The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Kenneth Ingber has been employed by Petitioner and assigned under a continuing contract to West Little River Elementary School. During Respondent's 23 years of employment by Petitioner, he resigned/retired twice. He was rehired by Petitioner after each resignation, the last rehiring taking place for the 1985/86 school year. His then-principal, Glenda Harris, hired him with the knowledge that he was an admitted recovering alcoholic. He told her that he was under control. She told him that she would give him a chance but that he would have to meet the expectations that all teachers have to meet. From the 1985/86 school year through the 1990/91 school year, Harris rated Respondent acceptable on his annual evaluations; however, during the 1989/90 school year, Respondent had an attendance problem when he began drinking again. Harris tried to get Respondent to obtain help, but he felt he could do it on his own. He deteriorated during that year but improved during the 1990/91 school year. During the time that Harris supervised Respondent, she had a problem with his not having lesson plans. He felt that he did not need them. For the 1991/92 school year, Respondent came under the supervision of Principal Lillian Coplin. Coplin was never advised of Respondent's alcoholism. On January 29, 1992, Respondent left school early without permission. He also failed to attend a Global Awareness Workshop scheduled for that day. Coplin discussed these failures with him on January 30, 1992. On January 31, 1992, Respondent arrived at work late and left early. The official working hours are from 8:15 a.m. to 3:20 p.m., but Respondent only worked from 9:47 a.m. to 2:50 p.m. On February 7, 1992, Coplin directed Respondent to observe the working hours set by the collective bargaining agreement between the Dade County Public Schools and the United Teachers of Dade (Labor Contract). On February 27 and March 2, 1992, Respondent failed to have lesson plans. On February 27, 1992, Assistant Principal Edith Norniella observed Respondent smoking outside of his classroom, but within view of his students. Prior to that date, Norniella had observed him smoking on school grounds on August 30, 1991, November 14, 1991 and February 18, 1992. On each of these occasions, she told him not to smoke on school grounds. Coplin had also told him several times not to smoke on school grounds. On March 3, 1992, Coplin directed Respondent to adhere to Petitioner's non-smoking rule. Norniella saw him smoking on school grounds at least two more times after that. On March 3, 1992, Coplin also directed Respondent to develop lesson plans according to the Labor Contract. On March 27, 1992, all teachers were given a site directive to turn in parent logs, gradebooks, and daily schedules before leaving for spring-break on April 3, 1992. On April 3, 1992, Respondent reported to work at 9:25 a.m. in spite of the directive given on February 7, 1992. On that same date, Respondent also failed to comply with the directive to turn in parent logs, gradebooks, and daily schedules. Moreover, by April 22, 1992, he still had not complied with that directive. On April 22, 1992, a conference-for-the-record was held with Respondent to discuss his attendance problems and other failures to comply with School Board rules, Labor Contract provisions, and administrative directives. During the conference, he stated that he lost the gradebook but that the principal would not like it anyway. He also admitted that he did not maintain a parent log. Respondent was warned that any further violation of directives would be considered gross insubordination. He was also issued a written reprimand and directed to comply with School Board rules, Labor Contract provisions, and site directives. He was advised of the School Board's Employee Assistance Program (EAP), a program which offers assistance to employees in overcoming personal problems that may be affecting their work. Respondent declined the assistance and treated the matter as a joke by posting the EAP referral on his classroom door. On May 27, 1992, Respondent was formally observed in the classroom by Norniella, using the Teacher Assessment and Development System (TADS). Respondent was rated unacceptable in preparation and planning and in assessment techniques. He did not have lesson plans, student work folders with tests, or a gradebook. It was impossible to assess his students' progress. Respondent was given a prescription to help him correct his deficiencies. Prescriptions are activities which the employee is directed to complete. He was directed to write detailed lesson plans and to turn them in to Norniella weekly. He was to prepare two teacher-made tests and submit those to Norniella for review. He was also to complete some activities concerning assessment techniques from the TADS prescription manual. His prescription deadline was June 16, 1992. On June 2, 1992, Respondent was wearing a "pocket-knife" on his belt. Both Coplin and Norniella considered the pocket-knife to be a weapon in violation of the School Board rule because, although Respondent did not physically threaten anyone with the knife, the wearing of such a knife was intimidating to students and to Coplin. The matter had come to Coplin's attention through a complaint from the parent of a student. In addition, both administrators believed that wearing a knife set a bad example for the students and did not reflect credit upon Respondent and the school system. On June 3, 1992, a conference-for-the-record was held to address the knife incident. Respondent was issued a written reprimand and directed to cease and desist from bringing the pocket-knife to school. He was further advised that any re-occurrence of that infraction would result in additional disciplinary action. On June 5, 1992, a conference-for-the-record was held to address Respondent's performance and his future employment status. During the conference, he admitted to not having had a written lesson plan during the May 27 observation. He was told of the Labor Contract provision which requires weekly lesson plans reflecting objectives, activities, homework, and a way of monitoring students' progress. He was also warned that if he did not complete the prescription from that observation, he would be placed on prescription for professional responsibilities and given an unacceptable annual evaluation. On June 19, 1992, a conference-for-the-record was held with Respondent. He had failed to correct his deficiencies and had failed to complete his prescription. Moreover, he still had not turned in his gradebook, parent log, and daily schedule, as directed on March 3, 1992. He was given an unacceptable annual evaluation because of his deficiencies in professional responsibility. Respondent verbally disagreed with that decision stating that the unacceptable evaluation was for simple paper-pushing requirements. The prescription for professional responsibilities required Respondent to review from the faculty handbook School Board policy on grading criteria, to submit his gradebook on a weekly basis to Coplin, to maintain a gradebook and a log of parent conferences, to maintain daily attendance, to submit student assessment records to Coplin for review prior to submission of the nine-week grade report, and to complete the prescription from the May 27 observation by September 15, 1992. Respondent's annual evaluation for the 1991/92 school year was overall unacceptable and was unacceptable in the category of professional responsibility. On September 20, 1992, a conference-for-the-record was held with Respondent because he was still wearing a "pocket-knife" in spite of the prior directive. He was directed not to wear the knife or the knife case. Respondent stated that he would not do as directed. On October 9, 1992, Respondent was formally observed in the classroom by Coplin and was rated unacceptable in preparation and planning and in assessment techniques. He did not have a lesson plan, student work folders, tests, or a gradebook. It would not be possible to evaluate the students' strengths and weaknesses. Moreover, if an administrator were called upon to explain to a parent why a student got a particular grade, the administrator would not have been able to do so. Respondent was prescribed activities to help him correct his deficiencies. He was directed to write detailed lesson plans and to turn them in to Norniella weekly. He was directed to complete specific activities in the TADS prescription manual dealing with lesson planning and assessment techniques and to prepare two teacher-made tests and to submit all to Coplin for review. The prescription was to be completed by October 30, 1992. By November 13, 1992, Respondent was exhibiting a pattern of excessive and unauthorized absences. The absences were unauthorized because he failed to call the school prior to his absences as required by directives contained in the faculty handbook. He was advised that his absences were adversely impacting the continuity of instruction for his students and the work environment. He was given directives to report his absences directly to the principal, document absences upon return to the worksite, and provide lesson plans and materials for use by the substitute teacher when he was absent. On November 13, 1992, it was noted that Respondent had not met the prescription deadline of October 30, 1992. Coplin gave Respondent a new prescription deadline of November 30, 1992. In addition, she made a supervisory referral to the EAP because of Respondent's excessive absences, unauthorized disappearance from work, poor judgment, and failures to carry out assignments. By the end of November, 1992, Respondent had accumulated 21 absences. While he was absent, there were no gradebook, lesson plans or student folders for the substitute teacher. The substitute teacher was told to create a gradebook, lesson plans, and student work folders. All was in order when Respondent returned to work. On December 11, 1992, Respondent was formally observed in the classroom by Norniella and was rated unsatisfactory in preparation and planning, in techniques of instruction, and in assessment techniques. Because his techniques of instruction were also rated unacceptable, Respondent recognized for the first time that his teaching performance was being criticized. He had dismissed the prior criticisms as simply problems with creating a "paper-work trail". Respondent was rated unacceptable in preparation and planning because he did not have a lesson plan. Norniella gave him a chance to turn in the lesson plans the following Monday, but he failed to do so. Respondent was unacceptable in techniques of instruction because he used the same materials and methods for all students regardless of their individual needs. Respondent failed to establish background knowledge before beginning the lesson. The sequence of the lesson was confusing to Norniella. Respondent covered three different subjects (vocabulary, science, and math), all within a period set aside for language arts. Respondent was given a prescription to help correct his deficiencies. He was directed to write lesson plans and to turn them in to Norniella on Fridays. He was to observe a reading/language arts lesson by another sixth- grade teacher. He was directed to maintain at least two grades per week in each subject for each student. He was also directed to complete specific activities in the TADS prescription manual relating to preparation and planning, techniques of instruction, and assessment techniques. He was directed to complete the prescription by January 15, 1993. He failed to complete any of the prescription activities. On January 4, 1993, a conference-for-the-record was held with Respondent to address his performance and future employment. His absences and reporting procedures were also discussed as was his failure to comply with his prescription and prior directives. During the conference, Respondent was rude, agitated, and disrespectful. He yelled at the principal. His behavior did not reflect credit upon himself and the school system. He treated the conference as a joke. As of January 20, 1993, Respondent still had no gradebook. On January 25, 1993, he was notified that upon his return to the school site, there would be a conference-for-the-record to deal with his noncompliance with the directives to maintain a gradebook and to complete his prescription activities. A conference-for-the-record was held with Respondent on March 3, 1993. It was noted that because of his absences, he had failed to meet the prescription deadline on January 15, 1993. Coplin gave him a new deadline of March 11, 1993. Respondent failed to meet the March 11, 1993, prescription deadline. Moreover, he still had not completed his prior prescription for professional responsibility. Because of these failures, Coplin extended the 1992 professional responsibility prescription through June 1993. On March 26, 1993, Respondent was formally observed in the classroom by Coplin and was rated unsatisfactory in preparation and planning and in assessment techniques. While Respondent had some lesson plans, he did not have one for each subject taught during the day. The student folders contained no tests. Respondent was prescribed activities to help him correct his deficiencies. He was directed to develop weekly lesson plans and to submit them on Wednesdays for the principal to review. He was also to complete an assessment techniques activity from the TADS prescription manual and was to submit the activity to Coplin for review. His prescription was to be completed by April 23, 1993. On April 1, 1993, Respondent was placed on prescription for professional responsibilities for failure to comply with School Board rules, Labor Contract provisions, and school site policies and directives concerning lesson plans, student assessment, record keeping, and maintaining a gradebook. He was directed to develop weekly lesson plans for each subject taught and to submit those to the principal for review. He was directed to read Article X of the Labor Contract and to submit a summary to the principal for review. He was directed to review the section of the faculty handbook concerning maintaining a gradebook. He was directed to maintain an updated gradebook with at least two grades per week per subject and to label the grades. He was directed to maintain a parental conference log in the gradebook. He was directed to submit his gradebook to the principal for weekly review. On May 12, 1993, Coplin advised Petitioner's Office of Professional Standards (OPS) that Respondent had failed to comply with the directive of November 13, 1992, concerning procedures for reporting absences. He had been absent on April 13, 16, 23, 27, and May 5, 6, 7, 10, and 11, 1993, without calling the principal in advance. Respondent claims that he called the school secretary at her home before 7:00 a.m. every time he was absent, except for one time. Although the secretary told him he would have to speak directly to the principal, he chose not to call the school when Coplin was there. Calling the secretary does not absolve him from his responsibility to comply with the principal's directive to speak to her personally. On May 19, 1993, Respondent was sent a letter directing him to schedule a conference at OPS. Respondent did not do so. On that same day, Coplin was advised by EAP that EAP was closing Respondent's case due to his noncompliance with the program. Respondent was absent without authorized leave from April 23 - June 17, 1993. Moreover, he had 106 absences for the school year. Nine of these were paid sick leave, and 97 were leave without pay. The school year has 180 student contact days. Because of Respondent's absences and failure to follow leave procedures, Coplin was not able to secure a permanent substitute teacher. Respondent's students were subjected to frequent changes in substitute teachers and a lack of continuity in their education. Respondent's annual evaluation for the 1992/93 school year was overall unacceptable and unacceptable in the categories of preparation and planning, assessment techniques, and professional responsibility. Because of Respondent's absences, the usual conference-for-the-record could not be conducted, and Respondent's annual evaluation was sent to him by mail. Respondent failed to complete all prescriptions given him by Coplin and by Norniella. By letter dated June 15, 1992, OPS notified Respondent that he was willfully absent from duty without leave. He was given an opportunity to provide a written response and was advised that failure to do so would result in the termination of his employment. On July 6, 1993, a conference-for-the-record was conducted by Dr. Joyce Annunziata at OPS. The conference was held to discuss the pending dismissal action to be taken by Petitioner at its meeting of July 7, 1993. During the meeting, Respondent was extremely disoriented, turned his back on Annunziata, did not take the meeting seriously, made irrelevant comments, carried a stuffed purple animal which he talked to and through, and had watery, bloodshot eyes. He also wore his "pocket-knife" to the conference. Petitioner suspended Respondent and took action to initiate dismissal proceedings against him on July 7, 1993.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining Respondent's suspension without pay and dismissing Respondent from his employment with the School Board of Dade County, Florida. DONE and ENTERED this 12th day of January, 1994, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-3963 Petitioner's proposed findings of fact numbered 1, 3-27, and 29-56 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 28 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 1-4 and 7-9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 5 and 14-16 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed finding of fact numbered 6 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 10-13 have been rejected as not being supported by the weight of the evidence in this cause. COPIES FURNISHED: William DuFresne, Esquire Du Fresne & Bradley 2929 S.W. 3rd Avenue, Suite 1 Miami, Florida 33129 Madelyn P. Schere, Esquire Dade County School Board 1450 N.E. 2nd Avenue Miami, Florida 33132 Mr. Octavio J. Visiedo, Superintendent Dade County School Board 1450 N.E. 2nd Avenue Miami, Florida 33132 The Honorable Doug Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Respondent, Derek E. Andrews, should be terminated for his absence without leave from April 12, 2007, until the end of the 2006-2007 school year.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter the following Findings of Facts are made: Respondent, Derek E. Andrews, is a school teacher employed by the School Board of Seminole County, Florida. William Vogel is, and has been, Superintendent of Public Schools for the School District of Seminole County, Florida, for all times material to the occurrences relevant to this case. Pursuant to Section 4, Article IX, Florida Constitution, and Sections 1001.30, 1001.31, 1001.32, 1001.33, 1001.41, and 1001.42, Florida Statutes (2006), the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. The relationship of the parties is controlled by Florida Statutes, the collective bargaining agreement, and School Board policies. Respondent's supervising principal for the 2006-2007 school year was Dr. Shaune Storch. Respondent had been granted a leave of absence that expired on March 30, 2007. Respondent's leave for the period March 16, 2007, through March 30, 2007, was an extension of a previous leave as requested by Respondent. Subsequent to the expiration of Respondent's leave on March 30, 2007, Respondent's supervising principal attempted to contact Respondent regarding his intentions for the remainder of the 2006-2007 school year. Respondent did not meet with his supervising principal or otherwise respond to her letter of April 5, 2007. Article XVI, Section I.2. of the collective bargaining agreement, provides that any teacher who is willfully absent from duty without leave shall forfeit compensation for the time of the absence and be subject to discharge and forfeiture of tenure and all other rights and privileges as provided by law. Respondent was absent without leave from April 2, 2007, through the end of the school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent, Derek E. Andrews, guilty of the allegations stated in the Petition for Termination and that his employment be terminated. DONE AND ENTERED this 20th day of September, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 20th day of September, 2007. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Derek E. Andrews Post Office Box 62 Tangerine, Florida 32777-0062 Dr. Bill Vogel Superintendent of Schools Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Honorable Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue presented is whether Respondent's employment by the School Board should be terminated.
Findings Of Fact At all times material hereto, Respondent Robert F. Ward was employed by the School Board as a teacher and was assigned to Richmond Heights Middle School, pursuant to a professional service contract. Willie Harris was the principal of Richmond Heights from 1988 to 1995. During those years, Harris gave Respondent verbal directives to follow School Board rules concerning the discipline of students. As punishment, Respondent inappropriately used excessive writing and standing and inappropriately placed students outside the classroom. Each time Respondent was warned that he was violating School Board rules in his methods of disciplining students, he would stop using those methods for a while but would then return to those methods and be warned again. Harris found it necessary to counsel Respondent every year. Principal Harris learned that Respondent responded better to male authority figures than to female authority figures. He, therefore, gave Respondent directives himself or through male administrators. Mona Bethel Jackson became the principal of Richmond Heights in July 1997. On October 2, 1998, Denise Franze, a parent, submitted a written complaint to Principal Jackson concerning Respondent's behavior at the school's Open House because Respondent appeared to be a very angry person. He spent the entire time that he met with her and other parents complaining about the school. She requested that her child be transferred out of Respondent's class. Respondent wrote her a very insulting, unprofessional response letter. His letter did not reflect credit upon himself or the school system. On November 17, 1998, Respondent left his class unsupervised, and two students became involved in a fight. Respondent was directed to properly supervise his class and was directed not to place any students outside his class unsupervised. At a faculty meeting on January 13, 1999, Principal Jackson reviewed School Board policies prohibiting inappropriate language/teacher conduct. At a faculty meeting on February 16, 1999, Jackson reviewed School Board procedures regarding the supervision of students. On March 26, 1999, student D. L. was being disruptive. Respondent told her to go outside the classroom. Because it was raining, D. L. refused to leave. Respondent again ordered her to go outside and called her "dumb." He then left his class unsupervised to deliver a memorandum regarding D. L.'s behavior to the school administrators. An assistant principal directed Respondent not to leave his class unsupervised. On March 30, 1999, Respondent was inside his newly- assigned portable classroom, by himself, writing on the board. An assistant principal asked Respondent where his students were, and Respondent answered that he did not know. Some of Respondent's students were found outside the portable classroom unsupervised, and others were found in the auditorium also unsupervised. Also on March 30, Respondent used the words "hell" and "damn" while aggressively reprimanding D. L., shouting at her, and shaking his fingers in her face. Respondent was reminded that School Board rules prohibit unseemly conduct and the use of abusive and/or profane language in the presence of students. On April 1, 1999, a conference-for-the-record was conducted with Respondent to address his failure to supervise his class, his inappropriate reprimand of a student, his lack of emergency lesson plans, and related matters. As a result of the conference, Respondent was rated unsatisfactory in professional responsibilities and was provided with a prescription to address his deficiencies. The prescription was to be completed by June 16, 1999. If done properly, the prescription should have taken no more than three weeks to complete. At the conference, Respondent was also directed to follow school procedures for the removal of disruptive students from class, to not leave students unsupervised at any time, to not expose students to unnecessary embarrassment or disparagement, to prepare lesson plans each day, to replenish emergency lesson plans, and to exercise the best professional judgment and integrity. He was warned that failure to comply with these directives would be considered insubordination and could lead to further disciplinary action. Respondent was given a copy of the School Board's employee conduct rule and the Code of Ethics of the Education Profession in Florida. On April 22, 1999, Respondent failed to report to the media center at the conclusion of a teacher workshop as directed in writing prior to the workshop and, again, at the beginning of the workshop. Respondent's annual evaluation for the 1998/99 school year was unsatisfactory due to Respondent's deficiencies in the area of professional responsibility. On June 16, 1999, Respondent's prescriptive activities were deemed unacceptable because they were careless, sarcastic, and unprofessional. Respondent admits that the prescriptive work he turned in to Principal Jackson was inappropriate. Respondent did not take his prescriptive activities seriously and did not attempt to benefit from them. On June 18, Principal Jackson directed Respondent to re-do his prescriptive activities and turn them in by October 1, 1999. Because Respondent ended the school year in an unacceptable status, his salary was frozen and he was precluded from summer school employment. Respondent assigned two students to detentions to be served before school on September 15 and 16, 1999. The students arrived at approximately 7:15 a.m. both days. At 8:00 a.m., Respondent had not yet arrived to supervise them on either day. When the bell rang at 9:00 a.m. to begin the school day, Respondent was still not there. One child's grandmother, who was concerned about the children not being supervised, complained to the school administrators. September 20, 1999, was a teacher planning day. Respondent was not present during his assigned work hours, 8:00 a.m. to 3:30 p.m. An "all call" for him was made over the public address system at 9:28 a.m., which went throughout the school. Respondent did not respond. An assistant principal checked his classroom, but Respondent was not there. She was unable to locate his car in the parking lot, and he had not signed the attendance roster. When Respondent arrived at approximately 10:00 a.m., he told Principal Jackson that he was not in the building because he had stopped at Publix. At the final hearing, Respondent testified that he was probably in the wood shop working on a personal project during his work hours when the "all call" announcement was made for him. Respondent failed to complete his prescription by the October 1, 1999, deadline. A conference-for-the-record was held on that date to address parental complaints about Respondent. The complaints involved the unsupervised detentions, Respondent's requiring students to stand for almost two hours as punishment, and Respondent's requiring students to write essays as punishment. Parents also complained that Respondent punished the entire class when only one student misbehaved. Respondent admitted that he administered those punishments. Respondent was directed to refrain from having students write essays for punishment, to refrain from having students stand for punishment, to refrain from assigning detentions when students would not be supervised by Respondent, to not expose students to unnecessary embarrassment or disparagement, and to follow all directives previously given to him. Since Respondent was already on prescription and had failed to complete the prescriptive activities by the October 1 deadline, Principal Jackson directed Respondent to complete his prescription by January 26, 2000. Respondent was warned that failure to comply with the directives would be considered insubordination and could lead to further disciplinary action. He was again provided with a copy of the School Board's employee conduct rule. On October 13, 1999, a conference was held with Respondent to discuss complaints from three parents. The complaints were that Respondent did not give clear directions to the students, that he had humiliated a student, that he required students to write essays as punishment, and that he was assigning math as punishment to his social studies students. The parents complained that Respondent was using academics as punishment. Principal Jackson directed him to stop humiliating students, to stop intimidating students, and to provide in-class assistance. She also directed Respondent to stop assigning math and requiring students to write repetitive "lines" as punishment. She directed Respondent to correct his grading practices and to not retaliate against any students. Respondent was given copies of the letters from the parents. The math that was assigned by Respondent was not an appropriate assignment for a sixth-grade geography class. The interim progress reports Respondent gave to his students corroborate that Respondent was using essays as punishment. After the conference, Respondent informed secretarial staff that he would be absent the next day, which was the day of the school's open house. Teachers have a contractual requirement to attend the school's open house. Respondent was not absent as a result of an illness or an emergency; rather, he simply decided to take a personal holiday on that day. On October 19, 1999, Respondent responded to a parental complaint with a letter that was unprofessional, demeaning, and insulting. His letter did not reflect credit upon himself or the school system. On October 29, 1999, Respondent was directed to report for a conference-for-the-record in the School Board's Office of Professional Standards on November 4, 1999. On November 2, 1999, Respondent attended a round-table discussion with a counselor, the parents of a student, the student, and all of that student's teachers. Respondent was abrasive to the student, loud, and intimidating. The student, who was communicative and comfortable before Respondent arrived at the meeting, was uncomfortable and would not speak while Respondent was present. After Respondent arrived, the student "clammed up," and his eyes "teared up." The next day, the student's father brought a letter to school reciting what had happened at the meeting and requesting that the student be transferred out of Respondent's class. The father and Respondent encountered each other in the school office, and Respondent invited the father to his classroom. While there, Respondent asked the father which grade the father wanted him to change. The father was surprised at Respondent's offer and explained to Respondent that he only wanted his son to get the grades his son deserved. On November 4, 1999, Respondent requested to leave school for a dental emergency. Since his conference-for-the- record was scheduled for that day, an assistant principal directed Respondent to submit documentation from his dentist to her or to the principal's secretary. Respondent failed to follow this directive in a timely fashion. Respondent was subsequently directed to comply with all directives given by his immediate supervisors. At Respondent's request, the conference-for-the-record was re-scheduled for November 9, and Respondent was directed to attend. Respondent did not attend the November 9 conference, which was scheduled to discuss his non-compliance with site directives, his performance assessment, parental complaints, and student complaints. As a result of the conference-for-the- record, which consisted of a review of Respondent's file, Respondent was directed to comply with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida, to provide an educational environment free from harassment and intimidation for all students, to not intimidate staff and faculty members, to use sound professional judgment at all times, and to use specific grading practices. He was warned that non-compliance with these directives could lead to further disciplinary measures. Respondent was provided with another copy of the School Board's employee conduct rule, the Code of Ethics, and the School Board's violence in the workplace rule. On December 15, 1999, a conference-for-the-record was held with Respondent to review his performance assessments and future employment status. Respondent was reminded that he was in his second year of unacceptable performance status, which if not remedied, could lead to termination of his employment. He was also directed to comply with the directives previously given to him by the Office of Professional Standards. He was warned that non-compliance with the directives could result in disciplinary measures. Respondent failed to comply with his prescriptive activities by January 26, 2000. On February 7, 2000, at 3:39 p.m., Principal Jackson directed Respondent to submit his prescriptive activities directly to her within 24 hours. This directive was reasonable since the Principal had repeatedly directed Respondent to complete his prescriptive activities since April 1999. Respondent refused to sign that he had received a copy of the memorandum memorializing this directive even after being directed to sign it. On February 8 Respondent did not come to work. Another teacher gave Respondent's prescriptive activities to the principal's secretary after 5:00 p.m. The principal did not accept the activities because neither of her directives had been followed: the prescriptive activities were not given directly to her, and they were turned in late. On February 17, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with prescriptive deadlines and to review his record and his future employment status. Respondent was reminded that if his deficiencies were not remedied, he could lose his job. Respondent was told that his failure to comply with the directives concerning his prescription was considered gross insubordination. Respondent was directed to place his prescriptive activities in the principal's hand by 12:30 p.m. the next day, February 18. He was warned that non-compliance would result in further disciplinary action. Respondent was absent from work on February 18, 2000, and did not attempt to give the documents to his principal until February 24 at 3:30 p.m. His principal refused to accept the package because it was so overdue. On February 28, 2000, Respondent was directed to report to a conference-for-the-record at the Office of Professional Standards at 9:00 a.m. on March 14, 2000. On March 13, 2000, Respondent was accused of battery and administering physically-demanding punishments to students. The investigation revealed that Respondent was still using inappropriate punishment and profanity with his students. The incidents described in paragraphs numbered 40-48 below were discovered. On March 2, 2000, Respondent called A. W. a "dummy," told him to "shut up," and ordered him to pull a heavy cylinder across the physical education field. The cylinder is a piece of equipment that is pulled by a tractor and used to flatten pavement. A. W. tried but could not comply. He was crying when he went to the school office, complaining that his hands hurt. Respondent ordered other students to pull or push the cylinder as punishment. Respondent also ordered students to push volleyball poles, or standards, which have tires filled with cement at the bottom. At the final hearing, Respondent admitted to administering this punishment one time. Respondent also ordered students to walk or run on the physical education field. At the final hearing, Respondent admitted to ordering students to walk to the far fence. Respondent ordered students to do "push-ups." At the final hearing, Respondent admitted he used "push-ups" as punishment at the election of the student in lieu of other discipline. Respondent ordered his students to move rocks located around his portable classroom. Respondent called the students derogatory names, such as "stupid," "dumb, dumber, and dumbest," and "imbecile." He told them to "shut up." In speaking with a security monitor, Respondent referred to one of his students as "a piece of shit." Respondent required his students to write essays and repetitive "lines" as punishment, which he admitted at the final hearing. He made his students stand for lengthy periods of time as punishment. At the final hearing, Respondent asserted that he only made them stand for 30-45 minutes. Respondent claims he was sending his students to "time-out" on the physical education field. Even if true, sending the students to the physical education field is not an appropriate time-out. It is humiliating and demeaning to the students, the students were not properly supervised, the students were not being educated, and the students were at risk of injury. The procedure for disciplining students at Richmond Heights was to counsel the student after the first violation, make contact with the parents after the second violation, and write a referral to the administrators after the third time. The School Board does not permit the physical punishment of students. On March 14, 2000, Respondent was two hours late for the scheduled conference-for-the-record. By the time he arrived, the other participants had left. He was directed to report for a re-scheduled conference at the Office of Professional Standards on March 27, 2000. On March 27, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with site directives regarding prescription deadlines, student discipline, violation of the Code of Ethics and of professional responsibilities, violation of School Board rules, and his future employment status. Respondent was directed to comply with all previously-issued directives, to refrain from retaliating against students and staff, to use sound professional judgment at all times, and to comply with all School Board rules, the Code of Ethics, and the Principles of Professional Conduct for the Education Profession in Florida. On May 15, 2000, Principal Jackson observed Respondent outside of his classroom, with his back to his class, talking on the telephone. The class was noisy. No one was supervising his students. He was again directed not to leave his classes unsupervised. On May 22, 2000, a conference-for-the-record was held with Respondent to address the pending action by the School Board to take dismissal action at its meeting of June 21, 2000. On June 21, the School Board suspended Respondent without pay and initiated this dismissal proceeding against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Notice of Specific Charges, affirming Respondent's suspension without pay, and dismissing Respondent from his employment with the School Board effective June 21, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001. COPIES FURNISHED: Stewart Lee Karlin, Esquire 400 Southeast Eighth Street Fort Lauderdale, Florida 33316 Madelyn P. Schere, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the School Board of Lee County (School Board) should terminate the Respondent, Christel Freeman, for fighting with another school bus employee on School Board property.
Findings Of Fact The Respondent, Christel Freeman, has been a school bus driver employed by the School Board since 2002. There was no evidence that she was anything other than an exemplary employee until an incident that occurred at the School Board’s Leonard Street bus compound at the end of the work day. She and her boyfriend, Mike Ortes, were driving their personal vehicle from the back of the compound to the front, where the employees clock out and usually visit for a while before going home, when she spotted another employee, Ashley Thomas, who had just recently been transferred to Leonard Street. The Respondent approached Thomas, who was visiting with co-workers at a picnic table, because she suspected that Thomas was having sexual relations with her boyfriend and wanted to tell Thomas to stay away from her boyfriend, stop interfering with the Respondent’s family unit, and stop “talking trash about her.” When she got within earshot, the Respondent asked Thomas if they could talk in private. Thomas said, yes, and the two walked away from the co-workers at the picnic table. The Respondent began to tell Thomas what she wanted to talk about, and the conversation soon became heated. After they left the view of the co-workers at the picnic table, they passed another co-worker who was sitting in a vehicle and who said something to Thomas. As Thomas turned to respond to the speaker, the Respondent struck Thomas with her hand or fist on the side of the face, near the eye. Thomas was carrying her car keys, cell phone, and purse and was surprised by the blow. When the Respondent followed up with another blow, Thomas began to defend herself by hitting back. The nearby co-workers very quickly ran to the combatants to separate them. In the process, the combatants fell down, with the Respondent landing on top. The scuffling continued for a brief time until the combatants were separated. By this time, Thomas’s shirt had been torn open at the front buttons, her face was bruised and swelling, and her eye was hurt. The Respondent also had an eye injury from being hit with Thomas’s car keys. The police were called, but the Respondent left the scene with her boyfriend by the time the police arrived. After some leading questions by the Respondent, Ortes supported her testimony that they went to the hospital for emergency treatment for her eye and, once there, called the police, who responded to the hospital. After discussing the incident with the police, neither woman pressed charges. The Respondent’s primary defense is that after she called Thomas a “nasty bitch,” Thomas struck her first with the car keys, and the Respondent defended herself. However, the other witnesses to the incident saw it the other way around, with the Respondent hitting first without provocation. The Respondent attempted to undermine that testimony by saying those witnesses were family and friends of Thomas. To the contrary, the evidence was that the family and friends of Thomas were not the eyewitnesses who testified; rather, Thomas’s family and friends either did not testify or testified that they were not eyewitnesses to the incident. While the Respondent attempted to downplay the state of her emotions at the time of the incident, it is clear from the evidence that she was angry at Thomas and initiated the conversation in that state of mind. It is possible that what triggered the Respondent’s violence was Thomas saying the Respondent should ask her boyfriend for the answers to her questions, which the Respondent took as flaunting an admission that they were having sexual relations. According to the Respondent’s testimony, her job with the School Board is very important to her and her family. Notwithstanding that she has not admitted instigating the fight with Thomas and throwing the first blow, she understands that the consequences of engaging in similar conduct again would certainly be the permanent loss of her job. For that reason, it is unlikely that she would put herself in that position in the future. There is a collective bargaining agreement between the School Board and the Support Personnel Association of Lee County (SPALC) that governs the Respondent’s employment. The procedure followed in the Respondent’s case is set out in sections 7.10 and 7.103 of the SPALC agreement. Section 7.10 of the SPALC agreement provides: The parties agree that dismissal is the extreme disciplinary penalty, since the employee’s job seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary actions(s) taken against SPALC bargaining unit members shall be consistent with the concept and practice of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee’s record. Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause. Section 7.10 also states that employee misconduct is a ground for suspension without pay or termination of employment. The SPALC agreement does not define misconduct. The School Board has policies that govern employee conduct. Policy 4.09 adopts a “zero tolerance” policy for threats of violence. It prohibits “any verbal, written or electronically communicated threat, suggestion or prediction of violence against any person.” Id. “Any serious threat of violence shall result in immediate disciplinary action and referral to the appropriate law enforcement agency.” Id. School Board Policy 5.29(1) states: “All employees are expected to exemplify conduct that is lawful and professional ” School Board Policy 2.02(2) describes and prohibits “unacceptable/disruptive behavior.” This includes “[u]sing unreasonable loud and/or offensive language, swearing, cursing, using profane language, or display of temper.” Id. at ¶ (b). It also includes “[t]hreatening to do bodily or physical harm to a . . . school employee . . . regardless of whether or not the behavior constitutes a criminal violation.” Id. at ¶ (c). It also includes “[a]ny other behavior which disrupts the orderly operation of a school, school classroom, or any other School District facility.” Id. at ¶ (e). Section 7.103 of the SPALC agreement allows an employee being terminated to either file a grievance under Article 5 or request a hearing before the School Board, but not both. Section 7.13 of the SPALC agreement provides that employees “shall not engage in speech, conduct, behavior (verbal or nonverbal), or commit any act of any type which is reasonably interpreted as abusive, profane, intolerant, menacing, intimidating, threatening, or harassing against any person in the workplace.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding the Respondent guilty of employee misconduct and either terminating her employment, or suspending her without pay and reinstating her upon entry of the final order. DONE AND ENTERED this 27th day of June, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 27th day of June, 2014. COPIES FURNISHED: Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Nancy J. Graham Superintendent of Lee County Schools 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Christel Freeman 2119 French Street Fort Myers, Florida 33916-4434
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with operating, controlling, and supervising all free public schools within the Broward County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times relevant to this proceeding, Respondent was employed with Petitioner as an exceptional student education ("ESE") teacher at Silver Ridge Elementary School in Broward County, Florida. The Events Giving Rise to this Proceeding Respondent has extensive educational training and experience in working with disabled and special needs students for many years. Respondent worked in the school system in Long Island, New York, as a paraprofessional for an estimated 13 to 14 years. Her duties included working with exceptional students at a cerebral palsy center, where she assisted teachers in changing students' diapers, feeding them, and assisting them in using various types of adaptive equipment. She also taught and tested special needs students having physical disabilities but possessing greater cognitive awareness. At the encouragement of teachers with whom she worked, Respondent pursued and received her bachelor's degree in elementary education in 1999, while continuing to work as a paraprofessional in the school system. Thereafter, she pursued her master's degree while working as a substitute teacher during the school year and as a teacher for summer school during the summer months. Respondent received her master's degree in special education in 2003. Respondent began working as an ESE teacher at Silver Ridge Elementary School in 2003, shortly after she moved to Florida. The allegations giving rise to this proceeding span the 2011-2012 and 2012-2013 school years. During both school years, Respondent's ESE students were disabled and most of them were nonverbal. Petitioner alleges that during both school years, Respondent engaged in physically and verbally aggressive and abusive actions toward students in her classroom in violation of Department of Education rules and Petitioner's policies. The 2011-2012 School Year Background Starting in August of the 2011-2012 school year, paraprofessionals Rostande Cherelus and Cara Yontz were assigned to assist in Respondent's classroom. Cherelus and Yontz both testified that they had a good working relationship with Respondent. However, this testimony is belied by the credible, persuasive evidence establishing that Respondent did not enjoy a smooth working relationship with either of them. The persuasive evidence establishes that the difficulties in Respondent's relationship with both paraprofessionals stemmed from their frequent tardiness, leaving the classroom during instructional time without Respondent's permission, and frequent use of their cell phones in the classroom during instructional time. Respondent let them know on many occasions that this behavior was not acceptable. The persuasive evidence further establishes that neither paraprofessional was particularly cooperative in assisting Respondent in the classroom. For example, when Respondent attempted to engage the participatory-level students in the various learning activities class, the paraprofessionals ——particularly Cherelus——would often respond with what Respondent characterized as "huffing and puffing," rolling of the eyes, crossed arms, and comments questioning the utility of engaging in activities to educate the students because "that kid can't do anything anyway." Respondent credibly testified that when admonished, Cherelus would make statements such as "thank God, God didn't give me a kid like that." Respondent consistently reported the ongoing problems with Cherelus and Yontz to then-Principal Marion Gundling and then-Assistant Principal Saemone Hollingsworth. However, it appears that this effort was in vain. By November 7, 2011, the situation in Respondent's classroom had deteriorated to the point that Respondent requested a meeting with Gundling and Hollingsworth to address the continuing problems with the paraprofessionals. After the November 7, 2011, the situation in Respondent's classroom did not improve. Respondent testified, credibly, that both paraprofessionals continued to be difficult to work with, that there was constant friction in the classroom, and that both paraprofessionals were aware of her lack of satisfaction with their behavior and job performance. They also knew that she communicated her dissatisfaction to the school administration. On December 1, 2011——notably, before Cherelus and Yontz alleged student abuse by Respondent1/——Respondent contacted Gundling and Hollingsworth by electronic mail ("email"), stating "[m]y classroom is an absolute disaster since our meeting." The email described in great detail2/ events, actions by the paraprofessionals, the dysfunctional atmosphere in Respondent's classroom arising from the paraprofessionals' behavior and poor job performance, and Respondent's continued dissatisfaction with them. On December 15, 2011, Yontz filed a written statement with the school administration alleging that Respondent had taken abusive actions toward students D.N. and J.M. Yontz's statement alleged that in October of that year, Respondent had become angry with D.N., screamed at her, and grabbed her hair from behind. The statement also alleged that in October of that year,3/ Respondent punished student J.M. by confining her to the classroom bathroom from 8:30 a.m. to 1:45 p.m. The statement further alleged that on December 15, 2011, Respondent had become angry with and screamed at student J.M., pushed her face, and attempted to secure J.M's glasses, which were too large for her face, with a rubber band. According to Yontz's statement, Respondent pulled J.M.'s hair, causing her to make noises indicating that she was in pain. Cherelus filed a written statement with the school administration on December 16, 2011, stating that when she had returned from break the previous day, J.M. was upset. According to Cherelus' statement, when she asked J.M. what was wrong, J.M. said "Ms. T. pull" and made a pulling motion while pointing to her glasses. On December 16, 2011, Respondent was removed from her classroom pending an investigation of the allegations against her made by Yontz and Cherelus. Ultimately, the investigation yielded insufficient evidence to support Yontz's and Cherelus' allegations and Petitioner took no disciplinary action against Respondent at that time. She was returned to her classroom in April 2012. Notwithstanding that the investigation absolved Respondent, Petitioner now seeks to take disciplinary action based on these accusations. Allegations in Amended Administrative Complaint In Petitioner's Amended Administrative Complaint filed in this proceeding on April 1, 2014, Petitioner alleges that during the 2011-2012 school year, Respondent engaged in physically and verbally aggressive and abusive acts toward students D.N., J.M., A.S., and C.A., who were assigned to her class. Each of these allegations is addressed below.4/ Student D.N. Petitioner alleges, in paragraph 5. of the Amended Administrative Complaint, that in October 2011, Respondent screamed at student D.N. for being unable to complete her work and pulled her hair. At the final hearing, Cherelus and Yontz both testified that one day in the classroom, Respondent grabbed D.N. by her ponytail. However, their testimony is inconsistent regarding key details and circumstances. Cherelus testified that Respondent grabbed D.N. and pulled her up from her chair because she had asked D.N. to get up and go get her classwork, and D.N. did not do so. Cherelus testified that Respondent said something to the effect of "[l]et's go, you don't want to do your work" and pulled D.N. up from her chair by her ponytail, causing D.N. to fall on the floor. Cherelus testified that D.N. screamed and Respondent let her go. Cherelus further testified that Respondent did not scream at D.N. Yontz, on the other hand, testified that Respondent screamed at D.N. because she was not focusing on the classwork in front of her on her desk. Yontz testified that at one point, Respondent grabbed D.N. by the back of the neck and forcefully held her head to keep her facing downward. Yontz testified that Respondent then grabbed and tugged D.N.'s ponytail and pulled her head backward to force her to look at her work. The inconsistencies between the Cherelus' and Yontz's testimony are significant. Cherelus described a situation in which Respondent jerked D.N.'s ponytail to make her get up from her desk, and that as a result, D.N. fell to the floor. However, Yontz described a situation in which D.N. remained seated and Respondent jerked her head backward by her ponytail to make her focus on the work on her desk.5/ Additionally, Yontz testified that Respondent screamed at D.N., while Cherelus specifically stated that she did not scream. Yontz testified that Respondent grabbed the back of D.N.'s neck, while Cherelus did not testify to that effect. Testimony regarding key details and circumstances surrounding the incident is vital to determining credibility in a case such as this, where the witnesses for both parties have differing accounts of the events at issue. Here, due to the inconsistencies in their testimony regarding significant details and circumstances regarding the alleged incident, the undersigned finds neither Cherelus' nor Yontz's testimony persuasive or credible. By contrast, Respondent provided a clear, detailed account of the incident that significantly differed from that provided by Cherelus and Yontz. On the day in question, Respondent was working with D.N., who has a movement-related disability, to direct her to focus on her work. Because of D.N.'s disability, she was easily distracted and often looked around at activity occurring on either side of her. Thus, when Respondent engaged in one-on-one instruction with D.N., she would stand behind D.N. and use a series of voice and gestural commands, verbal and gestural prompts, and physical prompts as necessary, to get D.N. to focus on her work. Pursuant to D.N.'s individual education plan ("IEP"), she had worn a weighted vest to assist her in focusing on her work, but shortly before the incident, her IEP had been amended to no longer include use of the vest, so Respondent had instead begun using physical compression on D.N.'s shoulders, with her thumbs touching the back of her neck, to assist D.N. in focusing. Respondent credibly testified that the compression was slight, not forceful. On the day in question, Respondent used the compression technique but D.N. continued to look around, so Respondent put her hands on the sides of D.N.'s face to focus her to gaze downward at her work. When Respondent removed the compression from D.N.'s shoulders, she popped backward. Respondent credibly testified that she did not pull D.N.'s hair or jerk her head backward by her ponytail. Respondent's account of the incident is credible and persuasive.6/ Further, the timing of Respondent's email communication with Gundling and Hollingsworth is significant to determining the comparative credibility of Respondent, Cherelus, and Yontz. Respondent's December 1, 2011, email to Gundling and Hollingsworth described in significant detail the events and actions that had taken place in Respondent's classroom following her November 7, 2011, meeting with them. Of particular note is Respondent's detailed description of Cherelus' actions on December 1, 2011, toward student D.N.——specifically, that Cherelus pulled D.N's hair and screamed at her. Respondent's email account of that incident, sent on the same day it was alleged to have occurred and describing it in substantial detail, is far more persuasive than both Cherelus' or Yontz's subsequent statements and hearing testimony regarding the incident. The credible, persuasive evidence leads to the inference that as a result of the paraprofessionals' poor relationship with Respondent, they accused her——after she had reported their poor performance——of the very conduct toward student D.N. that Respondent previously reported that Cherelus had committed. This is a far more reasonable inference than the version of events that Petitioner espouses——which would require the undersigned to infer that Respondent somehow knew that she was going to be accused, at a later date, of pulling D.N.'s hair and screaming at her, so she covered herself by preparing and sending the December 1, 2011, email accusing Cherelus of engaging in that same conduct. For these reasons, the undersigned finds the testimony of Cherelus and Yontz regarding the alleged incident involving D.N. incredible and unpersuasive. Conversely, the undersigned finds Respondent's testimony regarding D.N. credible and persuasive. Accordingly, Petitioner failed to prove the allegations in paragraph 5. of the Amended Administrative Complaint regarding student D.N. Student J.M. In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that in October 2011, Respondent confined student J.M. to the classroom restroom from 8:30 a.m. to 1:45 p.m. as punishment for urinating in her pants. Petitioner's direct evidence to support this allegation primarily consisted of Yontz's testimony.7/ According to Yontz, J.M. came to school one morning after having wet her pants the previous day, and Respondent immediately placed her in the classroom restroom, with the door closed, to punish her.8/ Yontz testified that Respondent left J.M. in the restroom by herself with the door closed beginning at 8:30 a.m. until 1:45 p.m., only being allowed to leave the restroom for lunch in the cafeteria. Yontz also testified that because J.M. was confined to Respondent's classroom restroom all day, the other students in Respondent's class had to use the restroom in other classrooms. Cherelus did not testify regarding this alleged incident.9/ Respondent's clear, credible explanation of this incident differed sharply from that provided by Yontz. Because J.M. frequently would urinate in her pants, her mother would send multiple sets of clothing to school so that Respondent could change J.M.'s clothes when this happened. J.M. had urinated on herself the previous day and had gone through her last set of clothing that day, so Respondent sent a note home to J.M.'s mother asking her to send a fresh set of clothing to school the following day. However, when J.M. arrived at school the next day, she had urinated in her pants and her mother had not sent extra clothing. Respondent changed J.M. into a borrowed set of D.N.'s clothing. J.M. again urinated in her pants and at that point, there was no extra clothing in the classroom for J.M. to wear. Respondent sent Cherelus to the school clinic to see if there was extra clothing that J.M. could wear and she also contacted J.M.'s mother to bring clothing to school for J.M. During the time it took for Cherelus to go to the clinic and return with clothing for J.M. to change into, Respondent put J.M. in the restroom. Respondent could not recall the exact amount of time that J.M. was confined to the restroom, but estimated that it was a short amount of time. She credibly testified that J.M. did not spend the entire day confined to the restroom, and that J.M. was not placed in the restroom as punishment, but, rather, to await a change of clothing. J.M.'s mother, Shakima Brown, verified Respondent's account of the incident. Brown testified that Respondent called her on the day in question to request that she bring a change of clothes to the school. Brown lived only ten minutes away, and she directed Respondent to place J.M. in the restroom until she could bring the extra clothing to the school. Brown testified, credibly, that J.M. had never communicated to her that Respondent confined her to the restroom as punishment, and that had that happened, J.M. would have let her know. The credible, persuasive evidence supports Respondent's account of this incident. The undersigned finds Yontz's account of this incident incredible and unpersuasive. Petitioner also alleges, in paragraph 6. of the Amended Administrative Complaint, that on December 15, 2011, Respondent verbally abused J.M., slapped her face, and popped her with a rubber band that she had tied to J.M.'s glasses in an effort to keep them on her face. Yontz is the only witness whose testimony Petitioner presented who claimed to have actually seen the incident. Yontz testified that on the day in question, J.M. was attempting to write her name but was unable to do so without making mistakes. According to Yontz, this annoyed Respondent, who screamed at J.M. Yontz testified that J.M.'s glasses kept falling off, so Respondent tied a rubber band on the ends of them to keep them from falling off. However, the rubber band was too tight so kept popping J.M.'s ear, causing her to make noises as if she were in pain. According to Yontz, Respondent pushed J.M.'s face and screamed at her "oh, you're so annoying, you freaking idiot." Yontz testified that Respondent did not slap J.M.'s face.10/ Cherelus' also testified regarding this incident. She testified that on that day, she took J.M. to another classroom, and that as she was doing so, J.M. cried. Cherelus testified that when she asked J.M. what was wrong, J.M. said "Ms. T slapped me" and gestured in a manner that Cherelus interpreted as showing that Respondent had slapped J.M.11/ On cross examination, Cherelus acknowledged that she did not see Respondent slap J.M., pull her hair, or otherwise hurt her. Cherelus further acknowledged that J.M. is largely nonverbal and incapable of articulating sentences, and that she only said "Ms. T." while making a pulling motion. In any event, Cherelus did not have personal, independent knowledge of this alleged incident, and her testimony was based on J.M.'s limited statement and gesture. Maureen McLaughlin, the child abuse designee for Silver Ridge Elementary School, also testified regarding this alleged incident. McLaughlin testified that Yontz brought J.M. to her office,12/ and that at Yontz's prompting, J.M., using a teddy bear, indicated that Respondent had pushed her head using an open hand. McLaughlin testified: [a]nd basically, it's hard to enact, but J. took her hand, sort of open like this, and what I remember is that her head turned, like, she turned her head. So it was hard to tell, like, is it a slap, is it a push, but it was an open hand and her head ended up being turned because of it. McLaughlin reported the incident to the abuse hotline.13/ Respondent provided a credible, persuasive explanation of the incident. She testified that J.M. previously had a pair of glasses that did not fit her and had used a teal elastic band to hold them on her face. At some point, J.M. lost both the elastic band and her glasses, so Respondent contacted J.M.'s mother regarding getting another pair of glasses for J.M.; however, J.M.'s mother told her that they could not afford to purchase another pair of glasses. Respondent gave J.M.'s mother a pair of glasses frames that had belonged to her daughter, and J.M.'s mother had the frames fitted with J.M.'s prescription. However, those glasses also did not fit J.M.'s face and fell off when she looked down. On the day in question, Respondent tried, unsuccessfully, to tie the glasses on J.M.'s face using a large rubber band. The rubber band popped, causing J.M. to make a sound. Respondent apologized, tried one more time to tie the glasses on J.M.'s face using the rubber band, then gave up. Respondent testified that while she was attempting to tie the glasses on J.M.'s face, J.M. was moving around, so Respondent had J.M. put her head down on the desk. J.M. was hearing-impaired and had put her head down on the side on which her functioning ear was located, so Respondent used her open hand to turn J.M.'s head to the other side. Respondent credibly testified that she did not slap J.M., scream at her, or pull her hair. J.M.'s mother, Shakima Brown, testified that she had been informed of the incident concerning J.M.'s glasses and that on her own, over a period of days, had asked J.M. several times if anyone had hit her. Brown testified, credibly, that J.M. said "no" every time she was asked.14/ The credible, persuasive evidence establishes that Respondent did not scream at J.M., did not slap her face, and did not intentionally hurt her by popping her ear with a rubber band. Accordingly, Petitioner failed to prove the allegations in paragraph 6. of the Amended Administrative Complaint. Student A.S. In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that Respondent handled A.S. in a physically rough manner, causing him to sustain a scratch on his neck. Cherelus testified that she did not recall any incident involving a student named "A.," and she could not recall his last name. Yontz testified that one day, she took the children out for recess, and as they were leaving, A. was in the room with Respondent. A. subsequently came outside and was crying, and Yontz observed scratch marks on A.'s neck. Yontz testified that she had asked what had happened, and Respondent told her that A. had scratched his neck on the corner of the counter as he put trash in the trash can. Neither Yontz nor Cherelus saw Respondent scratch A., and Petitioner presented no other evidence showing that Respondent scratched A. The sum of Petitioner's evidence regarding this allegation is that A. was scratched while in the classroom with Respondent. There is absolutely no competent substantial evidence in the record showing that Respondent scratched A. Additionally, neither Yontz nor Cherelus, or any other witness, specifically identified "A." as the student "A.S." named in paragraph 5. of the Amended Administrative Complaint. Thus, Petitioner failed to present any competent substantial evidence linking the testimony about "A." to any allegations in the Amended Administrative Complaint. Accordingly, Petitioner failed to prove the allegations set forth in paragraph 5. of the Amended Administrative Complaint involving student A.S. Student C.A. Petitioner alleges, in paragraph 7. of the Amended Administrative Complaint, that C.A. went home with scratches on his neck and face over a three-day period, and that when Respondent was questioned, she claimed that C.A. "had an encounter with a tree." Presumably, paragraph 7. is intended to charge Respondent with scratching C.A. and then lying about it. However, this paragraph does not expressly allege that Respondent scratched C.A. or otherwise injured C.A., so fails to allege that Respondent engaged in conduct that, if proven, would violate Petitioner's policies or Department of Education rules. Further, to the extent paragraph 7. could be read to sufficiently allege that Respondent scratched or otherwise injured C.A., there was no testimony presented at the final hearing by anyone having personal knowledge of the alleged incident. Thus, Petitioner failed to present any competent substantial evidence supporting this allegation.15/ Thus, Petitioner failed to prove the allegation involving student C.A. set forth in paragraph 7. of the Amended Administrative Complaint. The 2012-2013 School Year Background Petitioner alleges in the Amended Administrative Complaint that during the 2012-2013 school year, Respondent again engaged in physically and verbally abusive acts toward students assigned to her class. Paraprofessionals Shirley Brown and Monica Jobes were assigned to assist in Respondent's classroom in the 2012-2013 school year. That year, approximately nine ESE students were assigned to Respondent's classroom. The credible, persuasive evidence made abundantly clear that neither Brown nor Jobes enjoyed a smooth working relationship with Respondent. This was, in large measure, due to the fact that Respondent had high expectations regarding their performance in assisting her in the classroom, and she consistently reminded Brown and Jobes of those expectations.16/ In particular, Respondent made clear that her——and, by extension, the paraprofessionals'——job entailed taking reasonable and necessary measures to work with students to help them achieve to their capabilities. Respondent testified, persuasively, that neither Brown nor Jobes were dedicated to this approach and instead viewed their jobs more as caretakers or "babysitters" of the students for the school day. Respondent frequently made clear to Brown and Jobes that as the teacher, she was in charge of the class and the instructional approach and all other activities and aspects of classroom management. It was apparent from the credible, persuasive evidence that Brown and Jobes resented Respondent's repeated, overt assertion of authority over them. The persuasive evidence establishes that Brown was as much as a half-hour late to Respondent's class nearly every day, and that Respondent also regularly had to admonish her about frequent use of her cell phone for personal matters during instructional time. Brown also frequently disregarded Respondent's instructions on a range of student-related matters, and when Respondent confronted her, Brown verbally lashed out.17/ The persuasive evidence also establishes that Jobes often sent and received personal text messages during instructional time, causing her to be distracted and interfering with her work. The persuasive evidence established that Brown's and Jobes' behaviors were disruptive to the classroom environment and, in some instances, posed a danger to the students, and that Respondent let them know that their behavior was unacceptable. Shortly before the holiday vacation in December 2012, a holiday celebration was held in Respondent's classroom. While Respondent tended to the other students in the class and their parents, she specifically asked Brown and Jobes to stay with and tend to student C.R., since he did not have a parent present at the celebration. At some point, both paraprofessionals left C.R. alone. While unattended, C.R. ingested something to which he was allergic, went into anaphylactic shock, and ultimately had to be transported to the hospital. In early January 2013, shortly after school commenced following the holiday vacation, Respondent's students went to the music teacher's classroom. Brown was going to place C.R. on the floor, notwithstanding that Respondent had specifically directed her not to do so because he might again ingest something that could make him ill. At that point, Respondent told Brown not to place C.R. on the floor, to which Brown responded "don't worry, I got this" or something to that effect. Respondent tersely admonished Brown and reminded her that it was her (Respondent's) call because she was the teacher.18/ It was apparent from Brown's testimony that she greatly resented Respondent's assertion of authority over her. To address Brown's ongoing behavior and performance issues, Respondent requested a meeting on January 9, 2015, with Principal Hollingsworth, Assistant Principal Long, and ESE Supervisor Vickie Bloome. At the meeting, Hollingsworth informed Brown that Respondent had complained to her about her (Brown's) repeated cell phone use during classroom instructional time and directed her to refrain from using her cell phone during that time. Notwithstanding this meeting, nothing changed in Respondent's classroom. Respondent continued to experience friction in working with the paraprofessionals, who knew that Respondent had complained to the school administration about their performance. On January 16, 2013, an incident involving C.R., discussed in detail below, occurred. During this incident, C.R. became very aggressive, fought, bit and scratched himself, and grabbed for Respondent's insulin pump, which she wore on her arm. As discussed in greater detail below, Respondent and C.R. fell on the floor. Respondent prepared a written report detailing the incident. Persons who witnessed the incident, including Brown and Jobes, signed the report, and Respondent filed it with the school administration that day. On January 23, 2013, Respondent called a meeting with Jobes and Brown to address their ongoing performance issues, update them on student issues, and cover common core implementation procedures. In the email Respondent sent to Jobes and Brown regarding the meeting, she reminded them: "STILL seeing phones being checked and answered during class time. Even if a phone rings during class, it should NOT be answered until your personal time." At the meeting, Respondent once again reminded Brown and Jobes that they were not to use their cell phones during classroom instructional time. On the afternoon of January 23, 2013, following Respondent's meeting with her and Jobes, Brown reported to Assistant Principal Long an incident in which T.P. allegedly said "Ms. T. hurt me." At some point, Jobes also reported to Long that T.P. told her the same thing.19/ Jobes also sent an email to Hollingsworth that afternoon describing a situation in which T.P told her "Ms. T. hurt me." Thereafter, Long spoke with Respondent to get her version of what had happened. At some point on the evening of January 23, 2013, Respondent sent an email to Long stating that she had not been alone with T.P. that day. It was apparent from Respondent's email that she felt that could not trust Brown. She requested that Brown be removed from her classroom. Brown was removed from Respondent's classroom on the morning of January 24, 2013. At some point thereafter, Brown prepared, signed, and filed a report, dated January 23, 2013, alleging that Respondent had engaged in numerous aggressive and abusive acts toward students over a period of months. It is obvious in reading the report——which references Brown's removal from Respondent's classroom———that it was not prepared until sometime after Brown was removed from Respondent's classroom on January 24, 2015. Jobes also signed the report. She testified that Brown had prepared it and that she had contributed "notes." Brown also prepared and filed another written statement alleging that Respondent had engaged in specific instances of abusive and aggressive behavior toward students in her class. This report also was dated January 23, 2013, but again referenced her removal from Respondent's classroom, so obviously was prepared sometime after January 24, 2013. On the evening of January 24, 2013, Jobes sent an email to Hollingsworth requesting to be removed from Respondent's classroom. The email stated: "I came home today so stressed and exhausted from Ms. T all day at me." Jobes, who was pregnant, was concerned that the stress she was experiencing in working with Respondent in her classroom would adversely affect her health. On January 25, 2013, Jobes was removed from Respondent's classroom. On or about January 29, 2013, Respondent was removed from her classroom and reassigned to another position in the school system pending the outcome of an investigation conducted by the Broward County Sheriff's Office Child Protective Investigations ("CPI") Section. In a statement dated February 3, 2013, Jobes alleged that Respondent had taken aggressive and abusive actions toward certain students in her class over a period of months. She also stated that she felt bullied because Respondent, at times, spoke to her disrespectfully, and that Respondent would "constantly remind everyone in the room that she is the boss and if they wanted to be the boss then they need to go get a 4-year degree." Notably, prior to their January 23, 2013, meeting with Respondent, neither Jobes nor Brown had ever reported that Respondent had engaged in aggressive or abusive behavior toward her students.20/ Allegations in Amended Administrative Complaint In the Amended Administrative Complaint, Petitioner alleges that Respondent engaged in physically and verbally aggressive and abusive behavior toward specific students in her class. Each of these allegations is addressed below. Student M.M. In paragraph 9. of the Amended Administrative Complaint, Petitioner alleges that Respondent grabbed student M.M. by the back of her neck, held her head down in the garbage can to make her retrieve an open bag of chips, and forced her to eat them because she had asked for them. At the hearing, Brown and Jobes both testified that on one occasion during classroom snack time, Respondent had given M.M. a bag of chips at her request. M.M. ate a few chips, then tossed the bag in the trash can. Brown and Jobes testified that Respondent held M.M. by the back of the neck and forced her to remove the chips from the trash can. On direct examination, Jobes testified that Respondent forced M.M. to eat the chips, but on cross-examination, testified that, M.M. did not eat the chips. Brown testified that M.M. ate some of the chips but did not finish. Respondent confirmed that she did make M.M. retrieve the chips from the garbage can, but explained the context and the circumstances for making M.M. do so. She credibly denied that she had forced M.M. to eat the chips. Specifically, M.M. had been purchasing school lunches, but Jobes and Brown informed Respondent that M.M. was not eating her lunch. Respondent contacted M.M.'s mother, and collectively, Respondent and M.M.'s mother arrived at a plan in which M.M. would pick out her lunch and snack items at home. The items would be packed in her lunch box, and she would bring her lunch and snacks to school every day. M.M.'s mother also sent a large bag of snacks for M.M. that was kept in the classroom closet and M.M. would get the snack of her choice at snack time. M.M.'s mother specifically requested that Respondent send home anything that M.M. did not eat so that she (M.M.'s mother) would know what M.M. was and was not eating. On the day at issue, M.M. requested a bag of chips. Respondent gave them to her and M.M. returned to her seat, where she ate one or two chips, then threw the bag of chips away in the trash can. Respondent saw this and told M.M. to retrieve the chips from the trash can. Respondent did this so that she could send them home with M.M., consistent with the plan she had devised with M.M.'s mother. Consistent with Respondent's method of prompting M.M.'s behavior, she asked M.M. three times to remove the chips from the trash can. She then added a gestural prompt, done multiple times, that consisted of pointing to the trash can to inform M.M. exactly what she wanted her to do and where she was to go. When M.M. did not respond, Respondent took M.M. by the hand, led her to the trash can, and again gestured and asked her to remove the chips. Again, M.M. did not respond, so Respondent employed a physical prompt that consisted of placing her hand on M.M.'s shoulder and hand and applying enough pressure to show M.M. that she needed to bend down to retrieve the chips. At that point, with Respondent's help, M.M. retrieved the chips from the trash can. Respondent told M.M. to put them in her lunch box so that she could take them home, consistent with M.M.'s mother's request. Respondent credibly testified that she did not tell M.M. she had to eat the chips or force her to eat them. The evidence does not establish that M.M. cried or was distressed as a result of Respondent's actions, and there was no evidence presented to show that M.M. was injured or sickened as a result of this incident. The credible, persuasive evidence establishes that Respondent did not punish M.M. for throwing the chips away, that she did not forcefully grab M.M. by the back of the neck or hold her head down into the trash can, and that she did not force M.M. to eat the chips. The evidence instead shows that Respondent's actions in dealing with M.M. on this occasion were appropriate and were consistent with her discussions with M.M.'s mother. Petitioner did not prove the allegations in paragraph 9. of the Amended Administrative Complaint. Student T.P. In paragraph 10. of the Amended Administrative Complaint, Petitioner alleges that in December 2012, Respondent force-fed student T.P., causing him to regurgitate. The undisputed evidence establishes that T.P. often refused to eat. On the day in question, T.P. purchased lunch from the cafeteria but he refused to eat the lunch, so was brought back to the classroom, where Respondent attempted to get T.P. to eat his lunch. Brown testified that Respondent forced a piece of chicken and chicken skin into T.P.'s mouth, that he was crying hysterically, and that he gagged. Brown further testified that Respondent made a video recording of T.P. eating. Jobes, who also was present when the incident occurred, did not testify that Respondent force-fed T.P.——only that Respondent was verbally urging T.P. to eat plantains. She did not testify that T.P. gagged or regurgitated. She also testified that Respondent made a video recording of the incident. Respondent testified that T.P. was a very picky eater who did not eat well, and that he regurgitated on the way to lunch every day. She testified, credibly, that she had discussed this issue with T.P.'s parents, and they had directed her to encourage him to eat.21/ Because the sight of other students eating or the smells of food would cause T.P. to vomit, he typically ate at a small table in the cafeteria positioned so he could see the outdoors. On the day in question, the students ate lunch in the classroom. T.P. was having particular difficulty eating that day because he was situated with the entire class as they ate, making him uncomfortable. In an effort to persuade T.P. to eat, Respondent went over to him, picked up a piece of food and coaxed him to eat. T.P. regurgitated all over his food. At that point, Respondent stopped trying to persuade T.P. to eat and sent a note home to his parents describing what had happened. Respondent's version of events is credible. By contrast, the testimony of Jobes and Brown regarding this incident was inconsistent, incredible, and unpersuasive. Thus, Petitioner did not prove the allegations in paragraph 10. of the Amended Administrative Complaint. In paragraph 14. of the Amended Administrative Complaint, Petitioner alleges that on January 23, 2013, Respondent grabbed T.P. by the back of the neck and pushed him toward the door, causing him to stumble and fall to the ground and to verbalize that "Ms. T. hurt me." Jobes testified that on that day, she was in the cafeteria when Brown and T.P. entered, with T.P crying. Jobes testified that Brown told her at lunch that she (Brown) had heard some kind of altercation while she was in the classroom restroom. Jobes did not see Respondent grab, push, or take any other action toward T.P. Jobes testified that later that day, T.P. told her "Ms. T. hurt me," and held his hands in a "U" shape. Jobes interpreted that as indicating that Respondent had choked T.P. Brown testified that she actually saw Respondent grab T.P. by the back of the neck and push him toward the door, causing him to fall, and that he got up, crying, and went with Brown and the rest of the class to lunch. She testified that later in the afternoon, T.P. told her and Jobes that "Ms. T. hurt me." Specifically, she testified: I didn't understand him clearly, you know. So Ms. Jobes was on the other side. He turned, he said 'Ms. Jobes, Ms. Jobes, Ms. T. hurt me, she grabbed me like this." And I, like, what? He said 'I'm going to tell them, I'm going to tell them, Ms. Brown, that Ms. T. hurt me, you see, Ms. T. hurt me.' The undersigned finds Brown's testimony incredible and unpersuasive. First, Brown's statement that she actually saw Respondent grab and push T.P. is inconsistent with her statement made to Jobes while at lunch that same day, that she had been in the restroom at the time and had heard an altercation. Further, the evidence showed that while T.P. is somewhat verbal, he is not capable of the extended, coherent discourse that Brown claims he verbalized in telling her and Jobes that Respondent had hurt him. The undersigned also assigns no weight to Jobes' testimony regarding whether the alleged incident actually occurred. Jobes did not witness the alleged incident, so has no personal independent knowledge regarding whether it occurred. Thus, Petitioner did not prove the allegations in paragraph 14. of the Amended Administrative Complaint. Student M.P. In paragraph 11. of the Amended Administrative Complaint, Petitioner alleges that in an effort to make M.P. stop crying, Respondent jerked her chair backward to scare her to make her stop crying, and that when M.P. did not stop crying, Respondent laid the chair down on the floor so that M.P.'s feet were in the air, leaving her in that position for approximately 20 minutes. Brown and Jobes both testified that M.P. often cried and rocked back and forth in her chair. They testified that in order to make M.P. stop crying, Respondent would try to scare her by jerking the chair backward. Then, if M.P. did not stop crying, Respondent would lay her chair down on the floor so that M.P.'s feet were in the air, and she would leave M.P. in that position until she cried herself to sleep. Both Brown and Jobes testified that they had seen Respondent do this on numerous occasions. Respondent acknowledged that she had, on more than one occasion, laid M.P. down on the floor in the Rifton chair,22/ but, again, provided credible context for taking this action. Specifically, as a result of her exceptionality, M.P. would constantly verbalize and often would rock in her chair. When she became agitated, she would rock her chair so violently that she tipped the chair backward. Initially, Respondent had moved M.P.'s chair against a bookshelf, but M.P. banged her head on the bookshelf. In an effort to prevent M.P. from hurting herself, Respondent then removed M.P. from her chair and placed her on the floor; however, M.P. banged her head on the floor. At that point, Respondent placed M.P. in the Rifton chair. M.P. continued to rock violently, so Respondent ordered a Rifton chair with footrest; however, that measure did not solve the problem with M.P.'s rocking. Respondent then considered placing M.P.'s chair up against the teacher's desk, which would help stabilize the chair but had nothing against which Respondent could bang her head. On one occasion, as Respondent tipped the chair back at a 45-degree angle to place it against her desk, she noticed that M.P. calmed down and closed her eyes. Thereafter, Respondent would sometimes tip M.P.'s chair against her or her desk if she was not otherwise occupied with activities. However, when she was occupied with other activities, she would sometimes completely recline the Rifton chair, with M.P. strapped in it, on the floor. She did this because it calmed M.P., who otherwise would constantly vocalize, cry, and rock back and forth. To determine whether this was an appropriate technique, Respondent asked colleagues who also taught ESE students about their view of this technique and whether there were better techniques of which they were aware. Respondent testified, credibly, that the consensus among other ESE teachers was that if the technique worked to soothe the child and did not endanger her, it was appropriate to use. Respondent also had consulted regularly with occupational specialist Mariana Aparicio-Rodriquez regarding techniques to prevent M.P. from rocking her chair so that she would not tip her chair over and injure herself, but they had not collectively arrived at a solution to the problem. Respondent testified that she and Aparicio-Rodriquez had not specifically discussed reclining the Rifton chair on the floor with M.P. strapped in it. One day, while Respondent was alone in the classroom, Aparicio-Rodriquez entered the classroom and saw M.P. completely reclined on the floor in the Rifton chair. Initially, Aparicio- Rodriquez was alarmed that M.P. had tipped the chair over. Aparicio-Rodriquez testified that Respondent told her that she had placed M.P. on the ground to give her a sense of what it felt like to fall back. Respondent then picked up the chair and placed M.P. in an upright position. Aparicio-Rodriquez confirmed that during the entire time that she was in Respondent's classroom, M.P. was calm, unhurt, and not in distress, and that she did not cry. Aparicio-Rodriquez testified that she did not believe this was an appropriate or useful technique for teaching M.P. not to rock in her chair, and she had intended to report the incident to her supervisor, but because one of Respondent's paraprofessionals informed her that the matter was going to be reported, Aparicio-Rodriquez did not report it. Aparicio- Rodriquez testified that she did not consider the incident to constitute child abuse, so did not report it to the Department of Children and Families. On cross-examination, Aparicio-Rodriquez stated that it was her opinion, from an occupational therapist's perspective, that using the Rifton chair in such a manner was not appropriate; however, she conceded that placing M.P. on the floor in a reclined position in the Rifton chair was not unsafe, and that M.P. was neither hurt nor in imminent or potential danger. She acknowledged that she and Respondent had a difference of opinion regarding the propriety of the use of the Rifton chair in this manner.23/ Aparicio-Rodriquez did not identify any statute, rule, policy, or other applicable standard that was violated by Respondent's use of the Rifton chair in this manner. The persuasive evidence supports the inference that Respondent's placement of M.P. in the Rifton chair in a reclined position on the floor was not intended as a disciplinary measure to frighten or punish M.P. for crying or rocking in her chair, and was appropriate under the circumstances. Respondent credibly testified that she had tried numerous measures to prevent M.P. from harming herself while rocking back and forth, and that when she inadvertently discovered this technique, she discussed it with other ESE professionals, who had suggested that she continue using it since the child was not distressed or injured and the technique worked to soothe her and prevent her from rocking back and forth and potentially injuring herself. Aparicio-Rodriquez disagreed with Respondent regarding the appropriateness of the technique, but she was neither qualified nor presented as an expert witness in appropriate teaching techniques for ESE students or in any other subject, and she did not identify any applicable professional or other standards that were violated by Respondent's use of the Rifton chair in this manner. The persuasive evidence establishes that Aparicio- Rodriquez and Respondent had a difference of opinion regarding the appropriateness of this technique; however, unlike Aparicio- Rodriquez, Respondent had actual successful experience in using this technique without harming M.P. Thus, Respondent's view regarding the appropriateness of using this technique under the circumstances is afforded greater weight than Aparicio- Rodriquez's view. Petitioner did not prove that Respondent distressed, injured or otherwise harmed M.P., placed M.P. in danger, or violated any applicable statute, rule, policy, teaching technique, or standard by placing M.P. in the Rifton chair in a reclining position. Thus, Petitioner did not prove the allegations set forth in paragraph 11. of the Amended Administrative Complaint. Petitioner also alleges that on one occasion, Respondent disciplined M.P. for crying by placing a plastic bag of ice directly on M.P.'s bare chest, and when that technique was unsuccessful, Respondent placed the bag of ice on M.P.'s back, causing her to cry more loudly. Petitioner presented the testimony of Jobes to substantiate this allegation. Jobes testified that "a couple of times," she saw Respondent place bags of ice under M.P.'s clothing on her bare skin in an effort to get M.P. to stop crying, but that M.P. would not stop crying. Petitioner did not present the testimony of any other witnesses to corroborate Jobes' testimony. Respondent flatly denied ever having placed ice on M.P. for any reason, and stated that under any circumstances, she did not know how that would have helped make M.P. stop crying. Respondent also denied having kept ice in the refrigerator in her classroom. Respondent's testimony was credible, and Jobes' testimony was not credible, regarding these allegations. Accordingly, Petitioner did not prove the allegations in paragraph 12. of the Amended Administrative Complaint. Student C.R. In paragraph 13. of the Amended Administrative Complaint, Petitioner alleges that on one occasion, Respondent removed C.R. from his wheelchair, screamed in his ear, held both hands behind his back, laid him face-down on the floor, and laid on top of him for several minutes as he gasped for air. The undisputed evidence shows that on the morning of January 16, 2013, student C.R. (also referred to as "C.J." in the final hearing testimony) arrived at school in an extremely emotionally-distressed state. Although C.R. is a small child who weighs approximately 30 pounds and is confined to a wheelchair, he becomes physically aggressive when distressed and is capable of inflicting injury on others by biting, scratching, and hitting. Upon arriving at school that day, C.R. physically struggled with school personnel, including Jobes, Brown, and Cherelus. Brown took C.R., still upset, in his wheelchair to Respondent's classroom, where he was placed in his classroom chair. C.R. attempted to grab, bite, and scratch Respondent, Jobes, and Brown, bit his own hands, and rubbed and scratched his own face, arms, and legs. Respondent left him in his chair and he eventually calmed down. At that point, Respondent removed C.R. from his chair and carried him to another classroom, where the rest of the class was engaged in instructional exercises. Thereafter, when Respondent carried C.R. back to her classroom, C.R. again became very upset and bit and scratched her. At that point, Respondent notified the school administration and C.R.'s mother of the incident involving C.R. that morning. Assistant Principal Long visited Respondent's classroom to determine what had happened. As of 11 a.m. that day, C.R. was still seated in his classroom chair aggressively biting his own hands and rubbing and scratching his face, arms, and legs.24/ Respondent prepared and submitted an incident report detailing these events, and Brown, Jobes, and Cherelus, and another school staff member, Julie Weiss, signed and dated the report that same day. Jobes testified she read the January 16, 2013, incident report before signing and dating it that same day. She stated that although she had signed the document without being under duress, she had questioned Respondent regarding its accuracy before signing it. Brown testified that she signed the January 16, 2013, incident report that day, but did not read it before she signed it. It is undisputed that at some point in the day on January 16, 2013, Respondent and C.R. ended up on the floor of Respondent's classroom, with Respondent laying on top of C.R. However, there is conflicting evidence regarding the time of day, sequence of events, and circumstances that led to this incident. Jobes and Brown both testified that the events that led to Respondent and C.R. being on the floor with Respondent laying on top of C.R. occurred in the morning after C.R. came to school in an emotionally distressed state, and that Respondent had placed C.R. on the floor and laid on top of him to punish him for his aggressive behavior. However, their testimony is contradicted by the version of events detailed in the January 16, 2013, incident report——which they both had signed and dated that same day, thus tacitly acknowledging its accuracy. As discussed in greater detail below, the credible, persuasive evidence establishes that the incident during which Respondent and C.R. ended up on the floor actually occurred later that same day, and that afterward, C.R. was taken from the classroom to the school clinic and did not return to the classroom for the rest of the day. Had Brown and Jobes been correct regarding the time of day when the incident occurred, C.R. would have been removed from the classroom during the morning. However, according to the January 16, 2013, incident report, C.R. was still in the classroom as of approximately 11 a.m. that day. Indeed, according to the incident report, Assistant Principal Long visited the classroom to investigate the events that were detailed in the report. Had C.R. been removed from the classroom in the morning after the incident, Long would have discovered that when she visited the classroom.25/ Further, Respondent would have known that so would not have stated in the written incident report that C.R. was still in the classroom as of 11 a.m. that day. It is undisputed that Jobes did not actually witness Respondent place C.R. on the floor. Jobes testified that when she looked over from another part of the classroom where she had been tending to other students, she saw C.R. face down on the floor with Respondent on top of him. Notwithstanding that by her own admission, Jobes did not witness the entire incident between Respondent and C.R., she nonetheless testified that Respondent held C.R. down on the floor for three to five minutes.26/ Brown claims to have witnessed the entire incident between Respondent and C.R. She testified that C.R. was acting aggressively, so to punish him, Respondent picked him up, flipped him around, placed him face-down on the floor, and laid on top of him for approximately 20 seconds as he gasped for breath. As noted above, the credible, persuasive evidence establishes that the allegation regarding Respondent laying on top of C.R. arose from an incident that occurred later in the day on January 16, 2013, after lunch and after the incident that had happened earlier that day. The credible evidence establishes that when C.R. returned to Respondent's classroom after having had lunch in the cafeteria under Jobes' and Brown's supervision, his face was red and he was scratching himself and squirming in his chair. Respondent became very concerned, from the previous experience that school year, that C.R. was again having an allergic reaction to something he had eaten. Respondent removed C.R. from his wheelchair in order to place him in his Rifton chair so that she could administer his epi-pen to counter any allergic reaction he might have been having. Respondent is diabetic and wears an insulin pump strapped to her left arm. Respondent testified, credibly, that as she was removing C.R. from the wheelchair, he grabbed at her insulin pump. In an effort to prevent C.R. from pulling her insulin pump off of her arm, Respondent jerked her hand and arm backward, causing her to lose her balance. She fell to the floor with C.R. and landed on top of him. Respondent estimated that she and C.R. were in that position for perhaps five seconds,27/ at which point she scrambled off of C.R. and placed him in his Rifton chair. C.R. was then taken to the clinic to address his allergic symptoms and did not return to the classroom that day. Respondent testified, credibly, that Brown did not witness the entire event because for part of it, she was in the restroom with M.P., consistent with their established routine after the students returned from lunch. The undersigned finds Jobes' and Brown's version of the incident unpersuasive and incredible.28/ Their testimony was imprecise, inconsistent, and directly contradicted by other credible evidence regarding the incident. By contrast, Respondent's testimony regarding the incident was specific, precise, and detailed. The undersigned finds her account of the incident credible and persuasive. Thus, Petitioner failed to prove the allegations in paragraph 13. of the Amended Administrative Complaint. Allegations Regarding Unspecified Students Petitioner alleges, in paragraph 8. of the Amended Administrative Complaint, that Respondent "was observed grabbing students by the arm and forcefully pulling them to the ground." The Amended Administrative Complaint does not identify the students whom Respondent is alleged to have treated in such a manner. Jobes testified that "one or two times" she had seen Respondent grab a student by the arm and pull that student to the ground in an effort to get the student to sit down. She could not recall which students she allegedly saw Respondent treat in that manner and she did not provide any detail regarding these alleged incidents. Her testimony was not corroborated by any other competent evidence in the record and was too vague and lacking in detail to be deemed credible or persuasive. Brown testified that on one occasion, Respondent pushed M.P. to make her walk faster, causing her to fall to the ground. Although Brown identified the specific student, she provided no temporal context or detail regarding the incident. Her testimony was confused and imprecise, so was neither credible nor persuasive. Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the arm and forcefully pulled them to the ground. Petitioner also generally alleges, in paragraph 8. of the Amended Administrative Complaint, that on occasion, Respondent would grab students by the neck to force them to look at their work. However, neither Brown nor Jobes identified any specific students to whom Respondent's alleged conduct was directed or provided any detail or context in which these alleged incidents occurred, and their testimony was too vague and imprecise to be deemed credible or persuasive. Petitioner did not present any other competent substantial evidence to substantiate this allegation. Respondent testified that at times, it was necessary for her to physically focus students' attention on their work. At those times, she would place her hands on the student's head and turn the student's face down toward the desk so that the student could attend to his or her work. She testified that she did not grab students by the back of the neck or engage in any forceful techniques as she focused their attention on their work. Her testimony was credible and persuasive. Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the neck and forced them to look at their work. Petitioner also alleges, in paragraph 8. of the Amended Administrative Complaint, that "[i]n one incident, Respondent crumbled [sic] a student's paper into a ball before throwing it at the student." The student whom Respondent is alleged to have treated in this manner was not identified in the Amended Administrative Complaint. Paragraph 8. specifically states that the incidents alleged therein occurred "shortly after the commencement of the school year in August 2012." However, the only evidence Petitioner presented in support of this allegation was the testimony of Cara Yontz, a paraprofessional assigned to Respondent's classroom in the 2011-2012 school year——a completely different school year than Respondent's actions alleged in the Amended Administrative Complaint. Thus, Petitioner failed to present any evidence to substantiate this allegation in paragraph 8. Even assuming that the reference in the Amended Administrative Complaint to the 2012-2013 school year was a drafting error and that Petitioner actually intended to allege that Respondent engaged in such conduct during the 2011-2012 school year, Petitioner still did not prove this allegation by credible, persuasive evidence. Yontz testified that on one occasion, a student named "D." was having difficulty with his work and that twice, when he turned his work in to Respondent, she yelled at him, crumpled up his paper, and threw it back at him, causing him to cry. Petitioner did not present any other competent substantial evidence to support this allegation. Respondent denied having thrown D.'s paper at him and testified, credibly, that she never had thrown anything at any student. The undersigned finds Respondent's testimony on this point credible and persuasive. Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent crumpled a student's work and threw it at him. Petitioner also alleges in paragraph 8. that Respondent verbally abused unspecified students, making statements such as "they're so stupid," and that she was "happy that God never gave her kids like them." Petitioner did not present credible, persuasive evidence proving this allegation, and Respondent credibly testified that she had not, and would not, ever address a student in such a manner. Failure to Provide Statement On March 4, 2013, the Broward District Schools Police Department issued a Notice to Appear for Statement ("NTA") to Respondent, informing Respondent that an investigation regarding a reported incident had been initiated. The NTA informed Respondent that on March 11, 2013, she was required to appear at a designated location and provide a statement as part of the investigation. The NTA further informed her that a representative of her choice could be present during the statement and that her failure to appear on the scheduled date and to provide a statement would constitute gross insubordination and lead to disciplinary action up to and including termination. Respondent is a member of the Broward Teacher's Union ("BTU") and was represented by Diane Watts, a field staff representative with BTU, in the investigation. Watts had contact with Kathleen Andersen, a detective with the Broward District Schools Police Department regarding scheduling the appointment and other matters with respect to Respondent's statement. At some point before Respondent was to appear and provide her statement, Andersen called Watts to give her a "heads-up" that the investigation was "going criminal"——meaning that a criminal investigation was being commenced and that criminal charges may be filed against Respondent. Watts testified, credibly, that when a matter "goes criminal," the BTU retains a lawyer to represent the member being investigated. At that point, BTU had not yet retained an attorney to represent Respondent in any investigation that may "go criminal." Under those circumstances, it is customary for the employee not to appear and provide a statement. Watts testified, credibly, that she informed Andersen that under the circumstances, Respondent would not appear as scheduled on March 11, 2013, to provide the statement. Watts understood Andersen to have agreed that, given the circumstances, Respondent was not required to appear and, in fact, she credibly testified that she believed Andersen had called her to give her a "heads-up" specifically so that she and Respondent would not make a wasted trip to appear at the location of the scheduled statement, only to find out there that the investigation had "gone criminal"——at which point, Watts would have advised Respondent not to make a statement pending BTU's retention of a lawyer to represent her. Based on her belief that she had an understanding with Andersen, Watts advised Respondent that she was not required to appear and provide a statement on March 11, 2013. Therefore——specifically at Watts' direction and advice——Respondent did not appear and provide a statement on March 11, 2013. At the final hearing, Andersen disputed that she had agreed with Watts that Respondent did not need to appear and provide a statement as directed in the Notice to Appear. Andersen testified that pursuant to Petitioner's Policy 4.9, Respondent was required to appear and provide a statement, and that she had not done so.29/ IV. Findings of Ultimate Fact Petitioner seeks to suspend Respondent without pay and to terminate her employment as a teacher on the basis of just cause, pursuant to section 1012.33, Florida Statutes. The statute defines just cause to include immorality, misconduct in office, incompetency, gross insubordination; and being convicted of or found guilty of, or entering a plea of guilty of, regardless of adjudication of guilt, any crime involving moral turpitude. Here, Petitioner charges that just cause exists, on each of these bases, to suspend Respondent without pay and terminate her employment. As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to establish each element of each offense with which Respondent is charged. Further, whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation.30/ For the reasons discussed in detail above, Petitioner failed to prove, by a preponderance of the competent substantial evidence, any of the allegations in the Amended Administrative Complaint, and therefore failed to prove any of the administrative charges stated in the Amended Administrative Complaint. Petitioner asserts in Petitioner's Proposed Recommended Order that "Petitioner had a number of witnesses to testify to these various events. Respondent had none." This mischaracterizes the evidence presented in this case. Although Petitioner presented the testimony of four persons having personal knowledge of some of the incidents, for several of the allegations, Petitioner presented the testimony of only one witness who had personal knowledge of the alleged incidents, and, as discussed above, often that testimony was not credible. Even when Petitioner presented the testimony of more than one witness regarding a particular allegation, as discussed above, often that testimony was inconsistent on significant details, calling into serious question the credibility and reliability of the testimony. Also, Respondent herself testified. Her testimony was clear, precise, credible, and persuasive, and she provided consistent, logical accounts of the incidents that gave rise to the allegations in the Amended Administrative Complaint.31/ In addition to her own testimony, Respondent presented the testimony of the mother of student J.M., who credibly supported Respondent's version of the incident giving rise to one of the allegations involving her daughter. Here, the undersigned did not find the testimony of Cherelus, Yontz, Brown, or Jobes credible or persuasive on most of the matters about which they testified. As discussed in detail above, in many instances their testimony was vague, unclear, or inconsistent with other testimony or evidence. Moreover, it was abundantly clear that each of these paraprofessionals found Respondent difficult to work with because she was demanding, did not tolerate lax performance, and consistently reminded them that as teacher, she was in charge of the management of her classroom. It was apparent that each of them resented her frequent assertion of authority over them. Each of them had ample motive to be untruthful or to exaggerate regarding certain events——such as those involving J.M. being placed in the restroom, C.R. and Respondent falling on the floor, and T.P. being fed by Respondent. In other instances——such as reclining M.P. in the Rifton chair or directing M.M. to retrieve her snack from the trash can——it is plausible to infer that the paraprofessionals misunderstood Respondent's actions and judged to be inappropriate, when, in fact, they were appropriate under the circumstances. Another factor militating against the paraprofessionals' credibility is that each of them was a mandatory child abuse reporter under Florida law, each of them knew that, and each understood her legal duty. Nonetheless, most of the incidents alleged in the Amended Administrative Complaint were not reported until sometime after the incident is alleged to have occurred. In particular, Brown and Jobes first reported that Respondent had engaged in abusive behavior only after she had taken measures to address their classroom performance issues, including her requesting a meeting with the principal and holding her own meeting aimed at, again, addressing their unacceptable behavior and performance. Petitioner focuses on a statement in Respondent's January 23, 2013, email thanking Brown and Jobes for their efforts as indicating that up to that point, Respondent and the paraprofessionals enjoyed a smooth working relationship and that Respondent did not have any problems with their performance, and, in fact, was pleased with their performance. However, this position is contradicted by the strong evidence showing otherwise. Respondent's emails to the school administration dated December 1, 2012, and January 9, 10, and 23, 2013, particularly speak to the ongoing difficulty she was having with both paraprofessionals, even before they submitted statements alleging that she had abused students. Further, the testimony by Brown, Jobes, and Respondent shows that the relationship between Respondent and the paraprofessionals was not a smooth one. In sum, the evidence establishes that the paraprofessionals were not reliable witnesses, and their testimony was neither credible nor persuasive. Conversely, Respondent's testimony was credible and persuasive. Accordingly, Petitioner failed to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct during the 2011-2012 and 2012-2013 school years that violated Department of Education rules and school board policies, and, thus, constituted just cause to suspend Respondent without pay and terminate her employment. Petitioner also has charged Respondent with gross insubordination for failure to appear and provide a statement to the Broward District Schools Police Department on March 11, 2013. As discussed above, the credible, persuasive evidence establishes that Respondent did not appear and provide a statement to the Broward Schools Police Department specificially because she had been directed and advised by her BTU representative not to do so. Further, even if Watts did not, in fact, have an understanding with Andersen that Respondent would not provide a statement, it is undisputed that Watts told Respondent that such an understanding existed so that she did not need to appear and provide a statement. Thus, the credible, persuasive evidence establishes that Respondent did not intentionally refuse to appear and provide a statement, but, instead, simply and reasonably followed the advice and direction of her BTU representative, who had specifically told her not to appear and provide a statement. Under these circumstances, it cannot be inferred that Respondent intentionally refused to obey a direct order, reasonable in nature. Accordingly, the credible, persuasive evidence establishes that Respondent did not commit gross insubordination. Based on the foregoing, it is determined that Petitioner failed to meet its burden to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct, alleged in the Amended Administrative Complaint, that violates Department of Education rules and school board policies. Accordingly, Petitioner did not prove that just cause exists to suspend Respondent without pay and terminate her employment.
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 dismissing the Amended Administrative Complaint against Respondent; reinstating Respondent's employment as a teacher; and awarding Respondent back pay for the period of her suspension, less the amount of back pay that would be owed for the period commencing on November 6, 2013, and ending on January 23, 2014.42/ DONE AND ENTERED this 22nd day of October, 2015, 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 22nd day of October, 2015.
Findings Of Fact John R. Sutton (Sutton) has been an employee of the Seminole County School Board (School Board) for approximately ten years. At the time of his suspension, he was working as an electrician's helper. Sutton's work hours were seven to three-thirty, including summers when school was not in session. Generally, his duties did not bring him into contact with students. To the extent possible, repairs and wiring work were done when the students were not around. Sutton lives in his own home with his two children, ages three and five, his sixty-eight-year-old mother, and his fifty-year-old mentally retarded sister, whom he takes care of. He needs his job. (Petitioner's exhibit 1, p.9) Sutton's property borders on a tree farm owned by Miami Land Division. On August 10, 1993, around five-thirty p.m., Sutton was in the woods behind his house examining three small marijuana plants when he was arrested by officers of the Florida Game and Fresh Water Fish Commission. He gave permission for them to search his home and they found some baggies of marijuana. Sutton was charged with cultivation of marijuana and possession of greater than 20 grams, a felony. He admits the charges. Sutton was not prosecuted, but rather was referred to the pretrial intervention program conducted by the State's Attorney. Under his pretrial intervention contract, he was required to be supervised for twelve months, submit to random drug testing, complete fifty hours of community service, and pay certain costs of investigation and supervision. He was also required to attend Narcotics Anonymous meetings. He has satisfied all of the conditions except for the full twelve months of supervision, which have not expired. After successful completion of his contract, the charges will be dismissed. On August 12, 1993, Sutton's charge of cultivation of marijuana appeared in the "News of Record" section of the Daytona Beach News-Journal, in small print, with the usual notices of criminal charges, suits filed, divorces, births and hospital admissions occurring recently in Volusia County. John Reichert performs duties of the personnel director for the Seminole County School District. He doesn't read the News-Journal, but his counterpart in Volusia County read it and told him of Sutton's arrest. Reichert obtained information about the arrest and presented the findings to the School Board's professional standards committee. The committee recommended that Sutton be terminated. He was placed on leave without pay, pending the outcome of this proceeding on the superintendent's recommendation to the School Board. Discipline of non-instructional personnel of the School Board is governed by the collective bargaining agreement dated July 1, 1992-June 30, 1995. This agreement provides, in pertinent part: REGULAR EMPLOYEES Section 4. * * * B. An employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. [reduction in force] The decision not to renew the employee for the ensuring year shall be for just cause. * * * DISCIPLINE AND TERMINATION Section 5. A. Regular employees who have been hired for a minimum of three (3) of the last five (5) years (without a break in service) shall not be disciplined (which shall include repri mands), suspended or terminated except for just cause. * * * An employee may be suspended without pay or discharged for reasons including the following (or substantially similar offenses) providing just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in. Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. (Petitioner's Exhibit 2, emphasis added) Counsel for the School Board stipulated at hearing that Sutton's termination is not based on any of the twelve items in paragraph Section 5, C., above. Rather, the School Board's position is that "just cause" is not limited to those items. The School Board has adopted a drug free work place policy, prohibiting possession, use, sale, distribution or being under the influence of alcohol or narcotic drug, marijuana or other controlled substance, before, during or after school hours, at school or in any other school district location. The record does not reflect when the policy was adopted; Sutton has never seen the policy. Further, it does not address Sutton's offense. Sutton knows of other non-instructional employees who have been arrested for felony offenses and are still employed. On the other hand, the School Board has disciplined other employees (teachers and non-instructional employees) for drug offenses committed off of school premises and off hours. However, the School Board did not, in this proceeding, establish its policy with regard to employees, such as Sutton, who are not teachers, who are arrested after their employment, and who are not convicted of a felony or are not guilty of any of the enumerated offenses in the collective bargaining agreement. Sutton has never been disciplined before. His supervisor considers him a "[d]ecent worker, maybe not the best, but definitely a good worker." (Transcript, p.28) His attendance record is fine or average; he has not been observed arriving to work or during work, "stoned" or otherwise intoxicated or impaired. Sutton freely admits that he owned the three plants and the marijuana found in his house. He smoked infrequently and did not sell or distribute the marijuana.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the School Board of Seminole County enter its final order rejecting the recommendation for termination of John Sutton, removing him from suspension, and restoring back pay. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of May 1994. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Rejected as unnecessary. Adopted in Paragraph 1. 3 & 4. Adopted in Paragraph 8. 5 & 6. Adopted in Paragraph 4. 7. Adopted by implication in Paragraph 2. But the more specific finding is that such contact was merely incidental, and not direct. 8-11. Addressed in Preliminary Statement as background of the proceeding. Respondent's Proposed Findings Respondent's "Findings of Fact" comprise a single paragraph outlining the background of this proceeding and stating his position, which position is generally accepted in the recommendation, above. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Post Office Box 4848 Sanford, Florida 32772-4848 Thomas C. Greene, Esquire Post Office Box 695 Sanford, Florida 32772-0695 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school monitor on the grounds alleged in the Notice of Specific Charges filed September 5, 2002.
Findings Of Fact At all times material hereto, Petitioner was 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, pursuant to Section 4B of Article IX, Constitution of the State of Florida and Section 230.03, Florida Statutes. At all times material hereto, Petitioner employed Respondent as a school security monitor and assigned her to work at Horace Mann, which is a public school located within the school district of Miami-Dade County, and, as will be discussed below, to a temporary duty location. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system . . . who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. Respondent’s employment with Petitioner began on April 12, 1993. At the times material to this proceeding, Respondent was a member of the United Teachers of Dade (UTD) collective bargaining unit. On October 22, 2001, Metro-Dade Police arrested Respondent on charges of aggravated battery and violation of probation. Respondent remained incarcerated from the date of her arrest until May 15, 2002. Respondent admitted that she had engaged in a fight while she was on probation and that she had thereby violated the terms of her probation. Respondent did not report to work between October 22, 2001, and May 15, 2002. Respondent sent a letter to Petitioner dated December 3, 2001, and addressed "to whom it may concern." The letter reflects that Respondent had previously entered a plea to a charge of domestic violence for which she had been placed on probation. It also reflected that that she was in jail after violating the conditions of her probation by having engaged in a fight. Respondent's letter represented that she would be released from jail on February 4, 2002, and makes it clear that she wanted to retain her employment, if possible. Carolyn Blake was the principal of Horace Mann at the times material to this proceeding. Ms. Blake learned of Respondent’s arrest within days of its occurrence. Shortly thereafter, Ms. Blake forwarded her home telephone number to Respondent and sent Respondent a message to call her collect from jail so that she and Respondent could discuss Respondent’s employment intentions. On December 26, 2001, Respondent placed a collect call to Ms. Blake at Ms. Blake’s home. Ms. Blake accepted the collect call from Respondent. During the ensuing telephone conversation Respondent told Ms. Blake that she would be released from jail by February 4, 2002, and that she hoped to return to work. Ms. Blake told Respondent she should consider resigning from her employment with Petitioner because of the number of days she had been absent without authorized leave. On January 14, 2002, Ms. Blake attempted to communicate with Respondent through a memorandum sent to Respondent's home address. The memorandum reflected that Respondent had been absent from her worksite since October 19, 2001, and that the absences had impeded the effective operation of the worksite. The memorandum requested that Respondent select from among four options and to notify her worksite within three days of the date of the notice regarding her employment intentions. The four options were to (1) notify the worksite of the date she intended to return to work; (2) apply for leave of absence; (3) resign; or (4) retire. The January 14, 2002, memorandum, further advised Respondent that her absences would continue to be unauthorized until she communicated directly with Ms. Blake as to her employment intentions. Petitioner's leave policies do not permit a leave of absence for an incarcerated employee. At the times material to this proceeding, Respondent was not eligible for a leave of absence under Petitioner’s leave polices. On March 11, 2002, Respondent was directed to report to a conference-for-the-record (CFR) scheduled for March 28, 2002, at the School Board’s Office of Professional Standards (OPS) to address, among other things, Respondent’s arrest; her violation of School Board rules dealing with employee conduct; her excessive absenteeism; and her future employment status with Petitioner. The notice that instructed Respondent to attend the CFR was mailed to Respondent's home address. On March 28, 2002, Respondent was still incarcerated, and she did not attend the scheduled CFR scheduled for that day at OPS. On March 28, 2002, a CFR was held at OPS in Respondent’s absence. At the CFR held on March 28, 2002, Respondent’s employment history with the School Board was reviewed, including the number of days that Respondent had been absent from her worksite, with special emphasis on the number of days she had been absent without authorized leave. On March 28, 2002, Ms. Blake recommended that Respondent’s employment with the School Board be terminated due to Respondent’s excessive absenteeism and because of the adverse impact Respondent’s absenteeism was having on the operation of the school site. As of March 28, 2002, Ms. Blake had received no communication from Respondent since their telephone conversation on December 26, 2001. Despite having Ms. Blake’s home telephone number and knowing that she would accept a collect call, Respondent made no effort to contact Ms. Blake after Respondent learned that she would not be released from jail on February 4, 2002. By notice dated April 23, 2002, Respondent was directed to appear on May 8, 2002, at a meeting at OPS to address the employment action that had been recommended by Ms. Blake. This written directive was sent by mail to Respondent's home address. As of May 8, 2002, Respondent was still incarcerated. Because of her incarceration, Respondent did not attend the meeting and had not reported to her worksite. On May 8, 2002, the scheduled meeting was held at OPS. As a result of the meeting, the Superintendent recommended that the School Board terminate Respondent's employment and scheduled the recommendation to be considered by the School Board at its meeting of June 19, 2002. On May 16, 2002, the day after she was released from jail on May 15, 2002, Respondent called Ms. Blake, who instructed her to meet with an administrator at the regional office. Respondent complied with that directive and was ordered by the administrator to report to an alternative work site pending the School Board’s action on the recommendation to terminate her employment. Respondent refused to comply with the order to report to an alternate worksite because she did not want to jeopardize her claim for unemployment compensation benefits. From October 22, 2001, through May 15, 2002, Respondent was incarcerated and was absent from work without authority. From May 16, 2002, through June 19, 2002, Respondent was absent without authority and either failed or refused to report to work. For the school year 2001-2002, Respondent accumulated 142 unauthorized absences. On June 19, 2002, the School Board suspended Respondent and initiated dismissal proceedings against Respondent on the following grounds: excessive absenteeism and/or abandonment of position; willful neglect of duty; and violation of School Board rules dealing with employee conduct. Respondent’s family received Ms. Blake’s memorandum and the notices of scheduled meetings that were mailed by Petitioner to Respondent’s home address while Respondent was incarcerated. Respondent testified that she did not see the memorandum and notices until after she was released from jail. There was no justification for Respondent’s failure to contact Ms. Blake after Respondent learned she would not be released from jail on February 4, 2002. There was no justification for Respondent's failure to attempt to comply with Petitioner's leave policies. There was no justification for Respondent’s refusal to report to the alternate worksite as instructed by the administrator at the regional office.
Recommendation Based upon the foregoing findings of act and conclusions of law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order find Respondent guilty of excessive absenteeism, gross insubordination, and willful neglect of duty as alleged in Counts I and II of the Notice of Specific Charges. It is further RECOMMENDED that the final order sustain Respondent's suspension without pay and terminate her employment as a school monitor. DONE AND ENTERED this 10th day of December, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2002.
The Issue The first issue in this case is whether, as the district school board alleges, a middle school teacher had a consensual sexual relationship with a teenage student; if this allegation is proved to be true, then it will be necessary to decide whether the school board has just cause to fire the teacher.
Findings Of Fact Parties. The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. Respondent Mariella Brenlla ("Brenlla") holds a Florida Educator Certificate. She is certified in Emotionally Handicapped, Reading, and Educational Leadership. Brenlla also holds a National Board of Education certification in exceptional needs. She was employed as a teacher in the Miami-Dade County Public School System for nearly 18 years, from 1992 until November 2009, at which time the School Board suspended her without pay and gave notice that it intended to dismiss her for cause, giving rise to the instant proceeding. During the 2001- 02 school year, which is the period relevant to this case, Brenlla taught students who, having been diagnosed as Severely Emotionally Disturbed ("SED"), received special education services in the Exceptional Student Education ("ESE") program at Ponce de Leon Middle School ("Ponce de Leon"). Allegations and Investigation. In May 2006, a former ESE student of Ponce de Leon named J. B. sent Brenlla an e-mail inviting her to attend his high school graduation. Although she had not heard from him in nearly four years, Brenlla knew J. B. because she had been his "confidant" (her word) during the better part of 2002; their relationship, the nature of which is at the heart of the instant dispute, had begun when J. B. was a 14-year-old eighth grader who attended class in a room adjacent to Brenlla's, and ended about midway through J. B.'s freshman year of high school. Brenlla did not reply to the electronic invitation, and she did not go to J. B.'s graduation ceremony. On October 23, 2006, J. B. sent Brenlla another e-mail. In this message, J. B. demanded that Brenlla call him "ASAP" on a matter of "the utmost importance." He added, "I have terrible news for you." Concerned, Brenlla called. When they spoke, J. B. told Brenlla that he wanted to see her. Brenlla expressed her unwillingness to meet with J. B. Then J. B. revealed the "terrible news": he was thinking about disclosing that he and Brenlla had had a sexual affair in 2002. Brenlla instructed J. B. not to call or contact her again. J. B. did not accede to Brenlla's directive. He sent more e-mails, and placed more phone calls to Brenlla. On October 24, 2006, Brenlla filed a report with the Miami-Dade Schools Police, complaining that J. B. had made threatening comments to her, such as "start saying goodbye to your family." On November 2, 2006, J. B. filed a complaint with the Coral Gables Police Department, alleging that, in 2002, while he was in middle school and, later, high school, he and Brenlla had been involved in a consensual sexual relationship which had begun shortly after spring break and continued until around December. On November 16, 2006, J. B. gave a sworn statement that detailed the numerous and diverse sexual activities in which, he claimed, he and the teacher had engaged. The police commenced an investigation. On November 21, 2006, the detective in charge directed J. B. to place a telephone call to Brenlla, which the police would record, in hopes that J. B. might coax Brenlla into making some incriminating comments. The controlled call was made but failed to produce any unambiguously inculpatory remarks. During the brief conversation, Brenlla neither admitted nor denied the existence of a previous sexual relationship; her unremarkable responses to J. B.'s questions can be construed as being consistent with either possibility. In sum, the digital recording of this call, which is in evidence, is not probative one way or the other. Another attempt to trick Brenlla into incriminating herself was made a few months later. On February 6, 2007, the police equipped J. B. with a "wire" (some sort of recording device) and instructed him to approach Brenlla in the school parking lot, where he was supposed to initiate a conversation about their sexual relationship. This plan came a cropper because, rather than talk with J. B., who accosted Brenlla as she was getting into her car after work, Brenlla insisted that J. B. leave the school premises (on which he was trespassing), and she called the school police. Arrest and Prosecution. On February 21, 2007, J. B. informed the police (for the first time) that Brenlla had a mole or freckle near her vagina. Armed with this information, the police eventually obtained a search warrant, which was issued on August 9, 2007. The warrant authorized detectives to inspect and photograph Brenlla's pubic area. Law enforcement officers executed the warrant and, as the resulting pictures (which are in evidence) show, Brenlla does have a nondescript pigmented spot in the vicinity of her vagina. Soon after the service of the search warrant, Brenlla was arrested and charged with four felony counts of sexual battery on a minor. The criminal prosecution of Brenlla ended when she entered into a Pre-Trial Diversion Program, which required that she plead guilty to a misdemeanor charge of child abuse (no harm) and agree not to take a classroom teaching position for the 2009-10 school year.1 Holding up its end of the bargain, the state entered a nolle prosequi on the felony charges. As far as the record in this case shows, Brenlla is no longer in jeopardy of being prosecuted for crimes she might have committed in connection with her relationship with J. B. The Operative Historical Events. Credibility and Weight of the Evidence. The operative historical facts——especially the nature of the relationship between Brenlla and J. B.——are sharply disputed. Moreover, the gravamen of the School Board's case being that Brenlla had sexual relations with an underage student, the conduct in question is the kind which occurs in private, unobserved by disinterested eyewitnesses. Resolving disputes of fact in a case such as this largely boils down to determining which of the only two witnesses who really know for sure what happened is the more believable. Having listened carefully to and closely observed J. B. and Brenlla at final hearing, the undersigned found Brenlla to be, on balance, the better witness. For the most part, her demeanor was poised and professional; the content of her testimony (with a couple of significant exceptions) is reasonable; she seemed responsible and mature, her denials of wrongdoing sincere. The undersigned wanted to believe her, because the behavior of which she is accused is so reckless and outrageous (not to mention criminal), and she appeared to be none of those things. J. B., in contrast, while appropriate in demeanor and articulate in speech (though glib at times), made a less favorable impression. In part this was because he occasionally came across as vindictive. But also, and more important, the content of J. B.'s testimony has elements that seem, on the surface at least, to be fictional or (as Brenlla contends) fantastic; that——coupled with the fact that J. B.'s story, like a snowball rolling downhill, has gotten bigger and gathered additional details as it moves forward through time——casts doubt on his veracity. Were this case merely a "swearing contest" between Brenlla and J. B., therefore, Brenlla would have won. There are, however, some pieces of circumstantial evidence that corroborate J. B.'s testimony and tip the balance in favor of his version of the relevant events. These will be discussed next. J. B.'s Knowledge of Brenlla's Inconspicuous Mole. J. B. told the police that Brenlla had a mole near her vagina, and this turned out to be true. Thus, either J. B. made a lucky guess, or he somehow had learned about this personal detail concerning Brenlla's body. The undersigned considers the first possibility to be too remote to credit: if J. B. were clever enough to gamble that Brenlla would be found to have a mark in her pubic area, he also would have been aware that sending the police on a wild goose chase which proved him wrong would leave his credibility in tatters. More likely, therefore, is that J. B. knew about the mole, and the undersigned so finds. The question then is: how he know? The simplest (and hence most likely) explanations are: (a) somebody with personal or secondhand knowledge told him; (b) he saw a photograph of Brenlla in a state of undress; or (c) he saw the mole in person. Brenlla's explanation that J. B. might have overheard her talking about the mole with another teacher, or on the phone making a waxing appointment, strikes the undersigned as highly implausible and is rejected. Of the most obvious explanations for J. B.'s knowledge, the undersigned considers (c) above to be the likeliest possibility, notwithstanding that J. B. did not immediately tell the police about this crucial bit of information, because it is the simplest explanation for which, as will be seen, there is other credible evidence besides J. B.'s own testimony (the believability of which is the point presently under consideration). At bottom, the fact that J. B. knew about the mole near Brenlla's vagina is neither direct nor conclusive proof that he and she had a sexual relationship, as he claims; his knowledge of this intimate detail does, however, corroborate his testimony in this regard. The Telephone Calls. Shortly before the final hearing, the School Board obtained from T-Mobile, U.S.A., Inc., via subpoena, the invoices for J. B.'s cell phone service for the period from May 25, 2002 to July 16, 2002, comprising 53 days (the "First Stage"); and the period from August 26, 2002 to October 12, 2002, comprising 48 days (the "Third Stage"). The evidence does not make clear why there were no invoices for the 40-day period running from July 17, 2002 to August 25, 2002. This middle period for which there are no phone service details will be called the "Second Stage". The invoices show the date, time, and duration of calls to J. B.'s cell phone ("incoming calls"), and calls from J. B.'s cell phone ("outgoing calls"). For each call, whether incoming or outgoing, the bills identify the other party's phone number. At hearing, Brenlla identified two telephone numbers which appear in the bills as being hers. One, she explained, was her home number (a landline), and the other she identified as her work number. Although Brenlla testified that J. B. and other students called her occasionally on her cell phone, she did not volunteer her cell phone number(s) for the relevant periods and was not pressed to do so; thus, no cell-to-cell phone calls are accounted for in the discussion that follows. The undersigned has studied the invoices, and it is no exaggeration to say that they are the smoking gun. For what the bills show is that, during the 101 days they cover, Brenlla and J. B. talked on the phone——a lot. The volume, frequency, duration, and timing of these conversations simply defy innocent explanation. The records show that Brenlla and J. B. had approximately 197 conversations. (This does not include calls of one minute or less, which the undersigned interpreted as mere attempts; there were about 120 of those. Also, the undersigned counted multiple calls as a single conversation if they occurred in rapid sequence, as would happen if a call were dropped or momentarily interrupted from some other reason. Thus, a different reviewer might come up with different numbers at the margins. The undersigned is highly confident, however, that the observations made herein are fair and accurate.) Nearly 80 percent of the documented conversations, or 156 of them, took place during the First Stage, which corroborates J. B.'s testimony that this period corresponded to the most intense stage of his relationship with Brenlla. Combined, these conversations, which occurred during a period of 53 days, consumed approximately 1,451 minutes——about 24 hours in all. Brenlla initiated 138 of these conversations. In other words, Brenlla called J. B. about 88 percent of the time during the First Stage. The frequency of their contact is notable as well. During the First Stage, the pair talked on 46 of the 53 days covered by the bills. The numbers drop significantly in the Third Stage, again corroborating J. B.'s testimony that the relationship began to unravel after he started high school in the fall. In this period there were 41 documented conversations comprising about 303 minutes. Brenlla initiated nearly three-quarters (30) of these calls, continuing the previous pattern of Brenlla being the one who, by far, most often made the first move. The two had conversations on 23 out of the 48 days in this period——a marked decrease in intensity relative to the First Stage. Still, with a phone conversation occurring on average about every other day, the two remained in suspiciously close contact by most reasonable measures, especially in view of the fact that J. B. was now in high school and therefore would have few, if any, school-related reasons to talk regularly with a teacher at his old school. Some further observations underscore the inculpatory nature of these documented calls. Many of them took place during non-business hours (before 9:00 a.m. and after 5:00 p.m.) and on weekends. Approximately 19 percent——nearly one in five—— occurred between 9:00 p.m. and midnight, hours during which a teacher rarely should have a legitimate pedagogical reason for calling a student. Another 26 percent, roughly, or about one quarter, of the conversations were held between 5:00 p.m. and 9:00 p.m. Five percent or so of the calls took place between 6:00 a.m. and 9:00 a.m. While the majority of the conversations (102) took place on weekdays, of which 69 fell during the covered periods, the couple spent more time on the phone (957 minutes vs. 749 minutes) during the 29 weekend days than on regular workdays. There were, in addition, seven conversations totaling 48 minutes during three holidays, i.e. Memorial Day, Independence Day, and Labor Day. Brenlla testified that she called J. B. because she was concerned about his transition to high school, which she asserted could be difficult for SED students such as J. B. to make, and because she had become J. B.'s confidant, someone he trusted and with whom he could share his secrets. These explanations do not hold water and are rejected. The available records show that Brenlla was contacting J. B. almost literally around the clock, day and night, constantly, even on weekends and holidays. (Remember, too, that Brenlla's cell phone number was not disclosed; it is possible that the over-the-top degree of telephonic contact between her and J. B. as revealed above was in fact even higher. Moreover, there is no reason to suppose that Brenlla and J. B. stopped talking on the phone during the 40 days between the First Stage and the Third Stage. To the contrary, it is probable that there was a substantial amount of contact between the two during the Second Stage, for which records are not available.) The telephone records do not prove the content of the conversations between Brenlla and J. B., nor do they establish that the two had a sexual relationship. The records are circumstantial evidence of a very close and probably intimate personal relationship, however, and as such they not only provide some independent support for the finding above regarding how J. B. likely came to know about Brenlla's mole, but also they corroborate J. B.'s testimony that he and Brenlla engaged in a consensual sexual affair. The Affair. At the beginning of the 2001-02 school year, Brenlla administered a standardized test to determine J. B.'s abilities in reading, math, and basic humanities. This was how Brenlla first met J. B., who was at the time a 14-year- old, eighth grade SED student in the ESE program at Ponce de Leon. Though J. B. was not one of Brenlla's students, his teachers' (he had two) classroom was next door to the classroom in which Brenlla and another teacher taught their SED students. As the school year progressed, Brenlla became better acquainted with J. B. because he and other SED students occasionally would visit her classroom during the "free period," usually on Fridays, when ESE students who had completed their assignments and otherwise behaved themselves were rewarded with time to enjoy nonacademic activities. Brenlla taught J. B. how to play chess, and he assisted her with classroom chores. The relationship between Brenlla and J. B. became increasingly personal. One Friday shortly after spring break, Brenlla invited J. B. to have an online conversation with her that night via instant messaging. He agreed. An IM chat was attempted but failed due to computer problems, forcing J. B. and Brenlla to communicate by telephone. This led to a lengthy session of "phone sex." Thereafter, Brenlla and J. B. became physically intimate. J. B. testified that he and Brenlla engaged in a variety of foreplay in Brenlla's classroom. J. B. claimed that these encounters occurred before class, at lunchtime, and after school, two or three times a day, nearly every day. The undersigned, however, credits Brenlla's testimony regarding the unlikelihood of this much contact going unnoticed, given the proximity of other adults, the fact that the SED classrooms were never locked, and the generally high level of supervision to which SED students are subjected. J. B.'s account more likely than not is exaggerative. Nevertheless, even after discounting J. B.'s testimony for probable embellishments, the undersigned finds that, more likely than not, Brenlla and J. B. found ways to engage in furtive kissing and petting in moments when no one was around. While such moments probably did not arise as frequently as J. B. recalls, it is likely (and thus found) that the couple grabbed opportunities to disappear briefly from time to time. J. B. testified that he and Brenlla frequently engaged in oral sex (fellatio and cunnilingus) in her car after school. While some aspects of J. B.'s testimony in this regard are difficult to believe——such as that Brenlla sometimes parked her car in residential neighborhoods, where the two would engage in oral sex and, on occasion, nearly be caught——the undersigned considers it likely, and finds, that, among other sexual activities, J. B. and Brenlla performed oral sex on one another many times inside her vehicle. J. B. testified that he and Brenlla often had "phone sex." J. B. did not define "phone sex," but the undersigned reasonably infers, from the totality of J. B.'s testimony and the plain meaning of the term, that the phone sex in question entailed conversations having explicit sexual or erotic content. The undersigned credits J. B.'s testimony in this regard, which is corroborated by the cell phone bills discussed above, and finds that Brenlla had phone sex with J. B. on numerous occasions. J. B. claimed that he and Brenlla engaged in sexual activities in his apartment, and that it was at this location that they had anal and vaginal intercourse, but only a few times. J. B. testified that these trysts occurred during the day when his father was at work and his mother out running errands. J. B.'s mother, however, testified that she saw Brenlla leaving the apartment on some occasions, and was aware that her son was involved in a sexual relationship with the teacher. The undersigned doubts the reliability of the mother's testimony but finds that, more likely than not, Brenlla visited J. B. at his apartment once or twice and had sexual intercourse with him there. The sexual affair between Brenlla and J. B. continued through the summer months following the 2001-02 school year and even after J. B. started high school in the fall of 2002. Gradually, though, the relationship began to fizzle out. With J. B. attending a different school, the two saw each other less frequently, and they began to fight and argue on the phone. In or around December 2002, Brenlla expressed her desire to end the relationship. The two would have no more contact for nearly four years, until May 2006, when (as found above) J. B. sent Brenlla an e-mail asking her to come to his high school graduation. Determinations of Ultimate Fact The greater weight of the evidence establishes that Brenlla engaged in a consensual sexual relationship with a 14- year-old SED student that lasted for more than six months and included numerous instances of intimate physical contact in addition to many hours of documented telephonic contact. Based on this course of conduct, it is determined that Brenlla is guilty of the offense of immorality as defined in Florida Administrative Code Rule 6B-4.009(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Mariella Brenlla's employment in the Miami-Dade County Public School System. DONE AND ENTERED this 18th day of October, 2010, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2010.
The Issue Whether just cause exists to terminate Respondent's employment as a teacher with the Palm Beach County School District for the reasons alleged in the Petition ("Complaint").
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Palm Beach County, Florida. At all times pertinent to this case, Respondent was employed as a math teacher at Palm Springs Middle School, a public school in Palm Beach County, Florida. Stipulated Facts The Collective Bargaining Agreement between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association was in effect at all times pertinent to this proceeding. Pursuant to the parties' Joint Pre-Hearing Stipulation, the facts contained in paragraphs 5 through 10 below are admitted and required no proof at final hearing. On January 13, 2013, Respondent was arrested for the following criminal charges: (1) hit and run—leaving the scene of a crash involving damage to property; (2) resisting an officer without violence; (3) DUI-unlawful blood alcohol—refusal to submit to DUI test; (4) knowingly driving with a suspended license; and (5) bribery of a public servant (two counts). On July 22, 2013, Respondent was adjudicated guilty of the following charges: (1) driving under the influence causing injury to person or property in violation of section 316.193, Florida Statutes; (2) leaving the scene of a crash involving damage in violation of section 316.061, Florida Statutes; and (3) resisting an officer without violence in violation of section 843.02, Florida Statutes. Respondent's arrest resulted in media attention, with headlines including: (1) "Mary Maloney: Palm Springs teacher offers police sexual favor after DUI arrest, police say"; (2) "Police: Teacher offers sexual favors to officer to avoid DUI arrest. Mary Maloney accused of leaving scene of hit-and-run crash"; (3) "Mary Maloney, Fla. Teacher, offers sexual favor to cop after DUI arrest, police say"; and (4) "Mary Maloney, Teacher, Allegedly Offers Oral Sex to Police Officer After Hit- and-Run Charge." Respondent was reassigned from her position teaching students on February 25, 2013, and remained on this assignment out of the classroom until January 8, 2014, when the School Board voted to terminate her employment. On December 15, 2006, Respondent signed a Drug Free Workplace Policy acknowledgement stating that she had reviewed the policy and that compliance was mandatory. Respondent's discipline history revealed a prior violation of the Drug Free Workplace policy. She received a written reprimand on October 12, 2009, for violating School Board Policy 3.96 Drug and Alcohol Free Workplace when she was under the influence of a prohibited substance while off duty which resulted in a conviction under section 316.193, Florida Statutes- -driving under the influence. Non-Stipulated Facts As a result of her adjudication of guilt on July 22, 2013, Respondent was sentenced to 12 months of probation, 30 days in the Palm Beach County Jail, 60 days house arrest (during which she was required to wear a Scram monitor), 150 hours of community service, court costs and fines. Respondent testified that she was permitted to work while she was serving her 60-day period of house arrest. Anthony D'Orsi, a police officer for the City of Greenacres, provided unrefuted testimony that while he was transporting Respondent from the scene of the DUI arrest to the police station, Respondent advised him that she was a school teacher and implied that she wanted to perform oral sex on Officer D'Orsi and allow him to "play with her breasts" in exchange for her release. On January 13, 2014, Matthew Stockwell was employed as a police officer with the City of Greenacres. Officer Stockwell provided unrefuted testimony that, after he placed Respondent in his patrol car, she made numerous statements regarding that she was sorry for what had occurred and inquired as to how much it would cost for Officer Stockwell to release her. Respondent's arrest was reported on the Channel 5 News program under the headline of "Middle School Teacher Arrested On DUI, Hit And Run—Greenacres Police Say She Tried To Bribe Them With Sex." The coverage included her photograph, and among other statements, her name, age, and position at Palm Springs Middle School. Prior to the subject incident, Respondent received satisfactory evaluations as a teacher. Respondent was rated as either effective or highly effective for the 2011-2012 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding Mary Maloney guilty of misconduct in office and immorality, and terminating her employment. DONE AND ENTERED this 30th day of March, 2015, 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 March, 2015.
