The Issue Whether Respondent should be subject to discipline as a result of the violations of section 1012.795(1)(j) and rule 6A-10.081(2)(c)4., as alleged in the Administrative Complaint and, if so, the nature of the sanctions.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2020). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2020). Stipulated Facts Respondent holds Florida Educator’s Certificate 766965, covering the areas of Educational Leadership, Elementary Education, and School Principal, which is valid through June 30, 2023. During the 2017-2018 school year, Respondent was employed as a Principal at GES in the LCSD, where he had been employed since 2008. During the 2017-2018 school year, Brooke Jahn (now Brooke Solz) was employed as a classroom teacher at GES, and, therefore, under the Respondent’s supervision. Ms. Jahn was married to a LCSD employee assigned to another school. Ms. Jahn was an adult during all times material to this complaint. On June 11 and 12, 2018, Respondent and Ms. Jahn attended the Instructional Leadership Team Summer Institute hosted by the Florida Department of Education at the Innisbrook Resort & Golf Club in Palm Harbor, Florida. On or about July 11, 2018, Ms. Jahn requested a transfer from GES to another school within the LCSD. On or about July 12, 2018, Mr. Solz reported to LCSD Superintendent Rocky Hanna that he was involved in a romantic relationship with Ms. Jahn. On July 18, 2018, Superintendent Hanna placed Respondent on administrative leave with pay pending the pending the outcome of an investigation. On August 31, 2018, Leon County Schools Superintendent Rocky Hanna issued Respondent a letter of reprimand. On August 31, 2018, Mr. Solz was reassigned to the LCSD Department of Teaching and Learning, effective September 4, 2018. On September 17, 2018, Professional Practices Chief John Hunkiar reported Mr. Solz to the Office of Professional Practices Services. On November 8, 2018, the Florida Department of Education, Office of Professional Practices Services, initiated an investigation into alleged misconduct by Respondent. On or about July 9, 2019, Mr. Solz was reassigned as the principal at Astoria Park Elementary School in Leon County.1 Evidentiary Findings The following findings of fact are supported by the record. Contrary testimony and evidence has been considered and rejected. David Solz Mr. Solz is, by all credible accounts, a “wonderful” principal and administrator, with a solid reputation as an LCSD administrator. Prior to this proceeding, he had not been the subject of any previous complaints or disciplinary actions during his 20-plus years in education. Testimony and recorded statements that Mr. Solz gave preferential treatment to others, including Ms. Jahn, that he targeted or “formally” wrote up teachers that were not on his preferential list, or that he “only hires young, attractive teachers,” were neither credible nor persuasive. The more credible testimony demonstrated that Mr. Solz was even-handed in his approach to the teachers at GES. If someone showed an interest in moving up in the academic system, he was willing to support them. If they wanted to 1 The Joint Pre-hearing Stipulation identified the date as July 9, 2018. The date was corrected to 2019 on the record at the hearing. stay in the classroom, he was accepting. If they felt they needed time away, even up to a year, he was accommodating. He did not show favoritism, and he did not “punish” those who disliked him. By the 2017-2018 school year, Mr. Solz had been divorced for several years. By April of 2018, he was apparently dating a woman who taught at either Ft. Braden Elementary School or Riley Elementary School. That person may have thought that she had some “power” because she was dating a principal, but there was no evidence that she did. More to the point, that person was not Ms. Jahn. Mr. Solz was an “open door” administrator. His office was in plain view, and he made it a practice to never be alone in his office with another teacher with the door closed. There was no evidence that he ever did so. The evidence unequivocally established that Mr. Solz was a good leader at GES, that he was purposefully respectful of his female colleagues, and avoided situations that could be misconstrued. Brooke Jahn Ms. Jahn was a teacher at GES starting in August 2013. By all credible accounts, Ms. Jahn was ambitious and a go-getter. She knew that she wanted to move from being a classroom teacher into administration. She set high goals, and was willing to take on the work necessary to advance in her career in education, work that others were not willing to do. During the 2017-2018 school year, in addition to her duties as a GES teacher, Ms. Jahn was taking classes to earn her Master’s Degree in Education Leadership. Holding a Master’s Degree in Education Leadership allows one to take a position as a dean, an assistant principal, a principal, or a leader at the school district in some capacity. As part of the curriculum for her degree, Ms. Jahn was required to serve an internship. Ms. Sumner supervised Ms. Jahn, which required Ms. Jahn to spend “lots of time” in the office, generally during her planning period or after school. Ms. Wyatt documented her progress. Mr. Solz was not overly involved with Ms. Jahn’s internship. Upon her completion of her Master’s program, Ms. Jahn became one of only three teachers or counselors at GES holding that degree, the others being Mr. McKhan and Ms. Wyatt. In addition to receiving her Master’s Degree in Education Leadership, Ms. Jahn took and passed the Florida Educational Leadership Exam (FELE) during the 2017-2018 school year, which qualified her to be considered for a position in education administration. During the period at issue, she had not yet applied to the administrator pool. During the 2017-2018 school year, Ms. Jahn taught third grade at GES. In previous years, Ms. Jahn taught kindergarten. Ms. Jahn wanted to move to the third-grade classroom for several reasons. She wanted experience in detecting early reading deficits. Her kindergarten students were “learning to read.” By third grade, students are “reading to learn.” Therefore, reading deficits by third grade can affect student achievement. In addition, third grade is a Florida Statewide Assessment (FSA) standardized test grade. Ms. Jahn recognized that experience in administering the FSA was almost a requirement for assignment as an assistant principal.2 During the 2016-2017 school year, Ms. Jahn was selected by her kindergarten teacher peers to be the team leader for the kindergarten section. Mr. Solz had no role in that process. Ms. Jahn’s selection as kindergarten team leader earned her a spot on the SITE Committee. The SITE Committee consists of grade-level team leaders, as well as persons representing paraprofessionals, custodians, cafeteria workers, ESE students, parents, and other school functions. As a SITE-based school, the SITE Committee serves to decentralize decision 2 Respondent suggested that Ms. Jahn’s transfer from kindergarten to third grade was evidence of favoritism. There was no evidence that the transfer was anything other than a normal and routine transfer, and showed no more favoritism than Ms. Vasquez teaching kindergarten and second grade at GES, Ms. Baggett being assigned to teach second, third, and fourth grades over the years at GES, or Ms. O’Brien teaching third and first grades at GES. making away from the Principal, and allows for a collaborative process by representatives of all segments of GES employees. Ms. Jahn was thereafter nominated and selected by the other members of the SITE Committee as the SITE Facilitator. That position required a great deal of work and effort, which Ms. Jahn gladly took on, realizing the career benefits derived from the experience. Mr. Solz had no role in that process. Ms. Jahn was also selected to serve on the Teacher Education Center (“TEC”) as a professional learning advocate. As a TEC representative, Ms. Jahn provided teachers with opportunities for training to maintain their teaching certifications and assisted them in making their way through the certification process. The TEC is also engaged in managing the professional development budget for the school. Ms. Jahn had to be involved in professional development as part of her Master’s Degree internship, and the TEC helped to fill that requirement. The TEC representative is open for any teacher who wants to apply. Other than complaints from several witnesses that they were not solicited by school-wide email, or by personal entreaty from Mr. Solz “and offered for nomination or from, you know, veteran teachers who have that experience,” there was no evidence that any teacher other than Ms. Jahn, including the complaining witnesses, had the interest, drive, or commitment to apply for the TEC. There was no evidence that the position was required to be advertised by email or subject to personal invitation. Ms. Jahn sought out the position, and applied. The process of appointment was somewhat vague, except that Mr. Solz did not unilaterally appoint Ms. Jahn to the position.3 3 Ms. Baggett, despite averring that Mr. Solz appointed Ms. Jahn to the TEC, admitted at the hearing that she had no information that Mr. Solz appointed Ms. Jahn to that position “[o]ther than it's just, I guess, common knowledge that the principal of the school would, you know, would approve these positions.” Supposition, speculation, and “common knowledge” are not substitutes for competent, substantial, and persuasive evidence. The team leader, SITE facilitator, and TEC representative positions were subject to a modest stipend, but the duties involved work that far exceeded the pay -- “probably cents on the hour” -- she received for serving. However, Ms. Jahn understood that having experience in various areas would benefit her in achieving her long term goals. Ms. Jahn was also selected to serve on the District Advisory Council (“DAC”), a group of teachers, parents, administrators, and school board members that meet to discuss issues that affect students and classrooms. It is an unpaid, volunteer position that meets after school hours. Dr. Smith asked Mr. McKhan, Ms. Wyatt and Ms. Jahn to share the role. Since Mr. McKhan and Ms. Wyatt had previously served, Ms. Jahn took on most of the duties. Mr. Solz had no role in that process. Ms. Jahn was part of a group of teachers invited by Dr. Smith to observe other schools in the District in order to implement the “Leader in Me” program at GES. Ms. Jahn was exposed to leadership techniques that she would not have been exposed to as a classroom teacher. Mr. Solz had no role in that process. Ms. Jahn routinely attended monthly faculty meetings, which were open to all faculty at GES. She was able to apply some of the faculty meetings into credit for her Master’s Degree. She was required to mark attendance and document credit for every faculty meeting. There was no evidence that Mr. Solz was involved in that process. Ms. Jahn was an active participant in the faculty meetings, which may have rubbed some less participatory teachers the wrong way, with witnesses complaining that Mr. Solz gave undue weight to Ms. Jahn’s contributions, but was dismissive of their comments, failing to take them “seriously.” The evidence, such as it was, that Ms. Jahn was given some sort of preferential treatment at the faculty meetings was not supported by a single specific instance, but was “supported” by the fall-back phrase that “it was, again, another one of the school-wide known fact.” Even if it was established that Mr. Solz valued Ms. Jahn’s input, such would not establish preferential treatment. It is just as easy to draw the inference that Ms. Jahn’s statements were more pertinent than others. The more credible testimony established that Mr. Solz was not dismissive or disrespectful to any of the staff at faculty meetings.4 The testimony that Mr. Solz afforded preferential treatment to Ms. Jahn at faculty meetings lacked even basic credibility, and is not accepted. Ms. Jahn also trained a teaching intern, Ms. Hobbs. Ms. Hobbs was effusive in her praise of Ms. Jahn, crediting her success and her teaching style to Ms. Jahn’s tutelage. Because of Ms. Jahn’s success in mentoring Ms. Hobbs, Ms. Hobbs was, by the end of the 2017-2018 school year, able to handle the class on her own, which is the goal of a successful internship. While the class was under Ms. Hobbs’ instruction, Ms. Jahn was able to leave the classroom -- though not the campus. The evidence firmly established that Ms. Jahn set her goals high, and took steps that were not easy to achieve those goals. There was no credible evidence to suggest that she expected to be given anything by Mr. Solz or anyone else. She was not, as intimated by others, appointed to her duties by Mr. Solz. By all credible accounts, she earned her accolades. Though others reacted negatively, there was nothing to suggest that others were willing to put in the effort, or that they had earned the respect necessary to be selected by their peers to one of the many available positions. Allegations in the Administrative Complaint During the 2017-2018 school year, Respondent engaged in a sexual relationship with Brooke Jahn, a married teacher who was a direct report to Respondent. 4 Mr. Solz was more forceful; stating that the allegation he was dismissive or rude during faculty meetings “is a lie, a purposeful lie.” As described, during the 2017-2018 school year, Ms. Jahn took on a steady stream of jobs designed to advance her career. As a result, she met often with members of the GES administration, including primarily Ms. Wyatt and Ms. Sumner. The previous year she met frequently with Dr. Smith. She also met with Mr. McKhan and Mr. Solz. There was nothing in any of those meetings that contained even a whiff of impropriety. The 2017-2018 school year ended for teachers the first week of June 2018. Teacher contracts end on the second day after the last day of school. If a teacher’s contract is renewed, the contract renewal becomes effective on the first day of school in August for teachers. Ms. Jahn was not under contract and did not work at GES over the summer.5 Ms. Jahn was not seeing Mr. Solz in anything other than a professional capacity during the 2017-2018 school year. Despite the rumors, gossip, and innuendo bandied about by several witnesses, there was absolutely no competent, substantial, and credible evidence to support that Mr. Solz and Ms. Jahn were engaged in any sort of romantic, much less sexual, relationship at any time prior to the last day of classes during the 2017-2018 school year. By the time the 2017-2018 school year ended, Ms. Jahn had received her Master’s Degree in Education Leadership and passed the FELE. She had been a classroom teacher for eight years, and was starting to look for other opportunities. However, for reasons related to the LCSD summer teacher transfer policy and postings, she had not yet done so. During this same period, difficulties in Ms. Jahn’s marriage began to come to a head. The reasons are unimportant, except for the fact that they had nothing to do with Mr. Solz. 5 Ms. Jahn had signed a contract for the coming school year, but it was pending board approval. She was not working as a teacher at GES, but was slated to teach private swimming lessons over the summer “to make extra summer money.” In late May 2018, Mr. Solz became aware that the 2018 Instructional Leadership Team Summer Institute was to be held over the weekend of June 11 and 12, 2018, in Tampa, Florida. The conference was limited to 25 principals from around the state. Mr. Solz applied, and was accepted. He then realized that he could bring a qualified teacher leader from his school. Since it was a leadership conference, leadership experience was a prerequisite. The only people at GES who were not already administrators and who were qualified were Ms. Wyatt and Ms. Jahn.6 Ms. Wyatt was already slated to attend the Superintendent’s Leadership Academy in Tallahassee. She did not want to pass it up because she had applied for the assistant principal pool that year. People who were interviewing applicants for the pool were leading that meeting, creating a good networking opportunity for Ms. Wyatt. Mr. Solz invited the other leadership candidate, Ms. Jahn. He extended the invitation for her family to attend as well, a common practice. Ms. Jahn accepted the invitation. She had to rearrange swimming lessons and child care in order to attend, but did so because it was important to her efforts to professionally advance. Her husband could not attend for professional reasons. Mr. Solz and Ms. Jahn travelled separately to Tampa. By the time of the conference, Ms. Jahn had come to the conclusion that her marriage was heading for divorce. She took the opportunity to visit her sister in the Tampa area. It was a stressful period. Mr. Solz and Ms. Jahn arrived separately at the convention hotel on Friday evening. Other than Mr. Solz assisting Ms. Jahn in getting checked in, they had no contact with one another that evening. After the conference sessions on Saturday, Mr. Solz and Ms. Jahn had dinner as part of a group. It was, according to both, the first time they had 6 By this time, Mr. McKhan had been appointed and was serving as an assistant principal at Pineview Elementary School. ever been alone with one another. There was no evidence to the contrary. During dinner, Ms. Jahn disclosed to Mr. Solz that she was having marital difficulties, but no more. The next morning, after a difficult conversation with her husband the night before, Ms. Jahn came down from her room in obvious distress. She indicated that she was having a “panic attack.” Mr. Solz walked with her to get coffee, talked with her, told her it would be OK, and gave her an “awkward side-ways hug.” He made sure she was engaged in the Sunday conference sessions, which eased her anxiety. After the Sunday session was over, Ms. Jahn went back to Tallahassee. Mr. Solz stayed for a while to meet with principals he knew who were coming in for a separate Florida school administrators conference. He had dinner with several of his colleagues, and drove home. Mr. Solz and Ms. Jahn did not see each other for several weeks after. Mr. Solz visited family in Savannah for a week and, upon his return, had his children for a week which entailed a trip to Disney World. Although Ms. Jahn’s divorce was moving forward, she took a pre-planned cruise with her then-husband and her children. However, during that period, Mr. Solz and Ms. Jahn had begun to text one another and spoke on the phone. They started to realize they had things in common, and might like to pursue a relationship. Before they did anything to advance any sort of sexual relationship, they mutually decided that Mr. Solz should self-report their interest to the Superintendent. At that time, the “relationship” was all verbal and through texts. Other than the “awkward side-ways hug,” there had been no physical component to the relationship. Mr. Solz testified credibly that when he met with Superintendent Hanna on July 12, 2018, “I felt like we [he and Ms. Jahn] had a friendship that was easily blossoming into a romantic relationship.”7 Prior to their decision to self-report, Ms. Jahn had already decided she needed to move from GES to diversify her experience to ultimately move out of the classroom into administration. For a person holding an Education Leadership degree, it is common knowledge that in order to advance, a teacher must move around to different schools. Ms. Jahn had been researching other opportunities with the LCSD, and had applied to be a reading coach at Griffin Middle School, as well as several other less desirable positions. On July 11, 2018, and again on July 12, 2018, Ms. Jahn requested, in writing, a transfer from GES. In describing her interview with Ms. Jahn on July 12, 2020, Ms. Kraul testified that: She indicated again that she wants an administrative experience. She used the figure 150 percent leaving Gilchrist of her own free will. That she wants a middle school experience and she was very aware that she would not be eligible for an assistant principal position straight out of the classroom. That this was her ticket to get more experience. Ms. Jahn also believed it would be easier for her to stand out professionally at Griffin Middle School. Ms. Kraul testified that Ms. Jahn was waiting out the LCSD teacher transfer period and “that's, I believe, where she was when I met with her in July.” There is not a shred of competent substantial evidence to suggest that Ms. Jahn’s desire to transfer from GES was based on anything other than her desire to pursue her long-held goal of moving from a classroom position into a position in administration. There is no evidence that Ms. Jahn was pressured 7 Though not relevant to the specific allegations of this proceeding, it merits acknowledgement that Mr. Solz and Ms. Jahn have since married, and were married as of the date of the final hearing. into seeking the transfer, or that her request had anything to do with Mr. Solz. On July 12, 2018, Mr. Solz reported to Superintendent Hanna that he and Ms. Jahn were involved in a relationship that was becoming romantic. They had not been “caught.” There was no evidence that they knew of the purported “anonymous emails.”8 Mr. Solz and Ms. Jahn were early in their “romance,” having not yet passed out of the talking and texting stage. The decision to report was a volitional act designed to avoid gossip and innuendo, and establish a path forward without “direct report” conflict. Mr. Solz was not even certain that he was required to report, since the LCSD fraternization policy prohibited contact between staff and students, and the sexual harassment policy dealt with “unwelcomed” conduct. Nonetheless, Mr. Solz decided to report their blossoming interest because it “just felt like it was the right thing to do.” The evidence conclusively established, despite the suppositions and gossip of others, that there was no sexual relationship between Mr. Solz and Ms. Jahn prior to the July 12, 2018, self-report. On July 18, 2018, Superintendent Hanna placed Mr. Solz on administrative leave with pay. There was no competent, substantial, or persuasive evidence to support a finding that, at the time of Mr. Solz’s suspension, he and Ms. Jahn had commenced a sexual relationship. 8 The first “anonymous email” was not received in evidence. The alleged recipient, Ms. Paul, had no recollection of it, other than she forwarded it to Ms. McAllister. Ms. McAllister had no recollection of receiving, reviewing, or forwarding the first email. Its contents are a mystery. That alleged email has no evidentiary value. The second “anonymous email” came to Ms. Paul on July 15, 2018, and she forwarded it to Ms. McAllister and Superintendent Hanna on July 16, 2018. The anonymous “former [formal?] complaint by teachers” could not have come from anyone with much knowledge of Ms. Jahn, since the “teachers” could not even manage to get her name right, calling her “Mrs. Garret.” Garrett is the first name of Ms. Jahn’s ex-husband. As with the illusory first email, the second “anonymous email” has no evidentiary value. On August 31, 2018, Superintendent Hanna issued Respondent a letter of reprimand which included reassignment of Mr. Solz as a Principal on alternative assignment in the Department of Teaching and Learning.”9 The allegation that “[d]uring the 2017/2018 school year, Respondent engaged in a sexual relationship with Brooke Jahn, a married teacher who was a direct report to Respondent,” was not proven. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3. of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included . . . training not offered or made available to other teachers. This allegation is predicated on there having been a “relationship.” Since there was no relationship, the allegation was not proven. However, in addition, there was no evidence that Respondent afforded Ms. Jahn preferential treatment as compared to similarly situated employees. There were only two other “similarly situated” employees who had the education and the ambition to be considered for leadership roles at GES, Mr. McKhan and Ms. Wyatt. By the time the more serious allegations in this case were alleged to have occurred, Mr. McKhan had been assigned as Assistant Principal at Pineview Elementary School. 9 Respondent appears to argue that a negative inference should be drawn from Mr. Solz’s failure to file a grievance regarding the reprimand. A review of the letter shows it to have involved an allegation of conduct in April 2018, which Ms. Kraul testified “was nobody’s business what he did in his personal time, after hours,” and an allegation of use of electronic media for non-educational purposes,” which was not an issue in this proceeding at all. Why Mr. Solz elected not to grieve the reprimand was not explained, but no inference of wrongdoing can be drawn. If anything, the decision not to grieve the letter could just as easily be explained by its giving notice of his transfer as Principal that he had already determined to be an acceptable alternative to allow his “blossoming interest” in Ms. Jahn to move forward. The testimony established that many of the opportunities provided to Ms. Jahn came from Ms. Wyatt, her mentor; Dr. Smith and Ms. Sumner, GES assistant principals; and from her peers, including her fellow grade-level teachers and those on the SITE committee. Except for the Instructional Leadership Team Summer Institute, which came after the close of the 2017- 2018 school year, and after Ms. Wyatt’s election to attend a different conference, Mr. Solz made no assignments or invitations to Ms. Jahn. Ms. Jahn earned the opportunities to advance her career. She was not “given” those opportunities by Mr. Solz or anyone else at GES. Much of the testimony critical of the “relationship” between Mr. Solz and Ms. Jahn came from employees who either could not or would not put in the work to qualify for leadership positions. They did not seek to earn degrees in Education Leadership, did not actively seek out extracurricular leadership positions, and were not elected by their peers to leadership positions, including SITE Facilitator. The evidence established that the witnesses who provided many of the statements that precipitated this proceeding were irritated by Mr. Solz for any number of reasons: that they were “angry” at Mr. Solz for being assigned to teach in a portable classroom; that Mr. Solz was monitoring their Facebook posts; that Mr. Solz used the iObservation system “against” them; that they were “formally written up” for infractions when other (non-comparable) teachers were not; or that they simply were not evaluated as highly as they believed they deserved.10 Much of the evidence provided in support of Petitioner’s case consisted of statements and testimony that were directed 10 It is not overlooked that the three primary witnesses offered by Petitioner to substantiate wrongdoing by Mr. Solz were clearly antagonistic towards him, which pre-dated anything alleged in this case. Ms. Vasquez testified that she and Mr. Solz “had a history of -- very, very hostile history,” and she “did not feel comfortable talking to Mr. Solz.” Ms. Baggett exhibited obvious animosity, feeling the Mr. Solz “was very dismissive,” and that “[p]rofessionally I don't respect his practice.” Ms. O’Brien testified that during the period from 2008 through May of 2018, “Mr. Solz and I did not see eye-to-eye most of the time.” The witnesses’s antipathy towards Mr. Solz is not a primary basis for assigning their testimony little weight. However, it does nothing to bolster their credibility. towards Mr. Solz’s previous relationships, that were imprecise and unsubstantiated gossip, or that were pure uncorroborated hearsay. The allegations that Mr. Solz “appointed” Ms. Jahn to “TEC Rep., SITE Facilitator, DAC, and Kdg. Team Leader” were either based on ignorance of the process or, more likely, a conscious misrepresentation of the criteria by which those positions are filled. As to the only allegation that had any basis in fact -- Ms. Jahn’s attendance at the Instructional Leadership Team Summer Institute -- the complaining teachers simply lacked the requisite leadership qualifications. That was not the fault of either Mr. Solz or Ms. Jahn. There was not a speck of competent, substantial evidence to establish that Mr. Solz afforded Ms. Jahn preferential treatment as compared to similarly situated employees, including training not offered or made available to other teachers. Given the facts of this case, it is found that no rational person could reasonably conclude that training opportunities provided by GES administrators, including Mr. Solz, created a hostile work environment. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.a) of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included ... [having] Jahn accompany him on at least one school related out of town trip without making the opportunity available to other teachers. This allegation has been addressed in detail herein. In addition to the fact that there was no “relationship” when Mr. Solz invited Ms. Jahn to attend the Instructional Leadership Team Summer Institute, the evidence in this case established, conclusively, that Mr. Solz did not afford Ms. Jahn preferential treatment as compared to similarly situated employees. Attendance at the conference was offered to Ms. Jahn as the only qualified attendee since Ms. Wyatt had a conflicting leadership-based conference that drew her attention, and was based on absolutely no improper motive. Given the facts of this case, it is found that no rational person could reasonably conclude that Mr. Solz’s offer to Ms. Jahn to attend the conference (with her family) created a hostile work environment.11 Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.b) of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included ... [r]ules regarding supervision of students [being] relaxed for Jahn as compared to other teachers. In addition to the fact that there was no “relationship,” the evidence in this case established, conclusively, that rules for supervision of students were not relaxed for Ms. Jahn as compared to other teachers. The evidence demonstrates that Ms. Jahn went to various administrative offices -- primarily those of Ms. Wyatt (her mentor) and Ms. Sumner (her education leadership internship supervisor), as well as that of Dr. Smith the preceding year -- before school, at lunch, or during her planning period. It is common for intern/student teachers to earn the right to “solo” teach a class. As Ms. Jahn’s intern, Ms. Hobbs, gained in competency, she 11 On a practical note, the conference was held in June of 2018, after the conclusion of the 2017-2018 school year for teachers. By the time teachers returned to campus in the fall, Mr. Solz had been transferred from GES. If Mr. Solz was able to create a hostile work environment at GES from his post at the Department of Teaching and Learning, it would have been quite a trick. was allowed to take on more of the teaching responsibilities for Ms. Jahn’s class on her own, as was the goal. Finally, Ms. Jahn was able to leave the classroom for periods of time, which gave Ms. Hobbs valuable experience and confidence. However, the evidence establishes that Ms. Jahn did not abuse her time during those periods, but was working at necessary and requested school-related activities. The suggestion that there was some impropriety involved when Ms. Jahn left Ms. Hobbs in charge is simply not supported. Ms. Baggett complained that she was “formally written up” (by the Assistant Principal, not Mr. Solz) because she “left [her] students unsupervised.” Why she was disciplined is a matter between Ms. Baggett and the Assistant Principal. However, that disciplinary matter (which might also explain her complained-of, less-than-stellar evaluation) does not establish that Ms. Jahn violated any rules regarding supervision of students, does not establish any other teacher as a valid comparator, and does not lend support to the allegations in this case. Ms. Vasquez testified that Ms. Jahn left her class during the school day, and “made it known that she was getting her dog groomed” on one occasion, and on another occasion “she told me she was getting her hair done.” Ms. Hobbs openly scoffed at the idea, a rejection that is supported by the record. Despite the hearsay nature of Ms. Vasquez’s testimony, it might have retained some thin thread of credibility if it did not directly conflict with her written statement provided during the investigation, in which she stated: I had been made aware of, several years ago, a relationship with Jessica Scully. She was seen in [Mr. Solz’s] office quite frequently-and would talk openly about the special treatment she was getting from David. How David would allow her to leave school to run her errands. She left school to get her dog groomed and told several teachers that David knew where she was and approved it. (emphasis added). Either Mr. Solz is attracted to women with poorly-groomed dogs, or the testimony regarding Ms. Jahn’s personal off-campus errands, including dog- grooming, was a fabrication. The evidence supports the latter. There is no competent, substantial, and credible evidence to support a finding that Ms. Jahn ever left her students with inadequate supervision, that she ever left campus to perform personal errands, or that she violated any disciplinary standard regarding student supervision. There was not a shred of evidence that Mr. Solz relaxed or disregarded any rules regarding the supervision of students for Ms. Jahn as compared to other teachers. Given the facts of this case, it is found that no rational person could reasonably conclude that Mr. Solz relaxed any rules regarding supervision of students for Ms. Jahn so as to create a hostile work environment. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.c) of the Administrative Complaint. Summary The tone of the Administrative Complaint gives the impression that Respondent and Ms. Jahn were carrying on a torrid sexual relationship from the confines of Respondent’s office, and that Mr. Solz was lavishing Ms. Jahn with perquisites as the 2017-2018 school year was ongoing. Nothing could be further from the truth. The facts show that Ms. Jahn had high professional goals, and worked hard -- on her own -- to achieve them. The suggestion that Respondent favored Ms. Jahn to advance his prurient interest in her, or that Ms. Jahn was using Respondent as a stepping stone to some higher goal are equally unsupported, and equally fallacious. The allegation that Mr. Solz engaged in harassment or discriminatory conduct which unreasonably interfered with any GES employee’s performance of their professional or work responsibilities, or with the orderly processes of education, or that he undertook any action vis-a-vis Ms. Jahn that created a hostile, intimidating, abusive, offensive, or oppressive environment is simply not supported by the facts of this case.12
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Administrative Complaint be dismissed in its entirety. DONE AND ENTERED this 21st day of September, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Stephen G. Webster, Esquire Law Office of Stephen G. Webster, LLC Suite 5 1615 Village Square Boulevard Tallahassee, Florida 32309 (eServed) Lisa M. Forbess, Program Specialist IV Education Practices Commission 325 West Gaines Street, Room 316 Tallahassee, Florida 32399 (eServed) Bonnie Ann Wilmot, Esquire Department of Education 325 West Gaines Street Tallahassee, Florida 32399 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) 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 (eServed)
The Issue Whether or not the Respondent student, Rommel Luis Montes, should be assigned to the J. R. E. Lee Center, an opportunity school.
Findings Of Fact Respondent Rommel Luis Montes, age fifteen, was a student at Riviera Junior High School (Riviera) in Dade County, Florida, during the school years 1984-85, 1985-86, and 1986-87. During the 1984-85 school year Respondent's academic performance was very poor. He received five failing grades, passing only the subject of physical education with the grade of C. Also his ratings for effort during the four marking periods of that year were poor. The result of Respondent's lack of effort and poor academic performance was his not being promoted to the next grade. During the 1985-86 school year Respondent's academic performance was also poor. During that year he received poor ratings for effort, a D as a final grade in five subjects and the grade of F in two subjects. Respondent did not improve his academic performance during the 1986-87 school year. During the first grading period of that year, Respondent received grades of F in three subjects, grades of D in two subjects and one incomplete grade which subsequently was changed to an F. As before, Respondent's rating for effort was poor. Mrs. Carol Ann Golden, a math teacher, had Respondent as a student during the first marking period of the 1986-87 school year. While enrolled in that class, Respondent refused to do any work. Most of the time he would come to class without materials, he would rarely do homework and less than 10 percent of the time did he perform any class work. He had unexcused latenesses and out of forty-five school days he was absent twenty. In efforts to discourage tardiness, Mrs. Golden would issue detentions to Respondent (requiring him to stay in school after hours), but he would either serve them late or not at all, in defiance of school personnel authority. Those times when Respondent was issued indoor suspensions (CSI) as a disciplinary measure, he would refuse to do any work. Mrs. Deanna A. Villalobos, a history teacher at Riviera, also had Respondent as a student during the 1986-87 school year. Here again Respondent's behavior was the same: he would come to class without materials 70 percent of the time, hardly did any homework, performed approximately 5 percent of the work assigned in class, had approximately twenty absences (including one instance when he failed to return to class after lunch), was frequently tardy, would spend his time day dreaming and looking out the window, and as a result failed all the history tests administered. Respondent was also issued detentions by Mrs. Villalobos which he failed to serve. It is the practice at Riviera for teachers and school administrators to submit written reports relative to troublesome student behavior. Such reports are prepared on forms called Student Case Management Referral Forms (SCMRF) and are generally reserved for serious behavior problems. Mrs. Golden and Mrs. Villalobos each issued two SCMRFs on Respondent regarding, inter alia, his total lack of interest in school and failing grade average. In addition Respondent received five other SCMRFs from a different teacher. In addition to Respondent's lack of interest in school, these reports also complained of his skipping class, excessive talking in class, leaving class without permission, and simply refusing to do any work in class. As a counselor at Riviera, Mrs. Waizenhofer worked on a weekly basis with Respondent. From her testimony it was apparent that Respondent, although not a bad kid, was disinterested in school and was not responding to the various techniques used by teachers, counselors and administrators to make students more interested and improve their academic performance. During one counseling session Respondent, while in tears, promised Mrs. Waizenhofer to improve his school effort just a little. Twenty minutes later, Respondent was caught cutting class. One attempt at interesting Respondent in school, was to place him in the work experience program at Riviera. This consisted of securing employment for Respondent at Burger King on a part-time basis. Respondent was not able to hold the job for more than two weeks and he failed the program. Mrs. Thomas, assistant principal, and Mrs. Waizenhofer had numerous conferences with Respondent's mother. The parent, however, was not able to cause a change in Respondent's attitude toward school. It was recommended to both Respondent and his parent that assistance be sought at different community agencies, which could provide specialized counseling services at little or no cost. Despite the efforts made by the school administrators, no change was noted in Respondent. At Riviera, like other schools with regular school programs, the average number of students in a class is about thirty. Such schools are not geared to address peculiar student needs or provide individual students with continuous special attention. By contrast, at an opportunity school, such as the J. R. E. Lee Center, the ratio of teachers to students is about nine-to- one, students are the subject of individualized educational plans, and there are more counselors on staff, including a psychologist. The expert opinions of both Mrs. Thomas and Mrs. Waizenhofer was that the more structured environment at an opportunity school would be better for Respondent, as opposed to permitting him to remain in a regular school program where he was making no progress.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order affirming the assignment of Respondent Rommel Luis Montes to the J. R. E. Lee Center. DONE AND ORDERED this 17th day of March, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0294 Petitioner's proposed findings of fact 1-12, have been adopted in paragraphs 1-12, respectively. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Mrs. Estrella Montes 10030 Southwest 43rd Street Miami, Florida 33165 Dr. Leonard Britton, Superintendent Dade County Public Schools The School Board of Dade County, Florida 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Madelyn P. Schere, Esquire Assistant School Board Attorney Board Administration Building, Suite 301 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether Respondent had good cause to reject the then Lake County Schools’ Superintendent’s nomination of Petitioner, Dennis Teasley, to be Assistant Principal I of Eustis High School for the 2008-2009 School year.
Findings Of Fact From 1987 until 2006, Dennis Teasley was employed by the Broward County School System. During those years, he served the school system in a number of capacities, including: dropout prevention teacher from 1987-1988; middle school science teacher from 1988-1999; Assistant Principal of Pines Lakes Elementary from 1999-2004; Intern Principal from 2002-2004; and Principal of Pines Lakes Elementary from 2004-2006. The Intern Principal title was used by Broward County School System to designate an assistant principal as a “principle-in-training.” The designation provided an assistant principal with additional opportunities to become involved on a larger scale with the administrative responsibilities of the school. Mr. Teasley’s performance appraisals from Broward County consistently rated him as “Effective” or “Highly Effective” in all the criteria assessed. Additionally, Mr. Teasley received or was nominated for numerous awards based on his performance or the performance of the schools under his charge. For the school year 2003-2004, when Mr. Teasley served as assistant and intern principal, Pines Lakes Elementary earned an “A” rating. For the school years 2004-2005 and 2005-2006, when Mr. Teasley was principal of Pines Lakes Elementary in Broward County, the school earned grades of “B” and “A,” respectively, and achieved AYP each year. “AYP” refers to Adequate Yearly Progress under the No Child Left Behind Act. To achieve AYP, a certain percentage of students from each population demographic represented at the school must achieve a Level 3 or higher in reading and mathematics, as measured by Florida’s “A-Plus” program. Sometime during the summer of 2006, Mr. Teasley either relocated or intended to relocate to the Lake County area. He applied for a position with the Lake County school system. Eventually, he was hired as a principal by Lake County Schools sometime in July, 2006, just prior to the beginning of the 2006- 2007 school year. Mr. Teasley was assigned to Beverly Shores Elementary School. Beverly Shores has a large population of students from lower socioeconomic backgrounds, as well as a large population of students requiring Exceptional Student Education (ESE). The ESE population includes students designated as Emotionally Handicapped (EH), and Educable Mentally Handicapped (EMH). Indeed, 68 percent of the students at Beverly Shores in 2006- 2007 came from economically disadvantaged homes and 11 percent of the students were classified as ESE. The environment of the school was described by most of the witnesses as being a tough environment with a variety of discipline problems. Prior to Mr. Teasley’s appointment as principal, 447 students were suspended from Beverly Shores during the 2005-2006 school year, with 422 students suspended out-of-school (OSS) and 25 students given in-school suspensions (ISS). Eighty of the students given OSS were kindergartners. The principal for that year was described by the Superintendent as being burned-out and needing a respite from such a tough environment. Mr. Teasley entered this environment with insufficient time to familiarize himself with staff and/or review procedures and policies that were in place. He had one Assistant Principal (AP) to support him. Mr. Teasley’s two goals for the 2006-2007 school year were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Mr. Teasley wanted to redraft the prior year’s disciplinary policy. There was some lack of communication on the status of the redrafted policy between teachers and Mr. Teasley and lack of activity by the committee responsible for the redraft. Eventually, some teachers felt that Mr. Teasley did not support them when it came to disciplinary matters and that Mr. Teasley allowed the students to get out of control. In September or October of 2006, a first-grade student brought a cellophane baggie containing a white powder to school. The police were called to confirm that the substance was cocaine. After confirmation, the child was removed from the custody of his mother, and immediately suspended from school. There was no evidence to suggest that the discipline imposed for this incident was inappropriate. In early September, Mr. Teasley placed an ESE/EH student in a non-ESE class. The student in question had been “retained” (or “held-back”) twice. As a consequence, the student was a seventh-grade-age student in a classroom of third- grade-age children. Mr. Teasley thought that the student’s development would be better met in middle school with similarly aged peers. He, therefore, hoped to have the student reassigned to middle school. While waiting to hear if the reassignment would happen, Mr. Teasley placed him/her in a non-ESE fifth- grade class under the supervision of a teacher with whom he had a good rapport. The decision to place the student in the non- ESE classroom was predicated on a number of factors, including Mr. Teasley’s desire to put the child in an environment where he/she could be successful, as well as, safety concerns regarding significantly younger ESE students being in the same class as the ESE student. Unfortunately, the student was not reassigned to the middle school and Mr. Teasley transferred him back to his original class. After the ESE/EH student was returned to his/her original class, the student “jumped” another student after school was dismissed, breaking the other student’s wrist. The ESE student was immediately given an out-of-school suspension (OSS). However, because the child was an EH student, he/she could only be suspended for a cumulative maximum of ten days, without convening a special ESE disciplinary staffing. Since the student had already been suspended for five days earlier in the year, his/her suspension was limited to five days. After this incident, the student’s parent consented to placement in an alternative school and the student was transferred to the Lifestream school. Again, there was no evidence that Mr. Teasley’s method of handling this student’s behavior problems was inappropriate given the fact that this student was a special education student and special disciplinary procedures applied to such students. Additionally, during the first semester, there was an on-going concern with a second-grade EH student who was “stalking” a female student. Mr. Teasley attempted to have the EH student assigned to the alternative school. However, the student’s mother was “dead-set” against the assignment and the student remained at Beverly Shores. At the same time, Mr. Teasley immediately informed the mother of the child being stalked of what was going on, as well as the steps that were being taken for the girl’s safety. Mr. Teasley assigned an adult to escort the EH student everywhere he/she went on campus. He also rearranged the lunch schedule for the student’s entire class to ensure that the student was not in the cafeteria at the same time as the girl. Again, there was no evidence that demonstrated the steps taken by Mr. Teasley in regard to this EH student were inappropriate given the fact that the student’s mother refused alternative placement and the student was an EH student. Ms. Jule Hand, a kindergarten teacher at Beverly Shores, provided the only direct testimony regarding Mr. Teasley’s perceived lack of support for the faculty. Specifically, she recounted incidents in which she personally sent referrals to the administration and was disappointed when a referral was not addressed on the same day it was written, or when the consequences were not, in her opinion, suitable for the incident. Ms. Hand testified regarding one incident where a student, with a history of significant disciplinary problems and multiple suspensions, pushed two students in her classroom and then threw down all the chairs around the classroom. In the process of throwing chairs, the child hit her and was physically and verbally abusive to her senior volunteer. Ms. Hand called the office for assistance in removing the child from the classroom. The child was removed and received a verbal reprimand with a warning to discontinue the behavior or harsher consequences would follow. To Ms. Hand’s dismay, the student was returned to the classroom. Ms. Hand went on to detail further incidents of misbehavior by this particular child, such as hitting the physical education teacher, spitting in another child’s face, throwing food, grabbing a child from behind, verbal defiance, swinging a metal pipe, and hitting another student with his/her shoulder hard enough to almost knock her over. During this time, the student’s parent was contacted on numerous occasions by both faculty and administrative personnel. Additionally, the student had been suspended twice during the course of these incidents. However, even with these suspensions, the student continued to have disciplinary problems. Mr. Teasley did not want to expel the student and recommended that Ms. Hand contact a social worker and counselor so that the student could be referred to ITOS, a behavioral- intervention study. Eventually, the student left Beverly Shores to attend the study. However, the year following Mr. Teasley’s term as principal, the student returned to Beverly Shores and continued to have behavioral problems. Again, the evidence did not demonstrate that Mr. Teasley’s handling of this matter was inappropriate, given Mr. Teasley’s desire not to expel the student. Ms. Karen Seltzer also testified at hearing about her impressions of the discipline problems at Beverly Shores under Mr. Teasley. Some of her testimony involved the EH student referenced above who again began stalking during the second half of the school year. Ms. Seltzer’s testimony was quite confusing and based on hearsay she had gathered from discussions with other teachers who did not testify at hearing. Furthermore, she also testified that she was unaware of the actions taken by Mr. Teasley in response to the incidents she related. The Assistant Superintendent, Mr. Cunningham, observed the students and environment of Beverly Shores during his visits in the first semester of the school year. The visits were prompted by complaints he or the Superintendent had received about the lack of discipline at Beverly Shores. During his visits to Beverly Shores, Mr. Cunningham observed behaviors that he reported to Mr. Teasley as situations that should be addressed from a discipline and control standpoint. He witnessed students traveling about the campus unsupervised by adults, as well as various unsafe behaviors such as running and jumping. There was some testimony from staff that indicated Mr. Cunningham’s observations regarding unsupervised students were not isolated incidents. Mr. Cunningham also saw classrooms that were cut-off from casual observation (e.g., the blinds were drawn). He also testified that at the beginning and the end of the day, when the entire student body was on the move, he observed that teachers were not “on duty” supervising the movement of students. He instructed Mr. Teasley that during those times it was especially important that teachers be in “supervisory mode.” Mr. Cunningham did not return to Beverly Shores until just before the end of the school year. At some point around March 2007, a parent named Ms. Burry contacted Mr. Teasley about obtaining a Sheriff’s Resource Officer (SRO) for Beverly Shores. Ms. Burry thought a uniformed officer on campus would help with student discipline. Even though a SRO is not involved with student discipline, Mr. Teasley felt that a uniformed officer on campus would serve as a positive role model at Beverly Shores. In support of Ms. Burry, Mr. Teasley attended a March 12, 2007, Leesburg City Commission meeting in which parents and teachers sought funding for an SRO at Beverly Shores. He spoke in favor of the idea. The City Commission referred the request back to the Board. At that point, Mr. Teasley felt that the SRO issue was “out of his hands.” Ms. Burry began to contact the Board and Superintendent about her desire for an SRO on campus and the need for greater discipline in the school. Around March or April 2007, Mr. Cunningham was again contacted by parents who were concerned about safety at Beverly Shores. At about the same time, a representative from the teacher’s union had come to him with concerns about the administration at Beverly Shores and “suggested pretty strongly that they might file a grievance” regarding Mr. Teasley’s performance. Mr. Cunningham did not identify which or how many parents voiced concerns to him. Likewise, he did not identify which or how many teacher complaints created the impetus for the union to consider filing a grievance. None of the parents testified at the hearing. On April 30, 2007, Mr. Teasley sent a letter to Assistant Superintendent Cunningham requesting that an additional assistant principal be assigned to Beverly Shores. As indicated earlier, Beverly Shores operated with one AP in 2006-2007. The letter, in part recognized there was a significant disciplinary problem at Beverly Shores and that the school did not have adequate administrative staff to handle the number of disciplinary referrals. Mr. Teasley made the request based on the approximately 1,200 disciplinary referrals the administration had processed through April 19th of the school year and the amount of time spent on processing those referrals. Mr. Teasley stated that the time spent processing those referrals reduced the time administrators were able to spend in classrooms or on campus. The number of disciplinary referrals was due, in part, to Mr. Teasley’s philosophy of using OSS as a disciplinary tool of last resort. In his view, a child cannot be educated if they are not in school. At some point, the Superintendent became aware of the complaints and problems at Beverly Shores and decided to meet with the staff and faculty to assess the situation at the school. In May of 2007, the Superintendent held two meetings with some teachers and staff of Beverly Shores. Ms. Rhonda Lynn attended those meetings. Her interpretation of the tone of the first meeting was that some members of the faculty and staff were frustrated and searching for leadership and that such leadership should have been provided by the principal and his administration. Some teachers and staff in attendance voiced complaints about Mr. Teasley’s lack of discipline and control of the student population. The Superintendent indicated such complaints would remain confidential. At the second meeting with the Superintendent, Mr. Teasley was present and either various complaints were mentioned by the Superintendent in Mr. Teasley’s presence or he was clearly aware of the complaints that had been made in the first meeting. Ms. Lynn’s interpretation of the tone of the second meeting was that the Superintendent had breached the confidentiality promised the staff in the first meeting regarding complaints about Mr. Teasley and that the staff was very upset over that breach. Ms. Lynn admitted that she could not speak for how every teacher at Beverly Shores felt about Mr. Teasley. Ms. Lynn stated that she never had any discussions with Mr. Teasley regarding an explicit philosophy for dealing with students who had received multiple referrals. She also testified that she had no responsibilities for the processing of disciplinary referrals. Throughout the time period outlined above, Mr. Teasley was formally evaluated by the School District. Originally, Mr. Cunningham would have been assigned to perform Mr. Teasley’s evaluation. However, at the time he would have performed the evaluation, Mr. Cunningham was assigned other duties within the District. Therefore, Ms. Pat Nave, Assistant Superintendent for Curriculum and Instruction, K-12, completed Mr. Teasley’s evaluation. In the course of performing her evaluation of Mr. Teasley, Ms. Nave made four separate visits to the Beverly Shores’ campus. During those visits, Ms. Nave and Mr. Teasley would discuss a number of different topics regarding the operation of the school. Specifically, Ms. Nave and Mr. Teasley discussed his policies for monitoring faculty and student conduct. One such tool for monitoring the campus was a structured system for scheduling the weekly classroom walk-through assignments by members of the school’s leadership team. Based on the reports Mr. Teasley would receive as a result of these walkthroughs, Mr. Teasley would follow up with individual teachers regarding their performance. Additionally, during the evaluation visits, Ms. Nave and Mr. Teasley would discuss the goals that Mr. Teasley had established at the beginning of the year to gauge the school’s progress in the areas he had identified as needing improvement. As noted earlier, those goals were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Ms. Nave concluded that all of the strategies that had been outlined for reaching those two goals had been, or were being, implemented. With regards to discipline, she specifically noted that referrals had decreased. Indeed, the evidence demonstrated that out-of-school suspensions decreased from 422 the previous year to 221 for the current year and that on-going concerns were being addressed through the safety and discipline committee Mr. Teasley had established, even though the evidence at the hearing showed that this committee was not very active. Additionally, there was some suggestion at the hearing that disciplinary referrals may have been down because Mr. Teasley was not processing such referrals. There was no competent evidence to support such a conclusion. Evidence did demonstrate that Mr. Teasley preferred ISS to OSS. Toward that end, the ISS procedure was altered from the way it had been operated in the years prior to his tenure at Beverly Shores. During the course of the 2006-2007 school year, Mr. Teasley hired a teacher to monitor the ISS room and provide instruction when necessary, eliminated the practice of sending children to the ISS room as a “time-out” by requiring administrator approval, and required teachers to supply the child’s lessons for the periods that the child was in ISS so that the student could keep up with his or her classes. Finally, Ms. Nave discussed the School Advisory Council’s (SAC) performance rating of Mr. Teasley. SAC had given Mr. Teasley a mixed satisfaction rating at one of its meetings. At that meeting, eight members of SAC were present. Four of those members voted that Mr. Teasley was doing a satisfactory job. Four voted that Mr. Teasley was doing an unsatisfactory job. Ms. Nave and Mr. Teasley, nonetheless, discussed the issue of the need to foster a productive working relationship with SAC. After the discussion, Ms. Nave was satisfied that Mr. Teasley was taking appropriate actions to continue working with SAC members to implement changes at Beverly Shores. As a result of this performance review, Mr. Teasley received the maximum amount of points on his evaluation and met the performance criteria of that evaluation. After the evaluation and three weeks before the end of the school year, a fifth-grade student at Beverly Shores wrapped the leather portion of his belt around his hand and began to swing the belt, striking students and adults with the metal buckle. Mr. Teasley and AP Jeff Williams were called to the classroom to assist with restraining and removing the student. Once they got the student to the office, Mr. Teasley immediately notified the police that a battery had occurred, suspended the student for the ten-day maximum suspension period, and began the expulsion process. The student did not return to school that year. No suggestion was made that Mr. Teasley’s response to this event was inappropriate. The belt incident garnered media attention. Shortly after the incident, the Superintendent went to the Beverly Shores campus, but could not locate Mr. Teasley in his office or on campus. She, therefore, sent Mr. Cunningham to the school. Eventually, she assigned Mr. Cunningham, along with Messrs. Mitchell and Habring, to Beverly Shores for the remainder of the school year. The Board also authorized the placement of an SRO at Beverly Shores. Mr. Cunningham testified that within a few days of the assignment of the extra personnel, the discipline situation began to improve and the school began to operate in an orderly way. Mr. Cunningham stated that he started to do the things that he had told Mr. Teasley needed to be done earlier in the year. The actions of Mr. Cunningham included administrative staff becoming more visible on campus while students were in transit from one place to another and dealing with each and every referral on the day in which it was written. Importantly, these actions were accomplished with a significant increase in administrative personnel. From an academic standpoint, there can be no question that Beverly Shores made significant improvements under Mr. Teasley’s direction. Evidence admitted at hearing showed that the school grades from the Department of Education (DOE) based on the students’ FCAT performance for Beverly Shores for the six school years prior to Mr. Teasley’s tenure (i.e., 2000- 2001 through 2005-2006) were “C”, “B”, “B”, “B”, “C” and “C”, respectively. During Mr. Teasley’s time as principal, Beverly Shores earned a grade of “A.” Beverly Shores also achieved AYP. Additionally, Beverly Shores had increases in the percentage of students meeting high standards in mathematics, as well as an increase in the percentage of students in the lower-quartile who made learning gains. The school’s grades did not decrease in the areas of reading and writing. These improvements show that the school was successful in achieving the academic goals that Mr. Teasley had identified at the beginning of the year. It should also be noted that such improvements were also due to the efforts of teachers and other staff at the school. Due to this achievement, Mr. Teasley was one of only 92 principals in the state to receive recognition as a “Turn- Around” Principal in 2006-2007. The “Turn-Around” award recognizes the principal of a school which improves by at least two letter-grades in one academic year. In 2007-2008, the year after Mr. Teasley’s tenure, Beverly Shores’ grade fell back to a “C” and the school failed to make AYP. The evidence did not demonstrate that Mr. Teasley had more discipline problems at his school than in prior years. There was some evidence to demonstrate that there may have been some student control problems related to monitoring the passageways of the school. Those problems were in part due to a lack of sufficient administrative staff to patrol the school. There was also some evidence to demonstrate that Mr. Teasley had lost the support of some of the faculty because he would return students to the teacher’s classroom or not assess a harsher penalty for misbehavior. However, there was only one teacher who testified to support that conclusion. Other staff testimony regarding lack of support and lack of discipline was based on hearsay. Just as Beverly Shore’s grade was not dependent on one person, Beverly Shores alleged discipline and student control problems cannot be attributed to one person. One teacher’s testimony coupled with hearsay and vague testimony is insufficient evidence to conclude that Mr. Teasley was no longer professionally qualified to perform in some capacity within the School District. At a May 21, 2007 Board meeting, Mr. Cunningham gave a report of the actions that had been taken at Beverly Shores to deal with discipline during the time he was assigned there. He also made suggestions for improving the discipline situation at the school going forward. Some of the suggestions involved actions previously sought by Mr. Teasley. At about the same time, the 2006-2007 school year came to a close. The Superintendent began to finalize the academic teams she would recommend to the Board for the 2007-2008 school year. In fact, for the next year, 2007-2008, the Superintendent and the Board recognized the need for additional supervisory staff at Beverly Shores and appointed two APs and a behavioral specialist to the school. The Superintendent was mindful of the events at Beverly Shores and the fact that some of the faculty and staff had lost confidence in Mr. Teasley’s ability to lead the school as principal. She decided not to recommend Mr. Teasley for principal at Beverly Shores. However, she did not want to lose Mr. Teasley’s skills as an administrator and recommended him for a district level administrative position for the 2007-2008 school year. The Superintendent’s recommendation was accepted by the Board and Mr. Teasley fulfilled the duties of that position during the 2007-2008 school year. At the close of the 2007-2008 school year, the Superintendent again created staffing recommendations for the 2008-2009 school year. Toward that end, the Superintendent created staffing recommendations to the Board that considered many factors. The most important factor was the creation of administrative teams for each school that would serve as that school’s “instructional leaders.” Similarly, it was very important that at least one member of an administrative team be well-versed in making learning-gains, raising student achievement and school grades. Mr. Teasley was clearly well- versed and well-qualified in such areas. The Superintendent recognized that since the 1998-1999 school year, Eustis High School had earned a grade of “C”, except for the year 2006-2007, when the school’s grade was “D.” Because of the high school’s performance, the Superintendent intended to make changes at Eustis High School to attempt to address the academic problems and raise the school’s academic performance. Additionally, the school was not known for having any extraordinary disciplinary issues. Mr. Larry was the principal of Eustis High School. He had been appointed the principal of the school because of his success in implementing advanced programs as a principal at the middle-school level. Mr. Larry was also very strong on discipline, had 4 other APs and did not require additional help in the area of discipline. Therefore, the Superintendent was not worried about discipline-related issues at Eustis High School. In putting together an educational team for the school, the Superintendent wanted to place a person who had demonstrated their ability to raise a school’s academic achievement and performance. As indicated, the Superintendent did not want to place Mr. Teasley back at Beverly Shores because that educational team had not been successful. However, Mr. Teasley had skills in school improvement that were very useful to the District. She recommended Mr. Teasley for appointment as one of Eustis High School’s five APs. Her recommendation was based on Mr. Teasley’s proven ability in achieving AYP, his ability to analyze the raw performance data for AYP and to work with teachers to raise the test scores which form the basis of a school’s grade. Indeed, the Superintendent felt that Mr. Teasley was one of the strongest individuals she could recommend to Eustis High School to work with the current administration and to help improve the school’s academic performance. Mr. Larry indicated to the Superintendent that he could work with Mr. Teasley. There was no direct testimony given at the hearing of how Mr. Larry wanted to use Mr. Teasley at Eustis High School, although there was some hearsay testimony that Mr. Teasley would be placed at the Curtright Center, a separate ninth grade center that is approximately 1.5 miles from the main high school campus. The Superintendent recommended Mr. Teasley for the position of AP-1 at Eustis High School. Ultimately, the Board rejected the Superintendent’s recommendation. The testimony at hearing and the evidence admitted shows that the primary reason that the Board rejected the Superintendent’s nomination was because of the Board’s lack of confidence in Mr. Teasley’s ability to maintain discipline and control at Eustis High School. Mr. Cunningham, Assistant Superintendent for Administration and Safety, testified that he did not believe that Mr. Teasley was qualified to serve as an AP-1 at Eustis High School. He based that opinion on his observations at Beverly Shores during the 2006-2007 school year and his opinion that if one loses his administrative authority at an elementary school, that person has “no business” as an administrator of a high school. Mr. Cunningham did not offer an opinion on the academic-improvement functions the Superintendent intended Mr. Teasley perform in the academic team to which she assigned him. In addition, the individual members of the Board testified regarding their reasons for rejecting the Superintendent’s recommendation. Mr. Strong testified that his basis for rejecting the Superintendent’s recommendation related to the situation at Beverly Shores during the 2006-2007 school year; particularly, the perceived lack of administrative discipline that created a disorderly educational environment, and the Board’s decision in May of 2007 to place an SRO at the school. He also stated that his vote was influenced by the public input of Ms. Pam Burtnett, president of the Lake County Education Association (“LCEA”), received by the Board at the June 23, 2008 meeting, and by his conversations in the spring of 2007 with one parent and one teacher from Beverly Shores, Ms. Denise Burry and Ms. Bordenkircher, respectively. Ms. Burtnett was not a teacher at Beverly Shores. Neither Ms. Burry nor Ms. Bordenkircher testified at hearing. However, Mr. Strong also testified that prior to the School Board meeting on May 7, 2007, no one had previously raised the issue of discipline at Beverly Shores at any previous Board meeting, and that he never personally witnessed any discipline problems at Beverly Shores. Ms. Kyleen Fischer testified that she had visited the Beverly Shores campus while it was under the direction of Mr. Teasley. Specifically, she testified that she observed that Beverly Shores’ students were not under control and that they were disrespectful. Based on her observations, she felt that the appointment of Mr. Teasley to Eustis High School would create a safety issue. Ms. Cindy Barrow testified that she did not believe Mr. Teasley possessed the necessary knowledge, skills and abilities to serve as a high school AP-1. She based her belief on information gathered from many different sources, including reports such as the 2006-2007 climate survey, conversations with Mr. Cunningham and Ms. Burry, reports given orally to the Board at the May 21, 2007 and June 23, 2008, Board meetings, and the fact that 22 teachers and one guidance counselor left the school during or after the 2006-2007 school year. However, she did not speak to any of the departing personnel regarding their reasons for leaving, nor did she testify as to any of the specifics regarding the above. Ms. Barrow’s belief was that Mr. Teasley had not been able to maintain order or deal with behavioral problems at Beverly Shores and, therefore, he would not be successful at dealing with behavioral problems at Eustis High School. However, Ms. Barrow admitted that she had never been to Beverly Shores. She believes that a primary duty of any high school AP-1 is to handle disciplinary issues. However, she also testified that she had no specific conversations with Mr. Larry or the Superintendent about how either planned to use Mr. Teasley as AP-1 at Eustis High School. Mr. Metz, who testified that he had never visited Beverly Shores during its hours of operation prior to May of 2007, stated that his decision to vote against the Superintendent’s recommendation was based on the situation at Beverly Shores in the Spring of 2007, his written and verbal communications with concerned parties, and Ms. Burtnett’s presentation to the Board in June of 2008. The Board re-reviewed the issues the Superintendent had already considered in creating her educational teams at the various schools and in making her recommendations to the Board. The Board concluded that Mr. Teasley was not qualified to serve as an AP-1 at Eustis High School based on very broad generalizations about appropriate discipline. The Board’s action was not based on any knowledge regarding the role Mr. Teasley would play in the Eustis administration. As indicated, the Superintendent, as is her authority, considered all of the issues surrounding Mr. Teasley’s tenure at Beverly Shores. She also recognized the successes in academic improvement achieved during Mr. Teasley’s tenure and that those skills were needed at Eustis High School. The Superintendent assembled an administrative team after discussing the team members with the principal of the High School and assuring as much as possible that Mr. Teasley could function within that team. The evidence did not demonstrate that the Board’s assessment should trump the Superintendent’s recommendation regarding Mr. Teasley, especially given the fact that Mr. Teasley had many years of good performance evaluations as an AP in Broward County and a good performance evaluation in Lake County. As a consequence, the Board has failed to carry its burden of showing “good cause” to reject the Superintendent’s recommendation and the Superintendent’s recommendation should be accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Board enter a Final Order reversing its earlier decision and accepting the nomination of the Superintendent. DONE AND ENTERED this 6th day of March, 2009, in Tallahassee, Leon County, Florida. S 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 6th day of March, 2009. COPIES FURNISHED: Susan E. Moxley, Ed.D. Superintendent School District of Lake County, Florida 201 West Burleigh Boulevard Tavares, Florida 32778 Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Martha Harrell Chumbler, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
The Issue Whether Respondent, Uceda School of Orlando, Inc. (Uceda Orlando), discriminated against Petitioner, Matalyn Johnson (Ms. Johnson), based on her race and disability when it failed to hire her. The specific issue to be determined is whether Uceda Orlando was an “employer” under the Florida Civil Rights Act of 1992, chapter 760, Florida Statutes (2020) (FCRA).1
Findings Of Fact Ms. Johnson is an African-American female who has a speech impediment caused by a stroke and/or cancer. She applied for an ESL teaching position at a school located on Kirkman Road in Orlando, Florida.3 Uceda Orlando operates a school located at 5425 South Semoran Boulevard in Orlando, Florida. Uceda Orlando was incorporated in 2003. Juan Uceda (Mr. Uceda) is the registered agent and at all relevant times was the president and director of Uceda Orlando. Uceda OBT operates at least two schools located in Orlando, Florida: (1) at 12934 Deertrace Avenue, Suite B; and (2) at 4586 South Kirkman Road (Uceda Kirkman). Uceda OBT was incorporated in 2010. Charo Uceda (Ms. Uceda) is the registered agent and president of Uceda OBT. ESL TEACHER POSITION Angel Rodriguez was a teacher who worked at Uceda Kirkman from April 2019 to February 2020. For the time relevant to these proceedings, Mr. Rodriguez was supervised by Ricardo Sanchez. According to Mr. Sanchez's W-2 forms, he was paid by "Uceda School of Orlando – OBT, Inc." Mr. Sanchez, who interviewed Ms. Johnson and made the decision not to hire her, was employed by Uceda OBT. In November 2019, Mr. Rodriguez submitted his resignation letter to Uceda Kirkman.4 Mr. Sanchez asked Mr. Rodriguez if he knew of anyone who could teach ESL in his place. Mr. Rodriguez suggested Ms. Johnson for the position. 3 "ESL" stands for "English as a second language." 4 Mr. Rodriguez continued to work as a substitute teacher at Uceda Kirkman after he resigned. Mr. Rodriguez worked with Ms. Johnson at an Orange County public middle school. He told Ms. Johnson about the ESL position he was vacating at Uceda Kirkman and encouraged her to apply. Ms. Johnson applied for the ESL position. Based on the overwhelming evidence at the hearing, it is clear that Ms. Johnson applied for Mr. Rodriguez's vacant position with Uceda Kirkman (operated by Uceda OBT) and not for a position with a school operated by Uceda Orlando. Ms. Johnson is a public middle school teacher in Orange County. She has a bachelor's degree in English with a minor in Spanish. She is certified to teach ESL classes to students in sixth through twelfth grades. Although Ms. Johnson's application was not entered into evidence, her unrebutted testimony and the testimony from Mr. Rodriguez established that she was qualified for the ESL position. Ms. Johnson interviewed for the position with Mr. Sanchez. She later heard from Mr. Sanchez that she did not get the position. On January 13, 2020, Ms. Johnson received an official notification that she had not been selected for the ESL position. The email was from "Uceda School of Orlando-Kirkman," and stated in relevant part: Subject: Application for ESL Teacher at Uceda School of Orlando-Kirkman Thank you for applying to the ESL Teacher position at Uceda School of Orlando-Kirkman. Unfortunately, Uceda School of Orlando-Kirkman has moved to the next step in their hiring process, and your application was not selected at this time. INTERRELATION OF INDIVIDUAL UCEDA SCHOOLS Mr. Uceda is the father of Ms. Uceda and Doris Uceda. Together the three co-founded the Uceda English Institute (UEI) in the 1980s, which is a chain of federally-accredited ESL schools. There are numerous locations or branches of UEI in Florida, Nevada, New Jersey, and New York. Each UEI school is separately owned and incorporated, and each is overseen by different administrators. The schools that were discussed at the hearing were owned by Mr. Uceda's family members, including his daughters and grandchildren. Ms. Uceda testified that she currently owns and operates Uceda OBT, which has two campuses: the Deertrace campus and Uceda Kirkman. Ms. Uceda also either has a financial interest or is on the board of UEI schools located in Boca Raton, Florida; Westin, Florida; and Elizabeth, New Jersey. Ms. Uceda has 100% ownership interest in Uceda OBT and is the only officer of Uceda OBT. She does not have any ownership interest nor does she serve in any capacity with Uceda Orlando. Mr. Uceda has no ownership interest in and does not serve in any capacity with Uceda OBT. Although Mr. Rodriguez believed that all "Uceda schools" were owned "by the same people," there was no evidence of this at the hearing. When asked what entity paid his salary, Mr. Rodriguez did not know. He testified that he thought all "Uceda schools" shared employees and students. However, he could not provide any examples and admitted that he only worked at Uceda Kirkman. Ms. Uceda convincingly testified that employees who work at one Uceda school can apply to work at another Uceda school, but they are paid separately and not allowed to just move back and forth. She also explained that Uceda OBT and Uceda Orlando have separate accounting records, bank accounts, lines of credit, payroll preparation, telephones, and offices. They do not share employees or administrators. According to the corporate documents introduced at the hearing, Uceda OBT and Uceda Orlando have different operating addresses, different registered agents, and different officers and directors. Although Ms. Uceda was listed as an officer of Uceda Orlando in the past, she has not served in any capacity at Uceda Orlando since 2013.
Conclusions For Petitioner: Ka'Juel Washington, Esquire The Washington Trial Group, PLLC 37 North Orange Avenue, Suite 500 Orlando, Florida 32801 For Respondent: Chris Kleppin, Esquire The Kleppin Law Firm 8751 West Broward Boulevard, Suite 105 Plantation, Florida 33324
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed by Matalyn Johnson against Uceda School of Orlando, Inc. DONE AND ENTERED this 2nd day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S HETAL DESAI 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 2nd day of September, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Ka'Juel Washington, Esquire The Washington Trial Group, PLLC 37 North Orange Avenue, Suite 500 Orlando, Florida 32801 Chris Kleppin, Esquire The Kleppin Law Firm 8751 West Broward Boulevard, Suite 105 Plantation, Florida 33324 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue The issue in this case is whether, and how, Respondent should be disciplined for failing to take appropriate action regarding a middle school student who brought a knife to school.
Findings Of Fact Respondent holds Florida Educator Certificate 1063574 and is licensed in the fields of English, English for Speakers of Other Languages (ESOL), Reading, and Exceptional Student Education. She began teaching at Bonita Springs Middle School in Lee County in September 2011, after the start of the 2011-2012 school year. During instruction in her fourth period class on February 13, 2012, Respondent heard a student ask another student, who was an Exceptional Student Education (ESE) student with emotional issues, "was that a knife?" The ESE student responded, "Drama!" When Respondent looked up, she saw the ESE student place something in her lap, out of Respondent's view. Respondent did not see what it was but saw a flash of silver or metal. The class started to "act up," and Respondent decided to diffuse the incident and quiet the class by telling the ESE student to "put it away." The ESE student then put the object in her backpack. When the class ended, Respondent approached the ESE student and asked if she had a knife. The student denied it. Respondent told the student, if she had a knife, that would be unacceptable, but Respondent did not pursue the matter any further at the time and allowed the student to leave for her next class. During Respondent's eighth period class, the last period of the day, Respondent asked her student-aide, who also was a student in her fourth period class, about the incident during fourth period. The student-aide told Respondent that it was a knife, like a small steak knife, and that the ESE student had been licking it. After speaking with her student-aide, Respondent sent the school's ESE director, who also was the ESE student's caseworker, an electronic message simply asking to discuss the student with her when she had a moment. No details about the incident were included in the message out of Respondent's concern that it would be a public record. Respondent did not receive a response by the end of the school day. The ESE director received the message after hours. The next morning, Respondent saw the ESE director at a teacher's meeting and explained the previous day's incident. The ESE director was concerned about the delay in doing anything else about it and immediately went to the school principal, who was in the cafeteria, as were several other students, including Respondent's ESE student. The principal immediately went to the student and asked if she had a knife. The student admitted she did and thought it was no big deal since Respondent did nothing about it the day before. The student later stated that she was depressed and was considering cutting herself with the knife. Respondent now understands that she did not take the appropriate action on February 13, 2012. However, she contends that there are mitigating factors to consider, and any discipline should be constructive (such as, additional training), not punitive. Respondent attempts to defend herself to an extent by saying she did not actually see the knife during fourth period. However, it is clear that Respondent heard students asking about a knife, and saw something silver or metallic that could have been a knife, and was aware of the student's emotional issues. In light of those circumstances, Respondent should not have been satisfied with the student's denial that she had a knife; she should have involved the school's administrators and resource officer at that point. When she learned during eighth period that the student in fact had a knife, she should not have been satisfied with an unacknowledged electronic message to the ESE director. Respondent also attempts to deflect some blame onto the school for not making sure she knew what to do about incidents like the one that confronted her on February 13, 2012. It may well be true, as she testified, that Respondent did not get a copy of the Parent Guide and Code of Conduct for Students, normally distributed to teachers at the beginning of the school year, which identifies a kitchen knife as a weapon and prohibits it. Petitioner attempted to impeach Respondent's denial of receipt of the document by citing a handful of student discipline referrals by Respondent that use incident types taken from that document. One incident type, albeit not used by Respondent in any of her referrals, was possession of weapons; however, the form does not define weapons. Respondent testified convincingly that she used the forms without reference to the source document. Nonetheless, she knew it would be unacceptable for a student to have a knife at school. When Respondent started teaching at the school, she was offered an opportunity to take the APPLES program for new teachers, which provides information and training on codes of conduct, including provisions to protect the safety of students and faculty. Respondent opted out, stating that she took the APPLES program during her previous employment in Collier County. While perhaps not handed to Respondent when she started teaching at Bonita Springs Middle School, the Parent Guide and Code of Conduct for Students was easily accessible from Respondent's school computer via a program called SharePoint that was a link on the home page. Respondent denies ever accessing the material from her computer. However, Respondent prepared a professional development plan shortly after she started teaching at the school in October 2011. It included a plan to train on how to download documents from SharePoint, but Respondent had not yet followed through on that plan by the time of the incident. Information also was available to Respondent in the form of an Agenda book that she was given. The Agenda book contained the school's rules, including one prohibiting weapons as nuisances and providing that they would be confiscated. It is not clear whether any of the information provided or available to Respondent would have told her what to do in circumstances where she suspected, but was not certain, that a student had a knife, and the student denied it. Based on the facts of this case, additional training is appropriate and actually is desired by Respondent. On the other hand, Respondent would rather not be reprimanded, submit to supervised probation, and pay a $500 fine and pay costs, as Petitioner proposes. Under the facts and circumstances of this case, Petitioner's proposal would be harsh, not constructive, and possibly demoralizing. The evidence is clear that Respondent will follow the rules she is given and take appropriate action in a situation if she knows what is expected of her. A repeat of the failure to act appropriately in a situation similar to the incident on February 13, 2012, is not likely.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission find Respondent guilty of violating rule 6B-1.006(3)(a), issue a letter of reprimand, and place her on a short term of probation conditioned on the completion of appropriate additional training. DONE AND ENTERED this 8th day of April, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2013.
The Issue This case involves the issue of whether the Respondent's teaching certificate should be suspended, revoked, or otherwise disciplined for misconduct with female students as more specifically alleged in the petitions for dismissal and for revocation of Respondent's teaching certificate. Prior to the formal hearing, Case Nos. 83-1147 and 83-2050 were consolidated for all purposes. At the formal hearing, the Petitioners called as witnesses the Respondent, John Hayes, Peter David Cavari, Frank P. Scruggs, Paul Woodall, Tracy C. Wynn, Melissa Nichols, Gina Ryder Gina Ferracano, Angela Jacobs, Lori M. Stamos, Jeffrey A. deCook, Debbie DeFilice, Sue Fortaleza, and Dr. Benjamin F. Stephensen. Petitioners also offered the deposition of Sonya Straubinger, who was unavailable to testify at the formal hearing. That deposition is admitted and was considered as a part of the evidence in these proceedings. Prior to hearing the parties entered into a prehearing stipulation and that stipulation was admitted as joint Exhibit 1. The Petitioners offered and had admitted Exhibits 1-8. Exhibits 9, 10 and 11 were made a part of the record in order to demonstrate the unavailability of Sonya Straubinger. The deposition of of Sonya Straubinger is admitted as Petitioners' Exhibit 12. The Respondent testified on his own behalf and called as witnesses Willie Allen, Marion Ferwerda, James Pullen, Scott A. Hoffman, Robert Lamby, Lexie Wilkes, Kenneth R. Black, Jr., Kevin Ryer, Timothy A. Hassett, Kent Schaeffer, Keith Schaeffer, Paul Kruse, and Charles Law. The Respondent offered and had admitted 10 exhibits. Counsel for each of the Petitioners filed proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions contained in this order, they were rejected as being not supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact The Respondent, John Hayes, is an instructional employee of the School Board of Broward County, Florida, holding a continuing contract of employment as a classroom teacher and is assigned as a teacher at Stranahan High School. He has been been a classroom teacher in industrial arts for fifteen years. Respondent holds teaching Certificate No. 262317, issued by the Department of Education for the State of Florida. This certificate covers the areas of industrial arts and expires June 30, 1984. During the 1982-83 school year, the Respondent was assigned as a teacher of industrial arts at Stranahan High School. Respondent taught woodworking to those students whose last names began with the letters "A" through "G." In each of his woodworking classes, the Respondent had both male and female students. On December 8, 1982, two of Mr. Hayes' female students went to an administrative assistant, Peter Cavari, and asked that they be moved from Mr. Hayes' woodworking class. They stated that "things" were happening in the class but that they would rather not say anything about the specific occurrences. Their request to change was denied. The two girls were Debbie Defilice and Sue Fortaleza. Subsequent to this denial, Debbie Defilice and her mother met with Mr. Frank Scruggs, the administrative assistant in charge of students A through G at Stranahan High School and again requested that Debbie be removed from Mr. Hayes' class. Mr. Paul Woodall, the principal at Stranahan High School, was apprised of these complaints and requests for change and as a result of a preliminary investigation by Mr. Woodall, the matter was turned over to internal security of the School Board of Broward County. Thereafter, the Respondents was suspended from all further teaching duties. During the 1982-83 school year, Tracy Colleen Wynn was a senior at Stranahan Senior High School and was assigned to Respondent's 3rd period Woods I Class. On two different occasions during that school year, the Respondent kissed Ms. Wynn on the cheek out of the presence of other persons. The first incident occurred the day just prior to the Thanksgiving break as Ms. Wynn was preparing to leave Woods Class at the end of 3rd period. As Ms. Nynn was leaving class, the Respondent wished her a good and safe Thanksgiving and then kissed her on the cheek. She had no reaction to the kiss. She had not been kissed on the cheek by any other teachers. The second incident occurred near the end of a woods class when Ms. Wynn was working on a set of bookcases. She could not recall the specific date of this incident. At the end of this particular class period, Ms. Wynn had not finished gluing the shelves of the bookcase she was working on. The Respondent stated that he would glue the shelves for her and kissed her on the cheek. She then left the class. There were no other students present in the classroom when this occurred. On one other occasion during her junior year at Stranahan, Ms. Wynn was kissed on the cheek by the Respondent. On that occasion, Ms. Wynn had fallen in the parking lot and injured her knee and the Respondent helped her into his classroom. At the time she fell, she was on her way to Woods Class. Once inside the classroom, the Respondent, accompanied by Ms. Wynn, went into a small room adjacent to the classroom to call the office and to call Ms. Wynn's mother. Mr. Hayes made the two calls and then kissed Ms. Wynn on the cheek. A short time later Ms. Wynn's mother arrived and took her home. When she fell in the parking lot, Ms. Wynn was very upset and Mr. Hayes had tried to console her and calm her down. During the school year 1982-83, Melissa Nichols, a junior at Stranahan High School, was a student in Mr. Hayes' Woods Class. On one occasion, early in the school year, while Ms. Nichols was working at the lathe, the Respondent came up behind her and put his arms around her to demonstrate use of the lathe. As Ms. Nichols was using the lathe, the Respondent began patting the sides of her rib cage and patted her all the way down to her hips. He then held her hips and said, "I didn't realize what hips you had." Ms. Nichols then moved away. Once during a test, Mr. Hayes walked up behind Ms. Nichols and tickled her upper rib cage. This startled her and caused her to fall off the stool she was seated on. During that same test, Mr. Hayes stood behind Ms. Nichols and leaned forward looking over her shoulder and pressing his groin area against her back. On another occasion, Ms. Nichols had worn a lace blouse to school and the top button would not stay buttoned. She asked Mr. Hayes for a safety pin for her blouse and he stated, "Don't we get a look first." This was said in a joking manner. Another incident occurred during Woods Class on a day when Ms. Nichols was wearing a shop apron. Mr. Hayes grabbed the front of her apron and lifted her off the floor momentarily. Gina Rider was a senior at Stranahan High School during the 1982-83 school year. Ms. Rider was also a student in Mr. Hayes' Woods Class. During one class, Mr. Hayes came up behind Ms. Rider while she was working on the lathe. He put his arms around her and showed her how to do a particular thing on the lathe. She did something on the lathe which Mr. Hayes thought was good and he then kissed her hand. After she finished working on the lathe, Ms. Rider was just standing around and Mr. Hayes walked up behind her, grabbed her around the waist with his hands, and picked her up off the floor. During the 1982-83 school year, Lisa Champion was a student in Mr. Hayes' 6th period Woods Class. Ms. Champion had a habit of sticking out her tongue and once after Mr. Hayes had spoken to her about something, she stuck out her tongue and Mr. Hayes touched her tongue with his tongue. On four or five occasions, the specific dates being unknown, Mr. Hayes stood behind Lisa while she worked on the lathe. Each time he put his arms around her to demonstrate something on the lathe, his arms were around her in such a way that they came in contact with her breasts. Gina Ferracano was a student in Mr. Hayes' 2nd period Woods Class at Stranahan High School during the 1982-83 school year. On several occasions during class, Mr. Hayes patted her rear with the palm of his hand. Mr. Hayes also stood behind Gina and put his arms around her while demonstrating the use of the lathe. His arms did not come in contact with her breasts. On one occasion, Gina was trying to hang a broom up and could not reach high enough to do it. Mr. Hayes walked up behind her and grabbed her on her rib cage just below her breast and lifted her up to put the broom away. From August 1982, to December, 1882, Lori Stamos was a student in Mr. Hayes' 5th period Woods Class. At the time she was a senior at Stranahan High School. On several occasions, Mr. Hayes tickled the upper part of her rib cage. Each time this occurred, she just asked him to stop. Once or twice, Mr. Hayes hit her "butt" with the palm of his hand. On some occasions, Mr. Hayes commented to Lori what a nice figure she had. One particular day, at the end of the first 9 week period, Lori was in the backroom on the west side of the woodworking laboratory grading papers for Mr. Hayes. There were no other students present. Mr. Hayes came into the backroom and told her she was doing a good job and then kissed her on the cheek. Mr. Hayes instructed Lori on the equipment in Woods Class. Be would stand in back of her while instructing her on the lathe and would put his arms around her. His arms did not come into contact with any particular part of her body. Debbie DeFilice was a senior at Stranahan High School during the 1982- 83 school year and was a student in Respondent's 6th period Woods Class. Sue Fortaleza and Lisa Champion were also in this class. Once during class, Mr. Hayes walked up behind Debbie and picked her up. He picked her up by placing his hands on each side of Debbie's rib cage. His hands also came in contact with her breast. On another occasion, the Respondent leaned against her during an exam. In leaning over her and looking over her shoulder, the Respondent's groin area pressed against Debbie's back. Her examination could have been viewed from the side rather than over Debbie's shoulder. During one of the classes, Sue Fortaleza was complaining to Debbie DeFilice that she felt she was fat and needed to lose weight. This conversation was taking place near Mr. Hayes' desk. Mr. Hayes overheard the conversation and told Debbie DeFilice that he preferred Sue's "butt" over hers but that her breasts made up for it. The original conversation had not been directed at Mr. Hayes and the girls made no comment in response to his statement. No other teacher had ever made that type of comment to them. As Debbie and Susan walked away, the Respondent patted Sue on the "butt" with the palms of both hands. Susan Fortaleza was a senior at Stranahan High School during the 1982- 83 school year and was a student in Mr. Hayes' 6th period woodworking class. In December 1982, Susan requested a change from Mr. Hayes' woodworking class. This request was made because of some incidents involving Mr. Hayes. Once while sitting on a stool in class, Mr. Hayes placed the palms of his hands on her buttocks. On another occasion, Susan was seated on Mr. Hayes' stool grading papers. Mr. Hayes grabbed her rib cage just below her breasts and picked her up off of the stool. His hands came into contact with her breasts. During an exam, Susan was seated on a stool at one of the workbenches taking the exam. Mr. Hayes came up behind her and leaned against her with his groin or genital area coming in contact with her back. There was room on either side of her for Mr. Hayes to walk up and look at her exam. During the 1982-83 school term, Sonya Straubinger was a student at Stranahan High School and was enrolled in Mr. Hayes' 5th period Woods Class. On two or three occasions, between August 20, 1982, and December 1982, Sonya was late for Woods Class and when she entered the classroom, Mr. Hayes patted her on the "butt" and commented that she was late. He did this a joking manner. On one occasion, Mr. Hayes, while showing Sonya how to take roll, sat her on his lap. Once, while Sonya was standing in the finishing room, Mr. Hayes picked her up from behind. There was no apparent reason for him to pick her up and when he lifted her his arms came in contact with the lower part of her breasts. Although she did not approve of the physical contact, Sonya considers Mr. Hayes an excellent teacher and a nice man. While teaching students to use the lathe, Mr. Hayes instructed by standing behind or slightly to one side of the student and placed his arms around the student with his hands holding the student's hands as the tool was used. This procedure was used with male and female students. Respondent is considered by his students, peers, and supervisors to be an excellent instructor. He is very safety conscious and designed the present safety features and layout of the woodworking laboratory at Stranahan High School. Improper physical contact with female students by a male teacher impairs the effectiveness of the teacher to instruct those students.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is,
Findings Of Fact Otis J. Clayton was a student at Nautilus Junior High School during the 1983-84 and 1984-85 school years. He attended Miami Beach Senior High School during the 1985-86 school year until his assignment to the alternative school. While at Nautilus, Clayton had an extensive history of disruptive behavior in class. During the 1983-84 school year, Clayton consistently, regularly and persistently disrupted class by yelling, using abusive language to others including teachers and students, hitting other students, talking and playing in class, and defying authority. He was counseled and disciplined and conferences were held with his mother. Despite constant assistance by the school, Clayton did not change his disruptive behavior. He was finally suspended on June 6, 1984. In addition to his disruptive behavior, Clayton was disinterested and unsuccessful as evidenced by his excessive absences and skipping class. His absences in various classes ranged from 16 to 26 for the 1983-84 school year. During the 1984-85 school year, Clayton's disruptive behavior continued. On February 21, 1985, Clayton was suspended for five days as a result of his disruptive behavior, defiance of school authority and fighting. Again on March 1, 1985, Clayton was disciplined for fighting. Clayton was disciplined and counseled regarding his continuous disruption and defiance in class on March 20, 1885. On March 29, 1985, Clayton was placed on indoor suspension for five days for his repeated disruption, defiance and use of provocative language. Clayton was disciplined on April 2, 1985, for his disruptive behavior and for picking on other students. He was placed on a five day outdoor suspension on April 23, 1985, for his repeated disruption of class, defiance of school authority and assault. Finally, Clayton was again suspended for five days on May 13, 1985, for his repeated disruptive behavior and defiance. Clayton had been hitting other students. During the 1984-85 school year Clayton's absences and skipping class had also increased. He had a cumulative absence total of 34 and a record of absences in various classes ranging from 22 to 71. Clayton began attending Miami Beach Senior High School for the 1985-86 school year. His misbehavior and absenteeism continued. On October 17, 1985, Clayton was disciplined for excessive tardiness. On October 23, 1985, he was again disciplined for excessive tardiness and excessive absences. He was suspended for five days on October 25, 1985 for his general disruptive behavior, defiance, excessive tardiness, refusal to serve detention and refusal to serve an indoor suspension. Finally, on November 4, 1985, Clayton was suspended for 10 days for disruptive behavior, defiance, and excessive tardiness and absences. He had been absent 25 days during the first grading period and he had received grades of F in all classes. On November 5, 1985, the parent was informed by letter that Clayton was being referred to the alternative school program. Because Clayton is an exceptional student, an educational placement staffing conference was held on November 8, 1985. During that staffing a new Individual Educational Plan (IEP) was developed which included placement in the opportunity school at Douglas MacArthur Senior High School-North. Clayton's mother was present at the staffing and signed the IEP approving Clayton's placement at MacArthur.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Otis J. Clayton to the alternative school program at Douglas MacArthur Senior High School-North. DONE AND ENTERED, this 7th day of March, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1986. COPIES FURNISHED: Jackie Gabe, Esquire 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Mrs. Martha C. Donalds 1558 Northwest 1st Avenue Miami, Florida 33139 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board of Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Ms. Maeva Hipps School Board Clerk 1450 N. E. 2nd Avenue Miami, Florida 33132
The Issue The issue is whether Petitioner, the Duval County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled "Notice of Termination of Employment Contract and Immediate Suspension Without Pay" (the "Notice") from Superintendent of Schools Nikolai P. Vitti to Respondent dated June 28, 2013.
Findings Of Fact Respondent Dennis Hester has been employed by the School Board as a teacher since 1994. He is covered by the Collective Bargaining Agreement ("CBA") between Duval Teachers United and the School Board for 2008-2011. At the time of the events at issue in this proceeding, Mr. Hester was assigned to Fletcher High School as instructional coach and professional development facilitator (“PDF”). ESOL certification requirements At the final hearing, the School Board conceded that the allegation regarding unprofessional behavior would not, standing alone, constitute grounds for terminating Mr. Hester’s employment. The chief allegation against Mr. Hester is that he repeatedly gave School Board employees credit for English for Speakers of Other Languages (“ESOL”) courses for which they performed no work and/or did not attend. Therefore, it is necessary at the outset to explain the School Board’s ESOL requirements for teachers and Mr. Hester’s role in teaching and accounting for credits in ESOL courses. In August 1990, Judge James Lawrence King of the United States District Court for the Southern District of Florida entered a consent decree to oversee implementation of a settlement agreement between the Florida State Board of Education and a coalition of plaintiff organizations that included the League of United Latin American Citizens, ASPIRA of Florida, the Farmworkers’ Association of Central Florida, the Florida State Conference of NAACP Branches, the Haitian Refugee Center, the Spanish American League Against Discrimination, the American Hispanic Educators’ Association of Dade, and the Haitian Educators’ Association.3/ Relevant to this proceeding, Section IV of the settlement agreement required teachers of “English language learners” or “ELL students”4/ to obtain an ESOL endorsement and complete between 60 and 300 hours5/ of in-service training in each of the five following subject areas: Methods of teaching English to speakers of other languages; ESOL curriculum and materials development; Cross-cultural communication and understanding; Applied linguistics; and Testing and evaluation of ESOL. See Fla. Admin. Code. R. 6A-4.0244 (specialization requirements for the ESOL endorsement) and 6A-6.0907 (in-service requirements). Not every teacher is required to obtain the ESOL certification. Only when an ELL student is assigned to a teacher’s class is the teacher required to obtain ESOL certification. Karen Patterson, the School Board’s ESOL specialist during the period relevant to this proceeding, testified that she knew of one teacher who taught in Duval County for nearly 40 years before being “flagged” as “out of field” for having an ELL student in her class and no ESOL credits on her record. The School Board’s policy is to terminate the employment of teachers who are flagged for ESOL and who do not timely obtain the required ESOL in-service training. Approximately 750 to 800 teachers are flagged out of field for ESOL each school year and must come into compliance with the ESOL requirement by June 30 of the school year in which they are flagged. As noted above, a teacher must obtain between 60 and 300 in-service credits, depending on the subject matter taught. Reading and language arts teachers are required to complete 300 credits of in-service ESOL training; math and science teachers need only 60 credits. The State allows teachers to “bank” their ESOL credits and apply them toward the requirements for recertifying their Florida Educator’s Certificates. Section 1003.56(3)(a), Florida Statutes, requires each district school board to submit to the Department of Education for review and approval a plan for providing ESOL instruction to ELL students. Paragraph (f) of the same section requires the district school board to provide qualified teachers for ESOL instruction. The School Board’s approved District Plan sets forth the standards for obtaining the ESOL endorsement, stating that the “expectation is that any teacher who obtains the ESOL Endorsement will acquire the appropriate strategies to teach English language learners.” The District Plan refers to the ESOL endorsement as an “Add-on-Program” because the endorsement can be added to any Florida Educator’s Certificate requiring a bachelor’s degree or higher. The District Plan states as follows, in relevant part: The standards to be addressed in each course will be stated and updated in the district’s master in-service plan for the Add-on- Certification Program for ESOL. Each component has been developed in accordance with the requirements for the Master Plan for In-service Education components. Participants must complete and demonstrate competency of 80% of the course objectives in order to receive credit for the component. Participants must participate in the following clinical activities in the ESOL Add-on-Program for the ESOL endorsement: Submit a portfolio of ELL student work with analysis of student growth Develop appropriate formal and alternative methods of assessment for ELLs Develop lesson plans using effective teaching methodologies in planning and delivering instruction to meet the needs of ELLs Complete a culture sketch and mini- ethnography on an ELL to identify language proficiency and cultural influences on learning Use knowledge of culture and learning styles to plan and evaluate instructional outcomes Evaluate, modify and employ appropriate instructional materials for ELLs at all proficiency levels Evaluate instructional programs in ESOL based on current standards Reflect on and analyze current trends in ESOL Select and develop appropriate ESOL content according to ELL students’ level of proficiency Identify and implement strategies for using school, community and home resources Analyze ELL Case Studies View and discuss pd360.com segments for each course (See Appendix)6/ The District Plan sets forth the following under the heading “Completion Requirements”: The participant will satisfactorily complete all the appropriate courses needed for the endorsement. The successful completion of each required course will document that the participant has attained the competencies and skills addressed in and specific to the course. In order to complete a course successfully, a participant must: Complete a Pre/Post test or other valid measure to show at least 80% competency of the course objectives Complete all individual and group activities at a professional level of quality that demonstrates knowledge of the Florida Teacher Standards for ESOL Endorsement Complete all written assignments at a level that demonstrates competency of Domains 1-5 of the Florida Teacher Standards for ESOL Endorsement7/ Program Completion The participant must master 80% of the course objectives in order to complete the in-service component satisfactorily. In order to add the ESOL endorsement the participant must complete all five state approved ESOL in-service courses or the equivalent. The participant must complete all individual projects and assignments at the level of quality as stated in the objectives. The instructor will follow the criteria established for satisfactory completion. Upon completion of the required courses work, the Professional Development Director will certify the program completion. Competency Demonstration The participant must demonstrate successful completions of all competencies as outlined in the district master in- service components for each ESOL class included in the add-on endorsement program for the Florida Teacher Standards for ESOL Endorsement. The District Plan sets forth the following as a section under the heading, “Management”: Attendance requirement for in-service points Attendance is mandatory. All of the classes have a specific number of hours and participants must attend the required number of hours. Absences must be made up with the instructor or the ESOL Specialist. Excessive absences will result in the participant not satisfactorily completing the class. The Director and ESOL Specialist for Professional Development will determine what will happen with a participant in the event of an extreme emergency or serious illness causing excessive absentees [sic]. During the period relevant to this case, Brenda Wims was the Director of Professional Development. She was responsible for all in-service programs in the School District, including the ESOL program. As the ESOL specialist, Ms. Patterson worked directly beneath Ms. Wims in the hierarchy. Then there were 20 to 25 ESOL facilitators such as Mr. Hester, who delivered the in-service training for ESOL professional development.8/ Ms. Patterson testified that there was always a crunch at the end of the school year to obtain ESOL credits and that the bulk of the training pushed up against the June 30 deadline. Teachers came to her office as late as June 27 desperately seeking ESOL credits. Some teachers hadn’t even realized they were out of field for ESOL until near the deadline and they approached Ms. Patterson in a panic. Ms. Patterson testified that the Professional Development staff of the District did whatever was legitimately possible to ensure that teachers flagged for ESOL obtained the credits they needed to keep their jobs. Given the number of teachers caught by the ESOL requirement every year, Ms. Patterson had an enormous task to schedule sufficient ESOL courses for all of them. As the end of the school year approached and the desperate push for ESOL classes began, Professional Development would schedule additional courses and would shorten courses. The standard ESOL training program consisted of five separate courses, each covering one of the five “domains,” i.e., methods of teaching English to speakers of other languages; ESOL curriculum and materials development; cross-cultural communication and understanding; applied linguistics; and testing and evaluation of ESOL. Each course was worth 60 points. Those teachers needing 300 points were required to take all five classes. In recognition that there is some subject matter overlap among the ESOL courses, the District decided to implement a “hybrid” ESOL course as part of its effort to quickly move more teachers through the training. The facilitator of this course would offer all five class titles and the teachers taking the course would choose the title they needed. During the first half of each class session, the facilitator would teach the whole class the materials common to all ESOL courses. During the second half, the facilitator would offer differentiated instruction for each course title. Ms. Patterson testified that the typical ESOL class took ten to twelve weeks but that the hybrid class was shortened to six weeks. Ms. Patterson further testified that other “emergency” ESOL courses were shortened to six weeks. She was asked what “emergency” means and responded, “That means that we needed to offer more courses, so we added more that were not hybrid as well.” Section 1012.56(8), Florida Statutes, provides for a “cohesive competency-based professional development certification and education competency program” through which persons with bachelor’s degrees in majors other than education may become certificated teachers. This program is popularly called “alternative certification.” Ms. Patterson testified that the alternative certification coordinator approached Ms. Wims about adding an ESOL component so that new teachers entering the profession by way of alternative certification would satisfy the ESOL requirement without adding to the backlog of teachers needing separate ESOL certification. The District added an ESOL component to the alternative certification program. Another way of obtaining ESOL credit was through independent study. Foreign travel by a teacher could be counted as independent study if certain criteria were met, basically a certification that the teacher had been out of the country for five or more days and the filling out of an independent study form.9/ Teachers who were unable to attend ESOL classes due to professional or familial conflicts could seek permission to complete independent studies by performing the course work on their own time. Ms. Patterson stated that when she was a PDF teaching ESOL she conducted between 20 and 40 independent studies per year. After becoming the District’s ESOL specialist, she oversaw roughly 20 independent studies per year conducted by the trainers. Ms. Patterson testified that as a PDF she would record a teacher’s participation in an independent study course by marking him “present” at an ESOL class that she or another facilitator was teaching. This was strictly an administrative method of tracking the student, not a statement that the independent study teacher was physically present at the class to which his name had been attached. Ms. Patterson stated that she continued to follow this procedure after she became the ESOL specialist for the entire district. Teachers could also obtain credit for ESOL courses they took in college. This credit was not automatically attached to a teacher’s record but required submission of a written request and an official transcript. A similar credit was available to teachers who obtained in-service ESOL credit during employment in another Florida school district. Finally, a teacher could obtain ESOL certification by passing an examination.10/ At the hearing, Mr. Hester contended that there was an “alternative delivery” method by which teachers could obtain ESOL credits at the discretion of the PDF by demonstrating their ESOL knowledge and skills. The School Board denied that this was ever an option for obtaining ESOL credit. Mr. Hester’s qualifications and experience In 1998, after four years as a classroom teacher in Duval County, Mr. Hester became a PDF working with the District’s Professional Development Cadre, which mentored novice and “needs assistance” teachers and implemented the District’s master plan for in-service education.11/ During his time in Cadre, Mr. Hester estimated that he trained between 3,000 and 4,000 new teachers through the District’s Mentoring and Induction for Novice Teachers (“MINT”) program. He trained teachers who had majored in education as well as alternative certification teachers. Mr. Hester was chosen to redesign the alternative certification to include the ESOL component. After Mr. Hester completed the redesign in 2010, teachers finishing the alternative certification program would receive 120 master plan points for ESOL, in the areas of testing and evaluation and cross cultural communication. In addition to training teachers in the alternative certification program, Mr. Hester became a trainer of trainers in the program. In 1998, Mr. Hester became state certified in the Florida Performance Measurement System, which qualified him to train administrators on how to observe and evaluate teachers. In 1999, he also became state certified in Clinical Educator Training, which further refined his training in the observation and evaluation of classroom teachers and helped him to develop strategies to improve the teachers’ performance. Mr. Hester was also a trainer in Clinical Educator Training, another observational tool used informally to coach teachers. In 2003, Mr. Hester was chosen to receive two weeks of intensive training in the America’s Choice program, a method for implementing standards-based education. Mr. Hester described the standards-based program as founded on the principle that all students can learn the same information and reach a uniform standard of achievement but that some students take longer and need more assistance to reach the goal. The “critical attribute” of standards-based education is differentiated instruction, whereby faster learners may move at their own pace while the lower achieving students receive remedial support from the teacher. Mr. Hester’s specialized training led to his appointment as a District standards coach from 2003-2007. As standards coach, Mr. Hester held workshops, coordinated breakout sessions on early release days, and created pamphlets setting forth pre-planning activities, among other duties. Former Fletcher principal Dane Gilbert described standards coach as an especially tough position in terms of “ruffling feathers” among the teaching staff. From 1998 through 2009, Mr. Hester served as an adjunct professor in the College of Education and Human Services at the University of North Florida. He taught several courses that included ESOL instruction. Mr. Hester testified that this college level teaching experience was one reason the District brought him into the ESOL program as a trainer. In addition to his redesign of the alternative certification program, Mr. Hester was also the author of the hybrid ESOL course. For a time he was the only PDF teaching the hybrid course because he was one of the few trainers in the District qualified to train teachers in all five ESOL subject areas. Mr. Hester testified that his development and teaching of the ESOL course gave him a reputation as the “trainer of last resort” for the School District. This reputation was enhanced by his willingness to work through holidays to assist desperate teachers in completing their ESOL requirements. From 2007 until his termination, Mr. Hester served as Fletcher High School’s PDF and instructional coach. As such he helped generate the school improvement plan, part of which involved coordination of Professional Learning Communities (“PLCs”). PLCs are a facilitated collaborative effort among teachers to improve instruction, including the preparation of lesson plans and development of teaching strategies. The 28 or so PLCs at Fletcher were organized according to academic subject or administrative duty such as “guidance” or “leadership.” As Fletcher’s PDF, Mr. Hester was also involved in the adoption of the requirement that teachers develop “lesson design notebooks.” These notebooks were more complex than simple lesson plans in order to enable the teachers to document everything happening in the classroom in terms of standards based education and the “Florida Educator Accomplished Practices” found in Florida Administrative Code rule 6A-5.065. The lesson design notebooks were used for evaluative purposes by the school administration. Mr. Hester attended the various PLC meetings and assisted the PLCs with teaching issues. Each PLC at Fletcher had a PLC binder placed in the front office. The documents generated at PLC meetings would be routed to Mr. Hester for his review and for retention in the binders. As the PDF, Mr. Hester was assigned to work with low performing “needs assistance” teachers to improve their performance. Mr. Hester was also the Advanced International Certificate of Education (“AICE”) program coordinator. AICE is a diploma program created by Cambridge University. As program coordinator, Mr. Hester worked closely with top students and their teachers. Mr. Hester was also Fletcher’s main data analyst as regards student and teacher performance. ESOL endorsements Of the two allegations that the School Board pursued at the hearing, the more serious was that Mr. Hester “repeatedly provided ESOL endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes.” The School Board asserted that Mr. Hester falsified ESOL documents by marking independent study participants “present” in classes they did not physically attend. Mr. Hester did not dispute that he accounted for the work performed by his independent study students by marking them present on attendance sheets for ESOL classes that Mr. Hester or another PDF was teaching. He testified that this was the method by which the District instructed him to account for his independent study students and was the method he had used since 1998. Mr. Hester’s testimony was corroborated by that of Ms. Patterson, who testified that she used the same method of recording the participation of teachers who were taking ESOL courses via independent study. See Finding of Fact 20, supra. Class rosters produced at the hearing confirmed that Ms. Patterson used this method. Ms. Patterson testified that this method of accounting for independent study was in place when she began teaching ESOL and was used throughout her years of teaching ESOL.12/ Both Mr. Hester and Ms. Patterson credibly testified that they had no intent to falsify District records. They were simply employing the record keeping method they had learned from other District personnel. The School Board has failed to demonstrate that Mr. Hester falsified ESOL documents merely by recording independent study participants present in classes they did not physically attend. The genuine controversy surrounds the assertion by several Fletcher High School teachers that Mr. Hester gave them credit for ESOL courses for which they had performed no work at all. Some of these teachers testified that they were unaware Mr. Hester had given them ESOL credits and only learned of receiving the credits during the course of the School Board’s investigation of Mr. Hester.13/ Mr. Hester contends that he never gave anyone credit for doing nothing. He claims that each of these teachers, in one way or another, earned independent study credit within the scope of discretion allowed him by the District until January 23, 2013. On that date, Ms. Patterson sent Mr. Hester an email titled “ESOL Independent Study other than ESOL Foreign Travel.” The body of the email was blank but it contained the following attachment: ESOL Independent Study other than ESOL Foreign Travel This is decided on a case by case basis and must be approved by Brenda A. Wims Director [sic] of Certificated/Non-certificated personnel for Professional Development and Kella Grant, Supervisor of Certification. All assignments must be submitted to the trainer who will then submit the completed work to Karen L. Patterson, ESOL Specialist for Professional Development. The request must meet the following Criteria: Classes are not open for Registration and termination is within a short period of time Death/illness of family member Illness that requires treatment or hospitalization of participant Cross content conflicts (Reading/ESOL) Participant assigned Summer School during the Summer course offerings and realizes after the fact that they have not satisfied their out of field status and a replacement is not available and this situation is verified by a Human Resources Administrator/Principal You must be able to complete the assigned task and meet with the ESOL Specialist for Professional Development, Diversity Specialist for Professional Development or Brenda A. Wims Brenda A. Wims, Director Karen L. Patterson, ESOL Specialist Mr. Hester testified that when he received this email, he understood it as an instruction to change the way he was handling independent studies. He was taken aback by the change, but thenceforth conformed his actions to the new instructions. The School Board denies that the scope of discretion granted to PDFs to award independent study credit was ever as broad as Mr. Hester claims and that the January 23, 2013, email was simply a restatement of longstanding District practice of which Mr. Hester was well aware. However, Ms. Patterson conceded that the purpose of the email was to clarify the policy to all the District’s trainers because some of them may have understood they could do things differently. Ms. Patterson’s testimony is that she “probably” sent the email to all of the District’s trainers, or “probably” provided it to them at a meeting. However, the record evidence shows Mr. Hester as the only recipient of the email, and shows that he received it at about the same time as the District received the anonymous letter that set in motion the investigation of Mr. Hester. As noted in Finding of Fact 23, supra, Mr. Hester claimed authority to award independent study ESOL credit via an “alternative delivery method” or “differentiated instruction.” The alternative delivery method involved Mr. Hester’s assessment of the teacher’s overall competence and his determination that the teacher had ESOL competency and had satisfied the ESOL course requirements despite not sitting for the ESOL classes. The School Board denied that any PDF was, or ever would be, given such broad discretion to award ESOL credit without completing any coursework. Mr. Hester testified that when he began teaching ESOL in 2008, he would go to Ms. Patterson for approval of ESOL independent study projects. Ms. Patterson at length told Mr. Hester and several other trainers that they were aware of the criteria for independent study established by Ms. Wims: the teacher must either have extraordinary family obligations or school duties that prevent her from taking the evening ESOL classes offered by the District. Mr. Hester testified that Ms. Patterson told him that she trusted him to make the call on an independent study project. Ms. Patterson told him that the teachers must meet the expectations of the ESOL course. As the subsequent findings indicate, Mr. Hester believed that in this conversation Ms. Patterson had authorized him to award ESOL credits to teachers who had demonstrated proficiency in the subject matter of the ESOL courses, even where the teachers did not actually perform any course work. This was the source of Mr. Hester’s “alternative delivery” method of obtaining ESOL credit disclaimed by the School Board. Ms. Patterson testified that she did not have the authority to authorize independent study projects, let alone delegate such authority to Mr. Hester. She conceded that she was the trainers’ conduit to Ms. Wims and that she may have relayed Ms. Wims approval of independent study projects to Mr. Hester in a way that gave him the impression that it was Ms. Patterson granting the approval. However, Ms. Patterson denied saying anything that would make Mr. Hester reasonably believe he could award ESOL credit to a School Board employee simply for being a good teacher. Supporting the testimony of Ms. Patterson and undercutting that of Mr. Hester is the fact that Mr. Hester did seek permission, via a June 10, 2011, email to Ms. Patterson, to complete an independent study with seven teachers who were making multicultural presentations at pre-planning. Mr. Hester claimed that Ms. Patterson gave him permission to do the independent study, though Ms. Patterson testified that she could not recall whether Ms. Wims approved. Mr. Hester testified that he asked permission to perform this independent study because it fell outside the scope of the criteria established by Ms. Wims, i.e., extraordinary family obligations or school duties. The School Board reasonably asks: if Mr. Hester admits that he needed to ask permission to conduct an independent study outside the scope of normal parameters, how can he claim the unilateral authority to award ESOL credit for “independent studies” involving no ESOL coursework whatever? The question points to a logical disconnect that Mr. Hester never adequately explained. Even if the undersigned is persuaded that Mr. Hester honestly believed he had the authority to award ESOL credit to “phenomenal” teachers on their personal and professional merits alone, there remain the questions of whether that belief was reasonable, what impact his unreasonably held belief had on the integrity of the District’s ESOL certification program, and whether Mr. Hester’s effectiveness as a teacher in the District has been irredeemably damaged. Other evidentiary elements support Mr. Hester’s version of both Ms. Patterson’s power to authorize independent study projects and the flexibility of the District’s policy of always requiring ESOL coursework for ESOL certification. An email chain in December 2011 involves Mr. Hester’s proposed independent study project for a teacher named Matthew Tracy. In one of the emails, dated December 7, 2011, and addressed to Mr. Tracy, Ms. Patterson, and the District’s Supervisor of Certification, Kella Grant, Mr. Hester wrote: “With Karen Patterson’s permission, I can work with Mr. Tracy and do an ‘independent study’ with the 2 classes in question and do it with him over the break.” The subsequent emails in the chain establish that Mr. Tracy received permission to complete the independent study with Mr. Hester. Ms. Wims is not named in or copied on any of the emails in the chain. Ms. Patterson testified that she conveyed the request to Ms. Wims and then conveyed Ms. Wims’ approval of the project to Mr. Tracy, but no written evidence of any involvement by Ms. Wims was provided at the hearing. Ms. Patterson did not explain why she failed to correct Mr. Hester’s statement that he was seeking “Karen Patterson’s permission,” or why Ms. Grant’s subsequent email appears to accept at face value that Ms. Patterson is indeed the person from whom Mr. Tracy should obtain permission for his independent study project. As to the strictness of the ESOL classwork policy, Mr. Hester pointed out that there was precedent for independent study projects outside of that parameter. In an email dated July 23, 2011, a teacher named Dayle Timmons wrote to Ms. Patterson as follows: I have recently been tagged for ESOL classes. I have 3 years before retirement and have been teaching ESE for 40 years. I figured I would retire before I got tagged—- after all these years. Anyway, as I have been thinking about taking the classes I have been wondering if there is a better way to use my time . . . . As you may know, Chets Creek [Elementary School] has opened a tutoring service at Portside, the 1000 home trailer park that is part of the Chets school zone. Teachers volunteer their time for one day a week for two hours to tutor. There are also other things going on through an agrrement [sic] between Portside[,] the school and Beach United Methodist church. Teacher [sic] also volunteer with Second Harvest once a month to deliver food, some are part of the Rising Tide which is a Sunday School that meets on Saturdays, etc. There’s a lot going on over there and certainly has given teachers that are involved an insight into the children that we serve that has never been possilbe [sic] before. We identified that community because it is where most of our lowest quartile, ESE and behavior problems live. It is also where most of our second language kids live. I am wondering if instead of taking a course, it would be possible to count the tutoring and service as a practicum instead. I’m thinking reading some text and identifying some specific strategies for second language students might be part of the course with data on how the strategy worked or anecdotal notes or something along those lines. As I was thinking about my own need and doing an independent study, I wondered about the bigger Chets community—- many of whom were not able to volunteer last year because they were already committed to taking an ESOL course. Do you think there is a possibility that we could work something out? Ms. Patterson testified that the District’s Professional Development office approved giving the Chets Creek teachers ESOL credit for the tutoring activities they were already performing. Eventually eight to ten teachers at Chets Creek were able to obtain credit for all five ESOL courses. Ms. Patterson conceded that this project did not meet the usual criteria for an independent study, but justified the credits because the teachers were teaching reading and math using ESOL manuals and strategies. When pressed, she allowed that a teacher in any classroom could deploy the same ESOL strategies as those used by the Chets Creek teachers. Christine Andrews has been a teacher at Fletcher since 2002. She teaches AP statistics and AP calculus. On March 16, 2012, Ms. Andrews and several other teachers received an email from Mr. Hester stating, “Please see me ASAP regarding your out of field status.”14/ Ms. Andrews immediately responded with an inquiry as to how she was out of field, to which Mr. Hester just as quickly responded, “ESOL.” Ms. Andrews was puzzled because she believed that her undergraduate program at the University of North Florida had included an ESOL component sufficient to satisfy the 60-hour requirement for a high school math teacher. Mr. Hester, who taught as an adjunct professor at UNF, testified that students at the university had been given the impression that their ESOL classes automatically gave them ESOL credit upon entering the profession and that they were often upset to learn this was not the case. Mr. Hester stated that it is up to the teacher to bring her college transcripts to the District ESOL office to obtain approval. The course Ms. Andrews took at UNF was titled “Teaching Diverse Populations.” Mr. Hester testified that UNF ran into trouble by telling students that this course satisfied ESOL requirements for all school districts in the state. In fact, UNF had not cleared the course with the Duval County School Board. Mr. Hester stated that there was a period of about three years, coinciding with Ms. Andrews’ attendance at UNF, when students wrongly believed that they would receive automatic credit for this course. Ms. Patterson confirmed that ESOL credit for college courses was not automatic. She stated that teachers are required to submit their college transcripts and seek credit from the District. Later on March 16, 2012, Ms. Andrews sent Mr. Hester an email stating that she had spoken to Natosha Earst-Bailey in the District’s Certification department. Ms. Earst-Bailey told Ms. Andrews that her 60 ESOL hours were showing on the computer and she should not have been flagged as out of field. Ms. Earst-Bailey suggested that Ms. Andrews provide her transcript to Mr. Hester so that the records at the school level would jibe with those of the district, as well as provide a copy to Ms. Patterson at Professional Development. Ms. Andrews did not provide her transcript to the school. It was left to Mr. Hester to press the issue of obtaining credit for her college work. In May 2012, Mr. Hester followed up on Ms. Andrews’ claim that she should already have the required ESOL credits and should not be considered out of field. On May 1, he sent emails to Ms. Earst-Bailey and Ms. Patterson requesting a review of Ms. Andrews’ UNF credits for possible ESOL credits. In his email to Ms. Earst-Bailey, Mr. Hester stated, “Also, I attached her points and she has 60 for Cross-cultural and has the paperwork for 60 hours earned at UNF.” On May 2, Ms. Patterson notified Mr. Hester that Ms. Andrews had been approved for the required credits. For purposes of this case, the credits claimed for the UNF class were uncontroversial. However, the School Board’s investigation of Mr. Hester raised the question of whether Ms. Andrews should have received “60 [points] for Cross-cultural” as claimed by Mr. Hester, because it appeared that Ms. Andrews had never taken a Cross-Cultural ESOL course. At the hearing, Ms. Andrews was shown the attendance sheet for a Cross-Cultural ESOL class that Mr. Hester taught from July through September 2011. The chart indicates that Ms. Andrews was present for every one of the twelve class sessions. Ms. Andrews testified that she did not attend any of the class sessions. Given the District’s method of tracking independent study students, it would not be unusual for a teacher’s name to appear on a class roster although the teacher was not physically present for the class. The problem for Mr. Hester is that Ms. Andrews testified that she did not take an independent study course from Mr. Hester or anyone else during that period. She testified that she knew nothing about this course or of having received credit for it until June 2013, when she was questioned during the School Board’s investigation of Mr. Hester. She had no memory of discussing her ESOL credits, or lack thereof, with Mr. Hester in 2011. Mr. Hester testified that Ms. Andrews had been adamant that her college work exempted her from taking ESOL courses, and was furious when Mr. Hester explained what she had to do get “in field.” Mr. Hester stated that he did not do many independent studies and that he chose them on a case by case basis. He testified that Ms. Andrews was “a phenomenal teacher” with a “fantastic rapport” with her students, who topped the state in AP statistics and calculus scores. However, she became very difficult when Mr. Hester relayed the news that she might not get credit for her “Teaching Diverse Populations” class at UNF. Mr. Hester stated that they sat down and discussed her situation. Ms. Andrews fretted that she would lose her job. Mr. Hester told her it was too late to enroll in an ESOL course, but that he would work with her on an independent study.15/ Mr. Hester testified that this was a “very, very rare occurrence” because Ms. Andrews did not meet the criteria established by Ms. Wims for independent study, i.e., she had no family obligations or school duties that ruled out attendance at a regular ESOL course. He testified that when he wanted to undertake an independent study for reasons outside of Ms. Wims’ criteria, he usually called Ms. Patterson for permission and that he "probably" did so in the case of Ms. Andrews. Ms. Patterson did not testify as to her recollection of a conversation with Mr. Hester about an independent study for Ms. Andrews. She clearly testified that she had no authority to authorize Mr. Hester’s independent study proposals. At most, she forwarded the proposals to Ms. Wims and relayed Ms. Wims’ decisions to Mr. Hester. Mr. Hester believed that losing Ms. Andrews would be a “major loss to education” and decided to pursue an independent study with her, employing the “alternative delivery” method, despite the fact that she did not meet the standard criteria for an independent study. He looked at everything he knew about Ms. Andrews as a teacher: the quality of her teaching, her extensive PLC work, her lesson design notebook, his classroom observations of and discussions with Ms. Andrews. He was familiar with the content of the course she took at UNF because he taught the course, and he took that course into account. Mr. Hester talked with ELL students to confirm that Ms. Andrews was using ESOL strategies to communicate with her students. Mr. Hester testified that by taking all of these factors into account, he was able to determine that Ms. Andrews met the competencies of the Cross-Cultural ESOL class for which he gave her credit. When pressed during cross examination, Mr. Hester conceded that Ms. Andrews did not perform an independent study16/ and did not receive any instruction from Mr. Hester to receive the 60 ESOL points for which she was credited. What did she do? Mr. Hester stated as follows: We looked at the PLC information, the binders and the information that she had, and embedded in those were the assessments, were the strategies, were the lesson plans, were the student strategies, all those areas, also, with her lesson design notebook, which included her lesson plans, her specific students with the strategies needed, so on and so forth. And I remember being in Ms. Andrews’ classroom at least once for observation. In other words, Ms. Andrews performed no classwork or dedicated work of any kind to obtain credit for Cross-Cultural ESOL. Mr. Hester believed that he was authorized to award ESOL credits based on the teacher’s competence and the quality of her teaching, provided the teacher in question was “phenomenal.” He believed that Ms. Andrews was qualified to receive the ESOL credits and stated that he had no intent to mislead anyone as to how Ms. Andrews received the credits. Mr. Hester testified that he was “confused” that Ms. Andrews claimed she knew nothing of the ESOL credits until the investigation in this case commenced. He stated that Fletcher’s computer system allowed teachers to view their transcripts and course credits and that Ms. Andrews could have accessed her records at any time. Julie Durden graduated from UNF in 2004 with a degree in English and American Sign Language (“ASL”) and had taught at Fletcher since 2004. She met Mr. Hester when she was taking alternative certification courses from him, and knew him thereafter in his role as PDF at Fletcher. Ms. Durden testified that prior to the 2013-2014 school year she taught ASL to hearing students and did not have any ELL students in her classes. In the 2013-2014 school year she was switched to teaching English. Ms. Durden stated that she was first flagged as out of field for ESOL during the 2013- 2014 school year, although documentary evidence presented at the hearing indicated that Mr. Hester sent Ms. Durden an email regarding her out of field status on March 16, 2012.17/ At the hearing, Ms. Durden was shown the attendance sheet for the Cross-Cultural ESOL class that Mr. Hester taught from July through September 2011, the same attendance sheet that had Ms. Andrews’ name on it. Ms. Durden is listed as attending all but one of the twelve class sessions. Ms. Durden testified that she did not sign up for this course, did not attend the classes, and performed no independent study to qualify for ESOL credit in this class. Ms. Durden stated that she knew nothing of receiving credit for this class until she was interviewed during the School Board’s investigation of Mr. Hester. Mr. Hester testified that Ms. Durden first came to him during the 2011-2012 school year, when he notified her that she was out of field. She did not believe she needed ESOL because she was teaching ASL, but Mr. Hester informed her that she needed 60 hours of credit. It was late in the semester, too late to sign up for an ESOL class, and she did not know what to do. Mr. Hester testified that he would be willing to look at Ms. Durden’s activity in establishing “Challenge Day” at Fletcher and at her pre-planning activities during the 2010-2011 school year as equivalents under his “alternative delivery” independent study method. “Challenge Day” was a national program that Ms. Durden imported to Fletcher. It is a three-to- four-day program on diversity, designed to break down barriers between students, eliminate cliques and bullying, and create a safe environment for all students. The program was such a success at Fletcher that it spread to every high school in Duval County. Ms. Durden testified that she put in a lot of work to establish and maintain the Challenge Day program. She conceded that there may be some subject matter overlap between Challenge Day and ESOL, but could not fathom how her Challenge Day activities could be considered a substitute for an ESOL class because they have nothing to do with teaching strategies for ELL students. She denied that Mr. Hester ever told her she could get ESOL credit for running Challenge Day at Fletcher. She did admit that Mr. Hester reviewed her lesson design notebook, though she assumed he did so in his role as Fletcher’s instructional coach. Ms. Durden testified that pre-planning in-service courses are organized for teachers to attend during the week before the school year begins. She stated that she helped with the training on one occasion, but that Mr. Hester never told her that she could get ESOL credit for helping with the pre-planning in-service training. She had no idea whether Mr. Hester had received permission to give her ESOL credit for her Challenge Day or pre-planning in-service activities. Mr. Hester testified that Challenge Day is “all Cross Cultural ESOL” because it “breaks down barriers of bullying, you know, racism, and sexism, and everything.” He stated that he told Ms. Durden that she did not have to attend the Cross Cultural ESOL class, that he would “take care of it.” They talked about the work she had done for Challenge Day and pre- planning and how that work equated to the expectations of the ESOL course. As noted above, Ms. Durden denied that any such conversation occurred. Mr. Hester testified that he had a telephone discussion with Karen Patterson about the extent to which preparations for Challenge Day could satisfy the requirements for Cross Cultural ESOL. He stated that Ms. Patterson told him that, “In the end, does what they do meet the expectations of the course?” Mr. Hester could produce no written memorandum to confirm this conversation. Ms. Patterson was not specifically asked about Challenge Day, but denied having any conversation that could be construed as giving Mr. Hester permission to award ESOL credit via his “alternative delivery” method. At the time of the hearing, Sherry Murrell was in her tenth year as a geometry and intensive math teacher at Fletcher. Ms. Murrell’s name appears on the class roster for the same 2011 Cross Cultural ESOL class that included the names of Ms. Andrews and Ms. Durden. She is listed as attending each of the twelve class sessions. Ms. Murrell testified that she had completed all of her ESOL requirements in June 2005. She was not out of field in 2011 and had no need to take an ESOL course. She stated that she was in Mr. Hester’s office one day when he asked her to attend one of his courses. She told him she didn’t need professional development points. He replied that she just needed to say that she sat in the class. She told him that she needed to be in her classroom and couldn’t be in two places at once. Mr. Hester persisted. At that point, Ms. Murrell needed to leave to pick up her own children and told Mr. Hester, “Sure, whatever,” on her way out the door. Ms. Murrell testified that she did not sign up for or attend the 2011 ESOL class. She did not complete an independent study for the course credit. She did not learn she was on the attendance sheet until a School Board investigator contacted her in June 2013. Ms. Murrell’s name also appears on an attendance sheet for an ESOL Curriculum & Materials course that Mr. Hester taught from January to April 2012. The sheet indicates that she attended eleven out of twelve class sessions. Ms. Murrell testified that she did not attend this course or perform any independent study activities for this course. Again, she only learned that her name was on the attendance sheet from the School Board investigator. Ms. Murrell testified that about a week and a half before the investigator came to the school, a student delivered to her a manila envelope containing a completed “course activities checklist” for an ESOL Curriculum & Materials class taught during Spring 2012 and for a Hybrid ESOL class taught in Spring 2012. Both documents were signed by Mr. Hester and dated April 3, 2012. These are the documents that a course instructor completes to verify that a teacher has satisfactorily completed all the required activities in a given ESOL course. Ms. Murrell testified that she did not take either of these courses. At lunch that day, Mr. Hester asked Ms. Murrell if she had received the envelope and she said yes. He said nothing more about it, and Ms. Murrell gave it no more thought until the investigator arrived. She provided the investigator copies of the checklists. Ms. Murrell recalled another conversation with Mr. Hester about an ESOL class in which he told her she went “above and beyond” the course requirements. Ms. Murrell testified the conversation went as follows: I said I didn’t sign up for that class. He’s like, Well, I can make it an independent study. I was like, You can do that? And he said, Yes. And I’m like, Well, isn’t there some course work that I have to do online? He’s like, No, don’t worry about it. You’ve gone above and beyond. He goes, You’ve met all the criteria. When Ms. Murrell protested that there must be something she needed to turn in to show the course work, Mr. Hester responded that she shouldn’t worry about it. He would make it an independent study and take care of everything. Mr. Hester testified that Ms. Murrell was one of the rare “phenomenal” teachers who merited ESOL credit for the quality of her teaching. He recalled Ms. Murrell telling him that she had learned it was possible to “bank” ESOL points, meaning that extra ESOL points may be carried over and applied to a teacher’s next recertification period. Ms. Murrell expressed a desire to take ESOL courses for banking purposes but was unable to do so because she had two young children at home. Mr. Hester testified that he told Ms. Murrell, “Well, Sherry, with what you're doing at Fletcher, we could be able to show that you have competency in this course.” He denied ever telling Ms. Murrell that she should tell people she sat in one of his classes. Mr. Hester testified that he sent the completed course checklist to Ms. Murrell in April 2013 at her request. She was concerned about the ongoing investigation and was worried because she couldn’t find the checklist sheet that proved she had completed the competencies for the class. She asked Mr. Hester for another checklist sheet and he provided it via interoffice mail. Mr. Hester stated that he could not understand why Ms. Murrell would deny knowing about the ESOL class attendance sheets. Mr. Hester described Ms. Murrell’s qualifications for the ESOL credit as very similar to those of Ms. Andrews with the addition of extensive pre-planning training. Ms. Murrell also performed teacher trainings for Compass Odyssey, a proprietary program used by the School Board, and testified that she never missed a PLC. Her lesson design notebooks were “overflowing.” Mr. Hester believed that Ms. Murrell easily met the substantive criteria for obtaining the ESOL credits he awarded, despite her never taking a course or an active independent study program from him. Mr. Hester clearly remembered asking Ms. Patterson for permission to do an independent study with Ms. Murrell. Heather Kopp graduated from UNF in 2006 and started teaching at Fletcher in 2007. After two years she transferred to Mandarin High School. She returned to Fletcher two years later. Ms. Kopp testified that she took ESOL courses as an undergraduate at UNF and was told she needed no further ESOL courses. Ms. Kopp later received an out of field notice. She contacted the District office and explained that at UNF she had performed a 50-hour internship and wrote a case study to fulfill her ESOL requirements. The District awarded her the ESOL credit. Ms. Kopp testified that she has taken no ESOL courses since graduating from UNF. At the hearing, Ms. Kopp was shown the attendance sheet for a Methods of Teaching ESOL course taught by Mr. Hester from January to March 2009. Ms. Kopp is listed as present at every session of the course. Ms. Kopp testified that she did not sign up for the class, did not attend the class, and did none of the course work or independent study work toward obtaining credit for the class. Ms. Kopp was also shown the attendance sheet for an ESOL: Curriculum & Materials class taught by Mr. Hester from January to March 2010. Ms. Kopp is listed as present at every class session. Ms. Kopp testified that she did not sign up for the class, did not attend the class, and did none of the course work or independent study work toward obtaining credit for the class. Ms. Kopp testified that she first learned of her purported participation in these classes during the School Board’s investigation in this case. Mr. Hester testified that Ms. Kopp came to him because she was out of field and didn’t know what to do. Her husband worked in the evenings and she had two small children and could not attend evening ESOL courses. Mr. Hester obtained permission to work with Ms. Kopp on an independent study. At the time of the courses, Ms. Kopp was working at Mandarin High School but lived near Fletcher, where Mr. Hester taught the courses. Mr. Hester gave Ms. Kopp access to the course online. She independently performed all of the course work and left the written work in Mr. Hester’s mailbox at Fletcher. Mr. Hester testified that Ms. Kopp performed all of the course work in both of the ESOL classes for which he gave her credit. Ms. Kopp denied working with Mr. Hester on independent study classes in 2009 and 2010. She did not recall telling Mr. Hester about her husband or her children making it hard for her to attend evening classes. Ms. Kopp did recall telling Mr. Hester that she had satisfied her ESOL requirements at UNF. Catherine Johnson teaches English at Fletcher. She started at Fletcher in 1998. She took a two-year leave of absence that ended with her return to Fletcher on December 1, 2008. At the hearing, Ms. Johnson was shown the attendance sheet for an ESOL: Curriculum & Materials course taught by Mr. Hester from January through March 2009 at Fletcher. The sheet indicates that Ms. Johnson attended all but one of the nine class sessions. Ms. Johnson testified that she did not attend the class, did not sign up for the class, did no course work for the class and performed no independent study in relation to the class. Ms. Johnson was also shown the attendance sheet for a Cross-Cultural ESOL course taught by Mr. Hester from January to April 2011. Ms. Johnson testified that she had nothing to do with this course. Ms. Johnson recalled that in December 2010 she received an out of field notice for ESOL. She talked to Mr. Hester about it, telling him that she was not sure exactly which ESOL class she needed to take. Mr. Hester consulted with Ms. Patterson, who wrote to him that Ms. Johnson needed part 2 of Cross-Cultural Communications to complete her ESOL endorsement. Mr. Hester passed this news along to Ms. Johnson. Ms. Johnson asked Mr. Hester what she needed to do to complete the ESOL endorsement. Mr. Hester told her just to consider it independent study. He handed her two discs to download to her computer in case of an audit. Ms. Johnson testified that she tried to download the disks but either they were defective or she was doing something wrong. She brought them back to Mr. Hester and asked him to come to her classroom and try to download them to her laptop. Mr. Hester took the disks from her and told her that he knew her reputation as a classroom teacher. Ms. Johnson was a quality instructor and had fulfilled the requirements of part 2 of the Cross-Cultural Communications course. Ms. Johnson stated that because Mr. Hester was her PDF, she took him at his word. She did no work for the ESOL course. Ms. Johnson testified that Mr. Hester later made reference to having done her a “favor.” The reference was not specific, but she believed he was referring to having given her the ESOL credit. She stated that Mr. Hester also alluded to having done “favors” for Heather Kopp. She did not pursue the issue with Ms. Kopp because she didn’t want to make her uncomfortable. Mr. Hester testified that Ms. Johnson was the third of the three “phenomenal” teachers who received ESOL credit because of the quality of their teaching. He stated that Ms. Johnson came to him “in rather of a panic” after being notified she was out of field. Mr. Hester testified that he was very familiar with her work, having taken “needs assistance” teachers to her classroom to see how it is done. He knew her PLC work and was familiar with her lesson design notebook. Mr. Hester stated that he gave Ms. Johnson the syllabus for the Cross-Cultural ESOL course and told her that she could either come to the class or he could look at her lesson design notebook and her work in the PLCs and see how well these items met the course criteria for the class. He testified that Ms. Johnson was very happy to see that her classwork satisfied all of the requirements of the ESOL class syllabus and that she would be able to obtain her endorsement. Mr. Hester was certain that he and Ms. Patterson discussed Ms. Johnson’s situation and that Ms. Patterson okayed the independent study option in her case. Mr. Hester agreed that he did not give Ms. Johnson any work to do. He denied giving her discs or CDs to download into her computer. There was no need to do so because all of the course materials were on the District website. He gave her the course syllabus for Cross-Cultural ESOL and told her she could use that as documentation if she needed it. He denied giving her the syllabus “in case of an audit.” He gave her the syllabus because she asked for documentation of the course. Mr. Hester testified that he wasn’t “giving” anything to Ms. Johnson. She earned the ESOL credit because of the extra work she did with the PLC groups, her status as an AICE, her lesson design notebook and his observations with her in the classroom and the PLCs. At the time of the hearing, Josh Corey had been a teacher at Fletcher for twelve years. He teaches leadership and physical education and also serves as the head football coach, assistant athletic director and student activities director. Mr. Corey testified that he had known Mr. Hester for fifteen years, since they taught together at Fletcher Middle School. Mr. Corey testified that he was up for recertification in 2013 and looked up his records. He was surprised to see that he had five ESOL courses, or 300 hours, to his credit. He believed that he only had 180 hours, and was puzzled by the last two courses he was credited with completing in 2011. Mr. Corey was shown the attendance sheet for a Methods of Teaching ESOL course taught by Mr. Hester from April to June 2008 and agreed that he attended the class and did the course work. Mr. Corey was shown the attendance sheet for an ESOL: Curriculum & Materials course taught by Mr. Hester from January to March 2009 and agreed that he did independent study work through Mr. Hester for this course. Mr. Corey was coaching softball at the time and was unable to physically attend the class. Mr. Hester told him that he was approved through the District to do an independent study. Mr. Hester gave Mr. Corey the readings and assignments and Mr. Corey did the work on his own time. Mr. Corey was shown the attendance sheet for an Empowering ESOL Teachers course taught by Mr. Hester during July 2010. Mr. Corey testified that he did not physically attend the class but he performed an independent study through Mr. Hester. He was allowed to do independent study for this course because he was teaching drivers’ education and working at the school during the summer. Mr. Corey testified that the 2009 and 2010 courses were the only independent study courses he ever took from Mr. Hester. He was shown the attendance sheet for an ESOL: Applied Linguistics course taught by Mr. Hester from January to April 2011 and the attendance sheet for a Cross-Cultural ESOL course taught by Mr. Hester on different nights during the same period. Mr. Corey’s name (along with the name of his wife, Michelle Corey, a kindergarten teacher at Seabreeze Elementary) appeared on the sheets for both classes. Mr. Corey testified that he did not attend either of the 2011 classes. He was coaching softball during this time and could not have attended classes either after school or in the evening. He did not sign up for the courses and could not recall having any discussions with Mr. Hester about them. He only learned that he had been credited for the courses when he pulled his points for recertification in October 2013. Mr. Hester testified that Mr. Corey wanted ESOL points for banking purposes. Mr. Corey’s wife, Michelle, had come back into teaching after taking time off to have a child and also needed ESOL courses. They had a problem because Mr. Corey coached in the evenings and they had two small children. Therefore, Mr. Hester allowed them to do independent studies and turn in their work in the same fashion Ms. Kopp had. Mr. Hester testified that the work was turned in with both Coreys’ names on it. He assumed they collaborated on the work and gave them both credit. Mr. Hester stated that collaboration was encouraged in the ESOL independent studies because it mimicked the sharing of activities and experiences that goes on in the ESOL classroom. Mr. Hester agreed that Mr. Corey did not attend the 2011 ESOL classes, but stated that the Coreys did the work independently. He assigned them all of the activities and readings they would have done in the class, and they submitted the completed work to him.18/ Andrew Davis testified that he went through the alternative certification program, finishing at the end of his third year of teaching in 2010. He taught intensive reading from 2008 through spring 2013, then switched to physical education. He is a football coach. Mr. Hester was the instructor for Mr. Davis’ alternative certification course and acted as a mentor to Mr. Davis as he began his teaching career. At the hearing, Mr. Davis was shown attendance sheets and/or completion reports for the following classes: Methods of Teaching ESOL, taught by Mr. Hester from January to March 2009; Empowering ESOL Teachers, taught by Mr. Hester during July 2010; ESOL: Applied Linguistics, taught by Mr. Hester from January to April 2011; Cross-Cultural ESOL, taught by Mr. Hester from January 2011 to April 2011; and ESOL: Curriculum & Materials, taught by Mr. Hester in spring 2012. Mr. Davis testified that he did not attend any of the classes in the 2009 Methods of Teaching ESOL, despite his being marked present for each of the nine class sessions. He testified that he performed an independent study with Mr. Hester, who told him that things he was doing in the classroom or while coaching counted toward his credit for the class. Mr. Hester also assigned him readings for the class. Mr. Davis testified that he did not attend any of the classes in the 2010 Empowering ESOL Teachers course, despite his being marked present for six of the seven class sessions. He did an independent study consisting of “whatever Mr. Hester asked me to do, whether it was looking at articles or things like that.” Mr. Davis was coaching football during this period, and stated that Mr. Hester told him that coaching football counted toward his independent study. Mr. Davis’ testimony was the same as to all five of the listed ESOL classes. He did not attend the classes. He performed an independent study with Mr. Hester, but only vaguely recalled what Mr. Hester had him do for the course. He mostly recalled being assigned articles to read. Mr. Davis could not recall if his alternative certification course with Mr. Hester provided him with ESOL credit. Mr. Hester confirmed that Mr. Davis received 300 credits over the course of three years doing independent studies for ESOL courses. Mr. Davis was coaching girls’ flag football among other things and his coaching duties conflicted with the ESOL classes. Mr. Hester testified that he employed Ms. Wims’ criteria to allow Mr. Davis to take independent study courses because his school duties did not permit him to take regular ESOL classes. Suzanne Harman has been a teacher since 1974, and has taught English at Fletcher since 1996. She stated that she was out of the classroom from 1986 to 1996 because of her husband’s career in the Navy. On March 25, 2011, Ms. Harman received an email from Natosha Earst-Bailey informing her that she was out of field for ESOL and must document completion of the required ESOL credits by December 31, 2011. Ms. Harman forwarded the email to Mr. Hester and asked him what she needed to do. Ms. Harman testified that she had given ESOL no thought prior to this email, as it did not even exist during her early days in teaching. She heard from fellow teachers that Mr. Hester was the person to see about ESOL credits. Ms. Harman went to see Mr. Hester. Her testimony is unclear as to how much time passed between her receipt of the email from Ms. Earst-Bailey and her meeting with Mr. Hester, but it appears from the context of her testimony that she waited until October 2011. Ms. Harman testified that when she mentioned that her friends had advised her to see him, Mr. Hester “looked up kind of funny” and she wondered whether she had said something wrong. He asked who told her that. She replied that it was just a couple of her friends. Mr. Hester stated, “Well, they need to watch what they tell people.” Ms. Harman testified that Mr. Hester then pulled out a piece of paper, later identified as a “course artifacts checklist” for the Cross-Cultural ESOL course, and started going over the items on the checklist, saying, “I’ve seen you do this in your classroom. Ms. Harman stated that “he was signing, signing, and then handed a piece of paper to me when he finished initialing.” The document states that Suzanne Harman took the seminar in summer 2011. Mr. Hester signed the “statement of completion” as the approving instructor and dated it October 5, 2011. He initialed every item on the checklist, including eleven “journal entries.” The form states that “All articles are to be read and each summary is to be 2 paragraphs long.” Ms. Harman testified that she did not complete any of the activities checked off on the form. The problem with Ms. Harman’s testimony that Mr. Hester out of the blue completed a checklist for her on October 5, 2011, is that her name appears on the attendance sheet for the Cross-Cultural ESOL class taught by Mr. Hester from July through September 2011. She was shown this attendance sheet at the hearing and confirmed that she did not attend any of the twelve classes in the course, but was not asked how Mr. Hester could have known to place her on the class list in July when she did not come to him for help until October.19/ Mr. Hester testified that Ms. Harman was a needs assistance teacher, meaning that she was labeled by the Fletcher administration or the District as needing help because she was not meeting classroom expectations. Mr. Hester worked with Ms. Harman quite a bit at the behest of Fletcher’s assistant principal supervising the English department. Mr. Hester testified that Ms. Harman tried very hard in class, but was weighted down with personal issues at home. Mr. Hester agreed that Ms. Harman told him that other teachers said he was the person to see about ESOL but he denied telling her they needed to keep quiet about it. He stated that Ms. Harman requested an independent study similar to Catherine Johnson’s, i.e., an “alternative delivery” award of ESOL credit based on her merits as a teacher. Mr. Hester told Ms. Harman that it doesn’t work that way. Ms. Harman was a little irate because she thought she was as good a teacher as Catherine Johnson. Mr. Hester testified that he would never sit down with a teacher and tick off boxes on a checklist to give ESOL credit. Before giving credit under the alternative delivery method, he would examine the teacher’s PLC group, individual assessments, collective assessments and lesson design notebooks. He would observe the teacher in the classroom. The scene described by Ms. Harman did not happen. Mr. Hester did sit down with Ms. Harman to go over the checklist, but only when she came in with her completed portfolio at the end of the 2011 independent study. Mr. Hester stated that he allowed Ms. Harman to do an independent study because she was having so many issues at home with her family. Mr. Hester made time to sit with her to go over the work, mostly readings and activities, once or twice a week. Mr. Hester testified that Ms. Harman did more work for the Cross-Cultural ESOL class than is indicated on the checklist he signed on October 5, 2011. Ms. Harman was on the recipient list for the same March 16, 2012, out of field email that Mr. Hester sent to Ms. Andrews and Ms. Durden. On the same date, Ms. Harman sent Mr. Hester the following response: “Is it time for me to take another class with you?” Ms. Harman testified that she was not sure what Mr. Hester would expect of her, because she had heard that some people had taken classes for their ESOL credits in the time since Mr. Hester allegedly gave her the checklist. Mr. Hester told Ms. Harman that he was teaching a hybrid ESOL class on Tuesday nights in a portable classroom at Fletcher. The attendance sheet for this class indicates that Ms. Harman was present for the Curriculum & Materials portion of the hybrid class for the seven sessions held between April 24 and June 5, 2012. Ms. Harman testified that she did indeed sign up for the course and that she attended every session except the first. She stated that she was having difficulties during this period with her mother, who had been put on a new Parkinson's disease medication that caused her to stop breathing. Her mother was rushed to the hospital via rescue unit three times during the time Ms. Harman was attending the class. Ms. Harman twice emailed Mr. Hester to say she might not make the class, but each time she attended. However, Ms. Harman was not able to complete all the work for the class in timely fashion. At the last class, when the rest of the students were turning in their work folders, Ms. Harman told Mr. Hester that she had not been able to finish. He told her to get the work to him when she could. On June 28, 2012, Mr. Hester sent an email to Ms. Harman thanking her for “completing the Hybrid ESOL class this spring.” He attached a copy of the artifacts checklist. He wrote that Ms. Harman received 60 ESOL points for the course. Ms. Harman testified that she read this email with relief. She believed it meant that she did not need to submit her uncompleted coursework, that her class attendance and the work she had done were sufficient for class credit. On January 25, 2013, Mr. Hester sent Ms. Harman an email stating that he had to see her about her ESOL work. Ms. Harman testified that she went to see Mr. Hester the next day. He told Ms. Harman that he needed to see her work folder from the class. She was shocked and asked why he needed it seven months after the class. Mr. Hester told her that something had been said about the way he gives out ESOL points, and that he needed her folder. Ms. Harman testified that she told Mr. Hester she hadn’t talked to anyone. Mr. Hester responded that he didn’t trust anyone. Ms. Harman promised to look for the folder but she wasn’t sure she had kept it. She was able to find a few pieces of her work from the class and she sent those to Mr. Hester with a note stating that this was all she could find. Mr. Hester did not ask her for anything else. In May 2013, Mr. Hester reported to Ms. Patterson that Ms. Harman did not complete the agreed-upon work that he assigned her to complete the Hybrid ESOL class in which she was enrolled from April to June 2012. His email to Ms. Patterson stated as follows, in relevant part: It was agreed upon that she would be given more time to complete the required work and have it ready by September 2012 due to her extreme family situation. I gave her another extension to the holidays to complete the work (I know that I am not allowed to give that amount of time). However, I could not get the information needed. I asked for her work and finally received an incomplete packet (see attached) April 1, 2013. I still waited until the end of April (April 28, 2013) to see if she would come to me and complete the necessary work—- she did not. I am asking that she not be awarded the 60 points for ESOL: Curriculum & Materials. Please have these points removed from her Master Plan Points. Ms. Harman received a courtesy copy of this email. She testified that she was shocked by it because she and Mr. Hester had not had the referenced discussions. She did not think that the District actually took away her points for the class. Mr. Hester testified that he had talked to Ms. Harman many times about the need to send in her work before he sent the email of January 23, 2013. His email should not have been a shock because of their many conversations. Mr. Hester stated that the email Ms. Harman received in June 2012, stating that she had completed the course, was a bulk email sent to all the course participants. Mr. Hester and Ms. Harman had made an agreement. Because she was having so many family issues, he would give her more time to get her portfolio finished. When the teachers came back in the beginning of August, Mr. Hester met with her and told her that he still needed her class portfolio. According to Mr. Hester, there was no surprise intended and no vindictiveness involved in his email to Ms. Patterson. By the time he sent it, Mr. Hester knew that he was under suspicion. He considered Ms. Harman’s case a loose end he needed to tie up so that no one could say he was giving away ESOL points that the teachers had not earned. Nicole Conrad graduated from Flagler College in 2005 and taught at Fletcher from 2007 to 2013. She now teaches at Lake Shore Middle School in Jacksonville, after being “surplused” from Fletcher. Ms. Conrad was the head coach of the girls’ varsity soccer team at Fletcher and assisted with softball and cross country. She taught Spanish I and a career and college readiness course. Ms. Conrad believed that her classes at Flagler had satisfied all of her professional ESOL requirements. However, on May 5, 2010, she received an email from the District’s distance learning coordinator stating that she needed ESOL points before the June 30 deadline. Ms. Conrad did not believe she should have received this notice but she nonetheless went to Mr. Hester to find out how to proceed. Ms. Conrad testified that Mr. Hester told her that because she was a coach she didn’t need to do anything to obtain the ESOL credit, “that I was taken care of, or exempt, or whatever it might be. He said after-school duties.” Ms. Conrad responded by saying “I felt like he was a hustler.” Mr. Hester did not like that comment. Ms. Conrad testified that his answer was, “If I was a hustler, I’d be making money.” Ms. Conrad stated that she called Mr. Hester a “hustler” because it seemed that certain people were required to do more work for ESOL credit than others, depending on their relationship with him. Mr. Hester appeared to use his position to gain leverage over people. Because she did not trust Mr. Hester, Ms. Conrad declined the “exempt coach” option and insisted on doing work to obtain her ESOL credits. Mr. Hester gave her a packet of work to do, which she completed in a week or two. Mr. Hester recorded Ms. Conrad as attending an ESOL: Methods class that he taught from February to May 2010. Ms. Conrad testified that she did not in fact attend any class sessions but that she independently did the work for this class. On cross-examination, Ms. Conrad conceded that before her out of field notice and the meeting with Mr. Hester at which he told her she need do nothing for her ESOL credit, Mr. Hester had sent her a lengthy email outlining her options for obtaining ESOL credit, none of which involved “doing nothing.” The email, dated March 29, 2010 (more than a month prior to the date on which Ms. Conrad testified she first learned she was out of field), stated as follows, in relevant part: As a summary of our conversation last week regarding ESOL and your expectation to complete 60 hours to keep you [sic] job, I am listing your options. You can petition the district ESOL office to allow your college courses [to] count for credit. You need to remember the following: The state university systems did not get clearance from the state that those course [sic] can be used as ESOL credit. The district and the state is [sic] under no obligation to honor these course [sic]. If you plan on petitioning the district to allow the courses, you have to: Get an Official-certified copy of your college transcripts, Drop off the transcripts (in person) to Karen Patterson . . . . This process may take up to 3 months (average wait time) and there is NO GUARANTEE that you will receive credit for the classes. You can get into the classes that I am teaching at Mandarin HS. They are every Tuesday starting at 2:00 p.m. I will provide you some make up work to get you caught up from the classes that you missed. The next class is tomorrow March 30th at Mandarin HS at 2:00 p.m. You can get with Carmen Meyer and see if she has room in her class that is going on right now. You can do the Independent Study option that we discussed. You will receive a listing of assignments of what you need to complete and the dates and times we will meet to review the information. I will have this ready on the Tuesday after break for your review (if you plan to complete this option). Please let me know what you plan to do. Ms. Conrad conceded that this email indicates that Mr. Hester was trying to help her by offering a number of legitimate options for obtaining her ESOL credits. However, she continued to state that Mr. Hester later offered to “do a favor” and give her the credit based on her coaching duties alone. Mr. Hester testified that Ms. Conrad was identified by the District’s World Languages supervisor as a needs assistance teacher. Ms. Conrad was friendly with Mr. Hester when she started at Fletcher, but that ended when he started working with her as a needs assistance teacher. Their relationship soured to the point that Mr. Hester moved away from performing direct classroom observations of her. Dr. Joanne Davis, the World Languages supervisor, took over the task of observing Ms. Conrad and worked for three years in an attempt to improve Ms. Conrad’s classroom performance. A sample of Dr. Davis’ observations was entered into the record, and discloses many problems with Ms. Conrad’s classroom performance, including her failure to implement any of Dr. Davis’ prior suggestions. Mr. Hester testified that Ms. Conrad came to him at some point to talk about being out of field. She was “annoyed” about that because she believed she had taken the necessary ESOL courses at Flagler. Mr. Hester outlined her options, which are reflected in the March 29, 2010, email quoted above. Ms. Conrad chose the independent study, did the work assigned by Mr. Hester, and earned the ESOL credit. Mr. Hester denied telling Ms. Conrad that he would give her the credit just for being a coach. Mr. Hester confirmed Ms. Conrad’s version of the “hustler” conversation, except that he was in no way bothered or concerned about it. He testified that he considered Ms. Conrad a friend at the time and that they were both joking. Dane Gilbert, the principal at Fletcher High School from July 1, 2006, to June 30, 2012, testified that he learned in spring 2013 that he had received 60 points for a hybrid ESOL class taught by Mr. Hester from May to June 2012. The attendance sheet for the ESOL: Testing & Evaluation portion of the hybrid class indicates that Mr. Gilbert attended six out of the seven class sessions. Mr. Gilbert testified that he did not attend any of the classes and did not perform any independent study to obtain the credits awarded for the class. Mr. Gilbert testified that, to his knowledge, he did nothing directly for this ESOL class. He noted that he had done a lot of work with Mr. Hester in the area of testing and evaluation, though not in the area of ESOL. Mr. Gilbert testified that as principal he green- lighted Ms. Durden to initiate the Challenge Day program at Fletcher and that he did a lot of work on the program. Mr. Hester testified that Mr. Gilbert indeed received credit for “Empowering ESOL,” which is testing and evaluation. He stated that he and Mr. Gilbert had a conversation about it during the period when Challenge Day was going forward. Mr. Gilbert and Ms. Durden were instrumental in bringing this program to Fletcher. Mr. Hester opined that the Challenge Day program “is all Cross-Cultural ESOL. It really breaks down the barriers of bullying, you know, racism, and sexism, and everything.” Mr. Hester was also working with Mr. Gilbert on his principal evaluation binder, which required case study. He told Mr. Gilbert that all of this work could fit the criteria for ESOL testing and evaluation credit. At that point, Mr. Gilbert liked the idea of banking the ESOL points for his recertification and okayed Mr. Hester’s plan to give him the credit. Mr. Hester stated that this was the extent of their discussion about ESOL and that he saw to it that Mr. Gilbert was awarded the credits. Mr. Gilbert testified that he subsequently retired and didn’t give much thought to the ESOL credit matter until he was contacted during the School Board’s investigation of Mr. Hester. Mr. Gilbert credibly testified that he relied on Mr. Hester’s knowledge of the ESOL certification criteria to accept the credits that Mr. Hester offered. Personal conflicts Mr. Gilbert testified that Mr. Hester came to Fletcher as a standards coach during his second year as principal. Mr. Hester’s position evolved into his becoming the PDF and the AICE coordinator for Fletcher. Mr. Gilbert believed that Mr. Hester was very good at his job and was good for Fletcher. Mr. Hester was in a difficult spot because he was in a teaching position, not an administrative position, yet appeared to have authority over the regular faculty. Mr. Gilbert compared the friction caused by Mr. Hester’s job to other “quasi-administrative” positions such as athletic director and activities director. The employees are teachers but they are not in the classroom and they take care of administrative duties. These “quasi-administrative” teachers tend to ruffle feathers and are not popular with the rank and file teachers. Mr. Hester confirmed that it was hard at times to be the PDF at Fletcher because not all of the teachers liked doing what the District and the state required to maintain their professional standing, such as the preparation of lesson design notebooks. Several teachers testified about their personal conflicts with and unease about Mr. Hester and his role at Fletcher. Ms. Durden, for example, said that it was well known around the school that one did not want to get on the wrong side of Mr. Hester or he would make your life hell as a teacher. For his part, Mr. Hester agreed that most of the animosity toward him was due to his position at Fletcher but he also believed that certain of his accusers were motivated by homophobia, as he is an openly gay man. Ms. Harman testified that Mr. Hester once directed a very inappropriate joke to her. She stated that she entered Mr. Hester’s office one morning to ask him a question and found the room full of men, coaches mostly, who were talking and laughing. Mr. Hester said to the gathering, “I’ll ask Harman. Harman, do you know what Ballchinia is?” Ms. Harman said, “Ballchinia?” Mr. Hester said, “Yes, it’s a condition where you have balls on your chin. Gay men are prone to have it.” Ms. Harman testified that at that point she realized Mr. Hester was making a crude reference to oral sex for the amusement of the men in the room. She turned around and walked out. She testified that she did not immediately report the incident to anyone in authority, but that she did tell Mr. Gilbert about it at a later time, stressing the embarrassment Mr. Hester had caused her. She did not know whether Mr. Gilbert ever followed up on the matter. Mr. Gilbert denied that Ms. Harman ever came to him to talk about Mr. Hester telling a sexual joke that upset her. Mr. Hester was not questioned about this incident. Ms. Conrad testified that when she was on good terms with Mr. Hester, she would hang out in his office. A woman who was an assistant principal at the time was also in Mr. Hester’s office. Fletcher had just had its annual faculty Christmas party and Mr. Hester joked that one of the raffle prize drawings was “a blow job, and that if you were real lucky, it would involve gumming.” Ms. Conrad further testified that she was in Mr. Hester’s office when a woman arrived from “downtown,” the vernacular for the District’s central office. Ms. Conrad did not know this woman or what her prior relationship with Mr. Hester might have been. Mr. Hester was busy when the woman arrived. Mr. Hester addressed her as “sex kitten” and told her to just have a seat. The woman sat down. Ms. Conrad found it “shocking” that “she just went right along with it like it was nothing.” Ms. Conrad was also made uncomfortable by a comment Mr. Hester made regarding a photograph in the Fletcher school newspaper. A group of teachers was “kind of hanging out” near Mr. Hester’s doorway in the common area of the main office. Mr. Hester picked up a copy of the newspaper, the front page of which had a jokily posed photograph of an upper classman pushing a younger student into a locker. Ms. Conrad testified that Mr. Hester told the assembled group that he had taken the photo home and showed it to his partner, who thought it was a “turn- on” or “hot,” or “something like that.” This statement made the group uncomfortable. People tried to laugh it off and moved away from Mr. Hester as soon as possible. Despite believing that Mr. Hester’s statements were “out of line,” Ms. Conrad never told Mr. Hester she found them offensive and never reported them to Mr. Gilbert or anyone else in a position of responsibility. She testified that she didn’t know how well connected Mr. Hester was and was afraid to initiate a confrontation. She wasn’t sure to whom she could turn. “He was obviously very comfortable using inappropriate language in front of important people, like assistant principals and downtown personnel, so I didn’t know who he had connections with. . . . I felt it best at that time to just try to avoid him the best I could and go on with my business and stay away.” She noted that Mr. Hester was in charge of “the documentation and certification and the paperwork that keeps us legally teaching.” She feared retaliation if she reported his misbehavior. Ms. Conrad testified that it seemed understood around Fletcher that Mr. Gilbert was aware of “the types of things Dennis was doing and ignored them.” She described Mr. Gilbert as a “people person” who shied away from confrontation and did not want to deal with Mr. Hester’s behavior. Ms. Conrad also testified that Mr. Hester was doing a lot of Mr. Gilbert’s work for him, including preparation of the school budget. Therefore, the understanding around the school was that Mr. Hester was a privileged, protected person who could do as he pleased, “unchecked and unbalanced.” Ms. Durden similarly testified as “a really oppressive environment for the adults at Fletcher High School.” She described Mr. Gilbert as a good administrator who was, nonetheless, very dependent on Mr. Hester for many things. She was a new teacher at Fletcher and did not want to be on Mr. Hester’s “dark side.” She knew that complaining about him would put her in a bad spot. Mr. Gilbert testified that he once suggested to Ms. Durden that she place Mr. Hester on the committee to plan Challenge Day. Ms. Durden declined, stating that there would be too much “drama” with Mr. Hester trying to take things over. She also mentioned that she was somewhat in disfavor with Mr. Hester for unspecified reasons. Mr. Gilbert testified that Ms. Durden’s statement about “drama” with Mr. Hester did not ring a bell with him. Ashley Snell, an intensive reading teacher in her tenth year at Fletcher, testified as to an argument she had with Mr. Hester in September 2010. She stated that there was a non- ESOL class that the subject area teachers were required to take from Mr. Hester after school hours. Ms. Snell had two jobs at the time and was unable to stay after school. She went to Mr. Gilbert and asked for permission to take the class during school hours at the Schultz Center for Teaching and Leadership, a conference center where many of the District’s professional development classes are taught. Mr. Gilbert approved a “Temporary Duty Elsewhere” (“TDE”) permit for Ms. Snell and she signed up for the class at the Schultz Center. Ms. Snell testified that Mr. Hester called her down to his office after school. He yelled at her for going behind his back and asking permission to take the class elsewhere. He told her that she was going to ruin things for all the other teachers because he could not offer the class unless a certain number of people signed up for it. Ms. Snell stated that Mr. Hester got up from behind his desk and stood between her and the door, blocking her way out of the room as he yelled at her. She stated that he was in her face, cursing and screaming “How dare you,” saying that she had no right to do what she did and that she needed to sign up for his class. Ms. Snell testified that the next thing she knew, another teacher unlocked the back door to the office and she ran out and down to the classroom of Tina Reed, another teacher. Ms. Snell stated that she had never been talked to that way before and was hysterical and afraid. She reported the incident to Mr. Gilbert, but was unsure whether Mr. Hester was ever disciplined. She acknowledged that Mr. Hester later apologized to her. Mr. Gilbert testified that his office was a couple of doors down from Mr. Hester’s in the administrative wing but that he was not in his office when this incident occurred. Mr. Gilbert heard about it from his secretary and from Ms. Snell and Ms. Reed. His secretary told him that there was a lot of loud yelling and arguing behind Mr. Hester’s closed door. The students had gone home but staff was still present in the office. The secretary said it was “disturbing” and Mr. Gilbert saw that Ms. Snell was upset by it. At the time of the hearing, Mr. Gilbert could not remember what the incident was about, but he recalled telling Ms. Snell that he would address the matter and get back to her. Mr. Gilbert testified that he called Mr. Hester as soon as possible, either later that afternoon or the next day. Mr. Hester admitted there was an argument that got too loud, which Mr. Gilbert stated was not acceptable. He reminded Mr. Hester that his door was open any time there was a disagreement and they could come in and sit down with him and try to resolve it. Mr. Gilbert told Mr. Hester he was being given a “verbal warning”20/ and from that day forward was to have nothing to do with Ms. Snell. Mr. Gilbert would take care of all her assignments from that point forward. He also told Mr. Hester that he had to make a formal apology to Ms. Snell. Mr. Gilbert stated that he got back to Ms. Snell and told her how he had handled the matter and asked her to let him know if she had any more problems with Mr. Hester. He heard nothing further from Ms. Snell. Mr. Gilbert testified that Ms. Snell and Mr. Hester did not become best friends, but that he was aware of no further difficulties between them. Mr. Hester recalled the incident with regret, but disputed some of the details recited by Ms. Snell. He did not recall getting up from his desk and impeding her from leaving the office. He recalled standing on his side of the desk, Ms. Snell standing on the other side, and the conversation becoming “rather heated.” Mr. Hester was upset because he needed to get as many teachers as possible to take Content Area Reading-—Professional Development (“CAR-PD”) training at Fletcher, and there were just barely enough teachers signed up to offer the class. Mr. Gilbert would be unable to give TDE permits to ten or more teachers because the school would then be short-staffed. Ms. Snell’s action might have the effect of denying all the other teachers the ability to take the CAR-PD class at Fletcher. Mr. Hester was frustrated and their inability to agree on her course of action led to an argument. Mr. Hester conceded that “I lost my cool and told her to get the hell out of my office.” At that point, Ms. Snell called him “a fucking faggot.” This comment made Mr. Hester very upset. Mr. Gilbert met with Mr. Hester later that day and told him he could not yell at people like that. Mr. Hester told Mr. Gilbert about the “faggot” remark but Mr. Gilbert said, “I don’t care. . . . You’re a man. You should never talk to a woman that way.” Mr. Hester agreed that Mr. Gilbert was right. Mr. Hester readily agreed to apologize to Ms. Snell. When Ms. Snell walked past his office the next week, Mr. Hester called her in and told her he wanted to apologize for his unprofessional and disrespectful behavior. Ms. Snell stated that she was sorry as well. Mr. Hester testified that this was the last time they discussed the incident and he never had any further problem with Ms. Snell. Mr. Gilbert kept Mr. Hester from having any oversight of Ms. Snell, and Mr. Hester respected that order. Mr. Hester testified that this was the only time he ever had a heated argument with another teacher. Ms. Snell testified that she never called Mr. Hester a “faggot.” The investigation In January 2013, an anonymous letter was sent to School Board Superintendent, Nikolai Vitti; School Board Chairman, Fred “Fel” Lee; Human Relations (“HR”) Director, Sonita Young; and Fletcher High School Principal, Donald F. Nelson. The letter stated as follows, in relevant part: I hate to have to submit this as an “anonymous” letter. However, it is important that someone take action and there is a situation that must be addressed. I am currently assigned as a teacher at Duncan U. Fletcher High School. It is for this reason that I am choosing to send this letter anonymously. I am writing it as [sic] the request of several teachers who feel that the current situation cannot be allowed to continue. I do not want to be subjected to individual scrutiny. We have tried to address this with our school level administration (this year and in past years). However, we do not feel that it is being handled appropriately. The situation involves our Instructional Coach, Professional Development Facilitator and AICE Coordinator at Fletcher, Dennis Hester. Several faculty members have lodged complaints against him, yet he appears to be protected from any possible disciplinary consequences. The complaints that are generally listed are about how he treats members of our faculty unprofessionally. One teacher even went to the previous principal after being yelled at and “bullied” into a corner, and Mr. Hester was simply asked to make a verbal apology. That’s not enough in response to the repeated behavior that he displays. In fact, other teachers have said they have experienced the same behavior from Mr. Hester again this year. * * * Another example of his unprofessionalism points to ESOL. For a few years now, it has been known that if a Fletcher teacher is flagged and needs ESOL hours, just sign up for Hester’s class. He doesn’t require anything of you. You simply sign the papers in his office and you never attend a single session. He is supposed to be the Professional Development Facilitator, yet nothing about this seems professional. * * * These are only a handful of the situations that have taken place. Each teacher seems to have a story of his/her own regarding professionalism, ethics, support, etc. This situation at Fletcher has gotten out of hand. I would like to request that someone from Human Resources or Professional Development visit Fletcher and interview faculty members. As I mentioned before, there are several teachers who have requested that I write this letter and invite the district to intervene, as the traditional avenues haven’t proven effective. We love our school and many of us are long term faculty within the system and at this school. We are only trying to make Fletcher the best it can be. We look forward to seeing you at Fletcher in the very near future and welcome your involvement in the review of what is going on here. Mr. Nelson testified that when he receives such letters, he immediately calls in the affected employees. Because he could not meet with the anonymous author of the letter, he confined himself to meeting with Mr. Hester. They went over the letter paragraph by paragraph and Mr. Nelson made notes on his copy of the letter. After meeting with Mr. Hester, Mr. Nelson concluded that the matter was not much more than a “catfight” and suspected, correctly as it turned out, that the author of the anonymous letter was Laura Strickland, Fletcher’s media specialist and the sister-in-law of the School Board Chairman, Mr. Lee.21/ Mr. Nelson was aware that there were some ongoing personal issues between Mr. Hester and Ms. Strickland. She believed that Mr. Hester was “holding back” the paperwork for her professional development credits for 2012 and she had written a string of increasingly agitated emails to Mr. Lee complaining of this and other high-handed actions by Mr. Hester. Mr. Hester testified that Ms. Strickland was one of about ten Fletcher teachers, including Mr. Gilbert, who failed to submit their paperwork on time and were thus late in obtaining their professional development credits. After talking to Mr. Hester, Mr. Nelson decided to take no further action at the school level, as most of the allegations concerned matters that occurred during Mr. Gilbert’s time as principal of Fletcher. He spoke with Ms. Young, who confirmed that her office had received the letter and someone would be in touch with the school. Shortly thereafter, Mr. Nelson was contacted by Mary Mickel, an employee of the Professional Standards office of the HR Department. Mr. Nelson told Ms. Mickel that he believed the letter was a vendetta by the anonymous author against Mr. Hester. Ms. Mickel summarized her meeting with Mr. Nelson in an email to Ms. Young, dated February 6, 2013, which stated as follows, in relevant part: When asked if this is a pattern of behavior for Mr. Hester, who was accused of displaying unprofessional behaviors in several instances, the principal replied that it is not. Principal Nelson also stated that he believed that these “hodge- podge, shot in the dark” accusations are a means to hurt Mr. Hester, by someone who does not care for him and has a personal vendetta. The principal also stated that he believed that it was one of two people who wrote the anonymous letter. [Mr. Nelson named Ms. Strickland and Ms. Johnson as the likely authors.] * * * When the principal received the letter, he met with Mr. Hester to address each issue of alleged unprofessional behaviors below: Treats other members of the faculty unprofessionally-— Mr. Nelson stated that he has not observed any unprofessional behavior towards other faculty members, nor has anyone come to him with complaints. * * * If a teacher was flagged for needing ESOL hours, Mr. Hester does not require anything from teachers accept [sic] to sign papers in his office-— Mr. Hester’s response to the principal was that Karen Patterson, ESOL Professional Development Office, approved all courses. (Office of Professional Standards made recommendation to principal to obtain records of sign-in sheets and records of Professional Development requests with approval from Karen Patterson’s office to have on hand.) A string of District emails entered into evidence indicates that the matter continued to percolate during the spring of 2013, primarily via a series of signed email complaints from Ms. Strickland to Mr. Lee, who forwarded them to Dr. Vitti. An email from Dr. Vitti to District ESOL director Christine Dahnke, dated April 28, 2013, states as follows: I need someone to look into ESOL endorsement at the school. Apparently there is an individual who has been hired there to provide ESOL endorsement training for teachers. Training is not occurring but teachers still receive endorsement. There may be no substance to this but it continues to be raised as a concern by teachers. Ms. Dahnke forwarded the emails to Ms. Young, who in turn sent the following email to Ms. Jackson and Ms. Mickel on May 2, 2013: Josephine—- This continues to come up. We received an anonymous complaint earlier this year and Mary spoke to the principal. We now need to conduct an official investigation to include interviews with appropriate personnel. Thanks. The matter was assigned to Professional Standards investigator Jessica Altman. Mr. Nelson testified that in late May, teachers began coming forward to speak with him about their experiences with Mr. Hester. The first was Tina Reed, the teacher who had assisted Ms. Snell in her confrontation with Mr. Hester. Ms. Reed brought in Ms. Snell and another teacher, Joy Chalker, to Mr. Nelson's office. During their discussion with Mr. Nelson, the teachers stated that there were others who were afraid to come forward because nothing had been done when they had complained in the past. Mr. Nelson told them that any charges against Mr. Hester would have to be made in writing, and that they should encourage the other teachers to submit written statements. Mr. Nelson testified, “I was dealing with teachers that felt that their voice wasn’t heard before, so I felt in order to give them some comfort, they could tell the other teachers to please put it in writing.” Each of the three teachers who met with Mr. Nelson submitted a written statement, which Mr. Nelson forwarded to HR. More teachers came forward and submitted written statements, eight or nine in total, all of which Mr. Nelson forwarded to HR. Mr. Gilbert testified that he never noticed that teachers were reticent to speak with him about Mr. Hester. He denied there was a climate of fear at Fletcher as regards Mr. Hester. Ms. Durden certainly did not hesitate to tell Mr. Gilbert what she thought of his proposal to place Mr. Hester on the committee for Challenge Day. Mr. Gilbert stated that he was known for literally having an open door to all Fletcher employees, but that no teacher ever came to him with any problem concerning ESOL. Mr. Gilbert testified that, far from protecting or coddling Mr. Hester, he was harder on Mr. Hester than on most other people on staff at Fletcher.22/ He would edit emails that Mr. Hester wanted to send to the entire faculty and would “kind of jump on him” about not getting data into the principal’s office fast enough. Mr. Gilbert would have to rein in Mr. Hester on things such as changing the way the students marched at graduation, but he described these as minor incidents. Mr. Gilbert disagreed that Mr. Hester could make a teacher’s life miserable if the teacher crossed him. Mr. Hester had no authority to discipline teachers at Fletcher. Mr. Gilbert noted that the District, not Mr. Hester, is the ultimate arbiter of professional development points. Mr. Hester facilitated the preplanning and training day workshops held at the school, but his authority over those matters was limited to turning in the paperwork to the District. Josephine Jackson is the executive director of the District’s Professional Standards office. She assigned Ms. Altman to investigate the complaint against Mr. Hester. Ms. Jackson also serves as the District’s equity officer, addressing violations of nondiscrimination laws and policies. Ms. Jackson testified that she first met Mr. Hester when her office called him in to discuss the concerns that had been raised about the endorsements for ESOL classes. Ms. Jackson stated that this was a brief meeting at the end of the day. She told Mr. Hester there had been accusations of discrepancies in awarding endorsements to teachers and asked whether he could provide documentation as to what classes were held, who attended them and what was the course content. Mr. Hester told her that he believed there was a group of people at the school who had targeted him because of his sexual orientation. Ms. Jackson told him that such behavior was intolerable and would be dealt with by her office. She asked Mr. Hester to provide names and examples of things that had been said to him. Ms. Jackson testified that she had no more in-person meetings with Mr. Hester but that they communicated via email. Mr. Hester did submit to her secretary a small packet of ESOL information with attendance sheets and checkmarks,23/ but he never provided any information about the alleged sexual orientation targeting. Mr. Hester conceded that he did not bring to Ms. Jackson any information to substantiate his allegation that he had been targeted because of his sexual orientation. He did note that the investigative report included insinuating statements made to the investigator by Ms. Durden, who spoke of Mr. Hester having young male teachers at his house in the evenings. Mr. Hester also noted a statement by Ms. Conrad that she would walk by his office and see the door closed as he “courted” young male students.24/ Mr. Hester wondered why such irrelevant comments were included in the investigative report. He noted that the teachers at his house were Mr. Corey and Mr. Davis, the coaches with whom Mr. Hester was working on alternative certification, and that Mr. Corey’s wife often accompanied him. He also denied “courting” male students, stating that such behavior would be criminal and that he was not a pedophile. Mr. Hester stated that he takes a lot of pride in his job and tries very much to be a professional. He noted that homosexuality is still not “really accepted” in society and that it can become a touchy situation in terms of classroom management. He took great offense at the insinuations of these teachers being made part of the District’s investigative report. In her defense, Ms. Durden testified that she is gay and had no problem with men going to Mr. Hester’s house. Her point was that Mr. Hester should not have been coaching alternative certification teachers at his house before they were on the faculty of Fletcher High School. Ms. Durden’s testimony on this point was not persuasive. The clear suggestion of her statement to the investigator was that assignations may have been taking place at Mr. Hester’s house. Ms. Snell testified that one day she was in Ms. Reed’s classroom working on planning with Ms. Reed when the phone rang. Ms. Reed answered on speakerphone. Mr. Hester was on the line. He said that he was just leaving downtown, where someone had told him there was a possible investigation into ESOL. He told Ms. Reed not to worry about it. He had taken care of it, but was going to give some backdated paperwork to Ms. Reed’s daughter to deliver to Ms. Reed. Mr. Hester stated that he thought the investigation was stemming from “either Laura Strickland or the dumb bitch, Joy Chalker, who could possibly be the two that filed the anonymous letter.” Mr. Hester denied that he phoned Ms. Reed to tell her that he had taken care of anything or had backdated ESOL documents. Mr. Hester testified, “I knew [Ms. Reed] was part of the anonymous letter. Why would I call her about it?” It does not seem credible that Mr. Hester would phone a known adversary to discuss a plan to fraudulently cover his tracks on the ESOL endorsements, particularly when the discussion is alleged to have taken place over a speakerphone. Ms. Snell’s testimony on this point appears to be fabricated, which calls into question the entirety of her testimony save that which Mr. Hester and Mr. Gilbert corroborated.25/ Mr. Nelson testified that Mr. Hester came by his office a few times to inquire about the status of the investigation. Mr. Nelson forwarded the inquiry to Ms. Jackson, who declined to comment because the investigation was ongoing. Mr. Nelson relayed this information to Mr. Hester. Mr. Nelson testified that Mr. Hester never suggested that homophobia was the motivating factor in the teachers’ complaints against him. Mr. Nelson stated that he would have immediately notified the investigator had Mr. Hester made such a statement to him. Mr. Davis testified that around May 21, 2013, he had a conversation with Mr. Hester in the Fletcher parking lot. Mr. Hester was upset. Mr. Hester stated that Ms. Reed, Ms. Snell, and Ms. Chalker “needed to watch their back because he was going to go after them” for writing an anonymous letter about him. Mr. Hester stated, “You never want to piss off a gay man” and cautioned Mr. Davis to distance himself from the three women to avoid becoming “collateral damage.” Mr. Hester recalled the parking lot conversation. He told Mr. Davis, “I’m under investigation. If anyone asks you anything, don’t lie.” Mr. Hester conceded that he was “very heated” about the situation in which he found himself. He did tell Mr. Davis that Ms. Snell, Ms. Reed, and Ms. Chalker had written the anonymous letter. Mr. Hester testified that he gleaned his erroneous attribution of authorship “just from my knowledge and from information that I had received from some other people.” Mr. Hester further conceded that he told Mr. Davis that he was going after the women and would not feel bad about anyone who gets caught in the collateral damage. Mr. Hester conceded that he told Mr. Davis, “You never want to piss off a gay man.” Mr. Nelson testified that during the period of the investigation and Mr. Hester’s subsequent dismissal, the District assigned several new employee positions to its secondary schools. One of those new positions was “testing coordinator.” Mr. Nelson intended to give the job to Mr. Hester. Because Mr. Hester was fired, Mr. Nelson gave the position to Ms. Reed. Based on his own exposure to Mr. Hester’s work, Mr. Nelson believed that Mr. Hester was effective in his position and was an asset to Fletcher High School. Ms. Jackson testified that at the time of the investigation, she understood that Mr. Hester was unique in marking people present for classes they did not physically attend. She stated that after the determination to fire Mr. Hester was made, the District continued to investigate “because it became clear that this may have been an issue that was broader than the number of people that we had spoken with during the course of the investigation.” Summary of findings Mr. Hester has been accused of “displaying unprofessional behavior toward and in the presence of colleagues” and “repeatedly provid[ing] ESOL endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes.” The evidence presented at the hearing established that Mr. Hester displayed unprofessional behavior toward and in the presence of colleagues. He admitted to having a shouting match with Ms. Snell that could be heard outside the closed doors of his office. Even crediting Mr. Hester’s testimony as to the extreme provocation provided by Ms. Snell, his actions were unprofessional. Ms. Harman’s undisputed testimony described a lewd joke Mr. Hester told to her in front of a group of male colleagues, to her profound embarrassment. Ms. Conrad described witnessing three separate incidents of unprofessional conduct by Mr. Hester, all of which involved sexual innuendo of varying degrees of egregiousness. There is no question that Mr. Hester was feared by at least some teachers on the Fletcher campus. Though Mr. Gilbert accurately stated that Mr. Hester was merely a teacher and had no control over other teachers’ jobs, as a practical matter Mr. Hester had the power to seriously affect careers by providing or withholding professional development credits. Mr. Hester was capable of “going after” teachers who had crossed him without regard for “collateral damage.” The evidence regarding the ESOL endorsements was not as straightforward or overwhelming as the School Board alleged. The School Board’s ESOL classroom requirements were elastic enough to provide for shortened “emergency” and “hybrid” courses when the crush of teachers needing ESOL credits became too much. Vacations abroad qualified for Cross-Cultural Communication ESOL credit. Of the most relevance to this case was the School Board’s practice of allowing teachers to obtain ESOL credits via “independent study” supervised by a PDF. The School Board’s most serious allegation against Mr. Hester is that he intentionally falsified ESOL documents by marking independent study participants “present” in classes they did not physically attend. The evidence established that Mr. Hester accounted for the work performed by his independent study students by marking them present on attendance sheets for ESOL classes that Mr. Hester or another PDF was teaching. The evidence further established that this method of accounting for the work performed by independent study students was also used by Ms. Patterson and apparently by all PDFs in Duval County. Ms. Jackson’s statement that “this may have been an issue that was broader than the number of people that we had spoken with,” in conjunction with Ms. Patterson’s testimony, effectively conceded that the allegations of falsification of documents by Mr. Hester was without basis. The evidence presented at the hearing established that, whether or not his actions were within his actual authority to conduct independent studies and award ESOL credit, Mr. Hester at all times believed that he was acting as authorized by Ms. Patterson. Even crediting Ms. Patterson’s testimony that she lacked the authority to authorize independent study projects, there is nothing in the record to gainsay Mr. Hester’s reasonable belief in Ms. Patterson’s apparent authority. Documentary evidence indicated that Ms. Patterson’s authority to approve independent study projects was taken for granted not only by Mr. Hester but by the District’s Supervisor of Certification, Kella Grant. Mr. Hester’s contention that the January 23, 2013, email from Ms. Patterson marked a change in policy was well founded. However, the power to approve independent study projects and the delegation of that approval power to Mr. Hester mark the outer limits of the reasonableness of Mr. Hester’s belief in Ms. Patterson’s authority. It was not reasonable for Mr. Hester to believe, based on the novel example of the Chets Creek teachers,26/ that Ms. Patterson had conveyed or could convey to him the independent authority to award ESOL credits for anything other than completion of ESOL coursework. Mr. Hester had no reasonable basis to believe in his authority to award ESOL credit by his “alternative delivery” method. Mr. Hester determined that Ms. Andrews met the competencies of the Cross-Cultural ESOL class for which he gave her credit though she performed no independent study and received no instruction in the coursework. Mr. Hester gave Ms. Durden credit for a Cross- Cultural ESOL class based on her work on Challenge Day and on pre-planning in-service courses. Ms. Durden performed no independent study and received no instruction in the coursework for the Cross-Cultural ESOL class. Mr. Hester also gave Mr. Gilbert ESOL credit for Challenge Day, as well as for his work in testing and evaluation and his principal’s evaluation binder, none of which involved ESOL coursework. Mr. Gilbert testified that he relied entirely on Mr. Hester’s expertise in accepting the ESOL credits. Though Ms. Murrell and Mr. Hester differed dramatically on the details of their interaction, there was no dispute that Mr. Hester awarded her credits for two ESOL courses despite her never taking either an ESOL course or an active independent study program from him. Mr. Hester’s sole basis for awarding the credits was his determination that Ms. Murrell’s work as a teacher met the competencies of the ESOL classes. In like fashion, even if Mr. Hester’s disputed version of his interaction with Ms. Johnson is fully credited, the undisputed fact remains that Mr. Hester awarded her ESOL credits for her work with PLC groups, her status as an AICE, and her lesson design notebook, not for any ESOL coursework she performed. Mr. Hester’s version of events involving Ms. Kopp is credited. The evidence established that Ms. Kopp performed independent studies with Mr. Hester in 2009 and 2010, despite her testimony to the contrary. Mr. Hester’s version of events involving Mr. Corey is credited. It is more likely that Mr. Corey’s wife completed and turned in the coursework in “collaboration” with Mr. Corey than that Mr. Hester invented the fact of having received the work for which he credited both of the Coreys. However vague his recollection, Mr. Davis testified that he performed independent study projects for each of the five ESOL courses for which Mr. Hester gave him credit. Ms. Harman was not a credible witness and no findings against Mr. Hester should be based on her testimony. Mr. Hester’s version of events involving his interactions with Ms. Harman is reasonable and supported by the documentary evidence. Ms. Conrad’s contention that Mr. Hester offered her ESOL credit merely for being a coach was belied by the documentary evidence showing that Mr. Hester in fact offered her several legitimate options for obtaining ESOL credit. Ms. Conrad performed an independent study and legitimately received ESOL credit. In summary, five teachers, Ms. Andrews, Ms. Durden, Mr. Gilbert, Ms. Murrell, and Ms. Johnson, were awarded ESOL credits by Mr. Hester based on an “alternative delivery” method that he was not authorized to use and that he could not reasonably have believed he was authorized to use. Mr. Hester has potentially damaged these teachers professionally, should their ESOL credits be disallowed based on Mr. Hester’s actions. There was no evidence that Mr. Lee, the School Board Chairman, took an active part in initiating or conducting the investigation of Mr. Hester. The evidence did establish that it was well known in the District that Ms. Strickland is Mr. Lee’s sister-in-law, but it would be speculative to find that her complaints carried more weight than their substance merited. No sexual improprieties were alleged against Mr. Hester, unless one counts locker room jokes made to fellow teachers. There was, therefore, no reason for the School Board’s investigator to include the insinuating comments of Ms. Durden and Ms. Conrad in her report. The School Board should be sensitive to the still-tenuous position of its gay employees in both the school setting and the larger society and should be more vigilant to exclude such damaging irrelevancies from its official documents. The evidence established that Mr. Hester was somewhat self-aggrandizing and given to interpersonal intrigue among his colleagues at the school. He obviously had enemies at Fletcher. Mr. Hester also wished to appear omnicompetent in his field. Some of his problems appeared to stem from this desire to impress fellow teachers with his wizardry in the area of professional development. Rather than explaining to them in drab detail exactly how he was providing them with ESOL credit, Mr. Hester would airily proclaim that he was “taking care of it.” This practice led to confusion and unease and goes some way toward explaining why even those “phenomenal” teachers who bore Mr. Hester no real grudge were not especially friendly toward him in their testimony.27/ However, the evidence also established that Mr. Hester was extremely accomplished as a trainer and designer of training programs. He was selected to redesign the District’s alternative certification program to include an ESOL component and he was the developer of the District’s hybrid ESOL course. He worked tirelessly, teaching ESOL courses after school and doing independent studies with teachers such as Mr. Tracy over the Christmas holidays, if such was necessary to maintain their certification. If anyone in the District was qualified to determine that a teacher should receive ESOL credit for the type and quality of her work in the classroom, it was Mr. Hester. The School Board presented no evidence of prior discipline against Mr. Hester and acknowledged that the default position for first time disciplinary actions is progressive discipline. The School Board proved its allegation that Mr. Hester “repeatedly provided ESOL endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes.” However, the School Board did not prove that Mr. Hester intentionally falsified records, otherwise engaged in fraudulent activities, or took any action indicating a guilty conscience. Mr. Hester believed, unreasonably but honestly, that he had the authority to award ESOL credits to the five teachers discussed above based on his “alternative delivery” method. Whether Mr. Hester’s mistaken understanding of his authority constitutes such a severe act of misconduct as to merit circumvention of the established progressive discipline procedure is ultimately the School Board’s decision. It appears to the undersigned that the District would not be well served if it were to simply jettison such a tremendous source of information and support based on the allegations proven at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Duval County School Board enter a final order finding Dennis Hester guilty of misconduct in office and imposing the following sanctions: uphold Respondent's suspension without pay from July 3, 2013, through the date of the final order and issue a written reprimand to Respondent. DONE AND ENTERED this 7th day of January, 2015, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 7th day of January, 2015.
