The Issue Did the Polk County School Board have just cause to justify its termination of Respondent's employment?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Petitioner Polk County School Board is the county agency responsible for providing public primary, secondary and adult education in Polk County, and to facilitate that responsibility the Board hires certified teachers for classroom and administrative activity. Respondent Stephen Anderson has been employed in the Polk County School District for five years. Prior to his employment with the Polk County School District, Respondent taught school in the State of Massachusetts for 22 years. Respondent has a professional services contract of employment with the Polk County School District. At all times pertinent to this proceeding, Respondent was a GED classroom instructor and work study coordinator at Bill Duncan Opportunity Center (Duncan Center). During Respondent's tenure at Duncan Center, his classroom responsibilities ended at 11:00 a.m., after which he acted as work study coordinator until the end of his workday at 3:15 p.m. However, at times Respondent's coaching duties at other schools required that he leave Duncan Center before the end of the workday. On April 11, 1996, sometime between 12:00 noon and 1:00 p.m., Respondent left Duncan Center for the purpose of going to Lake Gibson High School (Lake Gibson) to sign award certificates for members of the Lake Gibson girls' basketball team that he coached. The award certificates were to have been presented at the banquet earlier that week, but the certificates were not delivered to the banquet for Respondent's signature as planned. Therefore, Respondent made arrangements to be at Lake Gibson between 1:30-1:45 p.m. in the afternoon of April 11, 1996, to sign the certificates. Throughout his tenure at Duncan Center, Respondent had routinely left Duncan Center early to attend to his coaching responsibilities at Lake Gibson and another school where he had coached basketball earlier. Greg Bondurant, principal of Duncan Center, was fully aware of Respondent's practice of leaving Duncan Center early to attend to his coaching duties, which included times before and after the basketball season at Lake Gibson, notwithstanding the testimony of Greg Bondurant regarding times before and after the basketball season to the contrary, which I find lacks credibility. Furthermore, Respondent advised his teacher's aide, John R. Edwards, that he was leaving early the day in question for the purpose of going to Lake Gibson. Although Respondent did not sign out on the afternoon of April 11, 1996, it appears from the record that signing out was not a procedure that either Respondent or other teachers at Duncan Center took seriously. In fact, Mr. Bondurant was aware that teachers at the Duncan Center were not signing out on a regular basis. Apparently, "signing out" was not a major concern at Duncan Center. Upon leaving Duncan Center, Respondent proceeded down Reynolds Road in the direction of Highway 92. Upon arriving at Highway 92, Respondent turned right (east) on Highway 92 intending to go to Wizard Golf Store to possibly purchase a golf club. Upon approaching Wizard Golf Store, Respondent noticed a "closed" sign in the window, and did not stop. Thereafter, Respondent proceeded east on Highway 92 to the next left turn, which is Saddle Creek Road, intending to go through to Combee Road, which would take him to Lake Gibson. However, at this point, Respondent developed an urgent need to urinate. Since sometime around June 1995, Respondent has suffered severe problems with his urinary tract, and has suffered from severe abdominal pains caused by an intense feeling of a need to urinate frequently. Respondent has difficulty in beginning the urine flow, as well as stopping the urine flow, which has resulted in Respondent urinating on himself on different occasions. At times, Respondent was required to stroke (milk) or shake his penis in order to start or stop the flow of urine or to drain the urine from his penis after urinating. Robert Bevis, M. D., specializes in internal medicine, and has treated Respondent for his urinary tract problems since February, 1991. Dr. Bevis believes that Respondent could be required to stroke the shaft of his penis to empty his urinary tract. Dr. Bevis has treated Respondent with a variety of drugs, which have not been successful, and believes that surgery may be necessary. Upon turning onto Saddle Creek Road, Respondent looked for a place to urinate. Although he saw the bait shop, Respondent did not attempt to go to the bait shop to urinate because it did not occur to him that the bait shop would have a public bathroom. Respondent did not see a portable public toilet across from the bait shop on Saddle Creek Road or anywhere else. While there was testimony of a portable public toilet being in the area four days after the incident, the portable public toilet had been removed prior to the hearing, and there was no evidence that the portable public toilet was present on April 11, 1996. Respondent proceeded on down Saddle Creek Road for approximately six tenths of a mile to an area of Saddle Creek Park that Respondent believed to be isolated, and would provide the necessary privacy. Respondent pulled into an area where he saw no cars or people. This area of the Saddle Creek Park is commonly referred to as the Point. Unbeknown to Respondent at that time, the Point is an area of the park known by law enforcement officers and others in the community to be frequented by homosexuals seeking to engage in lewd activity. Respondent exited his car and walked up a path with the intention of urinating. As Respondent walked up the path, he passed a male individual who was standing with his back toward Respondent just off the pathway, approximately 20 feet. Respondent did not talk to, or have any contact with, this individual, but proceeded on up the path pass this individual, following the path as it curved to the left, out of the individual's line of sight. Upon reaching this area, Respondent unzipped his pants, took out his penis, and, after some time, began to urinate. As Respondent looked to his left he noticed a male individual come around the corner and stop. Respondent did not recognize this individual as the individual he had seen earlier because he had not seen that individual's face. Respondent stared at this individual because he was shocked to see this individual, and uncertain as to why the individual was there. Respondent then did what he needed to do to stop the flow of urine, placed his penis in his pants and zipped his pants. At that point the individual had walked away from Respondent back down the path. As Respondent walked back down the path he noticed a vehicle pull up parallel to his vehicle. Respondent moved on down to the area where he saw the first individual. Although Respondent could see two individuals in conversation, one standing outside the vehicle and the other individual inside the vehicle, Respondent was partially secluded by a thicket. Not sure of what was going on, but still feeling the intense urge to urinate, Respondent began urinating while watching the two individuals over his right shoulder. After Respondent finished urinating, he did what he needed to do to drain his penis of urine and zipped his pants. At that point, the two individuals were approaching Respondent. The individuals identified themselves as undercover police officers and placed Respondent under arrest, charging him with two counts of exposing his sexual organs and two counts of lewdness. The charges were predicated on the officers' belief that Respondent was masturbating. The arrest occurred at approximately 1:30 p.m. Respondent was released later that day on his own personal recognizance. Respondent protested his innocence to the arresting officers, explaining to the officers his problem with urinating, but was told that he was in the wrong place at the wrong time, and that they were arresting everything that moved. Although the testimony of the police officers is not totally accepted, it is not found that their testimony was pure fabrication. Rather, it is found that, due to their mindset and expectations, the police officers misinterpreted much of the conduct they observed involving the Respondent on April 11, 1996. On that day, the police officers were patrolling Saddle Creek Park, undercover, as part of a law enforcement effort to rid the park of illegal lewd and lascivious conduct and the solicitation of sex (primarily homosexual) activities for which Saddle Creek Park, specifically the Point, had become notorious to law enforcement and to others. The police officers involved in this case expected users of park to know its reputation, and they expected to find homosexual men using the park for notorious purposes. As a result, knowing nothing about Respondent, they misinterpreted innocent behavior of the Respondent as evidence of criminal conduct. They attributed little or no importance to the behavior of Respondent that was evidence of his innocence of criminal charges. There is no evidence in the record of what became of Respondent in the criminal process after his arrest. The headlines of the newspaper articles appearing in the Lakeland Ledger and the Tampa Tribune concerning the undercover operation and subsequent arrests were: Corrections superintendent charged in sting and Warden arrested in sex sting, respectively. The Respondent's arrest is covered in each article at the end of the article on the follow-up page. Apparently, the Correction Superintendent's arrest was more newsworthy than Respondent's arrest. Greg Bondurant, Paul Wenz and James Lemanski, the principal and two teachers at Duncan Center, respectively, all concluded that Respondent's effectiveness as a teacher at Duncan Center had been seriously reduced or impaired by the notoriety of this incident. Their conclusions were reached on the basis of shock and disbelief, by students and teachers alike, that Respondent had been arrested; "jokes made and stuff about Saddle Creek Park, and stuff like that"; and that "everybody became the brunt of jokes." These witnesses considered this a normal reaction for students and teachers alike. Greg Bondurant testified that after a couple or three days "everything died down after that." Some members of Greg Bondurant's church questioned him about what was going on at Duncan Center. However, there was no direct testimony from students or members of the community, outside the school system, to support these witnesses' conclusion that Respondent's effectiveness as a teacher had been seriously reduced or impaired. Respondent has been married for 30 years and has one child 29 years of age. Respondent was an exemplary employee for 22 years in Massachusetts, and has been an exemplary employee for the past five years in Polk County. Respondent was the 1994-95 teacher of the year at Duncan Center. Respondent denies he is homosexual or bisexual, and claims he has never engaged in any homosexual behavior. The evidence supports those claims. Respondent's wife has never witnessed Respondent engage in any homosexual behavior. Many of Respondent's friends testified that Respondent is a man of high moral character, and none has ever witnessed Respondent engage in any immoral or illicit behavior. James Dean, principal at East Area Opportunity School in Polk County and past principal at Duncan Center during the first part of Respondent's tenure there, has had a personal and professional relationship with Respondent for five years. Dean considers Respondent to be a man of high moral character and given the opportunity would hire Respondent to teach at his school. There is no evidence in the record from any member of the community unrelated to Petitioner to support the Petitioner's conclusion that Respondent's effectiveness has been impaired or has been seriously reduced. On the other hand, several members of the community, some of them fellow teachers, believe that Respondent was an excellent teacher up to the incident and would continue to be an excellent teacher if reinstated. Furthermore, these members of the community believe that Respondent's effectiveness as a teacher in the community has not been impaired or seriously reduced, and if reinstated he would be an asset to the school system and to the community. From all accounts, Respondent is an excellent teacher. Taken together, the evidence is clear that on April 11, 1996, the Respondent entered Saddle Creek park for the express purpose of relieving himself because of an intense desire to urinate caused by a prostate problem. Respondent's manner of starting and stopping the urine flow and the clearing of his penis of urine after urinating was also necessary due to his prostate problem. Furthermore, there was no intent on the part of Respondent, while in Saddle Creek Park on April 11, 1996, to expose or exhibit his sexual organ in a vulgar or indecent manner. Likewise, the evidence is clear that Respondent's effectiveness as a teacher has not been seriously reduced or impaired as a result of the Respondent's arrest on April 11, 1996. Furthermore, the record will not support a finding that Respondent left his worksite early without authorization on April 11, 1996. Petitioner's evidence failed to prove the allegations filed against Respondent. The ultimate findings of fact are based primarily on an evaluation of the testimony and demeanor of the Respondent and the arresting police officers. However, the testimony of the Respondent's character witnesses also weighed heavily; they were credible, and many of them knew Respondent very well and for a long period of time, some under circumstances that would be expected to have given them an opportunity to learn if Respondent engaged in, or had a reputation for engaging in, the kind of conduct of which he was accused.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, recommended that Respondent be reinstated as of the date of the final order and that Respondent be awarded back pay and benefits during the period of suspension without pay. RECOMMENDED this 28th day of October, 1996, at Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-66847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996. COPIES FURNISHED: Honorable John A. Stewart Superintendent of Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Donald H. Wilson, Jr., Esquire 150 East Davidson Street Post Office Box 1578 Bartow, Florida 33831-1578 Mark Herdman, Esquire 34650 U.S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684
The Issue Whether the Respondent, Anna Mann, should be dismissed from her employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a school board charged with the duty to operate, control, and supervise the public schools within the Palm Beach County School District. Such authority includes, but is not limited to, the employment and discipline of the instructional staff for all Palm Beach County public schools. At all times material to the allegations of this case, Respondent was employed by Petitioner as a classroom teacher teaching Family and Consumer Sciences (formerly known as Home Economics). Respondent's teaching duties were at Glades Central Community High School (GCCHS). Respondent received a continuing contract (CC) for employment during the 1974-75 school year. There is no evidence that Respondent elected to accept a professional services contract (PSC) during her tenure with the District. Respondent did not voluntarily relinquish her continuing contract. Consequently, it is presumed Respondent continued employment as a CC teacher until the end of the 1997-98 school year. At the conclusion of the 1997-98 school year, the superintendent of schools, acting on the recommendation of the principal, notified Respondent that she would not be recommended for employment and would not be offered a teaching contract for the subsequent school year. This notice was issued on or before April 1, 1998. Such notice further advised Respondent that her employment with the District would end on June 11, 1998. Upon receipt of the notice that she would not be re- appointed for employment, Respondent timely challenged the termination, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. Thereafter, in accordance with the notice previously provided to Respondent, the District did not offer Respondent a contract to teach for the 1998-99 school year. The District utilizes an evaluation instrument known as the Classroom Teacher Assessment System (CTAS) Evaluation. Persons using this CTAS tool must be trained and approved prior to implementing any use of the instrument for teacher assessment. All individuals in this proceeding who assessed Respondent's classroom performance were fully trained and authorized to evaluate Respondent. Those using the CTAS instrument had been trained and approved in its use. Those using other methods of evaluation were also fully trained and approved for evaluation of instructional personnel. While Respondent did not agree with the findings of the assessments, Respondent has not raised any credible challenge to the qualifications of any assessor. The CTAS instrument rates the teacher as "acceptable" for which 2 points are assigned or as "concern" for which 1 point is given. There are sixteen specific assessment areas covered by the CTAS instrument. Thus, there is a possible 32-point score for any teacher receiving "acceptable" in all areas of review. Teachers with less than 28 points are formally directed to correct the cited deficiencies. In May of 1996, Respondent was given an annual evaluation by the Assistant Principal, Mr. Campbell. This assessment noted four areas of concern and yielded a total score of 28 points. The topics of the assessment wherein Respondent showed concern (as opposed to acceptable performance) were: management of student conduct, instructional organization and development, presentation of subject matter, and establishes an appropriate classroom climate. Because Respondent had received a marginal rating in the prior annual assessment, Dr. Grear directed another Assistant Principal, Dr. Fuller, to conduct a mid-year evaluation for Respondent during the fall of 1996. This mid-year evaluation was conducted on December 6, 1996. On this occasion Dr. Fuller observed Respondent in all three of her classes. The evaluation comments were memorialized on a Florida Performance Measurement System Screening/Summative Observation Instrument (FPMS) form as well as in anecdotal notes of the review. Although Respondent did not have many students in the classes observed (her largest observed class held 22 students), frequently students were off-task and not engaged in the learning process. According to Dr. Fuller, Respondent allowed students to put their heads on the desks, get out of their seats and walk around, and ignore her directions to them. In one instance when Respondent directed students to gather at a table for a demonstration, six of the thirteen attending students paid no attention. The CTAS evaluation for the December 6, 1996, mid-year review yielded a total score of 26 points. This instrument documented concerns in six assessment areas: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates ability to plan effectively, and demonstrates effective written communication skills. Respondent reviewed the CTAS form and executed the receipt of it on December 9, 1996. Based upon the concerns noted in the mid-year evaluation, Respondent was given a school site assistance plan. It was hoped this plan would allow Respondent to improve in the deficient areas. This plan outlined strategies and directed Respondent to perform certain tasks by the progress dates indicated in the plan. Respondent was advised that during the time frame identified in the school site assistance plan she would be observed to determine if deficiencies had been corrected. Over the course of the rest of that school year, Respondent continued to receive school site assistance. Unfortunately, although she was able to improve in two areas of concern, she was not able to remedy all deficiencies. At the conclusion of the 1996-97 school year Respondent still had six areas of concern (albeit two new areas of concern added to four uncorrected deficiencies). Assistant Principal Jean Beehler performed Respondent's annual evaluation at the end of the 1996-97 school year. This evaluation, conducted on March 12, 1997, awarded Respondent a total score of 26 points. The areas of concern noted on this CTAS form were: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates knowledge of subject matter, and demonstrates ability to evaluate instructional needs. To her credit, Respondent had improved in planning and written communication skills. Moreover, she demonstrated compliance with the curriculum framework for her courses. Nevertheless, because there were still six areas of concern at the end of the school year, Respondent was given a district level professional development plan to assist her in the correction of the deficiencies. This district level plan (See Petitioner's exhibits 5, 6, and 8) replaced the school site plan. The strategies and directives of this plan offered Respondent a wider level of resources for improvement. A portion of this plan outlined summer remediation activities for Respondent. As to all portions of the plan, Respondent was given set time frames within which to accomplish various tasks. At all times material to the evaluations and plans adopted for Respondent during the 1996-97 school year Respondent had the assistance of Clarence Gunn, a representative from the Classroom Teachers' Association. Mr. Gunn was aware of the evaluations and recommendations for correction made to Respondent and participated in meetings conducted with the teacher when the annual evaluation was reviewed and when the subsequent corrective plan was implemented. It is undisputed that Respondent was given the entire 1997-98 school year to utilize numerous school resources in order to remedy the deficiencies outlined by the CTAS evaluations from the prior year. Respondent was offered assistance at the school site from administrators and peer teachers, as well as from district support staff. Respondent was permitted to attend various conferences and seminars. Despite the numerous and continuous efforts of school personnel to assist in the correction of the deficiencies, Respondent remained resolved, and improvidently observed to students that the school administration was out to get her job. Although Respondent attended workshops and made some efforts to improve, neither gravamen of the deficiencies nor the remedies necessary to correct them registered with Respondent until the time of hearing. In short, the Respondent did not correct the deficiencies. Students in Respondent's class continued to exhibit unacceptable, out of control, behaviors. They ignored her directions, tampered with her resource materials, and would walk out of the classroom. The mid-year evaluation conducted on December 9, 1997, by the principal, Dr. Grear, mirrored the past CTAS forms in that Respondent still showed the same six areas of concern. The district level professional development plan was updated in January 1998 to again offer Respondent assistance, guidance and timelines for correction of the deficiencies. Among the aids offered to Respondent were full-day workshops (for which substitutes were provided for Respondent's classes), after school seminars, reading materials and videos. Regional personnel, an outside expert, and peer-level teachers were also offered to Respondent. None of these individuals or references resulted in the correction of the deficiencies. In March 1998, Respondent was given her annual evaluation which noted the same six areas of concern. As a result, on or about April 1, 1998, Respondent was notified that the superintendent would recommend that the School Board not renew Respondent's teaching contract for the 1998-99 school year. Perhaps most telling of Respondent's failure to maintain classroom management and to establish an appropriate classroom climate was the testimony of Respondent's witness, Mary Willingham. Ms. Willingham was a student in two of Respondent's classes during the 1997-98 school year. She recited different activities done in the classes but when asked: Did you experience the same kind of disruptive behavior in your classmates, like, throwing books and throwing Crayolas in your other three classes like you did in Mrs. Mann's class? Answer: No, nothing like it was in her class. Even Ms. Rasmussen, the AVDA guest speaker in Respondent's classroom, had to shorten a presentation due to the disruptive conduct of the students while Respondent was present in the classroom. The collective bargaining agreement between the School Board and the classroom teachers (the contract) contains several paragraphs Respondent argues are pertinent to this case. Article II, Section G, paragraph 3 of the contract provides: 3. The evaluation shall be discussed with the employee by the evaluator. After the conference, the employee shall sign the completed evaluation form to acknowledge that it has been received. The employee shall have the right to initiate a written response to the evaluation which shall be made a part of the employee's official personnel file. If a PSC/CC employee's performance warrants a mid-year evaluation then such mid- year evaluation shall be completed by December 10 and shall follow all aspects of this Section. If any deficiency is noted on the mid-year evaluation, the Principal shall provide the employee with written and specific recommendations for improvement within twenty (20) days of the employee receiving the mid-year evaluation. The Principal/District will provide assistance to the affected employee in all noted areas of concern and adequate time to improve. Except as provided in this Section, employees shall be formally evaluated once yearly prior to May 31. As to both mid-year evaluations conducted in this matter the Petitioner complied with the provisions set forth in Article II, Section G, paragraph 3. Article II, Section M, of the contract provides, in pertinent part: With the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrong- doing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: * * * (d) Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Pertinent to this case, Petitioner fully advised Respondent of the allegations which resulted in the non-renewal of her CC contract. Moreover, Petitioner fully advised Respondent of the remedies necessary to correct all deficiencies. Finally, Petitioner extended to Respondent a protracted period of time within which to correct such deficiencies. In reaching such conclusions, it is observed that Respondent was provided adequate notice of all deficiencies asserted by the Petitioner, was kept apprised of her progress (or lack thereof) in the efforts to remedy the deficiencies, was given a sufficient number of evaluations by different evaluators to properly and accurately document the areas of concern, and was afforded two school years to correct the deficiencies noted in her evaluations. To her credit, Respondent has, over the course of her employment, provided valuable contributions to the GCCHS community. She has maintained close contact in the community and supported many extracurricular activities. Indeed, it is not subject to dispute that she has been helpful to the school and its community. Such positive contributions do not, however, ameliorate her classroom deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that School Board of Palm Beach County, Florida enter a final order affirming the decision to not renew Respondent's teaching contract for the 1998-99 school year. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 March, 1999. COPIES FURNISHED: M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive Suite 9E Miami Beach, Florida 33141 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Thomas E. Elfers, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Dr. Joan Kowel, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406
Findings Of Fact I. Respondent has worked as a custodian at Lake Worth High School since January, 1980. During the 1983-84 school year, he was assigned to work the 3:00 p.m. 11:30 p.m. shift. His duties included cleaning the top floors of the administration building, the old gymnasium, and the fieldhouse. His immediate supervisor was Edward Jerkins, Head Custodian at Lake Worth High School. Sometime in April, 1983, Mr. Jerkins received information that respondent and another custodian, Sam Kelly, were allegedly using marijuana while at work. Mr. Jerkins decided to investigate. On May 26, 1983, at approximately 9:45 p.m. -from the upper level of the administration building which overlooks the old gym area -Mr. Jerkins saw Sam Kelly enter the gym. Mr. Kelly was not assigned to work in this area, and it was not yet break time. Mr. Jerkins then saw respondent, who was sweeping the sidewalk outside of the old gym, enter the gym several minutes later. Mr. Jerkins waited for approximately one half hour, then proceeded to the old gym. On his way to the gym, he noticed that no one else was in the area. The doors to the gym were locked. He unlocked the doors with his key and entered the gym. He observed respondent and Sam Kelly sitting in the bleachers, and detected a strong odor of marijuana. Smoke was visible. Mr. Jerkins accused both men of smoking marijuana. The next day, he reported the incident to David D. Cant1ey, Principal of Lake Worth High School. After receiving Mr. Jerkins' report, Mr. Cantley warned both men that if they were found using marijuana on the school campus he would recommend to the Superintendent that their employment be terminated. II. On August 10, 1983, Kurt W. Auwaerter, Detective for the Lake Worth Police Department, was assigned to road patrol duties on the midnight 8:00 a.m. shift. He patrolled the southwest section of Lake Worth which includes the Lake Worth High School campus. On this date, Detective Auwaerter made his first routine check at Lake Worth High School at approximately 12:30 a.m. He dr9ve his police car to the rear of the school where the cafeteria was located. At that point he observed an unidentified man standing by a car. Since no one else was in the area and it was late at night, Detective Auwaerter became suspicious. He approached the man and asked for identification. The man produced a Florida drivers license, which indicated that he was the respondent. During this exchange, respondent was standing next to the door on the driver's side of the car. The detective, while speaking to respondent, looked into respondent's car with his flashlight. In plain view on the front seat of the car was a tray which held a cigarette "rolling" paper containing a brownish-green vegetable material. The detective recognized this material as marijuana. In addition, when the detective reached into the front seat of the car, he found a small manila envelope containing more of the same substance. He then arrested respondent for possession f marijuana, and transported him to the Lake Worth Police Station. The detective weighed the substance believed to be marijuana and determined that it weighed less than 20 grams. The substance was field tested and the test showed that it was, in fact, marijuana. 1/ On August 29, 1983, W. Paul LaChance, a schools board investigator, met with respondent and Principal Cantley. Because respondent spoke and understood little English, Carmen Chereza, an Hispanic native and substitute teacher at Lake Worth High School, was asked to interpret. Ms. Chereza translated Mr. LaChance's questions into Spanish and directed them to respondent. When he answered the questions, she repeated his answer in Spanish. If he agreed that it was correct, she translated it into English for Mr. LaChance and Principal Cantley. Respondent indicated that, sometime after midnight on August 10, 1983, he left work at Lake Worth High School. He approached his vehicle in the school parking lot and saw a small bag on the ground containing what he thought was marijuana. He picked it up and hid it in his car -intending to use it later. A few minutes later, Detective Auwaerter arrested him for possession of marijuana and took him to the Lake Worth Police Department. Respondent is familiar with marijuana and testified, at hearing, that he believed the substance in the bag to be marijuana. If a student is caught in possession of illicit drugs on school grounds, disciplinary action is taken. This rule should apply, with equal firmness, to employees of the school system. Due to the prior warning he received in May, 1983, respondent understood that if he was caught with marijuana on the school campus he would be recommended for termination.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be terminated from his employment for misconduct in office. DONE and ENTERED this percent percentay of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1984.
The Issue Whether Respondent committed the offenses alleged in the Amended Notice of Specific Charges and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, 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 Dade County, Florida. The Petitioner has rule making authority and the authority to enter into collective bargaining agreements. At all times pertinent to this proceeding, the parties were bound by the provisions of the collective bargaining agreement between the United Teachers of Dade and the School Board. Pursuant to Section 1 of Article V, Petitioner has the exclusive right to suspend, dismiss, or terminate an employee for "just cause." The term "just cause" as defined by Section 3(D) of Article XXI of the contract: . . . includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009 (Florida Administrative Code). Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4A-1.21, which sets forth the expected conduct of employees as follows: All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4C-1.02, which sets forth the expected conduct of non-instructional personnel as follows: The Board recognizes and appreciates the important supporting role played by non- instructional personnel in the school system's educational program. For that reason the Board endeavors to select persons of the highest quality to fill vacancies as they occur. One of the important functions served by the non-teaching staff is that of demonstrating good citizenship in the community. The Board reaffirms the wish that all employees of the schools enjoy the full rights and privileges of residency and citizenship in this community and in the state. Because of its high regard for the school system's non-teaching staff, the Board confidently expects that its employees will place special emphasis upon representing the school system ably both formally and informally in the community. Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4-1.08, which prohibits violence in the workplace as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public School employees have a right to work in a safe environment. Violence or threats of violence by or against students and employees will not be tolerated. Article VIII of the collective bargaining agreement addresses the subject of a “Safe Learning Environment.” Section 1(A) of Article VIII provides, in pertinent part, as follows: “A safe and orderly learning environment is a major priority of the parties. ” At all times pertinent to this proceeding, Respondent was employed by Petitioner as a school security monitor. The job description of a school security monitor provides the following basic objectives and responsibilities: BASIC OBJECTIVES Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures the appropriate standards of conduct are followed. JOB TASKS/RESPONSIBILITIES Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school administration and resolves minor altercations. Physically patrols all school buildings, grounds, and determines reason for the presence of outsiders. Stops and questions all students not in class during class time. Monitors parking lots and student gatherings (before, during, and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee. Respondent was initially employed by Petitioner as a temporary custodian in February 1988, and assigned to Madison Middle School (Madison). In June 1988, Respondent was employed as a school security monitor at Madison, where he remained until December 1993. At all times pertinent to this proceeding, Thelma Davis was the principal of Madison. In December 1993, Respondent's assigned post was near a gate in close proximity to the chorus room. J. B. and K. A. were female students at Madison during the school year 1993-94. J. B. was born March 8, 1981. In December 1993, J. B. was a twelve year-old seventh grader and a member of the chorus class taught by Edward G. Robinson. In early December 1993, Respondent made a series of inappropriate comments and gestures of a sexual nature to J. B. when she passed his assigned post. Respondent winked at J. B. as she passed his post and blew her kisses. On one occasion, he asked if she was a virgin. On another occasion he asked her the color of her underwear. On another occasion, he made a statement as to how warm they would be under covers together. K. A. overheard Respondent say to J. B. that he and she would be warm under the covers together. J. B. became visibly upset the day Respondent asked her the color of her underwear. Mr. Robinson observed J. B. crying. J. B. thereafter told Mr. Robinson about Respondent's comments and behavior. Mr. Robinson reported the information to the principal. A day or two later, J. B., accompanied by K. A., again complained to Mr. Robinson about Respondent's comments and behavior. Mr. Robinson again reported the information to the principal, and an investigation was instigated. The investigation was conducted under the supervision of Captain Arnie Weatherington, an experienced law enforcement officer employed by the Dade County School Police. In December 1993, Respondent was removed from the school campus and reassigned to the Region III office. The investigation was closed in May 1994 as being substantiated. In light of the substantiated findings, Ms. Davis recommended that Respondent's employment with the Petitioner be terminated. Louise Harms of the Petitioner' Office of Professional Standards conducted a Conference for the Record (CFR) with Respondent on May 3, 1994. During the CFR, Ms. Harms advised Respondent as to the findings of the investigation. Respondent remained assigned to the Region III office until February 1995, when he was involuntarily transferred to Westview Middle School. The investigation into this incident was closed by Respondent’s reassignment to Westview. There was no formal recommendation at that time by the Superintendent or by the Office of Professional Standards that Respondent’s employment be terminated for his misconduct at Madison. At Westview, Respondent had the responsibility to patrol the outdoor areas of the campus. He was given a walkie- talkie and a golf cart to assist him in performing his duties. Respondent’s instructions as to the cautious and safe use of the golf carts included the explicit instructions that children were not permitted to ride in a golf cart or to sit in a parked golf cart. During the school year 1996-97, Respondent's assigned responsibilities included patrolling the physical education area. During the 1996-97 school year, John McHale was a physical education teacher at Westview. His responsibilities included taking attendance, maintaining control of the class, and following the district curriculum. In November 1996, Mr. McHale's physical education class and three other classes that were taught by a Ms. Roque, Patricia NewKirk, and Nathaniel Stephens were held on an outdoor basketball court. On November 13, 1996, Mr. McHale was in charge of his own class and, in her absence, Ms. Roque's class. Mr. McHale's class and Ms. Roque's class were assembled on the basketball court so Mr. McHale could take roll. In addition, Mr. Stephens' class was assembled on the basketball court so Mr. Stephens could take roll. While Mr. McHale was in the process of taking roll, Respondent began joy riding in his golf cart. He rode onto the basketball court around and between the two classes under Mr. McHale's supervision. Students jumped on the golf cart. Respondent talked to students. Mr. McHale approached Respondent, told Respondent that he needed to get the classes under control, and asked Respondent to get the golf cart off the basketball court so he could do his job. In response, Respondent stated: "Take your ass back to your class. No bald-headed white man telling me what to do."2 Tempers flared, Respondent got off the golf cart, and the two men approached one another. Mr. Stephens, who is larger than either Respondent or Mr. McHale, stepped between the two men with his back facing Respondent. Respondent struck out at Mr. McHale with a closed fist, making contact with Mr. McHale’s shoulder. Mr. Stephens separated the two men and took Mr. McHale to the locker room. Respondent did not have any justification for driving the golf cart onto the basketball courts while the physical education classes were using the courts. That conduct disrupted the classes that were using the courts. Mr. McHale reported the incident to Darrel Berteaux, the school principal. Mr. Berteaux requested that the DCSP conduct an investigation. The investigation into this incident was conducted by Lieutenant Oryntha Crumity, an experienced law enforcement officer employed by the Dade County School Police. During the course of the investigation, Respondent contacted several of the student witnesses and asked each student whether the student was on his side. By making such contact, Respondent attempted to intimidate these student witnesses. Approximately a month after the incident, Mr. Berteaux received reports that Respondent had approached several student witnesses. He immediately requested that Respondent be transferred from Westview. Respondent was thereafter transferred from Westview. Proceedings to terminate his employment were initiated following a review of these matters by the Petitioner's legal staff.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the final order terminate Respondent's employment. DONE AND ENTERED this 8th day of September, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1998
The Issue The issue for consideration in this case is whether Respondent's certification as a teacher in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Florida's Commissioner of Education, was the state official responsible for the certification of teachers in this state. Respondent held and currently holds Florida Teaching certificate No. 086279 in the areas of reading and social science. This certificate , unless otherwise revoked for cause, will be valid through June 30, 2000. During the school years from 1990 to 1992, Respondent was employed as a reading teacher at the Lake Alfred Career Development Center operated by the Polk County School Board, having been hired into that position by the Center's Principal, Mr. Williams, in 1990. During the 1991-1992 school year, Respondent taught T.B., a minor female. During the same school year, 1991-1992, O.B., T.B.'s sister and a minor female, also was a student at the Center, and though not a pupil of the Respondent, served as a tutor to Respondent's class. Starting in January, 1992, Respondent gave O.B. small amounts of money for personal expenditures such as drinks and lunch. He also gave her items of clothing and a check to pay for a subscription for a magazine she wanted. During the period up to April, 1992, he gave her money for making the honor roll and other sums, up to $20.00 at a time, for spending money. These payments would be made every other week or so. In addition to giving O.B. money and gifts, shortly before the spring break he also gave her his home phone number and told her that if she needed anything she should call him and they would go shopping together. On April 22, 1992 O.B. had occasion to work, alone, in Respondent's office. At the time, she was reading newspaper articles into a tape recorder for him to use to help his students in their reading lessons. While she was there, Respondent came to the office several times to check on her, and on this day, she was wearing one of the outfits Respondent had bought for her. On one of these visits, Respondent sat down across from O.B. and placed his hands on her upper thighs. As he did this, he asked her if he could do something personal with her. O.B. asked Respondent what that was, to which question Respondent told her not to ask questions but just say either yes or no. O.B, did not respond but remained silent. At this point, Respondent lifted O.B.'s skirt. He then told her to stand up while he remained seated. When she stood, Respondent reached over and pulled out on the top of O.B.'s panties. Petitioner asserts that by doing so he was able to see her vagina but this is unlikely. Because he did not pull her panties down and she was standing up, it would be difficult, if not impossible, for him to see her vagina from that angle. Regardless, he told O.B. she was beautiful, pulled her close to him, held her and kissed her between the breasts. In his affidavit, Respondent contends it was impossible for him to do this as well because of the differences in their height and the fact that he was seated at the time, but it is found that he did. At this point, Respondent stood up and told O.B. to open her mouth. When she complied, Respondent tried to kiss her, but she pulled away. With that, Respondent remarked that she "was not ready for that yet" and then left the office. O.B. then went quickly to the girls' bathroom and locked herself in. While there, she heard Respondent, or someone, walk by outside the bathroom several times. When she felt ready, O.B. left the bathroom and went to one of the classrooms down the hall where her friend, H.H. was in class. Still upset and crying from her encounter with the Respondent, O.B. got H.H. out of class and told her what had happened. While the girls were talking in the hallway, T.B. came by and noticing that O.B. was crying and upset, asked what was wrong. O.B. didn't want to say, but T.B. insisted, threatening to tell their mother if O.B. did not tell her story. After this, O.B., T.B. and H.H. went back to Respondent's office so that O.B. could get her coat and books. While they were in Respondent's office O.B. told T.B. what had happened. While this was going on, Respondent came into the office several times. On one visit he noticed the girls were looking at a magazine and he asked them if they saw anything they liked. When they pointed out several bathing suits, he circled those they had shown him and left, taking the magazine with him. While he was in the office with the two girls, Respondent asked T.B. if O.B. was OK. He later saw them again and asked them both if everything was OK. He also admonished them not to say anything to anyone about O.B.'s claim. Before they left school for home that day, Respondent again told T.B. to take care of O.B., stating that O.B. had something for her. The girls then left the area but returned shortly thereafter to find out what Respondent had meant by his last comment. At that point, Respondent indicated he had forgotten, and gave O.B. a $10.00 bill. Before leaving school that day, Respondent also told O.B. that he had behaved badly with her, claiming he had behaved like a "jackass". He said he had not meant to do it and that it would not happen again. He promised that if O.B. would not tell anyone about what he had done, he would give her money, clothes or whatever she wanted. O.B. went home with H.H. right after school, not getting to her own home until about 7:30 PM. When she got there she told her mother what had happened between Respondent and her that day. Mrs. B. immediately called the Polk County Sheriff's Department and advised them of the incident. The Sheriff's Department notified the Lake Alfred Police Department. At approximately 8:15 PM on April 22, 1992, Detective Bradley of the Lake Alfred Police Department came to O.B.'s home in response to the notification and spoke with O.B. Later that same evening, he advised Respondent of the charges against him. O.B. did not go to school on April 23, 1992 because she was too upset and almost didn't go on April 24, 1992. However, Detective Bradley asked that O.B., T.B. and H.H. come to his office to make statements concerning the incident, which they did. Thereafter, he notified the Polk County School Board of the allegations and charges against Respondent as well as the State Attorney's office from whom he sought and received permission to set up a monitored phone conversation between T.B. and the Respondent. On April 24, 1992, T.B. telephoned Respondent at school from the Lake Alfred Police Department and talked with him about the incident. In the telephone conversation, which was monitored and tape recorded by Detective Bradley, T.B. advised Respondent that H.H. was very upset over what O.B. had told her regarding the incident between him and O.B. and wondered if he would be willing to give her something to keep quiet about it. Respondent wanted to talk with H.H. about it and solicited from T.B. a telephone number at which he could call H.H. and talk with her. After taking statements from the three girls and after taping the telephone conversation T.B. had with Respondent, Bradley went to Lake Alfred Career Development Center where he talked with Mr. Williams, the principal, who called Respondent to the office. Upon being introduced to Respondent, Bradley immediately read and advised him of his rights against self incrimination. Respondent elected to remain silent at that time and seek counsel prior to being interviewed. Bradley asked no further questions and advised Respondent of the allegations and charges against him. At that time, in the presence of Detective Bradley, Respondent informed Principal Williams that he wanted to keep the matter private and would resign immediately. Respondent was suspended with pay effective April 24, 1995, and on May 5, 1992, submitted his formal letter of resignation and retirement from employment with the Polk County School System, to be effective June 11, 1992. Several days after Respondent submitted his letter, on May 13, 1992, he was informed that his suspension would be continued without pay pending the outcome of the criminal investigation. However, when Respondent's employment contract came up for renewal after the expiration of the 1991-1992 school year, it was not renewed. By letter dated June 12, 1992, the Superintendent of Schools for Polk County advised Respondent he would be permitted to resign and retire and would be paid for any accrued leave. On or about July 30, 1992, Respondent was arrested on a charge of Lewd and Lascivious Acts on a Child Under 16 Years of Age and of Tampering with a Victim or Witness relating to the allegations herein. Thereafter, on June 24, 1993, Respondent pled nolo contendere to the charge of Lewd and Lascivious Acts in Circuit Court. Adjudication of guilt was withheld and Respondent was placed on 4 years probation with conditions of probation attached. Included within these conditions was that Respondent not have unsupervised contact with any child under the age of 18. The charge of Tampering with a Victim or a Witness was dismissed. It is improper conduct for a teacher to give money or gifts to a student of that teacher within the Polk County School District. It is also inappropriate activity and misconduct for a teacher to touch a student in the manner in which Respondent touched O.B.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Edward McDonald's, teaching certificate in Florida be permanently revoked. RECOMMENDED this 27th day of December, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1995. COPIES FURNISHED: Edward McDonald 7203 North 40th Street Tampa, Florida 33604-4501 Ronald G. Stowers, Esquire Office of the General Counsel Department of Education Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Karen Barr Wilde Executive Director Education Practices Commission 301 W. Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards Administrator Professional Practices Services 152 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Recommendation Based on the foregoing, the Hearing Officer recommends that: Edgar Wilson Rodriguez stay at McArthur High School -- North until the end of the school year. The school system provide to Mrs. Rodriguez a hearing or other proceeding to correct the record or expunge the record. DONE and ORDERED this 22nd day of March, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1983. COPIES FURNISHED: Mark A. Valentine, Esquire 3000 Executive Plaza, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Mr. and Mrs. Eduardo Rodriguez 159 West 44th Street Hialeah, Florida 33012 Phyllis O. Douglas, Esquire Administrative Office Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether respondent's Florida Teacher's Certificate should be revoked or otherwise disciplined on charges of professional misconduct, including gross immorality, acts involving moral turpitude, conduct which seriously reduces his effectiveness as an employee of the school board, intentionally exposing a student to unnecessary embarrassment or disparagement, exploiting a professional relationship with a student for personal gain, and failing to conform to standards of ethical conduct, in violation of Section 231.28, Florida Statutes, and Rules 6B-1.06(3)(e) and (h), and 6B-1.01(3), Florida Administrative Code.
Findings Of Fact Respondent holds Florida Teacher's Certificate 342171, covering the area of physical education. At all times material to the administrative complaint, respondent was employed as a physical education teacher at Lake Worth High School in the Palm Beach County School District. From 1973, when he joined the Palm Beach County School District, to the date of his suspension for the acts complained of in the administrative complaint, he was consistently rated to be a good teacher. His teaching ability and performance were not in question. He also maintained a close relationship with his students, frequently assisting them beyond the requirements of his job. On the afternoon of May 23, 1983, at approximately 2:30 p.m., respondent entered the K-Mart department store in Lantana, Florida, accompanied by his niece, Cathy Brown. While shopping in the store, he selected a 68-quart cooler, bearing a price tag of $43.58, then proceeded to the hardware department, where he selected a Black and Decker electric drill, bearing a price tag of $22.99. He left the hardware department and proceeded to the garden/patio area or Garden Shop. Before reaching the double glass doors separating the main building from the Garden Shop, he stopped and placed the large box (containing the 68-quart cooler) and the small box (containing the electric drill) on the floor at the end of an aisle approximately 30 feet from the double glass doors. Be then walked directly to the double glass doors opening onto the Garden Shop, and glanced in the direction of the checkout counter located at the Garden Shop exit. He then walked back past the cooler and electric drill, and proceeded into the appliance department where he met Cathy Brown. Ms. Brown had previously selected a package of hair curlers, bearing a price tag of $1.38. He and Ms. Brown briefly examined several items on a display counter in the appliance department, then returned to the place where he had placed the cooler and electric drill. He picked up these two items and proceeded to the Garden Shop; Cathy Brown, who was carrying the hair curlers, accompanied him. Jeanette Grimes, a 17-year-old Lake Worth High School student, was--at that particular time--the cashier at the register located at the Garden Shop checkout counter. Ms. Grimes knew respondent. Be had been her physical education teacher for two years and basketball coach for one year. She considered him a friend. As respondent approached the checkout counter where Ms. Grimes was serving as cashier, he placed the box containing the cooler and the box containing the electric drill on the floor at the far end of the checkout counter, not on the counter itself. At that time there were customers at the checkout counter who were being waited on by Ms. Grimes. He and Cathy Brown walked away from the checkout counter and began looking at plants. After Ms. Grimes had finished checking out the customers at her counter, he and Ms. Brown again approached the checkout counter, where he engaged Ms. Grimes in conversation. At no time did he place any items on the counter for Ms. Grimes to examine and ring up. At that time she rang up a $1.00 item and a $5.00 item, totalled the transaction at $6.00, then rang up a $.30 tax, and totalled the transaction at $6.30. He handed Ms. Grimes $10.00 in payment for the merchandise. She mistakenly rang up $10.00 for an additional item of merchandise, voided the $10.00 item off her tape, and re-rang $10.00 as cash tendered. At that point the cash register opened and indicated that change in the amount of $3.70 was due. Ms. Grimes gave respondent $3.70 in change and a receipt for the transaction. During the course of ringing up the transaction, the items of merchandise remained on the floor at the end of the counter. Ms. Grimes did not pick up the items and examine them for a price tag while ringing up the amounts. Upon the completion of the transaction, Ms. Brown engaged Ms. Grimes in conversation. Ms. Brown handed to Ms. Grimes the box containing the electric drill and the package containing the curlers; Ms. Grimes placed the items into a bag which she gave to Ms. Brown. Respondent then picked up the box containing the 68-quart cooler and left the store, accompanied by Ms. Brown, who carried the bag containing the curlers and the electric drill. Both respondent and Ms. Brown were aware that they had not paid the full price for the merchandise, and that what they were doing was wrong. Mr. Frank Heim, K-Mart's Lobs Prevention Manager, (store detective) observed respondent's activities in the K-Mart continuously, from the time respondent selected the electric drill in the hardware department to his exit from the store. Mr. Heim observed the transaction at the checkout counter, then immediately proceeded to Ms. Grimes' register, examined the register tape, and proceeded to the parking lot to ask that respondent return to the store. Mr. Heim located respondent at his (respondent's) truck in the parking lot. Respondent had placed the cooler in the back of his truck and Cathy Brown was still holding the bag containing the curlers and the electric drill. Mr. Heim identified himself to respondent, advised him of a problem with the purchase which he had just made, and requested that he return to the store with the merchandise to clear the matter up. Respondent replied that he had paid for the merchandise and had a receipt, that it was not his fault if the cashier rang up the wrong prices. After some additional conversation, respondent removed the cooler from the back of his truck and accompanied Mr. Heim back to the store. Upon entering the store through the Garden Shop entrance, respondent placed the cooler on the floor just inside the entrance, then stopped and attempted to discuss the matter with Mr. Heim. Mr. Heim advised respondent that they could not discuss the matter at that location, that they would have to go to his office. As they approached Mr. Heim's office, respondent again stopped, placed the cooler and the bag containing the other two items on the floor, and stated to Mr. Heim that he was not going inside his office. Mr. Heim replied that they could not discuss the matter in the store, and that respondent would have to accompany him inside his office. Respondent replied that he did not have time to discuss the matter, that he was in a hurry and had to leave. Mr. Heim then advised respondent that he was not free to leave and that he was being detained for shoplifting. Respondent became agitated, stated "You've got your stuff back," and began walking away. Mr. Heim sought help from others, then blocked respondent's path at the glass doors between the main store and the Garden Shop. He told respondent not to make the situation worse by trying to leave the store, but respondent attempted to force his way by Mr. Heim. Mr. Heim grabbed him by the arm and a brief scuffle ensued. At that point, respondent ripped up his cash register receipt and discarded the remnants onto a display counter. Mr. Heim immediately retrieved the remnants and later Scotch- taped the pieces together. After respondent became calmer, he returned with Mr. Heim to his office. After entering the office, Mr. Heim advised respondent of his "Miranda" rights. Mr. Heim asked him for identification and asked him to empty his pockets in order to make sure he had no weapons. Respondent removed a total of approximately $22.00 from one of his socks while in the office. Respondent admits that at the time he entered the K-Mart store, he had only approximately $30.00 on his person. The total retail price of the three items, according to the price tags affixed to each, totalled $67.95. In response to Mr. Heim's questions, respondent continuously stated that it was not his fault that the cashier rang up the wrong prices and that he paid her the amount she rang up. Conflicting accounts of this incident were given by Mr. Heim and respondent. Taking into account Mr. Heim's detached and professional manner, and his lack of apparent bias or motive to falsify, it is concluded that his testimony is more credible than respondent's, and is persuasive. As a result of this incident, respondent was arrested and charged with the crime of retail theft. Based upon the circumstances described herein, Jeanette Grimes was fired by the K-Mart department store. She was also arrested and charged with the crime of retail theft. Jeanette Grimes' job at K-Mart was a requirement for one of her school classes, "Work Experience." As a result of her being fired, she failed the course. Respondent's effectiveness as a teacher was seriously reduced as a result of his conduct and the accompanying notoriety which it received in the community. The circumstances of his offense, his arrest, and his suspension from his teaching position, all received notoriety through publication of articles in three newspapers of general circulation in the Lake Worth community.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission find respondent guilty of violating Section 231.28 and Rule 6B-1.06, as alleged, and revoke his Florida Teacher's Certificate. DONE and ENTERED this 4th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 John Chamblee, Esquire 202 Cardy Street Tampa, Florida 33606 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission Knott Building Tallahassee, Florida 32301 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301
The Issue Whether the School Board's decision of March 26, 1998, to designate attendance zone for a new elementary school in Orange County was a "Rule," as defined in Section 120.52(15), Florida Statutes. Whether Petitioner has standing to bring a rule challenge in this tribunal. Whether the School Board's adoption of a new attendance zone is invalid because: It only received an affirmative vote of four of the Board's seven members on March 26, 1998; changes to Shenandoah's attendance zones were not considered in any planning or workshop prior to the March 26 meeting; and/or the failure of the School Board to publish notice of adoption of a rule 28 days in advance of its March 26 meeting makes the decision invalid. Whether the School Board was required to provide notice of development of a rule prior to its decision to include the area in question (the two neighborhoods which had been in the Shenandoah attendance zone) in the Lake George attendance zone and, if so, whether that renders the School Board's March 26 action invalid, pursuant to Sections 120.54(2)(a) and (c), Florida Statutes. Whether DOAH has the authority to grant freedom of choice for the residents of the two neighborhoods to pick which of the two schools (Shenandoah or Lake George) to attend. Whether the School Board's unanimous approval of the minutes of its March 26 meeting cures any defects in the process.
Findings Of Fact This dispute involves the establishment of an attendance zone for a new elementary school in Orange County: Lake George Elementary School. Lake George Elementary School is a new elementary school established and to be operated by the School Board of Orange County, Florida. Construction of the school began in the fall of 1997 and the school is scheduled to open shortly, at the beginning of the 1998-99 school year. The site for the school was selected in 1995. It was originally intended to relieve two overcrowded elementary schools: Conway and Dover Shores. Staff will report to Lake George for pre-planning on August 4, 1998, and the first day of classes for students will be August 10, 1998. Orange County's other elementary schools follow the same schedule. The Orange County School District covers the entire county, approximately 1,003 square miles. The population of Orange County, according to The Florida County Atlas, was 727,760 in 1993. During the 1997-98 school year, the District enrollment was 134,292, an increase of nearly 6,000 students over the previous year. Sixty-four thousand two hundred and eight students were enrolled in the District's elementary schools for the 1997-98 school year. As of January 1, 1998, the District operated 91 elementary schools. In March 1997, Orange County School Board staff met with parents of students attending Ventura, McCoy, Conway and Dover Shores Elementary Schools in a public planning session for the development of the new elementary school's attendance zone. (This is the school that would become Lake George Elementary School.) Parents of students attending Shenandoah Elementary School were not invited to attend because Shenandoah students were not involved in staff's plans for the new elementary school zone at that time. On January 18, 1998, the School Board published in The Orlando Sentinel (a newspaper of general circulation throughout all of Orange County) a notice of a public workshop to discuss the establishment of the Lake George Elementary School attendance zone. The workshop was scheduled for January 27, 1998. The notice was published on page K-13 of the "Orange Extra," a Sunday supplement in The Orlando Sentinel and was also posted in appropriate locations. On January 27, 1998, the School Board convened in open, public session to hear staff and public input regarding an attendance zone for Lake George Elementary School and discuss options. Three different options for a Lake George Elementary School attendance zone were explained by staff to the School Board. None of those options involved transferring students from the Shenandoah Elementary School attendance zone. On February 4, 1998, the School Board published in The Orlando Sentinel a Notice of Proposed Action regarding the establishment of the Lake George Elementary School attendance zone. The proposed attendance zone for Lake George Elementary School described in this notice did not involve transferring any part of the Shenandoah Elementary School attendance zone to the Lake George Elementary School attendance zone. The notice called for a public hearing to be held on February 24, 1998. On February 24, 1998, the School Board held a public hearing regarding the proposed attendance zone for Lake George Elementary School. Staff explained its recommended proposal to the School Board and additional input was given by members of the public. At the conclusion of the February 24 public hearing, the School Board discussed the staff proposal and, based on input from the public hearing, voted 6-1 to establish the following attendance zone for Lake George Elementary School: Area transferred from Ventura Elementary School to Lake George Elementary School: The area west of Semoran Boulevard, north of Lake Margaret Drive, east of Dixie Belle Drive, and south of the Orange Orlando Apartments. Area transferred from McCoy Elementary School to Lake George Elementary School: The area west of Semoran Boulevard, north of Abercom Road, and east of Kennedy Road. Area transferred from Conway Elementary School to Lake George Elementary School: The area south of Michigan Avenue and east of Conway Road, including the east side of Conway Road. Area transferred from Dover Shores Elementary School to Lake George Elementary School: The area west of Dixie Belle Drive containing the seven most southern buildings of the Belle Crest Apartment complex. The zone described in Paragraphs A-D, above, was consistent with what had been advertised. However, staff had also recommended that the School Board transfer the seven most northern buildings of the Belle Crest Apartment complex, containing a projected 114 students, from Dover Shores Elementary School to Lake George. After hearing public comment, the School Board decided not to transfer that area. At the conclusion of the February 24 public hearing, based on input from the hearing, the School Board also arrived at a consensus that the following portion of the Shenandoah Elementary School attendance zone be added to the Lake George Elementary School attendance zone: The area north of Gatlin Avenue and east of Conway Road. That area includes the subdivisions cited in the Petition (Gatlin Place and Windward Place.) At the conclusion of the February 24 public hearing, the School Board directed staff to advertise another public hearing so the School Board could hear community input regarding inclusion of the area described in paragraph 12 in the Lake George attendance zone involving Shenandoah Elementary School which includes 104 students. On March 2, the School Board's staff invited the parents of students living in the affected area (i.e., the area described in paragraph 12) to discuss the proposed zone change at a public meeting to be held at Shenandoah Elementary School on March 9. The School Board's Office of Pupil Assignment mailed letters to the homes of each elementary school student who had been enrolled at Shenandoah and would be assigned to Lake George if the proposal (described in paragraph 12) were approved. On March 4, 1998, the School Board published in The Orlando Sentinel a second Notice of Proposed Action regarding the establishment of the Lake George Elementary School attendance zone. The proposed action specified in this published notice called for an attendance zone for Lake George Elementary School that was identical to the one formally adopted (by a 6-1 vote) at the School Board's February 24 meeting, but added to the Lake George Elementary Zone that portion of the Shenandoah Elementary School attendance zone described in paragraph 12, above. This notice was also posted in appropriate locations. The grade structure, program offerings, and educational opportunities to be offered at Lake George Elementary School are comparable to those offered at Shenandoah Elementary School. On March 9, a representative of the School Board's Office of Pupil Assignment who had assisted in preparing the proposal for the Lake George attendance zone met at Shenandoah Elementary School to explain the proposal, solicit public input, and respond to questions and comments about the proposal. At its March 10, 1998, meeting, the School Board unanimously approved its minutes for the February 24 meeting. On March 26, 1998, the School Board held its second public hearing on the Lake George Elementary School attendance zone. Twenty-two individuals addressed the School Board, many of whom resided in the portion of the Shenandoah attendance zone that was to be transferred to the Lake George attendance zone. Other options suggested by members of the public and discussed by members of the School Board included leaving the Gatlin Place and Windward Place subdivisions at Shenandoah and/or transferring a portion of the Dover Shores zone into Lake George. At the conclusion of the second public hearing on March 26, 1998, after public discussion by members of the School Board, a roll-call vote was conducted and the members voted, 4-3, in favor of the advertised proposal. The chairman declared that the motion was approved. Subsequently, the meting adjourned. At its April 14, 1998, meeting the School Board unanimously approved its meetings for the March 26 meeting. In relevant part, the minutes state: The motion passed with a majority vote of 4-3. Prior to October 25, 1993, the School Board had adopted Policy BG stating: The School Board shall determine and adopt such rules as are deemed necessary for efficient operation and general improvement of the school system. These rules may be amended, repealed or a new rule adopted as hereinafter prescribed. The term "rule" is defined in Section 120.52(16), Florida Statutes. * * * Unless an emergency exists any proposal relating to a rule amendment, the repeal of any rule or the adoption of a new rule shall be presented in writing to the School Board including a written explanation of the proposal. * * * Any person who is substantially affected by a proposed rule, rule amendment or the repeal of a rule may within 21 days following notice of intent to adopt, amend or repeal such rule, file a written request with the School Board seeking an administrative determination as to the validity of the proposed rule action. A vote for adoption shall require a two- thirds affirmative vote (five of the total membership of the School Board.) The formal adoption of policies shall be recorded in the minutes of the School Board. Only those written statements so adopted and recorded shall be regarded as official School Board policy. This School Board rule was in effect at all times material to this proceeding, as were the following policies: BBA, BEDH, BGC and CB. Each member of the School Board took an oath of office to "Perform the duties of Member, School Board of Orange County." On May 12, 1998, Petitioner addressed the School Board, He said that the Board had failed to follow Policy BG (requiring a two-thirds affirmative vote to adopt the modifications to the Lake George Elementary School attendance zone made at the Board's March 26 meeting) and had failed to give proper notice of its adoption of that proposal in that Shenandoah's attendance zone was never considered in the planning/workshop meetings and the advertisement was published only 22 days before the vote. He requested that the Board take action to correct those deficiencies. Petitioner filed his Petition for Formal Administrative Hearing with the School Board on May 29, 1998. At Petitioner's request, the School Board forwarded the Petition to the Division of Administrative Hearings on June 18, 1998. On July 1, 1998, the School Board published in The Orlando Sentinel a Notice of Proposed Action regarding the establishment of the Lake George attendance zone which would affect Lake George, Dover Shores, Senandoah, Ventura, McCoy and Conway Elementary Schools. This proposal is the same as was approved by a 4-3 vote on March 26, 1998.
The Issue The issues are whether Respondent is guilty of committing gross immorality or an act involving moral turpitude, in violation of Section 1012.795(1)(c), Florida Statutes; failing to make reasonable effort to protect students from conditions harmful to learning or students' mental health, physical health, or safety, in violation of Florida Administrative Code Rule 6B-1.006(3)(a); or intentionally exposing a student to unnecessary embarrassment or disparagement, in violation of Florida Administrative Code Rule 6B-1.006(3)(e). If so, an additional issue is the penalty that should be imposed.
Findings Of Fact Respondent holds Florida educator certificate 125057, which covers Elementary Education and English to Speakers of Other Language (ESOL). The certificate is valid through June 30, 2004. Respondent was first certified in 1961, at which time she began her teaching career. Respondent has taught full-time at North Twin Lakes Elementary School since August 1983. Prior to her employment at North Twin Lakes Elementary School, Respondent had been employed by the Miami-Dade School District for six or seven years. Six or seven years ago, Anne Louise Harms became principal of North Twin Lakes Elementary School. Ms. Harms has been employed by the Miami-Dade School District for 30 years. Not long after Ms. Harms became principal of North Twin Lakes Elementary School, Respondent felt that their relationship had become strained, perhaps over Respondent's intercession on behalf of another teacher. In March 2000, Ms. Harms placed Respondent on prescription for a failure regarding professional responsibilities that is unspecified in the present record. In the summer of 2000, Respondent took a leave of absence, at least partly to care for an ill family member. Respondent's first day back to school following her leave of absence was January 29, 2001. She was assigned to teach an ESOL class in a portable. Respondent's classroom was one of four classrooms occupying the portable. The pod-type arrangement provided Respondent's classroom with little privacy. An adult on a chair could easily see over the dividers that separated the four classrooms; obviously, persons within one classroom could hear what was said in the other classrooms. Every time they entered or left the portable, the students and teacher in at least one of the other classrooms used one of the exterior doors that connected to Respondent's classroom. The portable had no windows in the area of Respondent's class, so she kept the doors closed to assure that the area remained cooled or heated, as well as due to concerns about security and the distraction posed by noise outside of the portable. A couple of days after Respondent's return to the classroom, the principal appeared in her room. The principal testified that she had heard Respondent yelling in her classroom, so the principal checked the classroom to see what was happening. The principal testified that Respondent's door was open. However, this testimony is discredited based on the testimony of Respondent and other teachers concerning their practice of keeping the door closed. Clearly, Respondent could not have been yelling without disturbing teachers in the portable, but Petitioner did not produce other witnesses to testify that Respondent was yelling. The principal testified that she saw Respondent grasp a student's shoulder and temple and then push his head into a book that was open in front of him. The principal testified that she removed the child in question, although she left Respondent in charge of the remainder of the class. Although the principal admitted that she did not see any physical injury on the child, who reported that he was okay, the principal contacted the regional Office of Professional Standards. This testimony, too, is discredited for several reasons. First, the child does not corroborate the principal's testimony. Although the child gave a very brief statement, in Spanish, indicating that Respondent had pushed his head into a book, the child testified at the hearing that he could not recall Respondent doing so. Second, Respondent could not reasonably have expected that she could yell at a child and then push his head into a book without being heard and possibly seen by another nearby teacher occupying the same portable. As noted above, Respondent had no privacy in her classroom. Third, the principal left Respondent with the remaining students on the day of the incident and for the rest of the school year. It would seem, especially on the day of the incident, that a principal who had witnessed a teacher physically abuse a student would not merely remove the child to her office to commence an investigation into the teacher. In such a situation, the principal's first responsibility would be, of course, to protect the other students from similar physical abuse by either having the teacher removed from the classroom and building or, if necessary, removing the students from the classroom. Subsequently, the Miami-Dade School District removed Respondent from the classroom due to fitness-to-work issues unrelated to the matters raised in this case. Based on the testimony and demeanor of some, but not all, of the teacher witnesses, including Respondent, some, but not all, of the more senior teachers, including Respondent, posed serious personnel- management issues for the principal. Most likely, the principal tried to take a short-cut to solving one of her personnel- management problems--i.e., Respondent--by exaggerating the significance of what may have been a relatively minor classroom confrontation between Respondent and one of her students. In any event, the record fails to show by clear and convincing evidence that Respondent mistreated the child, as alleged by Petitioner.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 9th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 9th day of February, 2004. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Director Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Anthony D. Demma Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
