officer San Antonio asked me what happened in my classroom on the very same Thursday that it occurred, and I told her that I saw one child crying and I asked her what was the matter. She told me that the other child had hit her, so I separated them. The aggressing child then got angry and wanted to fight, so I held on to her, when the other child came over and tapped her on the back. The Black History function was held on the following Friday (2/26/10). I had no discussions with any parents about the incident. In fact I was not aware that there was an investigation until Mr. Machacon came to the school the afternoon of that same Friday, and told me there were these allegations against me. I certainly could not discuss an investigation that I did not know about.[18] Furthermore, Dr. Menocal did not give me the administrative letter until the following Monday afternoon (3/1/10) and I got assigned to the region the following Monday (3/8/10), eleven days after the incident. I hope this letter helps to provide additional information which will aid in a more comprehensive fact gathering process to enable a fair and just review, with the concomitant overturn of the probable cause findings. These charges I take very seriously as I have dedicated my entire adult life (over thirty years) to the vocation of educating young children without a single incident. I have assiduously guarded the propriety of this noble profession and will resist any attempt to impugn my integrity or besmirch my character. On June 2, 2010, OPS held a conference-for-the-record, at which Respondent had an opportunity to verbally respond to the probable cause finding made by the School Board police. By letter dated July 21, 2010, Assistant Superintendent Rojas advised Respondent that OPS had made a "recommendation that [she] be suspended without pay 30 workdays via an agenda item [that would] be presented to [the School Board] at the meeting scheduled for September 7, 2010." In a subsequent letter, dated August 26, 2010, Assistant Superintendent Rojas informed Respondent that the Superintendent would be recommending to the School Board, at its scheduled September 7, 2010, meeting, that Respondent receive a 30-workday suspension. The School Board followed the Superintendent's recommendation and suspended Respondent without pay from September 8, 2010, through October 19, 2010. Furthermore, it directed Respondent to report to duty at Ludlam on October 20, 2010. Respondent has served her suspension. By letter dated September 8, 2010, Respondent "request[ed] a hearing to be held before an administrative law judge" to contest her suspension. The matter was thereafter referred to DOAH. A. P.'s and A. H.'s depositions were taken in anticipation of the hearing. At her deposition, A. P. declined to answer any questions. A. H. was deposed on December 6, 2010. When asked about the Incident, she stated that she had been hit by A. P. while being held by Respondent. It was her testimony that Respondent was simply "trying [to] keep [her and A. P.] apart," and that Respondent did not tell A. P. to hit her, an assertion that was in direct conflict with what A. H. had related to Dr. Menocal the day of the Incident, when the matter was fresh in A. H.'s mind and she had not yet been exposed to the remarks that Respondent would make at the Post-Performance Meeting.19 A. H. further testified during her deposition that, after the altercation, Respondent "called the office and the office came."20
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Miami-Dade County School Board issue a final order upholding Respondent's 30-workday suspension for the reasons set forth above. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 8th day of March, 2011.
The Issue Does Petitioner, Lee County School Board (School Board), have just cause to terminate the employment of Respondent, Adrian Allen?
Findings Of Fact The School Board owns and operates the public schools in Lee County, Florida. It is responsible for hiring, terminating, and overseeing all employees in the School District. At all times material to this case, the School Board employed Mr. Allen as a custodian at Lehigh Acres Middle School. He has worked for the School District since April 29, 2010. Mr. Allen is a member of the Support Personnel Association of Lee County (SPALC) and was a member during all times relevant to this matter. On October 15, 2014, the Lee County Sheriff's Office arrested Mr. Allen for one count of child abuse. The alleged victim is Mr. Allen's two-year-old son. Eventually the state attorney chose not to prosecute Mr. Allen. On October 10, 2014, Mr. Allen took the actions that led to his arrest. The same actions are the cause for his proposed dismissal. The morning of October 10, 2014, Mr. Allen was caring for his two-year-old son at home. Mr. Allen was hung over and irritable. He fed his son and watched cartoons with him. Mr. Allen and his wife were "potty" training the child. Sometime after lunch, in the early afternoon, the child defecated in his pull-ups, instead of telling Mr. Allen that he needed to use the bathroom. Mr. Allen lost his temper. He began "spanking" the small child. He struck the child at least ten times. Three or four of the blows were to the child's face and not "spanking" as normally understood. The others were to the child's buttocks and thighs. The blows bruised the child severely enough that they were visible four days later. Mr. Allen was immediately remorseful. Because he was upset and hung over, Mr. Allen called in sick to work, which started later that afternoon. When Mr. Allen's wife came home, he told her what he had done, and she observed the bruises. She took photographs of the bruises and made Mr. Allen leave the house. The photographs were not offered into evidence. After a few days, Mr. Allen and his wife talked, and she allowed him to return after he promised to change his behavior, including drinking and losing his temper. The bruises were discovered on October 14, 2014, when Mr. Allen left his child with the maternal grandparents. They called law enforcement. This led to a criminal investigation and Mr. Allen's arrest. During all his conversations with law enforcement officers, Mr. Allen was honest and remorseful. People outside the family, the school, and law enforcement became aware of the incident. Mr. Allen and his wife began receiving critical messages about it. When the School District learned of the charges, it began an investigation. In interviews with Andrew Brown, director of Professional Standards and Equity, Mr. Allen spoke truthfully and admitted what he had done. The School District determined that there was probable cause for disciplinary action. On November 21, 2014, it suspended Mr. Allen without pay and benefits. The Petition for Termination and this proceeding followed. Mr. Allen has never denied his actions. He did not testify about his remorse, the circumstances surrounding the event, or steps he has taken to prevent similar events. Mr. Allen provided a letter from SalusCare stating that he was enrolled in the Family Intensive Treatment Team. The letter says the program addresses substance abuse, mental health, and other concerns. It said Mr. Allen was making progress in his treatment plans. The letter is hearsay and cannot be the basis of a finding of fact. There is no testimony or other non-hearsay evidence to corroborate it. Consequently, it is not considered. § 120.57(1)(c), Fla. Stat. (2014).1/ Similarly, Mr. Allen provided a Character Witness Reference form with positive statements about him from nine people. Its statements, too, are uncorroborated hearsay and will not be considered. § 120.57(1)(c), Fla. Stat. Mr. Allen physically abused his small child. He has provided no evidence to support mitigation of discipline, other than a stipulated absence of discipline during his career with the School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order finding just cause to terminate the employment of Adrian Allen and dismissing him from his position with the Lee County School District. DONE AND ENTERED this 25th day of August, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 25th day of August, 2015.
The Issue Whether Petitioner, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2018.
The Issue The issue in this case is whether Petitioner has just cause to suspend Respondent for 30 workdays without pay?
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. (2009).1 Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Peters has been employed by Petitioner as a Special Education Teacher for eight years. Her first two years of employment as a full-time teacher were at Edison Park Elementary School. Peters has been assigned to Morningside Elementary School ("Morningside") as a full-time Exceptional Student Education ("ESE") teacher for approximately six years. She remains employed at Morningside presently. During the 2007-2008 and 2008-2009 school years, Respondent worked as an ESE teacher dealing with kindergarten and first grades. Even though Peters had a room, she went to the classrooms of the students assigned to her to perform her duties. Peters' job duties and responsibilities included but were not limited to developing IEPs, maintaining attendance and grade records, keeping students records, participating in various meetings and in-services, and performing work as required or assigned by the supervising administrator or his/her designee. At all times relevant hereto, Respondent was provided with an assigned class schedule. During Peters' employment at Morningside from August of 2005 through March of 2009, Respondent was disciplined numerous times for not complying with her job duties. Peters repetitively failed to adhere to her class schedule; failed to request administrative permission to leave the worksite; failed to follow faculty sign in/out procedures; left the school site during scheduled classroom work time; failed to complete student IEPs; failed to keep student grading, attendance, and other student records; and continually refused to obey the direct and reasonable orders given by her supervisors, Morningside Principal Ms. Kathleen John-Lousissaint ("Principal" or "John- Lousissaint"), and Morningside Assistant Principal Ms. Sandra Cue ("Assistant Principal" or "Cue").2 The School Board kept a record of the occurrences in Peters' personnel file and went through all the required procedures for disciplining Peters, including repetitive verbal directives, approximately 47 written directives by memorandums, numerous Conferences-for-the-Record ("CFR"), and ultimately written reprimands after Respondent continuously refused to comply with previously given directives. From October 4, 2006, to March 16, 2009, Peters failed to adhere to her schedule as written and was issued 16 written directives, including two written reprimands, to adhere to her class schedule and not to make any changes to the class schedule unless approved by the Principal or Assistant Principal.3 On September 3, 5, 8, 9, 10, 11, and 12, 2008, Peters did not adhere to her daily schedule as written when she didn't report to her assignment. Peters received her first written reprimand for failing to adhere to her schedule on September 21, 2008.4 The Principal went out of her way to work with Peters constantly and met with her numerous times providing verbal directives to follow the school policies including adhering to the class schedule. After the first reprimand, Peters continued to fail to adhere to her class schedule numerous times in November and December 2008 and January 2009. Peters received a second written reprimand for failing to adhere to her class schedule on March 16, 2008. Peters signed both of the written reprimands dated September 21, 2008, and March 16, 2008. Each informed Peters that "Any recurrence of the above infraction [would] result in further disciplinary action." By failing to adhere to her schedule, Peters burdened the Morningside administrators and other teachers who had to cover for Respondent or do her work. Peters also impaired the learning environment for the ESE students when she didn't show up, since she was responsible for educating the students assigned to her. Further, when Peters did not report to her assigned classes, she jeopardized the health, safety, and welfare of the children assigned to her care. From November 8, 2006, to February 16, 2009, Peters was issued several written directives including one written reprimand for failing to request authorization from the administration before leaving the school site, and three written directives for failing to sign in and out when leaving and returning to the school site, as per school site policy.5 Peters received two written reprimands on March 27, 2007, and on March 16, 2008, for failing to comply with the established timelines in the execution of a variety of her duties including, but not limited to, recording student grades, failing to complete IEPs in a timely manner, and failing to utilize the WISE system to complete IEPs. When Peters failed to complete her IEPs, the Morningside administrators had to get other teachers to complete Peters' job in addition to their own assignments. On February 2, 3, and 4, 2009, Peters failed to adhere to her schedule as written. Peters was reprimanded on February 20, 2009, for numerous violations of school policy. The reprimand was entitled RESPRIMAND-INSUBORDINATION and stated: On the following dates, November 3, 6, 18, 20, and 25, 2008, December 1, 5, 8, and 9, 2008, January 12, 13, 15 and 21, 2009 and February 2, 3, and 4, 2009, you did not adhere to your schedule as written. On December 10 and 11, 2008, you attended a two day WISE training without prior approval from this administrator. On January 13, 2009, you refused to meet with this administrator. On January 14, 2009, you did not attend a scheduled faculty meeting. Since your Conference-For-[the-]Record meeting in September, you have failed to follow your schedule on 16 occasions, did not attend a scheduled faculty meeting, and have refused to meet with this administrator on five different occasions and refused to meet with the Assistant Principal on one occasion. Your continuous defiance and compliance with the site directives issued on September 25, 2008 and reissued on October 20, 2008, is considered insubordination. It is your professional responsibility as a Miami-Dade County Public School employee to comply with directives issued by the site supervisor. You are hereby officially reprimanded for the following violations of your professional contractual responsibilities: Non-compliance with Miami-Dade County School Board Rule 6GX13-4A-1.21, Responsibilities and Duties.[6] Refusal to meet with this administrator. Failure to adhere to school site procedures. Failure to adhere to assigned schedule as written. At hearing, Respondent answered in the affirmative that she believed that the directives relating to adhering to a work schedule, seeking administrative approval before leaving a school site, and signing in and out when leaving campus were reasonable. Peters' journal, submitted to the School Board detailing her responses to the disciplinary action of February 20, 2009, stated “I’m not following the schedule because it doesn’t make sense.”7 After receiving the reprimand of February 20, 2009, Peters failed to secure approval from an administrator on either February 26, 2009, or March 3, 2009, when she signed out on the staff sign out log and left the building at a time when she was scheduled to work with students. On March 5, 2009, Peters refused to sign the memorandum dated March 4, 2009, entitled RESPONSIBILITIES AND DUTIES that the Assistant Principal provided Peters. The memorandum advised Peters that she had been told on February 20, 2009, to "adhere to [her] schedule and secure administrative approval prior to leaving the building at a time other than the scheduled lunch time.” It also stated: This memorandum serves as a final reminder that you are to adhere to your schedule and you are to request prior approval from this administrator to leave the building at anytime other than your scheduled duty free half hour lunch block. On March 16, 2009, John-Lousissaint observed Peters in the hallway at approximately 8:30 a.m. and instructed her to report to her scheduled assignment. At approximately 8:40 a.m., the Assistant principal saw Peters and told her several more times to report to her scheduled assignment. At 9:00 a.m. Peters was not in her scheduled classroom assignment. On March 16, 2009, the Assistant Principal gave Peters a memorandum dated March 16, 2009, entitled RESPONSIBILITIES AND DUTIES that stated, "You are reminded that you are to adhere to school site procedures and your schedule as outlined unless notified by an administrator." As a result of Peters actions described in paragraphs 21 and 22 above, on or about April 16, 2009, a CFR was held with Peters. Administrators addressed Peters' gross insubordination and misconduct at the CFR. Peters was instructed yet again to adhere to the directives previously issued by the Principal on numerous occasions, and to comply with the reasonable requests of the Principal. Peters testified at hearing that her personal relationship with the school administrators has become strained and she felt she was being singled out. Peters felt as though she were not being treated like a teacher. Peters asserted that she should work with higher level students and didn't feel like she was part of the Morningside team since she didn't have a homeroom.8 On or about May 18, 2009, Morningside's Principal observed Peters in the school's resource room, sitting in front of a laptop, during a time when Respondent was scheduled to be instructing students. John-Louissaint instructed Respondent to follow her schedule and report to room 103. Peters refused and replied, "No, I don't think I will be going." The Principal left and went and brought a union steward back to the resource room, and repeated to Peters, "Ms. Peters as your supervisor and in front of your union steward, you are directed to report to your scheduled assignment." Peters was insubordinate and refused to go stating again, "No, I am not going." The students in room 103 were unattended. On May 20, 2009, the Principal issued a memorandum to Peters regarding the May 19, 2009, incident stating that Respondent's "continuous defiance and non-compliance with previously issued directives is considered blatant and gross insubordination." On or about August 26, 2009, Peters was notified by letter that the Superintendent of Schools was recommending to the School Board to suspend her without pay for 30 workdays. The letter further notified Respondent the reasons for the recommendation included, but were not limited to: gross insubordination and violations of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties and 6Gx13-4A-1.213 Code of Ethics. At a regularly scheduled meeting on September 9, 2009, the School Board of Miami-Dade County took action to suspend Respondent for 30 workdays without pay for just cause including, but not limited to, gross insubordination and violations of those School Board Rules as set forth above in paragraph 28. Respondent was notified of the School Board's action by letter dated September 10, 2009. On March 15, 2010, the School Board filed its Notice of Specific Charges charging Respondent with misconduct in office, gross insubordination, and violation of School Board rules regarding responsibilities and duties, and ethics.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Peters without pay for 30 days. DONE AND ENTERED this 21st day of June, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 21st day of June, 2010.
Findings Of Fact The School Board employed respondent as a custodian at Hagen Road Elementary School for approximately three years. His assigned working hours were from 2:00 P.M.- 10:30 P.M., Monday-Thursday; 11:00 A.M.-7:30 P.M. on Friday; and 7:30 A.M.-3:30 P.M. on days when school was not in session. One of his job requirements was that he record his daily work hours on a Custodian Time-In and Time-Out Sheet" furnished by the School Board. (Testimony of Thompson) In January, 1983, Judith Kurzawski, Principal of Hagen Road Elementary School, noted that respondent, on three occasions, was not on school grounds during his assigned work hours, and that he had not checked out for the evening on his time sheets. She then met with respondent to discuss the seriousness of false time sheet reporting. Jack Thompson, Assistant Principal, and Ben Chapman, Custodial Foreperson, also attended the meeting. Respondent admitted falsifying his time sheets and agreed to correct them. Principal Kurzawski specifically directed that, in the future, he closely adhere to his assigned work hours and accurately record work check-in and checkout times. After the meeting, she wrote a letter to respondent reiterating her directive and warning that his failure to comply with them would result in her recommending that his appointment as custodian not be renewed. Respondent acknowledged receiving this letter. (Testimony of Thompson, P-1) When the 1982-83 school year ended, Mr. Chapman and Principal Kurzawski evaluated respondent's work performance for the year. On his evaluation form, they rated his attendance as "unsatisfactory" and reminded him to adhere to his work schedule and accurately report hours worked. On June 6, 1983, he signed this evaluation, indicating that he "agree[d] with its content." Yet on three occasions during the next school year, respondent was absent, without permission, from Hagen Road School during his assigned work hours. On September 1, 1983, he was absent from 8:00 P.M.-10:30 P.M.; on September 6, 1983, from 9:55 P.M.-10:30 P.M.; and on September 7, 1983, from 8:00 P.M. -10:30 P.M. Each absence was unauthorized. He falsely indicated on his time sheet that he had worked until 10:30 P.M., each evening. He made these entries knowing they were false. (Testimony of Thompson) On September 9, 1983, Assistant Principal Thompson confronted respondent with these time sheet discrepancies. Respondent admitted that, on each of these occasions, he left work earlier than shown on his time sheet, yet he gave no explanation for his actions. Mr. Thompson told him that if he did not resign, he would seek his immediate dismissal. Respondent replied that he would resign and find a job elsewhere. Later, respondent changed his mind. The Superintendent of Schools then filed his petition, recommending that respondent be dismissed. By leaving work early, without permission, and then concealing his departure by falsifying his time sheets, respondent seriously impaired his effectiveness as an employee of the School Board. His falsification of records was knowing, unexcused, and repetitive. As a result, he was paid for work not performed, his employer was defrauded, and public funds were wasted. He engaged in this activity despite his supervisor's prior warnings, clearly understood, that further falsification of time records would result in his termination. Respondent contends that he left work early on September 1, 1983, due to illness. This contention is rejected as unworthy of belief since it is uncorroborated, he did not seek approval to leave early, and, when later confronted by Assistant Principal Thompson, he did not give this as a reason for his absence.
Conclusions The School Board of Palm Beach County, Florida, has jurisdiction of the subject matter and the parties thereto. The School Board of Palm Beach County, Florida, has reviewed the entire record and takes exception to Conclusion of Law #3. The Hearing Officer determined that the Respondent is not guilty of gross insubordination as alleged by the Superin- tendent. The Hearing Officer cites Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981) as the authority for his conclusion. The Hearing Officer interpreted that case too narrowly by concluding that gross insubordination requires more than violation of a supervisor's directive. Rather, the court in Smith determined that the employee was not grossly insubordinate within the meaning of the Florida Statute since her action was an isolated outburst and was not "constant or continuing". Furthermore, the record in that case did not establish that the employee refused to obey any order of the director. In the case at bar, there was competent evidence presented at the hearing to show that the Respondent falsified his time records on more than one occasion. Respondent's action was continuous and in violation of an order by his superiors to accurately record the hours which he worked. Therefore, we modify the Hearing Officer's conclusion and find that the Respondent is guilty of gross insubordination, in addition to being guilty of misconduct, immorality , and willful neglect of duty. The Hearing Officer's findings of fact #2-6 support this conclusion. The Hearing Officer's conclusion of law #4 is adopted as the School Board's conclusion of law. All other conclusions of law which were immaterial or unnecessary, have been rejected. See, 120.57(1)(b)(9), Florida Statutes. ORDERED AND ADJUDGED that the employment of the Respondent, Eddie P. Jones, with the School Board of Palm Beach County, Florida, is hereby terminated effective October 5, 1983, and no back pay, salary, or other benefits of employment shall be granted to Respondent following his suspension without pay on September 15, 1983. DONE AND ORDERED this 15th day of February, 1984. CHAIRMAN SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA (SEAL) Filed with the Clerk of the School Board this 15th day of February, 1984. BETTY MOFFITT CLERK
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be dismissed from his employment for misconduct, immorality, and willful neglect of duty. DONE and ENTERED this 12th day of January, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1984.
The Issue Whether Respondent's employment as a teacher by the Miami- Dade County School Board should be terminated for the reasons specified in the letter of notification of suspension and dismissal dated June 20, 2013, and the Notice of Specific Charges filed on August 28, 2013.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Miami- Dade County, Florida. At all times pertinent to this case, Respondent was employed as a social studies teacher at Horace Mann Middle School ("Horace Mann"), a public school in Miami-Dade County, Florida. At all times material, Respondent's employment was governed, in part, by a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Dr. Jones-Carey, the principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Dorothy De Posada, the assistant principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Petitioner alleges, in its Notice of Specific Charges, an array of factual scenarios spanning several years that, when considered individually or in concert, supply just cause for Respondent's termination. Below, the undersigned has endeavored to address each seriatim. 2010-2011 School Year: Dr. Jones-Carey issued Respondent a letter of reprimand on May 23, 2011, concerning an alleged incident that occurred on April 27, 2011. On May 25, 2011, Dr. Jones-Carey held a Conference for the Record ("CFR") regarding this alleged incident.1/ Respondent was directed to strictly adhere to all Miami-Dade County School Board ("MDCSB") rules and regulations, specifically, rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213. 2011-2012 School Year: On April 13, 2012, subsequent to the investigation of an alleged incident that occurred on February 27, 2012, a CFR was held. Respondent was directed to adhere to all MDCSB rules and regulations, specifically 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics. Respondent was further directed to refrain from contacting any of the parties in the incident, refrain from using physical discipline, and "to conduct [herself] both in [her] employment and in the community in a manner that will reflect credit upon [herself] and M-DCPS." Respondent agreed to a 17-day suspension without pay regarding the alleged incident. 2012-2013 School Year: October 24, 2012 On November 16, 2012, subsequent to an investigation of an alleged incident that occurred on October 24, 2012, a CFR was held. Respondent was directed to adhere to all MDCSB policies, specifically 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; refrain from contacting any parties involved in the investigation; and "to conduct [herself] both in [her] employment and in the community in a manner that will reflect credit upon [herself] and M-DCPS." Additionally, on November 28, 2012, Respondent was issued a letter of reprimand concerning the October 24, 2012, incident. November 5, 2012 On November 5, 2012, Dr. Jones-Carey observed several male students standing outside of Respondent's classroom during the class period. While Petitioner contends said students were told to remain outside of the classroom at Respondent's instruction due to body odor, Petitioner failed to present sufficient evidence to support such a finding.2/ November 26, 2012 Shawnda Green-McKenzie is the Horace Mann social studies department chair and a social studies teacher. Ms. McKenzie explained that, on or around November 26, 2012, it was necessary for several homeroom classes to be "dissolved." The students in the dissolved homeroom classroom were to be added to the roster of other homeroom classes. Ms. McKenzie further explained that the homeroom teachers, such as Respondent, were unaware of the number of additional homeroom students they would acquire until the day the additional students arrived. On November 26, 2012, Ms. Green-McKenzie observed that a substantial number of the newly acquired students did not have desks or chairs available for their use in Respondent's homeroom class. She further observed some of the children sitting on the floor. Petitioner failed to present any evidence concerning when the new students presented themselves to Respondent's homeroom or the duration said students did not have available desks or chairs. While Ms. Green-McKenzie agreed that children sitting on the floor would "be kind of a safety concern if someone were walking around in the classroom," she further opined that Respondent's classroom was "definitely too small to take any additional desks" and adding additional chairs would make it "tight." February 8, 2013 On March 21, 2013, subsequent to an investigation of an alleged incident that occurred on February 8, 2013, a CFR was held. Respondent was directed to adhere to MDCSB policies and conduct herself in her employment and community in a manner that would reflect credit upon herself and the teaching profession. On April 9, 2013, Respondent issued a letter of reprimand concerning the alleged incident which likewise directed her to adhere to MDCSB policies and conduct herself in her employment and community in a manner that would reflect credit to herself and the teaching profession. February 20, March 7, and April 1, 2013 Dr. Jones-Carey testified that, on those occasions when a teacher is absent and a substitute teacher is unavailable, the students are typically "split" among classrooms within the same department. Teachers are expected to cooperate and receive the "split-list" students. Prior to February 9, 2013, Respondent was accommodating and amenable to accepting students on the "split-list." On February 20, March 7, and April 7, 2013, however, Ms. Green-McKenzie was informed that Respondent was unable to receive, or uncomfortable in receiving, any additional students. Respondent's refusal to accept the split-list students was premised upon her concern that accepting students, who may potentially have behavioral problems, may incite further problems between herself and the Horace Mann administration. After the second occasion (March 7, 2013), Ms. McKenzie-Green simply stopped placing Respondent's name on the split-lists. On each of the above-referenced occasions, Ms. McKenzie Green accepted the Respondent's split-list students into her classroom. Ms. McKenzie-Green explained that her classroom is a "double" that always has additional space and seating and can accommodate upwards of 60 students. Dr. Jones-Cary credibly testified that Respondent's unwillingness to accept the split-list children created a disruption in the "flow of instruction" and was disruptive to the operation of the school. March 1 and 5, 2013 On March 1 and March 5, 2013, Ms. De Posada observed Respondent, during class, seated in a chair in the doorway of her classroom with her feet up on the doorframe. On both occasions, Ms. De Posada directed Respondent to move inside the classroom; however, she refused. March 7, 2013 On March 7, 2013, Ms. De Posada observed that Respondent's classroom door was open. When Ms. De Posada directed Respondent to close the door, Respondent refused. In addition to Ms. De Posada's directive, Dr. Jones-Carey had previously issued an email directive to all faculty and staff to keep the classroom doors closed in an effort to preserve the newly-installed air-conditioning system. March 12, 2013 On March 12, 2013, Ms. De Posada was present in the main office with several parents, as well as clerical staff. Respondent was also present in the main office for the purpose of making photocopies. Due to the number and nature of individuals present, coupled with a pending deadline on another administrative matter, Ms. De Posada requested Respondent to leave the main office and offered clerical assistance in providing Respondent the needed copies. Ms. De Posada credibly testified that, in response to the request, Respondent complained loudly and defiantly, and refused to leave the office when directed. March 21, 2013 On March 21, 2013, Ms. De Posada presented to Respondent's classroom to conduct an official observation. On that occasion, she observed that, after the class bell had rung, Respondent's students remained outside and unsupervised. Ms. De Posada took it upon herself to usher the students inside the classroom. Respondent arrived prior to the late bell and took her seat at her desk. Ms. De Posada advised Respondent that she was there to officially observe and requested Respondent's lesson plans. Ms. De Posada credibly testified that Respondent thereafter opened her desk drawer, tossed her lesson plans to Ms. De Posada without speaking, and slammed the desk drawer.3/ Respondent proceeded to call roll and, upon completion of same, began reading the paper. Once finished her reading, Respondent remained in her chair and, with the exception of reprimanding three children, did not engage with the students. Respondent did not engage in any conversation with Ms. De Posada throughout the duration of the observation. Respondent concedes that she did not interact with Ms. De Posada during the observation because of her concern of being falsely accused of irate or belligerent behavior. April 3, 2013 On April 3, 2013, Horace Mann held a mandatory faculty meeting to provide training for the Florida Comprehensive Assessment Test ("FCAT"). Per the UTD Contract, teachers are required to extend their workday for the purpose attending faculty meetings; however, such meetings cannot exceed one hour and shall begin no later than ten minutes after students are dismissed. On this occasion, the faculty meeting was scheduled to begin at 4:00 p.m., however, it began a few minutes later to allow all teachers to arrive. Respondent, believing the UTD Contract allowed for her to leave at 5:00 p.m., left prior to the meeting being formally dismissed and without prior approval, at approximately 5:00 p.m. When Dr. Carey-Jones called out to Respondent, she continued to walk away from the meeting. Respondent was notified via a school-wide email that a make-up session for the FCAT training would be conducted at 8:20 a.m. Respondent perceived the make-up session was voluntary because it was scheduled prior to 8:30 (the time she believes she is required to work) and conflicted with a FCAT practice run also scheduled for that morning. Respondent did not seek clarification as to where she was to report. Accordingly, Respondent did not present to the training, but rather, went to the testing center. It is undisputed that Respondent did not complete the requisite training, and, therefore, was unable to proctor the FCAT exam. As a result, other teachers were assigned to cover Respondent's duties or responsibilities. April 24 and May 6, 2013 On April 24, 2013, a CFR was held and Respondent was directed to adhere to School Board polices and conduct herself in her employment and community in a manner that would reflect credit upon herself and her profession. On May 6, 2013, following Dr. Jones-Carey's recommendation that Respondent's employment be terminated, the Office of Professional Standards ("OPS") held a final CFR. Thereafter, OPS recommended that Respondent's employment be suspended pending dismissal.
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 finding Shavonne Anderson guilty of gross insubordination, suspend her employment without pay for a period of 180 school days, and place her on probation for a period of two years. Because Ms. Anderson has already been suspended for more than 180 school days, it is RECOMMENDED that her employment be reinstated, with the calculation of back pay not to include pay for the 180- day suspension period. DONE AND ENTERED this 30th day of December, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 30th day of December, 2013.
