The Issue Whether Respondent's teacher's certificate should be revoked or otherwise disciplined.
Findings Of Fact Respondent held Florida Educator's Certificate No. 609670, covering the areas of Physical Education, General Science, and Education Leadership. The certificate expired on June 30, 2000. However, Respondent has the option to ministerially renew his certificate. In 1989, Respondent was a teacher at Pensacola High School. During the summer of 1989, Dona Snyder, then 18 years old, was a student at Pensacola High School. Respondent would often speak with Dona at school and telephone her at home to ask her to go out with him. She turned him down. However, the day before summer school ended Dona and Respondent engaged in romantic hugging and kissing. The last day of school they went to eat at a local restaurant. Later in the year, after Ms. Snyder had graduated, Dona and Respondent engaged in sexual intercourse, which resulted in the birth of a child. From 1994-1998, Respondent was employed as a Physical Education teacher at Pine Forest High School, in Escambia County. In 1994, M.M., aged 14, was a ninth-grade student at Pine Forest High School. She met Respondent during that year. When M.M. was in the tenth grade, Respondent chaperoned M.M's. ROTC class to Seattle, Washington. M.M. and Respondent became more familiar with each other during the trip. They became very comfortable with each other and Respondent began making comments of a sexual nature about M.M's. appearance. M.M. developed a crush on Respondent. When Respondent and M.M. returned from the Seattle trip, they visited each other at various locations at Pine Forest High School. In April 1996, towards the end of M.M.'s tenth grade year, Respondent told M.M. that he would like to see her away from school. Respondent made it clear that he was interested in a sexual relationship with M.M. M.M. was around 16 years old at the time. Respondent encouraged M.M. to either lie to her mother or sneak out of her home at night in order to meet him. At first, M.M. refused Respondent's suggestions. She did not think sneaking out was right. Later in 1996, Respondent and M.M. saw each other at a football jamboree. Respondent gave M.M. his telephone number. M.M. later telephoned Respondent and they decided to meet at the University Mall. It was agreed that M.M. would concoct a pretextual reason to go to the mall which she would tell her mother. After they met at the mall, Respondent took M.M. to his home. They went to his bedroom and had sex. After this first sexual encounter, Respondent and M.M. started meeting each other and having sex almost every weekend for more than a year. M.M., with Respondent's encouragement and complicity, would sneak out of her mother's home from her bedroom window at approximately 2:00 a.m. Respondent would pick her up several blocks away from her house. They would go to Respondent's house and have sex. Afterwards, Respondent would take M.M. back to the place where he picked her up. M.M. would then walk back to her house and enter through her bedroom window. Clearly, Respondent placed M.M. in a dangerous situation by encouraging and facilitating these late-night excursions. Respondent and M.M. had sex in various places, such as Respondent's home, Respondent's car, Belleview ball park, the school baseball field, and the baseball locker room. On one occasion, Respondent took M.M. and another female high school student to a local hotel for group sex. Respondent provided alcohol to the girls. He directed the girls to have sex with each other. While the girls had sex with each other, Respondent watched. Respondent had sex with the other student and then had sex with M.M. During their relationship, Respondent told M.M. not to tell anyone about their affair because he could lose his job and go to prison. Respondent also talked M.M. into foregoing her desire to pursue college and ROTC. Through this relationship, he directly contributed to M.M.'s grades deteriorating and a loss of self-esteem. The good relationship she had with her mother deteriorated. M.M. was known as Coach Bragg's girlfriend. He encouraged her to lie to her mother. None of these behaviors should be encouraged or promoted by a teacher. The relationship between Respondent and M.M. came to light when M.M's. mother woke one night and discovered her daughter missing. She confronted M.M. when M.M. was attempting to get back into her bedroom through the window. M.M's. mother telephoned the police. Later, Respondent lost his effectiveness as a teacher when he was removed from his teaching position. Respondent was arrested and charged with unlawful sexual activity with a minor. On or about July 7, 1998, the case against Respondent was nolle prosequi by the court because Respondent had instructed M.M. to lie about their relationship. During the time of the prosecution, Respondent also caused M.M. to ignore her subpoena to testify at Respondent's trial and go into hiding until the prosecution was dismissed. However, a bench warrant was issued for M.M. Once it became clear that the prosecution would be pursued, M.M. returned to Escambia County and was arrested and jailed on a bench warrant which had been issued for her failure to appear at trial. Respondent concocted a story for M.M. to tell to the prosecution. He talked her into marrying a best friend of Respondent's so that she could say she was seeing this friend instead of seeing Respondent. Respondent's lack of moral character is apparent. As a teacher, Respondent held a position of trust towards M.M. and Dona Snyder. Clearly by engaging in a sexual relationship with them he breached that trust and violated both the Florida Statutes and Florida Administrative Code. Respondent has repeated this predatory behavior over the course of his teaching career and cannot be trusted to protect female students from his amorous intentions. Clearly, Respondent does not have the moral character to be a teacher and should not be permitted to hold or renew his teaching certificate.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Education Practices Commission permanently revoking Respondent's Florida Educator's Certificate No. 609670. DONE AND ENTERED this 15th day of February, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2001. COPIES FURNISHED: Ron Weaver, Esquire 528 East Park Avenue Tallahassee, Florida 32301 Michael D. Tidwell, Esquire 811 North Spring Street Pensacola, Florida 32501 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Education Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Respondent, Kevin R. Sanders, committed the offenses alleged in an Administrative Complaint filed by the Commissioner of Education with the Education Practices Commission on June 10, 1997.
Findings Of Fact Petitioner, Frank T. Brogan, as the Commissioner of Education of the State of Florida, is authorized to enter complaints against persons holding teaching certificates in the State of Florida. Respondent, Kevin R. Sanders, has held at all times relevant to this proceeding Florida Teaching Certificate No. 660581. The certificate was issued by the Department of Education and is valid through June 30, 2002. Mr. Sanders is authorized to teach in the areas of physical education and general science. (Stipulated Facts). At all times relevant to this proceeding, Mr. Sanders was employed by the Escambia County School District (Stipulated Fact). During the 1995-1996 school year1, Mr. Sanders served as a teacher and coach at Pensacola High School (hereinafter referred to as the “Pensacola High”) (Stipulated Fact). Mr. Sanders was assigned responsibility for the supervision of an in-school suspension class (hereinafter referred to as the “ISS Class”) (Stipulated Fact). Mr. Sanders was assigned to serve as the ISS Class teacher for each class period except for one period, which was his planning period. ISS Class students went to a physical education class taught by Jack Jackson during Mr. Sanders’ planning period. Pensacola High’s ISS Class was a disciplinary program established for students who have exhibited behavior warranting suspension from school. Rather that suspending the student from school, the student is assigned to the ISS Class so that he or she will continue to attend school and receive academic instruction. Deans at Pensacola High responsible for disciplinary actions determine whether a student’s conduct warranted referral to the ISS Class and the length of the referral. Students assigned to the ISS Class would continue to receive academic assignments from their teachers. They were required to work on those assignments while in the ISS Class. While students were in the ISS Class, they were not allowed to talk or to sleep. Mr. Sanders wrote the in-school suspension program for Pensacola High, so he was familiar with the purpose of the program. Class periods at Pensacola High were one and one-half hours in duration. There were seven class periods, numbered 1 through 7. On even days, i.e., October 4, class periods 2, 4, 6, and 8 were held. On odd days, i.e., October 5, class periods 1, 3, 5, and 7 were held. Class period 7 was the last class period held on odd days and class period 8 was the last class period held on even days. A “varsity sports” class was scheduled for the last school period, period 7 or 8, of the school day. The varsity sports class consisted of two combined physical education classes. The teachers responsible for these classes were Mr. Jackson and Toby Peer. During the fall of 1995, students in the varsity sports class engaged in weightlifting. Mr. Sanders wanted to act as the instructor. Mr. Sanders was not, however, scheduled to participate in the varsity sports class. His responsibility was to supervise the ISS Class. Early during the fall of 1995, Mr. Sanders, Horace Jones, the Principal of Pensacola High, and David Wilson, the head football coach at Pensacola High, met to discuss allowing Mr. Sanders to supervise the weight training program for the varsity sports class. Mr. Sanders and Mr. Wilson explained to Mr. Jones that weightlifting would only be taught every other day, on odd days. They asked Mr. Jones for permission for Mr. Sanders to go the football stadium where the varsity sports class was held to supervise the weightlifting. Mr. Jones agreed to allow Mr. Sanders to go to the football stadium during class period 7 to supervise weightlifting. Mr. Jones did, however, indicate that Mr. Sanders’ ISS Class should be supervised. The testimony in this proceeding concerning the conditions, if any, that Mr. Jones imposed on Mr. Sanders and/or Mr. Wilson, was contradictory. Mr. Jones indicated that he did not give Mr. Sanders permission to take his ISS Class to the stadium or otherwise remove them from their normally assigned classroom. Mr. Sanders testified that Mr. Jones was aware that Mr. Sanders was taking the students to the stadium on the days that he supervised weightlifting. Based upon the weight of the evidence, Mr. Jones either gave express permission for the ISS Class to be taken to the stadium when Mr. Sanders was supervising weightlifting or was aware that the ISS Class was being taken to the stadium. Mr. Sanders’ ISS Class was assigned to room 30-A, which was located on the second floor of the main classroom building of Pensacola High. Room 30-A is located on the west end of the main classroom building. Subsequent to obtaining permission to supervise weightlifting for the varsity sports class, Mr. Sanders took his ISS Class to the football stadium during class period 7. Mr. Sanders left the students in the bleachers of the stadium above the weightlifting room. The weightlifting room was located in a room just below the bleachers where he left the students. While the students were in the bleachers, they were not directly supervised by any teacher or adult. There were assistant football coaches on the football field in the stadium supervising athletes engaged in football drills some of the time that the ISS Class was left in the bleachers, but they were not assigned the responsibility to supervise the ISS Class. Mr. Sanders would usually, but not always, inform Mr. Wilson that he had arrived to supervise the weightlifting training. Mr. Sanders did not, however, insure that the students in his ISS class were actually being directly supervised by another teacher or adult. Nor did Mr. Wilson tell Mr. Sanders that any arrangement had been made to provide supervision for the ISS Class on October 17, 1995, or on any other occasion. On October 17, 1995, Mr. Sanders had eight students assigned to the ISS. For class period 7, Mr. Sanders escorted his class from classroom 30A to the stadium (Stipulated Fact). When the ISS class arrived at the stadium, Mr. Sanders directed the eight students to sit in the bleachers and told them to remain seated there. Mr. Sanders then left the eight students, went around the side of the stadium and went into the weight room located just below where he had left his students. Mr. Sanders could not see or hear the eight students that he left in the bleachers from the weight room. When Mr. Sanders left the eight students, there were no other teachers or adults left to supervise the eight students. Mr. Sanders left them unsupervised despite the fact that the eight students had evidenced disciplinary problems and, therefore, had evidenced a need for close supervision. Some of the students were in the ISS Class due to truancy, but were left unsupervised by Mr. Sanders. Although there were other assistant coaches present to supervise students in the stadium area, the evidence failed to prove that any of those coaches, including Mr. Core, who was on the stadium football field part of the time that the ISS Class was sitting in the bleachers, were in charge of supervising the ISS Class. The evidence failed to prove that Mr. Core or any other teacher present that day had been given such an assignment. Because Mr. Core was engaged in supervising passing drills with the football team, even if it had been proved that he was in charge of the ISS Class, he could not be expected to provide reasonable supervision of the ISS Class and supervise passing drills. Despite Mr. Sanders' testimony that supervision of the ISS Class was the responsibility of Mr. Wilson, he also testified that he left the weightlifting room on several occasions to check on the students. The evidence failed to support either explanation. At some time after Mr. Sanders left the ISS Class students in the stadium, a 15 year-old female student (hereinafter referred to as “Student X”) that had been assigned to the class that day left the other students to go to the ladies’ restroom under the stadium (Stipulated Fact). She was gone approximately 45 minutes. Student X had been determined to have a Specific Learning Disability and was in the exceptional student education program. While Student X was under the stadium stands, she performed oral sex on several male students in the ladies’ bathroom (Stipulated Fact). Eight male students were subsequently arrested, charged and prosecuted for committing an unnatural and lascivious act with Student X. Seven students pled no contest to the charge, and one was tried and acquitted (Stipulated Fact). Five of the male students were supposed to be in the varsity sports class. At or close to the end of class period 7, an assistant coach came into the weightlifting room and told Mr. Sanders that he had heard that there was a girl underneath the stadium and suggested that Mr. Sanders “might want to go check.” Mr. Sanders left the weight room and began searching under the stadium from the north end where the weight room was located, to the south end. Mr. Sanders eventually found Student X and a male student in a small room in the back of the boys’ junior varsity locker room under the south end of the stadium. Mr. Sanders found Student X and the other student talking. He instructed the male student to return to his drivers' education class. Mr. Sanders took Student X back to the bleachers and the ISS Class. Mr. Sanders did not report the incident nor take any action against Student X or the male student he found her with. The next day, Student X reported that students in ISS Class were teasing her about having done something bad. Although not known by teachers at the time, Student X was being teased about what had happened to her on October 17, 1995. She reported the teasing to the Dean's office. Richard Souza, the head of the exceptional student education program, talked to Student X and concluded that Student X should not be sent back to the ISS Class. 38. Student X was teased further on the bus and in other parts of the school about the incident. What had happened to Student X on October 17, 1995, was not discovered until several days after the event took place. Student X was ultimately transferred to another school. Mr. Sanders' was issued a written reprimand for his involvement in the October 17, 1995, incident by the Superintendent of Schools, School District of Escambia County. Mr. Sanders was subsequently transferred to Workman Middle School as a physical education teacher. Mr. Sanders contested the suggestion in the reprimand that he was required to "provide direct supervision" of the ISS Class. Based upon the weight of the evidence, it is concluded that Mr. Sanders breached his responsibility to the ISS Class when he failed to make reasonable effort to protect the students of the ISS Class from conditions harmful to learning and/or to their mental and/or physical health and/or safety. He breached his responsibility when he left the students unattended and unsupervised. Until he knew that another teacher or adult had taken over the supervision of the ISS Class, it was unreasonable for him to abandon them. The evidence failed to prove that Mr. Sanders "intentionally" exposed any student to unnecessary embarrassment or disparagement. The evidence in this case proved the following facts concerning the aggravating and mitigating circumstances required to be considered in disciplinary cases by Rule 6B-11.007(3), Florida Administrative Code: The offense is this case was severe. Mr. Sanders breached one of the most important duties of a teacher: to insure that the students under his charge were properly supervised. The offense did not constitute a danger to the "public." The evidence only proved one repetition of Mr. Sanders' offense. It has been almost four years since the incident. Mr. Sanders has not been disciplined by the Education Practices Commission. Mr. Sanders has been an educator for approximately ten years and was, and still is, well thought of by some in the Escambia County School Board. He has been an educator in Florida since the 1989-1990 school year and was an educator in Alabama for one year prior to that. The actual damage as a result of the lack of supervision of the ISS students was severe. One student was severely harmed and the other students, who had evidenced a great need for supervision, were left unattended. The penalty will not be as effective a deterrent as the publicity concerning the incident. If Mr. Sanders is suspended, as recommended by Petitioner, it would have a serious impact on his livelihood. The evidence failed to prove any effort at rehabilitation by Mr. Sanders, nor is there any rehabilitation reasonably necessary in this matter. Mr. Sanders was not forthright concerning his responsibility in this matter. Mr. Sanders did not admit his responsibility to stay with the students at a minimum until he knew they were supervised. Instead, he attempted to lay the blame elsewhere. Mr. Sanders is currently employed as a teacher for the Escambia County School District. He is employed at Tate School. There was only one violation. Therefore, there was no need for any "[a]ttempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation." There have been no related violations against Mr. Sanders in another state, including findings of guilt or innocence, penalties imposed and penalties served. Mr. Sanders was negligent in his actions, but he did not commit any violation independent of his neglect. There were no penalties imposed for related offenses. No pecuniary benefit or self-gain enured to Mr. Sanders. The degree of physical and mental harm to Student X was great. No physical and/or mental condition contributed to Mr. Sanders' violation, including recovery from addiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Kevin R. Sanders has violated the provisions of Section 231.29(1)(i), Florida Statutes, in that he violated Rule 6B- 1.006(3)(a), Florida Administrative Code, as alleged in Count One and Count Two of the Administrative Complaint. It is further RECOMMENDED that Count Three of the Administrative Complaint alleging that Mr. Sanders violated Rule 6b-1.006(3)(e), Florida Administrative Code, be dismissed. It is further RECOMMENDED that Mr. Sanders' teaching certificate be suspended for a period of six months, that he be issued a letter of reprimand, and that he be placed on probation for a period of two years following his suspension. DONE AND ENTERED this 26th day of August, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 26th day of August, 1998.
The Issue The issues to be determined in this proceeding are whether Respondent has committed the violations alleged in the Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Stipulated Facts Respondent, Seneka Rachel Arrington, holds Florida Educator's Certificate 1012300, which is valid through June 2009. Respondent was employed as a Language Arts Teacher at Matanzas High School in the Flagler County School District during the 2006/2007 year. On or about October 9, 2006, Respondent was terminated from her teaching position with the school district. On or about April 3, 2007, Respondent removed merchandise from a retail establishment without paying for it and with the intention of converting it to her own use. Respondent was arrested and charged with one count of retail theft. On or about May 29, 2007, Respondent entered into a deferred prosecution agreement with the state attorney's office with regard to the charge of retail theft. Findings of Fact Based Upon Evidence Presented at Hearing Dr. Hugh Christopher Pryor is the principal at Matanzas High School (Matanzas). Dr. Pryor hired Respondent in May 2006 for a position as an English teacher, to begin work in August 2006. During her employment at Matanzas, Respondent also worked as an assistant cheerleading coach. K.M. was a freshman at Matanzas during the 2006-2007 school year. She was on the cheerleading squad and knew Respondent as one of her coaches. She was not a student in any of Respondent's classes. M.H., K.M.'s boyfriend at all times material to the allegations in this case, was a 14-year-old freshman on the Matanzas football team and a student in one of Respondent's classes. C.J. was another freshman member of the football team and a friend of M.H.'s. He was not a student in any of Respondent's classes. Respondent was well-liked by students at the high school. Although K.M. testified that she was authoritative and strict with the girls on the cheerleading squad, she got along with all of the girls and "kind of was like us." K.M. regarded her more as a friend than as a teacher. On occasion, K.M. used Respondent's cell phone. On October 6 or 7, 2006, Donald Apperson Jr., the school's resource officer, was approached by a friend at a social outing who suggested he check into whether "the black cheerleading coach" at Matanzas was having a sexual relationship with some of the football players. Respondent was the only teacher who could fit this description. On Monday, October 9, 2006, Mr. Apperson reported this information to Ken Seybold, who was an assistant principal and the athletic director at Matanzas. The principal was notified and an investigation was initiated. Respondent was notified of the allegations, which she denied, and was sent home pending completion of the investigation. The investigation consisted of speaking with several members of the football team and was completed in a single day. At the end of the day, the principal determined that Respondent's employment would be terminated because she was still under a 97- day probationary period wherein she could be terminated without cause. Respondent was notified of the decision to terminate her employment the next day, October 10, 2006. Because she was terminated within the statutory probationary period for the initial contract for employment, no cause was listed. While Dr. Pryor testified that he was generally dissatisfied with her performance, his testimony regarding why was sketchy at best, and there was nothing in her personnel file to indicate that she was counseled in any way with respect to her performance. Teachers in the Flagler County School District are generally admonished not to transport students in a teacher's personal vehicle. Transporting students is only condoned where the student's parent has been notified and permission granted, and where an administrator has been notified of the need to transport the student. This procedure is apparently covered during orientation for new employees. However, no written policy regarding the transport of students was produced or cited, and Dr. Pryor indicated that Respondent was late to the orientation session prior to the beginning of the school year. It cannot be determined from the record in this case whether Respondent was aware of this policy. Respondent transported students in her personal vehicle on two occasions. On the first occasion, Respondent took K.M. and one other cheerleader to the Volusia Mall in order to look for dresses for a dance at school. K.M. testified that her mother had given permission for K.M. to go with Respondent on this outing. Respondent and the two girls were accompanied on this outing by Respondent's mother and sister. The second outing also involved shopping for clothes for the school dance. On this trip, Respondent took K.M. as well as M.H. and C.J. in her car after football and cheerleading practice. The four went first to the St. Augustine outlet mall and then to the Volusia Mall to shop for clothes. K.M. testified that her mother had given her permission to go with Respondent, but probably would not have given permission if she had known the boys would also be going. Neither M.H. nor C.J. had permission from a parent to ride in Respondent's car. The boys testified that they both drove Respondent's car while on this trip, although the testimony is inconsistent as to who drove when, and is not credible. Neither boy had a learner's permit to drive. No evidence was presented regarding the dates of these two shopping trips, other than they both occurred prior to September 29, 2006, which was the date identified for the dance. This same date is identified as the date for a football game in Cairo, Georgia, discussed below. After the conclusion of the second shopping trip, Respondent dropped K.M. off at her home. At this point, the boys testified, and stated as part of the district's investigation, that Respondent offered to take them back to her apartment to spend the night. According to M.H. and C.J., they went with Respondent back to her apartment where they ate fast food and watched television. They claimed that Respondent told them they could sleep in her bed while she slept on the couch. At some time during the night, Respondent allegedly crawled in the bed between the two boys, ground her hips against M.H.'s crotch, and took his hand and placed it outside her shorts against her vaginal area. M.H. claimed this made him uncomfortable and he moved to the floor, while Respondent continued to sleep in the bed with C.J. In the morning, the boys claim that Respondent woke them up and drove them to school. M.H. testified that he was in Respondent's English class and that she treated him differently than the other students. He, along with other boys at school, fantasized about the "fine, black English teacher." He thought it was cool to spend extra time with her and led others to believe he was having sex with her until one of his friends questioned the propriety of doing so. He testified that he "freaked out" while on a bus going to an out-of-state football game September 29, 2006, because Respondent kept calling him on his cell phone and he did not want to talk to her. Juxtaposed against the testimony of C.J. and M.H. is the testimony of Monica Arrington and Karastan Saunders. Monica Arrington, Respondent's younger sister, testified that during the period of time Respondent was employed at Matanzas, she shared Respondent's apartment and sometimes helped her out with the cheerleaders. Monica was a freshman at Bethune Cookman College and did not like living on campus, so instead lived with her sister. Ms. Arrington did not have her own transportation and relied on her sister to drop her off at school each day. Ms. Arrington confirmed that she went with Respondent, her mother and two female students to Volusia Mall to shop for clothes on one occasion, but did not identify any other time where students were at Respondent's apartment. Karastan Saunders also testified that during the fall of 2006, he lived at Respondent's apartment in exchange for paying a portion of the utilities. Mr. Saunders testified that he spent every night at the apartment because he did not have the funds to go elsewhere, and that he did not recall anyone coming over to the apartment other than family and mutual friends. After considering all of the evidence presented, the more credible evidence is that while Respondent took students shopping on at least one occasion, the testimony of M.H. and C.J. that they spent the night at Respondent's apartment is not credible. M.H. admitted that he has lied to his dad "because everybody lies to their dad sometimes." He claimed he lied to Respondent to avoid going to Orlando with her and about having a learner's permit to drive, and that he lied to his father about where he was the night he claims to have been at Respondent's apartment. M.H. also insinuated to his friends that he had a sexual relationship with Respondent, and that all of the boys thought she was the prettiest teacher at the school. However, he did not want Respondent to be arrested and would not cooperate with authorities. Even during the course of the hearing, his testimony was inconsistent regarding whom he told about his relationship with Respondent and what he told them. Significantly, C.J.'s testimony did not corroborate the alleged inappropriate touching M.H. claimed. C.J. did not witness any inappropriate touching or M.H. and Respondent having sex. While M.H. claimed that Respondent kept calling him while on the bus to Georgia for a football game, no phone records were produced and no one else's testimony was presented to support the claim. K.M. admitted that M.H. has lied to her on occasion and that he has had some issues with drugs and alcohol.1/ C.J.'s testimony is also not very credible. Like M.H., C.J. lied to his father about his whereabouts on the night in question. While he testified that he sometimes drove his dad's car to school without permission, his father testified that he only has one car and uses it every day to get to work. While M.H. claimed C.J. told him that Respondent and C.J. had sex the night they were allegedly at the apartment, C.J. denied it. He also stated that he was suspended for five days for bringing a laser to school during the timeframe related to this case, a suspension that his father knew nothing about. Likewise, C.J.'s claim that he went with Respondent on some unspecified weekend to Orlando while she got her cheerleading certification is not credible. By contrast, both Monica Arrington and Karastan Saunders were candid, consistent, calm and forthright while testifying. While both C.J. and M.H. were not where they were supposed to be on the night in question, they were not at Respondent's apartment. After Respondent was terminated from her employment, the allegations that she engaged in an appropriate relationship with a student were reported by local media. The publicity was extensive. Because the allegations involved alleged sexual conduct with a minor that would have occurred in Volusia County as opposed to Flagler County, the matter was referred to authorities in Volusia County. However, no criminal charges were ever brought against Respondent because neither M.H. nor his father wished to cooperate with authorities.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent violated Section 1012.795(1)(c), Florida Statutes, as alleged in Count 1, and dismissing Counts 2-7 of the Amended Administrative Complaint. It is further recommended that the Commission reprimand Respondent, impose a $500 fine and place her on one year of probation in the event that she works as a teacher in a public school setting. DONE AND ENTERED this 24th day of March, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2009.
The Issue The issues in this case are whether Respondent violated section 1012.795(1)(j), Florida Statutes (2018), and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Amended Administrative Complaint; and, if so, what discipline should be imposed.
Findings Of Fact Based on the demeanor and credibility of the witnesses, the documentary evidence admitted at the hearing, and the parties' stipulations, the following Findings of Fact are made: Petitioner is the agency head of the Florida Department of Education. Petitioner is responsible for investigating allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is responsible for filing an administrative complaint, and prosecuting the case in an administrative hearing pursuant to chapter 120, Florida Statutes, if the educator disputes the allegations. Respondent holds Florida Educator's Certificate 631669, covering the areas of Educational Leadership and Mathematics, which is valid through June 30, 2025. Respondent has been a teacher for at least 25 years; quite a few of those years were in other states. She has not been previously disciplined by the Education Practices Commission in connection with her Florida certificate. No evidence was offered to show any prior discipline against Respondent's educator license or certificate in another state.5 At the time of the allegations in the Amended Administrative Complaint, Respondent was employed by the OCSB as a mathematics teacher at Howard Middle School, part of the Orange County Public Schools (OCPS) system. Respondent began working at Howard Middle School on August 6, 2018, for the pre-planning week for teachers prior to the arrival of students for the start of the school year. Kimberly Beckler was the new principal for Howard Middle School that year, although she had been employed by the OCSB since 2004, most recently as a senior administrator in the District's office. She started work as 5 Respondent was disciplined by the OCSB for the incident at issue in this proceeding, receiving a written reprimand. It appears that this is the only disciplinary blemish on an otherwise clean record during her 25-year teaching career; no evidence was offered to prove any other discipline imposed against Respondent. principal at Howard Middle School shortly before the teachers' pre-planning week. The Amended Administrative Complaint at issue in this proceeding is predicated on the following allegations of fact: On or about September 6, 2018, during an active assailant drill at Howard Middle School, Respondent directed several of her students to go into her classroom closet. Respondent went into the closet with the students, turned the closet light off, and closed the closet door. Respondent's remaining students were left inside the classroom for a period of time without direct adult supervision. Some of the students who remained in the classroom were confused by what Respondent did, and at least one student was "scared" because she did not know what would happen if the drill were real and the Respondent left her and the other students in the classroom alone. The parties stipulated that on September 6, 2018, the Howard Middle School administration conducted an active assailant drill. Before the drill, in August 2018, Respondent and other teachers at Howard Middle School were instructed to complete safety training regarding how to proceed during an active assailant drill. The training included two online video modules and a six-question test. Teachers were reminded several times in August that they were required to complete the training and certify having done so before the end of August. Respondent testified she did not remember this training or watching the videos, but is sure that if she was required to view them, she would have done so. As a "reminder" of the instructions detailed in the training videos, a written summary was provided to Howard Middle School teachers at some point prior to the September 6, 2018, drill. Respondent acknowledged that she received the summary written instructions prior to September 6, 2018, when the first drill of the new school year was conducted. The same summary information was provided on posters in each classroom. The summary instructions included various steps for teachers to take in their classrooms. The step at issue in this case requires teachers to move all classroom occupants out of the line(s) of sight through windows. To comply with this "out of sight" instruction, teachers had to consider the lines of sight through narrow windowpanes in the classroom doors. In addition, for classrooms on the ground floor with exterior windows, lines of sight from outside the building also had to be considered. Respondent taught different math classes in six or seven class periods, but all of her classes were held in the same classroom, which was not on the ground floor. According to Principal Beckler, Respondent's classroom was on the second floor. Respondent could not remember whether her classroom was on the second or third floor. All witnesses agreed that for purposes of conducting an active assailant drill, the line of sight through the exterior windows did not have to be considered, because classroom occupants could not be seen through the exterior windows by someone outside the building. For Respondent, then, the only line of sight she had to address was through the narrow window panel in the classroom door. Principal Beckler testified that instructions for active assailant drills were the subject of much discussion during the teachers' pre-planning week and at administrative meetings. Principal Beckler said that teachers were instructed to identify the lines of sight applicable to their particular classrooms and then identify areas in their classrooms where they could safely move occupants out of the lines of sight. It would have made sense, as part of general teacher training in preparation for lockdown active assailant drills, to provide those instructions to teachers. At the hearing, Respondent heard Principal Beckler's testimony; she did not deny being given this instruction, nor was she asked about it. There was no clear proof that the verbal instructions described by Principal Beckler were provided to or discussed with Respondent as part of a group of teachers in August 2018. Nonetheless, even without such instruction, identifying lines of sight through windows into one's own classroom, so as to know where to move classroom occupants so they are out of view, would have been a reasonable, prudent step to prepare to apply the written instructions that were admittedly provided to Respondent. Stated differently, it would be unreasonable for a teacher, knowing that he or she would be expected to act quickly in an active assailant drill to move students out of the lines of sight of windows, to not prepare for that drill by identifying the reaches of that line of sight for their own classroom. Respondent testified that the September 6, 2018, active assailant drill was the first such drill ever conducted by OCPS. Her testimony was refuted by the more credible adamant testimony by Principal Beckler and by Respondent's witness Altamont Coley, who was an administrative dean at Howard Middle School in charge of the active assailant drill on September 6, 2018.6 Several student witnesses also confirmed that they had participated in the same type of lockdown active assailant drill previously, although their other teachers conducted the drills differently, not in a way that left students feeling unprotected. Respondent's testimony reflected some confusion on her part regarding the various type of drills conducted by OCPS. For example, she testified that she had participated in "lockdown" drills before at an OCPS school, and that in at least some prior lockdown drills, the instructions were 6 Principal Beckler's clear, credible testimony was elicited in the following question and answer sequence: Q: "And the September 6, 2018, drill was the first ever active assailant drill in Orange County Public Schools, correct?" A: "That is absolutely false." Q: "Okay. But it was Ms. Carty's first, correct?" A: "No, that is false. Ms. Carty was employed by OCPS the year prior." (Tr. 150-151). Equally clear and credible was Altamont Coley's testimony given in the following question and answer sequence: Q: "And was the September 6, 2018, drill the first ever active assailant drill in Orange County Public Schools?" A. "Oh. No, sir. No, sir. I have participated in drills before that. Even at previous schools. On my previous school before coming to Howard." Q: "Were they specifically active assailant drills? The ones that you're – the previous ones?" A: "Yes, sir." (Tr. 208-209). to lock the door and "hide" in the classroom. She also testified that in some "lockdown" drills, she only had to lock the door, did not have to hide, and could continue teaching. Based on the evidence, Respondent confused different types of drills and the requirements for each type of drill.7 Contrary to Respondent's claim that the September 6, 2018, drill was a completely new procedure, the clear and credible evidence established that the drill was a "lockdown" active assailant drill that was not new to OCPS, had been conducted in prior school years, and was not new to Respondent, who had prior experience in "lockdown" drills in which she was required to move the classroom occupants out of view through windows. Howard Middle School teachers were informed before the drill that a drill was going to take place sometime on September 6, 2018, but they were not told specifically when during the school day. That would simulate the "surprise" element of an actual active assailant situation. Respondent's classroom where she taught her math classes on September 6, 2018, was large. It was one of the larger-sized classrooms at Howard Middle School. Without knowing the class period during which the drill would occur, Respondent could not know exactly the number of classroom occupants she would have to move out of view, but she would know the approximate number. For example, the geometry class Respondent was teaching when the drill was held was capped by state law at 25 students. However, only 23 students were enrolled in that class. And at least one student was confirmed to have been absent that day. 7 Respondent testified that "there's a difference between a lockdown and an assailant drill. An assailant drill was, you know, first time for me and I believe first time, you know, issued in the school. So that's a completely different type of drill." (Tr. 225). Without delving into confidential material, suffice it to say that the claim that a "lockdown" drill is different from the active assailant drill conducted on September 6, 2018, is contrary to the nomenclature used by OCPS. See Respondent's Exhibits 10 (in effect since before September 6, 2018) and 11 (similar to prior versions in effect since before September 6, 2018). The only window through which someone could see into Respondent's classroom was a very narrow vertical windowpane, set into part of the upper half of the classroom door. The door itself was recessed from the classroom wall, with a little entry alcove formed by side walls that appear to be ten to twelve inches in width.8 The narrow width of the window combined with the recessed design of the doorway left only a very restricted line of sight into the classroom from the hallway. Respondent's classroom was rectangular. The two longer walls were: the exterior wall on the opposite side of the classroom from the door; and the wall separating the classroom from the hallway (hallway wall). The long hallway wall was broken up by the recessed classroom door, with about one-third of the hallway wall to the left of the door (facing the door from inside the class) and about two-thirds of the hallway wall to the right of the door. The two side walls appear to be somewhat shorter than the hallway and exterior walls. For someone in the hallway peering into the classroom through the classroom door window, the exterior wall across the classroom would most likely be completely visible; the two side walls would be partially visible (those parts closest to the exterior wall), and both parts of the hallway wall, on either side of the recessed door, would be completely hidden from sight. Although Respondent did not say that she ever tried to identify the reaches of the lines of sight through her classroom door window, she testified that she believed one wall was completely out of the line of sight, and the two side walls were partially hidden from view through the door window—the parts of the side walls closer to the exterior wall would be within the line of sight. Respondent's classroom had an interior walk-in closet. The closet door was off one of the side walls, close to the hallway wall. Principal Beckler 8 Petitioner's Exhibit 17B (Bates-stamped 022) shows one side wall forming the classroom door's entry alcove. A landscape-oriented (horizontal) chart is hanging on the alcove side wall, close to the top. The chart appears to be on standard letter-sized paper, with the 11- and-one-half inch side easily fitting across the side wall. testified credibly that she examined the line of sight through Respondent's classroom window door, and the closet door could not be seen from the hallway. The classroom pictures in evidence provide visual corroboration. At the time of the drill, there were no more than 22 students in Respondent's class. Including Respondent, there were, at most, 23 occupants. When the announcement was made over the public address system for the drill, Respondent said she instructed her students to hide along the longer part of the hallway wall (to the right of the door, from inside the class, facing the door). She had the students sit down in a single row along that wall from the classroom door alcove, under the smart board, to the far corner. She then quickly proceeded to turn off the classroom lights and computer monitors. When Respondent finished these steps, she saw that approximately five or six students had not yet found a place to hide. Respondent testified that they were all standing directly in front of the classroom door window. That was the one spot in the classroom where the students could not be. Respondent testified that she did not think it was possible to hide another five or six (or seven, including herself) people along the hallway wall. She said the rest of the students were sitting on the floor up against the hallway wall under the smart board, and that to add any more people would have required that they sit on top of each other. Respondent testified that she had never been unable to hide all of her students in her classrooms before: "When we had lockdowns and things of that nature, I never had that issue. So that, you know, it shocked me. That was the very first time in my entire career that happened to me." (Tr. 248). Respondent decided the remaining students should hide inside the large walk-in closet. She gave this step some thought. First, she thought that, to comply with the drill instructions, she would have to turn off the closet light. Then her thought process continued beyond the drill instructions, imagining that someone in the hallway might be able to see the open closet door, and even if the closet light was out, that person might suspect from the open closet door that there were people in the closet. Therefore, Respondent decided that she would have to not only turn off the closet light, but also close the closet door completely. But this decision gave rise to another line of thought. Respondent testified she became concerned that if she left students alone in the dark in a closed closet, they could act inappropriately, such as by touching each other inappropriately, because there were both males and females. To address this concern, she joined the five or six students in the closet, turned off the light, and closed the door. Respondent's concern for leaving five or six students in the closet unsupervised apparently did not provoke a similar concern for the other 16 or 17 students left unsupervised in the classroom. However, as Principal Beckler credibly stated, a teacher's number one responsibility is to supervise her students. That means having eyes on all students in the classroom at all times, because things can otherwise get out of control very quickly. Respondent acknowledged that as a classroom teacher, she was responsible for supervising all her students. She understood "supervise" to mean "observe and direct." Her duty to supervise the students in her classroom did not stop during the lockdown active assailant drill. If Respondent had focused her thoughts on finding places in her large classroom for all students to hide out of sight, rather than on the unreasonable solution she seized on to separate the class by hiding a few students—then joining them—in the closet, she would have easily found a reasonable solution that did not require leaving most of her class unsupervised. Respondent had several reasonable options to meet the requirements of the drill while also continuing to supervise all her students. Respondent could have kept the closet door open or partially open so that natural light would have kept the closet from being dark. The closet door opened out into the classroom, with the door opening on the side away from the classroom door, towards the exterior windows. Accepting Principal Beckler's testimony, borne out by the pictures, that the closet door could not be seen from the hallway through the narrow window in the recessed classroom door, Respondent could have remained in the classroom while being able to see the students in the closet and the students lined up along the hallway wall under the smart board. Rather than resorting to hiding students in the closet, though, Respondent had several clear options within the classroom itself. There was ample room in the classroom for all 22 students and Respondent to have sat on the floor out of view of the classroom door window. The line of sight through the door window would have been a cone-shaped area, narrow at the window and widening out to the exterior wall. That left substantial portions of the classroom's floor space hidden from view. Inexplicably, Respondent apparently only considered having students sit on the floor in a single row, with their backs against the hallway wall under the smart board to the corner, with possibly a few students sitting in the space around the corner against part of the side wall. These 16 or 17 students apparently sat shoulder-to-shoulder against those walls. It would have been very easy for the remaining five or six students, plus Respondent, to sit on the floor in a second row facing the row of students sitting against the wall. It is clear from the pictures in evidence that there was ample floor space to allow students to sit two-deep along the smart-board wall and, if necessary, around the corner along the side wall. There was more space still in the area along the hallway wall on the other side of the classroom door, and around the corner to the partial side wall where the closet door is located. Respondent could have directed the five or six students standing in front of the classroom door to sit on the floor along the hallway wall to the left of the door, and around the corner to the closet door. Respondent could have had all the students sit on the floor in a triangular area (fitting for a geometry class), with two sides formed by the smart-board hallway wall where she said most of them were sitting and the part of the side wall furthest from the classroom door, filling in the floor space outward from both of those walls. Any number of different configurations were not only possible, but were obvious and clearly reasonable. There was more than enough floor space in Respondent's large classroom for 23 occupants (including Respondent) to hide out of the limited line of sight through that very narrow windowpane in the recessed classroom door. Respondent's claim that she could not hide a maximum of 23 occupants out of the limited sight line through the door window somewhere in her large classroom is simply not credible. Respondent's claim is contradicted by the visual evidence. It is also contradicted by the credible testimony of Principal Beckler, who said that although Respondent's classroom was one of the larger classrooms, no other teacher has had to hide students in classroom closets; no other teacher has ever had a problem moving all classroom occupants to places within the classroom itself that were not within the lines of sight of windows. Finally, Respondent's claim is contradicted by Respondent's own testimony. When she was asked in her deposition how many students were in her class during the drill, she gave this candid response: "It had to have been a large class for us not to fit in the two sides of the classroom. Maybe 28 to 30. I'm not certain. But they should have that record at the school, I would think." (Pet. Ex. 20 at 34). As it turns out, though, there were no more than 22 students in the class. Respondent's testimony stands as an admission that she could have (and therefore should have) fit the smaller number of students out of window view in her classroom. The drill lasted for approximately five minutes—including several minutes after Respondent secreted herself away with five or six students in the closet. Respondent could not see the 16 or 17 students in the classroom for at least several minutes. In fact, Respondent acknowledged that she could not even see the five or six students in the closet with her, because they were not near her and it was completely dark. Respondent claimed that she would be able to hear any noise made by the 16 or 17 students in the classroom but admitted that she heard nothing. C.K., one of the students who went into the closet with Respondent because she thought it was safer than staying out in the classroom, testified that they could not hear what students outside in the classroom were saying through the closed closet door. C.K.'s testimony was more credible than Respondent's contrary testimony. Respondent did not offer any basis for her belief that she could hear through the closed closet door (such as if she reported having closed herself in the closet to test whether sounds made in the classroom would be audible). For at least several minutes, the 16 or 17 students in the classroom were completely unsupervised. After the public address announcement that the drill was completed, Respondent and her students returned to regular classroom activities. No student voiced concern at the time regarding how the drill was conducted. Although not expressed directly to Respondent that day, several students did, in fact, have concerns. Since this was an active assailant drill, when the class was supposed to practice what to do in an actual active assailant situation, Respondent's separation of the students, leaving three- quarters of the class unsupervised in the classroom, left several students confused and apprehensive. On the day of the drill, one student, N.S., went home upset, told parent J.S. about the drill, and expressed confusion and fear. As N.S. explained: [Ms. Carty] left the rest of the class out in the classroom while she was in the closet. She did not tell the class where to go or hide during the drill. I was very confused and did not know where to go. I was also scared because I did not know what would happen if the lockdown was real and if Ms. Carty would leave us alone in a real lockdown. (Tr. 51-52; Pet. Ex. 8).[9] Other students who testified at the hearing expressed at least some of the same confusion and concern with the unusual procedure employed by Respondent to separate the class and leave most of the class alone in the classroom. Student M.P. testified to having felt "a little unprotected" being left out in the classroom. M.P. explained feeling unprotected this way: "[A]ccording to my other teachers I've been with, they've done it a lot differently, which is supposed to better protect the students and I felt like she did it a little differently." (Tr. 34). Student C.S., one of the students in the closet, credibly testified: "I was feeling a little afraid for my classmates if this was a real active assailant. After the drill we came out of the closet. Everything went kind of back to normal. Most of the students that were left outside didn't seem upset, but I could kind of tell they were." (Tr. 69-70). Prior to giving the all-clear announcement, several administrators checked all hallways to make sure they were empty and checked all classroom doors to make sure they were locked. There was no classroom-by- classroom assessment to determine how each teacher fared in carrying out the drill instructions within each classroom—that would have taken a very long time. Immediately after the drill, Dean Coley sent an email to all staff 9 Counsel for Respondent attempted to undermine N.S.'s testimony about being scared, but he did not succeed. He suggested that N.S. was afraid because it felt like an actual assailant situation. N.S. disagreed: "No. Because I've done active shooter drills before." Counsel then tried to get N.S. to agree that the fear was only of the idea of an active assailant in the building, but N.S. made it clear that the fear was also caused by the way Ms. Carty carried out the drill, leaving N.S. and others alone in the classroom. Ultimately, in the following exchange, counsel conceded that N.S. was actually harmed by being scared from the way the drill was conducted: Q: "Okay. So apart from being scared, you were not actually harmed by the active assailant drill on September 6, 2018, correct?" A: "Correct." Q: "And you did not – and did you quickly recover from being scared on September 6, 2018?" A: "I guess, yeah." (Tr. 56, emphasis added). Respondent's PRO mischaracterized N.S.'s testimony, claiming N.S. admitted to suffering no actual harm. N.S. answered the question as posed, agreeing that "apart from being scared," N.S. was not actually harmed. pronouncing the drill a success, while providing teachers with another "reminder," repeating the summary instructions for active assailant drills. Respondent did not report any concerns to the administration about how the drill was carried out in her classroom, either immediately after the drill or at any subsequent point. She did not report that she had been "shocked" to discover there was not enough space in her large classroom to move all occupants out of the line of sight through the classroom door window. She did not request assistance from an administrator to help plan for future drills by identifying the window's sight line so as to identify all the space within the classroom out of the window's line of sight. Instead, as of the hearing in June 2021, Respondent testified that she would like Principal Beckler to show her where in the classroom she could have hidden everyone. It is troubling that, if Respondent had been truly "shocked" on September 6, 2018, by an inability to hide everyone in the classroom as she claimed, she did not immediately bring this shocking discovery to the administration's attention and worked to address the problem. Shortly after student N.S. told parent J.S. about being scared by how Respondent carried out the drill in her classroom, J.S. sent an email to the administration voicing their concern. Upon receiving this email, the administration at Howard Middle School launched an investigation into the incident. The students who were in Respondent's class during the incident were asked to write brief statements about the incident. Several of those students testified at the hearing. Respondent also wrote a brief statement, which she signed and dated on September 24, 2018. Her statement was as follows: During the last drill where we had to hide and turn off the lights. I stayed in the closet with several students because I told them I cannot turn on the lights. The other students hid under a desk in the main classroom with the lights off. They did have sunlight from the windows. I asked them to remain quiet during the drill. When the drill was over we all took our seats and resumed class. No one indicated being frightened to me. Respondent made no mention in her written statement of her "shocking" discovery during the drill that there was not enough space within the classroom to hide all students out of sight. On October 22, 2018, after the investigation was completed and a predetermination meeting was held, Respondent was given a disciplinary letter of reprimand for misconduct by failing to properly supervise her students during the September 6, 2018, drill. She was also given non- disciplinary written directives to: (1) establish a safe, caring, and nurturing environment conducive to learning and the physical and psychological well- being of students; and (2) maintain proper supervision of her students at all times; students are not to be left alone unsupervised. Respondent refused to sign either document, despite the statement in both documents that "[m]y signature indicates only that I have received a copy of this [reprimand/directive]." At the hearing, Respondent did not deny having received the letter of reprimand and the directives. In December 2018, Respondent requested a transfer to another OCPS school. Respondent's request was granted, and she taught at Memorial Middle School in Orange County during the spring 2020 semester. At the end of the spring 2020 semester at Memorial Middle School, Respondent was informed that her teaching contract was not going to be renewed for the upcoming school year. No explanation was given for the nonrenewal. Respondent testified that she is having trouble finding another regular teaching position, but is working as a substitute teacher. She speculated that the reason why she is having difficulty finding a regular position is the pendency of this disciplinary proceeding, but had no non- hearsay evidence on which to base her speculation. It would be fair to say, however, that Respondent's ability to work in her chosen career and in the job of her choice may be impacted by the outcome of this proceeding, although the opposite may also be true once the outcome is no longer an uncertainty. Respondent raised as an "affirmative defense" to the Amended Administrative Complaint "that the allegations in this case underlie anti- black racism and/or animus directed against her as an African-American teacher." See Answer With Affirmative Defenses at 2, ¶ 2. However, Respondent offered no evidence to prove that any non-African American teachers acted similarly during an active assailant drill but were not charged with the violation alleged in this case. Instead, the unrefuted testimony by Principal Beckler was that no other teacher ever had a problem hiding all students within the classroom, and no other teacher ever separated his or her class to hide with some students in the closet while leaving other students unsupervised in the classroom. The allegations and charge at issue here are narrowly focused on Respondent's admitted conduct during the September 6, 2018, lockdown active assailant drill. The claim of racism as a defense to the allegations and charge at issue in this proceeding is wholly unwarranted. Ultimate Findings of Fact Respondent failed to make reasonable effort to protect her students from conditions harmful to learning and/or to their physical health, mental health and/or safety. She could not see three-quarters of her class for at least several minutes during an active assailant drill when she was in the closet with five or six students. Indeed, she could not see the five or six students who were in the closet with her. Nor could Respondent hear the unsupervised students out in the classroom from behind the closed closet door. Several students—most notably N.S. who went home upset that day to report what happened to parent J.S.—reasonably were concerned about what would happen if an active assailant actually entered the school, and whether they and their classmates would be protected. While there was no evidence of significant or lasting effects on the students' mental health and no student were physically harmed, the conditions created by Respondent during the drill were harmful to students' mental health in the short-term, and to students' safety. Indeed, the whole point of the active assailant drill is to appropriately prepare everyone in the school for an active assailant situation so that if they ever had to respond to an actual active assailant, they would have practiced and could respond automatically, knowing exactly what they needed to do to take the appropriate precautions for their safety and their physical and mental health. Respondent failed to make reasonable effort to protect her students by supervising and leading all her students through the proper drill steps. Instead, she undermined the goal of creating conditions to protect students, by leaving most of her students to fend for themselves— unsupervised, unprotected, and anxious about what would happen in an actual active assailant situation.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Peter Caldwell, Esquire Florida Education Association Legal Department 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a final order finding Respondent guilty of violating section 1012.795(1)(j), Florida Statutes (2018), through a violation of Florida Administrative Code Rule 6A- 10.081(2)(a)1., imposing a six-month probation on terms established by the Education Practices Commission, including a required Continuing Education course in professional standards for Educators, and issuing a letter of reprimand to Respondent as discipline for her violation. DONE AND ENTERED this 30th day of September, 2021, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2021. COPIES FURNISHED: Peter Caldwell, Esquire Florida Education Association Legal Department 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The central issue in case no. 92-3138 is whether or not Respondent should be dismissed from his continuing contract as a teacher employed by the Orange County school district. The central issue in case no. 92-6637 is whether Respondent committed the violations alleged in the administrative complaint; and, if so, what disciplinary action should be imposed.
Findings Of Fact The Respondent holds Florida teaching certificate no. 427416, covering the areas of driver's education and physical education. Such certificate is valid through June 30, 1997. At all times material to this case, Respondent has been employed as a teacher for the Orange County School District. He has been so employed since approximately 1978. In the fall of 1987, Respondent was assigned to Carver where he taught physical education. He remained at Carver until he was relieved of duty on March 26, 1992. Prior to being assigned to Carver, Respondent was employed at Chickasaw Elementary School where he received satisfactory evaluations and did not have any problems with student discipline. After accepting the job at Carver, Respondent became one of four physical education teachers employed there. Respondent faced discipline problems at Carver he had not experienced during his elementary school tenure. Examples of the problems Respondent faced were: students showing disrespect; students teasing (such as name calling); or students being aggressive and argumentative. On March 7, 1989, Respondent received a written reprimand from the Assistant Principal at Carver, Fred Townsend, for inappropriately disciplining a student. The incident cited in the reprimand was directly related to Respondent's class management and the discipline of students. Mr. Townsend's letter instructed the Respondent to adequately supervise students and to use appropriate disciplinary techniques. Mr. Townsend verbally counselled the Respondent concerning appropriate disciplinary techniques. On April 7, 1989, Respondent was involved in an incident with one of the Carver students which resulted in Mr. Townsend issuing Respondent a written directive to refrain from shoving students, and to follow procedures outlined in the Carver Faculty Handbook and the "assertive discipline strategies" when disciplining students. The procedures for disciplining students as outlined in the Carver Faculty Handbook did not permit a teacher to push, shove, or physically discipline a student. Teachers are permitted to use force to intervene to protect students who may be fighting or to protect themselves if attacked. On October 24, 1989, Respondent was directed, in writing and verbally, by a senior manager of employee relations, John Hawco, not to take physical or disciplinary action against students but to follow school and Board rules pertaining to student discipline and control. The directive followed an incident where Respondent allegedly shoved or pushed a student. On or about March 1, 1990, Board staff gave Respondent a letter outlining sources of assistance available through the school system regarding appropriate means to control and discipline students. On March 2, 1990, Respondent received an oral and written directive together with a written letter of reprimand from Mr. Hawco. This written directive was issued after Respondent allegedly used physical force against two students. Such conduct would have been contrary to Mr. Hawco's earlier directive. The March 2, 1990, directive again advised Respondent not to use force or take physical disciplinary action against students. Mr. Hawco's letter urged Respondent to seek assistance and warned Respondent that if he failed to follow the directive, he could be recommended for dismissal. Respondent was also verbally advised at the time he received the March 2, 1990, directive that should similar incidents occur in the future a recommendation could be made for his dismissal. Despite the prior warnings and counselings, during the 1990-1991 school year, John Hawco was called to Carver to investigate several allegations against the Respondent. Such allegations involved inappropriate student discipline. One of the incidents involved a minor male student who allegedly hit the Respondent. In the Respondent's referral to the office, the Respondent stated that the student "hit me in the nose with his fist, so I hit him back". Although the incident caused Mr. Hawco to have concerns about the Respondent, after investigation, the Board took no formal action against the Respondent for this alleged incident. On or about March 13, 1992, the Respondent received a written directive from the Senior Manager of Employee Relations, Alice Tisdell. This directive advised Respondent not to take physical or disciplinary action against students, to exercise appropriate classroom management skills and to follow proper procedures for disciplining students. Ms. Tisdell issued this directive after she was called to investigate allegations that the Respondent continued to physically intervene with students contrary to prior directives to discontinue this type of discipline. On or about March 10, 1992, Ms. Tisdell advised Respondent, verbally and in writing, that should he continue to fail to comply with the directives, appropriate disciplinary action could be taken. Respondent was advised that such disciplinary action could include his dismissal. During the period from 1989 until he was recommended for dismissal in 1992, Respondent was verbally directed by the Carver principal, assistant principals, and Board management, to use appropriate classroom management techniques and to refrain from pushing, shoving, or using force when dealing with students. Despite the oral and written directives, on March 20, 1992, Respondent shoved a student, Johnny Wyatt, into a locker causing minor physical injury to that student. Such act occurred in connection with the discipline of the student, was contrary to the prior directives issued to Respondent, and resulted because Respondent had failed to maintain control of his assigned area. Wyatt is a minor male student at Carver who, at the time of hearing, was in the seventh grade. During the 1991/1992 school year, he was enrolled in Ms. Carry's sixth grade physical education class. The male students in Ms. Carry's class dressed out in the boy's locker room supervised by the Respondent and another male physical education teacher, Dennis Goldsmith. On March 20, 1992, Mr. Goldsmith was absent and Raymond Martin, a permanent substitute employed at Carver, was assigned to cover the locker room with Respondent. When sixth period began, students assembled at their assigned bench seats in order to dress out. Some students began to misbehave by shouting, running around, and engaging in horseplay. On two occasions, the light switches were turned off and on for several seconds. Wyatt came to the sixth period class and sat down after dressing out. With Mr. Martin's permission, he went to the restroom and returned to his seat. The Respondent accused Wyatt of talking. When the student protested that he had not misbehaved, the Respondent grabbed Wyatt by the arm and began to lead him to the locker room office. Wyatt continued to verbally protest while Respondent held his arm. When they reached a row of lockers, the Respondent pushed Wyatt causing his back to strike the lockers. This incident was witnessed from several different vantage points by other students who were in the locker room that day. When the Respondent pushed the student, Wyatt's back struck a metal clasp on the locker and an injury resulted. Contact with the metal clasp caused a one to two inch scrape located just slightly to the right of the student's spine. Approximately eleven months after the incident, a faint scar is still visible. Immediately following the incident, the Respondent ushered Wyatt to the locker room office and Assistant Principal, Richard Vail, was summoned to deal with the students. Mr. Vail arrived five to ten minutes after the beginning of sixth period. Mr. Vail spoke to the students about their misconduct, and sent them on to their respective class groups. Wyatt approached Mr. Vail, showed him the injury to his back, and told him that the Respondent had pushed him into a locker. Mr. Vail asked the student if he wanted to go to the clinic. When Wyatt declined, Mr. Vail sent him on to join his class. When Wyatt arrived at Ms. Carry's class she observed the injury and sent him to the office. Wyatt was subsequently sent to the clinic by Principal Ernest Bradley. When Wyatt went home after school, his parents learned of the incident. The student's father brought him back to school that same day and spoke to Mr. Bradley and the Respondent. Wyatt's parents were upset about the injury. The Respondent denies the incident entirely. He claims that he did not push or shove Wyatt in any way on March 20, 1992, and that he did not learn of the alleged incident until the end of the school day. The credible proof in this case is to the contrary. The Respondent had difficulties controlling the students in his physical education class. Students in his class frequently acted disrespectfully and failed to follow his instructions. Such students challenged Respondent's authority and were disruptive. Because of class rotation, the other physical education teachers had the same students at different times of the year. The other physical education teachers did not experience the difficulties with the frequency or the severity that the Respondent experienced. As a general rule, the students behaved themselves for Mr. Goldsmith, Ms. Pendergrast, and Ms. Carry. Of the four, only Respondent allowed the students to get out of control. Mr. Townsend formally evaluated Respondent during the 1987-88 school year. Mr. Townsend specifically recommended that the Respondent seek help in the areas of student relations and discipline, and that he enroll in workshops for help with management of student conduct. Mr. Townsend formally evaluated the Respondent during the 1988-1989 school year. Mr. Townsend's evaluation rated the Respondent "Satisfactory with Recommendation" in the area of Classroom Management and Discipline. Respondent was again advised to enroll in training programs for management and discipline. Mr. Vail observed and evaluated the Respondent during the 1989-1990 school year. Mr. Vail observed the Respondent having difficulties in maintaining control of his class and supervising activities. Mr. Vail suggested methods of improving the structure of the class. He also suggested a different roll-taking method. Mr. Vail's 1989-90 evaluation rated the Respondent as "Needing Improvement" in the area of classroom management and discipline. The Respondent received a "Satisfactory with Recommendation" in the areas of subject matter knowledge, planning and student relations. Mr. Vail also gave the Respondent verbal directives to exercise appropriate classroom management. Mr. Vail evaluated the Respondent for the 1991-1992 school year. He observed the Respondent on March 9, 1992, and found several deficiencies with the Respondent's performance. Mr. Vail rated the Respondent as "Needs Improvement" in the areas of classroom management and discipline, planning and delivering instruction, student relations, and professional responsibilities and ethics. Mr. Vail categorized the Respondent as "Satisfactory with Recommendation" in the areas of subject matter knowledge, evaluation of instructional needs, and methods and techniques. Throughout his tenure at Carver, the Respondent has been counseled concerning appropriate discipline techniques and given several opportunities to improve. The Respondent's ability to effectively manage the students did not improve. In short, he was unable to keep good order in his classroom. Respondent has received two reprimands and several directives regarding proper discipline of students. Respondent is required to abide by the Code of Ethics of the Education Profession of Florida. Further, teachers are expected to adhere to reasonable directives issued to them by their supervisors. The Respondent received numerous verbal and written directives concerning the appropriate discipline and management of student conduct. These directives were reasonable and were within the scope of the school's authority. Despite the directives, the opportunities to improve, and the offers of assistance, the Respondent did not improve in the areas of classroom management and student discipline. The Respondent was warned of the impropriety of physical contact with students, yet subsequently pushed and injured a student. The incident involving Wyatt was in violation of the prior directives, and constituted insubordination and misconduct. The Respondent's effectiveness as an employee of the Board has been substantially reduced. Despite several attempts to provide Respondent with assistance, he continued to use inappropriate discipline with students. Understandably, school personnel have lost confidence in Respondent's ability to manage a class, to the point where Respondent cannot return to the classroom. Although the Respondent did not intentionally injure Wyatt, his indifference to the situation placed the student in danger. Respondent failed to protect the student from an avoidable injury. Respondent's use of force was unwarranted as the student did not present a harm to others or to the Respondent. Assuming Wyatt was one of the misbehaving students (which the evidence in this case does not support), force would not have been necessary to discipline a talkative student.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: As to case no. 92-3138, that the School Board of Orange County, Florida enter a final order dismissing the Respondent from his employment with the district. As to case no. 92-6637, that the Education Practices Commission enter a final order placing the Respondent on probation for a period of not less than three years, requiring Respondent to successfully complete some remedial course of instruction related to class management and discipline of students, and to receive a letter of reprimand for the conduct established by this record. DONE AND RECOMMENDED this 27th day of August, 1993, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3138 and 92-6637 Rulings on the proposed findings of fact submitted by Petitioner, Orange County School Board: The following paragraphs are accepted: 1 through 7, 9, 13, 15, 16, 18 through 33, 36 through 43, 45, 46, and 48. Paragraph 8 is accepted with the deletion of the last sentence which is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. With regard to paragraph 10, it is accepted that Respondent received the directive noted otherwise rejected and not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. With regard to paragraph 11, it is accepted Respondent was adequately apprised of the consequences should his conduct continue; it is not accepted that such warning was in the form of a formal reprimand. Paragraph 12 is rejected as irrelevant. With the deletion of the last sentence which is rejected as irrelevant, paragraph 14 is accepted. Paragraph 17 is rejected as irrelevant. Paragraph 34 is rejected as argument or comment. Paragraph 35 is rejected as irrelevant. Paragraph 44 is rejected as irrelevant. Paragraph 47 is rejected as vague or argument. Paragraphs 49 through 52 are rejected as argument or irrelevant. Rulings on the proposed findings of fact submitted by the Petitioner, Betty Castor: The following paragraphs are accepted: 1, 3 through 10, 12, 14, 15, 16, 17, 18, 20, 21, 23 through 32, 34 through 38, 41 through 45, and 47. Paragraph 2 is rejected as contrary to the weight of the credible evidence. Paragraph 11 is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. Paragraph 13 is rejected as irrelevant. With the deletion of the last sentence of the paragraph which is rejected as irrelevant, paragraph 19 is accepted. With the deletion of the word "severely" which is rejected as vague or argumentative or contrary to the weight of the credible evidence, paragraph 22 is accepted. Paragraph 33 is rejected as contrary to the weight of the credible evidence. Paragraph 39 is rejected as argument. Paragraph 40 is rejected as argument. Paragraph 46 is rejected as argument or vague. Paragraphs 48 through 51 are rejected as argument or irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: The following paragraphs are accepted: 1, 2, 4, 5, 6, 17, 21 and 22. Paragraph 3 is rejected as irrelevant. Respondent voluntarily accepted the position at Carver and was expected to fulfill his teaching responsibilities at that school. Paragraph 7 is rejected as contrary to the weight of the credible evidence especially as to allegations that he "rarely reacted physically". The last sentence is accepted as accurate. Paragraph 8 is rejected as irrelevant; the discipline options available to Respondent did not include using force. Paragraph 9 is rejected as irrelevant. With regard to paragraph 10, it is accepted that Respondent was offered courses to improve and that he may have attended same, he just didn't comply with the directives or improve his skills either through indifference or otherwise. With regard to paragraph 11, it is accepted Respondent received a reprimand on the date in question for inappropriate discipline techniques; otherwise, rejected as irrelevant or contrary to the credible evidence. With regard to paragraph 12, it is rejected as irrelevant or contrary to the weight of credible evidence. With the deletion of the last sentence which is rejected as contrary to the weight of the credible evidence, paragraph 13 is accepted. Paragraph 14 is rejected as repetitive, argumentative, or irrelevant. Paragraph 15 is rejected as argument or irrelevant. Paragraph 16 is rejected as argument or irrelevant. Paragraph 18 to the extent that it suggests Respondent's action was in self-defense is rejected as contrary to the weight of the credible evidence and otherwise rejected as comment, argument, or irrelevant. Paragraph 19 is rejected as unnecessary comment. Paragraph 20 is rejected contrary to the weight of credible evidence. Paragraph 23 is rejected as contrary to the weight of evidence, argumentative, or irrelevant. Paragraph 24 is rejected as irrelevant. Mr. Wyatt's account of the incident at the hearing has been deemed credible and wholly accurate as to the incident that transpired in the locker room that date. Respondent's account, on the other hand, was not. Paragraph 25 is rejected argumentative and contrary to the weight of credible evidence. The first sentence of paragraph 26 is accepted; the remainder rejected as irrelevant. Paragraph 27 is rejected as speculative, irrelevant, or argumentative. With regard to paragraph 28, it is accepted that Respondent did not use inappropriate language; otherwise rejected as irrelevant or contrary to the weight of the credible evidence. With the clarification that Wyatt did scrape his back on the locker and the rejection of the "allegedly" comment which is contrary to the weight of the credible evidence, paragraph 29 is accepted. Paragraph 30 is rejected as contrary to the weight of the credible evidence. Paragraph 31 is rejected as argumentative and irrelevant. The first sentence of paragraph 32 is accepted; the remainder is rejected as contrary to the weight of the credible evidence. Paragraph 33 is accepted to the extent is identifies Wyatt as the student injured by Respondent on March 20, 1992; otherwise rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 34 is rejected as contrary to the weight of the credible evidence. Paragraph 35 is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 36 is rejected as irrelevant or argument. COPIES FURNISHED: Tobe Lev, Esq. EGAN, LEV & SIWICA, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Roseanna J. Lee, Esq. Frank C. Kruppenbacher, Esq. HONIGMAN MILLER SCHWARTZ AND COHN 390 N. Orange Avenue, Suite 1300 Orlando, Florida 32801 Margaret E. O'Sullivan, Esq. Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Karen Barr Wilde, Exec. Dir. 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Donald Shaw, Superintendent Orange County Shool Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue The issue in this case is whether Petitioner has just cause to suspend Respondent without pay for ten days for gross insubordination or misconduct in office or both, as set forth in the letter of suspension to Respondent from Superintendent Paul Hagerty, dated May 16, 2000. By letter dated May 16, 2000, Petitioner suspended Respondent from his employment. Respondent timely requested an administrative hearing.
Findings Of Fact Prior to his suspension Respondent was employed as a teacher by Petitioner. During the 1999-2000 school year Respondent was a Physical Education teacher at Sterling Park Elementary School. Respondent taught for 13 years in Ohio before moving to Florida. He has been employed by Petitioner for the last 12 years. On or about October 17, 1997, Respondent received a written directive from Principal Deborah Wright. An addendum to that letter followed on April 27, 1998. Those letters addressed concerns about Respondent’s physical interactions with students relating to discipline. On or about September 16, 1999, Respondent received a letter from Superintendent Paul J. Hagerty. The stated purpose of the letter was to "clearly communicate the School Board’s policy and expectations regarding physical contact by teachers and other school personnel with students. . ." The policy described by the Superintendent is that school personnel will not have physical contact with students except for five enumerated reasons. One basis for allowing physical contact is: "To praise a child, such as a high five, a pat on the back, or the like, but never a pat on the buttocks." Principal Wright agreed with the Superintendent’s interpretation of the School Board’s policy. Respondent was never directed not to touch a student for purposes of offering praise. H.S. was a student in Kristen Brotsch’s class and had Respondent for physical education ("P.E."). On January 12, 2000, H.S. was the line leader for purposes of leading the class to the field for P.E. At the beginning of the class, Brotsch saw Respondent make a gesture toward H.S.'s face. The purpose of the gesture was to signal the class to go out to the field. Brotsch was between seven and ten feet from Respondent and H.S. when she witnessed the gesture. She did not see Respondent touch H.S. According to Brotsch, Respondent was not upset with the class or H.S. at the time he made the gesture. The gesture did not cause her any concern. She went back to her classroom after the class went to P.E. Following the P.E. class, H.S. told Brotsch Respondent had punched her in the face prior to class. The following day Brotsch reported the accusation to Principal Wright. On the night of January 12, 2000, H.S. told her parents Respondent had punched her in the side of the face that day in school. She physically re-enacted the incident by moving her hand approximately a foot from her mother’s arm. H.S. punched her mother hard enough that it "stung." The parents contacted Principal Wright about the incident the next day. On or about January 13, 2000, Principal Wright interviewed H.S. H.S. told her Respondent had hit her in the jaw with his fist, that it hurt, and that her friend T.P. had witnessed the incident. T.P. then told Principal Wright she had witnessed the incident and repeated H.S.’s story. According to H.S., Respondent was not upset or mad at the beginning of class on January 12, 2000. He did not say anything to H.S. H.S. was the line leader on that day and had done a good job of organizing the students to go out to P.E. When Respondent touched H.S. she did not cry. She did not believe he was trying to hurt her, and no one around said anything about the incident. H.S. told T.P. about the alleged incident on the playground during the P.E. class. Respondent has no recollection of touching H.S. anytime before class began on January 12, 2000. The P.E. class had gone exceptionally well on January 12, 2000, and Respondent was very pleased with the class. At the end of the class period, the students lined up to go back to the building. Respondent praised the entire class for their performance. Respondent turned to H.S. as the first person in line and grazed over her chin with the back of his partially closed hand while saying "great job, and let’s go." Respondent has been using the gesture involving grazing a person’s chin as a congratulatory gesture throughout his 25-year teaching career. H.S. did not appear to Respondent to be upset with the gesture. Rather, H.S. smiled as they went back to the building. Whether the touching alleged by H.S. occurred before or after class, it was not a disciplinary action. All of the testimony indicates Respondent was not upset with the students either before or after class on January 12, 2000, and was not seeking to correct any behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the School Board enter a Final Order finding Respondent not guilty of the charges against Respondent. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2001. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Dr. Paul J. Hagerty, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
Findings Of Fact At all times pertinent hereto, Respondent was employed by Petitioner as a classroom teacher. Respondent had been employed by Petitioner for seventeen years. From 1985 through his suspension in April 1992, Respondent was assigned to Kinloch Elementary School, a public school in Dade County, as an elementary classroom teacher. Respondent, age 58, has three degrees, a bachelor's degree, a master's degree in science, and a specialist in education degree. Respondent had a regular practice of kissing his female students on the hand or on the cheek, or of letting them kiss him on the cheek. Respondent was aware of the school board's policy which prohibited inappropriate contact between teachers and students. This policy was reflected in the policy handbook that was discussed with all teachers prior to the beginning of each school year. In addition, there had been prior, unsubstantiated allegations of inappropriate contact between Respondent and female students which resulted in Respondent being specifically advised of the school board's policy. Maria Vidauretta (Maria) and Saile Lopez Sanchez (Saile) are females and, at the time of the formal hearing, were ages 12 and 11, respectively. At the times pertinent to this proceeding, Maria and Saile were students at Kinloch Elementary School. Maria and Saile were good friends. Although Maria was slightly older, Saile was considered to be the leader of the two. Maria and Saile attended summer school at Kinloch during the summer term in 1991. Respondent had been Maria and Saile's math teacher during the summer of 1991 and had established a friendly teacher-student relationship with these two students. During the summer session the rules of discipline at Respondent's school were relaxed because of the fewer number of students attending. Respondent gave Maria and Saile special privileges, such as permitting them to sit on the stage in the cafeteria during lunch, and he gave them candy and told them not to tell the other students. Saile sometimes called Respondent "father" because they shared the name of Lopez. Respondent was not Maria or Saile's teacher during the 1991-92 school year. Maria and Saile continued to be classmates as they were both assigned to the same classroom. 1/ Discipline during the regular school term is not as relaxed as it is during the summer term. Consequently, Respondent instructed Maria and Saile that they were not to sit on the stage in the cafeteria during lunch, and he told Saile not to call him father. Respondent also stopped giving the girls candy. This practice stopped after Ms. Warren, the principal of Kinloch, told Respondent to stop that practice after she had received a complaint from a parent. 2/ There is a conflict in the testimony as to whether Respondent kissed Maria in the school library on or about November 19, 1991. Maria and Saile testified in a clear and forthright manner at the formal hearing that Respondent kissed Maria on the mouth as alleged in the Notice of Specific Charges. Respondent testified that he was with the two girls in the library, but that he did not kiss Maria. The conflict is resolved by finding, after weighing the credibility of the witness and the surrounding circumstances of the incident, that the greater weight of the evidence establishes that the following events occurred at Kinloch on November 19, 1991. Maria and Saile were in the school library immediately before lunch on the date in question along with their classmates, their teacher, the media specialist, and the Respondent. There were approximately 32 children in the class. The teacher returned to the classroom with nine of the students leaving the remaining 23 students, including Maria and Saile, in the library. Respondent's class was taking physical education and Respondent was in the library doing research in preparation for an upcoming science fair. At the time Maria and Saile first saw Respondent, he was working on a computer in the area of the library containing the encyclopedias. Maria and Saile came to the area in which Respondent was working and watched him work on the computer. Because he was unfamiliar with the computer software, Respondent was having difficulty with the computer. Saile tried to help Respondent, but she was unable to make the computer perform the desired tasks. Respondent next opened an encyclopedia to an optical illusion involving a picture of a flag. He first showed this optical illusion to Saile. After seeing the trick, Saile went to the front of the library to check out a book. While Maria was kneeling on the floor looking at the picture of the flag, Respondent grabbed Maria and kissed Maria on the mouth, forcing his tongue inside of her mouth. Saile returned to the area where Respondent and Maria were located and saw Respondent kissing Maria. Maria then pulled away from Respondent, Maria and Saile got into the lunch line, and the two girls left with their classmates for lunch in the cafeteria. The library (media center) is an eight sided room with a column in the middle of the room and contains book cases, desks, and computer tables. On occasions, more than one class is taught in the media center. On the date in question, a large blackboard was in the media center. This blackboard was solid from top to bottom, it was on rollers, and was two sided 3/ so that it could be used to divide the two classes and shared by two teachers. The media specialist testified that the blackboard was positioned on the day in question at an angle so that she could see events occurring behind the blackboard from the area in which she was working. This testimony is accepted in part only because it is clear from the evidence presented that the view of the media specialist would have been at least partially obstructed by the blackboard. The area in which Respondent was sitting, which is where the incident allegedly occurred, is behind the blackboard. When the alleged incident occurred the media specialist was preoccupied with checking books for the students. The other students in the media center, none of whom testified, were lining up near the entrance of the media center to go to lunch and were generally facing away from where the incident occurred. While the media specialist testified that she saw nothing unusual on the day in question, her testimony does not establish that the events could not have occurred as Maria and Saile testified without her having seen the incident. After Maria and Saile left the media center with their class, Respondent gathered his class from the physical education field and went to the lunch room where he had supervisory responsibilities. Respondent monitored the lunch period for the different classes by standing at one end of the cafeteria with a microphone. At the cafeteria, Saile told Maria several times that she had seen Respondent kissing her. Maria repeatedly denied that Respondent had kissed her and asserted that Respondent merely showed her a book. These statements were overheard by Layda Vega, a cafeteria worker who was stationed at a cash register approximately 15 feet from where the two girls were sitting. Respondent noticed that Saile and Maria appeared to be upset and crying. Respondent instructed Mercedes Reyes, a cafeteria worker, to go check on the two girls. Saile told Ms. Reyes that she had seen "him" kissing Maria. 4/ Maria denied that she had been kissed and asserted that she had only been looking at a book. Ms. Reyes took Maria and Saile outside of the cafeteria in order to avoid a disturbance. Respondent saw them exiting the cafeteria and followed them outside. Respondent heard Saile accuse him of kissing Maria in the library. Respondent asked Maria if she had been kissed, fondled, abused, or touched in any way. Maria answered that question in the negative. Saile asserted that she had seen Respondent kiss Maria. Neither Respondent nor Ms. Reyes reported the incident to Ms. Warren. That night, Saile reported the incident to her mother. An unnamed parent reported the incident to one of the school counselors on November 20, 1991. Thereafter, the incident became widely known at the school. Maria changed her statement and asserted that Respondent had kissed her as witnessed by Saile. 5/ An investigation into the allegations brought by Maria and Saile was initiated by Petitioner and by the Metro Dade Police Department. Respondent was arrested on November 22, 1991, on the charge of lewd and lascivious behavior. At the time of the formal hearing, Respondent had not been convicted of any crime. All charges had either been dismissed or were still pending. The incident received local television and newspaper coverage that identified Respondent and Kinloch Elementary School. The allegations were known throughout the school. Counsellors were brought into the school to deal with the school children, many of whom were confused, upset, and embarrassed by what had reportedly happened. Maria and Saile were accused by some of their peers of having lied about the Respondent. Maria transferred to another school following the incident. Respondent's employment with Petitioner was suspended without pay at the school board meeting of April 1, 1992. As part of the investigation that followed the incident with Maria, other students at the school were questioned by investigators and counsellors. One of the students who was questioned was Cynthia Martinez. Cynthia is a ten year old student at Kinloch who testified that Respondent kissed her and other female students on the cheek and on the hand almost every day. Cynthia also testified that Respondent kissed her on the mouth one day on the way to lunch. Cynthia also testified that Respondent engaged her in conversations about love on sugar (what was meant by that phrase was never explained) and doing sex carefully. Cynthia's testimony about Respondent kissing her and other females on the cheek and on the hand was consistent with the other evidence presented at the formal hearing and supports the findings made that Respondent engaged in that behavior. Cynthia's testimony that Respondent kissed her on the mouth one day on the way to lunch is vague and forms an insufficient basis upon which to base a finding of fact. Cynthia's testimony as to conversations she had with Respondent was also vague and also forms an insufficient basis upon which to base a finding of impropriety. Yanet Rodriguez, a 13 year old former student at Kinloch, testified that on a date uncertain she opened the door of Respondent's class and saw that Respondent had a female student sitting on his lap. Yanet did not know when this happened, the name of the student who was sitting on Respondent's lap, or the circumstances that preceded the student sitting on his lap. Yanet testified that when this event occurred, Respondent's entire class was present. This vague testimony forms an insufficient basis upon which to base a finding of impropriety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the suspension of Respondent's employment and which terminates his continuing contract with the Petitioner. RECOMMENDED this 7th day of August, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 7th day of August, 1992.
The Issue Whether Patrick M. Hill, Respondent, is guilty of immorality and misconduct in office as more specifically alleged in letters of April 6, 1990 and May 18, 1990.
Findings Of Fact At all times relevant hereto, Patrick M. Hill held a professional services contract with the Polk County School Board as a remediation teacher at Lakeland High School. He also served as wrestling coach and cross country coach at Lakeland High School. During the spring break of the 1989-90 school year, Respondent told some students they could earn some extra money if they helped him paint his house. Erik Greatens, an 18 1/2 year old senior, agreed to help, and he, with a 25 year old man, John, and Respondent, worked all day painting. Around noon that day when all were hot and thirsty, Respondent told them there was beer in his refrigerator. Both Erik and John accepted the offer. Erik had one beer. When they stopped painting around 5 p.m., Respondent told them he would order pizza if they wanted to return later. Erik accepted and went home to shower and change clothes. He returned around 6:30 p.m. and shared pizza with Respondent. Erik testified that he had only the one beer that day at Respondent's home and that his father permitted him to drink an occasional glass of wine at home. He did not drink beer or any other alcoholic beverage while at Respondent's home that evening. Around 8:30 p.m., Erik left Respondent's residence and went to the Publix parking lot to meet some friends. At the parking lot that evening with his friends, Erik consumed 11 or 12 cans of beer before driving the four or five blocks to his home. When he arrived, his mother was up and considered her son was inebriated and that he had received the beer at Respondent's home. At the time, Erik told her he had only the one beer at Respondent's home, but, from his condition, the mother was sure he had drunk more than one beer. The following day, Mrs. Greatens called the Superintendent's office to complain about Respondent providing Erik with beer. Based upon that complaint, Respondent was suspended from his position as teacher at Lakeland High School. The professional Practices Council of the State Department of Education was notified of the charge so they could institute an investigation to determine if Respondent's state certificate should be disciplined. To date, no charges have been brought by the Department of Education. Subsequently, Petitioner learned that Respondent had pleaded guilty in New Jersey to a charge of contributing to the delinquency of a minor in 1973. A copy of this court record was admitted into evidence as Exhibit 3. In 1973, Respondent was a tenured teacher in the school district of the Township of Pemberton, Burlington County, New Jersey. Charges were preferred against Respondent by the Board of Education, and an administrative hearing was held to determine if the charges and circumstances surrounding the charges warranted dismissal of Respondent from his position as a tenured teacher. Following that hearing, the hearing examiner submitted a report recommending the charge and evidence insufficient to warrant a dismissal or reduction in salary. The Commissioner of Education adopted the finding and recommendation of the hearing examiner. In the instant proceedings, Respondent testified to the facts regarding the 1973 incident. That testimony is essentially the same as found by the hearing examiner in 1973 reported in Exhibit 4 as follows: The testimony offered by the Superintendent of Schools and respondent's building principal was that respondent is a good teacher, as evidenced by his past evaluations, and his record has been unblemished since his employ- ment by the Board. This matter has been brought to the attention of the Commissioner solely because of an incident which occurred on March 8, 1972, and that incident alone is the basis for the Board's action. On the evening of March 8, 1972, respondent was returning to his home after working late at his school on some extra curricular project. The record shows that Respondent was very active in the school community, and that he coached sports activities, served on the executive board of the local P.T.A., and served as President of the Pemberton Township Police Athletic League, in addition to his regular teaching duties. Respondent testified that it was a rainy night. On his way home, he picked up a hitchhiker who told him that he had a job in north Jersey and was on his way to visit his father in the Tuckerton area (approxi- mately thirty miles away). Because of the late hour and the poor weather conditions, Respondent offered the hitchhiker a place to spend the night in his home and told him he would drop him off at the inter- section of Routes #9 and #37 the next morning on his way to school. The hitchhiker accepted the offer and spent the night in respondent's home. Respondent testified that he also offered the use of his telephone so the hitchhiker could call his father, but that he refused saying that he was not expected anyway. He testified fur- ther that nothing untoward happened that night and that he dropped the hitchhiker off at the named intersection the follow- ing morning on his way to school. Respon- dent did not know that the hitchhiker was a minor; neither his appearance, nor his conversation about holding a job in north Jersey, nor having a drink and avoiding the police, lead (sic.)Respondent to conclude that the hitchhiker was a minor. (Tr. 19-22) None of this testimony is refuted by the Board, nor were any witnesses pre- sented by the Board to give any other version about what allegedly occurred on the evening of March 8, 1972. The Board, however, grounds its action against Respondent on his subsequent arrest by the police and his later indictment by the Grand Jury of Ocean County. A change of plea to that indictment reads in pertinent part as follows: (P-1) The State moved under Rule 3:74 to amend the third count of the indictment to read `did contribute to the delinquency of a minor by permitting him to remain overnight without parental consent'. The Court so ordered. Patrick Hill sworn. (sic.) As a result of plea bargaining, the Defendant retracted his former plea of Not Guilty and entered a plea of Guilty to the amended third (3rd) count of [the Indictment). * * * In the hearing examiner's judgment, it would be wrong to speculate why Patrick Hill made the plea (P-1) rather than pursue some other defense of the original charges made against him. He testified that he made the change of plea because he did allow the youth to stay in his home overnight. Suffice it to say that he was represented by counsel and the record must now speak for itself. Respondent entered a plea of guilty (P-1) which the Commissioner must con- sider in making his determination. N.J.S.A. 2A:96-4 reads as follows: A parent, legal guardian or person having the legal custody or control of a child, who by any continued negligence or willful act, encourages, causes or con- tributes to the child's delinquency, or any other person who by any wilful act encourages, causes or contributes to a child's delinquency, is guilty of a misdemeanor. The hearing examiner found that the unrefuted testimony of respondent, and the absence of any proof of conduct unbecoming a teacher by the Board, leads to the conclusion that the only fact before the Commissioner is that respondent knowingly permitted a minor to remain in his home overnight without the consent of the minor's parents. Respondent testified without contradiction that he was told by his attorney that the conviction would be expunged and he could forget it. Accordingly, Respondent concluded, albeit erroneously, that he never would need to reveal this record. Respondent moved to Florida and was employed as a junior high school teacher at St. Joseph's School, Lakeland, Florida, from 1979 to 1986 when he was employed by the Polk County School Board to teach at Lakeland High School. While at St. Joseph's, Respondent continued his extracurricular activities similar to those in New Jersey coaching children in wrestling and track, and he was involved in national and statewide wrestling programs for children. When he started teaching at Lakeland High School, Respondent continued his coaching activities and his work with children. He has been involved with helping troubled adolescents at the Polk Correctional Institute, served on the Governor's Council on Health, Physical Education and sports, was awarded man of the year honors for the AAU Wrestling Division, took a group of young wrestlers to Germany two years ago (1988) in a cultural exchange program and coordinated a return visit of German youth wrestlers to Florida in 1989. Respondent has excellent rapport with his students and with the student's parents. The letters admitted into evidence in Exhibit 5 extolling the virtues of Respondent as a teacher, coach and individual are not the pro forma, perfunctory letters of recommendation usually presented, but clearly indicate heartfelt esteem, appreciation and admiration. Respondent has had no prior disciplinary actions brought against him while teaching in Florida schools.
Recommendation Considering the reputation of Respondent, his rapport with students and peers, the time he has devoted to developing children into responsible adults and the conclusions that the acts complained of do not constitute immorality but are minor infractions coming under the definition of misconduct in office, it is recommended that Patrick M. Hill be found guilty of misconduct in office and suspended without pay for four months. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Post Office Box 391 Bartow, FL 33830 Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, FL 33806 John A. Stewart Superintendent of Schools Post Office Box 391 Bartow, FL 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400